Datasets:

JuDDGES

/

en-court-raw

like 0

1bcb3fba3814df3cbdd75e037d79e210be1b597cabe3132335eef347322ec80e

[2011] EWCA Crim 3028

EWCA_Crim_3028

crown_court

Neutral Citation Number: [2011] EWCA Crim 3028 Case No: 201100802/C4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 16th November 2011 B e f o r e : LADY JUSTICE RAFFERTY DBE MR JUSTICE MACDUFF RECORDER OF NORWICH (His Honour Judge Peter Jacobs) (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v SIMON DAVID EDWARDS - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph

Neutral Citation Number: [2011] EWCA Crim 3028 Case No: 201100802/C4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 16th November 2011 B e f o r e : LADY JUSTICE RAFFERTY DBE MR JUSTICE MACDUFF RECORDER OF NORWICH (His Honour Judge Peter Jacobs) (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v SIMON DAVID EDWARDS - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr D Whitehead appeared on behalf of the Appellant Mr R Bond appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LADY JUSTICE RAFFERTY: On 14th January 2011 in the Crown Court sitting at Wolverhampton, the appellant, 29, was convicted of cruelty to a person under 16 years and on 1st March 2011 sentenced to 3 years' imprisonment with consequential directions. He appeals against conviction by leave of the single judge on ground 1, material irregularity, and renews his application, after refusal, on ground 2, complaining of an impugnable decision on competence. We interpose at this stage that this case attracts reporting restriction, we shall where possible attempt to identify only by initials. If at any stage we mention a name, that does not constitute leave for the name to be published 2. On Thursday 16th July 2009 C, aged 5, was taken to Russells Hall Hospital complaining of a painful stomach. She had been vomiting throughout the day and her mother, Mrs Davis, was concerned because she had seen traces of blood in the child's vomit. 3. A scan revealed that her kidneys were in an abnormal position, the tube connecting them split, causing blood to leak into the abdominal area. There were two significant areas of bruising, to the front lower left abdomen and to the lower back, identified as associated with an injury. 4. The appellant, C's stepfather, had brought her into hospital and told staff the child had fallen out of her bed in the early hours of the morning. The Crown's case was that she had not, but that the appellant had punched her, causing the injuries. Aware that his punch had caused her pain, he had done nothing to help her, then lied to hospital staff and as a consequence C had not received prompt treatment. 5. The case for the defence was that the appellant had not caused the injuries. C was a lively 5-year-old who enjoyed bouncing on beds, had a problem at school with a girl named, J, and had fallen down stairs. The appellant could not say how she was injured but he could say that it was not deliberately by him. Her account should not be believed because it was given five days after her admission to hospital and only following substantial prompting. 6. Before the trial the judge discussed with counsel how C was to be cross-examined. He was minded to direct the jury about it and in due course did. The following day there was further dialogue between Bench and Bar about C's ability to recollect events and this led to a further direction to the jury about how C was to give her evidence and the difficulty often encountered with a young complainant's recollection. 7. Here is how the judge phrased it in the absence of the jury to Mr Whitehead, who appears here and appeared below: "But it is probably a time when it would be sensible to say to you, Mr Whitehead, in front of the jury that whilst cross-examination of witnesses is commonly and properly robust, in the case of a very young child it isn't. I shall say to you that you must ask such questions to which you want actual answers, but I will say to the jury that the nature of the defence in this case has been set out in writing, [in a defence case statement] and you are neither required, nor should you, to put that to the witness. MR WHITEHEAD: Thank you. I may at times draft questions in advance ... I don't intend to be very long with [C]. THE JUDGE: But it may help you any way, and I think it would help the jury, to know that there's been a direction along those lines as far as cross-examination is concerned. I shall probably also tell the jury that unless the witness has asked to see lawyers and judges in their robes we shall be in suits tomorrow morning." Later, in the presence of the jury he said: "The directions that I have given to Mr Whitehead in this case are that he can and should ask any question to which he actually wants answers, but he should not involve himself in any cross-examination of [C] by challenging her in a difficult[?] way. In this case the defendant has already set out in some detail what his defence is. It is not a question of putting it to a witness and challenging her about it, so you won't hear the traditional form of cross-examination. I thought you ought to know that from the outset." Later, as the jury was brought in and the judge was running through the usual housekeeping task of timetable, he said: "...as you heard yesterday as we discussed, Mr Whitehead will have a chance to ask questions but it won't be a cross-examination as you know it at all. He'll be asking some questions of her. It's always difficult with very young children. When you think that the event that we're talking of took place in August 2009, how much more difficult is it for a five year-old to remember that far back? So, the questions he asks of necessity be limited in that way. That's something that's unfortunate but we have to deal with it." 8. The evidence from Carly Davis, C's mother, was that on Tuesday 14th July 2009 C had come home from school, told Mrs Davis that another girl, J, had come up behind her and thrown her to the floor. On Wednesday 15th C, after school, said that some children had been sick and sent home. She complained she too felt sick. That night the appellant drove Mrs Davis to work at about 8.30 taking C and their daughter, E, born in 2008, with them. Next morning he arrived with the children to collect her. Mrs Davis asked C how she was and at first C she said she was fine but later she complained of feeling sick so Mrs Davis rang school at 8.20 in the morning and then, a night shift worker, went to bed. 9. Waking between 2.00 and 4.00 pm, she was told by the appellant that C had been sick, that they had gone to get a DVD from Blockbusters where C was sick again, and that she had fallen down stairs outside. The appellant that afternoon as usual went to the gym. That afternoon C was sick again, and now Mrs Davis noticed blood in her vomit. She rang the appellant, who suggested Mrs Davis ring her GP or NHS Direct, and when she did medical advice was to take C to hospital. Mrs Davis did not, as she was pregnant and looking after E, but rang the appellant who came home and himself took C to hospital. 10. After the first day at hospital he was no longer allowed to visit C because a cascade of allegation had begun and Mrs Davis went in his stead. She produced to the jury affectionate pictures which C had drawn to be given to the appellant. C, the jury knew, had been asking where he was. 11. On 22nd July Mrs Davis was told, at a meeting with DC Hillman and Miss Jones, a social worker, that on 17th July 2009 C had told a nurse that she had fallen out of a high bed with a ladder. Mrs Davis was told that if she wanted her children back she had to end her relationship with the appellant. DC Hillman gave evidence that when she and Miss Jones saw C on the 22nd July, not in a pre-recorded interview, the child had not wanted to go home with Daddy Simon, since, she said, he had hurt her and punched her in the stomach. Miss Jones told the jury that she and DC Hillman spoke to a doctor and then to C, who referred to the appellant as Daddy Simon or Dad. C said she liked mummy looking after her but not the appellant. She would not say why. Although C had been asking to see the appellant, she nevertheless told the two women she did not want to see him. Miss Jones explained to C her job as helping children to be happy and safe and she wanted to know if anything were happening. C, tearful, was asked what had happened and at first said she had fallen out of bed but then that she did not know what had happened. Miss Jones told the jury she "knew" there was an answer. DC Hillman asked if mummy had hurt her and the reply was "no". The officer asked whether the appellant had hurt her and C said: "Yes, he punched me in the tummy". There were no further questions as C was unwell and in discomfort. 12. On 23rd July 2009 C told a support worker in hospital she had a bruise "there" - indicating her groin, and said: "My dad said I fell out of bed but I never, he hit me." C had looked frightened. C told Nurse Turner she did not want to go because "Daddy hits me in the tummy. Not Daddy, Simon," On 29th July, to Linda Taylor, the play assistant, C said: "I don't like Daddy Simon because he hits me and punches me in the tummy." C's body language had changed. She added: "He doesn't stop even when I cry". Asked why, she said: "because I didn't eat my dinner quickly enough." 13. C herself, by way of a poor quality interview pre recorded on DVD in hospital by DC Hillman and Miss Jones, said the pain in her stomach was since she kept falling out of bed. She had also been punched by someone at school. She did not like the appellant looking after her because he kept punching her. Asked to tell of his punching her in the stomach, she said she had been eating her porridge, he asked had she finished, she said "no" and he punched her. She had been sitting on the floor. She stood, crying, and he punched her again in the stomach. She and he had gone next day to collect her mother. When her mother went to bed the appellant punched her again to the stomach because "he hadn't finished". She explained her other bruises as caused by falls down stairs and at school. She referred to the appellant as "Simon" and not 'Daddy'. She did not want him living at home. On the same day as the punch, she had fallen out of bed onto the carpet but had rolled over to get down and he had pushed her. It had hurt and she had cried. He had not helped her. She did not know when he was cross with her. She had to stand in the naughty corner because she had wanted a teddy. 14. Cross-examined, she confirmed that she remembered Daddy Henry (her biological father). She denied that J, the girl at school, had thrown her to the floor at school. She had been sick at Blockbusters and she had fallen over. She used to bounce on beds with the appellant's daughter from a previous relationship. She had been given a chocolate cake as a treat on occasion and she had been sick in the car. 15. On more than one occasion, so the evidence went, C had told her foster mother words to the effect the appellant had punched and kicked her in the stomach because she would not hurry up and eat her tea. He was big and strong. Daddy Henry, on the other hand, did not hurt her. 16. The Crown called two doctors as expert witnesses, Drs Ibrahim, a consultant paediatrician and Sprigg, a consultant paediatric radiologist. Dr Ibrahim thought the appellant's explanation unacceptable and ordered a scan, done by Dr Sprigg. Although, as it emerged, C had a congenital abnormality of the kidneys, which rather than separating and moving had stayed low in her body, fused and at the front, both were nevertheless functioning normally. The doctors disagreed as to whether both kidneys in that position would leave C more susceptible to injury to them. Dr Sprigg believed that they would have reduced protection as a consequence of where they were. Dr Ibrahim disagreed. The doctors agreed that the tube leaking blood was the reason for the blood in C's vomit. 17. A large bruise on her lower front abdomen and another to her lower back were unusual sites for accidental injury. Children usually injured their hands, legs or bony areas when they fell. Bruising could arise from an external force, or internal bleeding. Injury to a kidney could arise without external bruising. 18. Dr Ibrahim thought the bruises would have been caused by two impacts but she could rule out a fall from a bed as causing either. Dr Sprigg reviewed the scan. The injuries dealt in C he would for example expect as a result of a lap strap seat belt, worn during a head-on impact or from a fall from a bicycle, where a child impacted upon a hard object, perhaps the handlebars. Both doctors had seen similar injuries common in children of an age to play contact sports, for example rugger. That was nowhere near the case of this little girl, aged 5 years 2 month. Dr Sprigg thought that a punch, if hard enough, could cause the injury with which he was concerned. 19. The appellant had in interview given an account which was to be by and large echoed in his evidence, which was that on a school trip on Tuesday 14th July 2009, there had been an incident, according to C, involving J. On Wednesday 15th, he got C and E ready for school, collected their mother and at the end of the day they had all taken her to work at about 8.30. C had been fine. Back home, at about 9.00 pm, he had given C porridge, as usual, and some chocolate cake as a treat. He had not punched her. He put the girls to bed. Early on Thursday 16th the sound of crying took him into C who was sitting between separated bunk beds on the floor. Dried blood was round her nose. He cleaned her and gave her Calpol before taking her back to bed. 20. The household usually rose at about 6.00 am. C would wash herself and then she would come down for her porridge before they set off to collect her mother, as happened here. He explained that she had been sick down her school uniform, so she had to be bathed and changed. He had not been angry about that. He went to collect Mrs Davis, her mother, and explained to her about C falling out of bed. C, when they returned home, had been fine but was sick again. They telephoned school but were not particularly concerned because they were told that a sickness bug had been going round. 21. During the day, he took C to Blockbuster to get a DVD. They had not got there because C had been sick twice in the car. When they got home, she said she was feeling sick but she seemed to him fine, so he let her go in whilst he cleaned the car. A neighbour told him that C had fallen down some steps and he, the appellant, went to help her. 22. At about 3.20 that afternoon, entirely as was his normal routine, he went to the gym. At about 5 o'clock Mrs Davis telephoned him and told him that she could see blood in C's vomit. He advised her to ring her GP or get on to NHS Direct. It was he who had later taken C to hospital, where had there explained all he knew. He had never told C to say anything different. As it happens she was a girl who did not have teddies, she had dolls. Cross-examined he accepted that there were no injuries arising from an incident on a school trip and that everything on both Tuesday the 14th and Wednesday 15th July 2009 had seemed normal. He had not fallen out with C and she had not complained of abdominal pain or sickness before Thursday 16th. He could not explain why she should lie about him. Grounds of appeal are as follows: first that a material irregularity occurred in that the judge gave the impression, certainly to counsel, that the interests of C outweighed the appellant's right to a fair trial. His counsel was wrongly restricted in the way he was permitted cross-examine C. That restriction gave the impression that C may have given evidence more reliable than that of an adult and he was prevented from putting his case, restriction emerging in the presence of the jury, during cross-examination. On that ground leave was granted. The second ground, on which application is renewed, was that the judge formed a preliminary view that C, due to her age and the 18 months since the allegation, would be unable to remember or incapable of remembering specific events. Mr Whitehead was prevented from challenging her competency and formulating submissions that her evidence should, under the provisions of section 78 of the Police and Criminal Evidence Act 1984 , be excluded. We give some flavour now of the detail of C's ABE interview which although barely audible replays scrutiny: "Do you know what I've come to talk to about [C]? (shakes head) No. Last week when I came to see you in hospital you had some nasty bruises, do you remember? Nods. Where did you get them bruises C? Erm, if I fell out of bed and keep falling out (inaudible). Do you? Oh dear. And somebody punched me when I was at school." A little later: "What about the hurt in your tummy, that's the one that's been really bad (inaudible). Do you know how you hurt your tummy? (Shakes head)." A little later: "Fell out of bed? Yeah. And then well let's have a think for a minute who lives in your house. Who lives in your house? ... and who normally looks after you? Simon. Simon. Simon someone who lives in your house, does he? Nods. Do you like it when Simon looks after you? (Shakes head) Okay. Will you will you tell me [C] [and the child says] Cos erm, cos erm Simon keeps punching me. Does he? Oh dear. Tell me about that then [C], about Simon punching you in your tummy. Erm, cos erm, cos I was eating my porridge ... And what happened then? Then I saw him again and he just punched me in my tummy." The child makes plain this was when she was in the living room and seated on the floor, eating her porridge. The obvious inference is that this was before she went to bed and she was later to confirm it: "Can you tell me how he punched you? He done it with his hand [when asked where, she showed her tummy]. Did he say anything when he punched you, did he say any words? (Shakes her head)." She is later to demonstrate a second punch to her tummy and that is after her mother had come back from work the next day, again in the living room, because C hadn't finished her meal: "Do you remember the bruise that I'd seen on Monday, the really big one that's down here. Here. Yes down there isn't it underneath your knickers. Remember how you did that one? (Shakes head)." There is, of course, more dialogue but we have identified those comments to give a flavour to the submissions upon which Mr Whitehead founded his argument. 23. C gave evidence, as is usual, by live television link. The carefully thought-through procedure was that the first half of her edited Acquiring Best Evidence video was played as her evidence in chief. It was followed by a break. During the break the transcript of the video recording was read to C in the privacy of the room in which she sat. The second half of the interview was then played, followed by another break and another reading to C to the transcript. 24. Mr Whitehead, if we may say so, in a most gentle and skilled way began his cross-examination. He put or sought to put the case for the appellant and was approaching the suggestion that the appellant did not assault C as C had told the police when the judge intervened. 25. Mr Whitehead having centred on the easily understandable chocolate cake reward, he went on: "Okay, and whilst you ate your chocolate cake Simon was feeding [E]? Do you remember that? Yes. And then you all went to bed? You went to your room? You slept in your bed, didn't you? Yes. And [E] slept in her room in a cot? Yes. Simon and mum, they had another room, didn't they? THE JUDGE: Could we stop for a moment? MR WHITEHEAD: Yes. JUDGE: Just stop it. [We interpose, the judge is clearly not saying "just stop it" to Mr Whitehead, but the technicians, so that C cannot hear]. I am concerned you're making suggestions to the witness, and ordinarily that would be absolutely appropriate, but making suggestions to a six-year-old about matters so long ago, I wonder whether we're sure we're getting accurate information. Could you make the questions a little bit open so we can test whether she does remember? MR WHITEHEAD: I'll do my very best. THE JUDGE: Thank you." Obviously the link was switched back on because the judge says: "It's all right, [C] I've just asked Darron to ask you things in a slightly different way if he can" And on goes Mr Whitehead, through the clearest of approaches, he having told the child that he had 10 areas to question her upon, and, one by one and enumerating them, he went through them. He picks her evidence up again and says: "Good, okay. We're still on number 3. All right? I'll try and change the way I ask you some questions, if that's okay, but the rules are still the same. If you don't understand or you can't remember please say to us. All right [C]? You won't be in any trouble at all." He says a moment or two later, having once again centred her, this time by reference to a house whose name she would recognise: "Simon didn't stay in your room, did he? No, all right. Okay. I know." Then next recorded comment is "yes" from the judge. We infer having between us some little experience, that Mr Whitehead had seen the judge's demeanour change and knew that the judge was becoming anxious. We think we are right because the consequential comment from Mr Whitehead is to C: "I have to think about the questions as well. All right? So if I go quiet a bit, just sit and say that looks like great fun. All right? Mm. MR WHITEHEAD: I can see you like that [whatever it was] THE JUDGE: You could certainly ask which room he slept in if you wanted to. MR WHITEHEAD: I'm trying to tread very carefully" He picks the child up again: "I'm still staying with number 3. All right [C]?" And off he goes, through Blockbusters, and figuratively speaking, brings C home and deals with the appellant going out that night. "Do you remember Simon going out shopping to get the food? Yes. And I think he did bring a film home for you in the end, didn't he? Yes. And he went out again that night? He left you and [E] and mum alone at the house? Yes? Yes. Okay. This is what you remember, is it? You're not just agreeing with me? It's what you remember? [Inaudible] THE JUDGE: I am concerned, Mr Whitehead, about this. MR WHITEHEAD: Can we switch this off for a moment? THE JUDGE: Yes. Can we just switch off for a moment. [It is obviously switched off]. MR WHITEHEAD: Your Honour, I don't mind [inaudible] on what I ask, but I have to ask some questions. THE JUDGE: I do agree entirely, but it is a matter of I think very general knowledge that when you're talking about days before the specific events and then even though [C] is able to recite the days of the week then asking about what happened on the Tuesday or the Wednesday is very difficult, and I'm only saying that if you can make the question more open so that she's demonstrating what she can remember rather than agreeing with you I think it will be more help to demonstrate her memory rather than an ability to agree or disagree. MR WHITEHEAD: I understand. JUDGE WAIT: All right. MR WHITEHEAD: I'm doing [my best]. THE JUDGE: I know it's a very difficult task, and it isn't intended as a criticism." On goes Mr Whitehead through his topics 5, 6, 7, 8, 9 and 10. 26. Consequential criticisms flow. The judge, it is said, gave the impression that the interests of this very young complainant outweighed those of the appellant who had a right to a fair trial. We have been taken to R v T [2010] EWCA Crim 630 , where Moses LJ said: "The judge ... seemed to suggest that it was necessary for the court to balance on the one hand the interests of justice generally, and of the victims, against the defendant's right to a fair trial. We do not agree. There is nothing set against a defendant's right to a fair trial. Nothing can deprive a defendant of that right, enshrined, as it is, in Article 6..." It would be impossible more clearly to express the position. In R v B [2010] EWHC Crim 4, the Lord Chief Justice provided guidance upon the way in which very small children may, in criminal trials, give evidence. The defendant's counsel in a trial which saw a child of four-and-a-half describing events when she was 3, was, Mr Whitehead points out, permitted to put his client's case. Here the complaint is that Mr Whitehead could not explore inconsistencies, credibility and reliability, or fundamental material for cross-examination. With the playing of ABE video in-chief and several bland and general questions from him, the effect was that the jury was denied the opportunity to see C throughout the adversarial process and come to its own conclusions. The danger Mr Whitehead identifies is that it was left with a lasting reminder of the video but without exploration of whether C had been truthful or consistent. Effectively it became and had the appearance of a one-sided trial. In the R v B [2010] EWCA 313 Pitchford LJ considered the overriding objectives in the Criminal Procedural Rules and said: "However, our system is adversarial and it is a matter for the parties to present the evidence in the way which they consider best serves their case... they should be permitted to conduct and present the case to the jury without unnecessary interference. It is the responsibility of the judge, it seems to us, to assist the jury's task by seeking and at times perhaps insisting on the orderly presentation of the evidence." The complaint here is that the learned judge's intervention and directions had the unintended net effect of the appearance of unfairness. 27. Dr Sprigg's evidence was uncompromising. The history provided by the child is crucial, where there are, as here, non-accidental injuries. Counsel recognised the need to identify the different aspects of C's evidence which were reliable and those which were not. The judge is said, contrary to the observations of the Lord Chief Justice in B , to have drawn a distinction between the evidence of a child and that of an adult. The restriction upon Mr Whitehead had the effect of suggesting that any answer was more reliable than it would have been if given by an adult, an effect both wrong and prejudicial. 28. The evidence, so the submission goes, and its presentation should have been treated in exactly the same way as that of any other witness. Breaks to avoid boredom and so as to retain attention, simple language, short sentences, would have been sufficient to allow C to give her best evidence. The appellant as a consequence has been prevented, it is said, from putting the essential elements of his case; "I did not assault C" and from fully ventilating evidence which had a bearing on her credibility by putting to her that she had lied to those asking probing questions. The procedure which was followed prevented challenge and that challenge might have undermined credibility. Necessarily, submits Mr Whitehead, grounds 1 and 2 are intertwined. If a witness be deemed competent then she is exposed to cross-examination, with allowances in the use of terminology and language for age differences and intellectual abilities. Ground 2 therefore is put in this way: although there were some leading questions within the ABE interview, competency did not appear to be an issue at the outset of the trial. However, the judge seems to have assumed that the 18 month delay between alleged offence and trial, coupled with C's extreme youth, meant that she would be unable to remember specific events. He fell into error in that he should have considered competency before permitting her to give evidence. There was no invitation to counsel to address any concern over the judge's preliminary view. Arguably, the competency test had already, at that stage, been failed if the judge's views were well founded, and C should not have been allowed to give evidence at all. Cross-examination would have been designed to probe what actually happened during the incident and immediately after. Any answer would have moved the process of considering competence on and consequently, after the normally permitted range of cross-examination, the judge could, dependent on answers, have been better placed to analyse C's competency. Because, at an early stage, he decided to restrict and constrain cross-examination, he prevented himself from exercising that duty to monitor her competency. For the Crown, Mr Bond, who appears here and appeared below, answers the complaint of material irregularity thus. The judge neither invited submissions from counsel, nor expected any. He made it quite plain that the modus of cross-examination was his decision. The defence could ask any necessary questions save about the assault itself or any "suggestion" questions. Because of her age and the passage of time the judge was obviously concerned that C would not be giving accurate information if suggestions were put to her. The jury heard him say so during cross-examination, as we have already rehearsed. In addition, it was obvious that the judge thought the defence did not need to put its case on the incident itself, and the result of such questioning would be to cause confusion in one so young, unhelpful to a jury trying to conclude, at the end of the day, whether the Crown had made it sure of guilt. The judge, says the Crown, plainly had regard to the overriding objective expressed in the Criminal Procedure Rules 2010. They impose a positive duty to manage a trial, so as to achieve a just result both for Crown and the defence. Where relevant they read as follows: "Part 1. THE OVERRIDING OBJECTIVE 1.1(1)The overriding objective of this new code is that criminal cases be dealt with justly. (2) Dealing with a criminal case justly includes ... (e) dealing with the case efficiently and expeditiously... (g) dealing with the case in ways that take no account- (i) the gravity of the offence alleged. (ii) the complexity of what is in issue." The reality, says the Crown, of questioning children of tender years is that direct challenge that he or she is wrong or lying could lead to confusion and, worse, to capitulation. Capitulation is not a consequence of unreliability by a function of the youngster's age and the circumstances in which she finds herself. Experience, says the Crown, has shown that young children are scared of disagreeing with a mature adult whom they do not wish to confront. This was a just decision because the judge took account of the gravity of the case, the complexity of what was in issue and the severity of the consequences for the defendant and others affected. In addition, he was dealing with the case efficiently and expeditiously. His decision did not make this an unfair trial, so the submission goes, and as a consequence the conviction is not unsafe. We agree. The judge did not give the impression that the interests of C outweighed those of the defendant who had an absolute right to a fair trial. Throughout the jury was fully aware of the defendant's case. It knew he denied punching C. It knew from cross-examination of C that the defence were exploring alternative mechanisms for her injuries. It knew it from skilled cross-examination of the Crown's doctors, Ibrahim and Sprigg. They were asked, for example, to deal with C's bouncing on her bed, with her falling off a bed onto a floor, onto a window sill, or the end of the bed. They were invited to deal with the post-Blockbuster fall on concrete steps leading to her front door. It follows that two possible mechanisms were fully and appropriately explored with the two experts there to assist the jury. The jury was not, in our view, left with the impression of a one-sided trial. No criticism is made, nor could it be, of the terms of the summing-up, which, as one would expect from this experienced Tribunal, was scrupulously fair and balanced. It fully identified the issues. The jury knew that the defendant disputed the evidence of C. The judge clearly explained his decision as to cross-examination technique and why he had taken it. In addition, the jury was specifically directed "to make proper fair allowances for the difficulties faced by the defence in asking questions about this." The tenor of the exchanges between Bench and Bar, through which we have in some detail gone, make plain that the judge was astute to the difficulties faced by Mr Whitehead, sympathetic to the skill with which he approached his task and wholly understanding of how hard an exercise for him it was. The real complaint here, in our view, is that the defence was deprived of the opportunity to confront C in what we might venture to call "the traditional way". It is common, in the trial of an adult, to hear, once the nursery slopes of cross-examination have been skied, the assertion: "You were never punched, hit, kicked as you have was suggested, were you?" It was precisely that the judge was anxious to avoid and, in our view, rightly. It would have risked confusion in the mind of the witness whose evidence was bound to take centre stage, and it is difficult to see how it could have been helpful. Putting the same thing a different way, we struggle to understand how the defendant's right to a fair trial was in any way compromised simply because Mr Whitehead was not allowed to ask: "Simon did not punch you in the tummy, did he?" In any event the Crown was far from wholly reliant on the evidence of C. It called strong supporting evidence, not only doctors Ibrahim and Sprigg. It was agreed that when C became poorly she was in the care of the appellant. The injuries were non-accidental and caused by significant trauma. The blood in her vomit - the prompt from Mrs Davis asking the appellant to take her to hospital - was significant because it can be part of a stress reaction to trauma or due to the injury to the stomach itself. The judge's case management, in our view, came nowhere near rendering this trial unfair. We deal, for the sake of completeness, with ground 2. It is without foundation. The defence did not at trial challenge C's competency and no application was made pursuant to section 78 of Police and Criminal Evidence Act seeking to persuade the judge in his discretion to exclude her evidence even after restrictions upon cross-examination. Section 53 of the Youth Justice and Criminal Evidence 1999 reads where relevant: "(1) At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence... (3)A person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person who is able to— (a)understand questions put to him as a witness, and (b)give answers to them which can be understood." Section 54 of the same Act, which need not in detail be rehearsed, sets out how competence should be determined. If the parties do not raise it, the court, of its own motion, may. This judge did not. Although young, C's age was not the sole determinant. He must have been satisfied about her competence not simply by virtue of her age and the words she used but also by virtue of way she gave evidence in her ABE recording and over the television link during cross-examination and re-examination. We referred earlier to the judgment of the Lord Chief Justice in B . He there said (paragraph 38) that the issue of competency is entirely witness-or-child specific: "The witness need not understand the special importance that the truth should be told in court, and the witness need not understand every single question or give a readily understood answer to every question. Many competent adult witnesses would fail such a competency test. Dealing with it broadly and fairly, provided the witness can understand the questions put to him and can also provide understandable answers, he or she is competent. If the witness cannot understand the questions or his answers to questions which he understands cannot themselves be understood he is not." Here the judge was more than entitled, in our view, to conclude that C understood the questions put in her ABE interview and in court and that the answers she gave were understandable. 29. If we were in any way lacking confidence in our overall conclusions, and we are not, we should have derived it from the following. As Mr Whitehead explains to us, as he began his oral submissions: when C's poorly state came obvious, the appellant acted entirely appropriately. It was he who suggested to her mother that her mother ring the GP or NHS Direct. It was he who came home from the gym and took the child to hospital. He gave a full account exculpating himself uncontradicted by subsequent evidence. He gave evidence. He gave an explanation to professional staff at hospital. Mr Whitehead had yet another advantage. There had been slapdash disclosure, or more accurately lack of it, by the Crown. On the fourth day of the trial, into Mr Whitehead's hand of cards fell a note of comments made during an exchange between DC Hillman and Miss Jones three days before the ABE interview at hospital. C had given answers which either exculpated the appellant or, at the very lowest, suggested that he had pushed her out of bed. All of this was before the jury. It is difficult to see that the Appellant could with greater skill have been represented or his interests better served. 30. The summing-up, as we have already said, is unimpugnable and unimpugned. The conduct of the trial was astute, balanced, measured and fair and nothing in it gives us any cause to doubt the safety of the conviction. On ground 1 this appeal is rejected, we refuse leave to appeal on ground 2 and the application on ground 2 is dismissed.

2011_11_16-2863.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/3028/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/3028

3d44d84a1969981c5ad20216551538f96c299e8f73870efd9e9e36b9d74c9d3b

[2015] EWCA Crim 105

EWCA_Crim_105

crown_court

Neutral Citation Number: [2015] EWCA Crim 105 Case No: 201403190 A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Court of Justice Strand London, WC2A 2LL Date: Thursday, 29 January 2015 B e f o r e : LORD JUSTICE TREACY MRS JUSTICE SWIFT DBE MR JUSTICE JEREMY BAKER - - - - - - - - - - - - - - - - - - - - - R E G I N A v NATHAN JENKINS - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 16

Neutral Citation Number: [2015] EWCA Crim 105 Case No: 201403190 A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Court of Justice Strand London, WC2A 2LL Date: Thursday, 29 January 2015 B e f o r e : LORD JUSTICE TREACY MRS JUSTICE SWIFT DBE MR JUSTICE JEREMY BAKER - - - - - - - - - - - - - - - - - - - - - R E G I N A v NATHAN JENKINS - - - - - - - - - - - - - - - - - - - - - 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 AR Taylor appeared on behalf of the Appellant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T LORD JUSTICE TREACY: 1. In April 2014 this offender pleaded guilty to two offences of causing serious injury by dangerous driving. He was sentenced at Newport Crown Court on 6 June 2014. On that occasion the judge imposed two sentences of 3 years' imprisonment to run consecutively, making a total of 6 years. The offender was disqualified from driving for 10 years and until an extended retest was passed. He also acknowledged offences committed on the same occasion of driving otherwise than in accordance with the licence, and using a vehicle without insurance for which no separate penalty was imposed. He had also breached two previously made community orders. These were revoked and no separate penalty was imposed. The single judge has granted leave. A challenge to the sentence passed below relates solely to the term of imprisonment imposed. 2. The facts show that on the evening of 14 May 2013 Mr and Mrs Williams were driving home in a 30 mile per hour zone. They were well within the speed limit. As Mr Williams rounded a bend the appellant's car, coming in the opposite direction, entered Mr Williams' lane and there was a head-on collision. The scene was described as horrific. Both Mr and Mrs Williams were trapped in their vehicle. It took about an hour for the fire brigade to release them. The appellant was also cut free from his vehicle. 3. A police investigation report stated that the damage caused to the vehicles was consistent with the impact having taken place with a closing speed of 90 to 100 miles per hour. CCTV footage captured the appellant's car on its journey before the crash. At that stage it was travelling at 73 miles per hour in a 30 mile an hour zone. It was raining heavily at the time. A taxi driver and an off-duty police officer were driving separately on the same road. They had seen the appellant driving at excessive speeds at some point before the collision. The taxi driver had thought that the appellant was going to kill somebody because of the manner of his driving. The police officer remarked to a colleague on the idiocy of that driving. 4. The injuries suffered by Mr and Mrs Williams were very significant. Mr Williams had a broken arm, an open below the knee fracture to his leg, a fractured ankle which required pinning, two fractured ribs and a fractured hip. Part of his calf muscle had to be removed from his leg and he required skin grafts. He was confined to a wheelchair for a considerable time and at sentence was still only able to walk with a stick. 5. Mrs Williams had a broken arm which required plating. She had seven broken ribs, a punctured lung, internal bleeding, damage to her shoulder, nerve damage and a puncture wound around her knee. She was in intensive care for two days and in a high dependency unit for a further three days. 6. The appellant was taken to hospital as he had been knocked unconscious. He suffered fractured ribs, a fractured leg and hip. He only had a provisional driving licence. He was uninsured. The judge found that he had been showing off and thrill seeking at the time of the collision. He commented on the agony for the occupants of the car who were trapped for almost an hour, and who thought that they were going to die before the fire service cut them out. The offender had been involved in a similar accident not long before this one. He had not learned from that experience. 7. There were victim personal statements before the court. It was plain that the consequences of the collision were long term. The Williams's daughter had had to postpone her wedding for a year because of the crash. Their recovery was prolonged and painful and they were separated from one another for a considerable period: a source of real distress to them. Mr Williams has been transformed from an active outgoing individual to one whose mobility will be significantly affected. He suffers regular nightmares about the accident. 8. Mrs Williams described the trauma in very similar terms. Of particular distress to her is the fact that her breasts are now misshapen and painful. She finds this particularly upsetting. She spoke of continuing pain. Both of them speak of a loss of social confidence and of financial difficulty. As Mrs Williams puts it: "We do not have our health, we have no vehicle, and we are financially drowning. Life as we knew it has dramatically changed forever." 9. This appellant, the cause of such misery, is aged 27. He has been a regular attender before the courts, having previously been convicted of some 23 offences. As far as motoring offences are concerned, he was convicted of driving without due care and attention in November 2013, together with other offences including no insurance and failing to stop after an accident. He was fined and disqualified for 4 months on that occasion. 10. The grounds of appeal submit that the judge was wrong to impose consecutive sentences for matters arising out of the same incident. It was also submitted that the judge failed to apply the principle of totality. The judge was criticised for having given too much weight to the sentencing guidelines for causing death by dangerous driving. The 3 years imposed on each count would represent a starting point, prior to guilty plea, of 4½ years' imprisonment for offences for which the statutory available maximum is 5 years. The appellant had pleaded guilty at the Crown Court and the judge had allowed a full one-third discount. 11. In our judgment, following the decision in R v Dewdney [2015] 1 Cr App R (S) 5 , which postdated the hearing of this case, the judge was entitled to have regard to the Sentencing Guidelines Council's guideline as long as he had regard to fact that this was not a case involving fatality. In our judgment, this was a very serious case of bad driving. The appellant was showing off. He was driving at a greatly excessive speed in a restricted area. That driving was deliberate and sustained or prolonged. The offence is aggravated by the appellant's previous motoring record, and by the fact that two people were very seriously injured. It is also aggravated by the commission of other offences at the time, namely driving without insurance and driving other than in accordance with the terms of a valid licence. 12. It seems to us that the submission that the judge should not have passed consecutive sentences is correct. In R v Noble [2003] 1 Cr App R (S) 65 consecutive sentences were passed for causing several deaths by dangerous driving in the same incident. Those sentences were quashed. Notwithstanding the numerous deaths, there was a single act of dangerous driving and the sentence originally passed offended the principle that consecutive terms should not normally be imposed for offences arising out of the same incident or transaction. That decision is binding on this court and indeed was approved by Lord Judge CJ in Attorney General's Reference (No 57) [2009] (Ralphs). 13. Further support for the argument can be gleaned from the Sentencing Council's definitive guideline in relation totality. At page 6 of that guideline, under the rubric of cases where concurrent sentences are to be passed, the specific example is given of: "A single incident of dangerous driving resulting in injuries to multiple victims where there are separate charges relating to each victim. The sentences should generally be passed concurrently, but each sentence should be aggravated to take into account the harm caused;" 14. There is thus a clear process to be observed in this type of case indicated not only by settled authority, but also by recent guidance from the Sentencing Council. It does not appear that those materials were drawn to the attention of the sentencing judge. It seems to us, therefore, that the appellant's point is a good one and that consecutive sentences should not have been passed. 15. In Dewdney this court referred to the statutory maximum and the degree of compression in the range of sentences available to the court to reflect different types of dangerous driving and its consequences. This case provides an example by reason of the very serious injury caused to more than one victim, and the additional aggravating features to which we have referred. 16. It seems to us that the maximum of 5 years may well not in this class of case provide adequate headroom for courts. It is not difficult to envisage cases involving extremely bad driving where there are aggravating features of previous convictions, other motoring offences convicted simultaneously, and excessive alcohol consumed, as well as very serious injury to more than one victim. If the rationale behind a 5-year maximum for this offence was related to the 5-year maximum for a section 20 offence, the parallel was a false one because in an incident where two offences against section 20 of the Offences Against the Person Act have been committed, a court would not be constrained by the rule of practice preventing consecutive sentences. All that would be required would be an overall sentence which was proportionate and fair, but which might exceed the maximum for a single offence. 17. It is to be noted that the maximum penalty for causing death by dangerous driving is 14 years. It is easy to conceive of cases brought under this section where, although the injury is not fatal, the victim is left in a vegetative state so that their life is effectively destroyed, and where a second person is left severely and permanently disabled. It might appear that the gap between a maximum of 5 years and a maximum of 14 years, in those circumstances, is too wide. 18. This sort of difficulty was discussed in Attorney General's Reference (No 57) of 2009 in relation to firearms and the range available for sentences with a maximum of 10 years' imprisonment. The position in this case is not dissimilar. In the Attorney General's Reference a call was made for the matter to be addressed by legislation. It seems to us that the time is right for further reflection in the case of an offence, contrary to section 1A of the Road Traffic Act 1988. 19. We would only add that in many cases prosecuting authorities, no doubt recognising the state of the law, indict defendants on a single count in situations where the driving has caused serious injury to more than one person. Dewdney is such an example. Thus the 5-year maximum operates. 20. In the present case, however, the prosecutor chose to put two counts on the indictment. It clearly cannot be correct that the sentencing of an offender in such circumstances as these can be governed by whether the matter is charged as a single count or more. 21. Returning to the present case, it is clear that the judge adopted a starting point of 4 years and 6 months before granting full credit for the guilty pleas. The term of 4 years and 6 months is close to the maximum available sentence and reflects the aggravating features of the case within the statutory framework. The judge's conclusion clearly shows that he regarded the accumulation of factors in this case as sufficient to put this case into what would be category 1 had this been a case of causing death by dangerous driving. We agree. 22. However, we part company with the judge in his assessment that this offender should be granted full credit for his guilty plea. Leaving aside the fact that no intimation of a guilty plea was given until the matter reached the Crown Court, we consider that the case against the offender was overwhelming. Having been trapped in his vehicle there could be no issue but that he was the driver of the car in question; nor could there be any issue that the collision had caused extremely serious injuries to the unfortunate victims; nor in the light of the investigator's report, the CCTV and the eyewitnesses evidence could there be any real doubt that this vehicle had been driven dangerously for a sustained period. The collision on a bend with the appellant's vehicle on the wrong side of the road also contributes to this analysis. 23. In the circumstances we consider that the judge should have limited credit to 20%. Notwithstanding the submissions made to us this morning on this aspect of the matter by Mr Taylor, to effect such a reduction would be entirely in accordance with the current guidance, namely the Sentencing Guidelines Council's guidelines in relation to guilty pleas. 24. Applying that discount to the judge's figure of 4 years and 6 months after a trial, the resulting sentence will be one of 3 years and 7 months. We allow this appeal by quashing the custodial sentences imposed below. In their place we impose concurrent sentences of 3 years and 7 months on each count. 25. This does not offend section 11(3) of the Criminal Appeal Act 1968, as overall the appellant has not been dealt with more severely than he was in the court below. There has been no appeal against the order for disqualification and retest, which remains in place.

2015_01_29-3532.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2015/105/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2015/105

623b2f0c84721607c9dfe5bc13337f3cc2ad6c3505a9630778ce78a08e400406

[2008] EWCA Crim 1850

EWCA_Crim_1850

crown_court

No. 2007/01008/D1 Neutral Citation Number: [2008] EWCA Crim 1850 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Thursday 17 July 2008 B e f o r e: LORD JUSTICE HOOPER MR JUSTICE IRWIN and HIS HONOUR JUDGE RADFORD ( Sitting as a Judge in the Court of Appeal, Criminal Division ) __________________ R E G I N A - v - RB __________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 190 Fle

No. 2007/01008/D1 Neutral Citation Number: [2008] EWCA Crim 1850 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Thursday 17 July 2008 B e f o r e: LORD JUSTICE HOOPER MR JUSTICE IRWIN and HIS HONOUR JUDGE RADFORD ( Sitting as a Judge in the Court of Appeal, Criminal Division ) __________________ R E G I N A - v - RB __________________ 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 Harrison and Miss G Gibbs appeared on behalf of the Appellant Mr J M Farmer appeared on behalf of the Crown ____________________ J U D G M E N T LORD JUSTICE HOOPER: 1. On 23 January 2007, at the Crown Court at Cambridge, before His Honour Judge Haworth and a jury, the appellant (now aged 40) was convicted of one count of rape (count 3) contrary to section 1(1) of the Sexual Offences Act 1956 and two counts of sexual activity with a child (counts 4 and 5) contrary to section 9(1) and (2) of the Sexual Offences Act 2003 . Count 3 charged the appellant with the rape of his then 13 year old daughter "F" between 1 February 2003 and 30 April 2004. Counts 4 and 5 were specimen counts alleging that between 1 January 2005 and 1 April 2006 the appellant, who would have been aged 38 at the time, had sexual activity with his "stepson" A, who was aged 8 to 9 at the time. We say "stepson" because the appellant lived with and had had children by A's mother but had not married her. The sexual activity alleged in the two counts was placing A's penis in his mouth. 2. The appellant appeals against conviction with the leave of the single judge. 3. The offence alleged in count 3 was said to have occurred when the appellant arranged to drive his daughter to the seaside in what she thought was a dark red Vauxhall. On the way the appellant, according to his daughter, had given her some pills. Whilst at the seaside she felt unwell. On the way home the appellant, on her account, stopped the car in a lay-by. He opened the door, pushed back her seat, lifted her skirt and put his penis inside her. He made some remark afterwards about how it was better that she had lost her virginity to him. In cross-examination it was put to her that the appellant did not purchase a red Vauxhall until March 2004, by which time she would have been 14 years old. His daughter replied that the rape may have taken place in another car, a green Renault. She was sure that the incident occurred when she was 13 because it coincided with a visit to H (a place) with members of her family. 4. Counts 4 and 5 related to A, whose date of birth was 1996. A said in his video interview that on a number of occasions the appellant had sucked his "you know what". In the course of giving evidence he said that the appellant had entered his back passage with his "willy". In re-examination Mr Farmer for the prosecution asked him about the statement in the video to the effect that the appellant had sucked his penis and A said that he had. There was no count in the indictment reflecting the alleged buggery. The manner in which Mr Farmer was permitted to re-examine A is the subject matter of a ground of appeal. 5. At the outset of the proceedings we told counsel that we wished to receive argument first of all on the third ground raised by Mr Harrison on behalf of the appellant relating to the admissibility of certain evidence. Having heard arguments from both Mr Harrison and Mr Farmer, we announced our decision that the evidence ought not to have been admitted. We asked Mr Farmer to address us as to the consequences of our conclusion on the safety of the three convictions. 6. We start, therefore, with the third ground of appeal. Mr Harrison submits that the trial judge should not have acceded to the prosecution's application to admit evidence from the appellant's nephew, JB. JB had told the police in March 2006 (at a time when he was aged in his early thirties) that the appellant had on a few occasions put his penis in his mouth. He said in his statement that this had occurred when he was aged between eight and nine-and-a-half. Thus, so Mr Harrison submits, the appellant would have been aged 13 for most of that time. 7. The judge gave a ruling which can be found at volume 4, pages 10E-17F. 8. We remind ourselves of the relevant provisions of the Criminal Justice Act 2003. Section 101 provides that the evidence of a 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". This is known as gateway (d). Subsection (3) provides that the court must not admit evidence under this (and another subsection) 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". 9. Further guidance as to what a judge should take into account when considering his power under section 101(3) is to be found in section 103 which 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; (b) … (2) Where subsection (1)(a) applies, a defendant’s propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of— (a) an offence of the same description as the one with which he is charged, or (b) an offence of the same category as the one with which he is charged. 10. Subsection (3) says that subsection (2) does not apply in the case of a particular defendant "if the court is satisfied by reason of the length of time since the conviction or for any other reason that it would be unjust for it to apply in his case". 11. The judge of his own motion raised the issue of section 108. As far as we are aware, there have been no reported cases on section 108. Section 108 provides: " Offences committed by defendant when a child (1) Section 16(2) and (3) of the Children and Young Persons Act 1963 (c.37) (offences committed by persons under 14 disregarded for purposes of evidence relating to previous convictions) shall cease to have effect. (2) In proceedings for an offence committed or alleged to have been committed by the defendant when aged 21 or over, evidence of his conviction for an offence when under the age of 14 is not admissible unless -- (a) both of the offences are triable only on indictment, and (b) the court is satisfied that the interests of justice require the evidence to be admissible. (3) Subsection (2) applies in addition to section 101." 12. It appears that subsection (2) was introduced in the House of Lords at a late stage in the deliberations on the Bill. As can be seen from its wording, subsection (2) relates only to a conviction for an offence when the offender was under the age of 14. It seems to us likely that when section 108 was inserted into the Bill and approved, it was not realised that the bad character provisions under gateway (d) could include misconduct which had not led to a conviction. Mr Farmer, rightly in our judgment, accepts that when a judge is asked to admit evidence of the defendant’s misconduct which is alleged to have occurred at a time when the defendant was under the age of 14, judges should apply the principles in section 108(2). If that were not the case, the prosecution would not be able to rely upon a conviction because of section 108(2), but could rely on the conduct which led up to that conviction. Mr Farmer made the same concession before the judge who, in his ruling, sought to apply section 108(2) to the evidence of the alleged misconduct with JB, treating the alleged misconduct in the same way as a conviction. 13. The first issue that we must therefore consider relates to the age of the appellant at the time of the misconduct alleged by JB. The judge gave his ruling after both the complainant on count 3 and the complainant on counts 4 and 5 had given their evidence. To decide whether JB’s evidence was admissible, he was provided with a statement from JB. During the course of his ruling the judge said that the appellant had been aged either 13 or 14 at the time of the alleged misconduct. Mr Farmer accepts that, having regard to the contents of the statement, the judge ought to have concluded that the appellant was (or had to be assumed to be) aged 13 at the time. In any event the judge decided that section 108(2) did not apply because the conduct asserted then and now is triable only on indictment and secondly because he was satisfied that the interests of justice required the evidence to be admitted. 14. Mr Farmer concedes that the judge was wrong to reach the first of those conclusions. The offence which the alleged misconduct would have revealed would have been indecent assault. That offence still exists today in relation to conduct before the coming into force of the Sexual Offences Act 2003 . It was then, and remains, triable either way. Thus treating the misconduct in the same way as a conviction, Mr Farmer concedes that the evidence of JB, on the basis of his statement, should have been ruled inadmissible 15. Mr Farmer submits that when JB gave evidence to the jury, it became clear that the appellant was 14 at the time of the alleged misconduct. We shall assume that that is right for the purposes of this judgment. He submits, therefore, that section 108 did not in fact apply and therefore the conviction is safe. 16. We take the view, contrary to the submissions of Mr Farmer, that this evidence ought not to have been admitted because of the provisions of section 101(3)(adverse effect on the fairness of the proceedings). 17. In his ruling the judge said that the jury might well regard the allegations of assault on A with some scepticism because of count 3 and because of the previous conviction for rape, as well as some evidence from the appellant's niece, LB, to which we shall turn later in this judgment. The judge said that it was entirely foreseeable that the jury may regard a sexual assault upon a young girl as being very different from a sexual assault on a young boy. He went on to say that the evidence of JB had real probative force in this context. It would show, so the judge was in effect saying, that the appellant’s sexual interests were not solely heterosexual. In assessing A’s evidence, so the judge was in effect saying, the appellant’s propensity for homosexual conduct as shown by the evidence of JB tends to support A’s evidence, which the jury might otherwise not believe because of the evidence of his heterosexual interests. During the course of argument one member of the Court expressed some doubt about this reason for admitting the evidence under gateway (d). But even if the alleged misconduct was relevant to an important matter in issue, it follows, in our view, from the fact that this alleged misconduct would have taken place when the appellant was only aged 13 or 14 that the evidence was inadmissible in the light of the provisions of section 101(3). It would be dangerous, in our view, for a jury to conclude on the facts of this case that the then 38 year old appellant male had a propensity for sexual activity with a chid because of what he (allegedly) did when he was aged 14 with a 9 year old member of his extended family. 18. Having informed Mr Farmer of our conclusion, we asked him how the safety of the convictions on counts 3, 4 and 5 would be affected. He accepted that the convictions on counts 4 and 5 would be unsafe, but sought to argue that the admission of the evidence had no effect on the safety of count 3. It was therefore necessary for us to look carefully at the summing-up. Most unfortunately there is no transcript of the summing-up, for technical reasons. We have only bits and pieces of the transcribed summing-up. We are indebted to Mr Harrison who made notes of the summing-up, but the notes do not give us any where near as clear a picture of the summing-up as would a full transcript. We looked at a number of passages in the notes prepared by Mr Harrison. It is right that the judge said that the jury should look at each count separately but, according to page 8 of the notes, he made a general statement that they were entitled to consider whether any previous offence or misbehaviour may make it more likely that someone has committed an offence. He told the jury that they should use the JB evidence only insofar as counts 4 and 5 were concerned. But what is not clear to us from the notes is how the judge directed the jury on the issue of the cross-admissibility between count 3 and counts 4 and 5. There seems to be a number of passages in the summing-up (as recorded by Mr Harrison) where the judge asked the jury to take a global view. For example, he said towards the end of his summing-up: "Is the defendant the victim of a dreadful coincidence that these four witnesses should now come forward to say that they have ..... or is the reality that his activities over the years have here caught up with him." (Underlining added) In another passage the judge said: "Was it reasonably possible that each or all of the witnesses could be lying or mistaken in saying that the defendant assaulted them?" 19. In the absence of a transcript of the summing-up, we are not clear how the judge left the important issue of cross-admissibility between the counts. In those circumstances, having concluded that the evidence of JB ought not to have been admitted, it follows that we cannot be sure that the conviction on count 3 is safe. 20. Having reached that conclusion, we asked whether or not the prosecution sought a retrial. Having heard submissions, we ordered a retrial on counts 3, 4 and 5. 21. There were other grounds of appeal which concerned the manner in which Mr Farmer re-examined a witness and which concerned a decision by the judge that Mr Harrison could not cross-examine about why it was unlikely that the appellant would have assaulted A. There was also general criticism of parts of the summing-up and the failure (so it was said) to give the jury the necessary assistance when coming to resolve the issues on count 3 and on counts 4 and 5. Given our decision that there should be a retrial, it is unnecessary for us to deal with any of those. However, the further grounds could affect the retrial and it therefore seemed right to us that we should give our views on the other grounds in the hope that this might assist the judge on the retrial. 22. Mr Harrison's first ground was that the judge was wrong to rule that the counts on which the appellant was convicted and two further counts alleging indecent assault on his daughter when she was about 4 or 5, could be joined in the same indictment. As to those two further counts, at the close of the prosecution's case, the appellant was acquitted and therefore we have not been concerned with them. 23. Rule 9 of the Indictment Rules (now superseded) provides: "Charges for any offence may be joined in the same indictment if those charges are founded on the same facts or form or are part of a series of offences of the same or similar character." 24. In Ludlow v Metropolitan Police Commissioner [1971] AC 29 (HL), the House of Lords gave authoritative guidance as to the interpretation of this rule. It was held that two offences may constitute a series and that both the law and the facts should be taken into account when deciding whether offences are similar or dissimilar in character. For there to be a series of offences of a similar character, there must be some nexus between the offences; that is a feature of similarity which in all the circumstances of the case enables the offences to be described as a series. There may be joinder notwithstanding that the evidence on one count is not admissible in support of another count. The fact that the incidents alleged in the counts have taken place many years apart does not mean that there has not been a series of offences: see R v Baird [1993] Crim LR 778 and R v C (1993) The Times, 4 February 1993. 25. Mr Harrison submitted to the trial judge, and submits to us, that count 3 was not part of a series of offences of a similar character to counts 4 and 5. He points out that count 3 alleged non-consensual heterosexual vaginal intercourse and that counts 4 and 5 alleged the homosexual sucking of A's penis. He stresses the difference in gender of the two complainants and the gap in time between the offences. 26. In our judgment counts 3, 4 and 5 were offences of a similar character in that they involved the sexual abuse of children in the care of the appellant. If called upon to do so, we would thus have rejected that ground. 27. In his second ground of appeal Mr Harrison submits that the previous conviction for rape should not have been admitted under the bad character provisions of the Criminal Justice Act 2003 . On 13 February 1997 the appellant had been convicted of raping ET in Elvedon Forest when she was aged 16, whilst threatening her with a knife. It was admitted that the rape took place in a car. The appellant had received eight years' imprisonment and had been released on 2 January 2002. The prosecution argued that the evidence of the previous rape was admissible. Mr Harrison submitted to the contrary. The judge gave his ruling after he had heard the evidence of the two complainants. His ruling is contained in volume 4. Mr Farmer submitted that the conviction was admissible under gateway (d), to which we have already made reference, and gateway (g). He submitted that the manner of the cross-examination was such that the appellant had made an attack on another person's character. Given our conclusion that there is to be a retrial, it is unnecessary for us to deal with the application insofar as it related to gateway (g). We express no views about it. We are concerned only with gateway (d). 28. The judge held that the conviction was admissible under gateway (d) to show propensity. He held that one conviction for rape is clear evidence of a propensity to rape. He noted the similarities, namely a teenage girl in a car in each case. He refused to accept Mr Harrison's submission that the previous conviction for such a serious matter must prejudice the jury. Mr Harrison submitted to us, as he submitted to the judge, that there was a difference in age between the victim of the rape and the alleged victim of count 3. 29. Mr Harrison pointed out that the rape of which the appellant was convicted was committed with a knife, whereas the rape alleged in count 3 involved "some kind of submission". He also referred to the conversation after the alleged rape in count 3, namely the reference to the taking of F's virginity. In our view the judge was quite entitled to conclude that the conviction for rape was admissible under gateway (d). 30. We turn to the fourth ground of appeal. The fourth ground of appeal related to the admissibility of the evidence of LB. Mr Farmer submitted to the judge and to us that the evidence of LB was admissible under gateway (f), namely to correct a false impression given by the defendant. Section 105 gives further legislative assistance relating to evidence to correct a false impression. A false impression may be given by an assertion made by a defendant on being questioned under caution about the offence with which he is charged. 31. LB was the appellant's niece. She was born in 1979. She made an allegation to the police in June 2006, at the time that the other allegations which led to the appellant's conviction were made. The allegation was that when she was aged about 14 (about ten years before) the appellant had shown her a book. She later said in evidence -- and we assume that this corresponds with what she said in her statement -- that the appellant had a book in his hand, "it was something like A Thousand and One Sex Positions. It was a sex positions book". She said that she did not remember the title, but she gained the impression, from looking at the cover, that it was about sex positions. It was, she said, "that kind of book". When asked, "What did the appellant say about it?" She said, "He said, 'You can have a look at this book if you like'". She thought it was strange and she left the house. Nothing more happened. 32. The admission of that evidence led to substantial cross-examination. Mr Harrison necessarily had to cross-examine LB in some detail if he was going to show that the jury could not be sure of what LB was saying. The necessary length of the cross-examination shows the dangers of "satellite litigation" when the prosecution rely on misconduct as evidence of bad character. 33. The application was made under gateway (f) because during the course of his interview for the rape of his daughter, the appellant, having denied that he had raped his daughter, was asked this question: "Have you ever been interested in children in a sexual way?" To that the appellant replied: "No, not at all. That's disgusting to even think about that." Then, according to the summary of the interview, the appellant stated that he had never been interested in girls under the age of 17. That, it was said, created the necessary false impression which engaged sections 101(1)(f) and 105. It is well established that, whereas section 101(3) does not apply to subparagraph (f), a judge must always bear in mind the provisions of section 78 of the Police and Criminal Evidence Act 1984 . 34. What the appellant had said was clearly an exculpatory statement, as indeed was the whole of his interview. Mr Farmer, as he accepted, sought to put this passage into evidence before the jury so that it would trigger gateway (f). It will be noted that under section 105(2)(b) evidence of the assertion must be given in the proceedings before gateway (f) is triggered. We note that R v Hanson [2005] EWCA Crim 824 gives some guidance about attacks on another person's character during the course of an interview, as does also R v Renda and Others [2005] EWCA Crim 2826 , paragraphs 29 and following. 35. In our view, to use an answer of this kind in response to a direct question, "Are you interested in young girls?", to trigger gateway (f) is unfair. (Indeed the conviction for rape would have corrected any false impression needed to be corrected!) We note that subsection (3) importantly provides that if a defendant withdraws or dissociates himself from an assertion, then he will not be treated as responsible for the making of the assertion but it would hardly help the appellant in this case to disassociate himself from the assertion that he was not interested in young girls. 36. In any event we have considerable doubts whether the evidence which JB gave could properly assist the jury when considering count 3. 37. We express these views, which are of course obiter but after having heard full argument from both counsel, in the hope that they might assist the trial judge on the retrial. 38. For these reasons we allow the appeal and quash the convictions on counts 3, 4 and 5. ____________________

2008_07_17-1592.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/1850/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/1850

f7f9a0f8a746860204b79b9bd79a65098534325339012e0733242b2fe1c9df11

[2005] EWCA Crim 2313

EWCA_Crim_2313

crown_court

No: 200504126/A6 Neutral Citation Number: [2005] EWCA Crim 2313 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 16th September 2005 B E F O R E: LORD JUSTICE SCOTT BAKER MR JUSTICE DAVIS MR JUSTICE DAVID CLARKE - - - - - - - R E G I N A -v- LISA ANNE JENNIFER MERRITT - - - - - - - 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 Sho

No: 200504126/A6 Neutral Citation Number: [2005] EWCA Crim 2313 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 16th September 2005 B E F O R E: LORD JUSTICE SCOTT BAKER MR JUSTICE DAVIS MR JUSTICE DAVID CLARKE - - - - - - - R E G I N A -v- LISA ANNE JENNIFER MERRITT - - - - - - - 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 J A EVANS appeared on behalf of the APPELLANT - - - - - - - J U D G M E N T (As approved by the Court) - - - - - - - Crown copyright© 1. MR JUSTICE DAVIS: On 17th May 2005 at the Crown Court at Winchester, the appellant, who is a woman of 33 years of age, pleaded guilty to a count of perverting the course of justice and on 29th July 2005 she was sentenced to a term of imprisonment of ten months. 2. Against that sentence she appeals by leave of the single judge. 3. The background facts, relatively shortly stated, are these. The appellant met her future husband in November 2000. They became engaged in March 2001 and married in November of that year. The relationship was a volatile and stormy one and apparently involved some degree of violence on both sides, the husband receiving a caution for assault on the appellant on 20th July 2003. Eventually there was a separation in August 2004 with the appellant remaining in the marital home in Farnborough and her husband moving to Woking. 4. On 31st January 2005 the appellant telephoned the police, but then abandoned the call. Officers were concerned about the abandoned call and attended at her home address. The appellant was in drink and was evidently very upset. Initially she would not allow the officers access to the property, but eventually the officers gained entry through the rear. She spoke to the appellant. She then told them that her husband had been in the house earlier and had frightened her. At that stage she gave no more information than that. 5. The appellant then said that she would like to speak to the female police inspector on her own. When she did so, she stated that her husband had masturbated in her presence and then forced her to have penetrative sex; that is to say, that he had raped her. On hearing this the inspector made enquiries as to the availability of a sexual offences officer to attend the scene and also called a Detective Sergeant Owen. Arrangements were made for the inspector to go back to the police station and speak to the Detective Sergeant. 6. It was decided that the appellant should be taken to the victim interview suite and that was arranged. However, the appellant refused to leave the home, refused to allow the officers to take any of the bedding, where she alleged the assault had taken place, or allow medical examination. She said that she did not want to leave her dog and said that she would reconsider in the morning. The following morning officers duly attended at her home and a statement was taken from her, in which she said she did not wish to proceed with the matter, although she did continue to maintain that the incident had taken place. 7. Meanwhile, given the serious nature of the allegation the previous evening, officers had been sent to her husband's home and he was arrested. He co-operated and a number of items from him were seized before he was taken to the police station. He was detained in custody for nine hours, interviewed with regard to the allegation made by the appellant and also had a number of intimate samples taken from him. He maintained that he was in a public house at the time of the alleged offence. He also stated that he had received a number of messages from her that evening in which she had abused and threatened him. It was established that he had indeed been in a public house at the time and that one of the messages he received from her that evening was that she would see him caught and that he would be put in prison for 18 years. 8. Mr Merritt was released on bail for three weeks before the decision was taken that no further action would be taken against him. 9. The appellant was then arrested and interviewed on 23rd February. In that interview she accepted that she had made a false allegation against her husband and gave as a reason the fact that he had assaulted her physically twice at that time and that she wanted to get revenge on him. At the end of the interview she said she felt utterly foolish and that she just wanted to say that she was sorry. 10. Before the Recorder who was passing sentence there was a pre-sentence report which recommended a non-custodial disposal. That report assessed the appellant as posing a very low risk of reoffending, although it did also state that the appellant had little awareness of the consequences of her actions and that her remorse focused almost exclusively upon the distress that she herself had been caused. However, a more recent prison report, which this Court has seen, states that the appellant's conduct in prison seems to be exemplary and also states that she now shows a far greater awareness of the seriousness of what she had done and the consequences for her victim. 11. A psychological report, which was before the Recorder, indicated that the appellant had a significant number of problems, apart from her then dependency on alcohol, and also a pre-disposition to behave very impulsively. 12. In the course of his sentencing remarks the Recorder said this: "I quite accept that you are now remorseful about what you have done, you feel foolish and sorry, and the best evidence of that is your guilty plea. What you sought to do, however, was to use the criminal justice system in your own matrimonial difficulties. Such an offence, whatever the background to it, is so serious that a custodial sentence must be passed, because the seriousness -- to quote your counsel -- must be brought home to you and must be brought home to others." 13. On behalf of the appellant Miss Evans today submits that a custodial sentence was wrong in principle. Alternatively, she submits that a sentence of ten months' imprisonment was manifestly excessive. She relies, in particular, on the following points. She draws attention to the early admissions and to the plea and the expressions of remorse. She also draws attention to the psychological and personal state of the appellant at a time, moreover, when she was in a damaging relationship. She further places reliance on the pre-sentence report and the recent prison report. Further still she says that the offence had not been premeditated to any significant extent. She emphasises that the appellant did not seek to maintain the false allegation for any very long extended period and made no witness statement and fabricated no other evidence to support what she had initially alleged. Further, and in consequence, Miss Evans stresses the husband had not been charged and he had not had to face any trial or any adverse publicity; although Miss Evans necessarily acknowledges that he was in consequence of the allegation detained in custody for nine hours and subjected to intensive questioning and intrusive medical examination and thereafter was on bail for three weeks whilst the police continued to investigate the allegations. 14. Miss Evans referred us to three authorities in this context. The first was the case of Goodwin (1989) 11 Cr App R(S) 194. There a 20 year old woman pleaded guilty to making a false allegation of rape. Her sentence was on appeal reduced from three years' detention to 18 months. The man in question in that case had been arrested and detained for 14 days in custody in consequence of the allegation. The appellant in that case only abandoned her story because the police continued their enquiries which showed that the man must be innocent. In the course of giving the judgment of the Court Lord Lane CJ said this: "On the other hand this was, on any view, a wicked thing to do. The appellant only abandoned the false story because the police had continued their enquiries. As everyone knows it is an easy allegation to make and may be very difficult to refute. The possibilities are terrifying when one considers what might have happened had the police not been so persistent." Then he went on to say this: "The question is was a term of the length of three years' custody necessary? We think it was not. It is necessary to make people understand that this sort of lie will be met by severe punishment. But we have to balance against that the age of this young woman and the circumstances in which she saw fit to tell these lies." 15. Miss Evans submits with some force that, apart from the age of the appellant in Goodwin , that was a worse case on its facts than the present case, since there the woman maintained her story for much longer and the unfortunate man was detained in custody for 14 days in consequence. 16. In Kyriakou (1990) 12 Cr App R(S) 603 a false allegation of rape had been made. There was a plea and a sentence of 12 months' imprisonment was reduced to one of six months' imprisonment on appeal. The man in question in that case had been arrested and apparently charged and detained in custody for 12 days before the appellant of her own accord admitted that the complaint was false. In the course of delivering the judgment of the Court Watkins LJ said this: "The court must, when it is faced with circumstances such as this where a man is falsely accused of rape and therefore wrongly imprisoned, make it absolutely plain as can be that anyone who resorts to conduct of that kind will be severely punished. A loss of liberty is an inevitable consequence." The sentence in that particular case was reduced, in effect because of the particular personal circumstances of the individual appellant. 17. In Gregson (1993) 14 Cr App R(S) 85, to which Miss Evans also made reference, a sentence of nine months' imprisonment on a woman who had pleaded guilty to making a false allegation of rape was reduced on appeal to one of four months' imprisonment. In that case the man had been detained in consequence of the allegation for some 20 hours. The appellant the following day, after the alleged rape, made a detailed witness statement seeking to implicate the man. But in the light of police questioning she eventually, and some five hours later, admitted that it was not true and then made a retraction statement. The Court in Gregson emphasised that in contrast with Goodwin and Kyriakou the complainant was withdrawing the allegation relatively quickly after it had first been made and in that particular case the man was only detained for just over 20 hours. In those circumstances, the Court decided that the sentence of nine months' imprisonment was longer than necessary and reduced it, as we have said, to one of four months' imprisonment. 18. As is made clear in Goodwin and Kyriakou the effect of offending of this kind is that a custodial sentence will almost inevitably follow: precisely for the reasons given by Lord Lane and Watkins LJ. 19. In our view, the complaint that the judge in the present case erred in principle in imposing a custodial sentence is not well founded. The judge was, in the circumstances of this case, not only fully justified in imposing a custodial sentence, but in our view he was required to do so. 20. But was a sentence of ten months' imprisonment too long? In our view, having regard both to the authorities and to the facts of this particular case, it was. We cannot agree at all with Miss Evans that this was simply an act of stupidity and weakness. It was an act of wickedness. It is true that even though the appellant refused to make a witness statement implicating the unfortunate victim, she nevertheless continued to maintain that the incident had taken place. In consequence the police enquiries continued and the matter was hanging over the head of Mr Merritt and he was on bail for three weeks. On the other hand, he was never charged and was not detained in custody for longer than nine hours: although, of course, even that period must have been extremely unpleasant for him. Further, although there must have been some element of preplanning on the part of the appellant, as is borne out by the telephone calls which she made to her husband that evening, the matter does seem to have arisen at a time when the appellant was in a state of mental and personal turmoil. Further, there are the aspects of personal mitigation to which we have alluded, as well, of course, and the plea of guilty. 21. In all the circumstances, we think that a sentence of ten months' imprisonment was longer than was necessary and was too long. We think that the justice of this case can be met by a shorter sentence. We quash the sentence of imprisonment of ten months and substitute for it a sentence of four months' imprisonment, which, in the judgment of this Court, is the appropriate sentence on the circumstances of this particular case. To that extent this appeal is allowed.

2005_09_16-591.xml

allowed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/2313/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/2313

d18e5cf6d438d0ccefed31a7f966a9d11c7e3c84382f0fe833584d9505c6601c

[2020] EWCA Crim 1093

EWCA_Crim_1093

crown_court

Neutral Citation Number: [2020] EWCA Crim 1093 Case No: 201901214C4 & 201901215C4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT WINCHESTER The Hon. Mr Justice Goose T20187042 Royal Courts of Justice Strand, London, WC2A 2LL Date: 18 August 2020 Before: THE RT HON. THE LORD BURNETT OF MALDON LORD CHIEF JUSTICE OF ENGLAND AND WALES THE HON. MR JUSTICE SWEENEY and THE HON. MR JUSTICE MURRAY - - - - - - - - - - - - - - - - - - - - - Between: CEON BROUGHTON Appellant -

Neutral Citation Number: [2020] EWCA Crim 1093 Case No: 201901214C4 & 201901215C4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT WINCHESTER The Hon. Mr Justice Goose T20187042 Royal Courts of Justice Strand, London, WC2A 2LL Date: 18 August 2020 Before: THE RT HON. THE LORD BURNETT OF MALDON LORD CHIEF JUSTICE OF ENGLAND AND WALES THE HON. MR JUSTICE SWEENEY and THE HON. MR JUSTICE MURRAY - - - - - - - - - - - - - - - - - - - - - Between: CEON BROUGHTON Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Stephen Kamlish QC and Richard Thomas (instructed by Birnberg Peirce ) for the Appellant Annabel Darlow QC and Simon Jones (instructed by CPS ) for the Respondent Hearing date: 3 June 2020 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Covid-19 protocol: This judgment will be handed down by the Judge remotely, by circulation to the parties’ representatives by email and, if appropriate, by publishing on www.judiciary.uk and/or release to Bailii. The date and time for hand down will be deemed to be 18 August 2020 at 11.00am. The Court Order will be provided to Winchester Crown Court for entry onto the record. The Lord Burnett of Maldon: Introduction 1. This appeal concerns causation in gross negligence manslaughter. Louella Fletcher Michie (“Louella”) was pronounced dead in the early hours of the morning of Monday 11 September 2017 at the Bestival Music Festival at Lulworth Castle. She had taken a controlled Class A drug, namely 2C-P as well as ketamine and ecstasy. The appellant, who was her boyfriend, had supplied the 2-CP and “bumped” it up either by giving her an increased dose or mixing it with ecstasy or ketamine. The pair had left the grounds of the festival for nearby woodland at about 16.30 during the afternoon of Sunday 10 September. There, Louella experienced a trip. It was intense, involving a bad reaction to the drugs. The prosecution case was that having supplied the drugs and remained with her, the appellant owed Louella a duty of care to secure medical assistance as her condition deteriorated to the point where her life was obviously in danger. He was grossly negligent in failing to obtain timely medical assistance, which failure was a substantial cause of her death. 2. On 28 February 2019 the appellant was convicted of manslaughter and of supplying Louella with the 2C-P. He had earlier pleaded guilty to supplying both her and a friend with 2C-P on another occasion at a different festival. He was subject to a suspended sentence for possession of two knives. He was sentenced to a total of eight and a half years’ imprisonment; seven years for the manslaughter, thirteen additional months for the drugs offences, and five more on activation of part of the suspended sentence. 3. The appellant appeals against conviction by leave of the single judge on the ground that the prosecution failed to adduce evidence from which the jury could be sure that the appellant’s negligence was a cause of Louella’s death. He renews two grounds on which leave was refused, first, that the judge misdirected the jury on causation and secondly that no duty of care arose on the facts of the case. Gross Negligence Manslaughter 4. The ingredients of the offence were set out in R v. Adomako [1995] 1 AC 171 . At 187 Lord Mackay of Clashfern LC explained: “In my opinion, the law as stated in [ Bateman (1925) 19 Cr. App. R. 8 and Andrews v DPP [1937] AC 576 ] is satisfactory as providing a proper basis for describing the crime of involuntary manslaughter. Since the decision in Andrews was a decision of your Lordships' House, it remains the most authoritative statement of the present law which I have been able to find and ... it is a decision which has not been departed from. On this basis in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal.” 5. Gross negligence manslaughter has since been considered in this court on many occasions, particularly within the last four years. The context has frequently been the alleged gross negligence of medical professionals. The appeals include R v. Rudling [2016] EWCA Crim 741 , R v. S ellu [2016] EWCA Crim 1716 , [2017] 4 WLR 64 , R v. Bawa-Garba [2016] EWCA Crim 1841 , R v. Rose [2017] EWCA Crim 1168 , [2018] QB 328 , R v. Zaman [2017] EWCA Crim 1783 , R v. Winterton [2018] EWCA Crim 2435 , R v. Pearson [2019] EWCA Crim 455 , R v. Kuddus [2019] EWCA Crim 837 and R v. Broadhurst [2019] EWCA Crim 2026 . The result of this consideration is that six elements have been identified that the prosecution must prove before a defendant can be convicted of gross negligence manslaughter: i) The defendant owed an existing duty of care to the victim. ii) The defendant negligently breached that duty of care. iii) At the time of the breach there was a serious and obvious risk of death. Serious, in this context, qualifies the nature of the risk of death as something much more than minimal or remote. Risk of injury or illness, even serious injury or illness, is not enough. An obvious risk is one that is present, clear, and unambiguous. It is immediately apparent, striking and glaring rather than something that might become apparent on further investigation. iv) It was reasonably foreseeable at the time of the breach of the duty that the breach gave rise to a serious and obvious risk of death. v) The breach of the duty caused or made a significant (i.e. more than minimal) contribution to the death of the victim. vi) In the view of the jury, the circumstances of the breach were truly exceptionally bad and so reprehensible as to justify the conclusion that it amounted to gross negligence and required criminal sanction. The elements found in (iii) and (iv) will not need separate consideration or articulation in many cases. 6. The formulation of a “serious and obvious risk of death” can be found in the judgment of this court in R v. Gurphal Singh 1999 Crim LR 582 approving the direction of the trial judge. It has been affirmed on many occasions (e.g. in Rudling at paragraph 18; Rose at paragraph 77(2)). In R v. Evans [2009] 1 WLR at paragraph 31, Lord Judge CJ used the term “life threatening” in this context but it does not suggest a different test. In R v. Misra [2004] EWCA Crim 2375 (a medical case) Judge LJ (as he then was) had considered the nature of the risk needed to engage the duty and, in particular, whether the risk should be of death rather than serious injury. At paragraphs 49 to 52 he cited the test in Gurpal Singh , the practice of the Director of Public Prosecutions to apply that test and the concurring views of the editor of Blackstone’s Criminal Practice, all without adverse comment, before concluding that the risk must be to life. Causation 7. At trial, the prosecution proceeded on the basis that it was for the Crown to prove that timely medical intervention would have saved Louella’s life. In the course of his summing up the judge said: “To prove this element of the offence the prosecution must make you sure that the failure to obtain medical help by the defendant was a substantial contribution to the cause of death. The prosecution’s case is that by failing to obtain medical help in time, his breach of duty was a substantial contribution to the cause of death, in short had she been treated by a medical practitioner in time, she would have lived. The defence case is that by the time there was any breach of duty, it was already too late, in short it would have made no difference, it was not a substantial contribution to the cause of death. You will have to assess the time from which he was in breach and medical aid was needed, what was the likelihood of survival. Are you sure that the failure to obtain medical help at that time was a substantial cause of her death?” 8. Mr Kamlish QC has no quibble with this part of the summing up but submits that what followed diluted what was a simple proposition: in a case concerning a negligent lack of medical attention (just as in a case involving negligent medical attention) to establish that the breach of duty (lack of treatment of wrong treatment) was a substantial cause of death the prosecution must prove to the criminal standard that the person concerned would have lived. 9. For the purposes of the appeal, Miss Darlow QC (who did not appear at trial) contends for a different test. She submits that the correct test is “ whether [the jury was] sure that the defendant’s negligence deprived the victim of a significant or substantial chance of survival that was otherwise available to the victim at the time of the defendant’s negligence.” 10. In support of that submission Miss Darlow relies on an extract from the summing up of Nicol J quoted by Sir Brian Leveson P in Sellu: “You may decide that, even if an earlier operation would not have been bound to succeed, the effect of Mr Sellu’s negligence was to deprive Mr Hughes of a significant chance of survival and in that sense was a significant contributory cause to Mr Hughes’ death. Once again, how big a contribution has to be to qualify as significant is left to your good sense. So, if you decide that Mr Sellu was grossly negligent in his care of Mr Hughes, you must ask yourselves whether the failure to treat him in a proper way significantly contributed to Mr Hughes’ death.” 11. Thus, Miss Darlow submits, Sellu had clarified that in cases involving gross negligence by omission, the requirement that the breach of duty caused or made a significant contribution to death is met if the effect of the breach was to deprive the deceased of a significant (as opposed to certain) chance of survival. In contrast, requiring proof of certainty of survival was unsupported by general principles of causation and would, if implemented, render many cases where death had ensued after gross negligence, medical or otherwise, impossible to prosecute because of the difficulty of proving that there was no possibility of the victim dying if treated. In short, she submits there is no need for the prosecution to establish to the criminal standard that the deceased would have lived. 12. Mr Kamlish submits that the prosecution argument misunderstands Sellu in which, in any event, the President made the position clear in paragraph 127: “What was critical was that the jury reached conclusions as to such findings as they were sure constituted gross negligence and, in the light of those findings, went on to consider the question of causation, understanding that causation would not be established if the gross negligence was after the time they could be sure that Mr Hughes would have survived.” 13. He submits that the sweep of earlier cases supports the submission he makes on behalf of the appellant. They were reflected in the summing up of Langley J in Misra , which was approved by this court. It was, like Sellu , a medical case. The judge directed the jury in these terms: “The last element is the element of causation. If the prosecution has made you sure that either or both of the doctors did fail so grossly in their duty of care, then you must consider whether it has also made you sure that the failure or failures were a substantial cause of Sean Phillips’ death. If you are not sure that Sean Phillips would have survived at all, either however well he had been treated or because he might not have received appropriate treatment, then the prosecution has failed to prove its case on this aspect and that is the end of the matter. You must find both defendants not guilty. Equally, if at some point of the events of the Saturday or the Sunday you reach the conclusion that you are not sure that Sean Phillips would have survived beyond that time, then from that time onwards the prosecution will fail to prove that anything Dr Misra or Dr Srivastava did or failed to do was a cause of Sean Phillips’ death and, whatever you may think of the subsequent events, they cannot lead you to a verdict of guilty. If you have any reasonable doubt about when Sean’s condition became irreversible, I repeat that you must give the defendants the benefits of those doubts”. 14. The test for causation in homicide cases has long been that it is sufficient for the prosecution to prove that the act (or omission) of the accused was a significant contributory cause of death, rather than the sole or principal cause of death. That reflects the obvious reality that there can be concurrent causes of death. In most cases the issue will not arise. Most homicides resulting from an assault provide no difficulty because the injury is the undoubted cause of death. That will be true also in gross negligence manslaughter cases where the deceased suffers a traumatic death. Nonetheless, even in cases of assault causing injury there may be examples of concurrent causes of death. They include an assault which provokes a fatal heart attack or an assault from which the victim dies in circumstances where medical treatment should have saved him but did not because it was negligently administered. 15. In cases of gross negligence manslaughter which arise in the context of medical treatment there will frequently be an underlying condition which causes death. The issue will be whether the breach of duty was also a substantial cause of the death. The same will apply when the allegation at the heart of the prosecution of manslaughter is that the health professional failed to provide treatment that should have been provided or a person who owed the deceased a duty of care failed to secure medical treatment. 16. The approach to causation in such cases was settled by Lord Coleridge CJ in R v Morby (1882) 8 QBD 571 . The prosecution concerned a father who, in conformity with his religious views, did not employ a doctor to treat his son. The boy later died of smallpox. The medical evidence at trial had been that proper medical attention might have saved or prolonged the child's life, and would have increased his chance of recovery, but might have been of no avail. Following a conviction for manslaughter, the case was referred to the Queen's Bench Division, as a Crown Case Reserved. This question was put to Doctor Sharpe. “In your opinion do you think the life of the deceased might have been probably prolonged if medical skill had been called in?” to which he answered, “Probably, but I would rather put it in this way, that the chances of the boy's life would have been increased by having medical advice.” He was later asked, “In your judgment if medical advice and assistance had been called in at any stage of this disease might the death have been averted altogether?” The doctor answered “I can only answer that by saying that it might have been. Ours is not a positive science. It might have been averted if medical aid had been called in at any earlier stage. I am unable to say whether it probably would. I might say probably, as to whether life might have been prolonged. I cannot say that death would probably have been averted. I think it probable that life might have been prolonged. I can only say probably might, because I did not see the case while living. I am unable to say that life would probably have been prolonged, because I did not see the case during life, had I done so, I might have been able to answer the question.” 17. The trial judge left the issue to the jury asking them, would the life of the child have been prolonged? The defendant was convicted. 18. Quashing the conviction Lord Coleridge explained in his two-paragraph judgment: "It is not enough to shew neglect of reasonable means for preserving or prolonging the child's life, but to convict of manslaughter it must be shewn that the neglect had the effect of shortening life. The medical witness called for the prosecution gave his evidence clearly and well, and under a high sense of his duty and responsibility, and what he stated was, that in his opinion the chances of life would have been increased by having medical advice, that life might possibly have been prolonged thereby, or, indeed, might probably have been, but that he could not say that it would, or indeed that it would probably, have been prolonged thereby. In order to sustain the conviction affirmative proof is required. This the skilled witness called, and upon whose evidence the matter rests, cannot, from the nature of the case, give and, indeed, properly declines to give. The direction of the learned judge, though right in point of law, is not applicable to the facts proved. The conviction cannot be sustained." 19. Grove J, in an even shorter concurring judgment pointed to the impossibility of the jury answering the question which the doctor could not. Stephen J added “to convict of manslaughter you must shew that he caused death or accelerated it.” Mathew and Cave JJ agreed. 20. These judgments are inconsistent with the submission advanced by the Crown in this appeal. When deciding that the prosecution must “shew” that the defendant’s breach of duty caused death or that “affirmative proof is required” the context was a criminal prosecution where the criminal standard of proof thus applied. The court expressly rejected that it was sufficient to show that there was a significant chance that life would have been preserved. That, after all, was precisely the evidence of the doctor. Nor should it be thought that the references to probability can be taken as suggesting that the civil standard of proof is sufficient. Those references followed from the evidence given by the doctor. 21. The principle established by Morby has not been abrogated in the intervening 140 years. In Misra at paragraph 70 Judge LJ (as he then was) expressly approved the passage from the summing up of Langley J which we have quoted and Sir Brian Leveson P used similar language in Sellu at paragraph 27. 22. The passage from the summing up in Sellu , upon which Miss Darlow relies, needs to be read in the context of the way in which the prosecution put its case against the doctor. There was a series of alleged failings, each of which needed to be judged by reference to the proper yardstick for gross negligence. The steps which it was suggested Mr Sellu should have taken included arranging for the administration of antibiotics, ensuring that tests were undertaken, or obtaining the services of an anaesthetist and embarking on an earlier operation. The prosecution adduced evidence which suggested a diminishing chance of survival as time went by. There was no ground of appeal which attacked the overall way in which the judge had summed up causation. The argument was that because there was a series of alleged failures, each of which was grossly negligent, the jury needed an express direction linking each alleged failure with causation. The essence of the grounds is found in paragraph 121 of the judgment of Sir Brian Leveson P: “On appeal, Mr Ellison argued that some jurors might have been sure of gross negligence only at such a late time in the chronology ... that the conviction might have been returned without a consideration of the fact that, by then, the likelihood was that Mr Hughes would still have died. Thus, it was left open to them to convict in relation to a failure to act at a stage in the chronology where they were no longer sure that Mr Hughes would have survived in any event i.e. when causation could no longer be proved. Furthermore, he contends that the judge erred in not directing the jury in accordance with Brown (1984 79 Cr App R 115) that they must all agree as to any particular negligent act or omission before they could move on to decide whether there was gross negligence causative of death.” 23. Sellu is not authority for the proposition advanced by the Crown that in cases of gross negligence manslaughter the limit of the obligation on the prosecution is to prove that the failing in question deprived the victim of a significant or substantial chance of survival that was otherwise available at the time of the defendant’s negligence. The prosecution must prove to the criminal standard that the gross negligence was at least a substantial contributory cause of death. That means that the prosecution must prove that the deceased would have lived in the sense that life would have been significantly prolonged. It is well established that being “sure” is not the same as scientific certainty. See, for example, the discussion in R v. Gian, Mohd-Yusoff [2009] EWCA Crim 2553 at paragraphs 22 to 24. That case concerned a suggestion that there were theoretical or hypothetical possible causes of death which could not be excluded as a matter of theory but were entirely unrealistic. The jury must make judgements on “realistic not fanciful possibilities”. To be sure that the gross negligence caused the death the prosecution must exclude realistic or plausible possibilities that the deceased would anyway have died. The Facts 24. The prosecution case was that the appellant had “bumped up” the 2C-P that he supplied to Louella (whether by increasing the dose, or by mixing it with another drug); that she had consumed the drug(s) in the afternoon of Sunday 10 September 2017; that they had then spent some hours together in a dense wood just outside the festival site. Louella’s condition deteriorated and ultimately, she died. The prosecution case was that despite being urged to do so in telephone calls and text messages from members of Louella’s family, the appellant had failed to take reasonable steps to save her life. Louella was formally pronounced dead at the scene at 01.10 on Monday 11 September 2017 (her 25 th birthday) although there was evidence that she had died over an hour before. Traces of 2C-P, MDMA (Ecstasy) and ketamine were later found in her body. Traces of 2C-P, MDMA, ketamine, diazepam and the breakdown product of cocaine were later found in the appellant’s samples, and 44mgs of 2C-P were found inside the back of his iPhone. In interview, the appellant denied that he had ever supplied drugs to Louella or to anyone else. He claimed that he had not taken any drugs at the festival. Nevertheless, prior to the trial, he pleaded guilty to two offences of supplying 2C-P at the Glastonbury Festival in Somerset in June 2017 to Louella and a friend. The outline chronology 25. Louella arrived at the festival on Saturday 9 September 2017. In two texts at 14.04 that day she informed the appellant that security had taken her drugs, and that she just wanted “that big one”. The appellant replied that he would bring some, and that “Sam T will have them”. The appellant arrived in the early hours of Sunday 10 September, accompanied by his friend Ezra Campbell and another man. 26. At around 16.00 on Sunday 10 September, the appellant, Louella, Ezra Campbell and the other man were in the vicinity of a toastie van on the edge of the festival site. Ezra Campbell observed that the appellant and Louella were giggling and thought that they may have taken some drugs. Thereafter the appellant and Louella indicated that they were going to “the forest”, which Ezra Campbell wrongly thought to be the “Ambient Forest” within the festival site, which later led to confusion when people were trying to find them. 27. In fact, the appellant and Louella made their way to a wood just outside the site. They were last caught on camera at 16.29 as they walked towards it. Inside the wood there were thick brambles, dense undergrowth, and logs. The appellant had his iPhone, but mobile telephone reception was poor, which later caused problems with making and receiving calls and the sequence in which text messages were received and sent. The appellant and Louella ended up about 30 metres into the wood, and thus some 85 metres from a telegraph pole at the edge of the festival site, and some 400 metres (as the crow flies) from the festival medical tent. 28. Thereafter, using his iPhone, the appellant took a number of live photographs of Louella and also videoed her. This was consensual and designed to record her trip. At 17.16 and 17.17 live photos showed Louella sitting on a branch. 29. At 17.53 the appellant began filming the first video, which lasted for just over 50 minutes. The video was later viewed by Dr Morley, who observed that, at the outset, Louella was animated and shouting at the appellant and the world in general. She was aware of the appellant, but not necessarily of her surroundings. She repeated herself a lot. By around 18.03 Louella became more aggressive and began to slap herself. By around 18.13 she developed a screeching quality to her voice. She did not seem to react when the appellant said her name. Finally, by around 18.33, Louella sounded more confused and was slapping her body and legs more frequently. 30. At 18.43 (very shortly after the end of the first video) the appellant began filming another video, which lasted for some two-and-a-half minutes. Dr Morley observed that the appellant and Louella were still in the same positions, and that Louella was still agitated – but now more confused. She was conscious, but not necessarily aware of her surroundings, and was slapping herself almost continually. 31. At 18.47 the appellant tried to ring Louella’s mother. At 18.48 Louella’s mother rang back and there was then a conversation lasting eleven minutes. Louella’s mother described how she could hear Louella in the background, and that she sounded like a wild animal, saying “I don’t trust you; I hate you” to the appellant, who was trying to calm her down. Louella’s mother said that she repeatedly told the appellant to get help for Louella, and to go to the medical tent. The appellant said: “Don’t worry I will look after her”. 32. Immediately after the call Louella’s mother contacted the organisers at festival explaining that she believed her daughter was having a bad trip. That resulted in a search of the “Ambient Forest” and a consequent failure to find Louella and the appellant. In a statement read to the jury a member of staff from the festival said: “... the information I had did not raise any immediate concerns for her. In my experience the majority of people who have a bad trip recover quite quickly, so I did not instigate anything further.” 33. In the meantime, Louella’s mother and father had set off by car to the festival site at Lulworth. 34. At 19.00 Louella’s brother texted the appellant imploring him to take Louella to the medical tent. He added that she needed to be near a professional. At 19.04 the appellant took a series of live photographs of Louella, who was sitting in the woods shouting incoherently. At 19.07 Louella’s brother telephoned the appellant, who told him that he had supplied Louella with 2C-P and that he had “bumped it up a bit”. At 19.13 Ezra Campbell rang the appellant, who told him to “get the medics” to the forest. At 19.28 Louella’s mother (on route to the festival) rang the appellant. At 19.30 Louella’s brother (who had been in contact with Ezra Campbell) texted the appellant asking him to send his location to Ezra Campbell, who could help. Sunset was at 19.33. 35. At 19.38 Louella’s father texted the appellant, asking him to look after Louella. At 19.54 Louella’s brother texted the appellant asking if he had got her to the medical tent. At 20.09 Louella’s brother texted again, asking how Louella was doing and for the appellant to call him. The appellant tried unsuccessfully to ring Louella’s mother. At 20.11 the appellant tried to call Ezra Campbell and from 20.14 to 20.16 Ezra Campbell tried to call the appellant, all without success. 36. At 20.18 the appellant made a 15 second video of Louella in the dark. There had been a significant deterioration in her condition. She was lying on her back, her head and jaw were moving, and she was making animal like noises, rather than any coherent speech, and was not aware of her surroundings. In his evidence, Professor Deakin said she was seriously unwell and in need of urgent medical care. He did not say that she was at serious and obvious risk of dying. 37. At 20.22 Louella’s mother texted the appellant imploring him to message her that Louella was all right. At 20.23 the appellant responded in an incoherent text which was the result of predictive text. At 20.24 Louella’s mother texted again, asking for the location of Louella and the appellant. At 20.25 Ezra Campbell texted the appellant to say that Louella’s mother was coming to get her, and at 20.26 the appellant replied in two texts: “Na, say cool off” and “Send med tho”. At 20.29 the appellant sent a Google map pin of his location to Ezra Campbell, and the message “See me on Google Maps!”. Ezra Campbell replied asking what the pin was, and the appellant explained that it was where they were. Ezra Campbell replied again at 20.34, saying that he had not got Google Maps on his phone. 38. At 20.45 the appellant made a 2 minute 55 second audio recording in which he could be heard calling out to Louella, asking whether she could hear him and telling her to stop eating thorns (brambles), because she was just going to cut herself in the process. Louella was groaning and moaning and was not responding to the appellant. She appeared to lack any coherent awareness of her surroundings. 39. At 20.49/20.50 the appellant sent Ezra Campbell a series of texts: “If u could go … G ... send meds … To that location”, to which Ezra Campbell replied in two texts: “I don’t have google maps” and “Can’t download it don’t let me see it”. At 20.52 and 20.53 the appellant replied in two texts: “I can’t get bagged” (i.e. arrested) and “Ukno Feds on them tings round here”. Ezra Campbell replied at 20.55: “Fam just act like you don’t know her”, and there was then a two minute call between the two of them, during which the appellant tried to explain where they were, but the only landmark that Ezra Campbell was able to glean was barbed wire at the edge of the wood. 40. Louella’s sister texted the appellant asking him to let her know that Louella was ok, and at 20.54 Louella’s mother texted the appellant imploring him to let her know whether he had got to a medical tent. At 20.58 Louella’s father also texted to ask whether the appellant had got Louella to a medical tent. Then at 21.04 Ezra Campbell texted the appellant and told him that the medics were coming to the Ambient Forest (where, as indicated above, he had erroneously assumed from the outset that the appellant and Louella had gone). 41. At 21.07 the appellant sent an audio recording of Louella to Ezra Campbell and then, between 21.09 and 21.13, took some live photographs of her which showed the top of her forehead and nose. There were scratches on both that had not been present in the first video and she was still making unintelligible noises as he tried to rouse her. Having eventually received the audio recording, Ezra Campbell texted the appellant at 21.17 saying: “Just get to the ambient forest bruv”, then “If it’s that urgent there’s nothing else I can do” and then “It sounds bad though g WTF”. 42. At 21.22 Louella’s brother texted the appellant asking if there was any news, and at 21.46 Ezra Campbell asked him whether he was with the medics yet. At 22.16 Louella’s mother texted Louella, imploring her to let the family know that she was OK. At 22.30 the appellant sent two texts to Ezra Campbell saying: “She just kooled Down” and “So Ima carry her”, followed at 22.31 by “If the fam ask say a ra don have us 2cb”. At 22.32 the appellant recorded a note on his phone which read: “She layed benive wit. ME, nettles n thorns, Enteral bled, we’re her Heart was torn.” At 22.41 and 22.42 the appellant took more live photographs of Louella which showed that her hands were covered in scratches which had not been present in the first video that he had recorded, that she was still making unintelligible sounds, and that her condition appeared to be deteriorating. 43. At 22.45 the appellant sent Ezra Campbell a series of texts repeating things he had said a little earlier: “It’s prohibited off .. Ima try carry her ... If the fam say … say a random gave her 2cb”. 44. In the period from 22.47 to 22.56 the appellant was variously in contact with Louella’s brother and father – indicating that he was going to carry her down (as others could not find them); that she would be fine; that they would sleep it off “after meds deal did herself”; that he would make sure that she got medical help; and that he did not want to leave her. Thereafter the appellant sent his pin location to Louella’s mother – though again there were problems in opening it after receipt. At 23.2023.24 Louella’s father texted the appellant telling him that he and Louella’s mother had arrived at the White Gate and to send the Google Maps location to him – which the appellant later did. Thereafter, another search began. 45. At 23.24 and 23.25 the appellant took more live photographs of Louella. She was lying down and covered by a black coat. Professor Deakin considered that she was most likely dead in the 23.25 photograph. 46. At around 23.30-23.45 the appellant emerged from the wood and told the two guards that he encountered that his girlfriend (who was in the wood) had taken an overdose. They had torches and accompanied him back into the wood but were unable to find Louella at that stage. The appellant continued to search alone, but without success. However, Louella’s body was eventually found at 00.59 on 11 September 2017. She was lying on her back, with her head on her chest, and had scratches and bruises to the body. Empty packaging for Valium, and a small bag containing 218mgs of ketamine, were recovered from her outer clothing which was discarded nearby. The lights at the adjacent festival site were readily visible from where she was. The interviews 47. The appellant’s account given in a series of interviews contained much which was untrue, for example that he had never supplied drugs to anyone or consumed drugs himself at the festival. He said Louella had purchased the drugs (untrue) and had starting tripping after taking some acid (a partial truth). He explained that he had called her mother because he was worried and she told him to get help from someone in a ‘high vis’. That was essentially true, but he then said he had covered Louella with his jacket, found help but that they could not find her. As we know, that happened hours after his attempt to call Louella’s mother and their subsequent conversations. He spoke of another call from Louella’s mother, who had again asked him to get assistance. So he had gone off again and had found the same man. He would have carried Louella himself, but her mother had said to find a ‘high vis’. He had sent a pin location to Louella’s parents to let them know where he and Louella were, and he had then covered Louella and had run to get help. At best, this was a conflation of a series of events but it was inaccurate. 48. The appellant described holding Louella’s arms and torso towards him to stop her from harming herself with the nettles that she kept eating and scratching against her face. She had many bruises on her hands and he had tried to rip thorns from her hands – which had resulted in cuts to his own hands. At first, he had thought that she was joking (as she had “done stuff” like that before) but when she had carried on it had started to worry him. He had been fully in control of himself and did not think that “it would be such a life and death situation”. 49. In what was likely to be a reference to Ezra Campbell, the appellant said that a friend had said that he would get help, which he thought would arrive within five to ten minutes. When that did not happen, he tried to contact other people. He had ensured that Louella had got the medical attention that she needed and had tried to give her good medical care. He had not called 999 because others had said that they were sending help, but then said that he had not done so because there was no signal. However, he agreed that he had had enough signal to send a pin to Ezra Campbell. He said that Louella was still breathing when he left her. 50. His account included that Louella only took drugs (Ecstasy and LSD) at parties. She went to events and raves nearly every weekend. She must have taken 2C-P. The expert evidence 51. The prosecution relied on the evidence of four experts: Dr Delaney (a pathologist); Dr Morley (a consultant in clinical biochemistry and toxicologist); Miss Pagdin (a forensic toxicologist) and Professor Deakin (a consultant in anaesthetics and critical care, and Professor of resuscitation and prehospital emergency medicine at Southampton University). Dr Morley identified the drugs traces of which had been found in Louella’s body, but explained that it was not possible to calculate how much of each she had taken. That was confirmed by Miss Pagdin. 52. Dr Morley explained that the traces of drugs found in the appellant’s system were consistent with recreational use and, so far as the traces of 2C-P were concerned, all he could say was that they were indicative of the ingestion of either a small amount several hours before the samples were taken, or larger amounts over the preceding days. Indeed, Dr Morley accepted that the appellant may not have been under the influence of 2C-P at the time that the video footage was recorded, and that his demeanour and toxicology results may have reflected 2C-P use prior to 10 & 11 September 2017. 53. Dr Morley explained that 2C-P was a stimulant drug, about which relatively little was known. He had not found any recorded case of 2C-P causing death, but some evidence of potentially fatal outcomes being avoided by medical intervention. He referred to a newspaper article from the United States that said that people had presented at hospital after they had taken 2C-P. They were reported as having been given cardiopulmonary resuscitation, which, he accepted, was weak or “soft” evidence, and he was ultimately happy for it to be ignored. He also referred to two peer reviewed papers which concerned a total of six patients who had taken 2C-P. The symptoms described were agitation and hallucinations, making repeated statements, very fast heart rates, high temperatures in some and dilated pupils. None required any significant medical intervention, rather they were variously given Valium or advised to rest. Only three had had fast heartbeats which did not result in any cardiovascular instability. Such symptoms were typical of the group of stimulant drugs from which 2C-P came and were reflected in how Louella presented in the video footage taken by the appellant. Drugs in the group might, Dr Morley continued, cause seizures but there was no reported evidence of seizures from 2C-P. The effects of a drug from the group would start after 30 to 60 minutes, with a peak between three and five hours (or possibly longer), and with the overall effects possibly lasting for 20 to 24 hours. 54. Dr Morley said that at low concentration ketamine might have had a stimulatory effect whereas at high levels it would have had an anaesthetic effect. It was, however, impossible to tell how much of it that either Louella or the appellant had taken. MDMA (Ecstasy) looked very similar to 2C-P, and taken with it was likely to increase the stimulant effects of hallucinations, high temperatures, faster heart rate etc. In any event, it was possible that, with a sufficiently large dose, 2C-P alone could cause an abnormal heartbeat, but he could not say that had happened in this case. He also accepted that he had largely relied on the known effects of other drugs in the same group as the basis for his evidence as to the likely effects of 2C-P. 55. Miss Pagdin confirmed that 2C-P was closely associated with MDMA, and that both were in a group known for its hallucinogenic properties. She further confirmed that there was very little literature on 2C-P as it was not commonly abused. Anecdotal evidence (the danger of which the judge warned the jury about) indicated that its effects included potent hallucinations, agitation, and hypotension – with higher doses being thought to lead to a fast heart rate. 56. Her evidence initially was that she believed that 2C-P could have played a role in Louella’s death, by increasing both heart rate and blood pressure. But in crossexamination, she accepted that she could not say that 2C-P had actually played any role in causing Louella’s death. 57. As to MDMA, Miss Pagdin said that the reported effects included euphoria, benevolence to others, heightened perception of visual and tactile sensory stimuli, hyperactivity, and increased heartbeat; that after the stimulant effects subside, excess fatigue and anxiety can occur; and that toxic effects can include elevated body temperature, seizures and kidney failure leading to death, although there was no evidence that that was the cause of Louella’s death. 58. Finally, considering the combination of 2C-P and MDMA, Miss Pagdin said that they could have a more prolonged and pronounced effect. 59. Dr Delaney (the pathologist) explained that his Post Mortem examination on Louella’s body did not reveal the cause of her death. Therefore, he had sought the opinions of Dr Morley and Miss Pagdin, and had thereafter relied on Dr Morley’s opinion as to the effects of 2C-P. 60. Dr Delaney continued that, whilst it was not possible to determine the precise mode of death, it was likely to have involved a number of factors. The use of drugs, and in particular 2C-P, had been a significant contributory factor, and had been the precipitant factor for Louella’s prolonged agitated behaviour. That prolonged behaviour and the effects of the stimulant drugs would be expected to be associated with physiological responses of increased heart rate, increased body temperature and increased blood pressure. Over a prolonged period that would result in fatigue, decreased effectiveness of breathing, decreased oxygen availability and metabolic complications such as lactic acidosis. The admitted period of restraint would have resulted in increased oxygen demand due to physical exertion and may also have reduced Louella’s ability to breathe properly at a time of increased oxygen demand. The eventual position of her head on her chest may have compromised her airway, and further reduced her ability to breathe effectively. Together those factors would have pre-disposed her to cardio respiratory arrest. 61. The definitive cause of death could not be established save that it flowed from the ingestion of the combination of drugs found in her system. Dr Delaney settled on the following narrative: “Sudden unexpected death following the use of 2CP, ketamine and MDMA (Ecstasy), with a subsequent prolonged episode of altered behaviour including agitation, physical exertion, restraint and possible positional airway compromise”. 62. Only Professor Deakin dealt with causation. He said in his statement: “In view of the lack of previously documented deaths from 2CP, the combined effect of three stimulant drugs and the unknown mechanism that resulted in Louella’s death, it is not possible to state beyond reasonable doubt that earlier medical intervention would have been able to save Louella’s life once she had ingested the 2CP.” In his first report he had put it in similar terms but added “I do believe however that on the balance of probabilities, medical intervention at any time prior to 21.10 is likely to have saved Louella’s life.” He maintained that position in cross examination but added various descriptions on the chances in answer to questions. He said: “I say in that report that before 21.10 she had a very good chance of survival, but I wasn’t saying that after that time there wasn’t. I say that there was still a good chance of survival after that time, I confirmed that that was my opinion. At 21.10 she was still making noises, she was not unresponsive at that point. In my second report I sought to clarify this. In my opinion whilst she was still breathing there was a good chance of survival with treatment.” 63. He had clarified his view in his second report. The clarification was prompted by a reminder from a police officer of what he had said in a discussion. He put the chance of survival at 21.10 at 90% and “certainly on the balance of probabilities”. He said variously that “had the deceased received appropriate care earlier that evening … she would have recovered”; that “so long as she was breathing her chances of survival are very high or very good”; but stated that “it is not possible to be certain beyond reasonable doubt as to whether medical intervention could have reversed [Louella’s] demise” . His observation that “on the balance of probabilities” medical intervention at any time before 21.10 was likely to have saved her life was not accompanied by evidence of when Louella’s condition clearly became life-threatening and thus the appellant had a duty to act. He added that whilst on the balance of probabilities earlier medical intervention could have saved her life general experience with other recreational drugs indicated that survival was by no means guaranteed even with “timely” medical intervention. 64. The relevance of 21.10 was the recording showing Louella at that time. Submission of no case to answer 65. At the conclusion of the prosecution case, the appellant submitted that there was no case to answer in respect of all four core issues: duty of care, breach of duty, causation, and gross negligence. On causation, the appellant submitted that in the light of Professor Deakin’s evidence, in particular his first report from which we have quoted, any breach of duty by the appellant could only safely be regarded as having been a cause of Louella’s death before 21.10, and that given that the jury could not be sure that there was an obvious risk of death until 21.10, there was no point at which the existence of duty was coterminous with causation. More generally, it was submitted that the various descriptions given by the Professor were such that the jury could not be sure that any alleged gross negligence was a cause of death. Moreover, that changes in the Professor’s opinion meant that his evidence could not assist the jury. 66. In reply, the prosecution pointed to Professor Deakin’s evidence that Louella would have stood a very good chance of surviving if she had received medical care, and his comment that as long as she was actually breathing when found, the chances of her surviving would be very high. The camera footage at 20.18 showed that Louella was making incoherent noises, was not aware of her surroundings and was (in Professor Deakin’s opinion) seriously unwell and in need of urgent medical care. She appeared to him to be dead at 23.35. The prosecution argued that the appellant’s negligence over five to six hours provided an explanation for Louella’s death, the root cause of which was the drug consumption and then the resulting effects. It was submitted that causation was properly a matter for the jury who should have the final decision on issues in relation to which expert evidence had been given. The respondent relied on Misra which was said to be similar (albeit in the context of medical negligence) in that the experts could not (as Professor Deakin could not in the appellant’s case) definitively exclude the possibility that the patient would not have died even with appropriate medical care. This court concluded in Misra that there was a case to answer. 67. The judge rejected the submission of no case to answer. He acknowledged that Professor Deakin could not say beyond reasonable doubt that Louella would not have died in any event, but he did not think that her death was inevitable. She had a very good chance of surviving if she received medical help before she became unresponsive. The judge noted that the Professor had thought that it was very likely that Louella would have survived if she had received medical treatment before 21.10 and likely thereafter. He added: “The co-existence of a likelihood that the deceased could be saved with medical assistance and a breach of duty will be for the jury to decide. There is sufficient evidence of both a breach of duty before 21.10 and after that time; there is sufficient evidence that it was likely that the deceased could be saved both before and after that time. 68. With respect to the submission that causation could not be proved because Professor Deakin, adopting the criminal standard of proof, was unable to rule out that death would have supervened anyway, the judge accepted the prosecution submission that it was contrary to the decision in Misra . He concluded that the submission suggesting the Professor’s evidence was unreliable given the changes in his opinion was a matter for the jury. The summing up 69. The judge explained the ingredients of the offence which the prosecutions had to prove. On causation the judge directed the jury as follows: “…The breach of duty must have been a substantial contribution to the deceased’s death. It doesn’t have to be the only cause of death, there were different concurrent causes for the death of the deceased in this case. According to the evidence of the pathologist, Dr Delaney, it was drugs toxicity with a subsequent prolonged period of altered behaviour, including agitation, physical exertion, restraint, and possible positional airway compromise. It was the opinion of Professor Deakin that intervention before it was too late might have saved her, therefore this means that there were several different factors in play, which caused the death of the deceased. To prove this element of the offence the prosecution must make you sure that the failure to obtain medical help by the defendant was a substantial contribution to the cause of death. The prosecution’s case is that by failing to obtain medical help in time, his breach of duty was a substantial contribution to the cause of death, in short had she been treated by a medical practitioner in time, she would have lived. The defence case is that by the time there was any breach of duty, it was already too late, in short it would have made no difference, it was not a substantial contribution to the cause of death. You will have to assess the time from which he was in breach and medical aid was needed, what was the likelihood of survival? Are you sure that the failure to obtain medical help at that time was a substantial cause of her death? You will recall also, ladies and gentlemen, that Professor Deakin could not say beyond reasonable doubt that the deceased would not have died anyway. He said that at its highest her chances of survival were at 90%, but this was if she had received medical help before 21.10. However, this does not mean that you can’t be sure that the breach of duty was a substantial cause of death. As I’ve already directed, to prove this element of the offence the prosecution must make you sure that the breach of duty was a substantial cause of death, not the only cause. Professor Deakin’s opinion was that up to the point of unresponsiveness there was a very good chance of survival, after that time there was still a good chance, but it would have reduced quickly. You will need to consider his expert evidence with care on this important issue. You will appreciate that Professor Deakin’s opinion was strongly challenged by the defence, I will remind you of this when I summarise the evidence. You should also consider the circumstances of how easy or difficult it was to obtain medical help, if it was difficult due to phone signal problems or the layout of the ground, then it may reduce the contribution to the cause of death by the breach of duty, the reverse may be the case if it was easy to obtain medical help. Whilst this is relevant to whether there was a breach of duty, it may also be relevant to the cause of death, if it was very difficult to obtain medical help as opposed to being very easy, the contribution to the cause of death by the breach may become less significant, if it was very easy it may become more significant.” 70. The judge gave an expert evidence direction, during the course of which he said that the experts had not given evidence as witnesses of fact, but of their expert opinion based upon their experience and expertise; and that it followed that they were unlikely to be able to express their opinion in terms of being sure or beyond reasonable doubt. At the end of his summary of the evidence of the four experts, he added: “Well, ladies and gentlemen, you should also bear in mind that, as an expert, Professor Deakin, as indeed of all experts, are not seeking to give evidence of which they are 100% sure or 95% sure, although Professor Deakin referred to 90%. They’re there to tell you what their opinion is, and it’s for you to decide whether you’re sure that, that you can accept that evidence or not. And so it’s not simply taking that the expert says that he is not 100% sure so I can’t be, you consider this as all expert evidence against all the other evidence that you consider and come to a decision as to whether you are sure that it was a substantial contribution of death or not”. 71. At the conclusion of the summing up, Mr Kamlish invited the judge to clarify his directions on causation by giving a further direction addressing the issue that, even taken at its highest, Professor Deakin’s evidence was that there was a 10% possibility that medical intervention could never have saved Louella’s life, and that unless there was evidence to fill the (arguably wide) gap between that and the jury being sure that a breach of duty by the appellant had caused or significantly contributed to Louella’s death, the appellant was entitled to be acquitted. The prosecution submitted that no further direction was required. In the result, the judge declined to give any further direction. The appeal 72. In granting leave in relation to causation, the single judge noted that the test applied by the judge was whether or not Louella would have lived had she been treated in time by a medical practitioner, and observed that the material question was whether the appellant’s breach of duty had caused or made a significant contribution to the cause of death. That had to be answered by reference to a time when Louella’s condition was already clearly life-threatening. The evidence in support of the prosecution case could only come from the experts, and the evidence of Dr Morley and Ms Pagdin went to the effects of 2C-P and the other drugs that Louella had ingested, rather than to causation. Equally, Dr Delaney’s evidence did not identify when Louella’s condition would clearly have been life-threatening, or what the effect of the breach of duty to which the appellant had then become subject may have been. The critical and only evidence on those issues was therefore that of Professor Deakin. The single judge continued: “In the light of this evidence, I consider it to be reasonably arguable that the jury could not be any more certain than Professor Deakin and, that being so, causation could not be established to the criminal standard. In my judgement, the evidence in this case is at least arguably distinguishable from the evidence summarised in Misra ; and Misra does not establish a principle that causation is always a matter for the jury, whether or not there is evidence to support a finding adverse to the defendant”. Summary of the submissions The appellant 73. Mr Kamlish submits that the judge should have acceded to the submission of no case to answer. The jury had to be sure that the evidence, taken at its highest, established that a breach of duty by the appellant had caused, or made a significant contribution to, Louella’s death. In Misra, upon which the prosecution and judge relied, there was expert evidence to support a finding that causation was established to the criminal standard of proof. The serious infection from which the victim was suffering would have been obvious to a medical student. Up to a certain time the expert was sure that the victim would have survived if the requisite steps had been taken, but that after that time he could not be sure that the victim would have survived. The court had rejected the suggestion that a submission of no case should have succeeded, saying (at paragraph 22) that “the causation issue was entirely for the jury.” That observation presupposed that that there was evidence which would enable a jury to be sure. 74. The causation question must be asked by reference to a time when Louella’s condition was already clearly life-threatening. It was not sufficient that she needed medical intervention but that there was a serious and obvious risk of death. The timings must take into account the natural delays that would inevitably have occurred even if the appellant had acted appropriately and promptly once Louella’s condition had clearly become life-threatening. 75. On the most optimistic view of Professor Deakin’s varying opinions, there was a realistic possibility that, even from the time of ingestion, Louella would not have survived with medical attention. There was no evidence on which the jury could reach a different conclusion from the Professor on the issue of whether Louella would have survived with medical intervention. As the single judge rightly pointed out, the critical (and only) evidence in relation to causation was the Professor’s, and neither the newspaper report nor the two small peer reviewed papers provided any independent or additional support for a conclusion adverse to the appellant. 76. The position in the appellant’s case was different as (in contrast e.g. to the expert evidence about the infection in Misra) little was known about 2C-P. None of the experts could talk about it with any sense of authority or clarity, and thus any conclusions about survivability were little more than speculation. 77. In addition, Louella had consumed other drugs, and Dr Delaney had concluded that it was “not possible in this case to definitively determine the precise mode of death” and had instead provided a narrative summary. 78. Dr Morley had agreed that the US newspaper report should be ignored. Equally whilst, by reference to the effects of other stimulant drugs, Dr Morley had suggested that increased heart rate could possibly lead to an irregular heart beat such that there might be a need for defibrillation, there was no reported clinical evidence that 2C-P consumption had ever needed such treatment. Rather, the clinical evidence related to a total of six patients, some of whom had been given Valium, and others had simply been kept under observation. 79. Miss Pagdin could not say that 2C-P had played a role in causing Louella’s death. In his witness statement (which was in evidence) Professor Deakin had said that given the lack of previously documented deaths from 2C-P, and the unknown mechanism that had resulted in Louella’s death, it was not possible to say beyond reasonable doubt that earlier intervention would have been able to save her life. In his first report, which was also in evidence, Professor Deakin had expressly disavowed the proposition that causation could be proved to the criminal standard but said that medical intervention before 21.10 probably would have saved her life. 80. In cross-examination, Professor Deakin had repeatedly indicated that he stood by his comment in relation to 21.10, whilst also giving evidence that, up to the point of unresponsiveness, there was a very good chance of survival. However, the only safe conclusion that the jury could draw from his evidence as a whole was that medical assistance prior to 21.10 would probably have saved Louella’s life, a conclusion which he had variously described as being “on the balance of probabilities”, “very likely” and “90%”. In any event, in view of what the Professor had said in his witness statement, and from whenever a duty of care arose, the jury could not be sure that Louella would not have died in any event. 81. Thus, the evidence taken at its highest meant that the jury could not be sure that, even at an earlier stage in the evening, a lack of medical assistance had caused or significantly contributed to Louella’s death. Equally, the lack of knowledge about 2C-P meant that there was no evidential basis upon which the jury could reject the possibility (if, as was the prosecution case, Louella had taken a large or “bumped up” quantity of 2C-P) that she would have died, even with medical assistance. Therefore, the jury could not be sure that a grossly negligent breach had caused or substantially contributed to Louella’s death. The respondent 82. Miss Darlow submits that the prosecution had advanced sufficient evidence of causation. To remove the case from the jury would have usurped the function of the jury. 83. We have considered and rejected the submission advanced on behalf of the respondent in the appeal, but not at trial, that it was sufficient for the prosecution to prove that the appellant’s gross negligence had deprived Louella of a significant or substantial chance of survival that was otherwise available to her at the time of that negligence. 84. Miss Darlow suggests that Misra involved an almost identical expert opinion scenario, albeit consequent upon medical negligence by doctors over a period of two days in the post-operative care of a patient who developed a serious infection, which it was alleged that they had negligently failed to realise. The evidence of the two prosecution experts was summarised between paragraphs 18 and 21 of the judgment. They too used a variety of descriptors of the chances of survival. The circumstances are indistinguishable from those in this appeal yet at paragraph 22 of his judgment, Judge LJ said: “In our judgment the submission that there was no case to answer on the causation issue was untenable….The causation issue was entirely for the jury. If the submission was upheld, the judge would have usurped its function”. 85. Miss Darlow further submits that the prosecution had relied at trial on a combination of evidence from its four expert witnesses. In refusing the submission of no case the judge had summarised the evidence of Professor Deakin and had indicated that it was for the jury and not the court to assess the experts’ evidence. He had thereafter directed the jury correctly and in accordance with Gian that juries are not required to assess evidence on the basis of scientific certainty, nor are they bound to consider hypothetical possibilities. Thus, Miss Darlow asserted, whilst Professor Deakin could not with certainty exclude the possibility that Louella would have died in any event, a separate and independent consideration of the issue fell properly within the province of the jury, who had been properly directed as to both the ambit of the relevant evidence and the role of expert witnesses. Indeed, the role of the Professor in giving an expert opinion necessitated taking into account possibilities which the jury, for their part and performing a separate and distinct function, may have considered that they could confidently regard as hypothetical, or so unlikely as being safely and reasonably discounted. So, in analysing the Professor’s evidence that: “…Obviously drugs can cause deaths, but thousands of people attend for treatment having taken drugs in general and do not die. Sometimes death is inevitable, but usually lives can be saved”, the jury’s evaluation of degrees of probability may legitimately have differed from his. 86. She recognises that there were inconsistencies in Professor Deakin’s evidence but some reliance could be placed on the American newspaper report (found by Dr Morley on an internet search) that suggested apparent successful resuscitation of those having suffered 2C-P induced cardiac arrest and the profession’s clinical ability to provide life-saving intensive care to patients with respiratory or metabolic abnormalities. The inconsistencies, Miss Darlow submits, could be compared with those in the expert medical evidence in Misra . Miss Darlow reminds us that Professor Deakin had said that he regarded sure as being “ beyond 95% ”. That, she submitted, demonstrated the impossibility of transposing the percentages expressed in medical opinion into the standards that a jury might equate with being sure. 87. The evidence of Professor Deakin that there were no documented deaths from the use of 2C-P was supportive. That evidence could also be put together with the evidence of Dr Morley (the American newspaper report and evidence of the six patients in peer reviewed papers) that, although there were no previous recorded 2C-P fatalities in the literature, there was “some evidence” of potentially fatal outcomes that had been prevented due to medical intervention. Likewise, Louella had MDMA in her system which might have increased the effect, including an abnormal heartbeat. That had a direct and probative relevance to the issue of survivability. Thus, Miss Darlow submits, the additional evidence would have entitled the jury to conclude that Louella would have survived if she had received appropriate medical treatment. The jury was entitled to consider (in conjunction with the evidence of Professor Deakin) the evidence of Dr Morley (with whom Miss Pagdin agreed) that 2C-P had a stimulant effect and could cause an increased heartbeat or heart arrhythmia. That was treatable. Professor Deakin had said that, provided that Louella was actually breathing when found, the chances of her surviving would have been very high, and the live photograph at 22.42 showed that she was still groaning and thus was still breathing. 88. Miss Darlow concludes by submitting that on the most favourable analysis to the appellant of Professor Deakin’s evidence, Louella was deprived, by the appellant’s negligence, of a 90% likelihood of being saved. Discussion 89. To establish the guilt of the appellant the prosecution had to make the jury sure that at the time when Louella’s condition was such that there was a serious and obvious risk of death the appellant was grossly negligent in failing to obtain medical assistance and that such assistance would have saved her life. That she was having a bad trip, or the time had come when medical help was needed is not enough. In a case of this sort, as in medical cases involving health professionals, there needs to be a clear focus on when the condition of the deceased reached the threshold of serious and obvious risk of death, what the accused should have done then and the prospects of survival at that point. 90. The prosecution in this case did not fix on a time at which it was contended that Louella’s condition posed an obvious and serious risk of death rather, as the judge explained in the summing up: “It will be necessary … for you to carefully consider the events, looking closely at the timing of the moving images on the Defendant’s phone, between 17.53 and 23.24 and how the deceased appeared. The timing and content of messages between the Defendant and others and evidence of voice calls. It cannot be said that there was a duty of care or a breach of duty at the start, it’s the Prosecution’s case that as time went on you can be sure that a reasonably competent, prudent and sober person of the Defendant’s age and experience would have known that he had created a state of affairs which had become life threatening, and would have appreciated her serious deterioration and obtain medical help for the deceased. It will be for you to decide if or when that time arose. The Defence say that it never arose and that in the circumstances at the time, he did all that was reasonable to help her.” 91. In the passages dealing with causation, the judge linked the breach of duty with causation: You will have to assess the time from which he was in, in breach and medical aid was needed, what was the likelihood of survival? Are you sure that the failure to obtain medical help at that time was a substantial cause of her death? 92. The task of the jury was far from easy given that they had no help from the experts on the question of when Louella’s condition was clearly life threatening (as the judge put it as short-hand for a serious and obvious risk of death). We have noted that Professor Deakin, on viewing the video taken at 20.18, described her as being “seriously unwell and in need of urgent medical care” rather than at serious and obvious risk of death. Nonetheless, having determined when that state of affairs existed there would have been no difficulty in concluding that the appellant should immediately have tried (or continued to try) to get help. It would necessarily take time to arrive and for treatment to commence. That is when the question of survivability would become relevant. 93. The appellant made attempts to get assistance. He told Ezra Campbell at 19.13 to “get the medics” to the forest and again at 20.25. He sent a Google Maps pin to Ezra Campbell at 20.39. Shortly after 21.00 a search was made of the Ambient Forest where, mistakenly, the searchers thought the appellant and Louella were located. It is not plausible to suppose that the appellant was acting in a grossly negligent way whilst actively seeking help for Louella at that time and it is for that reason that a good deal of attention was paid at trial and in Professor Deakin’s evidence about the state of affairs when the video was taken shortly after 21.00. His opinion focussed on survivability at 21.10. 94. We respectfully agree with the observation made by the single judge, reflecting the submission advanced by Mr Kamlish, that the only evidence dealing with causation was that of Professor Deakin. None of the other experts gave evidence which went to that issue. It was not in doubt, even given the uncertainties surrounding the precise mechanism of death and the part played by the different drugs which Louella had taken, that the drugs caused the death and that medical intervention could have saved her. It was Professor Deakin who gave the evidence relevant to the issue of causation. In that he was in a similar position to the doctor who gave evidence in the trial of Morby in 1882. 95. Neither did the results of Dr Morley’s internet searches add to Professor Deakin’s evidence. Experts may, of course, rely upon the work of others in forming their opinions. The two peer reviewed papers dealing with six patients who had consumed 2C-P are examples of the type of material an expert may bring to bear in forming an opinion. But they said nothing about the chances of survival of a 2C-P taker who was at a serious and obvious risk of death. The fact that three of the patients needed nothing more than rest and the other three Valium suggests that the problems were of an entirely different order. Dr Morley was right to disavow reliance upon the newspaper report his searches had exhumed. A report of this nature is far removed from the type of material than an expert could pray in aid to support an expert opinion. Moreover, had it been found by the industry of the prosecution rather than Dr Morley it is inconceivable that it would have been admissible in evidence. 96. Like the jury, we are left with the Professor’s evidence which, echoing Lord Coleridge’s language in Morby , he gave “under a high sense of duty and responsibility”. He was careful not to overstate his position. It is striking that in his original report the Professor expressly addressed himself to the criminal standard of proof, rather than scientific certainty, but found the evidence wanting. He was happy with the civil standard of proof, the balance of probabilities. The furthest he would go when pressed further was in suggesting that there was a 90% chance of survival at 21.10 if medical attention had then been provided. He used various epithets to describe the position then and thereafter, but it is abundantly clear that was the highwater mark for survival and that the chances diminished as time went by, albeit remaining good. The diminishing chances of survival were expressly referred to in the opening of the prosecution to the jury. 97. We have referred to Gian (paragraph 22 above) and noted Miss Darlow’s submission founded upon it that the jury is not required to assess evidence on the basis of scientific certainty, and nor are they bound to consider hypothetical possibilities. The relevant passages from Gian are these: “21. Dr Jerreat's opinion was, throughout, clear. His opinion was that the victim had died of neck and stab wounds. He said in re-examination:- ‘My opinion is that she has died of the neck and stab wounds and that the cocaine intoxication is not an event, but there are always cases that you cannot completely exclude and in theory these are possibilities. I do not think that has occurred in this case where you have clear bruising, you have a clear action in the stabbing and the removal of the neck. As I was asked, it was not a clean removal, it was not quick, it was very slow and it would have taken some time and this is all while the person is still alive. So it would be highly unusual that you would perform this process just as they were dying of cocaine intoxication.’ 22. In our judgment, the judge was correct in refusing to withdraw the case from the jury merely on the basis that Dr Jerreat could not exclude a theoretical or hypothetical possibility that the victim had died from cocaine poisoning. There is ample authority for the proposition that the mere fact that as a matter of scientific certainty it is not possible to rule out a proposition consistent with innocence does not justify withdrawing the case from a jury. Juries are required to consider expert evidence in the context of all other relevant evidence and make judgements based upon realistic and not fanciful possibilities. (See Bracewell [1979] 68 Cr App R 44 , Dawson [1985] 81 Cr App R 150 and Kai-Whitewind [2005] 2 Cr App R 31 at paragraphs 88, 89 and 90). The Court of Appeal endorsed Boreham J's direction in Bracewell. In that case the defence raised the possibility that the victim had been strangled, recovered and then suffered a heart attack, a sequence of events which could not be ruled out as a matter of scientific certainty. The judge directed the jury not to judge the case scientifically or with scientific certainty but to decide whether, on the whole of the evidence, they were sure. The Court of Appeal endorsed that direction which correctly drew the distinction between scientific proof and legal proof. It pointed out that the medical evidence was only part of the material on the basis of which the jury had to reach a decision.” 98. This extract demonstrates the hypothetical nature of the alternative cause of death being considered in Gian and also in Bracewell. It illuminates the reality that in many homicide cases determining the cause or causes of death does not rely exclusively on expert opinion but can be collected from surrounding circumstances. 99. Professor Deakin was not asked to consider hypothetical alternative causes of death of the sort canvassed in Gian and the cases therein cited. There were two concurrent causes of death in issue: first, the effect of the drugs taken by Louella and secondly want of medical attention after the time when her condition became obviously critical. There was no evidence beyond that of Professor Deakin of a non-expert nature which could help answer the relevant question. 100. It is unhelpful to attempt to contrast scientific certainty (put at 100%) with a different figure for legal certainty. Human beings asked the question whether they are sure of something do not think in those terms. In the context of causation in this very sad case the task of the jury was to ask whether the evidence established to the criminal standard that, with medical intervention as soon as possible after Louella’s condition presented a serious and obvious risk of death, she would have lived. In short, had the prosecution excluded the realistic possibility that, despite such treatment, Louella would have died? 101. In our judgment none of Professor Deakin’s descriptive language achieved that. Even his description of a 90% chance of survival at 21.10, were medical help available, leaves a realistic possibility that she would not have lived. 102. Misra is a different case. The evidence in support of causation needs careful attention. The case is not authority for the proposition that causation is always a matter for the jury whatever the underlying evidence. No issue should be left to a jury unless there is sufficient evidence upon which it can be satisfied so it is sure. It is true that the two prosecution experts who gave evidence on causation spoke in varying descriptive language, including the balance of probabilities. That said, amongst the evidence by one expert was that he was “as certain as one can be he would have survived”. There was evidence of the general statistical chances of dying from the relevant condition even with appropriate medical treatment (contested but coalescing around 5%); but at two points in the judgment (paragraphs 21 and 74) there is reference to the view of one of the experts that the fact that the victim was a 31-yearold man in otherwise good health was a factor which reduced his statistical chance of dying and that he was in fact doing well before the negligence supervened. 103. In our view, this is one of those rare cases (as was Morby ) where the expert evidence was all that the jury had to assist them in answering the question on causation. That expert evidence was not capable of establishing causation to the criminal standard. Miss Darlow’s final submission that at 21.10 Louella was deprived of a 90% chance of survival was an accurate reflection of Professor Deakin’s evidence but, for the reasons we have explained, that is not enough. Put another way, if an operation carried a personal 10% risk of mortality, both patient and clinicians would be able confidently to say that the chances of survival were very high or very good (to take two phrases used by the Professor) but none could be sure. 104. In respectful disagreement with the judge, we conclude that the appellant’s main argument, that the case should have been withdrawn from the jury, is established. Applying the Galbraith test ( R v. Galbraith [1981] 1 WLR 1039 ), taken at its highest, the evidence adduced by the prosecution was incapable of proving causation to the criminal standard of proof. The appeal against conviction for manslaughter must be allowed.

2020_08_18-4957.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2020/1093/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2020/1093

a049797d89ed0a396675fb5430a07183375aaa81172cb21ebb23da19752c5d58

[2010] EWCA Crim 835

EWCA_Crim_835

crown_court

Neutral Citation Number: [2010] EWCA Crim 835 Case No: 2009/5139/D1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 9 March 2010 B e f o r e : LORD JUSTICE THOMAS MR JUSTICE RODERICK EVANS MR JUSTICE COULSON - - - - - - - - - - - - - - - - - - - - R E G I N A v ANTHONY RICHARDS - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Flee

Neutral Citation Number: [2010] EWCA Crim 835 Case No: 2009/5139/D1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 9 March 2010 B e f o r e : LORD JUSTICE THOMAS MR JUSTICE RODERICK EVANS MR JUSTICE COULSON - - - - - - - - - - - - - - - - - - - - R E G I N A v ANTHONY RICHARDS - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - Mr F O'Toole appeared on behalf of the Appellant - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE THOMAS: On 15th July 2009 in the Crown Court at Maidstone before His Honour Judge O'Mahoney and a jury, the appellant was convicted by a majority verdict of breach of a non-molestation order. He was subsequently sentenced to 24 weeks' imprisonment suspended for 24 months with an unpaid work requirement for 150 hours to be carried out within 12 months. He appeals by leave of the single judge on a short point of law in relation to the burden of proof in relation to the relevant legislation. It is necessary very briefly to set out the facts. 2. A non-molestation station order was made in July 2008 at the Dartford County Court. It specified the appellant should not go within 25 metres of premises in Wilmington, Kent, and he should not contact the complainant with whom he had had two sons. 3. On 11th January 2009 the appellant made several telephone calls to the complainant and subsequently went to the premises to which he was prohibited from going. The appellant said that he had a reasonable excuse for going. He had telephoned and, as the phone was not answered, he was concerned about the safety of his sons. His concern arose out of the fact that on his case the complainant was an alcoholic and drunk at the time. 4. The criminal offence he would have committed was an offence under section 42A(1) of the Family Law Act 1996 . That legislation made it a criminal offence to breach the terms of such an order without reasonable excuse. As he admitted going to the house the sole issue was whether he had a reasonable excuse. The judge summed up the case to the jury on that sole issue in terms which made it clear that the burden was on the appellant to establish that it was more probable than not that he did have a reasonable excuse for doing what he did. 5. The issue therefore on which leave has been given is whether that direction on that piece of legislation was correct. The Crown accepts in written submissions made to the court that the relevant authorities are R v Edwards [1952] 1 QB 27 , R v Hunt [1987] 1 AC 352 , R v Dorothy Evans [2004] EWCA Crim. 3102 and, finally, R v Charles [2009] EWCA Crim. 1570 . 6. The Crown also accept that, as section 1(10) of the Crime and Disorder Act 1998 , section 5(5) of the Harassment Act 1997 and section 42A of the Family Law Act 1996 are all in materially the same terms, the decisions of this court that deal with the Crime and Disorder Act and the Harassment Act should be applied to section 42A . As it is clear from the decisions particularly those in Charles and Evans to which we have referred, that the burden is on the Crown, it is accepted that that should apply to section 42A of the Family Law Act 1996 . 7. In those circumstances, as the judge plainly misdirected the jury on the sole issue in the case, the conviction cannot be regarded as safe and must accordingly be quashed. It is to be hoped that this decision will now make it clear to all courts where the burden of proof lies in these cases, so that cases of this kind are dealt with in accordance with what are now clearly established principles.

2010_03_09-2315.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/835/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/835

19bbd817cf29a4be281f8660a250245ebdf296effde72af918d673fc5781f70a

[2017] EWCA Crim 1477

EWCA_Crim_1477

crown_court

Neutral Citation Number: [2017] EWCA Crim 1477 Case No. 2017/01709/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Friday 22 nd September 2017 B e f o r e: MR JUSTICE HADDON-CAVE and MRS JUSTICE SIMLER DBE _________________ R E G I N A - v - WELDEGABRIEL TEKLU ____________________ Computer Aided Transcription by Wordwave International Ltd trading as DTI 165 Fleet Street, London EC4A 2DY Telephone No: 020 7404 1400; Fax No 020 7404 14

Neutral Citation Number: [2017] EWCA Crim 1477 Case No. 2017/01709/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Friday 22 nd September 2017 B e f o r e: MR JUSTICE HADDON-CAVE and MRS JUSTICE SIMLER DBE _________________ R E G I N A - v - WELDEGABRIEL TEKLU ____________________ Computer Aided Transcription by Wordwave International Ltd trading as DTI 165 Fleet Street, London EC4A 2DY Telephone No: 020 7404 1400; Fax No 020 7404 1424 (Official Shorthand Writers to the Court) __________________ Mr L Jones appeared on behalf of the Appellant ____________________ J U D G M E N T (Approved) MR JUSTICE HADDON-CAVE: I shall ask Mrs Justice Simler to give the judgment of the court. MRS JUSTICE SIMLER: 1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence so that the usual reporting restrictions apply. 2. On 17 th March 2017, in the Crown Court at Cardiff, before Mr Recorder Ball QC and a jury, the appellant was convicted of one offence of sexual assault, contrary to section 3 of the Sexual Offences Act 2003. He was sentenced to four years' imprisonment. 3. He appeals against that sentence with leave of the single judge. He has been ably represented by Mr Jones of counsel. 4. The facts are these. At 10.45pm on 15 th September 2016, the complainant, a 21 year old medical student, was making her way home, having finished work and had drinks with colleagues in Cardiff. Her route home took her past a wall in Museum Place where the appellant was sitting. He offered her a cigarette. She accepted and sat down beside him. There was a brief conversation between them, during which names were exchanged. He asked if there was any CCTV in the area. At that point, she said that she was leaving. He began to walk alongside her making her feel uncomfortable. He indicated that he wished to exchange telephone numbers. She agreed to take the appellant's number, believing she would then be able to say goodbye. He, however, remained with her as they continued to walk. He put his arm around her. He put his hand inside her blouse and rested his hand on her upper breast. He told her he was strong and that she was a good girl. He lifted her glasses and kissed her on the lips. He then put his arm around her, guided her along and held her against a wall. He kissed her again. He put his hand down the back of her trousers inside her underwear and touched her buttock. He used his other hand to rub her crotch area. He then moved his hand from her buttock and placed it inside her blouse and bra, groping her right breast hard, while continuing to kiss her. She said "No". She tried to push him back. He said it was okay. He put his arm around her and manoeuvred her into an alleyway. He asked her if she was happy. She walked briskly away and stopped a man on the street a short distance away. She told him that the appellant had tried to rape her. When the appellant had gone, she telephoned her boyfriend and was helped back home. The appellant was subsequently identified from images shown to the police. 5. In interview the appellant did not deny touching the complainant, but said that she was the instigator and that she had kissed him. She had controlled his hands and directed his movements. He said that it was a joint decision to go down the alleyway and that they left when the lights came on. 6. The appellant was aged 31 at the date of sentence and was of previous good character. The judge proceeded to sentence without a pre-sentence report. We do not consider in all the circumstances that a pre-sentence report was or is necessary. The judge had available to him a Victim Personal Statement from the complainant. 7. In passing sentence the judge observed that the appellant had never explained why he was sitting on the wall. He drew the inference that the appellant was there deliberately, planning to chat up young women making their way home. Having accepted the offer of a cigarette, the appellant pursued the complainant. He went a considerable distance out of his way in a direction different to his own way home. He followed the complainant to a more discrete area where she was indecently assaulted twice. During the course of that journey he asked her about CCTV, which caused her alarm. She became more distressed at his persistence. The judge concluded that the appellant planned and was determined to have sexual contact with the complainant. He had kissed her and indecently assaulted her, then manoeuvred her across the road where the assault became more serious. He had fondled her buttocks and breasts in an aggressive way, and had then manoeuvred her into the alleyway. She was not there for long, and it was apparent from the way that she exited the alleyway that she wanted nothing to do with him. 8. The judge referred to the fact that the appellant's defence had been to cast aspersions in relation to the complainant. He had alleged that she had been the driving force behind the sexual activity, when it was plain that the appellant was the predator. The judge identified a number of aggravating features: the degree of planning; the fact that the offence took place at night; the fact that the complainant was a vulnerable young woman; the attack was persistent; and it took place late at night in a public street. The judge concluded that it was a category 2A offence within the sentencing guidelines, with a range of one to four years' imprisonment and a starting point of two years. The sentence passed ultimately, as we have already identified, was one of four years' imprisonment. 9. In grounds of appeal, both in writing and developed before us by Mr Jones, two principal points are taken. First, Mr Jones contends that the judge was wrong to conclude that the offence displayed a significant degree of planning, so that it fell within category 2A. Mr Jones referred to the fact that the appellant gave his name, phone number and Cardiff street address to the complainant, which tells against planning. Moreover, he argues that the word "significant" is absolute, and that on any view this offence could not be described as one involving significant planning. Secondly, Mr Jones submits that, even if category 2A was correct, the judge's sentence of four years' imprisonment was manifestly excessive and made no allowance whatever for the appellant's previous good character and absence of previous convictions. 10. We have considered those submissions with care, but do not accept them. In our view, the judge, who presided over this trial and heard the evidence, was well-placed to assess the extent to which this offence involved planning. "Significant" is not an absolute concept. In the context of this offence – a sexual assault that can be committed without implements or tools or any sophisticated planning – we consider that lying in wait, in a position that is perfectly designed to prey on lone young women (particularly given the timing) who have had a night out and are on their way home, did involve a significant degree of planning in context. The judge was amply entitled in those circumstances to conclude that this was a category 2A offence. 11. Moreover in our view, the complainant was particularly vulnerable. Mr Jones submitted that the appellant can have had no knowledge of any personal characteristics that might have made the complainant vulnerable. But that seems to us to be an unrealistic submission that entirely misses the point. This was a single young woman, alone late at night, and targeted as such. In our judgment, that made her vulnerable. Men preying on lone young women, particularly in university towns on their way home after a night out, is a serious problem. The judge no doubt had that well in mind when he concluded that she was particularly vulnerable. 12. There were aggravating features: the location and the timing of the offence, close to the alleyway. This was a sustained attack in which the complainant was pursued and manoeuvred towards the alleyway. It must have been terrifying and she was, do doubt, in considerable fear that she would be raped. In our judgment, the judge was amply entitled to conclude that these aggravating features took the offence to the top of the category. 13. Mr Jones complains about the judge’s reference to the appellant casting aspersions on the complainant in the course of the trial. True it is that he did. The judge concluded that indicated a complete lack of remorse shown by the appellant. We do not read his remarks as indicating that he ignored the appellant's positive good character and lack of previous convictions. On the contrary, the judge expressly recognised that the appellant was a man of good character. We are satisfied that the judge had that well in mind in reaching the ultimate conclusion that the sentence should be one of four years' imprisonment. 14. In the result, we consider that the sentence passed was open to this judge who presided over the trial. We can see no basis for interfering with this sentence as manifestly excessive. For all those reasons, notwithstanding the forceful submissions made by Mr Jones, the appeal is accordingly dismissed. ________________________________

2017_09_22-4064.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/1477/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/1477

f88ad1248b3cb3050116b38583d2be8f1d6707eceb8a05b20b1d22ce724d135a

[2005] EWCA Crim 218

EWCA_Crim_218

crown_court

No: 200404425/A5 Neutral Citation Number: [2005] EWCA Crim 218 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 28th January 2005 B E F O R E: MR JUSTICE BEATSON HIS HONOUR JUDGE PAGET QC (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - R E G I N A -v- PETER MICHAEL BENNETT - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fa

No: 200404425/A5 Neutral Citation Number: [2005] EWCA Crim 218 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 28th January 2005 B E F O R E: MR JUSTICE BEATSON HIS HONOUR JUDGE PAGET QC (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - R E G I N A -v- PETER MICHAEL BENNETT - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR G JONES appeared on behalf of the APPELLANT - - - - - - - J U D G M E N T 1. Mr Justice Beatson: On 27th May 2004, in the Crown Court at Liverpool, the appellant pleaded guilty to supplying a class A controlled drug, heroin. He was also in breach of licence relating to a sentence of four years' imprisonment imposed on 4th July 2000 also for supplying class A controlled drugs. On that occasion there were 11 counts. On 5th July 2004 he was sentenced as follows by His Honour Judge Holloway: to 502 days' imprisonment for the breach of licence under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 and to three years' imprisonment for the current offence to be served consecutively. The total sentence was four years and five months' imprisonment. 2. He appeals against the sentence for breach of licence by leave of the single judge. The single judge refused leave in respect of the three year sentence for the current offence and Mr Jones does not renew that application. 3. In those circumstances we can state the facts very briefly. The current offence arose as a result of an undercover police operation in Liverpool targeting street dealing in drugs. The previous offence had involved similar drug dealing. The position in respect of the earlier sentence was complicated, but this Court has the benefit of an agreed chronology (agreed that is by the prosecution and defence), which contains information not available to the sentencing judge when he imposed the 502 days' imprisonment for the breach of licence. 4. It is clear from the transcript of the prosecution's opening of the facts that there was then before the court no accurate account of the period served on administrative recall. Mr Astbury, who appeared at trial, and who has agreed the chronology and information from HMP Liverpool to which we will return, stated that, given the pattern of releases on licence and recalls, it was not possible to be precise. He stated it was very difficult to be specific as to exactly how many months the appellant had served as part of a recall period. Only those who have currently detained him would be able to work that out with accuracy. The judge was invited, in effect, to do the best he could and to take account of the approximate period that was served. 5. The decision of this Court in Sharkey [2000] 1 Cr App R(S) 409, however, states that normally the court will want to give full account of periods served on administrative recall because the prison service do not do so for reasons explained in Sharkey and the cases based on it to which we will return. The learned judge then imposed the sentence. 6. We return to the agreed chronology. On 30th June 2000 the appellant was sentenced to four years' imprisonment. He was released on licence on 5th November 2002. The current offence was committed on 11th February 2003 while on licence. He was recalled to prison for breach of licence on 18th February, but was not returned to custody until 11th April 2003, having spent 52 days unlawfully at large. On 18th July 2003 he was again released on licence. On 9th December 2003 he was recalled for breach of licence. Again, he spent time unlawfully at large, on this occasion 43 days, and returned to custody on 21st January 2004. On 19th February 2004 he was sentenced to three months' imprisonment for driving whilst disqualified. The agreed chronology assumes that he was not released thereafter. He was sentenced for the current offence by His Honour Judge Holloway on 5th July 2004. 7. Mr Jones calculates that the total number of days that the appellant has spent on administrative recall is 205, taking account of half the period in respect of the three month sentence on 19th February 2004. The days spent unlawfully at large postponed the appellant's sentence expiry date until 29th August 2004 for the earlier offence. Mr Jones was unable to provide information as to the effect of that on his licence expiry date, which is the crucial date for these purposes because after then the period of administrative recall under section 39 of the Criminal Justice Act 1991 ends. The information from the prison states that the licence expiry date was 29th August 2004. Mr Jones submits that, applying the principles in Sharkey , the 205 days should be doubled, and he submits that the learned judge should accordingly have not sentenced this appellant to more than 92 days for breach of licence. 8. The difficulty as stated in Sharkey and the cases based on it, including Stocker [2003] Crim LR 293, Teasdale [2003] Crim LR 657 and Rady [2004] EWCA Crim 3297 , is that the regime in section 39 of the Criminal Justice Act 1991 , governing the terms upon which a prisoner released on licence may be recalled to prison administratively, differs from the power of the court in section 116 of the Powers of Criminal Courts (Sentencing) Act to order such a person to be returned to prison for the unexpired part of his sentence. Where a person is held in custody in part on remand for further offences, but also pursuant of the revocation of his licence under section 39 , the prison service does not treat the period as counting towards either the period of the unexpired part of the earlier sentence, or in respect of any sentence imposed in respect of the later offences. This is so until the licence expiry date for the first sentence. After that date the period of administrative recall under section 39 ends and the individual is held solely on remand for the later offences so that time thereafter on remand would count towards his sentence for the later offences. 9. The difficulty for sentencing judges, as the facts of this case show, is that they are not always informed of the correct position. In the present case the prosecution was only able to put approximate dates and periods before the learned judge. The fact that the appellant had been released on licence on two occasions and then recalled further complicated the calculation the judge had to make. 10. Mr Astbury on behalf of the prosecution, as we have noted, invited the judge to exercise discretion as to the sentence imposed and to take account of an approximate period. That, as we have said, is not what this Court has stated a sentencing court should do. In the present case, in the absence of information about the effect of the periods unlawfully at large on the appellant's licence expiry date, the sentencing Court was in some difficulty. 11. As we have stated, after the licence expiry date the prison service will treat time towards the sentence for the later offence in the normal way, so the sentencing judge does not have to do so. In principle, therefore, but for his breaches of licence and time spent unlawfully at large the appellant would have time after 27th May 2003 deducted by the prison service against the current sentence. The information from the prison is that the effect of the breaches put the licence expiry date back to 29th August 2004. This is the basis of Mr Jones's calculation. He calculates 205 days on administrative recall, which has to be doubled because a day spent in custody following the revocation of a parole licence is the equivalent of two days in respect of which a defendant is ordered to return to custody under section 116 . This is because a period of custody under section 116 is treated as an independent sentence for which an offender will in normal circumstances be released after serving half the period. The result is 410 days. Mr Jones submits the period of imprisonment for breach of licence should have been 92 days. 12. In principle if the period of unlawful absence from custody did not affect the licence expiry date, the period in custody after 27th May 2003, i.e from 21st January 2004, should not have been deducted by the judge. This Court accepts the calculation put forward by Mr Jones based as it is on the information from the prison service. It therefore sets aside the period of 502 days and substitutes for it a period of 92 days. Should, however, it emerge that the licence expiry date ended before the appellant's return to custody on 21st January 2004, then we would invite the matter to be brought back on paper so that a new calculation can be done which would, in fact, lead to a longer sentence for breach of licence. 13. It is unsatisfactory that, when a case comes to the Court for sentencing, the Court is not in a position to know the precise position. We observe that there is a cottage industry in appeals resulting from sentencing judges not being in a position to make an accurate deduction from a period of imprisonment for breach of licence because the information is not available to them. In the present case it was also not available to the prosecution. The prosecution recognised that accurate information could be obtained from the prison service. This has now been obtained. 14. In view of the pressure on the work of this Court and the expense of appeals, prosecutors should consider carefully how to obtain accurate information from the prison service as to the days in custody consequent on administrative recall prior to the licence expiry date before the Crown Court has to consider what the sentence under section 116 should be for breach of licence. If necessary, there should be liaison with the court office to ensure that this information is before the judge. It may be that it will be necessary for the court to request it. If such information is not available, a sentencing judge cannot, as the learned judge in this case and the Recorder in Rady did rely, on the prison authorities to make the appropriate reduction. 15. This appeal is allowed to that extent and subject to the caveat to which we have referred.

2005_01_28-432.xml

allowed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/218/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/218

b1272f8f1086f23ed667e6619efff35c312ba9b2bc3f0e715bdf4a11fb1ccbef

[2008] EWCA Crim 838

EWCA_Crim_838

crown_court

No: 200705992 A8 Neutral Citation Number: [2008] EWCA Crim 838 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 4th April 2008 B e f o r e : LORD JUSTICE PILL MR JUSTICE FORBES MR JUSTICE BLAIR - - - - - - - - - - - - - - - R E G I N A v MICHAEL TAYLOR - - - - - - - - - - - - - - - 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 1

No: 200705992 A8 Neutral Citation Number: [2008] EWCA Crim 838 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 4th April 2008 B e f o r e : LORD JUSTICE PILL MR JUSTICE FORBES MR JUSTICE BLAIR - - - - - - - - - - - - - - - R E G I N A v MICHAEL TAYLOR - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - Mr N Peacock appeared on behalf of the Appellant Mr T Parkin appeared on behalf of the Crown - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE FORBES: On 5th October 2007 in the Newcastle Crown Court this appellant pleaded guilty to a single count of murder. He was sentenced to life imprisonment with a recommended minimum term of 15 years, less the 94 days that he had spent in custody on remand. He now appeals against that sentence by leave of the single judge. 2. The brief facts are these. The deceased, Miss Rebecca Hood, was born in 1989. She met the appellant, who was 11 years older than her, when she went to work for Storey Carpets where he was employed as a warehouse man. They began a relationship after a works Christmas party in 2005. Colleagues described Miss Hood as a friendly and outgoing person, but they described the appellant as immature, insecure and possessive. 3. Sadly, it appears that the appellant bullied and humiliated Miss Hood at work. He talked openly about their sex life, he showed photographs of them together in sexual circumstances and encouraged her to experiment with drugs. Nevertheless, they moved in to live together. The appellant continued to bully Miss Hood at work and she ended up leaving her job. In due course, they moved to a flat owned by the appellant's sister. 4. The condition of the flat was poor and Miss Hood eventually moved back home to live with her parents at the end of May 2007. At that stage she made it clear that for her the relationship was over, although she was happy to remain on friendly terms with the appellant. As a result, she regained her confidence and began socialising again. However, the appellant was persistent in making clear that he wanted her to come back. Eventually Miss Hood agreed to go out with the appellant on 30th June 2007. It was her intention to make her position absolutely clear to the appellant. However, he intended to persuade her to resume their relationship. In due course, they went back to his house. CCTV footage shows that they were not walking hand in hand, but that there was a gap between them. 5. On the way back, they saw a mutual friend. It appears that the appellant was angered by comments made about Miss Hood's possible involvement in another relationship. After they arrived at his home, Miss Hood telephoned a friend and expressed alarm about the appellant's behaviour. She said that she thought he had taken an overdose of drugs. Nevertheless, she remained at his house. The following morning at about 11 o'clock the appellant rang his sister. He described his enthusiasm about the night out that he and the deceased had shared together the previous night. However, two and a half hours later he telephoned his sister again and told her that he had killed Miss Hood. 6. His sister went to the house and the appellant showed her Miss Hood's body, which by that time was under a blanket. The appellant prevented his sister from telephoning the police. The cause of death was strangulation. It appears death had not been immediate. There was petechial bruising which indicated that death would have occurred within a period of some 30 seconds to two minutes. The appellant had strangled Miss Hood by use of his belt. The belt had been threaded through its buckle. The deceased had also sustained a blow to the back of her head, either as a result of a blow from the appellant or as a result of falling to the floor. She also had defensive injuries to her lower arm and left thumb that were consistent with warding off blows and with trying to remove the belt from around her neck. 7. The appellant left the house and travelled around the local area telephoning friends. He rejected all advice to obtain medical assistance or go to the police. He said that he and the deceased had argued about their separation. Eventually, the appellant's sister did report the matter to the police. Miss Hood's body was not discovered and pronounced dead until 6.20 that evening. The appellant was arrested at 9.15 pm. He had no injuries and he made no comment when interviewed. 8. In victim impact statements which we have also read, the deceased parents spoke in very moving terms about the loss of their daughter and their resulting sense of emptiness. 9. When passing sentence, the judge said this: "In setting the minimum term, I have identified the appropriate starting point as being one of 15 years. The Crown have submitted that the aggravating features are as follows: the use of the belt, which they submit indicates a degree of premeditation, and your failure to get help either from the police or the medical services indicates a lack of remorse. Mr Hill submits that those suggested aggravating features are minimal and that this was not pre-planned but was an explosion of temper. Your attitude afterwards, Mr Hill suggests, indicates a reaction of shock and horror to what you had done rather than to any lack of remorse. It is agreed that the only mitigating factor is your plea of guilty and that, entered at the first reasonable opportunity, entitles you to the maximum credit of one sixth. I take the view that the aggravating features cannot be described as minimal and must require me to increase the minimum term above the 15-year starting point. However, I am persuaded that the maximum discount for a plea of guilty enables me to bring the figure back to the starting point of 15 years." 10. The appellant is now aged 30. He has appeared before the court on 28 previous occasions for a total of 110 offences, committed between 1989 and 2003. His previous appearances were largely for offences of burglary, theft, vehicle taking and criminal damage. He has previously been dealt with by way of a range of non-custodial and short custodial sentences. His previous convictions included three common assaults, one assault occasioning actual bodily harm and one offence of cruelty to animals. However, he does not have a previous record of offences of serious violence. 11. On behalf of the appellant, Mr Peacock submitted that the specified minimum term was manifestly excessive because the judge had given too much weight to the aggravating features, namely the use of the belt, indicating some premeditation, and the failure to seek help indicating a lack of remorse. Mr Peacock's submission was, in short, that, as a result of attaching too much significance to these aggravating features, the judge had arrived at too high a figure before applying the appropriate discount for a plea of guilty. 12. We are not persuaded by those submissions. Although this very experienced judge did not indicate the precise figure he had in mind to take account of the identified aggravating features, it is quite clear from his sentencing remarks that he increased the starting point of 15 years to 18 years to take account of those factors. Mr Peacock very properly accepted that that was so. In our judgment, an increase of 3 years in the starting point to take account of the identified aggravating features was entirely appropriate and cannot be faulted. In our view, the judge was entirely right to reject the submission, repeated in this court, that the aggravating features were minimal in nature. They plainly were not. For those reasons, therefore, this appeal is dismissed. 13. LORD JUSTICE PILL: Thank you, Mr Peacock.

2008_04_04-1446.xml

dismissed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/838/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/838

c7832709e304166b8ff7671e9e8221b496a8ab02dd9cbbf1b153bfe5b238c859

[2023] EWCA Crim 1084

EWCA_Crim_1084

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 1084 IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202301545/A1 Royal Courts of Justice Strand London WC2A 2LL Wednesday 2 August 2023 Before: LORD JUSTICE DINGEMANS MR JUSTICE GOOSE MRS JUSTICE FARBEY DBE REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 REX V YUSEF MOHAMED __________ 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 A RICHARDSON appeared on behalf of the Attorney General MR N MAJID appeared on behalf of the Offender _________ J U D G M E N T LORD JUSTICE DINGEMANS: 1. This is the hearing of an application for leave to refer sentences which His Majesty's Solicitor General considers to be unduly lenient. 2. The respondent, Mr Mohamed, pleaded guilty to two offences of robbery and one offence of unlawful wounding on 20 February 2023 in the Crown Court at Cardiff. He was of previous good character and was entitled to full credit for his pleas. 3. On 12 April 2023 he was sentenced by the Recorder of Cardiff to an overall sentence of four years eight months, made up of concurrent sentences of three years four months' imprisonment for the first count of robbery, four years eight months' imprisonment for the second count of robbery and two years' imprisonment for the unlawful wounding. A sentence of four years eight months with full credit was the equivalent of a sentence of seven years after trial. 4. It is submitted on behalf of the Solicitor General that the overall sentence was too low. The judge should have characterised this as a Category 1 and not Category 2 offence. There should have been a greater uplift for aggravating factors and for the second offence. 5. It was submitted on behalf of Mr Mohamed that the sentence was not too low. There had been full credit for pleas, there was substantial personal mitigation and the sentence had been correctly calculated. 6. We are very grateful to Mr Richardson and Mr Majid for their helpful written and oral submissions. The factual circumstances 7. The first robbery took place on 22 November 2022 when the victim, a 77-year-old lady whose name it is not necessary to give, visited the Les Croupier Casino at Leckwith Retail Park. She attended the casino alone and gambled there through the evening. She won £850 during the course of the evening and CCTV footage shows her collecting those winnings and being observed by Mr Mohamed who was standing behind her in the queue. 8. The victim left the casino at about 5.00 am and travelled back to her home in Barry. She was followed on the journey by Mr Mohamed who was driving his own taxi. When the victim arrived at her home, she parked her car outside her front door. She got out of the car and was confronted by Mr Mohamed who forcefully grabbed her handbag. He then ran back to his vehicle and drove away. The victim's handbag had contained £850 in cash, a mobile telephone, her glasses, her keys and other items. As her keys had been taken she had to knock on the door of her house to be let in and her husband was able to let her in. 9. The second robbery and the unlawful wounding took place on 8 January 2023 when the victim attended the same casino. She left at about 3.45 am and was again followed by Mr Mohamed to her home. On this occasion what transpired was seen on CCTV that had been installed at the victim's home following the robbery on 22 November 2022. We have been shown the footage this morning very helpfully by Mr Richardson. The footage shows that Mr Mohamed approached the victim outside her front door in what appears to be a sort of car port. Her bag was over her shoulder. Mr Mohamed grabbed the bag and the victim was pulled to the floor. The victim was then dragged along the floor by Mr Mohamed until she released the handbag and Mr Mohamed ran away. As a result of being pulled to the floor the victim sustained a wound above her left eyebrow which required at least six internal stitches and 14 external stitches and she suffered a fracture to her thumb. The victim has been left with a permanent facial scar and we have seen photographs of that. 10. In the morning of 8 January 2023, Mr Mohamed was arrested. His car was searched and the victim's car key and mobile phone were recovered. He was interviewed and he stated that he worked as a mini-cab driver and had been working on 7 to 8 January but could not remember what time he started. He then answered no comment. The sentence 11. Mr Mohamed is a 38-year-old man who was of previous good character. He lived with his wife and mother, both of whom had health issues and were dependent on him for care. Mr Mohamed had started a restaurant business which had failed and he had developed a persistent gambling habit after suffering a family bereavement. There were numerous character references provided on behalf of Mr Mohamed talking about his qualities as a friend and neighbour and his remorse. The pre-sentence report identified that there was an element of minimisation of his offending but the judge found that there was genuine remorse. 12. A victim personal statement outlined the effect of the offences on the victim. She was scared and anxious. She had lost a camera containing family photos. She felt petrified by the second attack and described the painful medical treatment for her hands and face. She spoke of being withdrawn, nervous and depressed. She now slept with the light on and would only go out with a family member. She would not return to the casino. She was worried that Mr Mohamed might attack her again after release. 13. At the sentencing hearing below prosecution counsel provided a note which submitted that for the purposes of the sentencing guideline the two robbery offences fell within harm Category 2 and culpability Category B. The note submitted that the unlawful wounding offence fell within Category 3 and Culpability A of the offence-specific guidelines. 14. At the sentencing hearing itself, different prosecution counsel submitted that the harm in count 2 (the second robbery) in fact fell within harm Category 1. Defence counsel submitted that the categorisations in the previous note were correct and that count 2 should fall within Category 2 harm. 15. When sentencing, the judge said that she would pass a lead sentence in respect of count 2 with an uplift to reflect counts 1 and 3. She found that count 2 fell within Culpability Category B because none of the Category A or C matters applied. The judge found that harm was less easy to categorise, noting that the victim had a scar and she was caused significant psychological harm. It sat, the judge found, on the cusp of Category 1 and 2. The judge found that the offending was aggravated by the fact that the offender targeted a vulnerable victim for a second time in relation to count 2, there was some planning (albeit not significant planning) and the fact that the offending took place outside the victim's home address. 16. The judge found that the offence was mitigated by the previous good character and took into account the fact that the offender was the sole primary carer for dependant relatives. The judge indicated that after a trial the sentence passed on count 2 would have been one of seven years. Allowing a one-third credit for guilty pleas the sentence was four years eight months. In relation to count 1 the sentence after trial would have been five years. With credit for plea that was reduced to three years four months. In relation to count three, the offending fell within Culpability A and harm Category 2. The sentence after trial would have been three years and a one-third credit brought it down to two years. The sentences on counts 1 and 3 were concurrent with count 2 because the overall sentence of seven years reflected all of the criminality. 17. Since sentence, a prison report has been made available to this court which shows that Mr Mohamed has been a model prisoner and his risk of re-offending is very low. Mr Mohamed is struggling with the fact that because of the length of his sentence he cannot be considered for home detention curfew. The offence-specific guideline 18. The guideline provides three culpability categories: A, for high, B for medium and C for lesser culpability and three harm categories: 1, 2 and 3. It was common ground that the offence was Culpability B and it is therefore not necessary to set out the categories, although Mr Richardson submitted that the judge's approach to Culpability B had been generous. In our judgment, in circumstances where the judge needs to be sure of a higher culpability factor before sentencing for that category, the judge approached the guideline in relation to culpability properly. 19. The dispute lies in relation to the harm categories. Harm Category 1 applies where there is serious physical and/or psychological harm caused to the victim or a serious detrimental effect on the business. Harm Category 2 applies where there is a case where characteristics for Categories 1 or 3 are not present. Harm Category 3 applies where there is no or minimal physical or psychological harm according to the victim and no or minimal detrimental effect on the business. 20. Category B1 has a starting point of five years and a range of four to eight years. Category B2 has a starting point of four years and a range of three to six years. It is notable that the starting points of Category B1 of five years and Category B2 of four years are very close together. The appropriate sentence 21. In our judgment the judge adopted a permissible approach in treating count 2 as the lead offence and increasing that sentence to reflect all of the criminality, having regard to the Sentencing Council Guideline on Totality and issues of proportionality. 22. In our judgment, the issue of whether the second offence of robbery was Category 1 or Category 2 was finely balanced and although the scar could have been described by some judges as serious physical harm, the judge was entitled to find that it was on the cusp of the two categories. That would give a starting point of four-and-a-half years for count 2, being halfway between Category 1B (five years) and Category 2B (four years). That starting point needed to be increased to reflect the aggravating factors of planning, targeting an elderly victim, following the victim to her home, the fact that the offending took place at night and the location of the offending outside the victim's home. There were important mitigating factors of previous good character, remorse and the fact that Mr Mohamed was acting as a carer for his wife and mother. Some judges may have considered that they balanced out, others may have taken the aggravating factors to lead to a slight increase on the four-and-a-half year period. 23. There then needed to be an increase to reflect the separate criminality and harm of the robbery on count 1, which was the first robbery, and the unlawful wounding, while being careful to avoid double-counting the physical and psychological factors before discounting for totality. In our judgment we are unable to say that an increase of two years six months, if aggravation and mitigation balance out, or two years if aggravating and mitigating factors had led to an increase of the starting point to five years for the other offending, having regard to principles of totality and proportionality was unduly lenient. It might have been merciful, it might have been lenient, but it was not unduly lenient, and we refuse leave to make the application. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk

2023_08_02-5784.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1084/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1084

bf36cd0fedb864bf0ac4d2a6b9c798e167f3475d162b17e53a9c6246bbb45747

[2007] EWCA Crim 3281

EWCA_Crim_3281

crown_court

Neutral Citation Number: [2007] EWCA Crim 3281 Case No: 2007/4797/A6 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 11 December 2007 B e f o r e : LORD JUSTICE LONGMORE MR JUSTICE BLAKE SIR CHRISTOPHER HOLLAND - - - - - - - - - - - - - - - - - - - - - R E G I N A v DAVID JOY - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Flee

Neutral Citation Number: [2007] EWCA Crim 3281 Case No: 2007/4797/A6 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 11 December 2007 B e f o r e : LORD JUSTICE LONGMORE MR JUSTICE BLAKE SIR CHRISTOPHER HOLLAND - - - - - - - - - - - - - - - - - - - - - R E G I N A v DAVID JOY - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr G Purcell appeared on behalf of the Appellant Mr J Eley appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE BLAKE: On 30th April 2007 at the Crown Court at Leicester this applicant pleaded guilty to 11 counts of offences connected with indecent photographs of children. Counts 2 to 5 alleged making indecent photographs of children. The other counts were of possession. On 13th August 2007 he was sentenced to two years' imprisonment concurrent on each of the counts of possession and a sentence of imprisonment for public protection on the counts of making indecent photographs. Those sentences were imposed by His Honour Judge Pert QC. 2. There are problems with that sentence. If the applicant is a dangerous offender and therefore liable to a sentence of imprisonment for public protection, then the sentence for the offences of possession should have been an extended sentence with a custodial term and an extended licence period. However, the first question that now arises before this court is what should the sentence have been for counts 2 to 5? 3. We are told that there were 1,130 images discovered when this applicant's premises were visited by the police in January 2006. However, we have been told this morning that a somewhat smaller total formed the counts that were before the court, namely some 744. In any event, only a small number of this total were at Levels 4 and 5 -- two at Level 4 and fifteen at Level 5 applying the classification approved by this court in the case of Oliver [2003] 2 Cr.App.R (S). 4. The allegations were personal possession or use of such images and there was no allegation that this appellant was connected to the production of the images in the sense of taking the photographs of the children or distributing them or indeed storing them in a manner that could be available for other people. We will return to the sentencing guidelines of this class of case in one moment. 5. The learned judge was led to believe that a number of the offences had been committed after the coming into force of the Criminal Justice Act 2003 in April 2005. However, there was no clear basis for that conclusion revealed in the indictments which allege an offence between 1st January 2000 and 24th January 2006, the latter date being the date when the applicant's premises were visited by the police. Again the opening remarks of prosecuting counsel did not help the learned judge. They were to the effect that the Crown could not say how the images got onto the computer, let alone when, and a generic statement that some can probably be shown to be made after the relevant date seemed to have been considered sufficient to give the court jurisdiction to consider the dangerousness provisions under the Criminal Justice Act 2003 . Such an approach is no longer permissible as this court has made plain in Harries [2007] Crim LR 820, [2007] EWCA Crim. 1622 at paragraph 11. 6. Before this court we have been assisted by the agreement between counsel for the applicant and counsel for the prosecution that of the five counts of making an indecent photographs of a child. Only count 3 was committed after 4th April 2005. It is only the counts which allege making that are scheduled offences that are serious. Thus the court is faced with one count of making indecent photographs of a child after the coming into force of the Criminal Justice Act 2003 and the particulars of that count are a large number of photographs at Level 1 and 29 at Level 3. That, however, means that section 225 of that Act has to be considered. That provides: "(1) This section applies where— (a) a person aged under 18 is convicted of a serious offence committed after the commencement of this section, and (b) the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences." Serious harm is defined in section 224(3) as meaning death or serious personal injury, whether physical or psychological. As indicated, making indecent images is a specified offence and a serious offence because it is punishable with up to 10 years' imprisonment. 7. So much for the offending behaviour itself. This applicant has previous convictions for sexual activity. They are summarised in the advice of his counsel appearing before this court today. In 1980 there were five counts of indecent assault on a female. In November 1984 there were counts of publishing an obscene article and sending an obscene article through the post. In 1996 there were two counts of indecent assault on a male under 14, two counts of indecent assault on a male under 16 and a count of showing indecent photographs or pseudo photographs of children, for which he was sent to prison. It is pointed out by the applicant and his counsel that those indecent assault offences for which he was sent to prison in 1996 had occurred in 1983 and that does mean that when he fell to be sentenced for the present offence, there was some period of 24 years when he had not been found guilty of any offences of indecent assault on children. 8. It is apparent from what the applicant told those who were charged with making reports for the assistance of the court who sentenced him that in the 1980s the applicant was involved in a paedophile group and those offences were conducted in the light of his beliefs about sexual behaviour of young people, behaviour and activities of that range of people. He had expressed his views to those who interviewed him, which the judge rightly regarded as many would regard as abhorrent. However, in fairness to the applicant it is right to say that he expressed those views to those making the reports by way of a full and frank engagement of his sexual history, sexual behaviour and sexual activity and in order to make the point that his sentences for his past sexual offences had led him to undergo successfully sexual offender courses which he had completed and that he had come away with a changed perception about sexual activity with children that deal with indecent assaults. 9. Nevertheless, those past offences do mean that the court has to treat the question of whether there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences in the light of a statutory presumption contained in section 229(3) because he is over eighteen and he had been convicted of one or more relevant offences. The court therefore must assume that there is the risk unless after taking account of all information about the nature of the offences and the behaviour of the individual and the information about the offender, it considers it to be unreasonable to conclude that there is such a risk. 10. Therefore the court is faced with the difficult task of only one offence of downloading an image from the computer, at Level 1 and Level 3, which engages the imprisonment for public protection provisions of the Criminal Justice Act. Otherwise this would be purely personal conduct for which the Sentencing Guidelines Council, following Oliver , indicate that the starting point for possession of a small number of images at Levels 4 and 5, and possession of a large quantity at Level 3 for personal use, in the case of a contested trial and an offender without significant previous convictions, would be 26 weeks' custody. Four weeks to 18 months would be the range of sentencing. Even if it was a large quantity of material that had been retained for personal use, the starting point would still be 12 months' custody and the range 26 weeks to two years' custody. 11. We appreciate that there has been some difficulty and some controversy in other cases in linking the question of future dangerousness and any reoffending by this offender to causing harm to others simply by looking at images, rather than a breach of trust in the way they are made, distributed or used. However, in our judgment applying the statutory test, we do not consider it would be reasonable on the facts known to us about this offence and this offender to draw the conclusion that there is a significant risk of this offender causing serious harm in the form of personal injury, whether physical or psychological, to other persons. Such a causative link must be established as well as any risk of general reoffending as this court has made plain in the case of Lang [2005] EWCA Crim. 2864 . 12. We therefore conclude that it is not possible and not necessary to impose a sentence of imprisonment for public protection on count 3 and this applicant falls to be sentenced to a determinate sentence of imprisonment for his wrongdoing. 13. We then take account of the guidance of the Sentencing Guidelines Council about this class of offence, published in April 2007, recognising that by reason of his previous convictions in the past for interest in indecent photographs of children, as well as other sexual offences connected with children, that a significantly higher starting point than 26 weeks custody is appropriate. Even imposing the top end of the range of 18 months on a contested case and giving full credit to the applicant for his plea of guilty at the earliest opportunity, we conclude that the appropriate sentence in this case should be one of 12 months' imprisonment. 14. This application is therefore allowed. We treat the hearing of the application as the hearing of the appeal. We set aside the sentences imposed below and on each of the counts we impose a sentence of 12 months' imprisonment concurrent. 15. MR PURCELL: My Lord, that gives rise to one ancillary matter with regard to the notification requirements under the Sexual Offences Act. I believe being sentenced to a term of imprisonment of less than 30 months, from memory the period to which the appellant is to comply with the notification requirements would be five years. I may be wrong. It may be seven year. Can I please check. 16. LORD JUSTICE LONGMORE: We are told 10 years. What was the existing notification? 17. MR PURCELL: Previously it was for life, my Lord. 18. MR JUSTICE BLAKE: In the light of the variation of sentence we have just made we will vary the notification requirement from life to one of 10 years.

2007_12_11-1308.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/3281/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/3281

ae5343be07f5ba74956d400386e333d175d334143c912d45d91a63144deb22c7

[2019] EWCA Crim 536

EWCA_Crim_536

crown_court

Neutral Citation Number: [2019] EWCA Crim 536 No: 201801850/C3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 22 March 2019 B e f o r e : LORD JUSTICE DAVIS MR JUSTICE GOSS HER HONOUR JUDGE WILLIAMS (Sitting as a Judge of the CACD) R E G I N A v LESLIE PETER BAINES 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

Neutral Citation Number: [2019] EWCA Crim 536 No: 201801850/C3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 22 March 2019 B e f o r e : LORD JUSTICE DAVIS MR JUSTICE GOSS HER HONOUR JUDGE WILLIAMS (Sitting as a Judge of the CACD) R E G I N A v LESLIE PETER BAINES 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 Harrington QC appeared on behalf of the Appellant Mr P Lewis QC appeared on behalf of the Crown J U D G M E N T (As Approved by the Court) 1. LORD JUSTICE DAVIS: Introduction This appeal against a conviction for murder, brought by leave of single judge, is essentially based on an argument that the trial judge gave inadequate directions to the jury as to the inadmissibility as evidence of certain materials which had been referred to at an earlier stage of the trial. In addition, certain complaints had been made as to a procedural and disclosure matter which had occurred during trial. However, those particular complaints have not been pursued formally as a renewed ground of appeal today, the single judge having rejected that ground on the papers. Background Facts 2. The background position is this. On 26 April 2018, after a trial in the Crown Court at Mold before Lewis J and a jury, the appellant was convicted of murder. In due course he was sentenced to life imprisonment, as required by law. The judge specified a minimum term of 26 years less time spent on remand in custody. 3. There had been a co-accused at the trial, a man called David Woods. On the fourth day of trial, after the opening speech of the prosecution and after some aspects of the prosecution evidence had been adduced, he pleaded guilty to the count of murder. He had previously also pleaded guilty to a count of doing an act intending to pervert the course of public justice. He having pleaded guilty during the trial to the count of murder, the judge formally required the jury to convict him, which they did. Woods was himself sentenced to custody for life and in his case a period of 27 years less time spent on remand in custody was set by the judge. 4. The background facts, very briefly summarised for present purposes, are these. 5. On 29 May 2017 Matthew Cassidy, who was aged 19, was stabbed in the stairwell of a block of flats in Connah's Quay. It was likely, given the evidence, that he was initially stabbed on the ground floor and was then chased by his assailants into the building and up the stairs. He was stabbed at least nine times, with the fatal knife injury penetrating his heart causing internal bleeding. 6. There were no eyewitnesses to the fatal attack. However, two men had been seen by a neighbour leaving the block moments before the deceased was found. 7. Woods was arrested on 1 June 2017. He provided a prepared statement denying any involvement in the murder. He was charged with murder and remanded into custody at HMP Altcourse. He then became the subject of covert surveillance. In the course of conversations in which he participated whilst in custody, as recorded, the first being on 12 June 2017, he made admissions that he had been involved in the murder. He also, however, made statements which implicated the appellant. Later, during that summer, Woods contacted the police stating that he had evidence that would show that it was the appellant who had committed the murder; and he provided a telephone purporting to show calls made by the appellant which would indeed incriminate the appellant. However, subsequent forensic examination revealed that that telephone evidence had in fact been fabricated at the behest of Woods. That was to lead to the count relating to perverting the course of justice. 8. So far as the appellant was concerned, he was arrested on 24 June 2017. He at that stage provided a prepared statement denying that he had been involved in the murder. He was released on bail but was re-arrested on 10 October 2017 and was then charged with murder. 9. In interview, he admitted that he had seen Woods on the night in question. He said that that was at the address of a woman called Tinson, where a number of people had assembled in order to purchase drugs. He said that he had been buying drugs from Woods. He said that Woods had been injured to his hand (as indeed he had been) and had admitted stabbing "the lad". The appellant was also to say that he himself had been to the block of flats a number of times in the past. The trial 10. The trial started on 11 April 2018. The prosecution was represented, then as now, by Mr Paul Lewis QC, leading Ms Owen. In the course of his lengthy opening speech, Mr Lewis made express and quite extensive reference to the covert recordings of Woods whilst in prison. At that stage the jury bundles also included transcripts of the recorded conversations in which Woods had, among other things, purportedly implicated the appellant in the murder. Furthermore, Mr Lewis made brief reference to the defence case statement of Woods which was to similar effect. 11. The prosecution case was that the two men seen leaving the block were the appellant and his co-accused, Woods. The motive for the attack lay in a dispute about the sale of Class A drugs in the local area, Cassidy being identified as being involved in drug dealing in the local community. In effect this had been the upshot of a turf war. There was undoubtedly extremely strong evidence against Woods. That included CCTV footage of his movements, telephone call data linking him to drug dealing and to other significant parties, and DNA material linking him to knives which had been used in the attack and which had been subsequently retrieved. There also was, amongst other things, evidence showing his efforts to obtain hospital treatment at the time for injuries to his hand. 12. So far as the case against the appellant was concerned (and again for present purposes we put it very shortly) the prosecution in particular relied upon CCTV footage showing the movements of both the deceased and Woods, evidence of a man called Wright about purchasing drugs from Woods and descriptions of him, and the eyewitness evidence of the neighbour, a Mr Power, indicating that two men had been seen leaving the scene. Further, reliance was placed on scientific evidence providing "moderately strong" support for a link between a pair of the appellant's trainers and footwear marks in the blood and mud left at the scene. Further, DNA material had been recovered from the upper surface of the trainers that matched with the DNA of his co-accused, Woods. There was also CCTV footage showing that the appellant was in the area close to the flats where the murder took place. Further there was CCTV footage showing the appellant returning to his mother's home almost immediately after the incident and emerging twice from that home having changed his clothing on both occasions. 13. The defence case, in a nutshell, was that the appellant had not been present or involved in the attack on the deceased by Woods. It was unsurprising that his movements were in the locality, because that is the locality where he lived. As for the change of clothing, that was because it had been raining heavily and he had become wet. He had seen Woods after the assault and had bought drugs from him; and that would explain the DNA material on his shoe linking him to Woods. Further, it was said that Woods had been boasting at Ms Tinson's house about how he, Woods, had "done him". Moreover, the neighbour's description of the two men, whilst reasonably accurate so far as Wood was concerned, so far from identifying the appellant as being one of the men in fact contained positive and significant discrepancies between the man that Mr Power had described and the actual appearance of the appellant. Indeed Mr Power never claimed to have seen either of the two men from the front. Moreover, the defence were in a position to point out that there was no DNA evidence of any kind linking the appellant to the deceased or to the knives or to the scene of the killing. 14. A submission of no case to answer was made at the end of the prosecution case. That was rejected by the judge; and no challenge to that decision of the judge to reject the submission of no case to answer has (understandably) been pursued by way of appeal, although Mr Harrington QC (appearing then, as now, for the appellant) has asserted to us that the case was not a strong one. The jury thus were left to decide whether the appellant had been present and participated in the attack on the deceased with the necessary intent. 15. The appellant himself gave evidence setting out his own position in some detail. He was to say, amongst other things, that he had not known Cassidy and had never heard of him. He entirely denied having anything to do with the killing of Cassidy. He also described how, amongst other things, at the subsequent meeting with Woods and the other drug users Woods had a tea towel wrapped round his hand which was bleeding and how Woods had told him that he had been slashed when he had "done someone". 16. The defence therefore was one of denial of presence and of involvement. It is plain, however, from the verdict of the jury that the jury had not believed the evidence of the appellant and had been made sure of guilt on the evidence presented by the prosecution. 17. There, it might be thought, matters would have rested. The responsibility of deciding on guilt was that of the jury and the jury; had shown what they had made of the evidence by the verdict which they pronounced. 18. However, complaint is made as to the judge's directions as a result of what happened after Woods had pleaded guilty on the fourth day of trial. What is said is that the judge failed sufficiently to instruct the jury as to what they were to do with the statements which had been made in open court prior to Wood's guilty plea. As we have said, Mr Lewis, in his opening speech, had made quite extensive reference to the transcripts of the conversations as recorded on the part of Woods whilst in prison: and part of those transcripts indicated comments by Woods that the appellant had been implicated in the killing of Cassidy. 19. The position was this. When Woods indicated his change of plea there was consideration, inevitably, as to what would then ensue. Mr Lewis, very fairly, informed Mr Harrington at the time that he would not oppose any application for discharge the jury and for a retrial. The judge himself had made preliminary enquiries in this respect and it was indicated that a fresh jury panel could be convened in Mold Crown Court for the following day. However, having considered the position, the defence team (with the concurrence of the appellant) took the decision, a tactical decision, that no application to discharge would be made. The trial accordingly proceeded as against the appellant alone, in front of the same jury. 20. One factor, as Mr Harrington has told us, which influenced that decision was that the behaviour of Woods thus far during the trial had apparently been appalling. That may well have caused the jury not at all to associate themselves with his position and it was considered that that might in turn redound to the advantage of the appellant - a perfectly understandable tactical consideration. We will come on in a moment to what else seems to have prompted the defence team's thinking. 21. At all events, the matter had been discussed with the judge in the absence of the jury. He was told that there was no application to discharge. By the following morning all the materials, relating to Woods, including transcripts of what Woods had said in prison and the Defence Case Statement, had been removed from the jury bundle. The judge then addressed the jury in the following way: "Well good morning members of the Jury, thanks again for being so prompt. We are now ready to continue with this trial. As you know you found Mr Woods guilty yesterday, but the Co-Defendant, Mr Leslie Baines, is still in your charge and we have to continue the trial that we have already started. We'll carry on now with the evidence. You may notice that some of the material in the bundle that you had has been removed because they related to Mr Woods and they do not relate to Mr Baines, so we have taken that out. So if you are wondering why there are gaps that is the reason why. The index will be amended in due course. So now we are ready to carry on with the evidence in trial of Mr Baines ..." No one requested the judge to say anything more than that at that stage and no further or supplemental direction was requested by counsel to be given by the judge. The trial then proceeded. 22. In the course of his closing speech to the jury Mr Harrington then made an allusion to the appellant having first come under suspicion on 12 June 2017 as a result of the recorded conversation of Woods. As we gather, Mr Harrington had not explained in advance to judge or prosecution that he had been proposing to make this reference in this way as he did. 23. In the absence of the jury, Mr Lewis then made objection to what Mr Harrington had said. First, in point of fact, the appellant had come under suspicion on 1 June and not only after the 12 June. Secondly, objection was made that Mr Harrington, in saying what he had said, had relied on matters which were in truth not in evidence: because at no stage during the trial had the recorded telephone conversations of Woods been adduced in evidence before the jury. Indeed, the transcripts had been entirely removed from the jury bundle and, rightly, those conversations had not been referred thereafter in evidence. 24. This matter having been raised before the judge there was then some detailed discussion. Ultimately, a form of wording was agreed between judge and counsel. The judge, faithful to that form of wording as agreed, then when he came to sum-up on the evidence towards the end of his summing-up included this passage in the agreed form: "Finally, Mr Harrington also made submissions to you saying that Mr Baines was not a suspect in the police investigation into the murder of Mr Cassidy until such time as David Woods mentioned Mr Baines' name to his family and friends during conversations that were covertly recorded in prison visits at HMP Altcourse. Mr Harrington also said that thereafter Mr Baines only became a suspect because of what David Woods had then said about him. In making those submissions, Mr Harrington was in error. It is accepted by everyone that Mr Harrington submissions, although wrong, were inadvertent and were made in good faith. Nonetheless, it is important that the position is corrected and you do not proceed to consider the evidence upon an erroneous basis. So, that members of the Jury, is the summary of the main points of the evidence." The judge then made some brief concluding remarks and the jury retired. 25. A few minutes after the jury retired they sent in a note. This was, quite rightly, discussed by the judge with counsel. The question in the note was as follows: "Is the conversation reported in Altcourse, of David Woods, available in evidence?" The judge having read that out to counsel, the judge's comment was "and the answer is no": with which Mr Harrington and Mr Lewis agreed. The judge then said: "Because it is not. So I will just say, no, no they have heard all the evidence. And that was not in evidence, so the answer is no. OK, do you want to bring the jury in..." 26. No further direction was suggested to the judge as being appropriate and no supplement to what he had indicated that he would say was requested. In fact, the judge went a little further than what he had just said because when the jury came in the judge said this. Having referred to the note and set out its terms, he then went on: "And the answer is, no, it is not. It is, as you probably knew, it was not adduced in evidence, and you have simply got to go on the evidence that you have heard in this Court. But thank you for sending me the note, but the answer is, no, it is not in evidence. And now you go back and carry on your deliberations." 27. In the result, as we have said, the jury convicted. Grounds of Appeal 28. As part of his background complaints, Mr Harrington had to some extent protested about the procedure that had been adopted with regard to identifying precisely when the appellant had first come under suspicion. At one stage he seemed to criticise the prosecution for not having given disclosure prior to trial of the date on which the appellant first came under suspicion, although he has throughout always been moderate in any criticism which might be made. 29. However, we agree with Mr Lewis that there was no failure on the part of the prosecution in this regard, of any kind, and there is no criticism available. The date on which the appellant first came under suspicion was not a matter which of itself would tend to advance the defence case or undermine the prosecution case. Mr Lewis further said, and of course we accept it, that had the defence only asked, at any stage, about the time at which the appellant had first come under suspicion then of course the defence would have been told. But no such request was made; and Mr Harrington said what he said in his closing speech, as Mr Lewis submitted, simply on the mistaken assumption that suspicion had first fallen on the appellant on or after the 12 June, without first checking that with the prosecution. 30. In those circumstances there can in our view be no criticism of the procedure which the judge adopted. Some complaint was, however, made as to the ensuing discussion with and disclosure to the judge (in the absence of the jury) with regard to the date on which the appellant first came under suspicion. It is sufficient to say that all that happened was done openly; the judge was at no stage incorrectly informed as to the correct date on which the appellant first came under suspicion; and no injustice of any kind was occasioned to the defence by the way in which the matter was - relatively informally - dealt with, in the absence of the jury, by the judge. Indeed, as we have said, it resulted in the judge giving a further direction to the jury in the summing up in agreed form. 31. Before us today Mr Harrington has placed considerable emphasis on what he says is the impact of this point upon the defence's prior decision not to seek a discharge of the jury. He has said that had the defence team appreciated from the outset that the suspicion had fallen on the appellant on the 1 June 2017, that would have influenced them in deciding to seek the discharge of the jury; and it is more than likely that such an application, if made, would have been acceded to by the trial judge. He says that a wrong decision on the part of the defence in this regard was made; and that should not be visited upon the appellant himself. 32. With all respect, we do not think that that is a point now open to the appellant. The tactical decision was made at the time not to seek to discharge the jury. One reason for that given, namely the manner and demeanour of Woods during the trial, was an entirely understandable part of the thinking. But Mr Harrington has sought to say that another part of that thinking was the perception of the defence that they could make something out of the fact, as they thought it was, that the police had only felt they had a potential case against the appellant as a result of what Woods had said in prison and where Woods plainly was now identified as a man whose word could not be relied upon in any respect. 33. With respect, we do not think that would have been a legitimate line of reasoning. What Woods had said in prison could only be material if it was in evidence. It was not in evidence. True it was that it had been referred to by Mr Lewis in his opening speech. But Mr Lewis had at the time made clear, as the judge also subsequently made clear in a general direction in the summing up, that nothing that counsel said in speeches was evidence. The trial throughout certainly was conducted on the footing, quite rightly, that those conversations never became evidence. It follows, therefore, that it is difficult to comprehend how it was that such conversations in prison could be used as a basis for influencing the decision whether or not to apply for a discharge. In fact, since they were not in evidence Mr Harrington strictly could and should not subsequently have relied upon them or referred to them at all in his closing speech: precisely the point about which Mr Lewis, understandably, complained at the time. 34. At all events, if this perception of matters did impact upon the defence decision not to seek a discharge, that was simply one of the consequences of the stance that they took. But in it certainly was not through any misleading by the Crown; and, on the contrary, this was simply based on the defence's own assessment of the position. This court cannot go behind a tactical decision not to apply for a discharge at this stage in those circumstances. It would be wrong in principle to do so. In any event, if it be relevant, just because the jury subsequently convicted does not mean that the decision necessarily was a wrong one. 35. We should also add that to the extent that Mr Harrington frankly engaged in a degree of self-criticism in this regard he confirmed to us, on our query, that he has felt able to continue to act on this appeal and that his client had confirmed his instructions to do so. 36. The actual ground on which leave was granted and which has been pursued before us nevertheless focuses on the way in which the judge dealt with the matter once Woods had pleaded guilty. We have already set out what the judge said to the jury at the time when the relevant documents relating to Woods had been removed from the jury bundle. As we see it, whilst some judges perhaps might have said more, the judge said enough at that stage. It is also noteworthy that no one requested him to give any more detail in his remarks to the jury at that stage. We add that Mr Lewis in his opening speech, during which he had made extensive reference to the transcripts of the phone conservations as recorded of Woods whilst in prison, had himself also stated to the jury the (correct) proposition in law that anything said by one defendant in the absence of another defendant could not count as evidence against that other defendant. True it is that that was an observation from the Bar and not from the Bench; nevertheless, the fact is that that the jury had themselves been so told at that time. 37. Thereafter, when the judge came to sum-up, quite properly the judge made no reference to the contents of the telephone conservations until he came to the stage where he had to correct Mr Harrington's inadvertent mistake. On the contrary, in the earlier part of his summing-up, the judge had made quite clear that the jury were to focus only on the evidence before them. He also said this: "Now, as I explained at paragraph 11, there is no direct evidence here that Mr Baines committed the crime that he is charged with. There is no evidence from an eyewitness saying they saw him do it and there is no evidence that he confessed to the crime so what the Prosecution rely on is what is sometimes referred to as circumstantial evidence." A little later on the judge said: "As I say, you must decide this case only on the evidence that has been put before you in this trial, there is not going to be any more evidence." The judge, we add, had also given the jury detailed directions in law in writing and had given them a detailed written route to verdict. So the jury were left quite clear by the summing-up, if they had not already been clear, firstly, that there was no direct evidence against the appellant and secondly, that the jury could only rely upon the evidence adduced before them in court. 38. No criticism, in those circumstances, can be made of the summing-up in not saying more about the status of the telephone conversations of Woods; indeed it was entirely sensible and right that the judge should have steered clear of that to avoid drawing attention to a point which was not in evidence. The only occasion on which the judge referred to it was one which he necessarily was required to deal with, namely the correction of leading counsel's closing speech. It is in fact rather ironic that this criticism now made of the judge for failing to instruct the jury more specifically that such recorded conversations could not be relied upon at all as evidence against the appellant only arose because of defence counsel's own attempts to refer to such conversations in his closing speech. 39. Mr Harrington says: well that may be so, but the fact of the jury note, put in so shortly after they retired, showed that the jury may still be under a misapprehension and the point needed sorting out with the utmost clarity and specificity. We think it is in fact likely that the jury put in that note as and when they did just because the judge had been required towards the end of his summing up to refer to the conversations of Woods in the passage correcting what Mr Harrington had said in his closing speech. But the point remains that the jury were seeking confirmation in effect as to whether or not those conversations were available as evidence; and they were told absolutely specifically by the judge that they were not. The jury could have been under no illusion to the contrary. In such circumstances, we do not accept Mr Harrington's submission that the jury may have relied on inadmissible materials and that the conviction is unsafe accordingly. In our view the judge had said entirely sufficient to make the position clear: and it is also noteworthy that neither counsel had asked him to say more. The jury would thus have well known that those conversations were not to be regarded as any form of evidence available to them to take into account in their consideration of the case against the appellant. 40. In such circumstances, whilst it may be that some judges might perhaps have said a little more at the first stage when this arose (that is to say, when Woods had pleaded guilty), the judge was not required to say at that time more than he did. The point thereafter was in any event put beyond doubt by the way in which he dealt with the jury note. In such circumstances, we do not see any basis for the various points and grounds of appeal advanced before us, skilfully and eloquently though they were put by Mr Harrington. We see no reason, overall, to doubt the safety of the conviction. The jury were not misdirected in any way. They, having heard the evidence, did not believe the evidence of the appellant and did accept the case of the prosecution. Conclusion 41. We therefore 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 42. Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk

2019_03_22-4542.xml

conviction

https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/536/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/536

7710e024ad64774741d52fa040f51b7f7e6cb46f4f96575208d42bd234bac234

[2010] EWCA Crim 309

EWCA_Crim_309

crown_court

Case No: 200906810 B4 Neutral Citation Number: [2010] EWCA Crim 309 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 9 February 2010 B e f o r e : LORD JUSTICE HOOPER MR JUSTICE OPENSHAW THE RECORDER OF CARDIFF - HHJ NICHOLAS COOKE QC (SITTING AS A JUDGE OF THE CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v ELMAR JAMALOV - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave Int

Case No: 200906810 B4 Neutral Citation Number: [2010] EWCA Crim 309 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 9 February 2010 B e f o r e : LORD JUSTICE HOOPER MR JUSTICE OPENSHAW THE RECORDER OF CARDIFF - HHJ NICHOLAS COOKE QC (SITTING AS A JUDGE OF THE CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v ELMAR JAMALOV - - - - - - - - - - - - - - - - - - - - - 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 I KROLICK appeared on behalf of the Appellant MISS M WELLFARE appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE HOOPER: On 8 December 2009 at the Inner London Crown Court, before HHJ Chapple QC, the appellant pleaded guilty to an offence against section 25(1)(a) of the Identity Cards Act 2006 , and to using a vehicle without insurance, and to breach of bail (failure to appear). For the first offence he was sentenced to 6 months' imprisonment; for the second offence to a fine of £200, or in default 7 days' imprisonment, the full payment to made by 1 July 2010. That amount was made up of a fine of £185 and a £15 "victim surcharge"; for the breach of the bail he was sentenced to 1 months' imprisonment consecutive. There is no appeal in respect of the second and third offences. It is agreed that the sentence should have referred to detention in a Young Offenders' Institution and not imprisonment. 2. Before this court, Mr Krolick, who did not appear for the appellant at trial, submits that the conviction is unsafe in that, notwithstanding the plea of guilty, the offence to which he pleaded guilty was not in fact committed. To understand that argument we need to look with some care at the provisions of the Identity Cards Act 2006 . Before we do that we mention the facts very briefly. 3. On 20 December of 2008, the police were called to the scene of a collision on Camberwell Road between the appellant, driving a rented BMW car, and a moped. According to the police officer who attended the scene, "I asked him if he had any identification and he took out a wallet" and produced a driving licence. That driving licence purports to be a driving licence issued in the Czech Republic, but it was in the name of the appellant, Elmar Jamalov. Suspecting the document to be forged, the officer arrested him. 4. The appellant is 21 years old. He was born in Azerbaijan and has no previous convictions. 5. The possession of the false identity document was charged, as we have said, as an offence contrary to section 25(1)(a) of the Identity Cards Act 2006 . The particulars of the offence read as follows: "Elmar Jamalov, on the 20th day of December 2008, had in his possession, or under his control, an identification document, namely a Czech driving licence, that was false and that he knew or believed to be false, with the intention of using it for establishing registrable facts about himself". 6. Section 25(1)(a) provides that: "It is an offence for a person with the requisite intention to have in his possession or under his control an identity document that is false and that he knows or believes to be false." The words "identity document" are defined in section 26 and include a document that is or purports to be a driving licence issued by or on behalf of the authorities of a country or territory outside the United Kingdom. To understand the word "false", one turns to section 25(8) , which provides, in part, that: "An identity document is false only if it is false within the meaning of part 1 of the Forgery and Counterfeiting Act 1981 " There is no doubt that the identity document produced by appellant was "false". 7. Thus, the appellant undoubtedly had in his possession or under his control an identity document that was false and that he knew or believed to be false. The issue, so Mr Krolick submits, is whether or not he had the requisite intention to which section 25(1) refers. The requisite intention for the purposes of subsection (1) of section 25 is defined in subsection (2). It includes: "The intention of using the document for establishing registrable facts about himself". When a person has in his possession or under his control an identity document that is false and that he knows or believes to be false, then he is only guilty of the offence if he has "the intention of using the document for establishing registrable facts about himself". 8. To find out what a registrable fact is, one turns to subsection (5) of section 1 of the Act. In that subsection there are a number of things which are said to be registrable facts. By virtue of subsection (5)(a), one of them is "his identity". That itself is further defined in subsection (7) of section 1, which states that references to an individual's identity are references to: "a) his full name; b) other names by which he is or has previously been known; c) his gender; d) his date and place of birth, and if he has died the date of his death; and e) external characteristics of his that are capable of being used for identifying him." 9. We turn back to the driving licence produced by the appellant. The driving licence gave the appellant's proper name, gave a date of birth which was 14/12/1986, when it should have been 1988; no more, it would appear, than an unintentional error. It also gave what appears to be a place of birth, but there was no evidence before the court as to whether or not he had been born in that place. It is probably safe to assume that he had not been. 10. Miss Wellfare for the respondent, in her helpful skeleton argument, relied on a number of different registrable facts. She said, amongst other things, that one of the registrable facts was the residential status previously held by the appellant. We have some doubt as to whether that is relevant in this case. 11. In our view, this case is, at the end of the day, very simple. The definition of a registrable fact, as we have said, includes a person's full name. We then have to ask ourselves whether or not the appellant had the necessary intention of using the false driving licence "for establishing his identity", namely, his full name. 12. Mr Krolick argued that producing a false document with your correct name did not fall within section 25(1) of the Act. In our view, it clearly does. When asked whether he had any identification, he produced the false driving licence. By his plea of guilty, he was admitting his intention to use the false driving licence for the purposes of establishing who he was. 13. Before leaving the appeal against conviction, we mention that there are other offences which would seem to cover this kind of conduct, see section 173 of the Road Traffic Act and section 3 of the Forgery and Counterfeiting Act 1981 . 14. We wish to make it clear that the prosecution have to show the intention of the person using the document. It is at least open to doubt (and we say no more than that) whether or not his intention was to establish either his date or place of birth. 15. For these reasons, we dismiss the appeal against conviction and turn now to the appeal against sentence. 16. We start with the sentencing remarks. The judge said this: "I look then at the reason why you have a false driving licence. I am sure the reason is that you were not properly permitted to drive in a motor vehicle in this country, but you did so, and if you were stopped you could produce this false driving licence in the hope of deceiving the police". 17. Although Mr Krolick relied upon that passage when submitting that the appeal against conviction should succeed, it is of more importance when considering the appeal against sentence. Mr Krolick put before us the leading case on false identification documents, Ovieriakhi [2009] EWCA Crim 452 . We are particularly grateful to Miss Wellfare, who brought to our attention the case of Zeraj [2009] EWCA Crim 744 . 18. Approaching this case as being the case of a man who, as the judge said, was in possession of the licence so that he could pretend that he was lawfully entitled to drive, the proper sentence seems to us to be one of 4 months' imprisonment. This kind of case would, one expect, normally be dealt with in the Magistrates' Court. 19. For those reasons, we reduce the sentence to one of 4 months' detention on the section 25(1)(a) offence. We leave the sentence for no insurance as it stands, and the sentence for failing to comply with his bail requirements remains at 1 month consecutive. That makes a total of 5 months in all. 20. MR KROLICK: My Lord, can I raise three matters with you. The first is, it does appear in section 5 of the Forgery and Counterfeiting Act of 1981. 21. LORD JUSTICE HOOPER: What are you saying, sorry? 22. MR KROLICK: Your Lordship expressed some doubt about whether an alternative offence came within the section within the 1981 Forgery and Counterfeiting Act. 23. LORD JUSTICE HOOPER: Did I express any doubt about that? I did not mean to express any doubt, I thought that was the clearest. 24. MR KROLICK: Well it was, I thought your Lordship said -- 25. LORD JUSTICE HOOPER: Well, if there is any doubt in the judgment I will make sure it is eliminated. 26. MR KROLICK: My Lord, as far as Hepatitis is concerned, the situation is, although it was, when I was first instructed, a relevant factor, my Lord, I refer to it at the end of my skeleton argument, in fact the Hepatitis infection has all been cleared, he has had blood tests. I indicated -- 27. LORD JUSTICE HOOPER: I am sorry for missing that, I will remove that reference. 28. MR KROLICK: Could your Lordship kindly do so. 29. LORD JUSTICE HOOPER: Yes. Next? 30. MR KROLICK: There is a note from the lawyer from the Criminal Appeal Office that the sentence should not be a sentence of imprisonment because it is an unlawful sentence. 31. LORD JUSTICE HOOPER: It was his age, I do recall it now, it had been mentioned. Quite right. 32. MR KROLICK: I am sorry -- 33. LORD JUSTICE HOOPER: We substitute for the sentence of 6 months' imprisonment, a sentence of 4 months' detention in a Young Offenders Institution. 34. MR JUSTICE OPENSHAW: I think that whoever compiled the records may have been misled by the false date on the driving licence. 35. MR KROLICK: It could well be, yes. My Lord, that is all I would wish to raise. 36. MR JUSTICE OPENSHAW: It shows how important it is not to carry false documents. 37. MR KROLICK: That is unless you wish to appear to be younger than you are, my Lord.

2010_02_09-2263.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/309/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/309

b40f3e986b8f39d2839770e29269949b280f89bf8b842cb3b4284f784efba898

[2021] EWCA Crim 380

EWCA_Crim_380

crown_court

Neutral Citation Number: [2021] EWCA Crim 380 Case No: 201903270 B2 & 202001700 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT OXFORD MR JUSTICE SWEENEY T20187145 Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/03/2021 Before: THE VICE-PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION) LORD JUSTICE FULFORD MRS JUSTICE WHIPPLE DBE and MR JUSTICE FORDHAM - - - - - - - - - - - - - - - - - - - - - Between: Benjamin Luke FIELD Appellant - and - REGINA Responde

Neutral Citation Number: [2021] EWCA Crim 380 Case No: 201903270 B2 & 202001700 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT OXFORD MR JUSTICE SWEENEY T20187145 Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/03/2021 Before: THE VICE-PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION) LORD JUSTICE FULFORD MRS JUSTICE WHIPPLE DBE and MR JUSTICE FORDHAM - - - - - - - - - - - - - - - - - - - - - Between: Benjamin Luke FIELD Appellant - and - REGINA Respondent (Transcript of the Handed Down Judgment. Copies of this transcript are available from: WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7414 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) Mr David Jeremy QC & Mr Paul Wakerley (instructed by Reeds Solicitors ) for the Appellant Mr Oliver Saxby QC & Ms Victoria Ailes (instructed by CPS Criminal Appeals Unit ) for the Respondent Hearing dates: 28 th January 2021 Judgment As Approved by the Court Crown copyright © Lord Justice Fulford V.P.: Introduction 1. This is an appeal against conviction by leave of the single judge. On 21 March 2019, in the Crown Court at Oxford (Sweeney J), the appellant, now aged 30, pleaded guilty to four counts of fraud (counts 4, 8, 9, 10 on the original indictment, “OI”) and two counts of burglary (counts 11 and 12 on the OI). 2. On 9 August 2019, before the same court, the appellant was convicted by the jury of the murder of Peter Farquhar (“PF”) (count 1 on the trial indictment “TI”). 3. He was acquitted by the jury of conspiracy to murder (count 3 TI), attempted murder (count 4 TI) and possession of an article for use in fraud (count 8 TI). Counts 3 and 4 related to Anne Moore-Martin and Count 8 to Elizabeth Zettl. 4. On 18 October 2019, before the same court, he was sentenced to imprisonment for life, and the period of 36 years was specified as the minimum term under section 269(2) Criminal Justice Act 2003. 5. He had two co-accused. Tom Field (“TF”), the appellant’s brother, was acquitted by the jury of one count of fraud (count 6 TI). Martyn Smith (“MS”) was acquitted by the jury of murder (count 1 TI), conspiracy to murder (count 3 TI), three counts of fraud (counts 2, 5 and 6 TI), burglary (count 7 TI) and possession of an article for use in fraud (count 8 TI). 6. The appellant appeals against his conviction on count 1. He also applies for an extension of time in which to seek leave to appeal against sentence, following identification of a potentially unlawful element of the sentence by the Registrar. This latter application has been referred to the full court by the Registrar. The Facts in Outline 7. The appellant accepted that from late 2012 until mid-2017 he had pretended to be in a genuine and caring relationship first with the deceased, PF and subsequently, with Anne Moore-Martin (“AMM”), when instead he was seeking to manipulate and exploit them for his own gain. He admitted several frauds against PF and AMM, along with burglaries at the homes of other elderly people in the same street. Peter Farquhar (PF) 8. PF was aged 69 years old when he died in October 2015. He lived at 3 Manor Park, Maids Moreton, Buckinghamshire having shared the house with his mother until her death in 2002. He was a retired English teacher, although he continued to lecture at the University of Buckingham. He was a novelist. He experienced good health, remained mentally sharp and kept detailed journals. He found it difficult to resolve his strong Christian beliefs with his gay sexuality. As a consequence, throughout his adult life he remained celibate and although he was close to his family and had a wide circle of friends, he was said to have been a lonely man who craved love and affection. 9. The appellant, in his early twenties and studying at the University of Buckingham in 2012, appreciated and ruthlessly exploited PF’s vulnerability. He set about seducing PF, claiming to share the same interests and beliefs. He moved in with PF in 2013. The two men commenced what PF thought was a mutually loving and supportive relationship. In 2014, the appellant proposed, and they arranged, a “betrothal ceremony”. PF was persuaded to change his will so that the appellant would receive a large inheritance. In 2015, the appellant gave the impression that he was caring for PF, who appeared to be suffering from a mystery illness, potentially some form of dementia. In fact, the appellant was covertly drugging PF but suggesting to others that the latter was drinking too much and was developing a suicidal ideation. 10. PF was found dead in his home by his cleaner on 26 October 2015. He appeared to have drunk himself to death. The appellant inherited substantially from his estate. 11. The issue left for the jury by the judge on count 1 was whether they were sure the appellant, with intent to kill, had given PF alcohol and/or Dalmane (a drug prescribed for insomnia), and/or smothered him causing his death. Whether the judge’s directions to the jury in this regard were correct in law is the focus of this appeal. Anne Moore-Martin (AMM) 12. Shortly before PF was found dead, the appellant also began a relationship with AMM, aged 83, the circumstances of which were relevant to the course of the investigation into the death of PF. 13. AMM lived alone at her home, 6 Manor Park, in the same street as PF, and was also a retired teacher. She was a regular Catholic churchgoer with a strong faith. She suffered from two brain conditions, but her intellectual powers were still good for her age. As with PF, the appellant realised that she was lonely and therefore vulnerable to his seduction and exploitation. 14. The appellant sent AMM cards, gave her gifts and researched sex with the elderly on the internet. Only a month after PF’s death (in November 2015), the appellant began a sexual relationship with AMM. He again set about falsely persuading her that he loved her, so that he could exploit her. He wrote messages on mirrors in 6 Manor Park, successfully persuading her that they were messages from God. These were designed by the appellant to persuade her to change her will and to leave her home to him, rather than to her niece. 15. He persuaded AMM to give him money for a car and to fund a dialysis machine for his brother’s invented kidney disease. Without her knowledge, he also took pictures of her performing a sex act on him, so that he could use these against her in the future, should the occasion arise. 16. When, in late 2016, AMM attempted to change her will in the appellant’s favour, coincidentally she went to the same firm used by PF and the solicitor became suspicious. She informed AMM that the appellant had inherited from PF’s will, causing AMM to change her mind. However, the appellant increased his efforts and eventually in December 2016, she altered her will, despite, as she was to express to police later, feeling uncomfortable about doing so. 17. In November 2017, AMM became ill and went into hospital. While she was there, the appellant removed items from her home that he feared may incriminate him. Her niece, AnnMarie Blake, who encountered him at the premises, became suspicious of his behaviour and alerted the police. Shortly afterwards, however, AMM passed away from natural causes. 18. The prosecution relied on the hearsay statements of AMM to the police prior to her death, regarding her relationship with the appellant. There was evidence on this issue from AnnMarie Blake. The Crown introduced medical evidence, regarding AMM’s various health conditions and her visits to doctors prior to her death. 19. During the ensuing investigation into AMM’s death, the police reconsidered the death of PF. The appellant was initially arrested on the fraud offences but in due course he was charged with the murder of PF and conspiring/attempting to murder AMM. Other than a short, prepared statement, the appellant gave no account when interviewed by the police. The Prosecution Case in Detail as regards the Murder of Peter Farquhar 20. On count 1 (murder), the Crown alleged, therefore, that the appellant falsely persuaded PF that he loved and cared for him and PF as a consequence fell in love. This was the beginning of a detailed plan, about which the appellant kept a detailed record in journals and notes. He had determined to manipulate PF into changing his will, with the intention thereafter of killing him. He sought to make PF’s death appear to have been suicide. 21. Having moved in with PF in November 2013 and following the “ betrothal ceremony ” in 2014, the appellant set about covertly drugging PF. From at least January 2015 to the end of September 2015, the appellant regularly administered prescription and hallucinogenic drugs to PF, often disguised in food or drink. The toxicological analysis of PF’s remains demonstrated repeated administrations of sedating drugs in the months preceding his death. These included lorazepam, trazadone, diclazepam, and flubromazolam. The appellant’s diary documented these covert administrations, and the amounts and timings broadly correlated with symptoms experienced by PF as detailed in his own journal entries. 22. The appellant “ gaslighted ” PF, that is he persistently manipulated and brainwashed him, thereby instilling self-doubt and a diminished sense of perception, identity , and self-worth . He secretly moved objects around the house and hid things. His purpose was to ensure there was no suspicion that PF had been murdered but instead, whilst ill and when alone, he had drunk himself to death. 23. Once PF had changed his will in the appellant’s favour, the latter took the next step in the plan and murdered him on 25 October 2015. The prosecution relied on the simple and self-evident proposition that in order for the fraud relating to the will to succeed the victim had to die. The prosecution needed to prove that the appellant gave PF the alcohol and/or the Dalmane, and/or smothered him in circumstances that materially contributed to his death. 24. The evidence the Crown relied on came from a variety of sources. The prosecution presented a detailed timeline identifying the key events which they linked to the relevant documentary evidence. The journals kept by PF provided hearsay evidence chronicling his life and thoughts over the period he was being deceived by the appellant. The prosecution relied on evidence from the friends and family of PF, regarding his character, his drinking habits and his relationship with the appellant. There was medical evidence detailing the prescription drugs taken by PF and his various visits to doctors in the months before his death. As to the death of PF, the Crown introduced evidence from PF’s cleaner, along with the paramedics and the police, about the finding of PF’s body on 26 October 2015. DNA and fingerprint evidence matching that of the appellant was found on the glass and the bottle next to PF when he died. 25. There was pathology evidence as to the cause of death and the presence of alcohol and drugs in PF’s system both before and at the time of his death. In this regard we note a number of expert witnesses examined PF’s body after he had died. It was suggested that there was no medical evidence to support the suggestion that PF was an alcoholic or had any mental health issues. When this evidence was considered with the other evidence in the case, in particular the notes and journals, it suggested a systematic campaign by the appellant to drug PF and encourage him to drink, in order to make it look like there was something wrong with him, when in fact there was not. 26. The evidence of Dr Bailey, who conducted the first post-mortem, was that PF’s body showed a blood alcohol level of approximately three times the legal drink drive limit. At the time, he concluded that the quantity was sufficient to cause acute alcoholic intoxication, coma, and death in a person who was not a persistent heavy drinker, and he recorded the cause of death as “ acute alcohol toxicity ”. 27. However, once the police investigation into the appellant’s behaviour towards AMM was underway, a second post-mortem examination was carried out by Dr Lockyer. He found that the cause of death was acute alcohol toxicity and Dalmane use. Alcohol and Dalmane should not be used in combination and Dr Lockyer’s evidence was that the combination of the two was likely to have resulted in the potentiation of the sedative effects of both substances, and could have proved fatal by decreasing the level of PF’s consciousness, thereby creating a threat to the maintenance of an adequate airway. He could not rule in, nor rule out, the possibility of smothering as it was possible to do this without leaving any evidence. However, there was no pathological evidence that PF had been smothered. 28. In the light of this evidence, the prosecution argued that the appellant had a motive to kill PF (in order to inherit from his will) and his notes as to how he intended to go about the murder accorded with the method he had actually used on the night of 25 October 2015. By way of detail, the jury were provided with extracts from the journals and notes of the appellant, evidencing his thoughts and intentions, detailing his covert drugging and “ gaslighting ” of PF and his research into alcoholism, strong whisky, suicide and the methods by which one might kill another. The appellant had a white notebook which contained extensive notes concerning PF. A comparison of these notes showed in some detail the drugs and alcohol administered to PF in 2015 and the effects they had upon him. It was suggested by the Crown that this was a plot long in the making: one of the appellant’s notes set out “I moved in [that is, in 2013] so he could die [which took place in October 2015].” The appellant’s notes revealed that he explored the possibility of inducing his victim to commit suicide; but this approach failed, as the notes also recorded ( “It became clear that he suicides not” ). The allegation against the appellant was that he then conceived a plan that PF should appear to have succumbed to an alcoholic’s death. To that end, he created a false narrative that the victim was drinking to excess and/or suffering from dementia. He sought to establish that his death was an unsurprising event, and he was assisted in this endeavour by the effects of the drugs he was covertly administering, which appeared to others to indicate that PF was intoxicated. 29. The prosecution suggested that the appellant in one of his notes set out what he had planned, and thereafter put into effect, in order to kill PF on 25 October 2015 – “ High percentage malt £. Suffocation only a mistake if either survival or evidence ensues. Feed Dalmane and alcohol and less air ”. 30. Diana Davis, the solicitor, gave evidence concerning the changes to PF’s and AMM’s wills. The prosecution relied on the appellant’s propensity, namely his guilty pleas in relation to various frauds and burglaries, and a video made by the appellant at the care home where he worked which established his exploitation of another elderly person. There were various relevant emails between the appellant and his co-accused. The Crown relied on the appellant’s failure to mention multiple facts in interview which he relied on at trial. There was a schedule of Agreed Facts. The Defence Case 31. The defence case was that, despite the appellant’s admitted and repulsive behaviour towards PF, he had not, in fact, intended to kill PF and he had not murdered him. He accepted he had lied to and deceived almost everyone he came into contact with between 2012 and 2017. He admitted he had lied to PF as to his true feelings and that he had intended to inherit from him on his death. He had similarly lied to AMM and had defrauded her of various sums of money. He burgled the properties owned by other elderly people in the street, because, in his words, “ he could ”. 32. He acknowledged that he had drugged and gaslighted PF, causing him great suffering. He had manipulated AMM (although he denied having drugged her or encouraged her to commit suicide) and he accepted this had caused her regret and misery when she discovered what he had done, shortly before her death. He accepted that he was a “ snake talker ” and prided himself on his ability to manoeuvre people to achieve his ends without ever actually asking them directly to do what he wanted them to do. However, he denied ever intending to kill PF, he denied having any part in his death and he denied conspiring to or attempting to kill AMM. 33. Between 2012 and 2017, he had also engaged in casual relationships with various women, including particularly Lara Busby and Satara Pracha to whom, he accepted, he had consistently lied. He maintained that he was not homosexual, albeit had had a number of sexual experiences with men, which he suggested he had not enjoyed but had used to test himself. He accepted he had lied about the extent of his sexual experiences with men during examination-in-chief because, as he suggested, he had felt ashamed talking about these experiences in front of his parents. He insisted, however, that he had told the truth in evidence about all other matters. 34. Focussing on the journals and notes, the appellant suggested he had lived an isolated and internalised life since his school days. He had acquired the habit of reading extensively, including dictionaries, and he made copious notes (some of which the police found within computer files). He maintained that in the absence of genuine relationships or communication with others, he used to write as a means of working out his thoughts and as an outlet for frustrations and feelings that he could not otherwise express. While the appellant’s notes included numerous references to various ways in which both PF and AMM might die, his writings also included many references to other – what he suggested to be – wholly fantastical ideas. 35. He used the white notebook to write about PF. He claimed that he was genuinely interested in PF’s journals, which he copied out in large part. He also made notes about characters and storylines for PF’s last book, on which he claimed they were collaborating. He said that although some of the things he had written represented his thinking and intentions, others did not and were simply for amusement, to blow off steam or to see how they looked on paper. He maintained that he had written many of the notes in the white notebook, including the note “ Feed Dalmane and alcohol and less air ”, after PF’s death. This otherwise highly incriminating entry therefore did not reflect his future intentions or a settled plan to kill PF. 36. On 25 October 2015, the appellant went away for the weekend and he asked MS (Martyn Smith) to stay with PF on the Saturday night. He had bought a bottle of whisky for MS as a “ thank you ”. MS ended up leaving the bottle at the house when he left on the Sunday morning. Having arrived for dinner on the Sunday night, the appellant decided to leave the bottle out as a temptation and a test for PF. The victim had been trying to abstain from drinking on the advice of his doctor after his apparent illness. The appellant’s account was that when, as he claimed, he left the house after dinner, neither he nor PF had drunk any whisky. He was not aware that PF had taken any Dalmane that night. He tried unsuccessfully to call PF several times later that evening and during the following morning. He was informed of PF’s death by the cleaner. 37. The appellant accepted that whilst the bottle of whisky must have played some part in the fatality, he had not intended to kill PF. He maintained he had played no direct part in PF drinking alcohol that night and he was not present when he died. 38. His case was summarised by the judge as follows: “On behalf of Ben Field, it is submitted that the prosecution evidence suggests that, having discovered that Peter Farquhar ‘suicides not’, Ben Field encouraged him to drink alcohol and to put him at greater risk of dying, rather than murder him. It is argued the evidence does not prove that Ben Field was present at the time of Peter Farquhar’s death, or prove that he gave him alcohol or drugs as alleged.” 39. The appellant accepts that the jury must have rejected his account that he left the whisky for PF as a temptation and a test that night. They must have concluded that the appellant was present and provided alcohol (and/or Dalmane and/or smothered him). The Grounds of Appeal 40. Mr Jeremy Q.C., on behalf of the applicant, submits that the grounds of appeal should be viewed in the context of the relevant background evidence. PF was found dead by his cleaner on 26 October 2015 slumped on his sofa. Next to him, on a side table, was a bottle of 60% proof whisky, with a glass on the floor by his feet. As set out above at [26], the initial postmortem concluded that the cause of death was “ acute alcohol toxicity ” with no signs of trauma or other suspicious circumstances. There was evidence to suggest that PF liked malt whisky and drank it often (indeed, submits Mr Jeremy, by his own estimation he drank it excessively). 41. When PF’s body was exhumed in 2017 and the second post-mortem was carried out, only a relatively small amount of Dalmane was found in his body, consistent with a therapeutic dose. No trace of the drug was found in the remaining whisky or in the glass found at his feet. PF had been prescribed Dalmane for insomnia but only took it intermittently. As set out above at [27], Dr Lockyer’s evidence was that the combination of alcohol and the Dalmane was likely to have resulted in the potentiation of the sedative effects of both substances. This might have proved fatal through decreasing the level of consciousness and threatened the maintenance of an adequate airway. 42. It is submitted that the prosecution case at trial was conspicuously silent as to how it was alleged the appellant had killed PF. It is argued this was the inevitable result of the lack of evidence as to what happened. The theory that the appellant may have suffocated PF was based, as the appellant contends, on an erroneous interpretation of the evidence, including what is described as a rather obscure note “ Feed Dalmane and alcohol and less air ” (see [35] above). On the appellant’s account, it is stressed this was allegedly part of a fictional version of PF’s death written after he had died. 43. It is submitted that this case involves consideration of the circumstances in which the voluntary act of the victim displaces the responsibility of the principal or perpetrator, with the result that the victim became the “ doer of the act ” and the “ causer of his death ”, particularly as considered by House of Lords in R v Kennedy (No 2) [2007] UKHL 38 ; [2008] 1 AC 269 . The act of suicide is suggested to be one example of such a voluntary act. 44. It is highlighted that it was only shortly before the legal directions were given to the jury by the judge that the prosecution indicated that they would argue that PF’s drinking of the alcohol should not be regarded as voluntary because the appellant had deceived him into drinking by not revealing his intention to kill PF. The judge was persuaded to adopt this approach. In the event, his directions prompted a note from the jury on the issue, to which the judge responded, as set out below at [55] and [57], by repeating his original directions (albeit in a slightly different order). 45. Mr Jeremy argues that the crucial question for the jury was causation. They needed to determine whether the appellant had caused PF’s death, given, as the appellant suggests, the voluntary consumption by PF of alcohol or drugs would displace the appellant’s responsibility as the doer of the act that caused PF’s death. Mr Jeremy submits that the judge should have left to the jury the question as to whether PF’s consumption of whisky broke the chain of causation. The judge’s direction, therefore, needed to be explicit as to, first, the alleged acts by the appellant that were capable of being more than a minimal cause of death, and second, the events that were potentially capable of breaking the chain of causation vis-à-vis the appellant’s liability for the death. It is contended that the judge should have directed the jury that in order to convict the appellant they needed to be sure that his deception as to his intention to kill PF was the cause of the latter’s decision to consume alcohol and/or drugs and that, but for the deception, PF would not have consumed the alcohol and/or drugs. 46. It is argued that the judge erred in his direction to the jury regarding causation in that he conflated the concept of a “ more than a minimal cause ” with “ deceit ”, thereby misleading the jury as to the issue of voluntariness. In this context, it is suggested he failed to explain the critical importance of a voluntary decision by PF to consume alcohol and/or drugs. In a similar vein, it is contended that the judge failed to identify the evidence – if any existed – to the effect that the victim’s consumption of alcohol and/or drugs was involuntary. As set out in the preceding paragraph, it is argued the judge should have directed the jury that they needed to resolve “ whether the appellant’s failure to reveal his intention that the victim should die, in fact, caused the victim’s consumption of alcohol and/or drugs to be involuntary ”. 47. Additionally, it is asserted that the judge’s directions failed to distinguish between the act of giving any amount of drink and giving a sufficient quantity to equate to more than a minimal cause of death. Mr Jeremy argues that the judge should have directed the jury that they had to be sure that PF’s consumption of alcohol or drugs needed to be involuntary in the sense of having been obtained by force, duress or deceit, with the result that the appellant rather than PF did the act which caused the latter’s death. In this context, Mr Jeremy accepts that PF’s consumption of drink or alcohol would not have been voluntary – it would not have been free, deliberate and informed – if he had been forced to commit the act or had been misled as to the nature of it. By way of example, Mr Jeremy uses the image of the victim who is given a drink that, unknown to him, had been laced with cyanide. It is accepted that this would be capable of rendering his consumption of that drink involuntary because the deceit would have left the victim uninformed as to the true nature of his act. 48. If – says Mr Jeremy – the victim, therefore, is informed ( viz . knows the facts that are relevant, most particularly as regards the contingent risks of harm) the decision will be voluntary. The fact that he or she is unaware of other facts that were not relevant to the nature of the act, and the risks attaching to it, would not remove the voluntary nature of the act. PF’s ignorance of the appellant’s secret intention thus did not change the nature of PF’s act or his perception of the risk of harm attaching to it. Accordingly, on the appellant’s submissions PF’s decision to take drink was informed and voluntary. 49. It is accepted by Mr Jeremy that a defendant’s intention can, in certain circumstances, be relevant to the risk attaching to a course of action. He gave this example. If an accused, for instance, encouraged a weak swimmer to take to the water having promised to provide assistance if the swimmer encountered difficulties, but privately had no intention of doing so and did not do so, the accused could be criminally liable for the victim’s death by drowning in these circumstances. The victim had volunteered to swim on the false assurance of rescue if the need arose. The victim’s uninformed state as to the defendant’s actual intention would have changed the nature of the act embarked upon and rendered it more dangerous. Discussion 50. Although Mr Jeremy advanced, as a significant part of his submissions, a highly detailed criticism of the prosecution for the way they presented and developed their case, along with an analysis of the genesis of the final arguments of the parties as to the approach to be taken to the charge of murder in the circumstances of this case, this appeal turns on the single question of whether the judge’s directions to the jury were legally correct. Although we have considered the detail of Mr Jeremy’s criticism and the development of the submissions, they are not in any sense determinative of this appeal. It follows that in this analysis we have, instead, focussed on the judge’s directions to the jury. 51. Having reminded the jury to bear in mind all the relevant directions, the written direction provided to the jury on the “ ultimate question ” on count 1 set out the following: “i) Have the prosecution made us all sure that Ben Field intended to kill Peter Farquhar? If you all answer yes – to go question 2. If you all answer no – verdict “Not guilty” ii) Have the prosecution made us sure that, with intent, Ben Field did one or more of the acts alleged by the prosecution (i.e. in person, giving Peter Farquhar drink, and/or Dalmane, and/or suffocating him) which was/were a more than minimal cause of Peter Farquhar’s death? If you all answer yes – verdict “Guilty”. If you all answer no – verdict “Not Guilty” […]” 52. The judge in an earlier written direction in the same document described the prosecution’s case on count 1 to the jury in the following way: “Ben Field is alleged to have carried out the murder of Peter Farquhar, in accordance with the plan that he should “die an alcoholic’s death”, by being present in person and physically giving him alcohol and/or Dalmane and/or by smothering him. It is for the prosecution to prove its case as thus advanced. I emphasise that simply having left the bottle to tempt Peter Farquhar to drink the whisky is not the prosecution case and is not sufficient for proof of guilt on this count. […] Murder is committed if, unlawfully and with intent to kill, a person does an act which causes the death of another. […] An act causes the death of another if it is more than a minimal cause of it. If it is proved that, with intent to kill, Ben Field, in person, gave Peter Farquhar drink then, even if Peter Farquhar agreed to drink it, it would be open to you to conclude that the giving was a cause of death, unless Peter Farquhar’s decision was informed in that he knew that the drink being offered to him was intended to cause his death. I repeat, simply having left the bottle to tempt Peter Farquhar is not the prosecution’s case, and it is not sufficient for proof of guilt on this count. Rather, the prosecution must make you sure of the case that they have advanced. Ben Field’s defence is that, although he had left the whisky bottle for Peter Farquhar to find, he had gone before Peter Farquhar found it and drank from it. It is his case therefore that he was elsewhere (on the way back to Towcester or in Towcester) when the fatal events occurred.” 53. As delivered during the summing up, the judge said: “Count 1: murder. Ben Field is alleged to have carried out the murder of Peter Farquhar in accordance with the plan that he should die an alcoholic’s death, by being present in person and physically giving him alcohol and/or Dalmane, and/or by smothering him. It is for the prosecution to prove its case as thus advanced. I emphasise that simply having left the bottle to tempt Peter Farquhar to drink the whisky is not the prosecution case and is not sufficient for proof of guilt on this count. On behalf of Ben Field, it is submitted that the prosecution evidence suggests that having discovered that Peter Farquhar suicides not, Ben Field encouraged him to drink alcohol to put him at greater risk of dying rather than murder him. It is argued that the evidence does not prove that Ben Field was present at the time of Peter Farquhar’s death, or prove that he gave him alcohol or drugs as alleged.” 54. Otherwise, the judge’s summing up followed the written directions set out above, and he added at the conclusion of this section: “That said, you do not all have to be sure which of the alleged methods of killing was used by Ben Field, it is sufficient for a verdict of guilty that between you are all sure that it was one or the other.” 55. Having retired during the afternoon of 16 July 2019, during 18 July 2019 the jury sent a note as follows: “i) Is Peter Farquhar’s DNA on the whisky bottle from the night of 25 th October 2015? Was the bottle tested for his DNA? ii) Could we have clarity on the 4 th paragraph on p.22 of your legal directions, especially regarding the implications if Ben and Peter were drinking together on 25 th October 2015?” 56. As set out above at [52], the “4th paragraph”, to which the jury note referred, contained the following: “An act causes the death of another if it is more than a minimal cause of it. If it is proved that, with intent to kill, Ben Field, in person, gave Peter Farquhar drink then, even if Peter Farquhar agreed to drink it, it would be open to you to conclude that the giving was a cause of death, unless Peter Farquhar’s decision was informed in that he knew that the drink being offered to him was intended to cause his death.” 57. The judge responded as follows: “Right, thank you. In order to answer your question, I am firstly going to remind you what the definition of murder is, because that is going to underlie my answer. And it begins at the bottom of page 21. “Murder is committed if, unlawfully and with intent to kill, a person does an act which causes the death of another. It is only lawful to kill someone if the person who kills is acting in necessary and reasonable self-defence, whether of himself or another,” which obviously, does not arise in this case. You are entitled to infer what a person’s intention was, from all the relevant circumstances including what they did or did not do and did or did not say, whether before, during or after the incident, something juries do all the time. The prosecution do not have to prove motive. However, in this case it is alleged that there is one, as I have set out. And “an act causes the death of another, if it is more than a minimal cause of it.” I am going to stop there insofar as that paragraph is concerned. It is then, important to remember what the cases on either side are insofar as the actual murder itself is concerned. In which event, we need to go back to page 20, at the bottom. The prosecution case, Ben field is alleged to have carried out the murder of Peter Farquhar in accordance with the plan that he should die an alcoholic’s death by being present in person and physically giving him alcohol and/or Dalmane and/or by smothering him. It is for the prosecution to prove its case as thus advanced. I emphasise that simply having left the bottle to tempt Peter Farquhar to drink the whisky is not the prosecution case and is not sufficient for proof of guilt on this count. On behalf of Ben Field, it is submitted that the prosecution evidence suggests that having discovered that Peter Farquhar’s suicide is not, Ben Field encouraged him to drink alcohol and to put him at greater risk of dying rather than murder him. It is argued that the evidence does not prove that Ben Field was present at the time of Peter Farquhar’s death, or prove that he gave him alcohol or drugs as alleged. If we then go on to the ultimate questions that I have posed for your consideration in Ben Field’s case on murder. Against the background that he denies an intention to kill, the first question addresses that issue. Have the prosecution made us all sure that Ben Field intended to kill Peter Farquhar? If you all answer yes, go to question 2. If you all answer no, the verdict is not guilty and Martyn Smith is also not guilty. If, however, you have all answered yes, i.e. you are sure that he did intend to kill Peter Farquhar, it is then and only then, that you go on to question 2, which is have the prosecution made us sure that with that intent, Ben Field did one or more of the acts alleged by the prosecution, i.e. in person, gave Peter Farquhar drink and/or Dalmane and/or suffocating him. In other words, he has to have had the intention to kill when doing one or more of those alleged acts. And then the critical words, “which was or were a more than minimal cause of Peter Farquhar’s death.” So if we then go back to the paragraph about which, your question has been asked. If it is proved that with intent to kill, Ben Field in person, gave Peter Farquhar drink then, even if Peter Farquhar agreed to drink it, it would be open to you to conclude that the giving was a cause of death, unless Peter Farquhar’s decision, that is the decision to drink, was informed in that he knew that the drink being offered to him was intended, by Ben Field, to cause his death. Why the difference between the two? In the first part of the sentence, if it is proved that with intent to kill, Ben Field in person, gave Peter Farquhar drink, then even if Peter Farquhar agreed to drink it, it would be open to you to conclude that the giving was a cause of death unless Peter Farquhar’s decision to drink was informed, in that he knew that the drink being offered to him was intended to cause his death. The difference is because it is not the prosecution – the prosecution do not put its case in that way and they must prove their case. And the reason why they do not put their case in that way is that if Peter Farquhar’s decision to drink was in the knowledge that the drink was being offered to him with the intention of causing his death, then his decision in that knowledge, to drink, would in law, be the only cause of his death. It would not be the responsibility of Ben Field. On the other hand – and here, we have the prosecution case, that they were together and that Peter Farquhar most certainly did not know that he was being offered drink with the intention of killing him by his consumption of it, that in those circumstances, even if he agreed to drink - not knowing that it was intended by Ben Field that it was to kill him - it would be open to you to conclude that the giving was a cause of death. And it is open to you so to conclude because then, it is a matter of fact. And you and you alone are the judges of fact and therefore, it would be open to you to conclude, if you thought it right, that in those circumstances, that the – notwithstanding the agreement to drink, that the giving of the drink or the drug was more than a minimal cause of death. Can I try and put it also in another way, to make it even simpler? If, at the end of the day, it was or might have been that even though they were together and even though Ben Field was intending to kill Peter Farquhar, that Peter Farquhar drank in the knowledge that Ben Field was giving him the drink. He, Ben Field intending to kill Peter Farquhar, then it would not be right to convict Ben Field. If it was or might have been that, then the prosecution would have failed to prove their case, which was that he was given alcohol with that intention and most certainly, without the knowledge that Ben Field was intending to kill him thereby. Now, is that clear? I see nods. Thank you. If, in some way, I haven’t addressed the kernel of what you were asking me, then do please put into writing, exactly what you would like me to explain. But I hope that essentially by repeating what you’ve already got, that we’re just a few words of extra explanation that I have made the point even clearer than I hoped it was before. All right? Now, can I just check with the bar that nobody’s got any concerns that I need to correct that in any way?” 58. The critical authority for the resolution of the issues raised on this appeal is the decision of the House of Lords in Kennedy. In that case the appellant prepared a syringe of heroin and handed it to the victim, who immediately injected himself and returned the syringe to the appellant. The victim died as a result. The issue on the appeal against Kennedy’s manslaughter conviction was whether he could be said to be jointly responsible for carrying out the act that was causative of the death. The House of Lords held that informed adults of sound mind are to be treated by the law as autonomous beings able to make their own decisions about how they would act, and in Kennedy the deceased had chosen to inject himself knowing what he was doing. In those circumstances, the appellant had not caused the drug to be administered to the victim and his actions were not a significant cause of the deceased’s death. The House of Lords stressed that the act of supplying heroin cannot found a charge of homicide (see [7]), if it is freely and voluntarily self-administered by the victim (see [19]) who is able to make an informed decision (see [20]). Lord Bingham put the matter thus: “14. The criminal law generally assumes the existence of free will. The law recognises certain exceptions, in the case of the young, those who for any reason are not fully responsible for their actions, and the vulnerable, and it acknowledges situations of duress and necessity, as also of deception and mistake. But, generally speaking, informed adults of sound mind are treated as autonomous beings able to make their own decisions how they will act, and none of the exceptions is relied on as possibly applicable in this case. Thus D is not to be treated as causing V to act in a certain way if V makes a voluntary and informed decision to act in that way rather than another. There are many classic statements to this effect. In his article “Finis for Novus Actus?” [1989] CLJ 391 , 392, Professor Glanville Williams wrote: ‘I may suggest reasons to you for doing something; I may urge you to do it, tell you it will pay you to do it, tell you it is your duty to do it. My efforts may perhaps make it very much more likely that you will do it. But they do not cause you to do it, in the sense in which one causes a kettle of water to boil by putting it on the stove. Your volitional act is regarded (within the doctrine of responsibility) as setting a new ‘chain of causation’ going, irrespective of what has happened before.’ In chapter XII of Causation in the Law , 2nd ed (1985), p 326, Hart & Honoré wrote: ‘The free, deliberate, and informed intervention of a second person, who intends to exploit the situation created by the first, but is not acting in concert with him, is normally held to relieve the first actor of criminal responsibility.’ This statement was cited by the House with approval in R v Latif [1996] 1 WLR 104 , 115. The principle is fundamental and not controversial.” 59. The concession made by Mr Jeremy in relation to the weak swimmer is both correct in our view and important. As he accepts, the victim’s uninformed state of mind in this example as to the accused’s real intention would have changed the nature of the undertaking on which the victim embarked, by rendering it more dangerous. The false friend was potentially liable to a conviction for homicide on account of his or her undisclosed intention that the victim should die by not providing assistance in the event of difficulty. This is highly pertinent in the present case. Mr Jeremy’s concession also recognises that whether the victim’s ignorance of the accused’s real intention does relevantly change the nature of the undertaking on which the victim embarks, as in his example, will depend on the specific nature of the individual case. The concession acknowledges, moreover, the appropriateness of the trial judge addressing the nature of the individual case in deciding how to direct the jury. It follows that in situations exemplified by the weak swimmer example, it would be appropriate for the judge to give the jury a direction on causation referable to the victim’s knowledge or ignorance of the accused’s intentions. 60. The undisclosed murderous intention of the appellant, in our judgment, substantively changed the nature of the undertaking upon which PF embarked, in this particular case. The jury must have rejected the appellant’s account that he was not present when the victim drank this large quantity of whisky which he had supplied. PF, therefore, would have believed that he was drinking 60% proof whisky in the company of someone who loved and would care for him, not someone who wished for his death. As a consequence, PF would not have had an informed appreciation of the truly perilous nature of what was occurring. In providing the whisky, he was being encouraged by the appellant to consume a significant quantity of a powerful alcoholic drink, which inevitably would have started to impair his judgment, most particularly as it interacted with the Dalmane. Engaging in this activity was not, as a consequence, the result of a free, voluntary and informed decision by PF. To the contrary, he was being deliberately led into a dangerous situation, as with the weak swimmer, by someone who pretended to be concerned about his safety: as was undisputed on the evidence in the case, the appellant posed as his lover and partner – someone who PF would undoubtedly have assumed would be solicitous of his wellbeing – whereas, in reality, the appellant simply desired PF’s demise. The appellant, therefore, manipulated and encouraged PF into a position of grave danger, given the combination of the sedative effects of the substances risked decreasing the levels of the victim’s consciousness, thereby fatally impairing his airway. The appellant’s undisclosed homicidal purpose, in these circumstances, changed the nature of the act: PF was to a material extent unwittingly lured into a perilous drunken and drugged position by someone who feigned to be his loving partner. Once the effects of the substances started to affect PF’s judgment and as he succumbed, the appellant would have been a mere bystander, or worse. He certainly would not have sought medical assistance, given he admitted he wanted to increase the risk of PF dying. 61. It follows we are of the view that the position of the appellant is to be likened to that of the deceived swimmer. It would be open to a jury in either case to conclude that the victims (real and fictional) had been lured into a false sense of security by the accused’s undisclosed murderous purpose, embarking as a consequence on a fatal course of action uninformed as to or unaware of the true dangers of the undertaking, so that the deceit was a cause of death. 62. Whether or not the deceased acted freely and voluntarily, when in a position to make an informed decision, will always depend on a close analysis of the facts of the case. If, in the context of a decision by the deceased, there is a significant deception by the accused that changes the truth or the reality of what is happening, such as materially to increase the dangerous nature of the act, then he or she may be criminally liable for what occurred. That ‘deception’ as to the ‘nature of the act’ may – as in the weak swimmer example – be directly linked to the undisclosed intentions of the accused. The judge incorporated the idea of ‘deception’ as to ‘the nature of the act’ thus in a ruling given on 4 July 2019 in relation to the charge of conspiracy to murder AMM by encouraging suicide (count 3 TI): “[…] a Defendant’s conduct may amount to murder if he drives the victim to suicide by force, duress or deception (with the deception being as to the nature of the act encouraged) such that the suicide was not the voluntary act of the victim. […]” 63. For these reasons we consider that the approach of the judge was correct. He left it to the jury to determine whether the appellant’s actions were a more than minimal cause of PF’s death. He told the jury if they were sure that, with intent to kill, the appellant in person gave PF drink, and PF drank it, it was open to them to conclude that the giving of drink was a cause of the death; but he told them that conclusion would not be open to them if PF knew the drink being offered was intended to cause his death. He also told them that if PF agreed to drink – not knowing that it was intended by the appellant that it was to kill him – it would be open to them to conclude that the appellant’s giving of drink was a cause of death. These directions rightly recognised that in this particular case the jury had to be sure that the drink was given to the appellant with intent to kill, that the drink was a (more than minimal) cause of death and that PF’s act of drinking was not a free, voluntary and informed decision such as to break the chain of causation. The judge’s directions captured the essence of the issue in a clear and admirably succinct manner. Those directions were, moreover, given in the broader context of the supposedly caring and protective nature of the relationship, whose falsehood lay at the centre of the undisputed evidence in the case, as the jury undoubtedly understood. 64. We dismiss the appeal against conviction. Sentence 65. The appellant received a mandatory sentence of life imprisonment. When determining the appropriate minimum term, the court should take into account the effect of section 240ZA Criminal Justice Act (crediting periods of remand in custody) (section 269(3)(b) Criminal Justice Act 2003). The judge omitted to address the 346 days the appellant had spent on remand prior to sentence. 66. We grant the extension of time and leave to appeal against sentence. The sentence will remain that of imprisonment for life, with a minimum term of 36 years. From that minimum term there will be deducted 346 days.

2021_03_18-5139.xml

sentence

https://caselaw.nationalarchives.gov.uk/ewca/crim/2021/380/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2021/380

2d1ab8becaa04f63879b0bb919a6f55839756e98271e796bc719d607306ec90a

[2023] EWCA Crim 1269

EWCA_Crim_1269

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: 2022/02926/B3 [2023] EWCA Crim 1269 Royal Courts of Justice The Strand London WC2A 2LL Tuesday 16 th May 2023 B e f o r e: VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION ( Lord Justice Holroyde ) MR JUSTICE HOLGATE MR JUSTICE BRIGHT ____________________ R E X - v - R R ____________________ 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) _____________________ Non-Counsel Application ____________________ J U D G M E N T Tuesday 16 th May 2023 LORD JUSTICE HOLROYDE: I shall ask Mr Justice Holgate to give the judgment of the court. MR JUSTICE HOLGATE: 1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of the offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act . We will refer to the victim in this case as "A". 2. On 6 th April 2022, following a trial in the Crown Court at Lewes, before Her Honour Judge Barnes and a jury, the applicant was convicted of 14 counts of rape, contrary to section 1 of the Sexual Offences Act 1956 (counts 1, 7 to 18 and 20), and 4 counts of indecent assault, contrary to section 14 of the 1956 Act (counts 2, 3, 4 and 5). On 5 th September 2022, the applicant was sentenced by the trial judge, firstly, for the offences of rape to concurrent extended determinate sentences comprising a custodial term of 18 years and an extended licence period of four years; and secondly, for the offences of indecent assault, to concurrent determinate sentences of four years' imprisonment. The applicant now renews his application for leave to appeal against sentence following refusal by the single judge. 3. A was born in 1984. When she was aged 5 the applicant formed a relationship with her mother. They married and had three children, born in 1991, 1996 and 1998. A grew up believing the applicant to be her biological father. 4. Soon after this relationship began, the applicant started to rape A. He manipulated and controlled her life in order to be able to do so. The sexual exploitation extended over a period of 14 years and into her adulthood, until eventually she was able to escape from the applicant's influence. 5. The first rape occurred when A was aged 5 or 6. It happened in the applicant's lorry. He made A touch his penis and he then touched her vagina. He had vaginal sexual intercourse with her (count 1). 6. When A was aged between 10 and 12 she was sometimes with the applicant at home. He asked her to go upstairs to the bathroom as he had a present for her. He sat her on his lap and touched her around her breasts and her vagina (count 3). He then took her hand and rubbed it over his erect penis under his trousers (count 2). During the same period the applicant made A watch a pornographic video and then kissed her, using his tongue (count 4). He touched her all over, including her chest (count 5). 7. The applicant would take A with him to stay at his mother's house in Yorkshire. When they were alone, the applicant would make A get out of her bed and into his. He would touch her. If she was not compliant he would be forceful with her, and if she cried she would be punished. Count 7 related to the applicant raping A at this house when she was aged between 10 and 12. Count 8 related to him raping her there on another occasion when she was aged between 10 and 15. 8. When A was aged between 10 and 12, the applicant drove her to Pease Pottage Services in his car and raped her (count 9). There were at least nine further rapes at this location when A was aged between 10 and 17 (count 10). The applicant would drive her to a secluded spot and would have sexual intercourse with her and ejaculate in her mouth. 9. The applicant also owned a green camper van. It had curtains and a bed. When A was aged between 10 and 12, the applicant raped her three times in this vehicle (count 11), and on two further occasions when she was aged between 10 and 15 (count 12). On another occasion, when A was aged between 10 and 15, the applicant invited two other men into the camper van. He aided and abetted them to rape A (count 13). 10. When A was aged between 10 and 12, her mother worked nights, leaving the applicant to after A at home. The applicant would put her into his bed and make her masturbate him. He would then have full vaginal sexual intercourse with her. This happened on two occasions (counts 14 and 15). 11. The loft at the family home was converted into a small bedroom which A used. The applicant would come into the loft at night and have sexual intercourse with her. Count 16 related to a single occasion when A was aged between 12 and 15. Count 17 related to at least nine occasions when A was aged between 12 and 16. 12. When A was 16 she went to live with a friend and her family, and then moved into a hostel for a while. During this time the applicant could not continue to have sexual intercourse with her. However, when at the age of about 18 A moved into a flat of her own, the applicant would visit and still have sexual intercourse with her. A was resigned to what would happen. Count 18 concerned a single occasion when A was aged between 18 and 20. Count 20 related to at least two other occasions when A was aged between 20 and 22. 13. A went to the police in 2015. In May 2016 the applicant was arrested and interviewed. He denied all the offences. 14. We have read A's Victim Personal Statement. She describes the self-harming and the serious emotional and psychological effects, including PTSD, which the applicant's offending has had over many years and still continues to have. 15. The applicant was aged 69 at sentence. He had four convictions for four offences between 1976 and 2009, but they were of no significance to sentencing for the index offences. We have read the detailed pre-sentence report prepared on the applicant. He continued to deny the offences. He said that A had fabricated the allegations against him. He accepted no responsibility at all and showed no remorse. The author of the report assessed the applicant as posing a high risk of serious harm to A and to children aged between 5 and 17. 17. In her sentencing remarks the judge applied the approach for historical offences set out in R v H [2012] 1 WLR 1416 . She decided that the rapes fell into category 2 of the definitive guideline, having regard to the severe psychological harm caused. There were several culpability A factors: significant planning, grooming, the grossest abuse of trust and on one occasion the commission of the offence with others. The applicant had also made threats against A. Taken overall the applicant's conduct amounted to a campaign of rape. 18. The modern equivalent for several of the counts is the offence of rape of a child aged under 13. The judge explained why the applicant was to be treated as dangerous and why it was necessary to pass an extended determinate sentence. 23. The grounds of appeal contend, firstly, that the overall sentence passed was manifestly excessive because the custodial term of 18 years is greater than the upper end of the range for category 2A offences falling within section 5 of the Sexual Offences Act 2003 , namely 17 years. It is said that the judge has wrongly moved all of the rape offences into category 1A. In addition, it is contended that no allowance was made for the significant delay between arrest in 2016 and the eventual trial in 2022, the applicant's age and health conditions. 24. Secondly, it is argued that the judge was wrong to find the applicant dangerous. The only risk he had posed was to A. There was no risk to other members of the public and no sex offences had been committed after 2006. 25. The grounds of appeal make no criticism of the concurrent sentences passed for the offences of indecent assault. Discussion 26. In refusing leave, the single judge gave the following reasons: "Your offending was of the vilest character. You robbed your victim of her childhood and tainted her life. You have shown no remorse whatsoever. In cases of repeat offending, the court is fully entitled to move well above the category range for a single offence. The judge considered carefully the issue of dangerousness and his conclusion is not one which falls to be interfered with. Your sentence was fully merited and cannot be categorised as being manifestly excessive." We agree. 27. The challenge to the custodial term of the extended sentence is misconceived. The aggravating features justified a sentence towards the top of the category 2A range for a single offence. The multiple rapes of a similar seriousness required the concurrent custodial term to be well above the category range before allowing for mitigation. The judge's decision to impose a term of 18 years made proper allowance for the applicant's mitigation, including his age, health and the delay which had occurred between 2016 and 2022. Consequently, the fact that the sentence of 18 years falls within the range for a single 1A offence is not objectionable. It is not arguable that the length of that term was manifestly excessive, or even excessive. 28. We also conclude that there is no arguable basis for challenging the judge's assessment that the applicant is dangerous. He was entitled to come to that conclusion on the basis of the offending in this case and the analysis of the author of the pre-sentence report. 29. The grounds of appeal do not challenge the judge's decision to impose an extended sentence, although it was submitted in the Crown Court that, in view of the applicant's age, a determinate sentence would be sufficient for the protection of the public. But the judge took the view that an extended sentence was necessary. She faced the very real problem of assessing at this stage when, if at all, the applicant will cease to be dangerous, not least because of his well entrenched attitudes towards the complainant and his offending. As the judge said, a younger man might well have received a sentence of life imprisonment. We conclude that it cannot be argued that the judge erred in imposing an extended sentence. The length of the custodial term she imposed amply took into account the applicant's age and mitigation. Indeed, in our judgment there could not have been any complaint if the term had been slightly longer. 31. For all these reasons the renewed application for leave to appeal against sentence is refused. _________________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk ______________________________

2023_05_16-5674.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1269/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1269

834725f1fbfd408b127de04a6c12596d9cf0adc2be4afe9cf0da74d341d946fc

[2013] EWCA Crim 800

EWCA_Crim_800

crown_court

Neutral Citation Number: [2013] EWCA Crim 800 No. 2012/21357/A3, 2012/02474/A3, 2012/02466/A3 & 2012/02468/A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Friday 26 April 2013 B e f o r e: LORD JUSTICE TREACY MR JUSTICE BURNETT and THE RECORDER OF LEEDS ( His Honour Judge Collier QC ) ( Sitting as a Judge of the Court of Appeal Criminal Division ) - - - - - - - - - - - - - - - R E G I N A - v - KAZIM ALI KHAN UMAR KHAN MOHAMMED ARFAN

Neutral Citation Number: [2013] EWCA Crim 800 No. 2012/21357/A3, 2012/02474/A3, 2012/02466/A3 & 2012/02468/A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Friday 26 April 2013 B e f o r e: LORD JUSTICE TREACY MR JUSTICE BURNETT and THE RECORDER OF LEEDS ( His Honour Judge Collier QC ) ( Sitting as a Judge of the Court of Appeal Criminal Division ) - - - - - - - - - - - - - - - R E G I N A - v - KAZIM ALI KHAN UMAR KHAN MOHAMMED ARFAN KHAN MOHAMMED AHSAN KHAN - - - - - - - - - - - - - - - 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 N James appeared on behalf of the Appellant Kazim Khan Mr C Strachan appeared on behalf of the Appellant Umar Khan Mr C Sherrard QC appeared on behalf of the Appellant Arfan Khan Mr M Lawson appeared on behalf of the Appellant Ahsan Khan Mr T Little appeared on behalf of the Crown - - - - - - - - - - - - - - - J U D G M E N T Friday 26 April 2013 LORD JUSTICE TREACY: 1. For convenience, and without intending disrespect, we shall refer to the appellants respectively as Umar, Arfan, Ahsan and Kazim. 2. Each of them pleaded guilty in late 2011 or early 2012 in the Crown Court at St Albans before His Honour Judge Plumstead. All of them admitted a conspiracy to supply Class A drugs. 3. In addition, Kazim, whilst on bail for that matter, committed two further offences: one of supplying a Class A drug, the other of possession of a Class A drug with intent. 4. Umar and Arfan were sentenced to nine years' imprisonment. Ahsan was sentenced to seven years' imprisonment. Kazim was sentenced to a total of seven years' imprisonment, representing five years for the conspiracy, with two years consecutive for the offences committed on bail. Credit was given for time spent on remand. There were ancillary orders relating to forfeiture. 5. Five other men involved in the offending were also sentenced. They include Jabraan Azlam, who pleaded guilty to the conspiracy on re-arraignment and was sentenced to four years' imprisonment. 6. The facts show that over a nine month period between September 2010 and May 2011 the police conducted an investigation into the supply of heroin and cocaine in the Watford area. A test purchase officer was deployed. He met drug users and was subsequently introduced to suppliers. There were more than 100 days on which such supply activities took place during the period. 7. Many individuals were involved in supplying the drugs. Some of them were children under the age of 16. 8. The drugs were sold in deals of £20 each. The supply was operated through a single telephone number. Umar and Arfan were in control of the line. Ahsan and Kazim were lower down the hierarchy, themselves dealing, but also with some responsibility within the organisation, such as safeguarding the drugs or acting as minders for others. 9. Customers would be told where to go to meet the dealer. If the caller was not known to the person manning the central telephone, they would be refused service or would have to get someone else to vouch for them. 10. The income from the conspiracy was up to £17,000 per week. The judge calculated from records which were seized that more than 5 kilos of Class A drugs had been supplied. He described it as an organised business to exploit people. 11. There were three addresses linked to the supply. One was a "safe house" where drugs were stored and where a room was used for cutting and wrapping the drugs. There was strong evidence linking Umar and Arfan to that address. Both cocaine and heroin was found there. Umar's fingerprints were found on many of the wraps sold to the test purchase officer, as were Arfan's, albeit to a lesser extent. 12. Ahsan Khan was trusted by those above him, namely Arfan and Umar. He did not deal drugs directly to the test purchase officer, but there was evidence of him being involved in drugs supply on 13 April 2011, during which time he was in phone contact with the central telephone. 13. On 8 May 2011 he went to one of two addresses used as a retail base. He remained there all day, whilst Kazim repeatedly entered and exited the address consistent with being involved in drugs supply. Throughout the day Ahsan was in contact with others involved in the conspiracy. In effect his role was to look after the premises from which a series of supplies was made. 14. Kazim operated as a drug runner. He was observed on some seven occasions between February and May 2011. On occasions he attended the home address of a dealer called Alcott, who sold drugs to users on behalf of the conspiracy. In effect on those occasions he minded the premises whilst Alcott was out dealing on the street. He also visited the address which was used for cutting and wrapping the drugs into individual deals, and a second retail address from which he admitted doing drug deals. 15. The offences which he committed on bail represent a supply of drugs on one occasion to a female test purchase officer. On that occasion he conducted a full body search before supplying the drug. On his arrest, some three months later, his home was searched and about 22 grams of heroin were found. 16. When the judge came to sentence, he described Umar and Arfan as ringleaders, with Ahsan and Kazim as trusted assistants, playing a lesser, but substantial role. The Crown and the judge put Kazim at a lower level of responsibility than Ahsan. Kazim's case was aggravated by offending on bail. Credit was given for guilty pleas, but reflecting the stage at which they had been tendered. 17. Umar is aged 32. He had three previous convictions recorded for possession of Class A or B drugs in 2010. Arfan is aged 28. In November 2003 he was sentenced to seven years' imprisonment for offences of possession of Class A drugs with intent to supply. Ahsan is aged 25. His previous convictions include offences for which he was sentenced in September 2006 for possession of Class A drugs with intent to supply or actual supply. He received three and a half years, no doubt in part a reflection of the fact that he was still in his teens at the time. Kazim is aged 21. He has no relevant previous convictions. 18. The sentencing guideline on drugs offences came into effect on 27 February 2012. It therefore applies in this case. Before the judge there was some discussions about whether the guidelines applied to a conspiracy offence. The appellants also submitted that since the activity involved in this case concerned the supply of drugs to users or test purchase officers on the street, this case should be dealt with within the confines of category 3 of the relevant guideline, which provides: "Where the offence is selling directly to users (street dealing), the starting point is not based on quantity." Thus it was argued, notwithstanding the scale of this operation, that the judge was obliged to sentence within the confines of category 3 of the guideline. Mr Sherrard QC, who appears on behalf of Arfan, has today made a modified version of that submission in which he concedes that the judge could take account of the quantity supplied in the course of the conspiracy by moving his client up to category 2. 19. In passing sentence the judge said that this was a conspiracy, it was not an incident, or even one or two incidents. It was a process. The guidelines did not specifically deal with this type of situation. He did not consider that this sort of conduct was intended to be restricted to category 3. He said: "Those who engage in a conspiracy agree to the commission of a crime -– in this case to the commission of many crimes. .... It is suggested that because the sales took place on the streets .... that I should treat this as category 3 -– that is, street dealing. I am sure that must be wrong. If it is to be assessed as within the guidelines I must regard this as much more a category 1 case. Over the period of the conspiracy many kilos of drugs, I am perfectly sure, went through the hands of those who played their individual roles. Any one of them may never have seen more than a dozen, or twenty bags at a time, but anyone involved must have realised the scale was as I have indicated –- hundreds of bags a day, everyday -– no holidays, no days off. This was a two-shift .... seven day a week operation." 20. In giving leave the full court felt that there were questions of importance relating to the scope of the guidelines which need to be considered. They include whether the guidelines apply to conspiracies at all. If so, how the guidelines operate in those circumstances, and whether in the course of a large scale conspiracy the offending should be dealt with as a category 3 offence because it involves street dealing. 21. Although the relevant guideline only refers expressly to supplying, or offering to supply, or possession of a controlled drug with intent to supply, it is clear to us that the guideline should be applied to an offence of conspiracy to supply a controlled drug. The contrary has not seriously been argued before us. The real issue is how the guideline should be applied in the sort of situation already described. 22. However, before we turn to that question, we justify our conclusion that the guideline should apply to a conspiracy offence by consideration of the following matters. Firstly, there is no positive exclusion of a conspiracy offence as within the guideline. The situation is different from that in the Sentencing Guidelines Council's guideline on fraud offences which specifically excludes conspiracy to defraud. 23. Secondly, the guideline does not explicitly comprehend inchoate offences such as attempts. Yet we doubt that anyone would argue that they are not covered; the fact that the offence was not complete can be sensibly reflected in adjusting the sentencing levels. 24. Next we observe that there is a substantive offence of being concerned in the supply of a controlled drug contrary to section 4(3)(b) of the Misuse of Drugs Act 1971 , and an allied offence under section 4(3)(c). We doubt if any sensible submission could be made that those offences are not covered by the guideline, although they are not specifically referred to. 25. In the period which has elapsed since the guideline came into force, constitutions of this court have already applied the guideline in cases of conspiracy to supply (see, for example, R v McCalla [2012] EWCA Crim 2252 ). 26. Of particular importance is the fact that prosecuting practice varies as to whether to charge a conspiracy or the substantive offence. Many supply offences will involve more than one person so that they could be charged in either way. It would be anomalous for commonplace criminal activity to be inside or outside the guideline depending on the way a prosecutor has chosen to frame the charge. 27. Moreover, much of the language within the guideline with its reference to differing roles, influence on others in a chain, links to original source, operational or management functions, involvement of others in the operation, awareness and understanding of the scale of the operation, and performing a limited function under direction is entirely consistent with an activity which could be charged as a multi-offender conspiracy. 28. For these reasons we are satisfied that in cases of drugs supply which are charged as a conspiracy, the guideline should be used. 29. We turn to how the guideline should be used. The starting point is to recall that a guideline represents guidance. It is not some rigid framework. It is not to be construed like a statute. Judges and practitioners are expected to approach the guideline with a degree of common sense and flexibility. As Hughes LJ said in R v Healey & Others [2012] EWCA Crim 1005 (at paragraph 9): "It may be that the pictorial boxes which are part of the presentation may lead a superficial reader to think that adjacent boxes are mutually exclusive, one or the other. They are not. There is an inevitable overlap between the scenarios which are described in adjacent boxes. In real life offending is found on a sliding scale of gravity with few hard lines. The guidelines set out to describe such sliding scales and graduations." 30. In Attorney General's Reference Nos 15, 16 & 17 of 2012 [2012] EWCA Crim 1414 , [2013] 1 Cr App R(S) 52 , Hallett LJ said (at paragraph 12): "The categories do not provide some kind of straightjacket into which every case must be squeezed. Few offences and few offenders will match exactly the categories provided. One offence or one offender may straddle a number of categories. There may be more than one offence involved in which the offender has played different roles. More than one drug may be involved. .... The judge must do his or her best to reach a fair assessment of the overall offending, namely culpability and harm, before proceeding to the next stage (step 2)." 31. Very often a judge using the guideline will be dealing with a single substantive offence. However, there will be situations in which the judge is sentencing in relation to more than one count. It may be appropriate for the judge to aggregate the quantity of drugs represented in individual counts so as to move to a higher category based on total indicative quantities of the drug involved, and thus truly reflecting the nature of the offending before the court. 32. Many conspiracies will involve multiple supply transactions. In those circumstances the judge would be entitled to look at the aggregate quantity of the drug involved. 33. Of course involvement in a conspiracy may vary for individual offenders within it. One core variant is culpability, which is demonstrated in the guideline by the role of the offender, and which is to be assessed by the non-exhaustive indicative factors set out in the guideline. That will enable the judge to assess the level of involvement of an individual within a conspiracy. 34. However, a particular individual within a conspiracy may be shown only to have been involved for a particular period during the conspiracy, or to have been involved only in certain transactions within the conspiracy, or otherwise to have had an identifiably smaller part in the whole conspiracy. In such circumstances the judge should have regard to those factors which limit an individual's part relative to the whole conspiracy. It will be appropriate for the judge to reflect that in sentence, perhaps by adjusting the category to one better reflecting the reality. 35. As a balancing factor, however, the court is entitled to reflect the fact that the offender has been part of a wider course of criminal activity. The fact of involvement in a conspiracy is an aggravating feature since each conspirator playing his part gives comfort and assistance to others knowing that he is doing so, and the greater his or her awareness of the scale of the enterprise in which he is assisting, the greater his culpability. 36. We turn then to the important question raised in this appeal concerning the judge's refusal to deal with this matter as a category 3 street dealing case. 37. The argument that the judge is constrained to put these offenders within category 3 of the guideline because the end point activity of this conspiracy was street dealing is, in our judgment, wholly unrealistic. The appellants have pointed to the wording that the "starting point is not based on a quantity" when the offence is street dealing. Such a submission flies in the face of common sense, because categories are assessed in relation to the harm done, which itself is reflective of the amount of the drug put into circulation (or is likely to be). 38. The harm done plainly must be driven by the scale of the drug supply falling to be sentenced. The idea that a defendant involved in an operation which resulted in the selling on the street of a few grams of heroin should be dealt with within the same category as someone who has succeeded in putting a number of kilos of the drug on the street is nonsensical. 39. The reason why the wording set out appears in the category 3 box is because ordinarily an episode of street level supply will involve the very small quantities of drug comprehended by category 4. 40. Because it was recognised that dealing on the street even in those small quantities involved harmful criminality over and above that caused by the small quantity of the drug, the Sentencing Council as a matter of principle raised what would otherwise be category 4 offences into category 3. That this was its intention can be seen by its Response to Consultation: "An exception has been created for .... street dealers.... For these offenders the quantity of drug recovered is less representative of the harm caused because the nature of the activity involved means that only small amounts of drugs can be carried by the offender. Therefore, for the purpose of assessing harm at step 1 .... street dealers will always fall within category 3, irrespective of the quantity involved." These observations are echoed at page 10 of the definitive guideline which provides: "Where the offence is street dealing .... the quantity of the product is less indicative of the harm caused and therefore the starting point is not based on quantity." 41. The plain intention was to move what would otherwise be category 4 offending into category 3. That is the genesis of the phrase "the starting point is not based on quantity". 42. That is not, however, a justification for those who are involved in street dealing of quantities which in aggregate go far beyond the amounts shown in category 4 to have a licence to limit themselves to category 3 no matter what the scale of their dealing is in aggregate. Thus in this case the judge was correct to reject the submissions that he was confined to category 3. Taken literally, the phrase used in the guideline relating to category 3 insofar as it concerns street dealing is misleading, but we are entirely satisfied that it should be read as applying where lesser quantities which would normally come within category 4 are being supplied in a street dealing operation. 43. Given the quantity of drugs supplied in this conspiracy, which was operated intensively over a significant period of time and running into at least several kilos of drugs supplied, the judge was entirely justified in putting into category 1 those who were involved in directing or organising this commercial activity for several months, namely Umar and Arfan. 44. In relation to Ahsan Khan, there was a basis of plea which limited his involvement to two particular days during the conspiracy. There is no doubt that his role was properly regarded as a significant one. But it seems to us that since his involvement was limited to those two days, the correct approach would not be to treat him as a category 1 offender as if he were involved in the supply of several kilos, because plainly that is not the case. 45. On the facts of the case it would be appropriate to put him into category 3 in a significant role, but to move him up the range from the starting point, initially to reflect the significant trust which was reposed in him and the fact that he was involved in a conspiracy, and then take account of his previous conviction for supplying Class A drugs. 46. Kazim was involved over a longer period of time than Ahsan. He was involved on a number of occasions between February and May 2011 and his case is complicated by the fact that he committed offences whilst on bail. We shall return to his case later. 47. We now turn to the individual appellants. Umar was acknowledged to be a ringleader in this operation. He purchased the drugs telephone line and paid the costs of running it before paying others out of his profits. He was involved in the "safe house" for storage of the drugs, and directly in the cutting and wrapping operation. He was involved over a period of several months in a leading role at the top of the chain. He clearly directed and organised this offending on a commercial scale. His arguments are that his sentence was too long; that he received the same sentence as Arfan, even though he did not have the significant conviction which Arfan did; he also argued that the judge should have dealt with him as a category 3 offender. 48. We have already rejected that last argument for the reasons given. As indicated, we regard this as a category 1 offence with Umar in a leading role. The guideline shows the starting point of 14 years. He pleaded guilty at a stage which entitled him to full credit. The sentence of nine years' imprisonment reflects that. We do not consider that his sentence was either excessive or wrong in principle. His appeal is dismissed. 49. The judge regarded Arfan as an organiser and a ringleader. In passing sentence he said that he and Umar were rightly categorised by the Crown as the leaders. Arfan undoubtedly fell into category 1 for the reasons already given. He undoubtedly had an important role in this conspiracy. On occasions he had control over the phone line. He was involved with the "safe house" and the activities there. On the day of his arrest some 62 wraps were found in the possession of one of his runners. 50. The Crown accept that Umar Khan's role was somewhat greater than Arfan's, but point out that Arfan has the significant aggravating feature of the long sentence imposed in 2003 for Class A supply offences. 51. Arfan's submissions raised the street dealer point which we have dismissed. He also submits that, based on a hearing before the same judge on 22 March, the day before sentencing, there was a legitimate expectation of a lesser sentence. 52. We have read the transcript. It is clear that on that occasion, which arose in the context of a proposed basis of plea and the possibility of a Newton hearing, the Crown accepted that Arfan's role should be characterised as at "towards the top of significant" within the guideline. That was repeated and the judge accepted the position. He indicated that a Newton hearing would not be required on the issue. 53. Those comments appear to us to have created a legitimate expectation on the part of Arfan that he would be treated as being in a role below that of a leading one. 54. There was then some further discussion between counsel and the judge, which counsel prefaced as being by way of assistance and "obviously not binding on anybody". Counsel contended for a seven to ten year bracket, but acknowledged the aggravating feature of the previous conviction. The judge did not dissent in terms. But in our judgment he did not make any commitment or observation which would raise any legitimate expectation beyond indicating that he wanted to be reminded of those submissions at the sentencing hearing. 55. We do not accept that in this respect any legitimate expectation was created. Accordingly, applying the guideline, Arfan is to be dealt with as a category 1 offender in a significant role. The guideline shows that as having a ten year starting point with a range of nine to twelve years. 56. Arfan's case must move up to reflect that, consistent with what had been discussed the preceding day, his role was to be regarded as towards the top end of a significant role; and secondly, on account of the fact of his aggravating previous conviction. In our judgment, this would take him up to twelve years. 57. The judge had indicated that Arfan was entitled to full credit for his guilty plea. We consider that, taking account of that, the sentence imposed was too long, and we substitute a term of eight years for the nine which was imposed. To that extent his appeal is allowed. 58. In the case of Ahsan we have already commented that, having regard to his basis of plea, the court should begin at category 3 as a significant role. However, it must then move upwards to reflect the fact that Ahsan was involved in a conspiracy rather than a substantive offence, and up again to reflect his previous convictions for drug offences. 59. The judge took a starting point of ten years, which would put Ahsan in a significant role in category 1. We think this was too high. We consider that a sentence of seven years was appropriate prior to credit for the guilty plea. That is at the top of category 3 in a significant role. The judge fixed credit for the guilty plea at 25%. Accordingly, we allow the appeal by substituting a term of five years and three months. 60. In Kazim's case we think it helpful to look at the overall sentence of seven years. His position is much aggravated by the commission of offences on bail at a time when the conspiracy had already come to an end. The offences themselves are separated by several months in time and represent a continuation of his previous activities. 61. On the last occasion Kazim was not acting as a runner for somebody else. He clearly had a small stash at home ready for supply. His involvement in the conspiracy showed him at times operating as a runner in a street operation, but also on occasion involved at a somewhat higher level. 62. He was the youngest of the Khan cousins involved in this offending. He did not have relevant previous convictions. He complains that in relation to the conspiracy there was a degree of disparity with Jabraan Azlam who received four years. We are not persuaded. Jabraan Azlam was dealt with as a runner, pure and simple, without the element of additional trust which was identified in Kazim's case. Moreover, he was entitled to significantly greater credit for his guilty plea. 63. As we have stated, Kazim's position is complicated by his offending on bail. In his case only 10% was allowed as credit on account of his plea of guilty, since it was tendered only a few days prior to trial. That is criticised, but we are not persuaded that the judge was wrong in that respect. 63. Looking at Kazim's overall involvement in these matters, we conclude that the extent of his involvement was not such as would justify his inclusion in category 1. Like Ahsan, we conclude that he best fits into category 3 as a reflection of the scale of his involvement in drug distribution, with a significant role reflecting his activities. This gives a starting point of four years six months. This figure is to be increased to reflect the fact of involvement in a conspiracy, but adjusted to reflect some credit for the guilty plea, his age and his previous relative good character. 64. In the circumstances, we do not consider the term of five years imposed by the judge in relation to the conspiracy was manifestly excessive. However, the picture has to be considered as a whole. The overall sentence of seven years, which reflects the offences committed on bail, is one about which no possible complaint could be made. Accordingly, the appeal of Kazim is dismissed.

2013_04_26-3163.xml

dismissed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/800/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2013/800

e6eb4d106dee615808ae5d989447d6d85301bb29bafc9d6950c8fba543360165

[2019] EWCA Crim 413

EWCA_Crim_413

crown_court

Neutral Citation Number: [2019] EWCA Crim 413 No: 201800752/C4 & 201800755/C4 IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT AT BLACKFRIARS (HHJ Peter Clarke QC) Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 27 February 2019 B e f o r e : LORD JUSTICE MALES MR JUSTICE STUART-SMITH THE COMMON SERJEANT HIS HONOUR JUDGE MARKS QC (Sitting as a Judge of the CACD) R E G I N A v ANDREW PANAYI Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd, Low

Neutral Citation Number: [2019] EWCA Crim 413 No: 201800752/C4 & 201800755/C4 IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT AT BLACKFRIARS (HHJ Peter Clarke QC) Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 27 February 2019 B e f o r e : LORD JUSTICE MALES MR JUSTICE STUART-SMITH THE COMMON SERJEANT HIS HONOUR JUDGE MARKS QC (Sitting as a Judge of the CACD) R E G I N A v ANDREW PANAYI 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 M Paget appeared on behalf of the Appellant Mr A Ranatunga appeared on behalf of the Crown J U D G M E N T (Approved) LORD JUSTICE MALES: 1. On 26 September 2016 in the Highbury Corner Magistrates' Court, the appellant, Andrew Panayi, was convicted of breach of an Enforcement Notice, contrary to section 179 of the Town and Country Planning Act 1990. He was committed to the Crown Court for a confiscation order to be considered, pursuant to the Proceeds of Crime Act 2002, and for sentence. On 15 January 2018 in the Crown Court at Blackfriars, a confiscation order was made by His Honour Judge Peter Clarke QC in the sum of £95,920 under section 6(5)(b) of the Proceeds of Crime Act. He was also fined £25,000. The appellant now appeals against both sentence and confiscation order by leave of the single judge. 2. It is necessary to set out the background which goes back some years. The appellant is the freehold owner of 282-284 Caledonian Road, London N1 1BA, as well as being the owner of other properties. At all material times the property at 282-284 Caledonian Road was subject to an Enforcement Notice dated 22 August 2003. That Enforcement Notice was issued because the appellant had constructed a mansard roof extension on the property which materially exceeded the dimensions for which planning permission had been given by the local council as the planning authority. The extension was built taller and deeper and also nearer to the front wall of the building than had been approved. As a result it was visible from the street and was subsequently found, by reason of its poor design, to detract from the character of the conservation area in which the property was located. That was the basis for the Enforcement Notice, which was also contrary to the council's development plan. 3. The appellant appealed against that Enforcement Notice but on 12 February 2004 the appeal was dismissed by a Planning Inspector who found that the roof extension was visible from the street, that the alterations could be seen from a considerable number of residential properties where the poor design was very obvious, and that that was harmful to the character of the conservation area. The Inspector extended the time for compliance with the Enforcement Notice until 12 February 2005. However, the appellant did not comply either before that date or at all and on 2 November 2006 the council wrote to him, noting that the Enforcement Notice had not been complied with and seeking an explanation. That led to further contact between the council and the appellant, including a site visit. Eventually on 28 March 2007 the council wrote to the appellant in the following terms: "Further to our site meeting yesterday and Andrew Marx's letter dated 2 November 2006, I write to confirm the Council will not this time be prosecuting for the non-compliance of the enforcement notices, relating to the construction of the roof extensions at the above addresses. I would point out that development undertaken without the necessary permission may be subject to enforcement action and any permission granted not complied with correctly may also be liable for enforcement action. Should there be any further serious breaches of planning process the authority will consider taking legal action." 4. It appears from a later report made some years later in 2014 that it was considered by the council in 2007 not to be in the public interest to prosecute the appellant at that time, hence the letter dated 28 March. 5. In view of that letter, the appellant took no steps to comply with the Enforcement Notice. He continued to use the property with the roof extension as built which was let out as two flats on which he received rent. We understand that the permission as granted was for a roof extension to a hostel which would have involved the provision of one extra room, which may or may not have been a bedroom for accommodation and a kitchen. 6. It is accepted on the appellant's behalf that his conduct remained unlawful. There was no planning permission and the Enforcement Notice, although not to be the subject of a prosecution, was not withdrawn. 7. In 2014 the appellant sought to regularise the position by applying for a Certificate of Lawfulness, that is to say for a certificate that the existing use of the roof extension as top floor flats was lawful. That application was rejected by the council and an appeal was unsuccessful. The Planning Inspector determined, in a decision dated 18 February 2016, that the council's refusal to grant a Certificate of Lawful Use in a case where there was an extant Enforcement Notice in being was well-founded. The Inspector recorded that it was common ground at that time that the extension had not been modified to comply with the Enforcement Notice and concluded that the entire unmodified extension remained unlawful so that any use of it would be similarly unlawful. 8. It appears that it was this application for a Certificate of Lawful Use and the failure of the application and the appeal which led the council to reconsider the question of prosecution. The council decided that it would institute a prosecution and did so by summons issued on 28 June 2016. The terms of the summons were as follows: "On or about 18 February 2016, you being the owner of 282-284 Caledonian Road, London, N1 1BA breached an Enforcement Notice issued by the London Borough of Islington on 22 August 2003 in respect of unauthorised developments at 282-284 Caledonian Road by failing to comply with the remedial action required in Schedule 4 of the Enforcement Notice, contrary to section 179(1) and (2) of the Town and Country Planning Act 1990." 9. The appellant challenged the commencement of that prosecution, contending that it was an abuse of process in view of the terms of the letter dated 28 March 2007. That application was rejected by the magistrates who declined to state a case for any question of law to be determined. That refusal to state a case was, we were told, upheld by the Divisional Court. 10. The appellant's next move was to seek permission to bring judicial review proceedings. His application for such permission came before Patterson J who rejected it. She said: "The letter makes it clear that 'this time’ the defendants [the council] would not be prosecuting for non-compliance of the Enforcement Notice. It was not a clear and unambiguous representation that at any other time there would not be any prosecution. Had it been the Enforcement Notice would have been withdrawn, which, at no time, has it been. The defendant is, therefore, free to prosecute the claimant [that is to say the appellant] at any other time. There was no requirement for further breaches to be shown, there was an ongoing breach for failing to comply with the Enforcement Notice. There is nothing irrational, in the circumstances, of a later prosecution of [the appellant]. Apart from rare circumstances, it is offensive not to give effect to the public interest to prosecute. The Decision Letter of 18 February 2016 provided a trigger for the defendant to reconsider prosecution. There were no exceptional circumstances for no prosecution to be brought. The other Planning Permissions that [the appellant] refers to post-date, the unauthorised development here in 2011 and 2009 respectively and were considered on their own individual merits." 11. The appellant was then convicted in the Magistrates' Court and, as we have said, was committed to the Crown Court to deal with confiscation and sentence. 12. The confiscation order which the council sought was calculated on the basis of the gross rental income from two self-contained flats occupying the unauthorised enlargement of the mansard roof space. The council accepted the figures for rental income provided by the appellant in making its calculation, resulting in a benefit figure from the date of non-compliance with the Enforcement Notice, that is 12 February 2005, to the date of conviction on 26 September 2016 of £243,817.98 including an allowance for inflation. 13. The appellant's position was that it was wrong in principle, in view of the terms of the letter of 28 March 2007, for there to be confiscation proceedings, but alternatively that any benefit should be calculated limited to the period from 2016 onwards. 14. By the time of the hearing before the judge, it was common ground that this was not a case of general criminal conduct and therefore the lifestyle presumptions in the Proceeds of Crime Act 2002 were not applicable in this case and what needed to be assessed was the benefit from the appellant's particular criminal conduct. 15. The judge referred to the case of Sangha in the Court of Appeal [2008] EWCA Crim. 2562 , [2009] 2 Cr.App.R (S) 17, to which we will return, and indicated that he was guided by what was said in that case. He rejected the submission made on behalf of the appellant that the only period of time which should be considered was the period between the issue of the summons and the conviction, saying that that did not reflect the criminality of this appellant's actions, but he also said that the letter sent by the local authority on 28 March 2007 (when it said that it would not be taking any action at that time) meant that it was asserting that it was not then in the public interest to prosecute and that that also needed to be taken into account. 16. In that context, the judge considered that he needed to address the question of proportionality as required by section 6(5) of the Proceeds of Crime Act 2002 and he indicated that on the facts of this case he found that to be a difficult question. The course which he proposed to take, referring to what was said in Waya [2012] UKSC 51 , [2013] 1 AC 294 , about the need for resolution of such matters on a case by case basis, was that it would be appropriate to make no calculation of benefit by reference to the period from the date of compliance up until the date of the letter of 28 March 2007, to take 50 per cent of the rent obtained by the appellant thereafter and to attribute that 50 per cent sum to the appellant's criminal conduct, making no adjustment for changes in the value of money. Adopting that course, the judge assessed the benefit to be £95,920 and since there was no issue about recoverable amount, ordered that sum to be paid within the next three months, with one year's imprisonment in default. 17. The appellant's written grounds are, first, that the confiscation order was wrong in principle and manifestly excessive by reference to the planning history and in particular the terms of the letter dated 28 March 2007 to which we have referred, the effect of that letter, as it was submitted, being that the council would not prosecute for the then breaches of planning control. The second ground was that the confiscation order imposed was a breach of section 6(5) of the Proceeds of Crime Act 2002, in that it was disproportionate. Again, reference was made to the planning history, in particular the letter of 28 March 2007, and the fact that the council as the prosecuting and planning authority had decided at that time that it was not in the public interest to prosecute. The third ground related to sentence and submitted that that too was wrong in principle and manifestly excessive.In supplementary written submissions, and in oral submissions today however, counsel have focused in particular on the terms of the charge, which we have set out, as a result of a point raised by the court. 18. The appellant was charged with being in breach of the Enforcement Notice "on or about 18 February 2016", that being, as it happens, the date of the refusal of the appeal seeking a Certificate of Lawful Use. That charge, in our judgment, must be interpreted as relating to a criminal offence committed on a single day. It was submitted that the words "or about" provide a degree of latitude, so as to refer to a period, but we do not accept that submission. Those words are there to provide for the possibility that the offence in question may not have been committed on 18 February but on some other day at about that time - the precise date of the offence not being a material averment forming part of the offence. It remains, however, a charge which relates to a single day in February 2016, on or about the 18th day of that month. That is the only criminal conduct of which the appellant has been convicted. It was for the council, as the prosecuting authority, to decide the period over which the conduct charged should extend. Section 179(6) of the 1990 Act makes that clear. It says: "An offence under subsection (2) or (5) may be charged by reference to any day or longer period of time and a person may be convicted of a second or subsequent offence under the subsection in question by reference to any period of time following the preceding conviction for such an offence." 19. Here the council chose to charge by reference to a single day. 20. The question arises therefore whether the calculation of benefit for the purpose of confiscation proceedings can extend over any greater period; specifically whether it can extend in respect of the whole period from 2007 onwards to the date of conviction. The prosecution says that it can. The appellant says that it is limited to the benefit obtained on a single day. 21. This point was not taken below. The case there on behalf of the appellant was that there should be no confiscation at all in view of the 2007 letter, or alternatively that the benefit should be calculated from the date of the summons in 2016 which would have resulted in a benefit of the order of about £10,000. There was reference in the course of argument to the fact that the charge covered a single day, but that was in the context of the appellant resisting the argument that this was a case of general criminal conduct so that the lifestyle assumptions should apply. That was, so far as we can see, the only context in which the point arose, which is rather different. By the time of the hearing before the judge, the prosecution had accepted that it was not a case of general criminal conduct and therefore the point was not pursued in submissions before him. Nevertheless, although the point was not taken, it is a point of law and we permit it to be taken in this court. 22. We therefore turn to the provisions of the Proceeds of Crime Act 2002. Section 6 sets out the conditions for proceeding to the making of a confiscation order. They include that a defendant is convicted of an offence or offences in proceedings before the Crown Court, or that he is committed to the Crown Court for sentence in respect of an offence or offences under various provisions of the Sentencing Act, or that he is committed in respect of an offence under section 70 with a view to confiscation being considered. The court then has to decide whether or not the defendant has a criminal lifestyle, as it is accepted in this case that he does not. Then it has to decide whether he has benefited from his particular criminal conduct and go on to decide the recoverable amount. 23. These provisions are developed further at section 76. Particular criminal conduct is defined at subsection (3): "Particular criminal conduct of the defendant is all his criminal conduct which falls within the following paragraphs— (a) conduct which constitutes the offence or offences concerned ... " 24. We need not set out (b) or (c). Subsection (4) provides: "A person benefits from conduct if he obtains property as a result of or in connection with the conduct." 25. It is clear that the benefit which the court needs to identify is the benefit obtained "as a result of or in connection with" the criminal conduct of which the defendant has been convicted, or in respect of which he has pleaded guilty. There is no scope for the court to find that the defendant has committed other or more extensive offences and to go on to identify the benefit which he has received from such further offending. This is apparent from the clear words of the statute but is in any event confirmed by the commentary in Blackstones Guide to the Proceeds of Crime Act 2002 at paragraph 2-58, referring to the distinction between general and particular criminal conduct: "The crucial distinction is that an inquiry into particular criminal conduct is restricted to the offences which are proved or admitted in the current proceedings, including offences taken into consideration (section 76(3)). The prosecution cannot embark on a trawl through the past and the judge cannot apply the assumptions. The benefit resulting from the offences must be proved on the balance of probabilities by evidence and necessary inference from the circumstances." 26. The reference to offences which are admitted refers to admission by a guilty plea. 27. Mr Ranatunga for the council accepted this position in his clear and helpful submissions, but he submitted nevertheless that the words "in connection with" in section 76(4) were wide words which were capable of extending the scope of the relevant benefit, and did extend it in this case, with the effect that the benefit received by the appellant over the whole period since 2007 was obtained in connection with the conduct of which he was convicted, that is to say in connection with the offence committed on or about 18 February 2016. He pointed out that the offence of failing to comply with the Enforcement Notice was a continuing offence which occurred at any time after the end of the period for compliance: see the terms of section 179(1) and (2) of the 1990 Act. He pointed out also that there was no doubt, indeed it was agreed and was recorded as being agreed in the Planning Inspector's appeal decision dated 18 February 2016, that the roof extension had not been reduced in size, as required by the Enforcement Notice, and that no modification had taken place since the date of 18 February 2005, by which the appellant had been required to comply with the Enforcement Notice. It was therefore, he submitted, a case where there was clear and uncontested evidence of criminal conduct over a lengthy period from 2005. 28. In support of this submission as to the wide effect of the words "in connection with", he relied on R v Sangha which, as we have already mentioned, was also relied on by the judge. This was a case of carousel fraud, as is clear from the summary at paragraph 1 of the judgment of Richards LJ and the terms of the indictment which are set out at paragraph 12. The fraud involved a number of different stages, as arises in a case of carousel fraud, but the defendants in that case were only alleged to be involved at one of the stages of the fraud in question. Thus although the terms of the indictment described the entirety of the fraud, the defendants in the case were only alleged to have been involved in stage 3 of what was described in the indictment - that was the only case advanced against them at the criminal trial. A confiscation order was however made which extended to the benefit obtained as a result of the commission of the fraud as a whole and that result was challenged on appeal. At paragraph 26, Richards LJ said this: "By virtue of s.71(1A) and (1D) of the 1988 Act, a defendant's benefit is confined to benefit from 'relevant criminal conduct', which means for present purposes the offence of which he has been convicted. Those provisions accord both with first principles, namely that an offender should only be sentenced in respect of matters that have been alleged and proved against him before the appropriate forum, and with the line of sentencing authorities deriving from R v Canavan, Kidd and Shaw [1998] 1 WLR 604 [and other cases] ... " 29. Sangha was a case under the 1988 Act, but that makes no material difference for present puroses. 30. Thus, Richards LJ affirmed what he described as first principles, that an offender could only be sentenced in respect of matters alleged and proved. The passage on which Mr Ranatunga particularly relies is paragraph 30: "Where there has been a contested trial, the jury's verdict and the factual basis upon which it was reached (to the extent that this can be determined from what happened at the trial) will of course have an important part to play in setting the parameters of the confiscation proceedings, and it will not be open to the judge to act inconsistently with the verdict or its factual basis when dealing with matters of confiscation. In our judgment, however, Mr Tedd's submissions seek to place unwarranted limitations upon the confiscation proceedings by reference to the verdict and its factual basis. The questions that have to be determined in the confiscation proceedings (whether the defendant has benefited from the relevant criminal conduct, the amount of any such benefit, and the amount recoverable from him) are distinct from those falling for determination during the trial process itself. The standard of proof is different, namely that applicable in civil proceedings. There will normally be evidence additional to that led at the trial. The court responsible for making the relevant determinations is the judge, not the jury. Whilst the judge must act consistently with the jury's verdict and its factual basis, it is open to him, in the light of the evidence as a whole, to make additional and more extensive findings of fact than those upon which the verdict was based." 31. Mr Ranatunga derived three points from this passage. First he submitted that the case shows that the judge in the confiscation proceedings must not act inconsistently with the jury's verdict. He submitted that a finding that the appellant's benefit from criminal conduct covered the whole period from 2007 was not inconsistent with the commission of an offence on 18 February 2016. Second, he relied on the differences identified in this paragraph between the procedure, evidence and standard of proof which apply respectively in criminal and in confiscation proceedings. Third, he relied in particular on the concluding sentence, submitting that the judge in confiscation proceedings is entitled to make additional and more extensive findings of fact than those upon which the conviction is based and that the confiscation court is entitled to take into account all of the evidence it has heard in the confiscation proceedings, provided only that it acts consistently with the verdict and the factual basis for the verdict. 32. Initially Mr Ranatunga was inclined to advance reliance on what was said in Sangha as an additional and alternative point to his submission as to the meaning of "in connection with", but on reflection he accepted that its relevance is essentially to support that submission rather than to provide an alternative if that submission is not accepted. With respect that must be right. The court can only proceed in accordance with the terms of the statute and if the conduct in question is not obtained in connection with the criminal conduct in question there is no scope for including it in the calculation of benefit for confiscation purposes. 33. We cast no doubt on what Sangha decides or what was said by Richards LJ in paragraph 30. However, there is nothing there, in our judgment, which entitles a court to extend the meaning of particular criminal conduct beyond the conduct of which a defendant has been convicted or in respect of which he has pleaded guilty. The benefit obtained as a result of or in connection with such conduct must be referable to the offence with which the defendant is charged and of which he is convicted. It is not open to a court in confiscation proceedings to find that benefits obtained over an extended period were obtained in connection with the commission of an offence on a single day - at any rate on the facts of this case. The rent obtained by the appellant letting out the flats in question from 2005 or 2007 onwards cannot be regarded as having been obtained in connection with the criminal conduct of which he was convicted, which consisted only of being in breach of the Enforcement Notice on a day on or about 18 February 2016. 34. This conclusion means that the appeal against the confiscation order must be allowed. The benefit which the appellant obtained was limited to a single day's rent which we were told amounts to £58. Accordingly, we quash the confiscation order made by the judge and instead make an order in the sum of £58. It is therefore unnecessary to deal with the other grounds of challenge to the judge's order in the appellant's written grounds. We will briefly explain why that is. 35. The first ground, that it was wrong in principle to make a confiscation order at all, was dependent on the appellant's submission as to the effect of the 2007 letter. It was accepted however, in the light of the decision of Patterson J, that this letter did not prevent subsequent prosecution provided that reasonable notice was given. Once it is appreciated that the offence with which the appellant was charged and the benefit which can be confiscated from him is limited to a benefit obtained on a single day in 2016 this ground falls away. Similarly, ground 2 contended that it was disproportionate to make a confiscation order in respect of the period from 2007, when the council as the prosecuting authority had decided that it was not in the public interest to prosecute at that time. Again, therefore, in the light of our decision, this ground falls away and we need not address it. 36. We turn to the appeal against sentence. The judge imposed a fine of £25,000, but it is fair to say did not give reasons for selecting a fine at this level. Mr Paget for the appellant submitted that the principal object of sentencing in planning cases was coercion, that is to say to coerce a defendant into compliance with an Enforcement Notice, and that this aspect did not arise here as by the time the appellant came to be sentenced the position had been regularised by the grant of planning permission for a different roof extension which has now been constructed. However, although coercion may be a factor, and sometimes an important factor in sentencing in such cases, we would not accept that it is the only or even that it is necessarily the principal object of sentencing in such cases. 37. This was a case where even though the conviction relates to conduct on a single day, it is accepted that the appellant had acted unlawfully from 2005 onwards by failing to comply with the Enforcement Notice. It is clear that he did so deliberately and with a view to financial gain. Moreover, as we have indicated, the extension as he built it was not only visible from the street, but was found by reason of its poor design to detract from the character and appearance of the conservation area. 38. The appellant has a number of material convictions for planning offences involving other properties he owned in the Council's administrative area. On 10 November 2007 he pleaded guilty to breaching an Enforcement Notice in respect of a property at 303-311 Caledonian Road and was fined £5,000. On 7 May 2015, in respect of a property at 280-282 Holloway Road, he pleaded guilty to failing to respond to a planning contravention notice in time and was fined £250. On 22 June 2015 in respect of 374 Caledonian Road, he pleaded guilty to breaching an Enforcement Notice relating to the unauthorised use of a basement flat. He was fined £2,000 and a confiscation order was made in the sum of £70,000, covering the rent received. 39. This history indicates a continuing willingness to disregard planning requirements, no doubt for financial gain, and the history in our view fully justified the level of fine imposed. The judge rightly considered that the letter dated 28 March 2007 acted as a warning and could not be relied upon indefinitely, but nevertheless the appellant chose to continue with what is accepted as being his unlawful conduct, albeit conduct which was not the subject of the prosecution. Nevertheless that is a matter which we are entitled to take into account for the purpose of sentence. 40. The sentence imposed by the judge, in our judgment, reasonably related to and reflected the defendant's criminality. It was neither wrong in principle nor manifestly excessive and the appeal against sentence is therefore 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

2019_02_27-4522.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/413/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/413

16dd304467da85f06111878a61c3ebffc33f99c7ce1a1cf08883b75921cfeaf3

[2011] EWCA Crim 754

EWCA_Crim_754

crown_court

Neutral Citation Number: [2011] EWCA Crim 754 Case No: 201005518 D4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 18 March 2011 B e f o r e : LORD JUSTICE AIKENS MR JUSTICE KEITH MRS JUSTICE THIRLWALL DBE - - - - - - - - - - - - - - R E G I N A v SERGIO CHARLES SOUTH - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A

Neutral Citation Number: [2011] EWCA Crim 754 Case No: 201005518 D4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 18 March 2011 B e f o r e : LORD JUSTICE AIKENS MR JUSTICE KEITH MRS JUSTICE THIRLWALL DBE - - - - - - - - - - - - - - R E G I N A v SERGIO CHARLES SOUTH - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 0207 404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - Mr D Claxton appeared on behalf of the Appellant Mr S Jones appeared on behalf of the Crown - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE AIKENS: This is an appeal against conviction by Sergio South. The appeal is made with the leave of the single judge. 2. On 9 September 2010 in the Crown Court at Bournemouth, after a trial before HHJ Harvey Clark QC and a jury, the appellant was convicted of burglary. On 8 October 2010 the appellant was sentenced to 39 months' imprisonment for that offence. At the same time, he was sentenced to a total of 15 months' imprisonment for other offences with which we are not concerned. The total sentence of imprisonment imposed was therefore 54 months. The judge ordered that 185 days spent in custody on remand should count against that sentence. 3. The facts giving rise to the charge are as follows. On 13 November 2009 a house at 67 Richmond Park Road, Bournemouth was burgled between the hours of 12.30pm and 3.30pm. At the time three students lived there. One of them was Spencer Dale. The other two students were Jason and Shane Morgan. Mr Dale left the house at about 12.30pm. He did so through the back door, as was the usual practice for the three students who preferred to use that door rather than the front door. The two Morgans were at that time asleep. 4. At about 3pm Jason came downstairs and saw that the glass pane to the front door, just above the lock, had been smashed and that the door had been opened. A plastic money jar, aftershave, perfume, an iPod Shuffle, an X-Box, a camera and a black rucksack had all been taken. 5. On the floor below the letterbox of the front door there were some envelopes which had footmarks on them. These envelopes were subsequently given to the police and they were forensically examined. The evidence concerning those footprints was adduced at the trial. 6. The appellant had three previous convictions for dwelling house burglaries between March 1998 and July 2003 and one conviction for attempted dwelling house burglary in October 2007. He was arrested in respect of this case on 15 November 2009, and his clothes and shoes were taken by the police. Amongst his possessions the police found an iPod. On the following day Mr Dale identified that iPod as being the one that had been stolen in the burglary. 7. The appellant was charged and cautioned on 23 December 2009. He made no reply after caution. 8. The defence case statement was served in March 2010. It did not mention a defence of alibi. On the first day of the trial, on 6 September 2010, the appellant served a Notice of Intention to introduce Alibi Evidence. 9. At the trial the prosecution case was that the appellant had burgled the house. The prosecution relied on (1) the forensic evidence concerning the footmarks on the envelopes, which the forensic scientist, Michael Jones, said provided "moderately strong" evidence as coming from the footwear seized from the appellant. (2) The prosecution relied on the fact that the iPod which Mr Dale had said was his and was taken from the house was found in the appellant's possessions upon arrest. (3) The prosecution was permitted to adduce "bad character" evidence of the appellant's previous convictions concerning dwelling house burglaries. The prosecution said that those convictions demonstrated a propensity to commit similar offences such as this one. (4) The prosecution relied upon the fact that the appellant had had the opportunity to put forward his alibi defence and an explanation of how the iPod came to be in his possession when he was arrested and cautioned but he had not done so. 10. The defence case was that between 10.30 or 11am until about 4pm on 13 November 2009, the appellant had been at the house of Mr Michael White, helping him repair a motorcycle. The appellant said he had not been involved in the burglary. His case was and his evidence was that he had bought the iPod from a beggar who had asked £10 for it, saying that he (the beggar) had found it in a gutter. The appellant said in evidence that he had given the beggar £3 for it to "get him off my back". 11. After the appellant had given evidence and the defence was about to call Mr Michael White in relation to the alibi defence, the prosecution applied, under section 100(4) of the Criminal Justice Act 2003 to adduce "bad character" evidence relating to Mr White's previous convictions. He was then a man of 49 who had been convicted of 53 different offences of dishonesty between 1978 and 1996. The offences involved theft, burglary, handling, obtaining by deception, forgery, using false instruments and other similar offences. Having heard argument, the judge ruled that the application be allowed. 12. In his ruling the judge said that the evidence that Mr White might be giving from the witness box "is a matter in issue in the proceedings, and insofar as it purports to support the defendant's alibi, is of substantial importance in the context of the case as a whole". The judge held that the fact that Mr White had "so many convictions" for dishonesty went very much to his credibility. The judge said that he recognised that the last of those convictions was in 1996. However, he also said that those convictions showed that for 18 years of Mr White's life he "was habitually committing offences of dishonesty". Therefore, despite the fact that there had been no convictions since 1996, the judge ruled that the fact of those convictions was a matter that should be drawn to the attention of the jury if Mr White gave evidence, because it was a matter that went to his credibility as a witness. It was particularly important, the judge said, because it was the prosecution case that the defendant had "concocted" his alibi. 13. Michael White then gave evidence to the effect that the appellant was with him from about 12 noon on 13 November for about 4-5 hours. He accepted that he had the convictions listed. However, he said, "I don't think that I have ever lied on behalf of myself. Most of the offences I pleaded guilty to, but three or four I pleaded not guilty. When I pleaded not guilty and was found guilty the court got it wrong". Mr White said that the appellant told him in January 2010 that he faced the burglary charge and that it was subsequently, as a result of talking to his partner, that he (Mr White) thought that the appellant was with him on 13 November 2009. 14. When the judge summed up the matter to the jury, he reminded them of Mr White's evidence and the fact of his convictions, and Mr White's evidence about those convictions. The judge did not give the jury any directions on what effect, if any, the fact of those convictions should have on their approach to Mr White's evidence of the alibi or possible alibi of the appellant, or on their approach to the issue of Mr White's credibility as a witness. 15. The principal ground of appeal is that the judge erred in admitting all of the 53 previous convictions of Mr White as "non-defendant bad character" evidence pursuant to section 100 of the Criminal Justice Act 2003 . As an alternative, it is submitted that the judge should have restricted the number of convictions that he admitted to those that concerned offences involving "untruthfulness". It is submitted that the judge failed properly to exercise his judgment in not limiting the number of convictions admitted. 16. Sections 100(1) , (2), (3)(a) and (b) and sub-section (4) of the Criminal Justice Act 2003 as follows: "100 Non-defendant’s bad character. (1) In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if— (a) it is important explanatory evidence (b) it has substantial probative value in relation to a matter which— (i) is a matter in issue in the proceedings, and (ii) is of substantial importance in the context of the case as a whole or (c) all parties to the proceedings agree to the evidence being admissible. (2) For the purposes of subsection (1)(a) evidence is important explanatory evidence if— (a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and (b) its value for understanding the case as a whole is substantial. (3) In assessing the probative value of evidence for the purposes of subsection (1)(b) the court must have regard to the following factors (and to any others it considers relevant)— (a) the nature and number of the events, or other things, to which the evidence relates; (b) when those events or things are alleged to have happened or existed; ... (4) Except where subsection (1)(c) applies, evidence of the bad character of a person other than the defendant must not be given without leave of the court." 17. Mr Claxton, for the appellant, first submits that the convictions of Mr White do not satisfy the conditions of section 100(1)(b) . He submits that the evidence of Mr White's convictions do not have "substantial probative value" in relation to a matter which is in issue in the proceeding and it is not of substantial importance in the context of the case as a whole. Mr White's convictions are only relevant to one matter; that is, whether he was telling the truth about the fact or possibility that the appellant was at his house helping him repair a motorbike from about 12 noon to 4 or 5pm on 13 November 2009. 18. This is certainly a matter which is in issue in the proceedings and that matter is of substantial importance in the context of the case as a whole. After all, if the jury thought that the alibi might be true, they would have had to acquit. 19. Therefore the emphasis must be on whether those convictions of Mr White have "substantial probative value" in relation to whether he was telling the truth about the fact or possibility of the appellant being with him at the time the burglary was committed. Mr Claxton in this context reminds us of the remarks of Pitchford LJ in R v Brewster and Cromwell [2010] 2 Cr App R 20 at paragraph 23, where the learned Lord Justice said that the questions are: is the creditworthiness of the witness an issue of substantial importance; and is the bad character relied upon of substantial probative value in relation to that issue? 20. In our judgment, the creditability of Mr White's evidence on the alibi is of substantial importance in the trial as a whole. Therefore, the question is whether those convictions are of "substantive probative value" in relation to that issue. In order to decide that, the judge had to have regard to the factors that are set out in section 100(3) . The judge did not say in terms in his ruling that he had had regard to those factors. However, we are satisfied that it is clear that, broadly speaking, he did so. 21. The nature and number of those "events" are 53 convictions for offences of dishonesty over a period from 1978 to 1996. Some 12 of those offences, occurring over the period 1980 to 1996, were, it appears from the antecedents list, for obtaining by deception, forgery and using false instruments. All of those offences must have involved some form of untruthfulness by White, whether in words or deeds. Mr Claxton conceded that much before us. 22. The judge said that he recognised the distinction between offences of dishonesty and the issue of untruthfulness, although he did not go on to say how that should be reflected in the decision that he had to make in relation to the admission of these convictions. The judge did recognise that all those convictions were within the period 1978 to 1996, but he did not distinguish between when the convictions for "untruthfulness" occurred, or what those particular offences were, or whether those "untruthfulness" offences were the subject of guilty or not guilty pleas. 23. The offences of "untruthfulness", by which we include obtaining property by deception, using forged instruments and forgery, were, as we have noted, committed between 1980 and 1996. In particular, we note that in 1990 Mr White was put on probation for 18 months for two offences of forgery and three of using a false instrument under the Forgery and Counterfeiting Act 1981 , and in 1996 he was put on probation for two years for obtaining property by deception. We do not have any further details of those offences and it does not appear that the judge did either. 24. Perhaps because the judge did not have details of those offences, he did not consider at all the matter of the similarities and dissimilarities between those offences and what Mr White was alleged to have done or be about to do in this case, viz to give a false statement and to lie on oath that the appellant was with him on 13 November 2009. The judge should have done that comparison to see if the similarity was such that it demonstrated that there was a substantial probative value in the convictions (or some of them) of Mr White, in relation to the truthfulness or otherwise of his proposed alibi evidence. 25. In our judgment, the judge failed properly to make a full assessment of the probative value or otherwise of the convictions of Mr White to see if they did have a substantial probative value in relation to the matter of his proposed evidence concerning alibi of the appellant. However, we have also concluded that if he had done this exercise, he would have been bound to conclude that the convictions which related to "untruthfulness", i.e. those of obtaining property by deception, forgery and using false instruments, did have substantial probative value in relation to his proposed evidence concerning the alibi of the appellant. Therefore the judge would have been bound to permit those to be adduced as "non-defendant bad character" evidence. However, we conclude that he would not have permitted the adduction of the remaining convictions. 26. The question, therefore, is whether the introduction of irrelevant convictions and the failure to give any direction to the jury on how they should approach the issue of Mr White's credibility and his evidence in the light of those convictions which were admitted in evidence, makes this conviction unsafe. 27. The fact that the iPod was recovered from the appellant's possessions two days after the burglary was powerful evidence against him. We are unimpressed by the submission that the appellant's explanation of the purchase from the beggar was credible. We are quite satisfied that a jury would have regarded that explanation as incredible. 28. Mr Claxton submitted that there were difficulties about the evidence of Mr Jones, the foot imprint specialist. Mr Claxton pointed out that Mr Jones had said that the evidence relating to the footprint was "moderately strong support" for the proposition that the appellant's shoe had made the imprint on the envelopes. Mr Claxton told us that, in cross-examination, Mr Jones had said that this expression reflected a statistical probability of the footprint having been made by the shoes of the appellant which was considerably more than a 50 per cent probability, because the linguistic phrases used, such as "weak or limited support" or "extremely strong support", were based on probability which was itself based on a logarithmic scale. 29. In connection with this point, Mr Claxton referred us to statements of Thomas LJ in R v T (Footwear mark evidence) [2011] 1 Cr App R 9 at paras 73 and 74 in particular. Thomas LJ, giving the reserved judgment of the court, stated that if a footwear examiner expressed a view that went beyond saying that the footwear could or could not make the mark concerned, the report should make it clear that the view is subjective and based on experience of the examiner, so that words such as "scientific" used in making evaluations should not in fact be used because they would, before a jury, give an impression of a degree of precision and objectivity which is not present given the current state of expertise. The factors that the expert does use should, however, be set out and explained. 30. In the present case, the evidence was that Mr Jones had worked as a scientist in this area since 1982 and had been involved in numerous cases concerned with footwear analysis and comparison of footprints. His evidence was that this footprint was in agreement with the size, pattern, detailed alignment and degree of wear with the trainer of the appellant that had been seized from him upon arrest. The zigzag bar pattern and the curved tramline were similar, and the trainers, which were size 9, were consistent with the footprint which was of size 9 or 8 but not size 10. Mr Jones' evidence was that he encountered the type of footwear seized from the appellant in only 2 per cent of cases that he dealt with as a forensic examiner of footwear and footprints. He also said that burglars frequently used sports trainers. 31. In our view, the evidence of the expert did not transgress in any way the guidelines set down by this court in R v T . Mr Jones' evidence was based on his experience, and he gave his evidence in a manner which enabled the jury to make a decision on whether or not they were sure that those footprints were made by the appellant's trainers. 32. In addition to that scientific evidence, there was the fact that the three occupants of the house did not use the front door habitually to get in and out; they used the back door. 33. In addition, there was the supporting evidence of the failure of the appellant to mention at the time of charge and caution either the alibi or how he got the iPod. Indeed neither was mentioned in the defence case statement. Mr Claxton pointed out that the prosecution knew of the proposed alibi defence and Mr White's proposed evidence at the time of the first PCMH, and that the prosecution also knew the evidence about the purchase of the iPod at an early stage. But the fact remains that the appellant was not prepared to put those in a formal document until a much later stage in the proceedings. 34. As noted, the question we have to ask is whether this conviction is safe despite the fact that the judge wrongly admitted all 53 convictions of Mr White as "non-defendant bad character" evidence and failed to give the jury any direction on how to approach Mr White's evidence in the light of that back character evidence of all his previous convictions. 35. We have, after analysis and consideration, come to the very clear conclusion that this conviction was entirely safe. There was powerful evidence against the appellant in the form of the recent possession of the iPod, the incredible story of the purchase of it and the footmark on the envelopes at the front door where the burglar had broken in. In support, there was the failure to mention the alibi defence or the purchase of the iPod at the charge and caution stage. There was the late introduction of those two aspects, and the properly admitted evidence of the appellant's previous convictions for burglary. 36. Therefore we must dismiss this appeal.

2011_03_18-2665.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/754/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/754

a780917ec42059dfa85a672b1954b406666d1f6522e8badb0a7b3b82281fbe85

[2012] EWCA Crim 1869

EWCA_Crim_1869

crown_court

Neutral Citation Number: [2012] EWCA Crim 1869 Case No: 2012/0987/B4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2(A 2LL Date: Tuesday 3 April 2012 B e f o r e : LORD JUSTICE MOSES MR JUSTICE CALVERT-SMITH MRS JUSTICE SHARP DBE - - - - - - - - - - - - R E G I N A v RAK KOLI - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020

Neutral Citation Number: [2012] EWCA Crim 1869 Case No: 2012/0987/B4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2(A 2LL Date: Tuesday 3 April 2012 B e f o r e : LORD JUSTICE MOSES MR JUSTICE CALVERT-SMITH MRS JUSTICE SHARP DBE - - - - - - - - - - - - R E G I N A v RAK KOLI - - - - - - - - - - - - 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 J Hodivala appeared on behalf of the Applicant Mr W Hughes appeared on behalf of the Crown - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE MOSES: This is an application for leave to appeal against conviction that has been extremely well argued by Mr Hodivala on behalf of the appellant. The issue relates to a conviction before Mr Recorder Fortune for two offences of failing to comply with a Serious Crime Prevention Order. The conviction came on a Friday, Friday 20th January 2012, at Southwark Crown Court. 2. The facts are not particularly material to the issue in the appeal which relates to concern that the jury came under pressure to return verdicts that Friday afternoon. The allegation was that this appellant had in his possession items in breach of an order, the Serious Crime Prevention Order, made on 4th February 2011. It was suggested that he was in possession of mobile telephones, a Think Pad computer and a motorcar without notifying, as the order required him to do, the Serious Organised Crime Agency. The appellant, it is important to record, was convicted of only two out of three counts on the indictment. He was acquitted of one of the allegations. 3. The trial had lasted three days and it is clear that the appellant had the considerable benefit of being defended by Mr Hodivala because, despite substantial evidence of non-notification in relation to all the items in question, he was acquitted on the second count and there was a majority verdict on the first. 4. What is material is what happened on the day that the jury returned their verdicts at Southwark Crown Court. As was the Recorder's wont; they had sat at 9.30 (as they had throughout the trial) and that morning the judge received a note from one of the jurors. It is unnecessary to read it out in full, but it plainly was a matter of serious concern to the Recorder and to counsel both for the prosecution and for the defence. The juror made it clear that she was unable to come back the next week, as she put it: "I literally can't endure another week." She then set out, as my Lady, Sharp J pointed out arguendo, every possible reason and (if one is to be unkind) excuse as to why that was so and as to the serious impact on her health as a result of having to try this case and sit on a jury. 5. Sensibly the Recorder notified counsel and there was a discussion that morning as to what he should do. The responsibility was of course his but counsel, Mr Hodivala, made sensible submissions as to the concern there was, should the case go on that afternoon, that the juror would be so concerned for fear it would run into the next week that she would be unable conscientiously and properly in accordance with her duty to consider the verdicts. 6. The judge decided that the case would go on with all 12 of the jurors. In our judgment that was a view that he was entitled to take. The alternative was to discharge that juror, but the judge having regard to the terms of the note was perfectly entitled to take the view that provided the case did not go on beyond that week she would conscientiously consider her verdicts in accordance with the oath that she had taken. 7. The trial continued with the jury being sent out that morning at 11.20 and after lunch further submissions from Mr Hodivala raising concerns as the afternoon went on as to whether the time might come that that juror ought to be discharged and indeed a concern that her anxiety would infect the rest of the jury so that all felt under pressure to return verdicts that afternoon without a fair and adequate consideration of the issues. 8. The time came, at 2.45, when Mr Hodivala submitted on behalf of the defence that come 3.15 or 3.30 the concern that that pressure would infect an honest and fair consideration of the issues would demand the discharge of that juror. The judge did not agree and by 3.50, having considered submissions from counsel, he decided to have the jury back to receive a majority verdict. The jury announced that they had not agreed on count 1 or on count 3, but had agreed a verdict of not guilty on count 2. The judge then said this: "Members of the jury, if I give you more time this afternoon , is there a realistic prospect that you may or might reach verdicts in respect of the two outstanding counts? May I make it very clear that you are not to be put under any pressure. You must take as much time as you wish to consider all matters with a view to returning verdicts." (our emphasis) The foreman replied: "Your Honour, we would like to request some more time to carry on considering our verdicts this afternoon ." (our emphasis) The jury then retired at 3.56 and at 4.30 the judge invited the jury to return and they returned a verdict by a majority on count 1 of 10 to 2 and a unanimous verdict in relation to failing to notify possession of a motor vehicle in relation to count 3. 9. Mr Hodivala says that in the light of the anxieties of the juror and the time of the afternoon, justice was not seen to be done and the appellant has a reasonable grievance that the pressure of time possibly infected, as the jury might have been by the anxieties of that juror, was such that they did not appear conscientiously to reach their conclusions. 10. We do not agree. Handling a jury is always a difficult task and a matter of fine judgment. A defendant on the one hand is entitled to the consideration of his case by the maximum number of jurors possible, namely 12, and only the most pressing circumstance would justify a reduction in that number of 12. On the other hand, the defendant is entitled to honest and fair consideration of his case by a juror concentrating and focusing on the issues and not distracted by personal problems of their own. It is those considerations that have led the courts frequently in the past to remind trial judges of the importance of making clear to the jury that they must not be under any pressure of time or for that matter anything else to reach their conclusion. 11. This court will not interfere with those judgments by a judge best placed to exercise his assessment of a jury having watched them during the trial unless the conclusion the judge reaches about the action he should take was outwith the range of reasonable conclusion. Our view is that in this case the judge handled this case and this jury in the way that he should have done and there is no basis for criticising his approach in seeing how this jury handled those issues during the course of the afternoon and in making clear to them they were under no pressure and in asking the jury whether they thought that it would be fruitful to consider their verdicts further that afternoon. It is of significance that both the judge and the foreman of the jury referred only to that afternoon. No suggestion was advanced that might have exacerbated the anxiety of that particular juror to suggest that the case would flow into the following Monday. The fact that the jury reached what my Lady described as nuanced verdicts is also further material on which it is possible for this court to rely to show that they did conscientiously consider their verdicts and reached verdicts without any prompting by the time they were sent for at 4.30. 12. For those reasons, this application is refused. (There followed an application for leave to appeal against sentence) 13. LORD JUSTICE MOSES: This is an application for leave to appeal against a sentence for breach a Serious Crime Prevention Order made pursuant to section 1 and section 19 of the Serious Crime Act 2007 . We grant leave. It is, in the words of Calvert-Smith J during discussions in this case, a ground-breaking case since no prosecution for these breaches has come to our attention before and certainly there are no precedents by which to set the appropriate sentence. 14. The sentence that this appellant received on 15th February 2012 was 24 months' imprisonment for breach of the two counts of which he was found guilty. It is of significance that he fought this case and that he did not plead guilty at all to any of the allegations made against him. The order that was made lasted for five years and in essence required notification of communication devices and notification relating to vehicles and conditions under which they were held. There was, but it is not relevant to this appeal, also restrictions imposed in relation to possession of cash. 15. There can be no doubt that this appellant, who is now aged 36, is an intelligent man and knew perfectly well his obligations to notify the Serious Organised Crime Agency should he have possession, use or control of any more than one mobile telephone handset with one SIM card and one number, one computer and one land line. He was also permitted to hold inactive communication offences. 16. The jury's conviction by a majority on count 1 clearly covered this appellant's failure to notify in relation to at least one, and possibly more than one, mobile telephone handset. It is apparent that in relation to some of the mobile handsets it was not possible to turn them on. The verdict was also apt to cover an IBM Think Pad. Count 3, it is easier to identify to what that related. That was possession and use of a Honda motor vehicle in respect of which he had not given the required notification. 17. There were other aggravating features of those breaches, particularly that this appellant had already got into trouble in relation to his licence by talking to a co-defendant to whom he was not allowed to speak in respect of which he was recalled at an earlier stage of his prison sentence, and also he had clearly been warned of his obligations of notification by his probation officer. The probation officer had been informed of the terms of the proposed Serious Crime Prevention Order and his licence had been altered so as to impose conditions that mirrored the requirements under the order. That forms the basis of one of the submissions advanced by Mr Hodivala. 18. There being no precedent in relation to sentence, the Recorder sensibly required written submissions from both the Crown and the defence. There is broadly agreement as to the appropriate considerations which the court ought to take into account in considering the gravity of the breaches. It must be borne in mind that Parliament has set a maximum of five years' imprisonment in respect of a breach of the order, but the court will have to take into account the lapse of time between the imposition of the original order and the date of the breach. It must take into account any history of non-compliance and the issue as to whether non-compliance has been repeated and has come in the face of warnings and requests for information. It must take into account whether the non-compliance was inadvertent or deliberate. It is of course of particular importance that the court should consider whether the breach was related to the commission of further serious offences and might lead to the conclusion that the failure to comply added to the risk that the particular subject of the order was likely to commit further offences. The court would also have to consider the harm caused by non-compliance for breach. 19. It is in that latter connection that the court will bear in mind that in relation to breaches of other preventative orders that the courts make, those breaches usually have an adverse impact on a particular member of the public or previous victim. Such protective orders are usually designed to protect members of the public who have either previously suffered at the hands of the subject of the order or in respect of whom it is feared they may suffer in the future. 20. In this case, as Mr Hodivala rightly points out, many of those considerations are absent. There is no particular member of the public that the order had in mind or class of public. The judge who originally imposed the order subsequent to passing a three-and-a-half year sentence for money laundering clearly feared that this intelligent man might be tempted to commit further serious offences. But on the particular facts of this case, nothing that this appellant possessed or did in relation to the computer could have formed the basis for showing that that risk was proving to come to pass. On the contrary, most of the breaches appear to have been rather the result of this appellant's failure to take the order seriously and failure to take his obligations seriously. That in reality is the seriousness of these two offences. The attitude that these orders were not serious orders designed to protect the public from the further commission of offences and that the obligations had to be obeyed lest the appellant be punished further. 21. Mr Hodivala submits that no further punishment was warranted. As a result of breaching the licence, in respect of which, as we have said, similar conditions were imposed to those obligations under the order, this appellant's licence was revoked. The effect was that he had to serve his original sentence from the period of 4th June 2011, roughly until the period of his release, there was some technical bail, but in reality up to 17th April 2012, the period of 256 days, the equivalent of a 17 month prison sentence. Since the conditions of the licence mirrored the conditions of the order, so Mr Hodivala submits, that was sufficient punishment and it was unwarranted for the judge to pass a greater than commensurate sentence in breach of section 153(2) of the Criminal Justice Act 2003 . We take the view that Mr Hodivala is right when he says that the 24 month sentence passed by the Recorder was manifestly excessive and gives the appearance of being designed to overcome the difficulty that it was not possible for this judge to pass a sentence to run consecutively to the date of his release in April 2012 lest he breached section 265 of the Criminal Justice Act 2003 . 22. The correct approach was to have regard to the reality and significance of the breaches in the particular circumstances of this case. We do not think that there is merit in the argument that having been recalled for breach of licence conditions identical to those imposed under the order no further punishment was warranted. The whole point was the necessity, as the original judge saw it, of not merely leaving it to those responsible for the sentence in the Ministry of Justice to decide whether the licence conditions should contain obligations of notification, but that more was required, namely the imposition of the order we have identified. In those circumstances should there, as there was in this case, be a failure to notify the consequences had to be twofold: not only recall, but also punishment. 23. We therefore turn to the appropriate punishment. In considering the appropriate punishment the court had to consider the factors which we have deployed in reaching our conclusion. There was no material to suggest that the breaches concealed some further criminal activity which the order was designed to prevent. Rather, in our judgment, the defendant fell to be punished for flouting those orders and for not taking them sufficiently seriously. In our view, to reflect that gravity, the correct sentence would have been one of 12 months' imprisonment. The effect of that will be that the sentence will run from 15th February 2012 and he will have to spend a few months beyond the date that he would otherwise have been released of 17th April. We have calculated, but this is a matter for the prison and the Ministry of Justice, probably to be about an extra four months or so. But that he should be punished by that extra term of imprisonment seems to us to be the message to be taken from these events. 24. To that limited extent the appeal is allowed and the sentence of 24 months' imprisonment on each count to run concurrently is quashed and substituted by a sentence of 12 months' imprisonment on each of counts 1 and 3 to run concurrently.

2012_04_03-2961.xml

sentence

allowed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2012/1869/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2012/1869

b91e8832a71282d9a4cf71e3ec75d7b0d94a6be8d765e7772d03cddff0c4d309

[2009] EWCA Crim 2294

EWCA_Crim_2294

crown_court

Neutral Citation Number: [2009] EWCA Crim 2294 Case No: 200802360 D3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT KINGSTON H.H. JUDGE CAMPBELL Royal Courts of Justice Strand, London, WC2A 2LL Date: 09/11/2009 Before : LORD JUSTICE STANLEY BURNTON MR JUSTICE PENRY DAVEY and MRS JUSTICE SHARPE DBE - - - - - - - - - - - - - - - - - - - - - Between : JASON DAVARIFAR Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2009] EWCA Crim 2294 Case No: 200802360 D3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT KINGSTON H.H. JUDGE CAMPBELL Royal Courts of Justice Strand, London, WC2A 2LL Date: 09/11/2009 Before : LORD JUSTICE STANLEY BURNTON MR JUSTICE PENRY DAVEY and MRS JUSTICE SHARPE DBE - - - - - - - - - - - - - - - - - - - - - Between : JASON DAVARIFAR Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Annabel Darlow for the Appellant Linda Strudwick for the Respondent Hearing date: 28 October 2009 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Stanley Burnton: Introduction 1. On 5 th October 2007 in the Crown Court at Kingston before H.H.J. Campbell the applicant was convicted of Rape contrary to section 1 of the Sexual Offences Act 2003 . On 2 nd November 2007, he was sentenced to 6 years’ imprisonment ( with time spent on remand to count towards sentence). He was made subject to a Sexual Offences Prevention Order pursuant to sections 104 and 106 of the Sexual Offences Act 2003 with a prohibition from seeking to gain employment as a taxi driver for a period of 15 years. Having been convicted of an offence listed in Schedule 3 of the Sexual Offences Act 2003 , the applicant was required to comply with the provisions of Part 2 of the Act (Notification to the police) indefinitely. 2. On 7 May 2009, following refusal by the single judge, the full Court granted the appellant leave to appeal against his conviction. We heard his appeal on 28 October 2009. We dismissed his appeal, and said that we should give our reasons for doing so subsequently. These are our reasons for dismissing the appeal. The facts 3. The complainant, GS, alleged that the appellant had penetrated her mouth with his penis, against her will. The appellant’s case was that nothing untoward had occurred. They had previously had consensual sexual intercourse, and on the evening in question he expected them to do so again. We shall summarise the salient evidence later in this judgment. Both GS and the appellant gave evidence. The essential issue for the jury was whether they accepted her evidence. 4. The judge’s summing up could not be and is not criticised. However, after the jury had retired, counsel then acting for the appellant (who was not his present counsel) mentioned to the judge that the prosecution had disclosed evidence relating to an earlier and unrelated allegation of sexual abuse made by GS. Counsel did not suggest that there was evidence that that allegation had been false. He said that it suggested that she might have had a motive for making a false allegation against the appellant, namely to “increase her credibility and to increase her sense of well-being because of her fear of not being believed in relation to the other complaint”. He said that he would have wanted to ask GS questions about her earlier allegations, but accepted that it was then too late to do so. The jury returned. The previous evening they had asked for the 999 call made by GS to be played again. That was done. The jury retired and after a short time returned a unanimous verdict of guilty. The grounds of appeal 5. Leave to appeal was given on the basis that it was arguable that the evidence relating to the earlier allegation made by GS provided a proper evidential basis for contending that it was false; that the allegation that the earlier allegation was false could and should have been put to GS in cross-examination; that if she had insisted that the earlier allegation was true, there was evidence from which the jury could infer that it was untrue; and if they did so infer, that might have affected the credibility of her allegation against the appellant and would have been capable of leading to his acquittal. 6. Leaving aside the question whether it is right, in these circumstances, to allow his appeal against conviction on the ground of his counsel’s error at trial, the issues on this appeal are: (1) Was there a proper evidential basis for alleging that GS’s earlier allegations was false? (2) If so, if the evidence relied upon by the appellant had been before the jury, was it reasonably capable of leading to a different verdict? A proper evidential basis 7. The evidence relating to the earlier allegation of sexual abuse was as follows: (1) GS made a detailed witness statement in May 2006 in which she said that when she was aged between 7 and 9 she was sexually abused and raped by DW, the adopted son of her then foster carers. She did not allege anal penetration. The first person she had told about the abuse had been a worker in her children’s home, Hayley Radic (whose married surname was Rabin): “I remember telling her I was abused as a child. I know I was on speed when I told her so I don’t think she took much notice of me.” She said that she was prepared to go to court and give evidence. (2) According to AS, who had been GS’s friend but whose relationship with her at the date of her statement to the police in July 2006 had become distant, when GS was about 13 years old, she gave her the impression that she had been sexually abused by DW. GS was upset when she spoke to AS, who tried to get her to speak to someone else, but GS thought she would not be believed. GS swore her to secrecy. Some years later, when GS was 18, she mentioned the sexual abuse again. She was angry with herself for not doing anything about it. (3) Dr Lynn Brady had been GS’s advocate since 2006. She had always found her to be honest. In March 2006 GS told her that when she lived with Mr and Mrs W she had been abused by their adoptive son DW, when she had been, she thought, between 6 and 10 years old. The abuse included anal penetration. She said he had also “fiddled” about with another girl, GC. GS had only remembered the abuse when she was in a children’s home from the age of 16. GS said she had told Hayley Rabin, but didn’t think anyone would believe her because she was on speed. It was Dr Brady who caused GS to report the matter to the police. (4) Hayley Rabin gave a statement in which she said that she worked as a social worker at the children's home where GS has been a looked-after child aged around 14 to 15. "One thing she was not was a liar. She was not a liar, if she had something to say she would say it." She had not disclosed any sexual abuse to her. If she had done so, Ms Rabin would have recorded it on her file and informed her supervisor. (5) DW was interviewed by the policy and denied GS’s allegation. (6) GC could not be traced. (7) The CPS had not prosecuted DW. 8. For the appellant, Miss Darlow, who was not trial counsel, submitted that the following matters provided an evidential basis for alleging that the allegation against DW was false: (1) There were discrepancies in GS's accounts of the rooms in which the abuse had taken place. (2) She had not mentioned anal penetration in her detailed witness statement to the police; if it had taken place, one would have expected her to have mentioned it. (3) Her assertion that she had told Hayley Rabin of the abuse was contradicted by Ms Rabin. (4) The CPS had decided not to prosecute DW: it followed that with a considered that there had been no reasonable prospect of a successful prosecution. 9. It follows from the decision of this Court in T and H [2001] EWCA Crim 1877 [2002] 1 WLR 632 that questions about false statements in the past by a complainant are not “about any sexual behaviour of the complainant” within the meaning of section 41 of the Youth Justice and Criminal Evidence Act 1999 ; that provided the defence have a proper evidential basis for asserting that her previous allegation was false, they may cross-examine her on the matter; and it may follow from V [2006] EWCA Crim 1901 that, subject to section 100 of the Criminal Justice Act 2003 , the defence may adduce evidence in rebuttal of her assertion that the allegation was true. What is meant by a proper evidential basis was explained by this Court in Murray [2009] EWCA Crim 618 : it is evidence on which the jury could be satisfied that the previous allegation was false. One can see that if the complainant’s previous allegation was well founded, the questions may become questions about her previous sexual behaviour, i.e., questions to which section 41 applies. Given that at the stage that these matters are addressed in evidence, it is not known whether the allegation was true or not, the result is not very satisfactory; but that seems to be the position. 10. Generally, it seems to us that the evidence that the allegation against DW was false was not strong. We do not accept that the opinion of the CPS is relevant. It is for the court to decide whether there is a proper evidential basis for asserting that an allegation is false; the opinion of anyone else, including the CPS, is irrelevant. The appellant's best point is the contradiction that between Hayley Rabin and GS. We are prepared to assume that the material provided a proper evidential basis for alleging that the allegation was false. 11. However, it is necessary to note that it is not contended that the allegation, if unfounded, was necessarily a deliberate lie on the part of GS. Ms Darlow contended that it might equally have been the product of GS’s alcoholism and personality problems. If it was alleged that the previous allegation was a deliberate lie, section 100 clearly applied. If, however, the previous allegation, if false, was the product of GS’s personality problems, it is less obvious that it constituted “reprehensible behaviour” and therefore misconduct as defined in section 98. Given the significant differences between the allegation against DW, which was of historic sexual abuse, and that against the appellant, which was made immediately after the alleged incident, it is far from clear that it had substantial probative value as to GS’s credit (as required by section 100(1) (b)), but again we assume that the appellant would have been able to surmount this hurdle. We also assume that the prosecution would not have been able to adduce the evidence of Ms Rabin and Dr Brady as to GS’s veracity, although it does seem to us productive of unfairness, in giving the jury a misleading impression of GS, if the allegation of a deliberately false allegation is made without that evidence. Was this evidence reasonably capable of resulting in a different verdict? (a) The facts 12. It was common ground that the appellant and GS were known to each other. She was a recovering alcoholic. On the evening of 12 September 2006 the appellant telephoned her and she invited him to her first floor flat in Teddington. During the course of the day she had drunk two pints of Kronenburg and one pint of Stella. He arrived between 9:15 and 9:30 pm with two bottles of wine. According to GS, she thought something ‘dodgy’ was going on and texted her friend to ask her to phone her every ten minutes. They sat on the sofa and he ‘pounced’ on her. He tried to grope her breasts and kiss her. She pushed him off and told him to stop. She asked him for a cigarette and, as he did not have any, they walked down to the local supermarket to purchase cigarettes. It was about 10:00 pm and the supermarket was shut. CCTV showed them leaving the supermarket at 9:57 pm. On the way he groped her again and she pushed him off. 13. They returned to her flat. She was scared of him and she did not want to let him back in, but he had left things there. They sat on the sofa and he pulled her head back by her ponytail, jumped on her and tried to kiss her. She pushed him off and he hit her round the face. He told her to give him a ‘blowjob’ and started hitting her again. He pulled out his erect penis and made her put it in her mouth. He told her, “Do it as if you’re enjoying it” and started hitting her again. Her friend rang her mobile phone. He tried to grab it and she told her to come to the flat. The applicant did his flies up and she ran out of the flat, without her keys, to her friend’s house. On the way she rang 999. The call was logged at 10:09 pm. She can be heard crying and hyperventilating and later being sick. She said that she had been abused, that her assailant had wanted her to give him a blowjob, pushed her head and slapped her around the face. 14. GS’s friend NG gave evidence that on the evening in question GS had told her that she was with a man and was worried about the situation. She asked NG to keep telephoning her, and she did so. NG became more concerned after the second or third telephone call. In all she telephoned or texted GS between seven and 15 times. By the penultimate telephone call, she could hear that GS wars really agitated. In the last telephone call, GS had told her to come to her flat quickly. GS arrived at her house five or 10 minutes later. She was "in a state". Her face was bright red and she was hyperventilating and could not speak properly. She had quite a lot of bruising under her left and right eyes. GS told her that she had been sexually assaulted: the man had got back into her flat and had "put his cock into her mouth." He had abused her, slapped her, and said, "Look like you're enjoying it." 15. Although a police doctor found no injuries to GS’s face, when DS Gregory saw her on 14 September 2006 he noticed injuries to her cheekbone sufficient to make him request photographs. When shown those photographs, the doctor noted that there might have been a bruise under her right eye. 16. GS’s downstairs neighbour gave evidence that on the night in question she heard shouting and banging from GS’s flat, the front door slamming and what sounded like someone falling down the stairs. 17. Police officers gave evidence that when they arrived at NG’s house, GS was upset and crying and had a very red face. She told them that a man she knew as Jay had forced his penis into her mouth. The SOIT officer went to NG’s house, and GS told her what had happened. The officer saw a number of text messages sent by GS to NG asking her to telephone her. 18. The appellant, when seen by the police, was sufficiently drunk for the police doctor to say that he could not be interviewed until the following morning. However, he told PC Good that he had slept with GS on previous occasions: the officer was sure that he used the plural. 19. In interview, the appellant said that he had had sex with GS on one previous occasion. He was able to give a largely accurate description of the room where she had previously lived. He said that on the evening in question he had gone round to her with 2 bottles of wine. He said that they were kissing and fondling, and she unzipped his trousers and wanted to suck his penis. He said, “No, stop, let’s go and get some condoms.” They needed cigarettes and more drink too, so they went to Tesco’s. On the way there, we were having a kiss, we were having a cuddle …. We got there and we didn’t even buy the condoms. We just bought the drink and the cigarettes.” 20. The appellant gave evidence generally consistent with his interview. (b) Discussion 21. Miss Darlow submitted that the evidence of what would have been asserted to have been a false allegation against DW would have affected the jury’s consideration of the essential issue, the credibility of GS, on whose evidence the prosecution entirely depended. It followed that the conviction could not be regarded as safe. The appellant had been deprived of a fair trial, and should have the opportunity of a fair re-trial at which the omitted evidence could be adduced. 22. For the prosecution, Miss Strudwick submitted that the case against the appellant was so strong that the material on which he now sought to rely could not reasonably have led to an acquittal. 23. This was a very strong case. That the appellant was drunk at the time of the alleged incident could not be disputed. That GS was worried about his behaviour was evident from her telephone contacts with NG. The appellant had no explanation for the action of GS in fleeing her flat, without her keys, in what was manifestly a state of considerable distress, and immediately making a 999 call. His difficulty in explaining her action is compounded by his allegation, which she denied, that she had herself tried to initiate oral sex earlier that evening. GS’s accounts of the incident, made immediately afterwards, were all consistent. Her evidence was consistent with that of her neighbour; the appellant’s was not. A previous allegation, even if false, of historic sexual abuse would not have explained any of these matters. 24. It is in our judgment not surprising that the jury, having asked for the recording of the 999 call made by GS to be replayed, shortly returned their verdict shortly after hearing it again. 25. The jury were aware that GS’s evidence was not wholly reliable. She had denied giving the appellant her land line telephone number; she clearly had, since his telephone records showed he had dialled it. She denied that he had visited her in her hostel room, where he said they had had sexual intercourse. Since he was able accurately to describe that room, the jury were aware that on this matter too GS’s evidence was unreliable. The judge warned the jury to be very cautious in their approach to her evidence if they accepted that she may have been wrong about his visit to her at the hostel. The major differences between the allegation against DW and the facts of the allegation against the appellant affected the materiality of the former to the latter. 26. Accordingly, we concluded that even if the material now sought to be deployed on behalf of the appellant had been before the jury, or were now to go before a jury, there was and is no real prospect of his acquittal.

2009_11_09-2150.xml

conviction

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/2294/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/2294

0f271d757537c2e1ab01aac1b4f5799ec24cdf22b3baccf0d7bcf9f22c1e57bb

[2021] EWCA Crim 438

EWCA_Crim_438

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. 202002231 A2 IN THE COURT OF APPEAL CRIMINAL DIVISION [2021] EWCA Crim 438 Royal Courts of Justice Friday, 5 March 2021 Before: LADY JUSTICE CARR MR JUSTICE WILLIAM DAVIS MR JUSTICE CALVER REGINA V RAFFAELE ESPOSITO __________ Computer-aided Transcript prepared from the Stenographic Notes of Opus 2 International Ltd. Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 CACD.ACO@opus2.digital _________ MS F. ARSHAD appeared on behalf of the Appellant. MR P. JARVIS appeared on behalf of the Respondent. ________ J U D G M E N T LADY JUSTICE CARR: Introduction 1 On 20 December 2002 in the Crown Court at Liverpool before Royce J ("the Judge") the appellant, then aged 26 and now aged 44, was convicted of two counts of murder alongside his co-accused Sean Jackman (“Jackman”). Both were sentenced to life imprisonment. 2 In January 2003 the Judge reported to the Home Secretary that in his view the minimum term to be served before the appellant was eligible to apply for release should be set at 19 years. No term was in fact set by the Home Secretary. Rather, the appellant's case was referred to the High Court for the minimum term to be set pursuant to s.276 and para.6 of Sch.22 of the Criminal Justice Act 2003 ("Sch.22”) (“the 2003 Act"). On 18 October 2007 the Judge specified that the minimum term should be 19 years (less five months and 25 days) to reflect the period spent on remand. 3 The appellant now appeals against the minimum term pursuant to para.14 of Sch.22 by leave of the Single Judge who also granted the necessary extension of time. 4 The basis of the appeal is that the appellant, being a Sch.22 transitional case prisoner, has shown exceptional progress in his life sentence such as to merit a reduction in the minimum term. It engages the unusual review jurisdiction said to exist (as identified in R v Gill [2011] EWCA Crim 2794 (" Gill ")) in relation to those given a mandatory sentence of life imprisonment before the implementation of the 2003 Act. This appeal has been expedited as the minimum term is about to expire in June of this year. 5 For the purpose of resolving the issues before us, we have had the benefit of able written and oral submissions from Ms Arshad for appellant and Mr Jarvis for the respondent. The Facts 6 On the evening of 18 June 2002 Francis Perry (“Perry”) and Paul Hagan (“Hagan”) were staying with James McElhenny, a friend of the appellant, at an address in Derby Road. The two men went to a nightclub where Perry and Hagan chatted with the appellant's sister and girlfriend. Their behaviour is said to have angered the appellant. Shortly before 2.00 a.m. the appellant told his girlfriend to accompany Perry and Hagan in a taxi back to Derby Road. The appellant recruited Jackman, who worked as a doorman at a nightclub in Southport and was a close friend of his, to help him attack Perry and Hagan. 7 When the appellant and Jackman arrived at Derby Road, Perry and Hagan were in a drunken and defenceless state. The appellant and Jackman subjected them to an attack of the most extreme brutality, involving the use of a baseball bat. A third man, Joseph Sammon (“Sammon”), arrived at a stage when Hagan and Perry appeared to him to be dead, but Jackman was still swinging the baseball bat. Hagan received 12 head injuries, including several skull fractures and numerous injuries to his legs, trunk and arms, including defensive injuries. His left testicle was completely blackened by a severe blow. 8 Perry received 28 head and neck injuries, including several skull fractures. His head had been driven down into his spine. The pathologist said that his head injuries were of such severity as normally to be seen only in high-speed motorcycle crashes. He had numerous injuries to his trunk, legs and arms. There were a series of parallel knife wounds on his face and arms and some defensive injuries. Both Hagan and Perry died of these injuries. OPUS 2 DIGITAL TRANSCRIPTION 9 Blood was found all over the walls and the ceiling of the room. One or both of the appellant and Jackman had urinated extensively on both Hagan and Perry. The attack had lasted at least 20 minutes and probably longer. There was evidence before the court of moaning, crying and hitting sounds during the 20-minute period. 10 Jackman, the appellant and Sammon made off, Jackman and the appellant going to London before returning to the Stockport area. Sentence 11 When sentencing the appellant, the Judge described these murders as brutal, callous and vicious. The deceased men had been begging for their lives. The appellant had shown no mercy. A sentence of life imprisonment was imposed. 12 In his report in January 2003 the Judge noted the multiple aggravating features, including premeditation, humiliation, discussion and agreement to kill in the face of a man on his knees begging for his life, and by way of mitigation the fact that the appellant was 26 years old and of previous good character. The Judge, as we have said, recommended a minimum term of 19 years, describing the appellant as someone with a "callous and ruthless streak" and when in drink a capacity for extreme violence. The appellant was the orchestrator of the attack. No remorse was apparent. 13 When setting the minimum term, the Judge referred to his earlier recommendation. He referred to the written representations of the appellant, in which the appellant expressed disgust at the part he had played, but refuting the suggestion that he had recruited Jackman or taken any part in urinating over the deceased. It was said for him that the minimum term should be in the 15- to 19-year bracket. The Judge took into account victim personal statements. He considered the minimum term that would have been imposed had the murders taken place after the 2003 Act had come into force. There were two murders which involved a high degree of sadistic conduct, so there was a strong argument that the appropriate starting point would be a whole life order. On any view, under Sch. 21 of the 2003 Act, the minimum term would not have been less than 30 years. 14 It was borne in mind that the minimum term could not be greater than that under the practice followed by the Secretary of State before December 2002. It was likely, in the Judge's view, that the Secretary of State would have adopted his recommendation of 19 years. This was a truly terrible case. The Judge was wholly unpersuaded there should be any reduction from the 19-year term and so he set the minimum term to which we have already referred. Grounds of appeal 15 On this appeal Ms Arshad submits that the appellant can be said to fall into the very small category of those transitional cases where, should he meet the standard, he can apply to have his minimum term reduced on the grounds of exceptional progress such as to merit a reduction. This is, in her words, a case where the appellant in question could simply not have done more in the last decade of his time in prison. 16 Reliance is placed on the progress made by the appellant as summarised in a Parole Board Panel decision in April 2018. There it is recorded that the appellant had always admitted playing a substantial role in the attack and having used a baseball bat on at least one of the victims. He had shown real remorse and was open in taking responsibility for what had occurred, having devoted a great deal of time to reflect on the events of the night in question and their effects on the victims and their families. There had been no sign of violence or loss of temper or use of drink or drugs throughout his sentence. 17 In the early years of his sentence the appellant had completed CALM, ETS and a number of substance and victim awareness programmes. Between 2008 and 2011 he had undergone one-to-one work with a psychologist. His custodial conduct from the outset had been of a high standard. He was re-categorised as a Category C prisoner as early as 2008/2009, by which time he had started on an Open University undergraduate course in law. 18 He was transferred to HMP Oakwood in 2013 where his conduct continued to be exemplary. He obtained an upper second class Honours degree in law in July 2016 and completed other educational and vocational courses, including Fine Cell Work. His excellent conduct had been maintained throughout his sentence and he had been an enhanced prisoner for many years. He had played a leading role in important and highly pro-social activities. He had set up house block initiatives. At HMP Rye Hill he had helped to establish and then work with a scheme called Last Chance, arranging visits by potential or young offenders. Its aim is to persuade young people away from a life of crime. He had been a Samaritan listener and a distance learning mentor. 19 Significantly, and as rightly emphasised by Ms Arshad, in November 2015 he had set up a body called Your Consultation Group. It offers advice and assistance to prisoners and staff on legal matters and prison policies - a major operational undertaking. Ms Arshad explains that this is a service provided across the prison estate to prisoners and staff alike. Further, the appellant had been involved in proposed drafting changes to the group and been involved in a project which had been commended by the Prison Reform Trust. He had worked with charities and also the Criminal Case Review Commission arranging surgeries for prisoners who wished to engage with the CCRC and facilitating a visit to HMP Oakwood by the chair of the CCRC. The appellant had spent two years on the prison council and headed up the prison newspaper. 20 In 2018 the Parole Board panel described the appellant's custodial history as "outstanding." It also referred to a risk assessment in November 2017 when it was concluded that the risks of violence posed by him had reduced to the point where they could be assessed as low in open conditions or in the community and that his remaining risks could be safely managed in open conditions. He was recommended for transfer to open prison (although we note that one offender manager assessed the appellant's risk to the public as medium rather than low at this stage). In August 2018 the governor at HMP Oakwood described the appellant as having made an "outstanding" contribution to the prison. 21 At HMP Leyhill the appellant had been involved in developing induction and information booklets. He had acted as a monitor in education and as an adviser to the prison advice centre. Prior to lockdown, he was permitted to work in the community and to engage in home visits at maximum frequency and duration. He is currently a member of the Covid 19 Forum. He tried to set up Your Consultation Group at HMP Leyhill, but was told originally that the timing was not right; matters have then been overtaken by the circumstances of the pandemic. Further, throughout the appellant has been involved in fundraising for a number of different charities, including the Red Cross and Acorns charity for terminally ill children. 22 Ms Arshad emphasises the difficulties that have arisen out of the pandemic, not only in terms of the appellant's opportunities in the prison estate, but also in terms of getting recent updates on his progress from the prison governor. As indicated, she points in particular the appellant's involvement in Your Consultation Group, in the Prison Reform Trust and suggests that even in lockdown the appellant has continued to do everything that he possibly could, for example through Fine Cell Work. 23 For the respondent Mr Jarvis identifies that it is arguable that the review jurisdiction identified in Gill is inconsistent with the earlier authorities and, in particular, dicta in R v Caines [2006] EWCA Crim 2915 (" Caines ") and para.14 of Sch.22. On this analysis, given that the appellant does not challenge the decision of the Judge in 2007 to set the minimum term at 19 years on the basis that that period was either manifestly excessive or wrong in principle at the time, this court has simply no jurisdiction to review that minimum term now and to adjust it to reflect any exceptional progress. 24 If there is such jurisdiction, then the progress in prison must be truly outstanding. Only then will it be exceptional. Good behaviour alone is not sufficient. In considering whether progress is exceptional, it is helpful for this court to have observations from the governors of the appellant's last two prisons, not only detailing the appellant's own progress, but also offering some comparative evidence by reference to other prisoners in similar situations. Mr Jarvis queries whether or not the appellant's progress can be said to be genuinely exceptional on the facts here. His progress may have been very good indeed, even excellent, but it has not been exemplary and not truly genuinely exceptional. He draws our attention to three particular factors in addition. Firstly, by reference to the latest report from the appellant's probation officer, he queries whether or not the appellant has in fact shown the true insight that has been suggested. The Judge clearly found that this was a premeditated attack arising out of a plan which the appellant had hatched. It is clear from the latest reports, and elsewhere, that the appellant does not accept this. His position is that he was simply angered when the two men came to his flat in Derby Road. The question raised is whether or not the appellant has accepted full responsibility for his part in what were, of course, extraordinarily serious attacks. Secondly, Mr Jarvis emphasises that there is still no comparative evidence comparing the appellant with other prisoners and nothing substantive from the governor of the appellant's current prison at HMP Leyhill. Thirdly, Mr Jarvis refers to the latest risk assessment as to the risk posed by the appellant. It is not as straightforward as might be suggested for the appellant, with references, for example, to the appellant being vulnerable still to the influence of peers and being assessed as a medium risk to members of the public. 25 In response to these last three points Ms Arshad states the question of risk is not a matter for this court, but rather one for the Parole Board. The question for us is whether or not the appellant can be said to have made exceptional progress. Secondly, if there were any real concerns about the appellant's insight, he would not have been allowed to complete the offender behaviour work and courses that he has. Thirdly, not least in these circumstances of the current pandemic, it is entirely understandable for the appellant's current prison governor to rely on the views of the appellant's probation officer. She points out that all efforts have been made on behalf of the appellant to obtain the fullest and most up to date information possible for the benefit of this court today. Discussion and Analysis The Jurisdiction Issue 26 Some legislative background is necessary in order to understand the jurisdictional issue. In 2002 the setting of the minimum term that a defendant convicted of murder must spend in prison pursuant to his life sentence before being eligible for release on licence was a matter for the Secretary of State, informed by a recommendation from the trial judge and the views of the Lord Chief Justice. The 2003 Act came into force on 18 December 2003. It was introduced following the House of Lords decision in R (on the Application of Anderson) v Secretary of State for the Home Department [2003] 1 App Cases 837 in which Lord Bingham said that the Secretary of State should: "...play no part in fixing the tariff of a convicted murderer, even if he does no more than confirm what judges have recommended." 27 S. 269 of the 2003 Act provides that where a defendant is sentenced to a mandatory term of life in custody on a day on or after the commencement date when the minimum term would be set solely by the court, having regard to the general principles contained in Sch.22. Sch.22 of the 2003 Act contains transitional provisions to the following effect: "(a) Where the life sentence prisoner had been told by the Secretary of State what his minimum term was (see para.2(a) of Schedule 22) then paragraph 3(1)(a) permits the prisoner to apply to the High Court for a review of that minimum term. (b) Where the life sentence prisoner has not been told by the Secretary of State what his minimum term would be (see paragraph 5 of Schedule 22) then paragraph 6 requires the Secretary of State to refer his case to the High Court for a judge to set the minimum term." 28 In this case by the time that the 2003 Act came into force the Secretary of State had not responded to the Judge's recommendation in January 2003 and, accordingly, para.6 of Sch.22 applied. Thus, on 18 October 2007 the Judge set the minimum term at 19 years. 29 The appellant now appeals pursuant to para.14(1) of Sch.22 which provides: "14(1) A person who has made an application under paragraph 3 or in respect of whom a reference has been made under paragraph 6 may with the leave of the Court of Appeal appeal to the Court of Appeal against the decision of the High Court on the application or reference." 30 Caines was a case under para.3 of Sch.22. The Court of Appeal stated: "38. We must draw some disparate threads together. The transitional provisions create an unusual responsibility for a judge. He has to decide the application by assessing the seriousness of the offence in the context of the statutory guidance in schedule 21, whilst simultaneously looking back to judicial recommendations made when a variety of different sentencing regimes existed, without addressing precisely what they were. Certainly he is not confined to and would be misdirecting himself if he simply replaced the original minimum term fixed by the Secretary of State with the original judicial recommendation. In any event the trial judge and Lord Chief Justice may have recommended different tariff periods. He is not conducting an appeal from the judicial recommendations, or the decision of the Secretary of State, nor passing sentence as such. Nevertheless although he did not preside over the original trial, his decision will impact directly on the date when the prisoner may be released on licence. Plainly the process is properly identified as a review, but it is not a judicial review in the formal sense. Schedule 22 (14) (1) describes the process as a decision and creates a process for appeal to the Court of Appeal Criminal Division, or indeed Reference by the Attorney General. In view of its characteristics, and the nature of the process, the decision should be treated as a sentencing decision..." 31 The Court of Appeal concluded that any reduction to allow for exceptional progress was to be made against the notified minimum term (as opposed to the term which would have applied under Sch.21: see [48] to [50]. This is where the High Court Judge in that case had erred. The Court of Appeal then addressed the approach to be taken on any appeal against the review decision of a High Court Judge as follows: "45. We acknowledge the inevitable difficulties, and indeed some illogicality, in re-examining the tariff fixed for the purpose of punishment and deterrence by reference to exceptional behaviour post sentence, a hesitation reinforced by the absence of any direct or express indication to this effect in the carefully structured statutory guidance. Nevertheless, for the reasons we have identified, our hesitation is alleviated. We emphasise first, that every prisoner serving a mandatory life sentence since 1997 has spent a significant part of the sentencing period under a regime in which exceptional progress provided a recognised basis for a reduction in the minimum term, second, that the review required by schedule 22 is unusual and specific for transitional purposes, and that the exclusion of the Secretary of State (who would otherwise have continued to allow for exceptional progress against the minimum term) is deliberate, and third, that the decision consequent on an application under schedule 22 is a sentencing decision to which normal sentencing principles apply. Accordingly in our judgment, exceptional progress in prison may be taken into account for the purposes of resetting the minimum term. ... 54. Responsibility for operating the transitional provisions is vested with High Court judges. This court will continue to apply the conventional approach to appeals against these decisions. We shall not interfere unless the result is manifestly excessive or wrong in principle, or in the case of a reference, unduly lenient. Save on well established principles, there should be no interference with findings of fact, whether adverse or favourable to the prisoner." 32 In R v Sampson [2006] EWCA Crim 2669 the Court of Appeal applied the same principles as identified in Caines to references under para.6 of Sch.22. 33 The position in Gill was different to that in Caines . In Gill , as in this case, the appellant relied on exceptional progress since the original minimum term had been set. The Court of Appeal held that it had jurisdiction to review the minimum term pursuant to Sch.22 on its proper construction. It could adjust the minimum term downwards on the basis of exceptional progress in custody without examining whether the original minimum term was manifestly excessive or wrong in principle. Lord Judge Chief Justice said this at para.1: "…..The reality, therefore, is that the court is conducting a review of sentence by assessing the conduct of each appellant long after he was sentenced, rather than examining whether the sentence was manifestly excessive or wrong in principle. The Court of Appeal Criminal Division is not a court of review; it is a court of appeal. This jurisdiction therefore is unusual and we shall explain in due course how this surprising responsibility came about." 34 At first blush this might be thought not to sit easily with [54] of Caines . However, we consider that the cases are in fact consistent. Both in Caines and in Gill the court considered that exceptional progress in prison may be taken into account for the purpose of resetting the minimum term: see Caines at [45] and Gill at [21]. The approach to be taken will then depend on whether the appeal is against a minimum term set by a High Court Judge having considered the question of exceptional progress (in which case the conventional approach to appeals applies), or whether the appeal relates to a minimum term set without consideration of any exceptional progress (in which case the unusual review jurisdiction is engaged). 35 In the case of the very small number of Sch.22 transitional cases where after the minimum term had been set the appellant had made exceptional progress in custody and has not previously made any appeal against the setting of the minimum term, it makes sense that para.14(1) of Sch.22 should entitle the Court of Appeal as part of the appeal to conduct the necessary review as to whether there should be a reduction in the minimum term to reflect the appellant's exceptional progress long after sentence. 36 The Court of Appeal in Gill identified the practical considerations driving this interpretation of the legislation at [19] and [20]. Almost inevitably, defendants in cases of this seriousness are liable to remain in prison for long periods and so a reduction in the minimum term to reflect exceptional progress should not realistically be considered until towards the end of the minimum period. Thus, the process should be delayed until it becomes realistic to seek to provide a measured answer to the question of exceptional progress, inevitably, many years after the time for appeal has expired. By normal standards, it would require an extraordinary extension of time when, in any circumstances other than the present, an application for such would almost invariably by bound to fail. At the same time, if it were refused, it would remain open to the appellant to refer the case for the consideration of the Criminal Cases Review Commission exercising its own jurisdiction. 37 However, the court considered that all this seemed unnecessarily complicated: "Better by far for the court to face up to the practical realties and on the basis of an appellate jurisdiction in an appropriate case when the minimum term has been assessed in accordance with either para.3 or para.6 of Sch.22 to conduct the necessary review. That is what we have done in these cases." 38 The respondent submits that the approach in Gill gives rise to anomalies: "There is obviously a difference between (i) the Court of Appeal allowing an appeal against sentence where that sentence was manifestly excessive or wrong in principle at the time it was imposed and then taking into account exceptional progress in prison when deciding what sentence to substitute for the sentence passed below, and (ii) the Court of Appeal reviewing a sentence under paragraph 14(1) of Schedule 22 many years after the minimum term has been set by the High Court judge then reducing that minimum term solely on the basis that the defendant has made exceptional progress in prison since it was set." 39 Recognition of the review jurisdiction in Gill also places defendants, it is said, sentenced before 18 December 2003 at a particular advantage when compared to their modern counterparts. So, for example, a defendant sentenced to life imprisonment for murder in 2000, and for whom the Secretary of State had set a minimum term of 25 years, could apply to a High Court Judge under para. 3 in 2010 to seek a downward adjustment of the tariff on grounds of exceptional progress. If the High Court Judge made that adjustment the same defendant could appeal that determination out of time in 2020 on the basis of exceptional progress since 2010 as well. The same defendant convicted in 2005 would have no opportunity to invite a High Court Judge to reconsider his minimum term and the only way in which the Court of Appeal would do so would be on a standard appeal against sentence. 40 However, the Court of Appeal expressly recognised these anomalies (see Gill at [27]) and the difficulties and illogicalities (see Caines at [45]) but it has, nonetheless, chosen to interpret the statute so as to allow it to do precisely that: review the sentence in this limited category of transitional cases. While the jurisdiction is unusual, one can see the obvious good sense of interpreting the statute in this way in these cases as a reduction in the minimum term to reflect exceptional progress cannot realistically be considered until the end of the minimum period. 41 The respondent also criticises what is said to be the suggestion in Gill that once exceptional progress is established it is mandatory as opposed to permissible to make due allowance for it. Referring to Gill at para.18: "18. No further citation from the numerous authorities referred to in our papers is necessary. In summary, consequent upon the complications which arose while Anderson was making its way to its conclusion in the House of Lords, and the end of the system by which the Secretary of State finally determined the tariff period which was remedied in Sch.22 of the 2003 Act, it has been established that the interests of justice require that for cases falling within Sch.21, the High Court, or this court on appeal, should consider and reflect on evidence of exceptional progress in prison and, where it is established, make due, but as we shall see, modest allowance for it against the minimum term. So far, so good." 42 We do not consider, on a proper reading of Gill , that the Court of Appeal was saying that it is mandatory to make a reduction on account of exceptional progress. It stated only that "due" account was to be given. It referred without demur at [14] to the decision in Caines that exceptional progress whilst in custody “may” be taken into account. Substantive merits 43 We turn then to the substantive merits of the appeal. The Court of Appeal in Caines dealt with the standard to be met (as approved in Gill at [29] to [30]): "52. ….Good behaviour is not enough to constitute exceptional progress. We agree that the standard should be very high: the progress must be exceptional, outstanding, and bearing in mind that it provides the basis for a reduction in a period fixed for the purposes of punishment and deterrence, so it should be. Even where the necessary high standard is reached, the impact on the total tariff period is likely to be very modest. The longest reduction so far has not exceeded two years, and in the significant majority of cases where exceptional progress has been established, the reduction has been for one year. It also appears, and logically it is plain, that such progress falls to be considered when the minimum period is coming towards its end. Finally, it is a prerequisite to any reduction that the risk assessment should be favourable. 53. In future, when the court is considering whether exceptional progress has been made, it would be helpful for the information to include the observations from the governors (or the governor's representative) of the last two prisons in which the offender was serving his sentence. The information should not merely be directed to the governor's overall view of the progress of the individual offender, but should also provide assistance on how that progress should be assessed by comparison with other similar prisoners. Furthermore, the court should be provided with a satisfactory risk assessment. Evidence of remorse, if genuine, may tend to confirm that the level of risk posed by the prisoner has been reduced to negligible levels, but its absence is simply one factor to be taken into account in the risk assessment. At the same time those responsible for the assessment should bear in mind that an intelligent or manipulative life prisoner may appear to have made exceptional progress when, in reality, he represents a continuing danger." 44 This court has no real detail as to the appellant's progress in custody before 2008, by which time he reached HMP Rye Hill. He was then moved in or about 2013 to HMP Oakwood when he became a Category C prisoner. Since October 2018 he has been at HMP Leyhill as a Category D prisoner. 45 There is no question but that the appellant's conduct whilst in prison has been very good if not excellent. The April 2018 Parole Board Panel letter speaks of "exemplary conduct" at HMP Oakwood and an outstanding custodial history. His achievements are on any view impressive, not least his law degree, his participation in the Last Chance scheme and, perhaps particularly, the creation of the Your Consultation Group. These are all matters of which he can be justifiably proud and which stand very much to his credit. However, the question for us is whether or not the very high standard of exceptionality is met. 46 Cairns emphasises the importance of progress in the most recent custodial setting. We consider in particular the most recent material available to us. In September 2019 the appellant's offender supervisor at HMP Leyhill reported that there had been no issues with his custodial behaviour, that he worked to good effect, had received positive feedback from staff, attendance record and performance standards. He had enhanced status and often went above and beyond to maintain that status. He had demonstrated good insight into his risk factors and awareness. In a letter dated 19 May 2020 the governor expressed confidence that the picture painted there was accurate. Gaining Category D status three years before tariff expiry was, he said: "..usually the sign that a person had progressed well in custody." 47 This to our minds does not speak of exceptionality. Most recently, on 3 March 2021, the head of the Offender Management Unit at HMP Leyhill provided a copy of the Sentencing, Planning and Review Report dated December 2020 prepared by the same offender supervisor ahead of the appellant's pending parole hearing. She indicated that the appellant had demonstrated good insight into the serious harm he had caused with genuine remorse; had no proven adjudications; had achieved enhanced prisoner status with above and beyond activities and positive behaviour for quality attitude; had gained employment in recycling; was a good timekeeper; polite; had displayed positive attitudes; had joined the prison advice centre as a peer mentor; had sorted diary systems and started on some policy work for the CCRC. His work there was said to be exemplary. He was said to have adjusted well to open conditions, had coped well with the recent death of his mother, with no reported issues as to his day or overnight releases. He had started a new relationship with a lady whom he had known for many years and a prison officer described his behaviour on an escorted release as impeccable. The offender supervisor assessed the appellant as posing a medium risk of serious harm to members of the public. She supported release in the following terms: "[The appellant] has been in prison for 18 and a half years, two years having been spent in open conditions prior to his tariff date. He has made excellent progress, demonstrating effective risk reduction and compliant attitudes which bode well in the future. I am also satisfied that he has been sufficiently tested and unlikely to pose an imminent risk of serious harm to the public unless there is a sufficient change in his circumstances, which is not evident at this point. I am of the opinion that [the appellant] can be effectively managed in the community with the robust risk management proposed for him and on that basis I am supporting release." 48 In our judgment, and without wishing in any way to underplay the many positive aspects of the appellant's past performance and contributions whilst in custody and even taking into account the impact of the recent pandemic, the broad picture painted by those at HMP Leyhill is not one of exceptionality, but rather one of a person quietly and determinedly working his way towards release on licence, as one would expect. Whilst again no bar to making a finding of exceptional progress, it is relevant to record the matters recorded in the most recent reports as to the appellant's position as to the extent of his offending and the fact that the level of risk that he is said to pose remains assessed at medium so far as members of the public are concerned. 49 In short, the appellant's progress in prison has been very good if not excellent, but there is in our judgment insufficient evidence to allow it to cross the threshold of exceptionality such as to merit a reduction in the minimum term of 19 years imposed. For these reasons, we dismiss the appeal. _______________ CERTIFICATE Opus 2 International Limited hereby certifies that the above is an accurate and complete record of the Judgment or part thereof. Transcribed by Opus 2 International Limited Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 CACD.ACO@opus2.digital This transcript has been approved by the Judge.

2021_03_05-5125.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2021/438/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2021/438

9d19c5d42530cd38b3fda30747a1a44b4ff1e8c8388e2037f6a62e26d410beda

[2015] EWCA Crim 110

EWCA_Crim_110

crown_court

Neutral Citation Number: [2015] EWCA Crim 110 Case No. 2014/05631/A6 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Thursday 29 th January 2015 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Thomas of Cwmgiedd ) THE VICE-PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION ( Lady Justice Hallett DBE ) And MR JUSTICE GLOBE - - - - - - - - - - - - - - - - - - - - - R E G I N A - v - WILLIAM ALEXANDER CORNICK - - - - - - - - - - - -

Neutral Citation Number: [2015] EWCA Crim 110 Case No. 2014/05631/A6 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Thursday 29 th January 2015 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Thomas of Cwmgiedd ) THE VICE-PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION ( Lady Justice Hallett DBE ) And MR JUSTICE GLOBE - - - - - - - - - - - - - - - - - - - - - R E G I N A - v - WILLIAM ALEXANDER CORNICK - - - - - - - - - - - - - - - - - - - - - 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 Richard Wright QC appeared on behalf of the Applicant Mr Paul Greaney QC appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T ( As Approved by the Court) LORD THOMAS OF CWMGIEDD, CJ: Introduction 1. On 28 April 2014 the applicant, then aged 15, stabbed Mrs Ann Maguire, a 61 year old Spanish teacher at Corpus Christi Catholic College in Leeds. As a result of the wounds inflicted, Mrs Maguire died in hospital shortly thereafter. 2. On 3 November 2014 in the Crown Court at Leeds before Coulson J the applicant pleaded guilty to murder. The judge was by law required to pass a sentence of detention during Her Majesty's pleasure. He fixed the minimum term at 20 years (less time spent in custody on remand). The applicant's application for leave to appeal against sentence has been referred to the full court by the Registrar. It seems to us appropriate that we should grant leave. It is right that, in a case which has wholly exceptional features and relates to such a young offender, the full court should have the opportunity to review the entire matter. The Background 3. The appellant was born on 26 June 1998. He entered Corpus Christi Catholic College in Leeds in September 2009. By April 2014 he was in Year 11 and studying for his GCSE examinations. He had taken and passed several exams a year early. His school reports had generally been positive. 4. It is important to point out that his parents were described as entirely responsible and caring. They had no explanation for what happened on 28 April 2014. The appellant's family life had been marked by love and support. His school records show that he had been happy and bright at nursery, had made good progress at primary school where the records described him as helpful, considerate and polite; he had a positive attitude to learning. In his first year at Corpus Christi, the school wrote to his parents congratulating him on his good effort and his academic progress. He was seen as reserved but amicable; he formed good friendships and benefited socially as well as academically from his studies at school. There were five recorded incidents of misbehaviour at school. The first two were minor. We shall turn to the other incidents in due course as they relate to events that occurred shortly before the murder. 5. Much of the appellant's life seems to have changed at the age of 12 when he was diagnosed with diabetes whilst on holiday. This appears to have had a major impact on his lifestyle, his mood and his personality, although he continued to maintain his good academic performance and his keen intellectual ability. 6. About one year after the diagnosis of diabetes, it became apparent to other pupils in the school that the appellant had developed a hatred of Spanish lessons and of Mrs Maguire as the Spanish teacher. He told more than one pupil that he hated her and wanted her dead. 7. On Christmas Eve and during the early hours of Christmas Day 2013 the appellant exchanged messages with a friend on "Facebook". In those messages he spoke of brutally killing Mrs Maguire and spending the rest of his life in jail so as not to have to worry about life or money. He claimed to hear voices. That was something, which he was later to assert, as a result of which he would receive what he described as "comfy wall". That is an important element of the premeditated nature of what he did. He continued to make threats towards Mrs Maguire on Facebook in early January 2014. 8. In February 2014 the appellant failed to do his Spanish homework. Mrs Maguire told him that in consequence he could not attend a school bowling trip. The appellant disobeyed her and went anyway. 9. As a result, on 10 February 2014 the appellant was spoken to by another teacher. The appellant indicated his dislike of Spanish and of Mrs Maguire. Mrs Maguire joined the meeting and expressed concern about the appellant. He then stood up and left the meeting. 10. On the following day there was a meeting at the school with the appellant's parents. The appellant made it clear that he hated Mrs Maguire. He was placed on internal exclusion at the school for a day. Later that month in further Facebook messages he made it clear that in his view Mrs Maguire deserved more than death, more than pain, and more than torture. The murder 11. The murder of Mrs Maguire occurred on Monday 28 April 2014. On the weekend before nothing untoward occurred at home which alerted his family to what was about to happen. However, the appellant told Dr Kent, one of the psychiatrists who later examined him, that he had decided on Thursday 24 April to kill her and had rejected the alternative that he had been considering of killing himself. On Sunday 27 April (the day before the murder) he considered the weapons he should use and how he should kill her. He decided that he would use a knife and that he would kill her at school in circumstances where he would be caught and sent to jail. 12. During the morning of 28 April 2014 the appellant told pupils that he was armed with knives. He showed them to some and said that he intended to attack Mrs Maguire. Some thought he was not serious. Those who thought he was serious received threats from him that he would kill them if they revealed his plan. He told another pupil that he had brought alcohol with him in order to celebrate after the killing. 13. Shortly after the mid-morning break, at about 11.30am, the appellant attended Mrs Maguire's Spanish lesson. At an early stage in the lesson he went into an adjoining room to work on computers as part of the lesson. He showed the knife he had brought to one of the pupils. He then got up from that room and walked into the adjacent room where Mrs Maguire was leaning over, looking at the work of one of the other pupils. The appellant approached her from behind. He began to stab her in the neck and back. He was about a foot taller than her and of substantially greater build. The knife he used was a large kitchen knife. Mrs Maguire fled, but she was pursued by the appellant. He stabbed her as she sought to escape. Eventually, she was able to enter another room while another member of staff bravely prevented the appellant from continuing his attack. 14. Paramedics were called to attend Mrs Maguire. She was taken to hospital. However, she died at 1.10pm. 15. Following the stabbing, the appellant returned to his classroom. He sat down beside a pupil as if nothing had happened. He said that he had stabbed Mrs Maguire. He added that it was a pity that she was not dead. The evidence of fellow pupils was that he was pleased with what he had done. When two members of staff came in for him, he put up his hands and went with them peaceably. His bag was examined. It was found to contain a bottle of Jack Daniels bourbon and a second knife. Whilst waiting for the police to arrive, he chatted as if nothing had happened. 16. The appellant gave no explanation to the police when he was interviewed, but he told Dr Kent that the killing had been on his mind since Year 8. He had always told his friends that Mrs Maguire was terrible. He explained that he had wanted to apply to join the army, but he was rejected because of his diabetes. He knew what he had done and he did not care. He had no remorse. He said, "As generations of life, killing is a route of survival. It's kill or be killed. I did not have a choice. It was kill her or suicide". He added later that he did not care that Mrs Maguire's family would be upset. In his eyes everything he had done was "fine and dandy". 17. The pathologist's evidence showed the brutality of the attack. The appellant had stabbed Mrs Maguire seven times to the neck and upper back. One stab caused the knife to pass all the way through her lower neck. Another severed the jugular vein. Two other stabs shattered her ribs. They must, therefore, have been inflicted with severe force. One penetrated the right lung. The Psychiatric Evidence 18. The sentencing judge had before him three reports provided by the prosecution: one from Dr Kent, a Consultant Forensic Psychiatrist at Stockton Hall Hospital, Yorkshire; one from Dr Cesar Lengua, a Consultant Psychiatrist in the field of Adolescent Forensic Psychiatry working for the Northern Forensic Mental Health Service for Young People, and a Clinical Lecturer at the University of Newcastle; and a clinical psychology report from Dr Tim Diggle, a Consultant Clinical Psychologist at the Northern Forensic Mental Health Service for Young People. 19. Dr Kent's conclusion was that the applicant had an adjustment disorder which had affected the development of his personality. He believed that the appellant had a personality disorder with marked psychopathic traits. He considered that the appellant was a serious risk of grave homicidal violence to the public for the foreseeable future. He considered that the disorders from which the appellant suffered did not give rise in any way to a defence of diminished responsibility. 20. Dr Lengua essentially agreed with Dr Kent's conclusions. He could not exclude the possibility that the appellant would kill again. He also was of the firm view that there was no defence of diminished responsibility. 21. Dr Diggle concluded that the appellant had made Mrs Maguire a repository for his angry feelings which, because of his personality and his ability to cope, built up in severity. His angry feelings, combined with some of the cognitive symptoms associated with low mood, led to a narrowing of his thinking and deciding on a false choice between Mrs Maguire and himself. Again, there was nothing in his view that gave rise to a defence of diminished responsibility. 22. It is clear on that evidence that the appellant was fit to plead and that there was no possible defence of diminished responsibility. The Appellant's Court Appearances 23. The appellant appeared in court on 2 May 2014, a few days after the murder. Mr Wright QC, who has appeared on his behalf throughout, indicated at that hearing that it was unlikely there would be any dispute about the killing. At a further hearing on 11 July 2014 it was accepted that the killing had been carried out by the appellant and that it was unlawful. The only issue, therefore, was whether a defence of diminished responsibility would arise. It is important to make clear, as the prosecution accept, that Mr Wright QC and his team acted completely responsibly. At the first available opportunity the fact that the killing was accepted to be unlawful was acknowledged. That was an unequivocal statement, not a mere indication which would not have been enough. 24. The second issue that arises is the position taken by the defence on the psychiatric evidence. They instructed Dr Vizard, a Consultant Forensic Psychiatrist and Expert in Child Psychiatry at University College London. She put forward the view that the appellant suffered from a delusional disorder, had acted in a blind rage at the time of the killing, and that therefore there might be a defence of diminished responsibility. 25. It is clear on the facts, as has been accepted, that that view was wholly unsustainable. Again, we commend the responsible attitude of the defence in stating that that opinion was unsustainable. Accordingly, after receipt of that report and the Crown's psychiatric evidence a plea of guilty to murder was tendered. We shall return to those two matters when we give our decision. The Sentencing Hearing 26. In addition to considering the evidence to which we have referred, the sentencing judge also considered the extremely moving personal statements from Mrs Maguire's husband, children, sisters and brothers-in-law. We, too, have read these. There can be no doubt about the devastation that her murder has caused to the family. Mrs Maguire's devoted service in schools endured over many years. 27. Having reviewed all the evidence, including the psychiatric evidence, the judge concluded that there were seven significant aggravating factors: (1) there was extensive premeditation and planning; (2) the appellant had taken a knife to the classroom with the express purpose of killing; (3) Mrs Maguire had been subjected to considerable suffering before she died; (4) the killing occurred whilst Mrs Maguire was performing an important public duty as a teacher; (5) the killing was deliberately staged in front of a classroom of 15 and 16 year olds; it must have had a grave effect upon them; (6) the level of violence was savage and cowardly; the appellant approached his victim from behind; and (7) there was a total lack of remorse; there was none before the judge and there is none before us. 28. The judge identified three mitigating factors: (1) the guilty plea, although the judge concluded that the maximum credit could not be given; (2) the appellant's adjustment disorder; and (3) his age. 29. Under paragraph 7 of Schedule 21 to the Criminal Justice Act 2003 the judge adopted the statutory minimum starting point of twelve years. He considered that the aggravating factors more than doubled that statutory starting point to a term of 25 years. From that he proceeded to deduct two years for the plea of guilty, and a further three years because of the appellant's youth and adjustment disorder. The judge gave no separate reduction for the previous good character as in his view that was a function of the appellant's youth. He therefore arrived at the minimum term of 20 years. The submissions on the appeal 30. In the written submissions that have been put before us and in the eloquent submissions made today by Mr Wright QC, three points have been made. First, it is said that, looked at in the round, the aggravating factors did not justify an increase in the minimum term to 25 years. Second, it is said that the judge did not give sufficient credit for the guilty plea; that maximum credit should have been given. Thirdly, it is said that the judge should have taken into account the fact that the appellant had no previous convictions and should have given greater weight to his youth in arriving at the overall term. It is submitted that had those factors been taken into account, although a minimum term significantly in excess of twelve years would have been imposed, the judge would not have imposed a term of 20 years. 31. We have been greatly assisted by Mr Greaney QC on behalf of the Crown, but we can state our conclusions shortly. Our conclusions 32. As we have indicated, the judge was correct in his identification of each of the aggravating features. In our view the judge arrived at the correct figure of 25 years as a result of those aggravating features. We cannot see any basis on which he could in any way be criticised. He set the matters out with great clarity. The evidence on each of those matters was clear. 33. We turn to the question of whether the judge was correct in his reduction of that provisional figure by five years, or whether he should have made a greater reduction. There were in our view four matters that the judge had to take into account: first, the appellant's youth; secondly, the fact that he had committed no previous offences. Regrettably, in our society there are many of the appellant's age who have already committed a number of serious offences. Although the appellant was not of entirely good character, we think that some recognition ought to have made for the fact that he had no previous convictions. Thirdly, there was the element (small as it is accepted to be) of the mental disorder. Finally, there was the question of whether proper credit had been given for the guilty plea. 34. On that last point we are entirely satisfied that the course followed by Mr Wright QC in the indication of the guilty plea was in the circumstances entirely appropriate. It cannot be right, where an offender is aged only 15 or 16, to require him to admit only a few days later the killing and the fact that it was unlawful. In our view there can be no criticism of the fact that that was not formally done until 11 July 2014. We accept that, before the plea to murder was entered, a full examination of the psychiatric evidence had to be undertaken. 35. However, we do not consider that the appellant was entitled to full credit for the guilty plea. It is plain from the facts and circumstances that we have set out in relation to the killing that the evidence was overwhelming. It seems to us that that follows also in respect of the psychiatric evidence. It cannot be said that if a psychiatrist produces a report that is obviously unsustainable, as Dr Vizard did, that that in any way gives rise to a doubt about the overwhelming nature of the case. 36. We have looked at each of those four factors in the light of the detailed evidence which we have set out. We consider that, giving due weight to each of those factors, the deduction of five years that the judge made was correct. We then stood back and asked ourselves, taking into account the statutory factors, including the welfare of this young appellant: was this the right and proper sentence? In our view it was. On the disturbing facts of this case the minimum term of 20 years was entirely the right decision, essentially for the reasons given by the judge and those which we have set out in this judgment. 37. Although we have granted leave to appeal so that this court has been able to give anxious consideration to all the factors in the case, we dismiss the appeal for the reasons we have given. 38. The court would like to thank both counsel for their great assistance. 39. Everyone has accepted that this matter should be dealt with in open court and that there are no reporting restrictions.

2015_01_29-3531.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2015/110/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2015/110

2d3d124cc4484c3da6852a3ccae4be72ab34458606811837798d4d7bd32bddd0

[2009] EWCA Crim 139

EWCA_Crim_139

crown_court

No: 200802340 C2 Neutral Citation Number: [2009] EWCA Crim 139 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 21st January 2009 B e f o r e : LORD JUSTICE TOULSON MR JUSTICE McCOMBE MR JUSTICE DAVID CLARKE - - - - - - - - - - - - - R E G I N A v RUKHSANA KOUSAR - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No:

No: 200802340 C2 Neutral Citation Number: [2009] EWCA Crim 139 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 21st January 2009 B e f o r e : LORD JUSTICE TOULSON MR JUSTICE McCOMBE MR JUSTICE DAVID CLARKE - - - - - - - - - - - - - R E G I N A v RUKHSANA KOUSAR - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - Mr J Challinor appeared on behalf of the Appellant Mr L Weston appeared on behalf of the Crown - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE DAVID CLARKE: On 17th March 2008, in the Crown Court at Birmingham before Mr Recorder Edwards and a jury, the appellant, who is 30 years of age, was convicted on counts 5 to 9 of an indictment alleging unauthorised use of a trademark contrary to section 92(1)(c) of the Trade Marks Act 1994 . That section provides, as far as relevant, as follows: "A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor - ... (c) has in his possession, custody or control in the course of a business any such goods with a view to the doing of anything, by himself or another, which would be an offence under paragraph (b)." She was the wife of Mohammed Sajid, a co-defendant who also stood trial. He stood trial on all nine counts and was convicted on all counts. The appellant appeals against her conviction by leave of the Single Judge. 2. The husband was a market trader who worked on a market stall in Walsall and, on 24th May, items were seized from their stall by a police officer and forwarded to Trading Standards Officers on the basis that the goods were counterfeit goods. Those items formed the basis of counts 1 to 4, on which the present appellant was not charged. 3. On 17th June, Trading Standards Officers searched the home address, which was shared by both husband and wife and their children, and found a large quantity of counterfeit items both in the loft of the house and in a van parked outside, of which the husband was the registered keeper. Counts 5 to 7 represented the property in the van. Counts 8 and 9 represented the property in the loft. 4. The prosecution's case was that the husband was a trader in counterfeit goods which he willingly sold on his market stall. Their case against the appellant was that she was aware of the counterfeit goods because they were stored in the family home and on this basis it could be said that she also was in possession of them. It was also alleged that the items in the van were items which had been part of the stock in the house and thus that she was in joint possession also of that property, although no such allegation was made in relation to items seized from the market stall. The defence of the husband was that the goods had been in the loft and van for a number of years. The jury did not accept it. 5. The defence case for the appellant was that she was not in possession, custody or control of the items seized. She had no involvement in her husband's business and she had no knowledge that the items were counterfeit. We should add that, when in due course the defence was presented before the jury, she gave evidence of being employed in other employment altogether and being in charge of the children. The van concerned was not the family transport and she did not use that. 6. The evidence for the Crown included evidence that the husband had been apprehended and property seized and that the enforcement officer at the city council was involved in a search of the property. Fifty bags of goods were recovered from the van and 12 from the loft. The appellant on her arrest declined to be interviewed on health grounds. 7. The case was presented against her on the basis that she was jointly with her husband in possession of the items in the loft and in the van. The case was not presented against her on the basis that her husband was in possession and thus guilty of the offence as a principal and that she, the appellant, aided and abetted his possession. Only primary possession was alleged. 8. At the close of the prosecution case, counsel for both defendants submitted that there was no case to answer. As regards the husband, an evidential point was raised relating to the items upon the market stall but that is of no relevance now. As regards the appellant, the submission was that there was no evidence on which the jury could infer either joint enterprise in the husband's market business or possession of any of the goods in her car. The submission was rejected and the appeal before us is based on the ground that the judge was wrong to reject it. 9. In his argument before the judge, counsel for the defendant then, Mr Challinor, drew a distinction between the goods in the van and those in the house. He accepted, clearly rightly, that the jury could infer knowledge of the presence of those stored in the loft but not those in the van, there being no evidence that they were in fact items which had been in the house. It seems to us that there was some force in the drawing of this distinction but we do not need to deal separately with it because the core issue on possession is whether there was evidence on which the jury could infer that she was herself in possession of the goods in the loft. If there was no evidence to support that then there was none in relation to the goods in the van. 10. Counsel submitted, relying on authority, that knowledge was not enough. Either encouragement or assistance to the husband so as to set up a case of joint enterprise, or actual exercise or control of the goods, was required. Mere acquiescence was not enough. It was further argued that, even if possession on her part could be inferred, there was no evidence that she was in possession in the course of her business with a view to profit or gain. The Crown's response on the main point was that there was ample evidence of knowledge. The goods must have been stored in the house with her co-operation and permission. Reliance was placed particularly on a decision of this court in McNamara in response to the reliance placed by the defence on a number of cases, including Bland , to which we shall return. 11. As to the second point, the Crown argued that because her possession was joint possession with her husband it was inevitably joint possession in the course of a business for profit or gain. The learned recorder ruled on the submission in quite brief terms as follows. Having dealt with the submission on behalf of the husband, he said this: "On behalf of Miss Kouser, it is submitted that in relation to Counts 5 to 9, although property was found in her loft and in her husband's van, she did not exercise a requisite degree of control over that property, and that there is no evidence to show she knew either their ultimate destination or was privy to his business activities. I have been helpfully referred to a number of authorities concerned primarily in the finding of drugs in houses, namely Searle , Bland , Conway and Burkes , and McNamara , and I am grateful to all counsel for the succinct and helpful way they have advanced their submissions. I reject both." He then went on to deal with the submission on behalf of Sajid Hussain and went on in this way as regards the appellant: "... as far as Ms Kouser is concerned, in my judgment the jury are quite entitled to infer (whether they do so or not being a matter for them) from all the circumstances on her part, both as to the presence of these articles in her loft and in her husband's van, and infer that that property was ultimately for sale." 12. It is apparent from that citation that he did not in terms say what it was that the jury were quite entitled to infer, but he must have been referring to the submission that she did not exercise a requisite degree of control over the property. So, what he held was that there was evidence of a requisite degree of control over the property so as to render her in possession of that property. The Recorder did not deal at all with the subsidiary point about the items in the van as contrasted with those in the loft. 13. At the heart of this appeal, having regard to the fact that primary possession was alleged, is the concept of possession and in particular the concept of control and we remind ourselves that the wording in the Act is "possession, custody or control". 14. The Crown's argument is that, this being the matrimonial home in which the whole family lived, she was in a position to exercise control and that she had the right to decide what was and was not kept in the house. She could have required her husband to remove the goods from the house. There was, however, no evidence that in relation to these goods she ever did in fact exercise control in the sense of actually doing anything, nor indeed did she have any involvement in her husband's activities. 15. It seems to us that the high watermark of the case for the prosecution in relation to possession is what is set out in paragraph 6 of Mr Weston's helpful and concise skeleton argument which we have before us, where he sets out what in his submission was the clearest evidence from which the jury could infer: "a. The Appellant knew of the goods in the house. b. The Appellant knew that the goods in the house were not there for any domestic purpose - the quantity was too great and they were on hangers. c. The Appellant knew that her husband was trading as a market trader. d. The Appellant knew that the stock for that market trading was the goods within the house and within the van." We interpose to say "so far so good", but he goes on: "e. The Appellant co-operated and allowed the goods to be in the house as they took up a large part of storage space in the house. f. The Appellant had the ability to control the goods in the home she lived [in]." 16. We make brief reference to the authorities cited to the judge. They are decisions of this court in the context of the possession of drugs, dealing with the limit of secondary liability in offences of possession. Read as a whole, they establish the proposition set out in Professor Smith's commentary to the last of these cases, R v McNamara and McNamara [1998] Crim LR 278, of which Mr Weston has helpfully provided us with the full transcript. Professor Smith said this: "The evidence must be sufficient to satisfy a jury either that each party was in possession with intent to supply or that someone (in the present case possibly a third party) was and the defendant not only knew that he was but also assisted or encouraged him in the enterprise." McNamara was relied upon by the Crown in the present case to establish that the earlier decision in R v Bland [1988] Crim LR 41 was to be decided on its own facts and was limited to its own facts. The facts in McNamara went considerably further. But in our judgment nothing in either case lent support to the contention that "ability to control", in the sense in which those words are used by the Crown here, is enough. Control, in the sense of ability to demand that the property be removed or ability to remove it oneself, is in fact no more than knowledge and acquiescence. That is not enough. There are earlier decisions that were cited to the judge: R v Searle [1971] Cr.App.R 592 and R v Conway and Burkes [1994] Crim LR 826. They are to similar effect and in our judgment take the matter no further. 17. To say that she had the ability to control, or the right to control, the goods in the house is no more than to say that it was her house, she lived there, she knew the goods were there; thus she had the right to demand that they should be removed, she acquiesced in their presence in the house and that was sufficient to render her in possession of them. 18. In the course of argument some discussion was engendered about the normal domestic situation: is a husband or wife to be regarded as in joint possession of items in that house which are in fact the property of the other spouse? Is a husband to be regarded as in possession of clothing and cosmetics, for example, of which his wife is both the owner and the possessor? We venture to suggest that that concept is quite inappropriate. One is not in possession of one's spouse's personal property in that sense. The term "permission" has been used, that she permitted this property to be in the house. Permission may be something more than an acquiescence but even then is not in our judgment sufficient to render the permittor a person in possession of the goods. In the field of drugs offences, there is a specific offence of permitting premises to be used for certain activities but there is no equivalent in the legislation with which we are concerned. A finding of being able to exercise a measure of control, which is the basis upon which this issue was in due course left to the jury, is not the same as a finding that she did exercise control. 19. The question can be approached from a different angle altogether by reference to the second limb of the appellant's argument before the judge: was the appellant in possession of these goods in the course of a business, because that is an element of this case. The Crown had to prove that her possession of the goods was possession in the course of a business and it seems to us that, if they could not establish that she was involved in the business as a participant, whether paid or otherwise, in the business of dealing with these goods, then they could not establish that element of their case. Thus, even if, contrary to our view, her so-called ability or right to control the goods was sufficient to render her in possession of them, this still did not suffice to establish that further element of these offences. Our conclusion, therefore, is that this appellant in truth did not have a case to answer and the learned Recorder fell into error in ruling that she did. 20. Accordingly, this appeal against conviction is allowed.

2009_01_21-1788.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/139/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/139

38e5a4fb6ac99cebc1c95688f375c78a509011a6a99288d80b15ef35a137503d

[2004] EWCA (Crim) 1478

EWCA_(Crim)_1478

supreme_court

Neutral Citation Number: [2004] EWCA (Crim) 1478 Case No: 200304333 B2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT SITTING AT MIDDLESEX GUILDHALL HIS HOUNOUR JUDGE MATHESON QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 16 June 2004 Before : LORD JUSTICE THOMAS MR JUSTICE ROYCE and HIS HONOUR JUDGE MICHAEL BAKER QC (sitting as an Additional Judge of the Court of Appeal) - - - - - - - - - - - - - - - - - - - - - Between : SULIMA

Neutral Citation Number: [2004] EWCA (Crim) 1478 Case No: 200304333 B2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT SITTING AT MIDDLESEX GUILDHALL HIS HOUNOUR JUDGE MATHESON QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 16 June 2004 Before : LORD JUSTICE THOMAS MR JUSTICE ROYCE and HIS HONOUR JUDGE MICHAEL BAKER QC (sitting as an Additional Judge of the Court of Appeal) - - - - - - - - - - - - - - - - - - - - - Between : SULIMAN HASSAN Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Sean Enright for the Appellant Mr Anthony Wadling for the Respondent Hearing date: 24 March 2004 - - - - - - - - - - - - - - - - - - - - - JUDGMENT: APPROVED BY THE CROWN COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS) LORD JUSTICE THOMAS : 1. On 11 July 2003 at the Crown Court at the Middlesex Guildhall before HH Judge Matheson QC and a jury the appellant was convicted of one offence of violent disorder; he was subsequently sentenced to a Community Punishment Order for 60 hours. The appellant had been charged with 3 counts of wounding with intent and was acquitted on each of those counts. On the count of violent disorder (on which he was convicted) there were 2 co-defendants Edriss Hassan, the appellant’s younger brother and Mousad Halaimza who were both acquitted. 2. The appellant appeals by leave of the Single Judge; the sole issue pursued on the appeal related to the direction given by the learned judge in relation to identification and the failure to hold an identification parade. We have reserved judgment solely because we needed further information which was not available on the day of the hearing. It has taken some little time to arrive. The facts relating to the violent disorder 3. On 11 June 2002 there was a serious incident involving groups of Bengali and Afghan youths near the North Westminster Community School and the Westway underpass. It was a running fight which occurred when children were coming out of school; the incident itself involved somewhere between 15 and 20 youths. Four of those youths sustained stab wounds. 4. It was the prosecution case that the three defendants, the appellant, Mousad Halaimzai and Edriss Hassan, became involved in a fight after Mousad Halaimzai had been teased and Edriss Hassan had called up his elder brother, the appellant, and others to help. During the violent disorder that followed, the appellant had taken out a knife and stabbed three persons. 5. It was common ground that the appellant was wearing that day a black Avirex jacket and Moschino jeans; it was the Crown’s case that a person wearing these clothes and identified by some witnesses as the appellant had been present throughout and had inflicted the stab wounds. It was also the Crown’s case that no one else wearing a black Avirex jacket and Moschino jeans was present. Only one of the witnesses, Nazir Ali, knew the appellant; he identified him as being present, but without the knife. 6. It was the appellant’s case that he had arrived at the scene after the fight had taken place; he denied participation. He agreed to stand on an identification parade. The failure to hold an identification parade 7. No identification parade was held. At the trial, it was contended on behalf of the appellant that evidence of identification should be excluded; it was accepted that if this submission succeeded there was no evidence against the appellant. 8. At the material time, the provisions of Code D relevant to the proposed identification parade were set out in paragraphs 2.14 and 2.15. They provided as follows: “2.14 Whenever a suspect disputes an identification made or purported to have been made by a witness, an identification procedure shall be held if practicable unless paragraph 2.15 applies. Such a procedure may also be held if the officer in charge of the investigation considers that it would be useful. When an identification procedure is required to be held, in the interests of fairness to suspects and witnesses, it must be held as soon as practicable. 2.15 An identification procedure need not be held if, in all the circumstances, it would serve no useful purpose in proving or disproving whether the suspect was involved in committing the offence. Examples would be where it is not in dispute that the suspect is already well known to the witness who saw the suspect commit the crime or where there is no reasonable possibility that a witness would be able to make an identification.” 9. After submissions which had lasted more than a day, the learned judge ruled that there had been a breach of the Code, but exercising his discretion under s. 78 of the Police and Criminal Evidence Act 1984 , he permitted the evidence of the identification witnesses to be adduced notwithstanding the breach of the Code. 10. In his careful and very clear ruling, based on the decision of the House of Lords in R v Forbes [2000] UKHL 66 i) The judge referred to the fact that: “ I must say that looking through all the statements, so far as I can tell from the statements, with the possible exception of Miss Beattie and possibly Angar Meir, I think the others, if asked, would probably have said that if they went to an identification parade, they would have recognised the person they were describing.” ii) He next concluded that there should have been an identification parade: “I am with Mr Enright in his submission that this was a case in which an identification parade was required and should have been held. I have to say that I perfectly understand the difficulty of a police officer having to make a decision about these things and I do not mean to be critical of him, but I believe that his, or someone’s decision, whoever’s it was, that no parade should be held was, in fact, mistaken and was a misjudgement. “I cannot refrain from observing that had a parade been held, none of this argument would have taken place. What the result would have been on a parade we will never know, but had a parade been held, none of these arguments, that we have been having yesterday and into this morning, would have been necessary or taken place. So to that extent I am with Mr Enright in his submission.” iii) Nonetheless, he did not think that the admission of the evidence would adversely affect the fairness of the proceedings and therefore admitted it.. The course of the trial 11. The evidence was then called, including the evidence of identification of the appellant. In the evidence given by each of those called to give identification evidence, it was stated either during the course of the oral examination or in a statement which was read to the jury, that he would have been able to identify the person in the black Avirex jacket and Moschino jeans if an identification parade had been held. We were told by counsel that there was no evidence in relation to the issue as to why no identification parade had been held. The summing up 12. Counsel could not recall, when we asked them, whether there had been a discussion with the judge either as to the form of the direction to be given in respect of the failure to hold an identification parade or on the issue as to whether a Turnbull direction should be given. 13. In the light of the closing speeches (to which we shall refer in paragraph 15) and the summing up (to which we shall refer at paragraphs 16), we directed that the record be examined for any discussion between counsel and the judge and that if there were any such discussion, a transcript be provided. 14. From the transcript of the proceedings which took place before counsel made their closing speeches, it was clear that there was a very brief discussion about whether a Turnbull direction should be given and a much fuller argument as to whether a direction should have been given in respect of breach of the Code. The discussion concluded with the Judge stating that he would reflect on whether a Turnbull direction should be given and that he would give a direction in relation to the breach of the Code. Speeches then followed immediately without these issues having been resolved. 15. We were told by Mr Enright, who appeared for the appellant, that he considered the judge had formed an adverse view on the identification issue. It was for that reason that during the course of his closing submissions to the jury on behalf of the appellant he described the decision not to hold an identification parade as “shameful and disgraceful”. This was in contrast to his submission during the course of the argument on admissibility where, as recorded in the ruling on the admissibility of identification evidence, Mr Enright did not say that the decision not to hold an identification parade had been made in bad faith, even though he criticised it. After Mr Enright’s closing speech, the Judge quite rightly expressed concern as to what had been said in relation to the failure to hold the parade and another matter not material to this appeal. 16. In his summing up the judge did not give a Turnbull direction; he directed the jury in respect of identification and the failure to hold a parade in a lengthy direction. It is necessary for us to refer to it in a little detail, in view of the criticisms made of it. i) First he directed the jury that there was no issue on identification, but an issue on whether the appellant participated in the incident: “Well, there is a very important issue for you to try. As you will see --realise, members of the jury of course, if he says he was there and is seen, you know it may be that someone, it is not really a question of identification is it? It is a question of whether he was there doing as he said. Because, if he was there and was seen, the sums of the identification in the sense of, "That is the person I saw" it has been mainly on the clothing has it not, the Avirex jacket and the Moschino jeans that have been referred to by numerous witnesses. The real issue is not whether he was there at all or whether he was correctly recognised because he says he was. It was whether he was there in the middle of --- to the material incident, all of which took place in a relatively short space of time.” ii) He then directed the jury as to the failure to hold an identification parade; in the passage set out, the decision in the House of Lords to which the learned judge referred was R v Forbes : “Now, as you have correctly been told – he does dispute that he was there and to that extent there is an identification dispute. As you have correctly been told by Mr Enright, the law about this is that if identification is disputed then there should be an identification parade and we know that there was not and as Mr Enright again correctly told you, all this was governed by a code, it is part of code D, which is a code, which is amended in the light of experience from time to time, which is made under the provisions of the Police and Criminal Evidence Act 1984 and it owes its origin, this part of it anyway does, as no doubt you are well aware, there have been occasions in the past where cases depending upon identification evidence have turned out to be serious miscarriages of justice. And so that is one of the reasons why the code deals with this and it does, indeed say, in terms that "whenever a suspect disputes an identification made or purported to have been made by a witness, an identification procedure shall be held if practicable". Well, I know it was suggested that it was not practical to hold one, however, and that is a mandatory requirement and that has been recently affirmed by the House of Lords at the moment at any rate because you are aware of the fact that there are proposals that they should be replaced by a new supreme court. But the House of Lords is, at the moment, the highest court in the country, the House of Lords has reaffirmed that the basic rule is that it is mandatory to hold an identification parade in the circumstances envisaged. However, like virtually every rule that there ever was, it is subject to exceptions and in fact, code D, paragraph 2.14, which I have just been reading from says, "Unless paragraph 2.15 applies". So, what does 2.15 say? "An identification procedure need not be held if, in all the circumstances, it would serve no useful purpose of proving or disproving whether the suspect was involved in committing the offence. An example would be where it is not in dispute that the suspect is already well known to the witness who saw the suspect commit the crime or where there was no reasonable possibility that a witness would be able to make an identification." If it would be a pointless exercise you are not required to do it. Well the possible exceptions can, and the code does not set out to define exactly when the situation in which it would not be necessary, it says examples may mean. You have really to look at the individual situation. In the case that I have been referring to, the judgment in the House of Lords has this passage, ‘If an eyewitness of a criminal incident makes plain to the police that he cannot identify the culprit, it will very probably be futile to invite that witness to attend an identification parade." And then this sentence, "If an eyewitness may be able to identify clothing worn by a culprit but not the culprit himself, it will probably be futile to mount an identification parade rather than simply inviting the witness to identify the clothing." Then there are references to pure recognition of someone you know very well. Well now, as Mr Enright said, and so far as the clothing is concerned of course the basis of the Crown's case, with one or two exceptions, do not forget Nasir Ali knows him as Simon and he gave evidence of having come face to face with him and Suliman agrees that they did come face to face and they had some conversation, which I shall be dealing with when I remind you of the evidence but essentially the evidence on which the Crown relies is the clothing, the Avirex jacket and the Moschino jeans. But, and that is one of the examples given in the House of Lords in their judgments, of when it is futile to hold an identification parade if the witness is going to be able to recognise the clothes and not the person. But you may have picked up indications, ladies and gentlemen that many witnesses if asked the question, “Would you recognise this person again” would probably have answered, "Yes". Now, as Mr Enright has rightly said, it is not a one-way process, identification parades. It is not purely for the benefit of the prosecution to have the suspect picked out. If the witnesses do not pick out a suspect that may be of assistance to the defence. It is just as important to the defence and he says Mr Hassan said in terms, in his interview that he was willing to stand on an identification parade but no identification parade was held. Well, ladies and gentlemen, there it is. The point is taken, I have had to consider it and as I say, there is this element, of course that they recognise him by the clothing but that may not be all ---my conclusion, as a matter of law, is that the decision by the police not to hold an identification parade was a misjudgement and in fact it should have taken place. That is not to say, members of the jury that I do not suggest and all respect to him; that Mr Enright's description of the decision “shameless and disgraceful”, you may well feel that that is going way, way over the top. I think it was an error but there it is and the consequence is of course that we shall never know whether the witnesses were to pick out Suliman Hassan on the parade or not or whether they would not have done. All I can say to you is that you will have to decide the evidence of this case on the evidence that you have got and apply it on the burden and standard of proof but there it is; that point is made and there is --- it is right to say that identification parades are not entirely for the benefit of one side or the other. They can apply it on either side, as I have indicated.” 17. The judge then proceeded to summarise the evidence of each of those witnesses who had given evidence of identification, pointing out where appropriate specific weaknesses in the identification evidence they had given. 18. Nothing was said to the judge at the conclusion of his summing up as to the fact he had not given a Turnbull direction. The submissions made 19. The submissions made can be summarised under five headings: i) The issue before the jury. Counsel for the appellant contended that the summing up failed to identify what the issue was which was before the jury. As is apparent from the passage we have set out at paragraph i) the learned judge told the jury that it was “not really a question of identification is it? It is a question of whether he was doing as he said”, but he also said “now as you have been correctly told – he does dispute that he was there and to that extent there is an identification dispute.” It was submitted on the appellant’s behalf that a Turnbull direction should have been given. Counsel for the prosecution submitted that the issue in the case was one of participation by a person who admitted being present at some stage; there was no real question of identification. ii) The references to PACE and the Code. There had, we were told, been no references to PACE or to the terms of the Code during the course of the trial during which the jury were present. It was submitted on behalf of the appellant that the passage in the summing up where the judge at some length referred to the terms of paragraph 2.14 and 2.15 was confusing to the jury. iii) The reference to paragraph 2.15 of the Code. It was submitted on behalf of the appellant that as the judge had already come to the clear conclusion that a parade should have been held and there had been a breach of the Code and as the issue had not been revisited in front of the jury, it was wrong of him to have introduced before the jury paragraph 2.15 of the Code. Therefore referring to the question as to whether a parade need have been held at all served no useful purpose; it must have confused the jury. As the judge had already ruled that a parade should have been held and the trial had proceeded on that basis, there was simply no issue for the jury as to whether or not it was practical to hold a parade. iv) The reference to specific passages from the speech in Forbes: The Judge, as is apparent from the passage we have set out above cited two passages from the speeches in the House of Lords in Forbes dealing with circumstances where it was unnecessary to hold a parade; the passages gave as examples the situation where an eyewitness had made it plain he could not identify the culprit and where the witnesses had made plain they might be able to identify the clothing, but not the culprit. It was submitted that these were not issues, on the evidence, before the jury. v) The totality of the passage in the summing up set out in paragraph 16. It was submitted on behalf of the appellant that taking as a whole the passage in the summing up, which we have set out, it was extremely confusing for the jury as it did not identify the significant issue for them to understand. Our conclusions 20. We should first point out that: i) This was not a case where a Turnbull direction was needed on the basis of the evidence before the jury. This was not, on the evidence actually given, a case where there was a dispute as to the identification by the visual appearance of the appellant (though that might have been the case if a parade had been held); the identification of the person holding the knife had been by his clothing. A Turnbull direction was not therefore necessary – see R v Gayle [1999] 2 Cr App Rep 131, and R v Doldur [2000] Crim LR 178. We therefore do not need to consider what form of warning should have been given if the issue had been a dispute over participation where the dispute turned on the identification by visual appearance: see the cases discussed in Archbold (2004 edition) at paragraph 14-16. ii) As to the direction on the breach of the Code, the judge did refer to the evidence given by the witnesses that, if they had seen the person again, they would have recognised him. He reminded them that, as a matter of law, the identification parade should have taken place and there had been a misjudgement by the officer. He told them that identification was not a one-way process and if a witness did not pick out a person, that was important to the defence; the jury would not know the consequences of the failure to hold a parade in that they would never know whether the witnesses were able to pick out the appellant. 21. Furthermore, in the light of the speech made by Mr Enright to the jury, the Judge had to say something about the reason for the failure to hold the parade, even though it was not an issue before the jury. i) First, Mr Enright had drawn to the Judge’s attention the passage in Forbes (which we set out at paragraph i) in which Lord Bingham gave guidance to judges as to how to direct the jury where there has been a breach of the code. The Judge had agreed to give such a direction. ii) Second, it was in these circumstances, in our view, wrong of Mr Enright to have characterised in his speech to the jury the decision of the police not to hold an identification parade as “shameful and disgraceful”. He candidly told us he made that reference because of the view he believed the judge had taken in respect of the identification evidence and wished to get his point in first before, what he believed would be, a hostile summing up. He accepted before us that he should have adopted a more measured approach. However, as the judge had ruled that there had been a breach of the Code, and the question as to why there had been a breach had not been one canvassed in evidence and the Judge had agreed to give an appropriate direction, the question as to why there was no parade was not an issue in this case which was before the jury. He should not have said what he did, but in the light of his concession before this court, we need say nothing further. iii) In the circumstances, the Judge was compelled by Mr Enright’s conduct to revisit the question of whether a parade should have been held. It was necessary for him to tell the jury that he had ruled that an identification parade should have been held; the trial had been conducted on the basis that that issue was decided and no evidence was called as to why no parade had been held. There was therefore no issue before them as to whether it would have been futile to hold the parade and they should therefore put out of their minds the issue raised by Mr Enright. 22. However in our judgment although no Turnbull direction was necessary and the points set out in paragraph ii) in relation to the Code were covered, some criticism of the summing up can be made. i) The terms of the direction on the consequences of the failure to hold a parade were not as clear as they might have been. The guidance given to Judges in R v Forbes at paragraph 27 by Lord Bingham of Cornhill on how to deal in their summing up with cases where there had been a failure to hold an identification parade was very clear: “The appellant also had a substantial complaint that the recorder did not direct the jury that there had been a breach of the Code or give any direction on the effect of that breach. It is in our judgment important that the position should be clear. In any case where a breach of Code D has been established but the trial judge has rejected an application to exclude evidence to which the defence objected because of that breach, the trial judge should in the course of summing up to the jury (a) explain that there has been a breach of the Code and how it has arisen, and (b) invite the jury to consider the possible effect of that breach. The Court of Appeal has so ruled on many occasions, and we approve those rulings: see, for example R v Quinn [1995] 1 Cr App R 480, 490F. The terms of the appropriate direction will vary from case to case and breach to breach. But if the breach is a failure to hold an identification parade when required by Code D, paragraph 2.3, the jury should ordinarily be told that an identification enables a suspect to put the reliability of an eyewitness’s identification to the test, that the suspect has lost the benefit of that safeguard and that the jury should take account of that fact in its assessment of the whole case, giving it such weight as it thinks fair”. ii) In formulating the direction based on that guidance, the judge should simply have taken into account the facts that (1) there had been no evidence before the jury on the issue of whether there should have been an identification parade and (2) the evidence of each witnesses was that he would have been able to recognise the person if an identification parade had been held. Taking those two matters into account the direction of the jury could have been quite short: a) The judge could have referred to the purpose of an identification parade. b) He could have simply stated there had been a failure and that they should have put out their minds speculation as to why there had been a failure. c) He could simply have then explained the effect of the failure and reminded them of the evidence that had been given. d) He could then have stated that the appellant had lost that benefit and how they were to treat it was a matter for them. iii) In considering the passage complained of as a whole, we can see that with the benefit of a more focussed discussion before speeches and a clear identification and resolution of the issues at that stage, a shorter and more focused direction on the effect of the Code could have been given as we have suggested. iv) However considering the passage which we have set out, all the points we consider should have been made to the jury were in fact made. The fact that the judge may have dealt with the reasons for the failure to hold the parade at a length that was clearly unnecessary was, as we have said, brought about by Mr Enright’s conduct in opening an issue which should not have been opened in the light of the discussion before speeches. Thus, although some criticism can rightly be made of this part of the summing up, we do not consider there was a misdirection. 23. We have considered, whether looking at the direction which we have considered at some length and the whole of the summing up, it could be said that the conviction was unsafe. We do not consider it was and therefore dismiss the appeal.

2004_06_16-261.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/1478/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/1478

ed84064331e9fa9918bc611ff488ba47c79c1e14a5ef622b1ebecf9991758db1

[2011] EWCA Crim 2296

EWCA_Crim_2296

crown_court

Case No: 201103775 A7/201103781 A7/201103782 A7/201103778 A7 Neutral Citation Number: [2011] EWCA Crim 2296 IN THE COURT OF APPEAL (CRIMINAL DIVISION) IN THE MATTER OF THE ATTORNEY GENERAL REFERENCE Nos: 055/056/057/058/2011 UNDER SECTION 36 of the CRIMINAL JUSTICE ACT 1988 Royal Courts of Justice Strand, London, WC2A 2LL Date: 14/10/2011 Before : LADY JUSTICE RAFFERTY DBE MR JUSTICE MITTING and MR JUSTICE LLOYD JONES - - - - - - - - - - - - - - - - - - - - - Between : Regina - and - Darren STEW

Case No: 201103775 A7/201103781 A7/201103782 A7/201103778 A7 Neutral Citation Number: [2011] EWCA Crim 2296 IN THE COURT OF APPEAL (CRIMINAL DIVISION) IN THE MATTER OF THE ATTORNEY GENERAL REFERENCE Nos: 055/056/057/058/2011 UNDER SECTION 36 of the CRIMINAL JUSTICE ACT 1988 Royal Courts of Justice Strand, London, WC2A 2LL Date: 14/10/2011 Before : LADY JUSTICE RAFFERTY DBE MR JUSTICE MITTING and MR JUSTICE LLOYD JONES - - - - - - - - - - - - - - - - - - - - - Between : Regina - and - Darren STEWART Jacek WLODEK Christopher HILL Kieran WALSH - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr J Pitter (instructed by Tates Solicitors ) for Stewart Mr Dry (instructed by David Ake & Co Solicitors ) for Wlodek Mr R Reed Solicitor Advocate (instructed by Grahame Stow Bateson Solicitors ) for Hill Mr R G Mairs (instructed by Smithson Hinds Morris Solicitors ) for Walsh Mr J Hallam (on behalf of the Attorney General ) for the Respondent Hearing date: 7 th September 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Lady Justice Rafferty : 1. This is an application by HM Attorney General under S36 Criminal Justice Act 1988 for leave to refer sentences which he considers unduly lenient. We give leave. 2. On 17 th June 2011 in the Crown Court sitting at Leeds Jacek Wlodek aged 30 was sentenced to 18 months’ imprisonment with a consecutive term of 6 months for perverting the course of justice. Darren Stewart aged 29 was sentenced to 2 years’ imprisonment, with a consecutive sentence of 5 years’ imprisonment for possession of a prohibited firearm. Each had entered guilty pleas at the plea and case management hearing. Christopher Hill aged 31 was sentenced to 4 years and 6 months’ imprisonment. He pleaded guilty on the morning of his trial. Kieran Walsh aged 30 was sentenced to 51 weeks’ imprisonment suspended for 2 years with a 200 hour unpaid work requirement. He pleaded guilty on the morning of his trial, the Crown having been notified in advance. 3. The conspiracy was between 30 th June 2010 and 27 th October 2010 together and with others unknown to import approximately 700kg of cannabis, with a street value of approximately £5 million. On 28 th July 2010 Hill (using a false name) and Walsh at a storage facility in Leeds expressed an interest in Unit 5, and next day the estate manager received an email purportedly from Walsh but in fact from an email account operated by Hill. After negotiation, during which Hill, pretending to be Walsh, provided the latter’s address, home telephone number and bank account details, but his own mobile telephone number, a rental agreement was reached. The two conspirators on 2 nd August 2010 handed over a banker’s draft. Walsh in his own name signed the rental agreement and in September and October payments were made in cash and a further banker’s draft until on 4 th October 2010 a month’s notice was given. 4. A2B Online (UK) was hired by a Dutch company, Caroz BV, on six occasions to collect deliveries of one pallet each from a second Dutch company, ASK Plastics, to be delivered to a British company, MTC Trading, supposedly based in Unit 5. MTC’s name was simply used as a cover. In fact Bedford’s Transport Ltd made the first five deliveries to Unit 5 where Wlodek accepted them. One driver noticed that Unit 5 was empty except for an angle grinder. Wlodek hired a van on occasions corresponding with two deliveries, and Stewart hired a van on another. 5. The sixth delivery, of four drums for MTC Trading at Unit 5, came from the Netherlands and was intercepted at Felixstowe on 23 rd October 2010. The drums appeared to contain oil, but were lead-lined and concealed compartments held 211 packages of cannabis, cannabis resin and “skunk” cannabis, in total 175.2kg of cannabis with a street value of approximately £896,550. 6. On 27 th October 2010 a controlled delivery of four drums to Unit 5 was accepted by Wlodek using the name Hill. Wlodek placed the drums in the unit using a forklift truck. Shortly, Stewart arrived. Police officers then attended to search it. Stewart was arrested inside, Wlodek after an attempted escape. One drum had been cut open using the angle grinder. False pipes inside the unit showed that the previous deliveries had been of the same nature. The total weight of all deliveries was approximately 700kg of cannabis, with a street value of approximately £5 million. 7. Police officers then searched the homes of Wlodek, Stewart and Hill. 8. Wlodeck revealed 728.01g of cannabis with a street value of approximately £3,195, Stewart 2.959kg with a street value of approximately £25,350. 9. Walsh was arrested on 30 th October 2010 as he disembarked from a flight from Amsterdam. Hill was arrested on 15 th November 2010 having handed himself in to the police. 10. Telephone analysis supported inter-conspirator contact. Interviewed, Wlodek and Stewart denied involvement in any conspiracy to import drugs, Stewart saying that the drugs found at his address were to be sold to fund a course at college. Walsh accepted renting Unit 5 with Hill, saying he had done so in connection with a friend’s business. He accepted arranging two banker’s drafts, but denied involvement with the cash rental payment. He denied that the friend he had done this for was Hill, knowing Wlodek or Stewart and any involvement in the conspiracy. 11. Hill accepted renting Unit 5 with Walsh, saying he had done so in connection with a business he had set up with a friend. He accepted communicating with the estate manager using the email address in Walsh’s name and being friendly with Wlodek and Stewart. He denied any involvement in the conspiracy. 12. Wlodek and Stewart were remanded in custody, Hill and Walsh on conditional bail, upon which each remained until sentence. 13. Wlodek has no previous convictions or cautions. 14. Stewart has ten previous convictions for eighteen offences. Ten are driving offences; two are for obstructing a constable; one is for battery; four are for breaches of court orders or failing to surrender; and one, in 1999, is for possession of cannabis. 15. Walsh has four previous convictions for ten offences, six of them drugs offences. In 2002 he was fined £150 for possession of cocaine with intent to supply and for possession of cannabis, offences committed in May 2002. In 2003 he received concurrent community punishment orders of 125 hours for possession of cocaine and of cannabis in August 2002, offences committed with Hill. In 2004 he was fined £60 for possession of cannabis. 16. Hill has five previous convictions for twelve offences, five of them drugs offences. In 2003 he was punished as was Walsh for like offences. In 2004 he received concurrent community punishment orders of 100 hours and community rehabilitation orders of 12 months for driving while disqualified and possession of cannabis. In 2005 in the Crown Court sitting at Leeds he received a community punishment order of 80 hours for cultivating cannabis. In 2008 after a trial 50 weeks’ imprisonment was suspended for 2 years for being knowingly concerned in the evasion of a prohibition on the importation of cannabis, then a Class C drug. 17. Wlodek and Stewart pleaded guilty at the plea and case management hearing on 28 th January 2011. A basis of plea for Wlodek, not accepted by the Crown, included the following assertions: i) in good faith he accepted employment to perform general labouring including unloading deliveries, cash in hand; ii) in August he became aware when the drums were opened and an unnamed third party removed the drugs that they held cannabis; iii) he raised the matter with his employer, who confirmed the position and offered him cannabis in lieu of wages which he accepted; iv) he continued in that role until 27 th October, hiring a van on two occasions to dispose of emptied drums. 18. The Crown contended that he did not begin his employment in good faith, rather, he was involved from the beginning of the conspiracy so as to be at the warehouse and take deliveries. 19. He also pleaded guilty to perverting the course of justice. On 21 st October 2010, driving whilst twice over the legal limit and in collision with another motorcar he fled the scene then reported his car stolen. 20. A basis of plea for Stewart, accepted by the Crown, included: i) the extent of his involvement was on two occasions collecting drugs delivered to the unit; ii) he was told to hire a van to pick up the drugs and he dropped them off where instructed; iii) he was paid in cannabis. 21. He also pleaded guilty to possessing a prohibited firearm, contrary to section 5(1) (aba) of the Firearms Act 1968 . On 24 th May 2010 he had been stopped by police officers with another man in a motorcar. The vehicle, which smelled of cannabis, was searched and four bags of cannabis seized. The home address of the other man was searched and what was believed to be Class A drugs seized. Stewart’s home was searched and revealed nine cannabis buds, self-seal plastic bags, a stun gun and a sawn-off .22 bolt-action rifle prohibited by reason of its length. He was on bail for that matter when he became involved in the index conspiracy. 22. A basis of plea for Walsh included: i) he allowed his details to be used by Hill to rent Unit 5; ii) he was unaware of the scale of the importation although he realised it was significant; iii) his profit was minimal. 23. The Crown did not accept the basis. It acknowledged that the case against him was that he had rented the unit with and at the request of Hill. 24. A basis of plea for Hill included: i) he was recruited to satisfy an outstanding debt from his previous, intercepted, importation; ii) he was required to find an unit to which the drums could be delivered and enlisted Hill to assist; iii) he neither financed nor organised the importation; iv) he was not involved in the onward distribution of the drugs; and v) he was out of the country at various times whilst the conspiracy was active. 25. The Crown did not accept the basis of plea. It averred that: i) as there had been similar deliveries of drums to other locations in the UK, there was an indication that there were others in the chain above Hill and that he was not the financer of the importations; ii) he was culpable for the onward distribution having been their importer albeit he did not know their precise destination; and iii) whilst it was accepted that he was out of the country on occasions during the currency of the conspiracy, this demonstrated that his role was significant and supervisory. 26. The Judge indicated that the issues inter partes over the bases made no difference to sentence. 27. Pre-sentence reports were prepared. The authors of those in respect of Hill and of Walsh did not obtain the Crown’s case papers, or case summary. 28. Wlodek told the author that after placing an advertisement seeking work as a forklift truck driver he had been telephoned and invited to unload oil drums at the industrial unit as and when required. Whilst unloading he punctured a drum, and saw that it contained not oil but cannabis. His employers became suspicious that he had realised, and began to pay him in cannabis in lieu of wages. Wlodek said that he took cannabis mainly for pain relief because he had hurt his knee. In relation to the driving matters, he said he had argued with his fiancée and had decided to drive away from the argument. He panicked after a collision and decided to report the vehicle as stolen. The author concluded that he posed a low risk of re-offending and recommended a brief suspended sentence. 29. Stewart said that he was a cannabis user in debt to the tune of £1000 to his supplier who offered him a chance to clear the debt and make money by making two deliveries of cannabis. Stewart said that on two occasions he hired a van, took it to one place where he left it with someone, and then to another where he left it with someone else. He said he was paid £500, given 1kg of cannabis, thought he was just moving cannabis grown in the UK from one location to another, and had no idea he was involved in importation. He conceded that drugs “bring communities down” and are “linked to crime”. In relation to the sawn-off rifle he said that a violent former partner of his girlfriend had forced him to look after it some months before its seizure. 30. The author assessed him as posing a medium risk of harm to the public. Notwithstanding the minimum term provisions applying to the firearm offence, she recommended a community order with a supervision requirement of 9 months and an unpaid work requirement of 150 hours. In the alternative, she recommended a suspended sentence were only a custodial sentence appropriate. 31. Walsh said that he had been approached by Hill to help rent an industrial unit as the latter had electrical goods and clothes he wished to store then sell. Walsh said that he had helped since Hill claimed he had problems with his bank account. Walsh said Hill funded the monthly rental which Walsh passed on to the landlord, with no idea Hill was in truth using the facility for the storage and onward transfer of drugs. Walsh denied receiving any reward. He said he lived with his partner, worked locally as a chef and was due for promotion. 32. The author felt that whilst custody might be inevitable, nevertheless based on the agreed basis of plea, and his personal circumstances, the term could be suspended and be coupled with an unpaid work requirement. 33. Hill said he had committed the offence because he owed a drugs debt of £35,000. He had been convicted in 2008 of attempting to smuggle into the UK £70,000 of cannabis. Post-conviction he had been out of the jurisdiction returning in June 2010 because his mother was unwell. On his return, he said, he was told he had to pay off the debt and so agreed to facilitate the renting of an industrial unit to be used in the importation of cannabis. He said that he would have received no reward save the expunging of the debt. 34. The author felt a custodial sentence inevitable based on his pattern of offending, 2008 conviction, and the facts of the index offence. 35. The court’s attention was drawn to the guideline case of R. v. Aramah , 76 Cr.App.R. 190. Counsel for the Crown read aloud the words of Rose LJ in R. v. Ronchetti [1998] 2 Cr. App. R. (S.) 100 dealing with importation of 100kgs and more: “Following a trial, the importation of 100kgs by persons playing more than a subordinate role should attract a sentence of 7 to 8 years. 10 years is the appropriate starting point for importations of 500kgs or more. Large importations would attract a higher starting point, which would rise according to the role played, the weight involved and all other circumstances of the case.” 36. The Crown submitted that the case involved quantities in excess of 500kg. 37. The court found that Hill played the most important role. 38. Aggravating features are: i) the quantity of drugs; ii) the duration of the conspiracy; iii) the sophistication of the operation; iv) for Wlodek and Stewart part of the offence was committed on bail; v) for Walsh and Hill previous convictions for drugs offences; and vi) for Hill the offence was committed during the suspension period for an earlier offence of smuggling cannabis. 39. Mitigating features are: i) guilty pleas albeit late for Walsh and Hill; ii) for all save Hill limited, but important, involvement; and iii) for Wlodek previous good character . 40. The Attorney General in submitting that the sentences fail adequately to reflect the seriousness of the offences and the offenders’ culpability relies upon R. v. Aramah , 76 Cr.App.R. 190, as amended by R .v. Bilinski , 9 Cr.App.R.(S.) 360; R. v. Satvir Singh , 10 Cr.App.R.(S.) 402; and R. v . Ronchetti [1998] 2 Cr. App. R. (S.) 100; Attorney-General’s References Nos . 19, 20, 21 and 22 of 1997 ( Reeves and others ) [1998] 1 Cr. App. R. (S.) 164. 41. We have already rehearsed that part of Ronchetti relevant to this appeal, and in the light of the words of Rose LJ it is with one exception unnecessary to consider those authorities we list above. Attorney-General’s References Nos. 19, 20, 21 and 22 of 1997 ( Reeves and others ) [1998] 1 Cr. App. R. (S.) 164. repays scrutiny. A plea by the principal offender of guilty to an importation offence involving 102kg of cannabis would, post-trial, have been in the region of ten years. The four and a half imposed was unduly lenient and taking into account as was then the practice double jeopardy it was raised to seven years. For the second-in-command eight years post-trial would have been appropriate and three and a half years after a plea was raised to six. For the third and fourth offenders, couriers involved in preparation and administration, post-trial four years would have been appropriate and after plea two years would have been raised to two and a half, and as a consequence the court whilst finding the sentence unduly lenient chose not to intervene. 42. The Attorney General when invited to nominate terms of years for which he contended submitted as follows: Hill fell squarely into a Ronchetti bracket and his sentence should have been in the region of ten years. All others the AG agrees fall into the “subordinate but significant category” Rose LJ identified, so that terms in the region of 5-6 years for Wlodek and Walsh would be appropriate. Stewart falls to be distinguished since he pleaded guilty to a firearms offence attracting a statutory term of five years. In his case therefore totality requires consideration. The AG submits that the appropriate course would be a starting point of six years for the conspiracy, discounted for plea to four years, further reduced to take account of totality to three, and five years for the firearms offence to be served consecutively leading to an overall total of eight years. Wlodek had unpacked the drugs and moved them onwards along the marketing chain, but he was of good character and one of the first to tender a plea of guilty. For him the appropriate sentence the Attorney General suggests would be in the region of five to five and a half years. Walsh though he merely organised the rental had previous convictions and had tendered a late plea. The appropriate sentence for him too, the Attorney General submits, would have been between five and five and a half years. 43. In our judgment it is plain that Ronchetti read with the Attorney General’s references demonstrates without more that these sentences were unduly lenient. Indeed the oral submissions by counsel for each offender were before us the more effective for their realism and candour. That said, we have derived some further assistance from the consideration of the court in the Attorney General’s references to which we have referred. We have concluded that for Hill the appropriate sentence falls somewhat short of the ten years for which the Attorney General contends, and in his case the term of four and a half years will be quashed and for it will be substituted one of eight years. For Wlodek we quash the sentence of eighteen months and for it substitute a term of four and a half years. Six months consecutive for perverting the course of justice remains, making the total for him five years. For Stewart we quash the sentence of two years for the drugs offences and for it substitute one of three years, adopting the discounting method for which the Attorney General contends. The five year term for the firearm offence remains to be served consecutively, the total thus eight years. For Walsh we quash the suspended sentence and substitute for it a term of fifty one weeks’ imprisonment, giving some acknowledgement to his having retained his liberty not only since his remand on bail but consequent to the sentencing hearing. His sentence is thus one of fifty-one weeks imprisonment. His sentence will begin to run from the time he surrenders to custody. In the case of each, full credit for the full period of time spent in custody on remand and if applicable any time under curfew should it qualify under the provisions of S240 A CJA 2003 . So far as the court can tell, the total period for Wlodek and Stewart is 231 days but should this prove inaccurate we shall order an amendment so as to order the correct period.

2011_10_14-2835.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/2296/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/2296

2aa85a85c6202e1579bdbaca24ad35c3fdac987dc8caaee72c40e418dda3b4db

[2004] EWCA Crim 1986

EWCA_Crim_1986

crown_court

No: 200402365/A2 Neutral Citation Number: [2004] EWCA Crim 1986 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 24th June 2004 B E F O R E: LORD JUSTICE KENNEDY MR JUSTICE ASTILL MR JUSTICE GROSS - - - - - - - R E G I N A -v- TERRY STUART GAMBLE-BERESFORD - - - - - - - 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 Wri

No: 200402365/A2 Neutral Citation Number: [2004] EWCA Crim 1986 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 24th June 2004 B E F O R E: LORD JUSTICE KENNEDY MR JUSTICE ASTILL MR JUSTICE GROSS - - - - - - - R E G I N A -v- TERRY STUART GAMBLE-BERESFORD - - - - - - - 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 F KRAUSE appeared on behalf of the APPELLANT - - - - - - - J U D G M E N T 1. MR JUSTICE GROSS: There is only one point in this appeal and that concerns the application of section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 (" the Act ") in the context of an extended sentence passed under section 85 of the Act . 2. In so far as relevant, sections 85 , 116 and 117 of the read as follows: Section 85 : "(1) This section applies where a court- (a) proposes to impose a custodial sentence for a sexual or violent offence committed on or after 30th September 1998; and. (b) considers that the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of preventing the commission by him of further offences and securing his rehabilitation. (2) Subject to subsections (3) to (5) below, the court may pass on the offender an extended sentence, that is to say, a custodial sentence the term of which is equal to the aggregate of- (a) the term of the custodial sentence that the court would have imposed if it had passed a custodial sentence otherwise than under this section ('the custodial term'); and. (b) a further period ('the extension period') for which the offender is to be subject to a licence and which is of such length as the court considers necessary for the purpose mentioned in subsection (1) above." Section 116 : "(1) This section applies to a person if- (a) he has been serving a determinate sentence of imprisonment which he began serving on or after 1st October 1992; (b) he is released under Part II of the Criminal Justice Act 1991 (early release of prisoners); (c) before the date on which he would (but for his release) have served his sentence in full, he commits an offence punishable with imprisonment ('the new offence'); and. (d) whether before or after that date, he is convicted of the new offence. (2) Subject to subsection (3) below, the court by or before which a person to whom this section applies is convicted of the new offence may, whether or not it passes any other sentence on him to be returned to prison for the whole or any part of the period which- (a) begins with the date of the order; and. (b) is equal in length to the period between the date on which the new offence was committed and the date mentioned in subsection (1(c) above." Section 117: "(3) Where a person has been sentenced to two or more terms of imprisonment which are wholly or partly concurrent and do not fall to be treated as a single term, the date mentioned in section 116(1) (c) above shall be taken to be that on which he would (but for his release) have served each of the sentences in full. (5) Section 116(1) and subsection (3) above shall each have effect as if the term of an extended sentence (within the meaning of section 85 above) included the extension period (within the meaning of that section)." 3. For present purposes, put simply, section 116 of the Act provides that where the prisoner is released early and commits a further offence punishable by imprisonment before the date when, but for his release, his first sentence would have expired, he can be returned to prison for up to but no more than the period between (a) the date of the further offence and (b) the date where his first sentence would have expired. 4. In a nutshell, it is said by Miss Krause, on behalf of the appellant -- who committed a new offence before even the custodial term of an extended sentence had expired -- that the judge has erred in calculating the period, so that the sentence passed is unlawful and must be reduced. 5. The real question, however, as we see it, is whether, in calculating the period under section 116 of the Act in the context of an extended sentence passed under section 85 of the Act (i) only the custodial term is to be taken into account or (ii) both the custodial term and the extension period are to be taken into account. If the former is correct, then, as will become apparent, the sentence passed is unlawful. If the latter, then no complaint along these lines can be made against sentence passed by the judge. 6. Against this background the relevant facts can be shortly summarised. On 19th May 2003 the appellant pleaded guilty in the Crown Court at Croydon and on 18th July 2003 he was sentenced by His Honour Judge Joseph, in respect of an offence of assault occasioning actual bodily harm committed on 22nd October 2002. 7. On 7th April 2000, before the same court, the appellant had been sentenced to a custodial term of 4 years' imprisonment and an extension period of 5 years, that is a 9 years aggregate extended sentence in respect of two counts of burglary, six counts of indecent assault and a count of taking an indecent photograph or pseudo photograph of a child. 8. The appellant had been remanded in custody from 18th December 1999. In the event, on 17th December 2001, the appellant had been released from prison early. It follows that the 2000 sentence had on any view not been served in full at the time when the October 2002 offence was committed. 9. As a matter of arithmetic, if only the custodial term is relevant, the maximum period for which the appellant could be returned to prison was that between (a) 22nd October 2002 and (b) 16th December 2003, when the custodial term of the 2000 sentence would have expired. That period is accordingly equal to 421 or 422 days. The precise number of days does not matter. 10. Equally, as a matter of arithmetic, if both the custodial term and the extension period are to be taken into account, then the period would be of the order of 2249 days, as has been helpfully calculated by the Prison Service in response to a question posed by this Court. For the Prison Service's assistance with regard to such calculations, we are grateful. 11. When sentencing, the judge first returned the appellant to prison in respect of the 2000 matter; for this breach of licence, he sentenced the appellant to 684 days imprisonment. In respect of the 2002 assault he sentenced the appellant to 15 months imprisonment consecutive. The total sentence was accordingly 15 months plus 684 days imprisonment. From that sentence the appellant appealed by leave of the Single Judge. 12. The sole ground of appeal at least until this morning's hearing was that the judge miscalculated the maximum period. Instead of the 684 days, Miss Krause has submitted that the period should have been 421 or 422. There was a further point taken as to the deduction to be made for the time spent in custody. That really is by the by but, in the upshot, Miss Krause's submission is that the maximum sentence would be 368 days rather than 684. 13. As the facts disclose and as already foreshadowed, Miss Krause's submission would be correct if, but only if, only the custodial term of the extended sentence is to be taken into account. If, however, both the custodial term and the extension period come into the calculation, then the criticism of the judge's sentence is not well-founded. 14. We acknowledge that if section 116(1) (c) of the Act is considered in isolation, then the wording "served his sentence in full" may appear at first blush to contemplate only a custodial term. That, however, is to ignore both the statutory provisions contained in section 117(5) of the Act and moreover the terms and context of section 85 and the learning already available on that section (see generally Archbold 2004 paragraph 5 - 226). 15. In this regard, first, section 85(2) refers to an extended sentence as a custodial sentence, the term of which is equal to the aggregate of the custodial term and the extension period. Secondly, this Court has previously warned that when imposing an extended sentence, the sentencer should bear in mind that the offender might ultimately serve the whole or part of the extension period in the custody. Thirdly, the offender is liable to recall to custody at any time before the end of the extension period. 16. In this last regard Miss Krause drew our attention to the decision of R (Sim) v The Parole Board [2003] EWCA CIV 1845 [2004] 2 WLR 1170 . That decision is, of course, of the first importance on the question of administrative recall but does not assist us further in the context of the present appeal. 17. In our judgment, on a proper consideration of sections 85 , 116 and 117 of the Act , read together as they must be, both the custodial term and the extension period under section 85 must be taken into account when calculating the period under section 116 . To be fair to Miss Krause, once the statutory provisions of section 117 were pointed out to her, she acknowledged readily the force thereof. 18. This construction, which we favour, accords with the purpose of section 85 , which is to enable a sentencing court to extend a normally applicable licence period for a qualifying violent or sexual offence. It does not follow that the aggregate sentence is any less a custodial sentence than a simple determinate sentence. Indeed the purpose of extending the normally applicable licence period (and so to keep the offender at risk of recall for a considerable period) would be undermined unless at least for present purposes the whole of the extended sentence was treated as a custodial sentence. 19. Nor could it be right that the period for which a prisoner is returned to prison differed depending on whether the new offence was committed before or after the custodial term would have expired. What if, for example, in the present case the new offence had been committed after the expiry of the custodial term but within the extension period? On those facts it cannot be that the appellant would not have been liable to return to prison at all. If that be right, then it can make no difference that that new offence was committed before even the expiry of the custodial term. 20. In any event, the matter is put beyond doubt by the terms of section 117(5) , which make it plain that, for these purposes, it is the entirety or the aggregate of the extended sentence which matters when calculating the period. Accordingly, the period in the present case was not 421 or 422 days before deduction for time spent in custody, but something of the order of 2,249 days. 21. In the circumstances, no criticism can be made of the sentence passed along the lines developed in the grounds of appeal. 22. Orally today and faced with the difficulties which Miss Krause now encountered under the statute, she sought to develop other criticisms of the sentence passed; namely, that the judge had put matters in the wrong order, his wording had been vague and there was doubt as to what he had in mind. Fairly read as a whole, the learned judge's sentencing remarks are, in our judgment, plain and no criticism can be made of the sentence passed on these grounds either. 23. For the reasons given, this appeal must be dismissed.

2004_06_24-266.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/1986/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/1986

9e712080f7cbb6357592cff1f62f79e012d598cc54b914ed98f5486c1f9dfd95

[2011] EWCA Crim 2397

EWCA_Crim_2397

martial_court

Neutral Citation Number: [2011] EWCA Crim 2397 Case No: 201101709 D5 IN THE COURTS MARTIAL APPEAL COURT ON APPEAL FROM A COURT MARTIAL HELD AT THE BRITISH FORCES GERMANY MILITARY COURT CENTRE Judge Large, Assistant Judge Advocate General Royal Courts of Justice Strand, London, WC2A 2LL Date: 26/10/2011 Before : LORD JUSTICE HOOPER MR JUSTICE HOLROYDE MR JUSTICE SUPPERSTONE - - - - - - - - - - - - - - - - - - - Between : ROBERT RHEINES Appellant - and - THE QUEEN Respondent - - - - - - - - - - -

Neutral Citation Number: [2011] EWCA Crim 2397 Case No: 201101709 D5 IN THE COURTS MARTIAL APPEAL COURT ON APPEAL FROM A COURT MARTIAL HELD AT THE BRITISH FORCES GERMANY MILITARY COURT CENTRE Judge Large, Assistant Judge Advocate General Royal Courts of Justice Strand, London, WC2A 2LL Date: 26/10/2011 Before : LORD JUSTICE HOOPER MR JUSTICE HOLROYDE MR JUSTICE SUPPERSTONE - - - - - - - - - - - - - - - - - - - Between : ROBERT RHEINES Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Nicholas Bleaney for the The Appellant Brigadier Philip McEvoy for the Respondent Hearing dates : 11 th October, 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice Holroyde: 1. This is an appeal by leave of the single judge against sentences of a court martial reducing the Appellant in rank. 2. On 23.09.09 the Appellant, a Sergeant in the Royal Electrical and Mechanical Engineers, was involved in a minor road traffic accident at a British Army barracks in Germany. He failed to stop at a junction, and the Vauxhall car which he was driving collided with a fellow-soldier who was riding a bicycle. Fortunately, the accident resulted in only minimal injury and damage: the injured cyclist ultimately made a total claim amounting to less than 250 euros, which was paid by the Appellant. The Appellant was seen by Military Police officers only an hour or so after the accident. The Vauxhall which he had been driving was parked outside his house, its bonnet still warm. It appeared to the officers that it was a minor incident which would be settled through insurers, and no action was taken at that stage. 3. However, it subsequently emerged that the insurance on the Appellant’s car had been cancelled more than 5 years earlier, in January 2004. Since then the Vauxhall had not been insured, with the obvious consequence that there would have been no insurance cover to meet the claim if the cyclist had been more seriously injured than he was. Further, since 2004 the car not been registered with the British Forces Germany (“BFG”) Vehicle Licensing Office. The importance of such registration is that the German authorities, as host nation to the British forces stationed in that country, delegate to the Ministry of Defence the responsibility for ensuring that vehicles driven upon the German roads by British military personnel are properly maintained, insured and tested. The Ministry of Defence in turn enforces the requirements through Standing Orders. The matter therefore became much more serious than it had at first appeared. 4. Unfortunately, the Appellant then falsely claimed that at the time of the accident he had been driving a different car, belonging to his friend Mr Fordham. He said that he had not driven the Vauxhall since January 2004, asserting that it had been undriveable since the engine failed at that time, and that it was stored at his uncle’s garage. He denied that the Military Police officers had seen the Vauxhall outside his house on the day of the accident. 5. Mr Fordham was contacted. He said he had not been in Germany on the relevant date and therefore had not loaned his car to the Appellant that day. That evidence was put to the Appellant: he still maintained that he had been driving Mr Fordham’s car. 6. The Appellant was then charged on 15 th September 2010 with three offences of breaching Standing Orders, contrary to s36 of the Army Act 1955 . The offences related to his driving without insurance, driving a vehicle which was not registered with the BFG Vehicle Licensing Office, and contravening the stop sign. All three charges related solely to the date of the accident. At a court martial hearing on 13 th October 2010 he pleaded not guilty to all charges, and the case was adjourned for trial. However, on 2 nd February 2011 he entered guilty pleas, and the case was adjourned to 24 th February 2011 for sentence. 7. There was before the sentencing court martial a pre sentence report, in which the Appellant was to say the least ambivalent about any acceptance of guilt: despite the guilty pleas which he had by then entered, he had initially told the author of the report that he was driving a friend’s car on the relevant day, though in response to a later specific enquiry he admitted it had been his own car. There was also before the court a testimonial from the Appellant’s superior officer, which commented favourably on some aspects of his performance of his military duties but less favourably on other aspects. 8. The Appellant was born on the 17 th June 1973, and so is now aged 38. He comes from a military family, and enlisted in the Army in August 1989. In addition to his service in Germany, he has served in, amongst other places, Northern Ireland and Iraq. He is due to retire on 17 th June 2013. 9. The Appellant has one relevant previous conviction, for driving with excess alcohol in January 2005. That offence was also committed in Germany. The Judge Advocate in his sentencing remarks said that it also involved the same Vauxhall vehicle, but Brigadier McEvoy for the Respondent very fairly told this court that he was not aware of any evidence to that effect. We therefore proceed on the basis that that offence did not involve the same vehicle. 10. Having heard mitigation the court martial ordered that the Appellant be reduced in rank from sergeant to corporal. In giving their reasons, the Judge Advocate made clear that the court was fully conscious of the financial consequences for the Appellant of such a reduction in rank. In the circumstances of this case the Appellant will not suffer any loss of pension, but there is a considerable difference between the pay of a sergeant and the pay of a corporal. It appears that inaccurate figures were inadvertently given to the court, and that the true loss of income attendant upon that reduction in rank is not as great as the court was told; but we do not think that anything turns on that, because the correct figure for the loss in the period until retirement is £8,742, which on any view is a substantial sum and well in excess of the fine which might be imposed in a civilian magistrates court for comparable motoring offences. 11. In explaining the reasons for the court’s decision, the Judge Advocate observed that military personnel who break the registration requirements to which we have referred affect the relationship which the British forces in Germany have with their host nation, and place in jeopardy some of the privileges which accompany the registration procedure. He pointed out that as part of the lying defence which the Appellant had put forward, and maintained for some months, he had involved two innocent civilians, Mr Fordham and his uncle. He had persisted in his lies even to the author of the pre sentence report. The Judge Advocate concluded: “So this is far from a standard offence. The aggravating features are the failure to BFG register or insure your car over a long period and your consistent and persistent lies thereafter told by a person of the rank of Sergeant. We have borne in mind throughout our discussions and deliberations that we must sentence you for the offences which you committed and admitted, but it does seem to us that we are entitled to take these factors into account … ” 12. On the Appellant’s behalf, counsel Mr Nicholas Bleaney submits that the sentences were wrong in principle and manifestly excessive. He points out that the Guidelines on Sentencing in the Court Martial indicate an entry point for minor breaches of Standing Orders of a fine or reprimand. He submits that the offences here were no more than minor breaches, that it would be wrong to treat the Appellant as having driven without insurance on any date other than the day of the collision, and that the court gave undue weight to the lateness of the guilty pleas rather than to the offences which were admitted. 13. The Guidance on Sentencing in the Court Martial to which counsel referred is published by the Office of the Judge Advocate General. The latest edition is dated October 2009. Paragraph 2.11 accurately summarises the effect of section 259 of the Armed Forces Act 2006 : the court martial must have regard to any guidelines issued by the Sentencing Guidelines Council (now the Sentencing Council), but is permitted to depart from those guidelines “if in its opinion the departure is justified by any features of service life or of the service disciplinary system that are relevant to the case”. Paragraph 2.15 states that the court when sentencing “will always take account of the rank of an offender, and normally the higher the rank the greater the degree of culpability”. As to the penalty of reduction in rank, paragraph 3.6.1 refers to the loss of income which will result. Importantly, paragraph 3.6.2 then says this: “It is, however, wrong to consider this punishment in purely financial terms. A reduction in rank is also a reduction in responsibility and status – the latter point being very important as it remains a visible indication of conviction, and may include a change in messing and accommodation arrangements. The important question when the Court Martial is considering this punishment is whether the offender by committing this offence has demonstrated that he is unfit to hold his present rank. Whether he is reduced to the ranks or allowed to retain some lesser rank than his present one will depend on how seriously the court views his conduct, and the mitigating factors.” 14. With that guidance in mind, the Judge Advocate in his sentencing remarks said this at p13: “Taking into account the facts of your case, your lack of remorse as we perceive it, the limited discount available for a guilty plea, that we consider that this case is so serious that a reduction in rank is necessary; your conduct fell far below that which was expected of a senior non-commissioned officer who are there to set an example, follow orders and uphold discipline … In coming to that conclusion we have considered carefully the financial implications of the sentence that is going to be passed. Reduction in rank from Sergeant to Corporal is a significant disciplinary punishment. It has significant consequences in loss of status and income. But those consequences flow from your conduct, so whilst we acknowledge that the loss of income between now and your retirement amounts to a large sum of money, it is a direct consequence suffered by all who are reduced in rank from Sergeant to Corporal. Calculations of lost income whilst instructive do not drive sentencing policy. If they did, very few people would ever be reduced in rank.” 15. In R v Love (97/5188/S2), this court considered for the first time the nature of an appeal against a sentence imposed by a court martial. Simon Brown LJ, giving the judgment of the court, noted (at p4) that the sentences which a court martial can impose are in many cases different from those available to civilian courts. He observed (at p5) that a court martial sentence is concerned at one and the same time to achieve two things: “First, to punish service personnel for the criminality of their conduct; second, to deal with them also on a disciplinary basis”. Those were important considerations when determining the approach of this court to such an appeal. Simon Brown LJ then expressed the court’s conclusion as to the correct approach in these terms (at p6): “In the present class of appeal, therefore, it seems to us that this court is exercising a somewhat hybrid jurisdiction, and that whilst we are free and clearly intended by Parliament to correct any injustice which we perceive in a court-martial sentence, we must nevertheless be mindful that those imposing and confirming such sentence are, generally speaking, better placed than we are when it comes to assessing the seriousness of offending in the context of service life, and deciding upon what particular penalty is required to maintain the discipline and efficiency of the armed forces”. 16. Similarly, giving the judgment of this court in R v Glenton [2010] EWCA Crim 930 , the Lord Chief Justice said this at para 19: “… we have reminded ourselves that the Court Martial is a specialist criminal court. That does not mean that we accept blindly the decision of the Court Martial, but we must attach due respect to a court which is designed to deal with service issues.” 17. We note in passing that R v Wright-Stainton [2011] EWCA Crim 2131 provides a recent example of a case in which the circumstances were exceptional, and this court did vary a sentence imposed by a court martial, notwithstanding those considerations. 18. We have considered carefully the circumstances of this case. We accept Mr Bleaney’s submissions that the road traffic accident was in itself a minor incident, that there was no charge of failing to stop after an accident, and that there was no charge of attempting to pervert the course of justice. We therefore sought the assistance of Brigadier McEvoy’s submissions as to the factors which the court martial could properly take into account. As we have already indicated, it is conceded by the Respondent that there was no evidence to support the view of the court martial that the motoring offence of which the Appellant was convicted in 2005 had involved the same Vauxhall vehicle, and there was therefore no basis for treating the Appellant as having previously driven without insurance. That previous conviction does however mean that the Appellant cannot be viewed as a man of previous good character so far as motoring matters are concerned. Moreover, the requirement of BFG registration applies whether or not the vehicle is being used on the roads, and the Appellant admitted that the Vauxhall had not been so registered since January 2004. It was therefore proper for the court martial to take into account that there was a background of a prolonged failure to register. 19. The conclusion of Brigadier McEvoy’s submissions, with which we agree, is that it was the Appellant’s conduct in persistently lying about his guilt, and in naming innocent civilians as part of that lie, which had led the court martial to conclude that a financial penalty was insufficient, and that reduction in rank was the appropriate sanction. 20. We have therefore asked ourselves whether the court martial was wrong in principle to take that conduct into account. In our judgment, there was no error of principle. We of course accept Mr Bleaney’s submission that in the ordinary way, lying about the commission of an offence does not make the offence itself any worse. We also accept his submission that if these offences had been dealt with before a civilian court, neither the fact that the offender had told lies, nor the fact that he had denied his guilt and put the prosecution to considerable trouble and expense in preparing to prove the charges against him, would be a reason for increasing the appropriate financial penalty. But this was a court martial concerned not merely with criminal guilt but also with the disciplinary aspect of the Appellant’s conduct. It must be remembered that within the closed community of the barracks, there would be likely to be widespread knowledge of the prosecution and of its outcome. As the Judge Advocate said in the passage which we have quoted at paragraph 14 above, the Appellant as a senior non-commissioned officer was expected to set an example, obey orders and uphold discipline. Regrettably, he did none of those things. Instead of accepting the full extent of his breaches of Standing Orders he had over a period of months put forward a dishonest account, in the course of which he had named and to that extent involved two innocent civilians. He had also denied the truthful and accurate evidence of the Military Police officers. In short, far from setting a good example, he had set an extremely bad example. 21. We cannot accept Mr Bleaney’s submission that the wording of paragraph 3.6.2 of the Guidance on Sentencing, which we have quoted at paragraph 13 above, restricts the court martial to a consideration only of the facts which constitute the crime itself. The reference to a consideration of “how seriously the court views [the offender’s] conduct” extends, in our judgment, to the conduct of the offender in connection with the offence. It follows that in our judgment, the court martial was entitled to take into account not only the bare facts of the offences themselves, but also the subsequent conduct of the Appellant in connection with the offences. It was entitled to do so, not because the subsequent conduct made the offences themselves worse, but because it bore directly on the issue of whether the Appellant had shown himself unfit to hold his rank. 22. We accordingly turn to consider Mr Bleaney’s alternative submission that the sentences were manifestly excessive. Again, we cannot accept the submission. There is in our view a very substantial difference, so far as good order and military discipline are concerned, between a senior NCO who accepts full responsibility for his breaches of Standing Orders, and a senior NCO who (to put it bluntly) engages in a prolonged attempt to lie his way out of trouble. We can well understand why the court martial felt it would be inimical to military discipline to allow such conduct to escape any significant sanction, and concluded that the Appellant had indeed shown himself to be unfit to continue to hold his rank. What example would be set to the men under the Appellant’s command if the court martial did not mark the seriousness of the disciplinary aspect of his conduct? In our judgment the court martial was entitled to conclude that a fine would not be a sufficient penalty and that the appropriate sanction was one of reduction in rank. 23. For those reasons, notwithstanding Mr Bleaney’s helpful submissions, we conclude that the sentences imposed below were neither wrong in principle nor manifestly excessive. We do of course recognise that the consequences for the Appellant are heavy; but the unfortunate reality is that he has brought those consequences upon himself. This appeal is accordingly dismissed.

2011_10_26-2844.xml

sentence

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/2397/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/2397

9285e6ea22875337b8c5283e511519dcf9f82e8c80a0aa9987675ec3781fb1b4

[2015] EWCA Crim 305

EWCA_Crim_305

crown_court

Case No: 201403127 B5 Neutral Citation Number: [2015] EWCA Crim 305 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SOUTHWARK CROWN COURT HIS HONOUR JUDGE LORRAINE-SMITH T20117675 Royal Courts of Justice Strand, London, WC2A 2LL Date: 06/03/2015 Before : LORD JUSTICE JACKSON MR JUSTICE MITTING and MR JUSTICE JAY - - - - - - - - - - - - - - - - - - - - - Between : REGINA Respondent - and - LODVIK GURAJ Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Case No: 201403127 B5 Neutral Citation Number: [2015] EWCA Crim 305 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SOUTHWARK CROWN COURT HIS HONOUR JUDGE LORRAINE-SMITH T20117675 Royal Courts of Justice Strand, London, WC2A 2LL Date: 06/03/2015 Before : LORD JUSTICE JACKSON MR JUSTICE MITTING and MR JUSTICE JAY - - - - - - - - - - - - - - - - - - - - - Between : REGINA Respondent - and - LODVIK GURAJ Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms Kitty St Aubyn (instructed by Faradays Solicitors ) for the Appellant Mr Edward Franklin (instructed by The Crown Prosecution Service ) for the Respondent Hearing date: 6 th February 2015 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Jackson (delivering the judgment of the court): 1. This judgment is in five parts, namely: Part 1. Introduction Paragraphs 2 to 7 Part 2. The facts Paragraphs 8 to 20 Part 3. The appeal to the Court of Appeal Paragraphs 21 to 25 Part 4. The law Paragraphs 26 to 49 Part 5. Decision Paragraphs 50 to 59 Part 1. Introduction 2. This is an appeal by a criminal against an order for confiscation on the grounds of serious non-compliance by the prosecution with the procedural requirements contained in the Proceeds of Crime Act 2002 (“ POCA ”). 3. This appeal raises a short but important issue. The issue is whether a substantial breach of section 15 (2) of POCA in conjunction with a substantial breach of section 14 has the effect of rendering the subsequent confiscation proceedings invalid, even if they are completed within two years. The breach of section 15 (2) is significant because that triggers the operation of section 14 (12) and prevents the prosecution from relying upon section 14 (11). 4. We must first set out the relevant statutory provisions. We shall refer to the Misuse of Drugs Act 1971 as “ the 1971 Act ”. Section 27 (1) of the 1971 Act provides: “ Forfeiture Subject to subsection (2) below, the court by or before which a person is convicted of an offence under this Act or an offence falling within subsection (3) below or an offence to which section 1 of the Criminal Justice (Scotland) Act 1987 relates, may order anything shown to the satisfaction of the court to relate to the offence, to be forfeited and either destroyed or dealt with in such other manner as the court may order.” 5. We shall refer to the Criminal Justice Act 1988 , as amended by the Proceeds of Crime Act 1995 , as “ the 1988 Act ”. Until 23 rd March 2003 the 1988 Act contained the following provisions: “ Section 71 (1) Where an offender is convicted, in any proceedings before the Crown Court or a magistrates' court, of an offence of a relevant description, it shall be the duty of the court— (a) if the prosecutor has given written notice to the court that he considers that it would be appropriate for the court to proceed under this section, or (b) if the court considers, even though it has not been given such notice, that it would be appropriate for it so to proceed, to act as follows before sentencing or otherwise dealing with the offender in respect of that offence or any other relevant criminal conduct. …. Section 72A (1) Where a court is acting under section 71 above but considers that it requires further information before — (a) determining whether the defendant has benefited from any relevant criminal conduct; or … (c) determining the amount to be recovered in his case… it may, for the purpose of enabling that information to be obtained, postpone making that determination for such period as it may specify. (2) More than one postponement may be made under subsection (1) above in relation to the same case. (3) Unless it is satisfied that there are exceptional circumstances, the court shall not specify a period under subsection (1) above which — (a) by itself; or (b) where there have been one or more previous postponements under subsection (1) above or (4) below, when taken together with the earlier specified period or periods, exceeds six months beginning with the date of conviction. (4) Where the defendant appeals against his conviction, the court may, on that account — (a) postpone making any of the determinations mentioned in subsection (1) above for such period as it may specify; or (b) where it has already exercised its powers under this section to postpone, extend the specified period. (5) A postponement or extension under subsection (1) or (4) above may be made — (a) on application by the defendant or the prosecutor; or (b) by the court of its own motion. (6) Unless the court is satisfied that there are exceptional circumstances, any postponement or extension under subsection (4) above shall not exceed the period ending three months after the date on which the appeal is determined or otherwise disposed of. (7) Where the court exercises its power under subsection (1) or (4) above, it may nevertheless proceed to sentence, or otherwise deal with, the defendant in respect of the offence or any of the offences concerned. (8) Where the court has so proceeded — (a) subsection (1) of section 71 above shall have effect as if the words from ‘before sentencing’ onwards were omitted; (b) that subsection shall further have effect as if references to an offence that will be taken into consideration in determining any sentence included references to an offence that has been so taken into account; and (c) section 72(5) above shall have effect as if after ‘determining’ there were inserted ‘in relation to any offence in respect of which he has not been sentenced or otherwise dealt with’.” 6. With effect from 24 th March 2003 POCA provided as follows: “ 13. Effect of order on court’s other powers (1) If the court makes a confiscation order it must proceed as mentioned in subsections (2) and (4) in respect of the offence or offences concerned. (2) The court must take account of the confiscation order before— (a) it imposes a fine on the defendant, or (b) it makes an order falling within subsection (3). (3) These orders fall within this subsection— (a) an order involving payment by the defendant, other than an order under section 130 of the Sentencing Act (compensation orders); … (b) an order under section 27 of the Misuse of Drugs Act 1971 (c. 38) (forfeiture orders); (c) an order under section 143 of the Sentencing Act (deprivation orders); (d) an order under section 23 or 23A of the Terrorism Act 2000 (c. 11) (forfeiture orders). (4) Subject to subsection (2), the court must leave the confiscation order out of account in deciding the appropriate sentence for the defendant. … 14. Postponement (1) The court may— (a) proceed under section 6 before it sentences the defendant for the offence (or any of the offences) concerned, or (b) postpone proceedings under section 6 for a specified period. (2) A period of postponement may be extended. (3) A period of postponement (including one as extended) must not end after the permitted period ends. (4) But subsection (3) does not apply if there are exceptional circumstances. (5) The permitted period is the period of two years starting with the date of conviction. (6) But if— (a) the defendant appeals against his conviction for the offence (or any of the offences) concerned, and (b) the period of three months (starting with the day when the appeal is determined or otherwise disposed of) ends after the period found under subsection (5), the permitted period is that period of three months. (7) A postponement or extension may be made— (a) on application by the defendant; (b) on application by the prosecutor; (c) by the court of its own motion. (8) If — (a) proceedings are postponed for a period, and (b) an application to extend the period is made before it ends, the application may be granted even after the period ends. (9) The date of conviction is — (a) the date on which the defendant was convicted of the offence concerned, or (b) if there are two or more offences and the convictions were on different dates, the date of the latest. (10) References to appealing include references to applying under section 111 of the Magistrates’ Courts Act 1980 (c. 43) (statement of case). (11) A confiscation order must not be quashed only on the ground that there was a defect or omission in the procedure connected with the application for or the granting of a postponement. (12) But subsection (11) does not apply if before it made the confiscation order the court— (a) imposed a fine on the defendant; (b) made an order falling within section 13(3) ; (c) made an order under section 130 of the Sentencing Act (compensation orders). … 15. Effect of postponement (1) If the court postpones proceedings under section 6 it may proceed to sentence the defendant for the offence (or any of the offences) concerned. (2) In sentencing the defendant for the offence (or any of the offences) concerned in the postponement period the court must not — (a) impose a fine on him, (b) make an order falling within section 13(3) (c) make an order for the payment of compensation under section 130 of the Sentencing Act. …” 7. We shall refer to the Crown Prosecution Service as “CPS”. After these introductory remarks, we must now turn to the facts. Part 2. The facts 8. On 12 th July 2012 at Southwark Crown Court the appellant pleaded guilty to three counts of a six-count indictment. The offences to which the appellant pleaded guilty were possession of class A drugs with intent to supply, possession of class B drugs with intent to supply and possession of criminal property contrary to section 329 of POCA (money laundering). 9. On 16 th July 2012 the appellant appeared for sentence before Her Honour Judge Taylor at Southwark Crown Court. On that occasion there was before the court an application by the prosecution for forfeiture pursuant to section 27 (1) of the 1971 Act . There was also an application by the prosecution for confiscation pursuant to section 6 of POCA . 10. The judge sentenced the appellant to five years, four months imprisonment in respect of the offences. She made an order for forfeiture under section 27 of the 1971 Act in respect of the following items: laptop computer, Apple iphone, Samsung phone, three further phones and a Ford motor car. The judge ordered forfeiture and destruction of the drugs which had been seized. 11. In relation to the application for confiscation, the judge did not immediately proceed under section 6 of POCA . Instead, she made a postponement order under section 14 . The judge set the following timetable: i) The appellant to serve a statement of his assets and means pursuant to section 18 of POCA by 13 th August 2012. ii) The prosecution to serve its statement of information pursuant to section 16 of POCA by 12 th October 2012. iii) The appellant to serve his response pursuant to section 17 of POCA by 9 th November 2012. iv) A half day hearing to take place two weeks thereafter. 12. The appellant served his statement of assets and means on 18 th September 2012. Unfortunately thereafter the CPS let matters lapse, apparently due to various staff changes and the temporary loss of the file. 13. On 7 th January 2014 the case was listed before His Honour Judge Robbins. The prosecution applied for an adjournment, because counsel was not adequately instructed. The judge directed the prosecution to serve its section 16 statement by 7 th February 2014. The judge also made a wasted costs order against the CPS in the sum of £500. This was because the prosecution had failed to comply with the order of 16 th July 2012, the officer in the case had failed to attend the hearing on 7 th January and that hearing was largely wasted. 14. On 15 th January 2014 the prosecution served their statement of information pursuant to section 16 of POCA . On 25 th January 2014 the prosecution served a revised version of that statement. 15. Discussion followed between the parties about the revised timetable for the confiscation proceedings. 16. On 31 st March 2014 the case was listed for mention. No counsel appeared for the prosecution, because of a misunderstanding within the CPS. 17. On 30 th April 2014 the defence served a skeleton argument contending that because of the delays and non-compliance by the prosecution, the confiscation proceedings had lapsed and the court no longer had power to make a confiscation order. HHJ Lorraine-Smith heard argument on this issue at two hearings on the 2 nd and 7 th May 2014. 18. At the hearing on 7 th May 2014 HHJ Lorraine-Smith ruled that the prosecution was still entitled to pursue the confiscation proceedings, for reasons to be given later. The judge set a new timetable for the litigation, leading to a confiscation hearing on 9 th June 2014. He also made a wasted costs order against the prosecution in respect of the hearing on 31 st March. 19. On the 9 th June 2014 the confiscation hearing took place. On that date the judge delivered his reserved judgment setting out the reasons for his decision (announced on 7 th May) that the confiscation proceedings should go forward. The judge then proceeded to make a confiscation order, incorporating figures for benefit and recoverable amount which had been agreed between the parties. 20. The appellant was aggrieved by the making of the confiscation order. Accordingly he appealed to the Court of Appeal. Part 3. The appeal to the Court of Appeal 21. Miss Kitty St Aubyn for the appellant accepts that the judge made an effective order postponing the confiscation proceedings on 16 th July 2012. That period of postponement ended in December 2012. The court failed to make any further order for postponement between then and 2014. By 2014, says Miss St Aubyn, the court no longer had the power to make any order for postponement by reason of section 14 (8) of POCA . 22. Miss St Aubyn argues that section 14 (11) cannot avail the prosecution in this case, because the court wrongly made a forfeiture order on 16 th July 2012. Therefore section 14 (12) applies. 23. Mr Edward Franklin for the prosecution resists these submissions. He points out that the confiscation order was made within the two-year period specified in POCA section 14 (5) . The well established approach of the courts is to uphold confiscation proceedings, rather than strike them down for technical errors. 24. In support of their competing submissions both counsel have taken the court through the recent authorities on sections 13 to 15 of POCA and the predecessor provisions, contained in sections 71 to 72A of the 1988 Act . 25. Before we grapple with the issues raised in this appeal, we must first review the law. Part 4. The law 26. On 21 st July 2005 the House of Lords gave its decision on two confiscation cases arising under the 1988 Act . The postponement provisions in that Act did not contain the equivalent of what are now section 14 , sub-sections (11) and (12) of POCA . The two cases are R v Knights [2005] UKHL 50 ; [2006] 1 AC 368 and R v Soneji [2006] 1 AC; [2005] UKHL 49 ; [2006] 1 AC 340 . 27. In Knights two defendants were charged with being concerned in dealing with goods on which customs duty had not been paid, with intent to defraud. The first defendant changed his plea to guilty on 10 th July 2000. The second defendant was convicted by the jury on 12 th October 2000. On 17 th October the judge sentenced both defendants to terms of imprisonment, but postponed the confiscation proceedings pursuant to section 72A of the 1988 Act . On 4 th January 2001 the judge adjourned the confiscation proceedings to 23 rd January. He held that his own unavailability constituted “exceptional circumstances” within section 72A (3), thus allowing further postponement beyond the six-month time limit. 28. The two defendants appealed against the confiscation orders made, on the grounds that the judge had acted outside his statutory powers. Both the Court of Appeal and the House of Lords dismissed the appeals. The House of Lords held that the judge had not complied with the requirements of section 72A , but that did not invalidate the confiscation orders made. At paragraph 22 Lord Brown stated: “Provided only that in postponing the proceedings the judge had acted in good faith and in the purported exercise of his section 72A power, I cannot think that Parliament would have intended such an error to disable the court from discharging its statutory duty to complete the confiscation proceedings against the offender.” Lord Steyn, Lord Rodger, Lord Cullen and Lord Carswell agreed with Lord Brown. 29. In Soneji the defendants were charged with conspiracy offences. The first defendant pleaded guilty on 24 th March 2000 and the second defendant pleaded guilty on 3 rd April 2000. On 21 st June the prosecution served notice under section 71 (1) (a) of the 1988 Act , initiating confiscation proceedings. Thereafter the judge sentenced both defendants to terms of imprisonment. On 28 th January and 7 th February 2002 the judge made confiscation orders against the defendants. The Court of Appeal quashed the confiscation orders, because the period of postponement had exceeded six months and the judge had not made a finding of exceptional circumstances. 30. The House of Lords allowed an appeal by the prosecution and restored the confiscation orders. Lord Steyn gave the leading speech, with which Lords Carswell and Brown agreed. He noted that recent authority had moved away from the simple question whether the statutory requirements in issue were mandatory or directory. The court should instead focus on the question whether Parliament intended the consequences of non-compliance to be total invalidity of what followed: see [15]-[23]. Adopting that approach, the non-compliance with section 72A in the present case did not render the subsequent confiscation proceedings invalid. 31. Lord Rodger in his concurring speech (with which Lord Steyn and Lord Brown agreed) stated that the purpose of section 71 (1) was to make the sentencing process as effective as possible in a system in which confiscation orders had primacy: [36]. At [41] he explained that the six-month time limit was a protection which Parliament had built into the legislation. He then added: “But it is a protection for the public interest represented by the prosecution, as well as for the defendant's interest, since the time-limit applies where the court considers it requires further information, irrespective of whether the information is designed to clarify a matter that is favourable to the Crown or to the defence. Presumably, Parliament was concerned that, in the absence of a time-limit, matters might tend to drift once the sentencing was over.” This led Lord Rodger to the conclusion that, despite the non-compliance with section 72A , in that case the confiscation orders were valid. 32. Lord Carswell in his concurring speech maintained that the traditional dichotomy between mandatory and directory provisions still had value. The principles enshrined in the cases discussing that dichotomy would assist in applying the new approach stated by Lord Steyn: [63]. He added that the doctrine of substantial performance was also relevant. At [67] he stated: “I would not regard it as justified to extend the time limit indefinitely, for I do not think that Parliament would have so intended. Nor would it be sufficient to ask merely if it would be fair and reasonable to accept the validity of an act done out of time. I would suggest that one should ask if there has been substantial observance of the time limit. What will constitute substantial performance will depend on the facts of each case, and it will always be necessary to consider whether any prejudice has been caused or injustice done by regarding the act done out of time as valid.” Lord Carswell noted that this approach would lead to the same answer as the approach which Lord Steyn had formulated. 33. In Donohoe [2006] EWCA Crim 2200 ; [2007] 1 Cr App R (S) 88 at Preston Crown Court on 10 th December 2004 the defendant pleaded guilty to three charges of possessing a controlled drug with the intent to supply. On the same occasion the prosecution applied for a confiscation order pursuant to section 6 of POCA . Pursuant to section 14 of POCA the court postponed the confiscation proceedings pending the trial of a co-accused. 34. On 27 th January 2005 Miss Recorder Nicholls sentenced the defendant to five years imprisonment and made an order under section 27 of the 1971 Act for the forfeiture and disposal of the drugs seized. The recorder ought not to have made that or any order under section 27 of the 1971 Act during the period when confiscation proceedings were on foot but had been postponed: see sections 13 (3) (b) and 15 (2) (b) of POCA . Be that as it may, the next event was that on 16 th March 2006 His Honour Judge Slinger further postponed the confiscation proceedings. His Honour Judge Cornwall subsequently ordered yet another postponement, so that the parties could lodge skeleton arguments on the question whether, in the circumstances, the court had jurisdiction to make a confiscation order. On 25 th October 2005 HHJ Cornwall ruled that the court still had jurisdiction to make a confiscation order and he proceeded to make such an order. 35. The Court of Appeal upheld the judge’s order. McCombe J, giving the judgment of the court, noted the contravention of section 15 (2) and the obvious relevance of section 14 (11) and (12). Nevertheless he held that it would be frustrating the object of POCA to treat these matters as depriving the court of the power to make a confiscation order. McCombe J left open the question whether the impermissible order for forfeiture made on 27 th January 2005 was a nullity. He held that it would defy common sense if the existence of that order prevented the court from hearing the postponed confiscation proceedings. 36. In R v Iqbal [2010] EWCA Crim 376 ; [2010] 1 WLR 1985 on 10 th January 2006 at Bradford Crown Court the defendant pleaded guilty to the offence of conspiring to supply heroin. On 5 th June 2006 the court sentenced the defendant to twelve years imprisonment (later varied to nine years). The prosecution then asked the court to proceed under section 6 of POCA . The court made orders postponing the confiscation proceedings until 21 st May 2007. On that date the court sentenced a number of the defendant’s fellow conspirators. Thereafter nothing happened in relation to the defendant until 1 st July 2009, when the matter came back before the court. By then three and a half years had elapsed since the date of the defendant’s conviction. His Honour Judge Scott held that the court had no jurisdiction to make a confiscation order. The Court of Appeal upheld that decision. Hooper LJ doubted that the court had power to make a confiscation order after expiry of the two-year period specified in section 14 (5). Even if there was such a power, however, he held that the failure by the prosecution to apply to the court for an extension before the end of the two-year period was fatal under section 14 (8): see [16] to [26]. 37. In R v Neish [2010] EWCA Crim 1011 ; [2011] 1 CR App R (S) 33 at Newcastle Crown Court the defendant pleaded guilty to offences relating to the supply of drugs. On 12 th June 2009 His Honour Judge Evans sentenced the defendant to a term of imprisonment. He made an order postponing confiscation proceedings under section 14 of POCA and set a timetable for those proceedings, leading up to a hearing on 11 th December 2009. On 2 nd December the judge discovered that he would be unavailable on 11 th December and instructed the listing officer to re-list the hearing on a date convenient to himself and the advocates. The listing officer duly re-listed the hearing for 4 th January 2010. At the hearing on 4 th January the judge accepted a defence submission that the court had no power to make a confiscation order, because there had been no judicial decision to postpone the proceedings beyond 11 th December. 38. The Court of Appeal reversed that decision. Lord Judge CJ, delivering the judgment of the court, noted that listing was a judicial function. In this case the judge had given instructions to the listing officer and that officer had fixed a new hearing date. That process constituted a judicial decision to extend the period of postponement. 39. In reaching this conclusion Lord Judge CJ stated two important principles at [18]. The first was this: “… unless the continuation of confiscation proceedings would contravene an unequivocal statutory provision, there is no reason why technical errors which cause no prejudice to the defendant should prevent their continuation.” The second principle was that section 14 (12) was an express statutory prohibition, which it was not open to the court to ignore. 40. We are bound to say that it is not immediately obvious how the second principle stated by Lord Judge should be reconciled with the Court of Appeal’s earlier decision in Donohoe . It appears that Donohoe was not cited in Neish . We shall return to this issue later. 41. In R v Johal [2013] EWCA Crim 647 ; [2014] 1 WLR 146 on 12 th March 2009 at Wolverhampton Crown Court the defendant pleaded guilty to possessing a class A controlled drug with intent to supply. On 18 th December 2009 the court sentenced the defendant to six years imprisonment and set a timetable for confiscation proceedings. Over the next two years there was a series of delays and mishaps including, on one occasion, heavy snow which prevented the defendant being brought from prison to court. In early March 2011 the court stood out a hearing which had been fixed for 11 th March (the last day of the two-year period) owing to lack of court time. There were subsequent disputes about skeleton arguments and there was a hearing on 22 nd July 2011, when the case was listed for mention. Finally the procedural issues came on for hearing before Mr Recorder Desmond on 30 th September 2011. The recorder granted an application by the prosecution for the confiscation proceedings to continue outside the two year period specified in section 14 (5) of POCA , on the ground that there were exceptional circumstances. On 16 th May 2012 His Honour Judge Hughes made a confiscation order, against which the defendant appealed. 42. The Court of Appeal dismissed the appeal and upheld the confiscation order. Irwin J, giving the judgment of the court, reviewed the authorities and concluded that a broad approach should be taken to what constitutes “exceptional circumstances” within the meaning of POCA section 14 (4) : see [39]. He added that, in relation to section 14 generally, “Parliament’s intention must be taken to be to ensure that confiscation proceedings go ahead and are effective without technical problems of timing and timetabling acting as a bar to recovery”. Irwin J went on to hold that there was a sufficient factual basis for the recorder’s finding that there were exceptional circumstances. 43. Irwin J then turned to the fact that the recorder’s order of 30 th September 2011 did not actually specify a period of postponement. He concluded that this defect did not render the subsequent confiscation order invalid: see [45]. Alternatively, since the failure was procedural, POCA section 14 (11) operated to save the validity of the confiscation order: see [46]. 44. Let us now stand back from this morass of case law and see what principles can be discerned. First, as the courts have noted, there is a clear Parliamentary intention that confiscation proceedings should take priority over other proceedings against a defendant concerning forfeiture, deprivation of property or orders for payment. Secondly, as the courts have noted, there is a clear Parliamentary intention that confiscation proceedings should move forward expeditiously. The various time limits are there in order to ensure that confiscation proceedings do not simply drift after sentence has been passed. Thirdly, there is a clear Parliamentary intention that confiscation proceedings should not be invalidated by procedural errors. Section 14 (11) says this expressly, but that provision is qualified by section 14 (12). A strong Court of Appeal has held that section 14 (12) is an express statutory prohibition which it is not open to the courts to ignore. 45. The courts have repeatedly stressed the need to construe section 71 -72A of the 1988 Act and sections 13 -15 of POCA purposively. When assessing the effect of procedural breaches, it is necessary to consider whether Parliament really intended those breaches to invalidate the subsequent proceedings: see Knights and Soneji . In carrying out this exercise it may be helpful to consider whether, despite the prosecution’s breaches, there has been “substantial compliance” with the time limits (per Lord Carswell in Soneji ). 46. Recognising the intention of Parliament that confiscation proceedings should, so far as possible, be effective rather than invalidated, the court has upheld confiscation orders in a variety of circumstances, despite procedural breaches and delays by the prosecution: see Donohoe and Johal . The court treats a decision of the listing officer, following a general instruction from the judge, as a judicial decision to postpone: see Neish . In deciding what constitutes “exceptional circumstances” within section 14 (3) the court adopts a broad approach: see Johal . 47. Despite all this latitude, the hard fact remains that the court cannot act contrary to the express provisions of POCA , as the Lord Chief Justice observed in Neish . It was for this reason that the court had no power to make a confiscation order in Iqbal . 48. This brings us back to the problem posed by Donohoe . It seems to us that the following is the only way in which Donohoe can be reconciled with the provisions of POCA and the Court of Appeal’s decision in Neish : i) In Donohoe the crown court acted in breach of section 15 (2) of POCA . ii) Therefore section 14 (12) applied, with the result that section 14 (11) was disapplied. iii) Nevertheless POCA does not say that a breach of section 15 (2) of POCA renders the postponement ineffective. iv) Therefore the prosecution had no need to invoke the (unavailable) balm of section 14 (11) in order to save the validity of the confiscation order. 49. Having reviewed the relevant authorities, we must now come to a decision on the present appeal. Part 5. Decision 50. In this case there were lamentable delays by the prosecution. They failed to serve any section 16 statement in October or November 2012, as they should have done. Instead they let the whole matter go to sleep for a year. Even after that the prosecution dragged their feet. Their section 16 statement (when eventually served) was 14 months late. On two occasions there were abortive hearings, which resulted in wasted costs orders against the CPS. 51. The judge in his judgment of 9 th June 2014 noted that the prosecution ought to have applied for a further postponement under section 14 in December 2012, when it was apparent that the original timetable could not be met. The prosecution failed to do so. The judge rightly characterised this as a serious procedural error at page 10G of his judgment. Nevertheless he considered that this error was capable of remedy within the two-year period specified in section 14 (5) of POCA . 52. We do not agree. Section 14 (8) provides that a period of postponement can only be extended if an application for extension is made before the period of postponement has ended. In this case the application to extend was made long after the period of postponement had ended. 53. In the ordinary way that would not be fatal to the prosecution. The saving provision of section 14 (11) would come to the rescue. But section 14 (11) does not apply in the present case. That is because on 12 th July 2012 the court had wrongfully made a forfeiture order in breach of section 15 (2). 54. At one time we inclined to the view that the Court of Appeal’s decision in Donohoe might avail the prosecution. But that is not correct. In this case, unlike Donohoe , the prosecution needs the balm of section 14 (11) in order to retrieve its position. 55. It is of course right that we must strive to give effect to the objects of POCA and the intention of Parliament, as the House of Lords stated in both Knights and Soneji . The difficulty for the prosecution, however, is that part of Parliament’s intention is now expressed in section 14 (12) of POCA . That is a mandatory prohibition which, as the Lord Chief Justice stated in Neish , cannot be ignored. Forfeiture orders should not be made when confiscation proceedings are under way. If forfeiture orders are made in such circumstances, then the prosecution will be held more strictly to the time limits contained in section 14 . 56. If one applies the helpful test suggested by Lord Carswell in Soneji at [67], it can be seen that there has most certainly not been substantial observance of the time limits by the prosecution. We do not base our decision on the “substantial performance” test. We merely note that in the present case that test, suggested by Lord Carswell, leads to the same results as that indicated above. 57. We acknowledge that in this case, unlike Iqbal , the two-year period had not expired on the date when the court made its confiscation order. Nevertheless we conclude that the combination of delays and breaches by the prosecution was such as to deprive the court of the power to make a confiscation order. 58. Whilst some of our comments may seem critical of the CPS, we do appreciate that that organisation is over-worked and stretched. If the prosecution is unable (for whatever reason) to carry through confiscation proceedings efficiently, the consequence may be, and in this case is, that large sums are lost to the public purse. 59. In the result, we allow the appellant’s appeal and quash the confiscation order.

2015_03_06-3566.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2015/305/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2015/305

2646d33dd017e614defeeb5098670989898663d66a4f8e8e9641d353f0a1ae37

[2016] EWCA Crim 1036

EWCA_Crim_1036

crown_court

Case No: 20160053 A3 Neutral Citation Number: [2016] EWCA Crim 1036 IN THE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 26/07/2016 Before : LADY JUSTICE HALLETT DBE LADY JUSTICE MACUR DBE and MR JUSTICE FOSKETT - - - - - - - - - - - - - - - - - - - - - Between : AMARJIT SINGH Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Joel Bennathan QC (instructed by Straw & Pearce ) for

Case No: 20160053 A3 Neutral Citation Number: [2016] EWCA Crim 1036 IN THE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 26/07/2016 Before : LADY JUSTICE HALLETT DBE LADY JUSTICE MACUR DBE and MR JUSTICE FOSKETT - - - - - - - - - - - - - - - - - - - - - Between : AMARJIT SINGH Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Joel Bennathan QC (instructed by Straw & Pearce ) for the Appellant Hearing date: 11 May 2016 Further written submissions - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice Foskett: 1. The provisions of section 45A of the Youth Justice and Criminal Evidence Act 1999 are engaged in this case because the victim is a child. This enables the court to make a direction that no matter relating to the victim shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as being concerned in the proceedings. We make such a direction in this case. We will refer to the victim as X throughout this judgment. She is now aged 10 having been born in 2006. 2. We heard the appeal on 11 May 2016, but in the circumstances to which we will refer, we adjourned the matter for further papers to be obtained from the Family Division. That has occurred and we have had the benefit of some further written submissions concerning that material from Mr Joel Bennathan QC, who represented the appellant before us. This judgment represents the decision of the court. 3. The appellant, who is now aged 76, is the father of X. He is an Indian national, but has lived in the UK for over 50 years. He has no previous convictions. 4. The appellant had a brief relationship with X’s mother, who we will call BS, in or around 2005. She was 36 years his junior. She is Polish by birth, but has lived in the UK for a number of years. She had a significant history of alcohol abuse. 5. In the circumstances we will describe the appellant pleaded guilty at Leicester Crown Court on 30 October 2015 to one offence of abducting a child contrary to section 1(1) of the Child Abduction Act 1984. On 27 November 2015 he was sentenced by H.H.J. Nicholas Dean to 3 years and 4 months’ imprisonment. This represented a 25% reduction of a starting point of 4½ years. 6. He appeals against that sentence with the permission of the single judge 7. It is not entirely clear for how long the appellant and BS lived together, but it appears to be common ground that the relationship was difficult and they did separate. For various periods when X was about a year old, she was looked after by her maternal grandmother, either in Poland or the UK. The appellant saw X from time to time (which the judge characterised as “sporadically but often”). He had expressed the desire that she should be educated in a closed boarding school in India. He sought legal advice in 2011 and was advised he would need a court order to take her out of the country. 8. During 2012 it appears that X spent a fair amount of the year with her grandmother in Poland, but then, because of the grandmother’s ill-health, BS’s sister took over her care in about July. In September 2012 X was due to start at a school in Poland, but the appellant paid for BS to go to Poland to bring X back. She went to Poland but returned without her and as a result the appellant went to Poland to collect X himself. He did indeed bring her back to the UK and there were disputes between him and BS about who should look after X. As we understand it, during this period the appellant was permitted by the local social services department to look after X because of BS’s alcohol-related issues. 9. At all events, in December 2012 X was staying with the appellant and he plainly made the decision to take her to India and away from any contact with her mother. On 16 December 2012 he wrote a letter to the local police and to X’s school stating he would be taking X away. He flew with X to Romania from Gatwick Airport that day without, of course, her mother’s permission or the permission of any court in the UK. This was a requirement as BS had parental responsibility for X. The police eventually located X in an English boarding school in the Punjab in January 2013. The police contacted the appellant and explained that he needed to bring her back to this country. The appellant said X had been accepted at the school and was due to start permanently in March 2013. He was told he had committed a criminal offence. He was interviewed by police on 15 March 2013 when he returned to the UK. He was arrested on suspicion of child abduction and his passport was taken from him. He accepted that he had taken X to India but said it was in her best interests. 10. On 4 April 2013 an order was made in the Family Division for the child to be returned to the UK, but there were ongoing difficulties securing her return because the school in India refused to release her without confirmation from the Indian authorities. She was still at the school in India as of the date of the sentence hearing in November last year. We will return to the further orders made in the Family Division in the intervening period. 11. The net effect of this, of course, is that X and BS have not seen each other for over 3 years. 12. Although the appellant denies it, it was the prosecution case, supported by the opinion of the author of the pre-sentence report, that he had done little to try to secure X’s return to the UK. In light of the fact that X had not been returned to the UK, the CPS reviewed the file again and decided that no further action was to be taken. BS challenged that decision and in May 2015 the CPS decided to take criminal proceedings. There was a preliminary hearing on 26 August 2015 when, on the basis of advice from his then counsel (not Mr Bennathan) he indicated a not guilty plea. However, that changed with separate representation and he pleaded guilty on the date we have indicated. 13. The judge had the benefit of a pre-sentence report in which it is recorded that the appellant claimed he was not aware of the illegality of his actions, but, as the judge said, the appellant would have known that it was wrong, even if not specifically criminal, at the time he did what he did. That must, in our judgment, be correct. According to the author of the pre-sentence report, the appellant said he would like to see X returned to England, but this contradicted information from the police which stated he had been obstructive and unhelpful with their efforts to ensure the child was returned safely. It was said that he displayed limited insight into the consequences of his actions on his daughter and ex-partner, but was assessed as posing a low risk of reconviction and a low risk of harm to the general public and a low risk to children. 14. The judge received 15 character references which, the judge said, “speak glowingly” about the appellant and a letter from the appellant’s doctor which set out certain relatively minor medical problems he possessed. 15. The judge described facts of the case as troubling, but accepted that the appellant was fond of X and had an interest in her welfare. The judge did not, however, accept that the appellant’s actions in 2012 were to protect X from her mother about whom, he said, there was no evidence that she “was anything other than a loving mother to her daughter.” The action was to fulfil a long-expressed desire that she should be schooled in India. The judge concluded that he had done little to assist in the return of X to this country. 16. He described the appellant’s actions as “cruel beyond measure” to BS and to X and said that it was “hard to overstate the anguish felt by X’s mother at having been kept away from her daughter for almost three years.” X was only six when she was taken to India and it was likely that real harm had been done by keeping her from her mother for three years. 17. Subject to the question of whether he was justified in concluding that the appellant “had done little to assist in the return of X to this country” we do not think any aspect of that analysis by the judge can justifiably be criticised. 18. In order to assess whether the judge was entitled to reach that conclusion, we thought it right to see what further orders had been made in the Family Division and whether there was material that informed that issue. In summary, the case came back before various judges of the Family Division thereafter on 22 April 2013, 11 June 2013, 24 June 2013, 16 August 2013, 17 October 2013, 6 March 2014, 4 July 2014, 8 August 2014, 13 March 2015, 8 May 2015, 18 May 2015, 14 December 2015, 15 February 2016 and 20 April 2016. At all stages the court was endeavouring to make orders which would secure the return of X to the jurisdiction. 19. It is right to say, as Mr Bennathan submits, that there are no findings by a judge that the appellant had deliberately obstructed the court in its efforts to have X returned to the UK, but, as he also accepts, there are some indications that the appellant had been interfering where he should not have been interfering. For example, the order made on 6 March 2014, which ordered contact for the mother, stated that the headmaster of the school “is respectfully informed that this order takes precedence over any instructions the first respondent father may have given.” 20. At the end of the day, there is nothing in the new material that satisfies us that the judge was wrong to take the view he did. However, we would add this: if it is the case that the appellant had been trying to secure X’s return, but was frustrated by the attitude of the school authorities in India, that attitude would not have developed if the appellant had not taken the cruel step of taking X to India in the circumstances in which that took place. Efforts to retrieve the position thereafter can only go so far as a mitigating circumstance. 21. The only issues, in our judgment, are whether, having regard to all the circumstances, including the appellant’s age and previous good character, a starting point of 4½ years was too high and whether the discount for the plea of guilty was appropriate. 22. There are no sentencing guidelines as such but authoritative guidance is to be found in the case of Regina v Kayani and another which is reported at [2012] 2 Cr. App. R. (S.) 38. This court (comprising of Lord Judge CJ, McFarlane LJ and Royce J) dealt with two cases in which, as the court put it, “the child is deliberately taken abroad and separated from one of its parents for many years, and the ordinary loving relationship which each should enjoy with the other is irremediably severed.” The court reviewed cases where sentences for this kind of offence were imposed. It summarised the position as follows: “The decisions in these cases were fact specific and of heightened sensitivity, but the general theme was that the offence, even if committed by a loving parent, was a serious offence and one of the repeated themes in the sentencing decisions was that there should be a significant element of deterrence in the sentence. In the Court’s view, the abduction of children from a loving parent was an offence of unspeakable cruelty to the loving parent and to the child or children, whatever they might later think of the parent from whom they had been estranged as a result of the abduction. It was a cruel offence even if the criminal responsible for it was the other parent.” 23. In Kayani in 2000, the two boys concerned, then aged five and four, were handed over to the appellant for the week and the mother was given what she was led to believe was the appellant’s UK passport, but in fact it was an old one. He flew to Pakistan with the children and his sister, using his newly obtained passport and some Pakistani passports he had obtained for the children. The mother made various attempts to contact the appellant and on two occasions flew to Pakistan to find the children. In 2006 the mother instituted divorce proceedings and the appellant contacted her by telephone but would not tell her where the children were. Eventually in 2009 the appellant returned to the United Kingdom with the sons, who were then aged 15 and 13. He made no effort to contact the mother. Eventually police inquiries resulted in the sons being identified. The mother had still not seen her sons, who refused contact with her. He was sentenced to 5 years’ imprisonment and the sentence was upheld by this court which described the circumstances of the case as “outrageous”. 24. Kayani was aged 49 at the time of sentence and of previous good character. He pleaded guilty at a time when a 20% discount was applicable. This gave a starting point of 6 years and 3 months, not far short of the maximum sentence permitted by statute of 7 years. This court described the sentence as at the higher end of the appropriate bracket following a guilty plea, but nonetheless not manifestly excessive. 25. In Solliman contrary to undertakings given to the Family Court the appellant without notice to the court, or to the mother of the children removed all three children (then aged eight, seven and five years respectively) to Egypt in April 2002. He did not return to the United Kingdom with the children until November 2009 and made no contact with their mother. However, she discovered through a social networking site that they had returned. The police were contacted. The appellant was arrested in February 2010. When he was interviewed he admitted the abduction of the children. He was granted bail throughout the proceedings, and the children continued to live with him until he was sentenced to 3 years imprisonment. 26. Solliman’s age is not recorded in the report but the ages of the children suggest that he may also have been in his late 40s or early 50s at the date of sentence. The precise credit given for his plea of guilty is not specified save that it was acknowledged to be an “early” plea. We infer that the starting point was between 4 and 4½ years. 27. This court said that this was a prolonged abduction and the natural bond between mother and children has been permanently severed. It concluded that the sentence was an appropriate sentence, and if it had been somewhat longer, the court would have been unlikely to interfere. 28. Suggested distinctions between those cases and the present case have been made. It is said that in that in each of those cases the children were removed from the mother’s custody in defiance of court orders, that fraudulent travel documents were obtained to facilitate the abduction and that the children were kept at an unknown destination by the two fathers over many years to prevent contact with the mother. Here it is said that the appellant notified the school and the police and indeed it is right to say that the location of X has been known throughout. However, BS, who is a Polish national with some difficulties of her own, would have to travel to India to secure contact with X because she is in a boarding school. The distinction is of no real difference. Furthermore, the appellant notified the school and the police after it was possible for either to do anything about it. 29. We accept that it could be said that there are some aspects of those two cases that are worse than the present case, but these distinctions are of little relevance: the essential evil of what was done is the same. 30. Despite the appellant’s age, we do not consider that a starting point of 4½ years is manifestly excessive given the nature of this offending and the need for there to be an element of deterrence in any such sentence. 31. The appellant received a 25% discount for his plea of guilty. It was not the full one-third because of the initial delay in intimating his intention to plead guilty. We need not go into detail, but that delay was caused by flawed legal advice given by counsel then acting for him to the effect that he may have a defence to the allegation. The appellant was, at the time, a 75-year old man who had worked in a factory and spoke imperfect English. Mr Bennathan put the matter elegantly in a Note prepared for the court prior to the hearing in May when he said that counsel’s views were “on the outer fringes of reasonable legal analysis” and that the appellant “should not pay the price for that unconventional legal opinion.” We might have expressed our view of the advice given in stronger language, but in essence we agree. This falls within the residual flexibility given to the sentencing judge arising when “poor advice” has been given: see [28] of the judgment of this court in Caley [2013] 2 Cr. App. R. (S.) 47. 32. We will allow the appeal to the extent of giving the Appellant the full one-third discount for his plea of guilty and, accordingly, substitute a sentence of 3 years imprisonment for that imposed by the judge.

2016_07_26-3807.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2016/1036/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2016/1036

1a160a4c87f6331e7c4faf0be3d79b69b2a985922a1c7626c319f3fbf1c33ee4

[2023] EWCA Crim 771

EWCA_Crim_771

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 NCN: [2023] EWCA Crim 771 CASE NO: 2023 00509 A3 Royal Courts of Justice Strand London WC2A 2LL Wednesday 21 June 2023 Before: LORD JUSTICE STUART-SMITH MR JUSTICE JACOBS RECORDER OF LONDON HIS HONOUR JUDGE LUCRAFT KC REX v CALLUM CURTIS JOHNSON __________ 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 WATTS appeared on behalf of the Appellant _________ J U D G M E N T MR JUSTICE JACOBS: 1. On 18 November 2022 in the Crown Court at Sheffield the appellant pleaded guilty to a single offence of attempted robbery contrary to s.1(1) Criminal Attempts Act 1981. On 27 January 2023 he was sentenced by Ms Recorder Davies to an extended sentence of 6 years, comprising a 4-year custodial term and a 2-year extended licence period. He now appeals against sentence with the leave of the single judge. The facts 2. On 19 October 2022, the complainant Timothy Halliday, who was aged 65 at the time, was driving home from Manchester in his electric BMW. The car had a digital key and was powered by electric charge. At around midnight Mr Halliday stopped at a car park in Eldon Street in Sheffield to charge the car. He sat in his car whilst it was charging and noticed a male, the appellant, who was not wearing a top, walking around the front of his vehicle. Mr Halliday was concerned, but the appellant went out of sight. Mr Halliday then noticed that his car had stopped charging. 3. He got out of his car to investigate. The appellant stepped out from behind the charger. Mr Halliday asked him what he was doing and they had a conversation about the car. As Mr Halliday walked towards the charger to re-start the charge, the appellant walked towards the car door and tried to get in. Mr Halliday then tried to stop him, and there was a struggle during which Mr Halliday was spun round with force and ended up on the floor. The appellant then tried to start the car but could not work out how to do so without the digital key. There was a conversation between them through the closed window of the car as the appellant panicked at not being able to start it. Once he realised he could not start the car, he tried to get out, but he could not. Mr Halliday instructed him how to get out. The appellant exited the vehicle and told Mr Halliday to give him the key. At this point a police officer arrived at the scene and the appellant ran off. The incident lasted around 5 minutes. Mr Halliday sustained cuts and grazes and pain to his head. 4. Two police officers had been investigating another incident earlier that evening and asked CCTV operators to follow the appellant from the scene. He was located at the Salvation Army Hostel in the centre of Sheffield. Police attended and he was arrested. En route to custody he told the officer he did not know why he had done what he did and he should not have done it. At the custody desk he apologised and said he did not mean to do it and did not mean to hurt Mr Halliday. He then made no comment in interview. In due course he pleaded guilty to the offence, and it was accepted by the prosecution and the recorder that his plea justified the full 33 per cent reduction from the sentence that would have been imposed after conviction at trial. The sentencing materials and sentence 5. The appellant was aged 35 at sentence. He had 11 convictions for 17 offences spanning from 2004 to 2022. His earlier offences included affray, possessing Class C drugs, resisting a constable, driving offences and common assault. In 2011 he was sentenced to 3 years' imprisonment for a s.20 wounding. In 2017 he was sentenced to 4 years' imprisonment for robbery. This was a robbery on a 91-year-old man, who had won some money at a casino and was on his way home on a mobility scooter. The appellant had followed him, twisted his arm, and robbed him. His most recent offences were for criminal damage and possessing a knife in a public place. For the latter he was sentenced to 3 months' imprisonment on 8 November 2022. The present offence was committed whilst he was on bail awaiting sentence for that knife offence after having pleaded guilty in late October 2022. 6. A pre-sentence report was available to the judge. The appellant did not emerge well from that report, and there was very little in there which provided any encouragement for the future or any substantial mitigation. The appellant said, contrary to his plea, that he had no intention to rob the car. He attributed his behaviour to having been given a spiked drink by an unknown female when waiting outside the chicken shop; a suggestion which the author of the PSR unsurprisingly found to be questionable. When asked about the impact on the victim, the appellant said he did not know, "but he'll be OK"; adding "He's fucked in the head - I'm not though". The PSR author had accessed previous probation records which had highlighted concerns around the appellant's mental health, which was considered to be linked to cocaine and cannabis use. The prison authorities indicated that there were no current concerns about his mental health, although there had been such concerns during a previous term of imprisonment, as we have said, and there had been a suicide attempt in the past. On the positive side, the appellant had engaged well with probation when on licence for the robbery offence. The author concluded that the appellant posed a high risk of causing serious harm to others, with lone/elderly/vulnerable males seemingly targeted by him. The author's conclusion was that the nature and seriousness of the offence, alongside the established pattern of violent offending, required a period of imprisonment to manage current risk. 7. The victim had made a personal statement. He described being unnerved and this turning to fear as the incident started. On his way home, he replayed the event over and over in his mind and thought that he had acted foolishly in trying to defend his car. After a few weeks, he said that he was able to come to terms with what had happened and had learned lessons should such a situation arise again. He described himself as being mentally strong enough to get past that. Mr Halliday expressed concern that, for many people, situations such as these can be life-changing events. The effect of his statement however was that this has not been life-changing for him. He is obviously a robust individual, as shown by his ability to drive home to Manchester after the incident and what he said in the victim personal statement. 8. The Crown submitted at the sentencing hearing that this was a Category 2B offence under the applicable sentencing guidelines with a starting point of 4 years and a range of 3-6 years. There was also potentially available an extended sentence if the minimum custodial term would be 4 years and if a finding of dangerousness were to be made. 9. The recorder considered this was indeed a Category 2B offence, interpreting Mr Halliday's statement as describing a more than minimal psychological effect. She referred to the appellant's previous offending, and the fact that he was on bail when the offence was committed. She identified aggravating features of the offence in addition to his previous convictions: the location and timing of the offence late at night, and the high value of the BMW that he was trying to steal. She had previously referred to the fact he was on bail, and there was also a clear implication he was under the influence of drugs or alcohol at the time. She concluded that the appellant was dangerous and that a custodial sentence of 4 years with a 2-year extension period was therefore appropriate. The argument on appeal 10. On behalf of the appellant, Mr Watt submits that this was not a Category 2B offence. It was a case of minimal force, meaning that it was C for culpability. There was no or minimal physical harm to the victim, meaning it was category 3 for harm. Since the correct classification was 3C, the relevant guideline provided for a starting point of 1 year with a range of a community order to 3 years. He also pointed out that this was an attempt: the complete offence of robbery was not committed. A 4-year custodial term was therefore inappropriate, bearing in mind the appellant's guilty plea. An extended sentence was therefore not available, and in any event, he submitted that the Recorder was wrong to consider the appellant dangerous for the purpose of the extended sentence provisions. Discussion 11. In relation to the length of sentence, we consider that the submissions of Mr Watts have some force. We consider that the recorder was justified in her conclusion that this went beyond the use of minimal force. Mr Halliday was involved initially in a struggle and was then subjected to force which caused him to fall to the ground. However, we can see that the degree of force in the present case was close to being minimal, and therefore the case only just came within category B for culpability. We do agree, however, that there was minimal physical or psychological harm to the victim. It was therefore Category 3B under the guideline with a starting point of 2 years and a range of 1-4. 12. We consider that, even bearing in mind this was an attempt, the aggravating features of this case are such that a sentence at the top of that range, prior to credit for plea, is appropriate. The appellant had a record for violence and indeed other offences. That record is a serious one. The appellant had only recently completed his 4-year sentence for robbery. That case involved the targeting of a lone vulnerable individual, and so did the present case. This offence was carried out late at night. It involved an attempt to steal a high value car. The appellant had only recently been granted bail for the knife offence, and the present offence was committed whilst under the influence of alcohol or drugs. Accordingly, we consider that a 4-year sentence prior to credit for plea is appropriate. Indeed, in view of the aggravating features of this case, including the previous convictions, we would have formed the same view even if this was a category 3C offence. 13. Since the appellant is entitled to full credit for his plea, the sentence should be reduced from 4 years to 32 months' imprisonment. That means that an extended sentence cannot be imposed. 14. Accordingly, we allow the appeal against sentence, and substitute for the sentence imposed a sentence of 32 months' imprisonment. The appellant will be entitled to be released after having served half of that sentence but will then be on licence and liable to recall if further offences are committed or the licence conditions are not adhered to. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: Rcj@epiqglobal.co.uk

2023_06_21-5718.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/771/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/771

297e7f5fcd01e13bc78a0835a0c03d41621b1758c3c3b374db78d56d8ea6bc52

[2023] EWCA Crim 163

EWCA_Crim_163

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 163 Case No: 2022/03393/A3 Royal Courts of Justice The Strand London WC2A 2LL Friday 3 rd February 2023 B e f o r e: LORD JUSTICE COULSON MRS JUSTICE CUTTS DBE HER HONOUR JUDGE MUNRO KC ( Sitting as a Judge of the Court of Appeal Criminal Division ) ____________________ R E X - v - KEISHA OLIVIA HARTY ____________________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) _____________________ Mr T Challinor appeared on behalf of the Applicant ____________________ J U D G M E N T ____________________ Friday 3 rd February 2023 LORD JUSTICE COULSON: Introduction 1. The appellant is now aged 26. On 11 th November 2022, in the Crown Court at Liverpool, she was sentenced by His Honour Judge Woodhall to a total of five years and six months' imprisonment, made up of five years and four months in respect of one count of wounding with intent, contrary to section 18 of the Offences against the Person Act 1861 , and a consecutive term of two months for a failure to surrender, contrary to section 6 of the Bail Act 1976 . 2. Her appeal in respect of the sentence for the Bail Act offence does not require leave: see section 13 of the Administration of Justice Act 1960 . There was originally no appeal against that sentence. However, following the intervention of the Criminal Appeal Office, a point emerged about the credit to which the appellant may have been entitled. We will address that point in greater detail later in this judgment. Because the appellant does not require leave to raise that point with the full court, the Registrar has, for convenience, referred the application for leave to appeal against the sentence for the section 18 offence to the full court in order that they can be heard together. The Section 18 Offence 3. On New Year's Eve 2019 Anna Rudolf was at her home address in Tudor Road, Birkenhead with her two young children. At around 8 pm the appellant and Tracy Morgan arrived at her address to celebrate the New Year with her. They brought some alcohol with them. Ms Morgan had her four year old child with her. The children were put to bed and the adults celebrated the New Year. The appellant and Ms Morgan were drinking alcohol. They appeared to have been drinking prior to arriving at Ms Rudolf's address. They were being very loud, and earlier that evening the appellant and Ms Morgan had been loud and aggressive towards another neighbour. 4. At around 11 pm Robert Murray arrived at the address. He left briefly before returning with the complainant, Nicola Hilton. The complainant, an adult, had recently been made homeless by her father. She explained that to Ms Rudolf who invited her into her home. Up until around 3 am everyone appeared to be getting on well. Everyone, except Ms Rudolf, had drunk a considerable amount of alcohol. Ms Rudolf and the appellant were sitting at the dining table. The complainant and Mr Murray were standing near them. The appellant started to argue with the complainant. The appellant shouted and swore at her. The complainant did not respond but just told her to be quiet. 5. Without warning, the appellant flipped the dining table over, stood up and attacked the complainant by grabbing her hair. Ms Rudolf stood up and tried to pull the appellant away. The complainant was shouting at the appellant to stop but the appellant continued to attack her. Ms Rudolf could see clumps of the complainant's hair being pulled from her head. Ms Morgan and Mr Murray assisted in separating the appellant from the complainant. The complainant went to stand in the kitchen to recover from the assault. The appellant picked up a broken wine glass that had smashed on the floor when the table was flipped over, and followed the complainant into the kitchen. There she lunged towards the complainant whilst holding the broken wine glass and struck the complainant in the face, causing a large cut. The complainant ended up on the floor in the kitchen. Ms Rudolf went to assist, but Ms Morgan climbed over her, grabbed the complainant by the hair and pulled her out of the kitchen whilst punching her on the head three times. Then the appellant, Ms Morgan and Murray all fled from the property. An ambulance was called at 3.07 am. 6. Police officers arrived at 3.20 am. One officer observed that the complainant had sustained a deep laceration to the right side of her face which was bleeding profusely. She was shouting and in distress. Another officer saw that there was lots of broken glass and blood on the floor of the back room next to the kitchen. The complainant was taken to hospital by ambulance. She had sustained multiple deep lacerations to the right side of her face, had swelling to the right temple area, right cheek and jaw, and had three full-thickness lacerations to the right temple region, including a semi-circular laceration on her right cheek. She was treated with stitches under anaesthetic and discharged, having been prescribed oral antibiotics, anaesthesia and cream. 7. The appellant was arrested at 9 pm on 1 st January 2020. She was interviewed the following day. She stated that she had had a fight with Ms Morgan and had then left at 2 am and did not witness any assault on the complainant. That was, of course, a blatant lie. CCTV enquiries showed that she had left Ms Rudolf's property at 3.06 am (one minute before the 999 call). Forensic enquiries of her clothing revealed blood splattering indicating that she had been in close proximity to the complainant. When interviewed again on 5 th March 2020, the appellant accepted that she had been present at Ms Rudolf's property in the early hours of the morning of New Year's Day. She said that everyone had been fighting, and it was at that point that she had left the property. She continued to deny assaulting the complainant or causing her injury and could not explain the presence of the complainant's blood on her leggings. The Failure to Surrender 8. The appellant was due to attend her trial in the Crown Court at Liverpool on 15 th July 2021, but she did not attend. A warrant for her arrest was issued. Two subsequent trial dates on 26 th July 2021 and 28 th July 2021 were fixed and also missed. The appellant fled the jurisdiction and went to Ireland. 9. On 11 th April 2022, the appellant was remanded in an Irish prison. That total period of imprisonment lasted until 10 th October 2022, when she was extradited back to the United Kingdom. However, whilst in Ireland the appellant had committed shoplifting offences for which she was sentenced to a term of imprisonment there. Thus, for the period between 3 rd May 2022 to 8 th September 2022 the appellant was serving her sentence in Ireland for those unrelated offences. 10. It is agreed that there was a period of 55 days during which the appellant was remanded in an Irish prison prior to her extradition back to the UK, and which did not relate to the Irish shoplifting offences. We will return to that period of 55 days later in this judgment. That gives rise to the credit point that is the subject of ground 2 of the appeal. The Sentencing Hearing 11. The sentencing hearing took place before Judge Woodhall on 11 th November 2022. In his sentencing remarks the judge rightly focused on "the very serious injury" inflicted on the complainant, Ms Hilton. The judge said: "Ms Hilton was taken to hospital. She had sustained what are described as multiple deep lacerations to the right side of her face, one which was 4 centimetres along the hairline, one which was 3½ centimetres in the right temple and a 4 centimetre semi-circular cut to her right cheek. There was associated swelling. I have seen the photograph … This was on any view a traumatic injury. Ms Hilton had to be treated with [what] I am told were 21 stitches to her face and she was then discharged with medication. In essence, the injuries can be summarised this way, serious cuts to almost the whole of the side of her face, the right side of her face…. Ms Hilton has declined to make a victim personal statement indicating that to do so would cause her further trauma because it would cause her to have to relive the events of this night. She has, however, told the officer how she has been left feeling traumatised to the extent that she cannot walk down the street without fearing being attacked and that her visible scarring to her face causes her concern about what others may think. In her application for compensation she has described the injuries as having left a severe and permanent scar to the right side of her face – given what I have seen in the photograph that is no surprise – how her saliva gland was damaged, it required draining and injections, and she described the process involving skin grafts." 12. The judge then turned to the relevant sentencing guidelines. He was concerned that the prosecution had agreed with the defence that this was a medium culpability case, category B, notwithstanding that a broken glass had been used to lunge into the complainant's face. He wondered if this was not a category A (high culpability) offence because of the use of the broken glass, which might be properly categorised as the use of a highly dangerous weapon. However, the judge ultimately accepted that for the purposes of the guidelines, this was a case of medium culpability. He considered that harm could have been categorised as category 1, but in the end categorised it as category 2 harm. 13. For an offence within category B2, the guideline identifies a starting point of five years' custody, and a range of four to seven years. The judge said that the offence was aggravated by a number of features. He said this: "Firstly, having drawn back from concluding that the weapon was highly dangerous at stage 1, I do conclude that the nature of the weapon and where it was deployed or used, in other words to your victim's face, elevates the seriousness of this offending up within the range. Put another way, use of this particular weapon in the way it was falls only a little short perhaps of being classified as a highly dangerous weapon. Secondly, it is further aggravated because the offence was committed when you were under the influence of alcohol. Thirdly, it is aggravated because there were others present and fourthly, it is aggravated because you were subject to a community order at the relevant time. Those features combined undoubtedly elevate the sentence up to at least the top of the range identified." 14. The mitigating factors found by the judge included the following: the offence was out of character; the appellant's vulnerabilities and trauma flowing from her own abusive relationships; and the steps that she had taken to address some of the underlying causes. Taking all those factors into account, the judge said that the appropriate sentence after trial would have been six years' imprisonment, which was reduced by ten per cent to reflect the late guilty plea. That resulted in a term of five years and four months' imprisonment. 15. The judge said that the Bail Act offence was culpability A and category 1 harm. That gave a starting point of six weeks' custody, and a range of 28 days to 26 weeks. The judge said that he would reduce the sentence on that count to reflect the time that the appellant had spent in custody in Ireland, before and after she had served her shoplifting sentence, when she was only in custody because of the arrest warrant for the s.18 offence. Taking into account that period in custody, which the judge said that he understood to be "about one month", he said that the relevant sentence would have been one of three months' imprisonment after trial, which was reduced to two months as a result of the guilty plea. The ‘Slip Rule’ Hearing 16. A week later, on 18 th November 2022, there was a slip rule hearing before the judge. This was because, although nobody had informed the judge a week earlier, there had been a period earlier on in the proceedings in the UK when the appellant had been subject to an electronically monitored curfew. That gave rise to an agreed credit, namely a period of 83 days, which would count towards the appellant's sentence. 17. At the end of the slip rule hearing there was an exchange between the judge and Mr Challinor, who represented the appellant. Mr Challinor expressly raised with the judge the question of the time which the appellant had spent on remand awaiting extradition. Mr Challinor asked the judge if that time had been credited in the appellant's case. The judge said that he had taken it into account; he had not formally made a discount from the sentence, but he had borne it in mind in assessing the total sentence that he had imposed. He brought up his notes and confirmed that he took into account the period once the Irish sentence had expired, and she was in custody awaiting extradition for this offence. He said: "I took that into account as a feature in determining what the overall sentence was." Mr Challinor replied that he was grateful for that confirmation. That appeared to be the end of the point. The Appeal in respect of the Bail Act Offence 18. However, the Criminal Appeal Office raised with the appellant's representatives the fact that, pursuant to section 327 of the Sentencing Act 2020 , the judge was required to specify in open court the number of days for which the appellant had been kept in custody whilst awaiting extradition. That had not happened in this case. That point was therefore added to Mr Challinor's amended Advice and Grounds of Appeal. 19. At the hearing today, we asked Mr Challinor what the effect of this omission was. He originally indicated that he sought credit for the 55 days. However, in our view, the position is not as simple as that. First, the period of 55 days had never been identified to the judge, either at the sentencing hearing or at the slip rule hearing, where the point was raised as a mater of principle. 20. Secondly, the judge had been clear in his sentencing remarks on 11 th November that he was aware that the appellant had spent time in custody in Ireland awaiting extradition and that that was a period that should be taken into account, and that he had taken it into account. He repeated that at the slip rule hearing. 21. Thirdly, it is plain that the information made available to the judge at the sentencing hearing was that the period in question was "about one month in custody". That was never corrected, as it ought to have been, so that the judge could take the full period into account. 22. Accordingly, in this somewhat muddled situation, it seems to us that the obvious solution is this. We will state in open court that the time spent on remand in Ireland awaiting extradition was 55 days. We note that the judge endeavoured to give credit for this, although he thought that the period was about one month (or 30 days). The sensible solution is for the appellant's sentence in respect of the Bail Act offence to be reduced, but reduced by a further period of 25 days, calculated by taking the overall period of 55 days and taking off the 30 days which have already been credited to the appellant. That reduces the sentence in relation to the Bail Act offence by a further period of 25 days. That is the appropriate reduction. When during the course of argument we put that alternative to Mr Challinor, he very properly accepted that, in the circumstances that have arisen, that was the most pragmatic solution. The Application for Permission to Appeal the Sentence for the Section 18 Offence 23. We turn to the application for permission to appeal against the sentence imposed for the section 18 offence. In his Advice, Mr Challinor accepts that the judge was right to categorise the offence as category B2. He complains, however, that the judge's starting point of six years' custody (having taken into account the aggravating and mitigating factors), prior to the discount for the guilty plea, was (as he put it) "the top of the range for a B2 offence, which is the same as the starting point for an A2 offence (seven years)". His principal criticism was that, in the passage we have quoted, "the judge came close to categorising the weapon as highly dangerous". He said that the glass was not broken intentionally, and that the appellant's decision to pick it up and use it in the way that she did was a ‘spur of the moment’ reaction. He said that the glass was not an offensive weapon per se . He also said that the judge failed to give sufficient weight to the appellant's personal mitigation. 24. We have considered the measured submissions in support of these arguments made by Mr Challinor, both in writing and orally this morning, but we cannot accept them for a number of reasons. 25. First, contrary to Mr Challinor's submission, the judge's notional term of six years, prior to the discount for the guilty plea, was a year less than the top of the recommended range. That obviously took into account both the aggravating and the mitigating factors. There were numerous aggravating factors, as the judge himself identified in the passage that we have cited. 26. Secondly, we do not consider that it is fair to criticise the judge for wrongly categorising the broken glass. He considered that it fell within category B, having given careful thought to whether it could be put into category A. In the circumstances of this case, we think that the judge was right to place the offending into category B, and therefore no criticism can attach to that decision. 27. Thirdly, we do not accept the criticism that, having placed the offence in category B, the judge was wrong to conclude on the facts in this case that the nature of the weapon and its use elevated the seriousness of the offending within category B. In our view, that submission is contrary to common sense. To thrust a broken wine glass into somebody's face clearly elevates the seriousness of the offending within category B. 28. On this last point, Mr Challinor's related submission was that the offence was not as serious as those cases where a weapon is taken to the scene, or where a glass is broken intentionally in order to make it more dangerous. We agree with that submission in so far as it goes, although, ultimately, we think it is besides the point. The submission comes close to saying that there may be other cases in which the culpability may be higher. So there are. But that does not reduce the appellant's culpability in the present case, which we consider properly reflected the facts of her offending. In any event, we are bound to note that the appellant picked up the broken wine glass from the wreckage of the dining table that she had overturned, and she took that broken glass into the kitchen where the complainant was sheltering from the appellant's earlier violence. The appellant there lunged with it into the complainant's face. Accordingly, to that extent, the appellant did take the broken glass from one place to another to continue her assault on the complainant. In all the circumstances, the attack with the glass was nothing like as spontaneous as Mr Challinor sought to suggest. 29. Finally, we turn to the question of the appellant's mitigation. The judge dealt carefully with that. He expressly identified those factors in his sentencing remarks, and they obviously reduced the term he would have otherwise imposed. Questions of weight were, of course, a matter for the judge. However, in our view, Mr Challinor overstated the mitigation available to the appellant. 30. We accept that there is some personal mitigation. There can be no doubt about that. But the pre-sentence report paints an unpromising picture of the appellant. Amongst other things, it assesses her as posing a high risk of serious harm to the public. It concludes that she has not accepted responsibility for her actions in the attack on the complainant. It notes that her response to her past supervision was "very poor". Accordingly, we are not persuaded that the appellant's personal mitigation was particularly significant or that, in the round, the judge did not fully take it into account. 31. For those reasons, we conclude that the sentence of five years and four months' imprisonment imposed for the section 18 offence (namely, six years, less the discount for the guilty plea) was neither wrong in principle, nor manifestly excessive. For those reasons, the application for leave to appeal against that sentence, which has been referred to the full court in the circumstances we have described, is refused. 32. Thus, the only effect on the appellant’s ultimate sentence is the credit for 25 days to which we have previously referred. 33. Finally, we should say something about the restraining order that was imposed. It was imposed pursuant to section 360 of the Sentencing Act 2020 . However, the record sheet and the restraining order itself state that it was made pursuant to section 5 of the Protection from Harassment Act 1997 . That provision was repealed on 1 st December 2020. 34. The incorrect entry in the record sheet and in the restraining order itself is the result of the Crown Court IT system not having been updated by HMCTS to reflect the changes brought about by the Sentencing Code. That misrecording does not affect the lawfulness of the order, because the transitional provisions in paragraph 4 of Schedule 27 to the Act provide that references in documents to repealed provisions are deemed to be references to the corresponding provisions in the Sentencing Code. However, we repeat what we said in another appeal earlier this week. In our judgment, there is no excuse for this ongoing failure on the part of HMCTS. _______________________________________ 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_02_03-5568.xml

sentence

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/163/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/163

d3d5f1cd9449cba867560b94e05dcf5dbce5444526b34b0fb2ac800efaf0ccc9

[2006] EWCA Crim 577

EWCA_Crim_577

supreme_court

Neutral Citation Number: [2006] EWCA Crim 577 Case No: 2002/07019/B2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SOUTHAMPTON HIS HONOUR JUDGE DARLOW Royal Courts of Justice Strand, London, WC2A 2LL Date: 23 March 2006 Before : LORD JUSTICE PILL MRS JUSTICE SWIFT DBE and HIS HONOUR JUDGE RADFORD (Sitting as a Judge of the Court of Appeal, Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN Respondent - and -

Neutral Citation Number: [2006] EWCA Crim 577 Case No: 2002/07019/B2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SOUTHAMPTON HIS HONOUR JUDGE DARLOW Royal Courts of Justice Strand, London, WC2A 2LL Date: 23 March 2006 Before : LORD JUSTICE PILL MRS JUSTICE SWIFT DBE and HIS HONOUR JUDGE RADFORD (Sitting as a Judge of the Court of Appeal, Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN Respondent - and - BARRY WILLIAM BEARDALL & SAMUEL LORD Appellants - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MR D A BARTLETT & MR T BRADBURY for the Respondent MISS K BEX for the Appellant Mr Beardall MR R PARDOE for the Appellant Mr Lord Hearing dates : 16 & 17 February 2006 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Pill : 1. On 5 April 2001 in the Crown Court at Southampton before His Honour Judge Darlow and a jury, Barry William Beardall and Samuel John Lord were convicted of conspiracy to contravene Section 170(2) of the Customs and Excise Management Act 1979 . On 6 May 2001 Beardall was sentenced to six and a half years imprisonment. Lord absconded following conviction. On 16 August 2001, having been returned to custody, he was sentenced to six and a half years imprisonment, with six months imprisonment consecutive for his contempt, making a total sentence of seven years imprisonment. Both defendants were disqualified for ten years under the Company Directors Disqualification Act 1986 . Beardall appeals against conviction by leave of the full court granted on 7 April 2004. Lord applies for an extension of time and for leave to appeal against conviction. In the circumstances, both applications of his are granted. Both men were granted bail subject to conditions. 2. Two other defendants, Sohail Khan and Simon Lord, the son of the appellant Lord, were acquitted. Khan had set up VAT registration and accommodation premises for forwarding mail for a company known as Delmac. A co-accused Salim Patel had pleaded guilty. 3. The prosecution case was that between July 1998 and February 1999 the appellants and their co-accused conspired together with Anthony Watkins-Burton, Cornelius Post and Hendrik Van Dooren and others unknown to evade duty payable on spirits. A substantial operation was conducted by HM Customs and Excise (“C & E”) and was known as Operation Crystal. It involved about a hundred consignments of duty-suspended spirits which left a bonded warehouse (“bond”) in Molembergnatie (‘MBG’) in Belgium. The consignments were imported into the United Kingdom under cover of Administrative Accompanying Documents (‘AAD’) showing a UK bonded warehouse as the destination. Many of the consignments were diverted prior to arrival at the bond, thereby avoiding payment of duty. AADs returned to MBG to indicate that spirits had reached their correct destinations were falsified. About twenty-five consignments were seized either at Dover or at their destination. Duty due was about £7.2m and the amount evaded about £5.5m. 4. The appellants, who were both bankrupts, were involved in running companies from Beardall’s home address at 21 White Horses, Barton-on-Sea, Hampshire. One of the companies, Dealson Management Limited (‘DM’) arranged the movement of the consignments out of MBG and on to the UK. Another company, Dealson (registered in Ireland) (“Dealson”) also appeared to act as agents for the consigning companies, Duo Distribution Limited (“Duo”) and Vici Limited (“Vici”) in which the co-accused Patel was involved. The prosecution’s case was that the appellants, together with Simon Lord and Patel, used the companies as a front to conceal the identities of the real consignors. Companies named on the AAD’s as purchasers of the assignment were alleged merely to be fronts. 5. The main bonded warehouse destinations were DCA Distribution, Romford, (“DCA”), NEMS Corning, Sunderland (“NEMS”) and Stanton Shipping and Trading, Birkenhead (“Stanton”). Between 1 September and 26 October 1998, Duo was the consignor of 17 loads, in 15 lorries. Consignments purportedly destined for ET Logistics (“ET”), East London, Stanton and DCA did not arrive. Vici was the consignor of the next 82 consignments, sent in 46 lorries between 26 October 1998 and 8 February 1999. The majority did not arrive. Delmac was the consignor of 16 consignments purportedly for NEMS. 6. The prosecution case was that DM’s only business was with the companies involved in the buying or selling of diverted goods and was the allegedly respectable front required for the conspiracy to work. The defence case was that Dealson was a respectable company. The appellants believed they were involved in legitimate business and had no idea that loads were going missing. Beardall claimed that his involvement in the running of the companies used was innocent and that it was Watkins-Burton who orchestrated the fraud. He also claimed that Watkins-Burton, acting for C & E, had set up the transport to entice innocent parties to become involved. The jury were told that the Crown wanted to prosecute Watkins-Burton but, at the time of trial, had been unable to extradite him from Belgium. Watkins-Burton was in the event extradited in April 2002, tried in October 2003, and convicted of the same offence as the appellants. He was sentenced to six and a half years imprisonment. 7. Some of the supplies had originated in the UK, having been exported, booked into MBG and re-imported. Invoices for Duo and Vici were sent to the Dealson Management address. 8. At the trial, it was not in dispute that a conspiracy existed. The issue for the jury was whether the appellants, and the co-accused, were knowing participants or innocent dupes. 9. There was considerable evidence of the appellants’ involvement in the transactions. Mr Voets, freight forwarding agent for MBG, dealt with both appellants who were purporting to act on behalf of Dealson. He met the appellants in Belgium in September 1998 and in October 1998. Reminders were sent to Dealson when AADs were not returned; Dealson blamed the delay on the UK bonds. The manager of MBG, Mr De Clerk also gave evidence. 10. Considerable evidence was called from bond employees, suppliers, lorry drivers and customs officers. There was a discussion between a customs officer and the appellants at 21 White Horses on 19 October 1998 and another on 17 November. Discussions followed the seizure of a load on 20 November. Invoices and AADs went missing. Lord said that he never checked with bonds about missing AADs; it was not his function. Beardall made the same claim; it was Watkins-Burton who was making the arrangements. Many copy AADs purportedly receipted by DCA were forgeries. 11. On 9 February 1999, the appellants were arrested while waiting in the departure lane at Dover Docks. A printing kit, which Lord had been observed purchasing earlier in the day, was in the car, together with faxes from MBG chasing missing AADs. 12. At interview, Beardall said that Dealson was approached by Watkins-Burton to undertake the paperwork for consignments. They were to be paid £250 a load for doing so. He, Beardall, was only the book keeper. Watkins-Burton was the mastermind; the appellants were unaware of any diversion. They made it clear to Watkins-Burton that they were not prepared to be involved in anything illegal. 13. Lord said that, on arrest, they were on the way to see Watkins-Burton to be paid and to go to MBG to pay the bills. He did not know that AADs had to go back to MBG. They had become involved in the transactions at the request of Watkins-Burton. It was Watkins-Burton who asked him to purchase the printing set. It was Watkins-Burton who gave all the instructions and who collected the AADs from the UK bond. He denied that Dealson was a front. 14. Beardall was questioned about the minutes of a meeting between the appellants and Watkins-Burton on 22 July 1998. The minutes were in Beardall’s handwriting. They included a statement that “goods come to England, do not go near bonded warehouse but go direct to client”. Beardall said that he did not mean that. There were subsequent meetings with Watkins-Burton at which introductions were effected. Lord said that he believed all the companies existed and that the intermediaries were passing goods on. Dealson was not responsible for booking the goods into the UK bond. In each case, it was stated in the Defence Case Statements that the defence case was detailed in the 1999 interviews. 15. A document found in the car on arrest was said to demonstrate that Dealson had earmarked a load for itself but this was denied by the appellants. Explanations were given; Lord said that he contacted Watkins-Burton who told him that it was to be used as an arm twister to get payment from a defaulting customer. 16. The prosecution relied on the fact that Dealson did not work for anyone else and did not engage in any legitimate business. Duo were not used following a visit of a Customs officer on 19 October 1998. The appellants maintained that they had acted in good faith. Their sole responsibility was for booking goods in and out. They believed Vici to be an established company with a proper person behind it, and they saw nothing wrong in being paid in cash. They had been caught unawares by someone they trusted and they subsequently accepted assurances that earlier conduct would not be repeated. Each of the appellants alleged that, if he was involved in fraudulent activity, he was involved unwittingly and neither knew nor suspected any such involvement. 17. Given the grounds of appeal, it is not necessary to set out the evidence at the trial in any further detail. No complaint is made about the conduct of the trial by the judge or the conduct of the defence by counsel and solicitors then appearing. In his summing up, the judge gave appropriate legal directions and sufficiently summarised the evidence. At the time of the trial there were hearings, at which only the prosecution were represented, for the purpose of considering disclosure of documents. 18. The appeals are based on material which has become available since the trial and a submission that relevant material was withheld at the trial. Moreover, since the trial, convictions in other C & E cases involving diversion frauds have been quashed and reliance is placed on findings in those cases to support a submission that investigations in the present case have been corrupt. Counsel now appearing for the appellants did not appear at the trial. 19. On behalf of Beardall, Miss Bex submits that he was involved in transactions without knowledge of their dishonesty. Reliance is placed on a photocopy of an affidavit dated 24 March 1998, purporting to have been prepared by Ms Jennifer Costello, which came to the attention of the police in October 2002. In it, Ms Costello who died in 2001, spoke of her friendship with the customs official Mr Bernie Small and how he had introduced her to Watkins-Burton whom she understood was working with Small not merely in investigating evasion of duty but in organising duty evasion. Small has now been shown to have arranged for the owner and manager of London City Bond (‘LCB’) to become a participating informant and to encourage diversion of dutiable goods. It is submitted that a failure to disclose relevant material about how and by whom information was provided to C & E in Operation Crystal deprived Beardall of advancing entrapment and abuse of process arguments at the trial. Reliance is particularly placed on the alleged participation of the discredited Mr Bernie Small in Operation Crystal and it is submitted that C & E were themselves involved in the fraud. 20. While it is accepted that Watkins-Burton was subsequently convicted and sentenced for the same offence as is now under consideration, it is not accepted that he served the prison sentence imposed on him. Following consultation with the prison authorities, the prosecution have assured the court that Watkins-Burton did serve the sentence imposed by the court. We accept that assurance and we have no reason to believe that the prison service have been involved in any cover-up. 21. The Costello affidavits, if genuine, are very significant. The first includes the following statement: “It started to become clear to me that Mr Watkins-Burton was working with Mr Bernie Small and Mrs Maureen Dunn to set up companies and bank accounts to raise money by the sale of goods imported into the UK on which duty had been evaded … It also became clear that Tony Watkins-Burton was acting on the instructions of the officers in the National Investigation Service, including Mr Bernie Small”. 22. The first affidavit is claimed to have been sworn in March 1998, that is over two years before the LCB disclosures in Villiers, mentioned later in this judgment. Small and Mrs Dunn are mentioned in the document as the central figures. The stamp and signature of a solicitor are shown on the jurat though the solicitor has no recollection of the document or its deponent. The second affidavit, also a copy document, was received by the police by post on 14 June 2002. Small and Mrs Dunn are not mentioned. Ms Jennifer Costello died at Middlesex Hospital on 4 April 2001, aged 69. 23. At the instigation of the court, the Metropolitan Police conducted an enquiry into the Costello affidavits (part of Operation Gestalt). At a directions hearing on 15 April 2005, Rose LJ referred to the issue as to the genuiness of the affidavits and posed the question: “How can the appeal successfully and properly be resolved until the genuiness has been established or not?” 24. As result, the police produced a report, described as an ‘interim report’, on 16 June 2005. The effect of the documents is stated to be as follows: “The overall impression presented by both Affidavits is that Mrs Costello is operating as an agent of both HMCE and the Secret Service while working for an unnamed import business. As such she has attended briefings, provided intelligence and apparently acted as a confidante to “Support agents”. As a result of these activities she has gained good knowledge of covert law enforcement techniques and the import of duty payable goods and bonded warehouses.” 25. The conclusion in the report, signed by DS Gary Cornell was: “In summary, as things stand the authenticity of the documents cannot be proved as only copies have been located. However I believe the authenticity of the content of these documents has been disproved”. Reasons are given. These are convincing and the affidavits could not be adduced in evidence under section 23 of the Criminal Appeal Act 1968 (“ the 1968 Act ”). In a letter to the court dated 20 June 2005, DCI McKinney made a distinction, present in the conclusion quoted, between the authenticity of the affidavits themselves as documents and the authenticity of the content. Having stated that the authenticity of the documents could not be confirmed, he added: “Tracing and taking statements from family, friends and former work colleagues of Mrs Costello have tested the authenticity of the content of the documents. These people have provided valuable lifestyle and background detail that strongly contradicts how Mrs Costello and her life are represented in the affidavits. This combined with enquiries with HMCE and Mr Watkins-Burton (A prominent name within the documents) indicates overwhelmingly that the content of the documents and the alleged role of Mrs Costello, and Mr Watkins-Burton, portrayed in them to be false. Although the investigation is technically not complete, as a number of witnesses have been identified and could be interviewed it is felt that that this process would not alter the conclusions that have been reached so far. However, this view will be reconsidered if any significant intelligence or new evidence comes to light.” 26. Miss Bex relies on the fact that the report was described as “interim” and that, three times in the report, reference was made to “outstanding lines of enquiry exist to complete this aspect of the investigation”, giving particulars. One reference is to “outstanding lines of enquiry … to complete the Lifestyle aspect of the investigation.” 27. The court has been told that the Metropolitan Police are not conducting the further enquiries suggested, being satisfied that the contents of the affidavit are, in all material respects, false. We are told by the prosecution that in the more general Gestalt inquiry, the conduct of Small and Mrs Dunn is still under investigation. 28. Reliance is not placed on the Costello report on behalf of Lord, subject to further information about its authenticity becoming available in the future. It can equally be accepted that Lord has not been involved in the preparation and disclosure of the documents found to be false. 29. We have no doubt that the Costello affidavits give no assistance to the appellants. Police enquiries have demonstrated that the contents are not genuine and, on that ground, should not be admitted. Moreover, as Miss Bex accepted, the claim that Watkins-Burton was an informer in Operation Crystal depends largely on the Costello affidavits. Their falsity substantially destroys that aspect of the appellants’ case. If enquiry into their authenticity had been made ahead of or at the time of the trial, had they then be available, it is not a real possibility that they would have affected the outcome. 30. For Beardall, Miss Bex submits that the material disclosed since the trial supports a case that Beardall was duped. For Lord, Mr Pardoe, while maintaining the case that Lord too was duped, submits, that had the material been available at the trial, an abuse of process submission would have had prospects of success. However, Miss Bex would also rely on abuse of process if Mr Pardoe’s submissions prove to be successful. Both appellants rely on the claim that Mr Bernie Small was central to Operation Crystal. 31. In Patel,Villiers and Ors, [2001] EWCA Crim 2505 a massive fraud was perpetrated in relation to goods consigned by LCB to other warehouses. Mr Alfred Allington, the owner and manager of LCB, and his younger brother Mr Edward Allington, were called as witnesses for the prosecution at the trial. Mr Edward Allington was a registered informant, handled by Small. While not a registered informant, Mr Alfred Allington was included in Small’s control sheets or daybook as providing information on a number of occasions. It was concluded in this court that he was a participating informant. Giving the judgment of the court, Longmore LJ stated, at paragraph 54: “We have, for the reasons we have set out, come to the conclusion that there was a serious failure on the part of the Crown to disclose the true status of both Allington brothers as participating informants and the extent of their participation in the offences with Customs’ encouragement. The defendants submit (a) that they were entitled to expect that any decision of the judge at trial on the question of disclosure should be based on proper information, (b) that if proper information had been before the judge he would have ordered disclosure and (c) that, had such disclosure been ordered, that might well have assisted the defence, even though they might still have refrained from attacking Mr Alfred Allington’s credibility. We accept submission (a) and submission (b), because we consider that once the judge appreciated the degree of participation on the part of the Allington brothers in offences in general and the real possibility that they had participated in offences committed by some of these defendants in particular, he would have been bound to order disclosure as Judge Maher did at Wood Green.” 32. Longmore LJ added, at paragraph 56: “…we cannot be sure that, if the status of the Allington brothers as participating informants together with their encouragement by Customs and the consequent LCB immunity had been disclosed to the defence, the jury would have been bound to return verdicts of guilty. We accept that the material could have been deployed by the Defendants and that they should have been able to put forward their tenable cases in the best light, R v Agar (1990) 90 CAR 318.” The convictions were quashed. 33. In Gell & Others [2003] EWCA Crim 123 , defendants were alleged to have evaded duty at the Fort Patrick warehouse in Ipswich. Over a third of the goods received at the Fort Patrick Bond came from LCB. Before this court, it was demonstrated that Small had received evidence from the Allingtons as to the movements of stock from LCB to Fort Patrick. Material also became available which purported to describe the Fort Patrick investigation, Operation Stockade, as an LCB case. Giving the judgment of the court, Longmore LJ noted that, at the Patel/Villiers re-trial [in Liverpool] following the quashing of the earlier convictions, Small gave evidence and admitted that he had misled prosecuting counsel and judges in cases in which disclosure applications were involved. Longmore LJ stated, at paragraph 15: “Any further abuse hearing would have required the participation of Mr Small, but the Crown has had to recognise that Mr Small’s position as an accurate witness who has effected full disclosure is entirely untenable. It was the Crown’s reaction to the evidence given in Liverpool by Mr Small that caused that hearing to collapse”. The convictions were quashed. 34. On the other side of the line, convictions were upheld in R v Austin & Ors [2004] EWCA Crim 1983 . That too involved a diversion fraud operated around Fort Patrick. Villiers and Gell were cited but the procedural irregularity which infected LCB did not apply to Fort Patrick and there was no significant link between Fort Patrick and LCB. Giving the judgment of the court, presided over by Kennedy LJ, Gross J stated: “There was, or would have been no proper basis for any abuse argument in the present case. So far as entrapment or abuse went, it would have had to be shown (and none of the defendants grasped this nettle) that they had been induced by an agent of the authorities into committing an offence which would not otherwise have been committed. It was not enough simply to show that they might have committed some different offence. In the present case any abuse argument would have been wholly untenable, not least because even if it was said the Crown had been slow in reacting, slow policing was not equal to entrapment. In other cases, such as Gell , convictions have been quashed because of nondisclosure, or wrongful disclosure but, in those cases, if there had been disclosure, it might have had a causative impact on a tenable abuse argument. That was emphatically not the position here.” 35. Reliance is also placed by the appellants on the judgment of Longmore LJ in R v Alibhai & Ors [2004] EWCA Crim 681 . The conspiracy in that case did not involve C & E. Longmore LJ stated, at paragraph 57: “ We accept that in many cases it would suffice for an appellant to show a failure on the part of the prosecutor to meet disclosure obligations so that it is reasonable to suppose such failure might have affected the outcome of the trial. It is a matter of semantics whether this means that it is necessary upon an argument of this kind for a defendant to demonstrate "prejudice". That said, even where there has been a failure on the part of the prosecution to make disclosure, this court will not regard a conviction as unsafe if the non-disclosure can properly be said to be of "insignificance in regard to any real issue": see R v Maguire , (1992) 94 Cr App Rep 133 at page 148. ” 36. The test to be applied when material, which would have had a bearing on an abuse of process submission, is disclosed after the trial was considered in R v Smith & Ors [2004] EWCA Crim 2212 . Giving the judgment of this court, Latham LJ stated: “19. Whilst it could be said that in one sense the material which had not been disclosed went essentially to the credibility of Moore, that does not seem to us to provide the real answer. The issue is not just the credibility of Moore. The relevance of the material to these applicants is that it would have provided support for their application for a stay on the basis that there had been an abuse of process, in that the material is capable of supporting the argument that Moore's evidence was tainted by a deal which had been struck either with him or his solicitor. If the material is indeed capable of supporting such an argument then the applicants have been deprived of the opportunity to deploy it and therefore of having the indictment stayed. The failure to disclose the material therefore denied them a fair trial… 20. It seems to us that the question therefore is whether or not the material could indeed have had a causative impact on a tenable abuse argument. … we are not in a position to conclude that that effect would have been insignificant in the absence of hearing the sort of evidence which would have to be called during the course of an abuse hearing in order to deal with the issues raised by that material. 21. … The applicants were therefore denied the opportunity to deploy that material in support of the abuse of process application and were accordingly denied a fair trial. ” 37. Before considering specific documents, we mention the general submissions of Mr Pardoe on behalf of Lord. He questions whether, against the background of the conduct of disclosure in this case, the court can even now be satisfied that full disclosure has been made. Notwithstanding the assurance given at the trial, involvement of Bernie Small in Operation Crystal was, it is submitted, “root and branch”. Bernie Small was the controller of the operation, it is submitted, and, moreover, on the information now available, MBG should be treated as informers. 38. The failure to disclose the hundreds of documents subsequently disclosed, including documents showing dealings by C & E with bond holders and documents demonstrating Small’s involvement, cannot have been inadvertent and must have been wilful, it is submitted. It is inconceivable that Small could have forgotten the extent of his involvement. It is submitted that the appellant Lord was entrapped or at least was a victim of an abuse of process. 39. The court should not accept, it is submitted, that the lack of disclosure would have made no difference to the outcome at the trial. A burden of proof should not be imposed on an appellant in this respect. The disclosure was likely to have influenced an abuse of process submission and, failing that, the verdict of the jury following cross-examination based on the further documents. 40. The appellants rely on a document known as the Sugrue note, a note prepared by a customs officer from NW IMPEX [north-west import/export team], Mr Kevin Sugrue, on 9 October 1998. Its contents are [original spelling maintained]: “Discussed Duo Distribution. Captain Mac [McDonald] had made his own inquiries. Traced Duo to Molenbergnatie. Spoke to Mr Volt (warehouse keeper). Movement commissioned by Tony Watkin Burton based in Brussels – has connections/office at British Embassy. Story very confused; but; 1. Major Tony Watkin Burton appears to have been some sort of agent. 2. He has contact in Coventry call Rajish (Rachish) 3. Tony Watkin Burton instructed Molenbergnatie to effect the movement. 4. Duo distribution are an Irish registered company, with an agent, Dealson Management, 21 White Horses. Marine Drive, Barton on Sea, Hants. Contact Mr Beasdall. 5. The movement was paid to Volt, by a man called Danny. Captain suspected that this was Danny Slater, but having spoken to DS, DS denies it. 6. Volt says at least four containers have moved to Stantons and he holds receipted copy AADs, apparently bearing Stanton’s stamp and signed by Miss Daly or Bailey. Uplifted copies of letter which Captain had obtained bearing Duo Distributions details, and details of movement from Molenbergnatie to Stanton. 17.10 hours, 9 October, 1998 Signed K. Sugrue” 41. This document was available to the disclosure officer and to prosecuting counsel during the trial and failure to disclose it was an oversight. The note records a conversation between Mr Sugrue and Captain McDonald the owner of the Stanton bond. McDonald related what he had been told by Mr Voets (described as Mr Volt) who was employed at MBG. Voets gave evidence at the trial. McDonald was not called and was himself a defendant in a trial alleging a similar fraud. At the end of his trial, he was acquitted by the jury. 42. It is submitted that the contents of the note raise the possibility that Voets was a participating informant and he could have been cross-examined at the trial on that basis. Moreover, McDonald might have been called as a witness for the defence. Alternatively, it might have been alleged that he too was a participating informant. 43. Viewed for present purposes and in isolation, we see no merit in the submissions made about the Sugrue note. Taking it at face value, it does not begin to support a suggestion that either Voets or McDonald were participating informants, or a suggestion that the appellants were entrapped. Moreover, as the prosecution submit, the contents of the note reflect in part a written statement of Ms Finley which was available to the defence. 44. Consideration is required of the involvement in Operation Crystal of Bernie Small. While the trial was in progress there was press coverage of events at LCB and information became available about the use by C & E of informants within LCB and the activities of Small, the Allington brothers and others. 45. At a hearing in the absence of the jury on 15 February 2001, counsel then appearing for Beardall, told the judge: “In other words as I understand the information I have been given, the documents may contain information which suggests that there was an arrangement involving customs officers to actually set up duty evasion schemes together with bonds”. 46. In the course of submissions on 15 February, counsel alleged that “there was an unholy and dishonest relationship between Customs and Mr Allington whereby the course of justice was being perverted because Mr Allington was giving evidence in diversion fraud cases and pretending he knew nothing about the fraud having been instructed to do so by the Customs, who were allowing fraud to continue with the compliance of the bond so that they could choose their moment when the fraud had gone on for some time as to when to bring it to an end.” Reference was made by counsel for Lord to a document, to which we will refer, described as “the Barton-on-Sea document”. 47. In reply to that submission, Mr Bartlett, for the prosecution, referred to the Barton-on-Sea document, in which Small was mentioned. He stated, as recorded in the transcript: “There is absolutely no element of Allington/Small activity in any of the material that I have seen or read”. 48. It is most unlikely that counsel would have used the expression “oblique stroke” or “slash” used in the transcript but we are in no doubt from the context that it was to the joint activity of Allington, or the Allingtons, and Small to which reference was being made. There is no reason whatever to doubt the accuracy of counsel’s statement and Mr Pardoe accepts that there is no evidence of an Allington dimension in the present case. 49. Mr Bartlett went on to refer to the evidence of witnesses, Voets and de Clerk, from MBG, and that of customs officers. He concluded: “In our submission it gives the total lie to the suggestion that there has been anything of the kind going on in this case as is alleged to have gone on in the cases involving LCB and Mr Allington. There has been no communication of that type. I have seen nothing to support the suggestion and really that is all I can say about the matter”. 50. The defence formally requested a statement from the prosecution as to the extent of Small’s involvement in investigating this offence. The reply, given in writing, was: “As far as the prosecution are aware Bernie Small’s involvement was limited to: a) receiving two phone calls apparently on 4 November 1998 from Barry Beardall in relation to ceased loads. b) being present at a meeting on 8 December”. 51. It is also relevant to note an answer given by a customs officer who worked in Dover, Ms Veitch, when giving evidence at the trial. She was asked: “Q. Can you confirm that there is an officer of customs and excise call Bernie Small who worked from London. A. I don’t know”. The point was not pursued by defence counsel at the trial. 52. Further documents have subsequently been disclosed demonstrating participation by Small in Operation Crystal beyond that stated in the formal written answer given at the trial. Reliance is placed on the further documentation, together with Ms Veitch’s allegedly evasive answer, to demonstrate a deliberate attempt by C & E to conceal the extent of Small’s involvement. If the conduct is shown to be deliberate, Mr Pardoe submits, the court should readily conclude that the prosecution have been abusing the process of the court. 53. Counsel for both appellants refer to a number of documents disclosed since the trial in which Small is mentioned: (a) On 20 September 1998 he sent an email to another officer: “DK Distribution are the subject of an active investigation. Should you come across any of their activities during the course of your duties please take no action without reference to me. Can you also let me know which bonds and accounts you are ‘controlling’ as I may be able to prevent you duplicating our efforts”. b) Customs officer Mr Evans noted on 6 November 1998 in relation to enquiries. “Steve Thompson [another customs officer] advised and asked to keep me and Bernie up-to-date on matters”. There is also a reference in the note to ‘DK Distribution AKA Duo Distribution’. c) Another officer comments in a note of 16 November 1998: “Rang Bernie and gave him the information”. d) On 18 November 1998 an officer writes, in relation to another officer: “He knows the Belgium Bond and has spoken to Bernie Small”. e) On 4 December 1998, Small wrote to Steve Thompson, Northern England IMPEX: “Please find enclosed 12 AADs from MBN in Antwerp. The company account in Antwerp is in the name of Vici Limited who are of interest to this team but any contact with NEMS would be in the name of Delmac Limited. I know we have discussed this at length but can you have these documents placed in front of a responsible officer from NEMS to say that they have not received these loads”. f) In late November and early December 1998, Thompson wrote to Small in each case referring to the seizure of Vici loads. On 2 December “Sam Lord of Deaslon Management Ltd” was mentioned by name. 54. It is submitted that the documents demonstrate a substantial involvement by Small in Operation Crystal, and a role more central than that of mere intelligence gatherer. Another officer was requested to take no action without reference to Small and Vici were said to be of interest “to this team”. Small was known to be a poor record keeper and the extent of his involvement is unlikely to be reflected in such documents as he kept. It is submitted that Small’s involvement at LCB was such that he is likely to have employed the same techniques as when making enquiries elsewhere. Upon proof of Small’s involvement, and in the light of a deliberate attempt to conceal it, the court should find that its process has been abused. 55. It is further submitted that MBG were involved in the illicit trade. The further documents, and Small’s known involvement, would have provided scope for cross-examination of Mr de Clerk, the manager at MBG, and Voets. The length of time during which fraudulent consignments from MBG were allowed to continue supported a conclusion that MBG were illicitly involved and that the appellants were entrapped, it is submitted. 56. On behalf of Beardall, reliance is placed on customs officer Mr Evans’ note of 27 August 1998, now disclosed. He said that he had received a telephone call from Lord: ‘immediately identifying him as an account holder at ET Logistics and a known diverter’. It is submitted on behalf of Beardall that, if Lord was a known diverter, it is more likely that Beardall was duped. Mr Pardoe, as well as the prosecution, submit that Evans must have been mistaken in that respect. We accept that submission. There is no reference to any knowledge in C & E, in the bulk of documentation now available, that Lord was known at that time to be a diverter. 57. We also accept that Mr Evans must have confused DK Distribution and Duo Distribution. He was mistaken when he referred, in the note of 6 November 1998, to ‘DK Distribution AKA Duo Distribution’. DK were concerned in only one relevant load and that was on 2 September 1998. Duo were involved in about twenty-five loads. DK were peripheral to the investigation and references in the documents to Small’s involvement with DK are of little relevance for present purposes. 58. Available to the defence and placed before the judge in the course of argument on 15 February 2001 was what has been described as the Barton-on-Sea document. It describes, in some detail, a meeting of customs officers on 8 December 1998, discussing the progress of the enquiry. There are references to the appellants which would have made it most unhelpful from their point of view to place the whole document before the jury. However, what is clear is that Small’s involvement in the investigation was disclosed: “it seems that the EXIRT team and in particular, Ian, Clive, John and Bernie [Small] have been putting the details of this case together for some time. In their opinion this is a major inward diversion fraud that has been going on for at least four months and that they may have moved and got away with between 70/80 loads”. Further investigation was planned. 59. As appears from the transcript of the hearing before the judge on 15 February 2001, already cited, the allegations against Small were by that time known, though the extent of his conduct at LCB only became fully available in the proceedings before this court already mentioned. While the subsequently disclosed documents on which reliance is placed throw more light on Small’s involvement in Operation Crystal, his participation in the team was already known from the reference in the Barton-on-Sea document which was available at the trial. In terms of his involvement, the documents now relied on make little difference. An attack could have been made on Small at the trial on the basis of the information available, though we accept that the full discrediting of Small occurred only later. That is the new feature and one we bear in mind. What the Barton-on-Sea document does also help to demonstrate is a legitimate, well organised, though complex, investigation, without entrapment and the use of participating informers. 60. The appellants also submit that documents subsequently disclosed establish that two of the witnesses who gave evidence for the prosecution at the trial, Stephen Doe of ET and Ms Pat Finley of Stanton, in supplying information to C & E, went far beyond what was required of them and they should have been treated as participating informants. We do not propose to refer to the C & E records which indicate what information was supplied by Doe and Finley. It is clear that there were frequent contacts between them and customs officers. We are quite unpersuaded that the material establishes that they should have been so treated or that their conduct supports a submission of entrapment of the appellants. Equally, the material does not assist the case put on behalf of Beardall that his participation in fraudulent activities was or may have been unwitting. 61. Home Office Guidelines (cited at paragraph 12 in Villiers ) distinguish between public spirited citizens and individuals supplying information of value (contacts) on the one hand and informants on the other. The guidelines are not of course binding on the court but provide a helpful background against which to assess the legality of the investigation. 62. Informants are classified as follows: “ A Confidential Informant (CI) Is an individual who may have a criminal history, habits or associates, who gives information about crime or persons associated with criminal activity, whether or not for financial reward or other advantage. That individual has the expectation that his/her identity will be protected. Participating Informant (PI) Is an individual who has been registered as a Customs and Excise informant, in the knowledge that he may play a part in a crime or its preparation. His role will be disclosed to the defence and he will be expected to give evidence. Confidential Informant (Participating) Is a participating informant who has been authorised by the CIO to play a minor role in a crime or its preparation. A confidential informant (participating) will not give evidence or be disclosed to the defence. However, the role of the CI(P) will be fully disclosed to the trial judge ” 63. As to the submission that employees of the bonds were informants, bonds are required to provide C & E with information. Regulation 24(1) of the Excise Warehousing (etc) Regulations 1988 is headed “Information for the Protection of the Revenue” and provides: “The occupier or the proprietor shall furnish the Commissioners with any information relating to any relevant business or activity of his which they specify or information which they think it necessary or expedient for them to be given for the protection of the revenue”. 64. In all the circumstances, it is not surprising that Mr Pardoe has thought it necessary, to make good his case, to attack the entire investigation as fraudulent and dishonest. 65. The first submission is that in the light of the information now available, it would have been unfair to try the appellants. Reliance is placed on the principle that conduct of prosecuting authorities which brings about state-created crime is unacceptable and improper and it is the duty of the court to ensure that it does not happen. The relevant principles were stated in the House of Lords in R v Looseley ; Attorney General’s reference (No.3 of 2000) [2002] 1 Cr.App.R 29 . Among the factors to be considered in deciding whether there has been an entrapment which is an abuse of the process of the courts are the nature of the offence, the reason for the particular operation by the prosecuting authority and the nature and extent of the participation of that authority in the crime. The greater the inducement held out by the authority and the more forceful or persistent the overtures, the more readily might a court conclude that the boundary had been overstepped (per Lord Nicholls of Birkenhead at paragraph 28). 66. Secondly, deliberate attempts to withhold relevant material from the court and the defence may also amount to an abuse of process, though of a different kind. Mr Pardoe submits that the court should hold that there has been a deliberate withholding of information in this case. In such circumstances, it was unfair that the appellants be tried. 67. Mr Pardoe submits that it is inconceivable that Small, who supplied the information which led to the short written statement as to his involvement, can have forgotten the rest of his involvement and whether it was to cause an entrapment. The court should consider why he would seek to minimise his involvement and whether it was to conceal an entrapment. The court should also carefully consider whether it can now rely on full disclosure having been made, including disclosure of Small’s involvement and the involvement of bond holders in the investigation. There was an overwhelming inference that the failure to disclose the investigative role of Small was not accidental, it is submitted. 68. For the prosecution, Mr Bartlett submits that this was not a case in which the UK bonds were at risk of losing their security or where an indemnity had been offered, as it had been to LCB. The evidence did not establish any wrong doing or participating informing by MBG. Regulation 24 was widely drawn and bond holders knew of the risk of losing their status if they failed to comply with it. Though information beyond the statutory duty may well have been supplied, it was with a view to assisting in the apprehension of offenders and did not involve participation in the crime. Mr Bartlett also submits that the disclosure of large numbers of documents in this case does not involve an admission of their relevance to the issues before the court. 69. The appellants were experienced businessmen who worked closely together at Beardall’s premises. Their correspondence, records of meetings and schedules demonstrate an active involvement in the fraudulent activities. Reference to the fresh material enhances that impression. A suggestion that either of them was or may have been duped is no more persuasive now, in our judgment, then it had been when the jury considered it at the trial. 70. This was a prolonged and thorough investigation of a major fraud. The complexity of the fraud was such that the lapse of time before arrests were made is not surprising. We are satisfied that the additional material now available as to the activities of the bond holders during the investigation does not create a doubt as to the safety of the verdicts. It does not demonstrate an abuse of process. We accept the submission of Mr Bartlett for the respondents, that, in cooperating with C & E, the bond holders were doing no more than was legitimate by way of assisting in the detection of crime. McDonald was different in that he was later prosecuted and acquitted but the material does not establish him as a participating informant. 71. Mr Bartlett submits in relation to Small that his greater involvement in the investigation, now established, does not assist the appellants in the circumstances. He submits that even if Small has deliberately minimised his involvement, the requirements for a stay on the ground of abuse of process would not have arisen and do not now arise retrospectively. 72. As to Small, while the material now available does not establish that he was controlling Operation Crystal, we accept that his participation was far from insignificant. It is surprising that further particulars of that participation were not supplied by him or, upon enquiry, by other customs officers. However, it is difficult to reconcile a deliberate attempt to conceal with the disclosure of the Barton-on-Sea document with its reference to the EXIRT team “and in particular Ian, Clive, John and Bernie have been putting the details of this case together for some time” [our emphasis]. A calculated attempt to trivialise Small’s involvement would not have permitted the disclosure of that document, which reveals a substantial involvement by Small. 73. We are far from persuaded that the investigation has been corrupted, or that there has been, by way of entrapment, or withholding of information or otherwise an abuse of the process of the court. We reject the submission that the entire investigation has been and remains corrupt. The investigation has not been corrupted by Small and, in our judgment, the investigation has been competently and properly conducted by the customs officers involved. The situation is far removed from that prevailing in the LCB cases. There is nothing to suggest that the involvement of Small was, in this case, unlike in the LCB cases, pernicious or that it contaminated the integrity of the investigation. Even if, which we doubt, there was an ulterior motive, and an attempt to limit knowledge of the extent of Small’s involvement, it has not upon further enquiry shown to be material or to entitle the court to quash the convictions. 74. We bear in mind the test in Pendleton in reaching that conclusion. In R v Pendleton [2002] 1 WLR 72 , the House of Lords upheld its earlier view in Stafford and Luvaglio v DPP [1974] AC 878 that in fresh evidence cases it is for the Court of Appeal to make a judgment whether the conviction is safe. Lord Bingham of Cornhill, in Pendleton , added the cautionary note that it would usually be wise for the court 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. 75. An examination of the new material, against the background of that available at the trial, has not persuaded us that there is any doubt about the safety of the verdicts. We bear in mind the impact which the fresh material would have had upon a judge considering an abuse of process application. We bear in mind the effect the further enquiries and disclosures might reasonably have had upon the deliberations of the jury. Having regard to all the material we have considered, and the submissions of counsel, we find no abuse of process entitling the court to intervene or to hold that the verdicts were unsafe. 76. For the reasons given, these appeals must be dismissed.

2006_03_23-767.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/577/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/577

3a9e8765f7bb499ceef37827559c3bc62eb56930f1e22d83ec6be4138854c439

[2003] EWCA Crim 382

EWCA_Crim_382

crown_court

No. 2002/05903/Y1 Neutral Citation Number: [2003] EWCA Crim 382 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Thursday 13 February 2003 B e f o r e: MR JUSTICE JACKSON and MR JUSTICE ELIAS - - - - - - - - - - - - - R E G I N A - v - G. L. - - - - - - - - - - - - - Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - MR ROBIN KITC

No. 2002/05903/Y1 Neutral Citation Number: [2003] EWCA Crim 382 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Thursday 13 February 2003 B e f o r e: MR JUSTICE JACKSON and MR JUSTICE ELIAS - - - - - - - - - - - - - R E G I N A - v - G. L. - - - - - - - - - - - - - Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - MR ROBIN KITCHING appeared on behalf of THE APPLICANT - - - - - - - - - - - - - J U D G M E N T Thursday 13 February 2003 MR JUSTICE JACKSON: Mr Justice Elias will give the judgment of the court. MR JUSTICE ELIAS: 1. On 9 November 2001, in the Crown Court at Liverpool, the applicant pleaded guilty to robbery. He was sentenced by His Honour Judge Clifton to four-and-a-half years' imprisonment. It appears that, in addition, the appellant may have received a short concurrent sentence for a breach of one of the provisions of the Public Order Act, but it has not been possible to determine for certain whether that is so or not. The applicant now applies for an extension of time in which to apply for leave to appeal against sentence following refusal by the single judge. 2. The background is as follows. At about 10am on 25 June 2001, the applicant told his parents that he was short of money. His mother offered him £20 if he would go to the post office and cash her pension for her. It was a small local post office. A short time later the appellant arrived at the post office. He upset other customers by jumping the queue. The staff, understandably, rebuked him and refused to serve him. He left and returned home. He told his mother that there had been a big queue and that he had not cashed her pension. He said that he would return to the post office in his father's car, which he did. Shortly thereafter, he re-entered the post office with the family pet, a Yorkshire Terrier. He set about smashing the security screen in the post office with a sledge hammer, which he had obtained shortly before going back to the post office. He stole in excess of £2,600 before leaving in his father's car. Not surprisingly, a witnesses noted the registration number. 3. Police officers went to the home of the applicant's parents. Initially they arrested the applicant's father. There were two sledge hammers inside his car. Subsequently it became clear that it was the applicant who had committed the offence. He was arrested some time later. Some of the money had been spent, but £1,360 was recovered. 4. When he came to pass sentence, the judge had before him a pre-sentence report and also a psychiatric report from a Dr Boyd, who is a consultant in forensic psychiatry. Dr Boyd concluded that the applicant's mental state at the time was a very significant factor in the commission of the crime. He considered that the applicant had a mental illness, but that it was not of a nature or degree that warranted detention in hospital. Nor did it prevent the applicant from understanding what he was doing. In these circumstances the psychiatrist had no medical recommendation to make with regard to the disposal of the case, although he noted that he had asked one of his colleagues who visited the prison regularly to review the applicant and to see if some particular drugs would be of assistance to him. In the light of this report, the judge imposed the sentence of four-and-a-half years' imprisonment. 5. It is conceded that this was an extremely serious offence and that in view of the report of Dr Boyd the sentence imposed by the judge was perfectly appropriate. However, Mr Kitching, on the applicant's behalf, says that it has now become clear that the illness from which the applicant was suffering is in fact far more serious than Dr Boyd had appreciated at the time. Just before Christmas 2001, the applicant made a serious and genuine attempt at suicide. As a consequence, he was transferred to the Scott Clinic, which is a Mental Health Unit, on 12 February 2002. He was then fully assessed by Dr Turner, a Specialist Registrar in Forensic Psychiatry. His report is dated 2 July 2002. His conclusions were that the applicant was suffering from paranoid schizophrenia, which is a mental illness within the meaning of the Mental Health Act 1983 , and that on the day of the index offence there is evidence that he was suffering from a psychotic illness. Dr Turner also confirmed that were a hospital order to be imposed, then a bed was available at the Scott Clinic for the applicant's continued treatment. It has been confirmed before us today that that bed is still available. Indeed, currently that is where the applicant is. Furthermore, Dr Turner anticipated that with proper treatment and medication the applicant did not represent a significant risk of committing further offences. Dr Turner had been given far more information by the applicant about his state of mind at the time when he committed the offence. It is not necessary to recount in detail the applicant's bizarre fantasies. He clearly suffered from extreme hallucinations. He perceived himself to be the Messiah. The reason he gave for not having disclosed to Dr Boyd his perceptions and his symptoms at the time of the original assessment was: “I was playing religious chess with the devil, and if I told him then people would suffer”. 6. On 26 July 2002, Dr Boyd carried out another assessment. The applicant again explained the reason why he had not told Dr Boyd about the features of his condition at the earlier assessment. He confirmed that it was because he was involved in “a sort of game with the devil”, and that people's souls and lives would be at risk if that fact were to be disclosed. Dr Boyd also concluded that the applicant was suffering from schizophrenia, a mental disorder within the meaning of the 1983 Act ; that he was psychotic at the time of the index offence; and that his offending behaviour was at least in part a result of his mental illness. He confirmed that had he been aware of the full nature of the applicant's symptoms when he prepared his original report, he would undoubtedly have recommended a section 37 Hospital Order. However, in the light of the information he then had, he did not feel that the criteria for detention in hospital at that time were met. Like Dr Turner, Dr Boyd considers that the applicant is not violent and that the public are not at risk from serious harm from him. The applicant has complied with his medication and this ensures that he should maintain stable progress. 7. Two questions now arise for this court. The first is whether we should admit this evidence at this stage. The second is, if we do, ought we to interfere with the judge's sentence so as to impose a section 37 Hospital Order? 8. The court is naturally very reluctant to admit fresh evidence which in principle could have been produced at the trial. The power to do so is conferred by section 23 of the Criminal Appeal Act 1968 . Sub section (2 ) sets out particular factors which the court is obliged to consider when exercising a discretion whether or not to admit such evidence. It provides: “The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to -- (a) whether the evidence appears to the court to be capable of belief; (b) whether it appears to the court that the evidence may afford any ground for allowing the appeal; (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (d) whether there is a reasonable explanation for the failure to adduce the evidence in these proceedings.” These are not exhaustive of all the potentially relevant considerations that must be taken into account. The overriding objective in all cases are the interests of justice. Clearly in this case subsections (b) and (c) are satisfied. Subsection (a) is not strictly applicable, but the medical reports from these two expert psychiatrists constitute reliable evidence on which this court is entitled to act if it considers it appropriate to do so. 9. The critical factor here is subsection (d). Is there a reasonable explanation for the failure to produce these reports earlier? We are satisfied that in the circumstances of this case there is. Dr Boyd did not have a full understanding of the applicant's symptoms at the time he made his original assessment. This was because the applicant had failed to disclose them to him. However, he could hardly be blamed for that since his failure to do so was itself the consequence of the very illness from which he was then suffering. 10. We have considered whether the applicant has concocted this story at this stage in the hope that a hospital order may be made which could result in him securing his liberty sooner than he would otherwise have done. 11. We are surprised that he has not. The psychiatric reports have been produced after a detailed and lengthy assessment of the applicant. Moreover, they are supported by what to the layman would appear to be this quite extraordinary conduct from an individual who up to that point was a man of good character. His actions were apparently wholly inexplicable and totally out of character. Further, it was inevitable that he would be caught. The medical evidence does not suggest that his illness could have afforded the applicant any defence to these allegations. However, it seems to us that these new reports constitute powerful evidence which, had they been before the judge, would in all probability have caused him to reconsider the sentence which he imposed. 12. We are satisfied from the reports that the conditions for the imposition of a hospital order, pursuant to section 37 of the Mental Health Act 1983 , are satisfied and were satisfied at the relevant time. The applicant was suffering from a mental illness, paranoid schizophrenia, which could be alleviated by his detention in hospital for medical treatment. We have, of course, taken into consideration the circumstances of the particular offence and the applicant's previous good character. 13. In the very exceptional circumstances of this case, and recognising fully the reluctance with which this court in general will accept fresh evidence which could have been adduced before the court at trial, we nonetheless consider that the interests of justice require that we intervene. Accordingly, we first permit this application for leave to appeal against sentence to be pursued out of time. We grant leave and, further, we allow the appeal. We are satisfied that the justice of the case requires that we should quash the sentence imposed by the judge and we substitute in its place a Hospital Order pursuant to section 37 .

2003_02_13-17.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2003/382/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2003/382

beda333467b7a4c1cce53fdfa69f515d4a31815d51a4f8e2805d27e25fc725b8

[2023] EWCA Crim 40

EWCA_Crim_40

crown_court

Neutral Citation Number: [2023] EWCA Crim 40 Case No: 202201795 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT BIRMINGHAM HER HONOUR JUDGE MONTGOMERY KC T20197069 Royal Courts of Justice Strand, London, WC2A 2LL Date: 25 January 2023 Before : LADY JUSTICE CARR MR JUSTICE CAVANAGH and HIS HONOUR JUDGE CONRAD KC - - - - - - - - - - - - - - - - - - - - - Between : BRP Appellant - and – REX Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2023] EWCA Crim 40 Case No: 202201795 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT BIRMINGHAM HER HONOUR JUDGE MONTGOMERY KC T20197069 Royal Courts of Justice Strand, London, WC2A 2LL Date: 25 January 2023 Before : LADY JUSTICE CARR MR JUSTICE CAVANAGH and HIS HONOUR JUDGE CONRAD KC - - - - - - - - - - - - - - - - - - - - - Between : BRP Appellant - and – REX Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms Paramjit Ahluwalia (instructed by Philippa Southwell of Birds Solicitors ) for the Appellant Mr Andrew Johnson ( instructed by the Crown Prosecution Service) for the Respondent Hearing date: 13 January 2023 - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment was handed down remotely at 10am on Wednesday 25 January 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives. ............................. Lady Justice Carr: Anonymity 1. We make an anonymity order in this case in order to protect the interests of the proper administration of justice. We bear in mind that the normal rule is open justice, but an anonymity order on the facts of the present case is strictly necessary, pursuant to the principles identified in R v AAD and others [2022] EWCA Crim 106; [2022] 1 WLR 4042 (“AAD”) at [3] and [4] and summarised in Human Trafficking and Modern Slavery Law and Practice (2nd ed) (at 8.103-8.108). The risk to the applicant of being the subject of forced labour in the United Kingdom (“UK”) is real. Introduction 2. We have before us an application for leave to appeal against conviction, together with an associated application for an extension of time (of almost three years). Both applications have been referred to the full Court by the Registrar. 3. The applicant, who is Chinese, is now 31 years old. On 10 June 2019, in the Crown Court at Birmingham before HHJ Montgomery KC, he pleaded guilty to a single count of conspiracy to supply Class B drugs. On 16 August 2019, alongside six other Chinese co-defendants, he was sentenced by HHJ Drew KC (“the Judge”) to 18 months’ imprisonment. 4. He now seeks to challenge his conviction on the ground that he was not advised, as it is said he should have been, of the possibility of a defence under s. 45 of the Modern Slavery Act 2015 (“s. 45”) (“the Act”). At the time of the alleged offending he was a victim of forced labour and relevant exploitation. The contention is that a s. 45 defence would quite probably have succeeded and that, applying the test in R v Boal [1992] QB 591 (“ Boal ”), the conviction is unsafe. 5. We consider the appeal to be arguable. As for delay, the applicant’s new solicitors have served two witness statements setting out the relevant timeline. Given that the appeal is arguable, that the delay has been explained and justified in large measure, and the nature and importance of the issues raised, it is in the interests of justice to grant the necessary extension of time. We therefore grant leave for the appeal to be heard in full and proceed accordingly. The facts 6. In the afternoon of 22 January 2019 police attended the Southside Apartment Complex, a complex set in a gated and affluent part of Chinatown in Birmingham. One of the appellant’s co-defendants arrived in a taxi carrying a large cardboard box. He was approached and informed that he was to be the subject of a drugs search, to which he responded that he would tell the police everything, and was taking the box to “Flat 324” (“the Flat”). He indicated to the police that the box contained cannabis. 7. The appellant was then seen to exit the Flat. He smelt strongly of cannabis. He was detained, along with five other co-defendants who were either also leaving or found within the Flat. The Flat contained two bedrooms. Police found and seized multiple mobile telephones, several Chinese passports and other documentation, English and Scottish bank notes, and approximately 50 kgs of “skunk” cannabis. The value of the drugs was estimated to be over £200,000. 8. The appellant and his co-defendants were charged with conspiracy to supply on a single day, namely 22 January 2019. The guilty plea and sentencing process 9. All but one of the defendants pleaded guilty. The appellant entered his guilty plea at the pre-trial review on a signed written basis dated 20 May 2019 (“the basis of plea”) which stated: “1. That he was illegally resident in the UK; he did not have any family or support basis in the UK. 2. That he was induced through exploitation by others and his own naivety into “the Conspiracy”. 3. That he made no financial gain from any profits of drugs supply. 4. He was made to live with several others in a small flat and had to share one room. 5. His passport was taken away from him. 6. All his personal belongings were contained in one small suitcase. 7. He had no influence over any other person. 8. His involvement in “the Conspiracy” falls just short of Duress. 9. Whilst he was aware that Cannabis was being held in the flat he took no part in the packaging or processing of the same. 10. His involvement did not exceed being an “extra body” in the flat.” 10. On 15 August 2019 the Judge posted a note on the Digital Case System as follows: “All parties should be aware of the following: the bases of plea will need to be supported by evidence from the defendants if they intend to maintain them, as will any other similar basis of plea advanced orally in mitigation.” 11. It appears that the appellant did not pursue his basis of plea. No evidence was called and there was no Newton hearing. The Judge did not refer to any basis of plea in his sentencing remarks. 12. The Judge indicated that “this was a commercial operation, run in an efficient and well-organised way in which drugs came into the UK, were re-packaged and then prepared for onward supply either in this country or elsewhere”. Although there was a clear connection to a more widespread operation, the Judge did not sentence the appellant on that basis. He placed the appellant’s offending in category 2/lesser role for the purpose of the relevant Sentencing Council Guideline. He took a term of 21 months’ imprisonment after trial, which he then reduced by 15% by way of credit for guilty plea. Fresh evidence and developments following conviction and sentence 13. The appellant seeks leave pursuant to s. 23 of the Criminal Appeal Act 1968 to introduce fresh evidence as follows: i) A positive Reasonable Grounds decision of the Single Competent Authority (“SCA”) dated 21 February 2020 (“the RG Decision”); ii) A positive Conclusive Grounds decision of the SCA dated 8 February 2022 (“the CG Decision”); iii) A report of Professor Katona, consultant psychiatrist, dated 8 September 2021; iv) An OASys report dated 7 April 2021 (“the OASys report”); v) Two witness statements from the appellant dated 22 July 2021 and 6 June 2022. 14. This evidence self-evidently post-dates the appellant’s conviction. We entertained it for the purpose of the appeal hearing de bene esse . We also permitted the appellant to give oral evidence and for his evidence to be tested in cross-examination. 15. The following facts and chronology of events emerge. The appellant’s entry into the UK in 2010 16. The appellant had entered the UK on a Tier 4 (General) Student Visa (valid from 18 December 2009 to 6 November 2012) in 2010 in order to study English at Bournville College. In his oral evidence he stated that the course involved around three to five hours’ study a day, and that the annual cost of the course was around £4,000. The fees were paid by his parents in China into his UK bank account (with the Bank of China). His visa was curtailed in March 2012 when he ceased to study. He remained thereafter as an overstayer. He had many jobs thereafter, including cleaning, washing and working for takeaway restaurants. The appellant’s arrests in 2014 and issue of a bench warrant 17. The appellant was arrested on suspicion of attempted kidnap in June 2014 and served with immigration papers notifying him of his overstayer status. In September 2014 he was arrested for production of a controlled (class B) drug. In May 2015 a bench warrant was issued for his arrest in relation to the drugs matter. The appellant’s asylum claim: 2014/2015 18. In October 2014 he claimed asylum. In his screening interview on 23 October 2014 he stated that he came to the UK by air to study. His father had been arrested by the government for religious reasons. He did not know whether his father was alive and believed that he would be persecuted as his father was, were he to be returned. He stated that he could not produce his passport because it had been lost in a burglary. He stated that he had been arrested in the UK and released without charge, because he (and his friend) had done nothing wrong. In interview in March 2015 he stated that he had a girlfriend and a child in the UK; he and his girlfriend were living together but not married. 19. His asylum claim was refused in November 2015. He had failed to attend a follow up interview and had failed to attend his trial in the Crown Court. He was now listed as “wanted” on the Police National Computer. Events of 2019 20. The appellant’s bench warrant remained in place until March 2019 when it was withdrawn. No evidence was ultimately offered on the drug charge and on 2 May 2019 a verdict of not guilty was entered under s. 17 of the Criminal Justice Act 1967. 21. Following the appellant’s conviction in June 2019, the Secretary of State for the Home Department decided (on 29 August 2019) to deport him. On 24 December 2019, having completed his sentence and been further detained in immigration detention, he was granted immigration bail. Events of 2020 and the RG Decision 22. On 17 February 2020 the Salvation Army referred the appellant to the National Referral Mechanism (“NRM”). 23. On 21 February 2020 he was the subject of the RG Decision. The appellant’s account, as recorded in the RG decision, included the following: i) In November 2018 he was an illegal overstayer living with a friend in Birmingham. He did not have a job and was “sofa-surfing”. In December 2018 his friend was not happy with him staying, so he started looking for jobs online. He found an advert on a Chinese website called “Yingniao” for a cleaner’s job, paying £25 a day with accommodation and food. He applied successfully; ii) The next day he was picked up by a man called “Big Bing” (also referred to as “Da Bing”) (“Bing”) and taken to an apartment near the south side of Chinatown. He was told to clean the Flat and to cook, although he was not allowed to go into the bedrooms or open their doors. He would sleep on the floor of the lounge; two men would also sleep in the apartment. He told Bing that he had a partner and a son, and showed him a picture of his son; iii) At the house he smelt a distasteful smell from a box. When he asked about it, he was slapped and kicked by Bing. He was told that it was cannabis and not to ask questions and do his job. He was to clean, get rid of the smell and any mess, to dismantle the boxes and dispose of the rubbish. He never touched the cannabis. When he objected to being involved in any illegal activities, Bing put his foot on the appellant’s chest/heart and threatened to kill him if he told anyone. Bing said he would tell the police about his illegal overstayer status and threatened the appellant’s family. The appellant was very scared as Bing said that he was part of a gang. The appellant was told not to think of escaping as they would take his partner and child. The appellant felt like he had no choice but to abide by their instructions. There were no further threats because he did as he was instructed; iv) He did all the cleaning and cooking. He would sometimes have to go out to buy things when visitors came, and to serve them; v) The police raid was about a month after he started. Boxes would come once a week, although sometimes there would be no deliveries. 24. Two of the appellant’s co-defendants were named by the appellant as individuals who had exploited him. Events of 2021/2022: the OASys report, the appellant’s witness statement, the report of Professor Katona and the CG Decision The OASys report 25. The OASys report completed by the National Offender Management Service (“NOMS”) recorded the appellant stating that he applied for a cleaning job at a flat and was then forced to be involved with the index offence. He stated that those actually in charge of the operation were not arrested. The report also recorded that the appellant was currently living with his partner and child in Coventry. They had been living together since 2016. The child is not the appellant’s son but the appellant had requested that his name be put on the child’s birth certificate. He relied on his partner for financial support and also received a stipend from the Red Cross. The appellant’s witness statement 26. In a very lengthy witness statement dated 22 July 2021, the appellant gave details of his background and relationship with his girlfriend and her son. He described how in 2011 he helped his girlfriend use another woman’s identity to get pregnancy care. They became a couple in May/June 2011 and the child was born in August 2011. The appellant treated him like a son. His girlfriend left him in October 2011 but came back to him in January 2012. He then left her in the summer of 2012. He went briefly to Manchester but then to Birmingham. In 2014 he re-made contact with her, when she was living in Coventry with her son. He visited but did not stay with her permanently because the accommodation was not suitable. But, in 2016 his girlfriend moved to a different council house. By this time they were a couple again. The council rules meant that he could not stay there permanently so he only stayed occasionally. He would otherwise sleep with different friends and occasionally on the streets, working odd jobs. 27. In relation to the circumstances leading up to and surrounding his arrest in January 2019, he repeated the account recorded in the RG decision, with added detail. For example, when Bing put his foot on the appellant’s chest, he had also called over three other individuals who started to beat the appellant. Bing also kicked the appellant and, having threatened to go to the police and find the appellant’s family, said “Are we clear?” The appellant stated that Bing said that he was a Triad, and if the appellant tried to run away he would be able to find him or go after his family. Although the appellant never saw Bing again, Bing would call through to check where he was and that he was working. Two other Chinese males were always present in the Flat. Even when the appellant was allowed to leave the Flat, he said that he could not really escape or go to the police or anyone else, because he was scared as a result of being told of the Triad connection and potential repercussions. He was never paid any money and was too scared to ask about this. He was very intimidated by those coming into the Flat and continuously received threats. He stated that he was kept in custody with some of his co-defendants. He felt scared and was threatened. He described telling his solicitor everything upon his release in December 2019, which led to his referral into the NRM. 28. The appellant addressed his asylum claim in 2014. He also sought to clarify events relating to the day when he took a child to the Home Office, namely 22 October 2014. He was attending for reporting or an interview. He states that he had been asked that day to look after a friend’s son, aged four or five years old. When asked who the child was, he panicked and gave the details of his girlfriend’s son. He also said that he was the father, since he knew that his name was on the boy’s birth certificate. He continued the lie the next day in a screening interview. In March 2015 he falsely stated his partner’s identity; he says he did so because that was the name on the boy’s birth certificate. He responded to the refusal of his asylum and human rights claims and mentioned his arrest in June 2014. 29. In his oral evidence before us he repeated that he could not leave the Flat after the first day because he had been threatened by Bing, who was a gangster. He denied knowing how to get help from the authorities, despite having lived in the UK for some nine years. He only met Bing once. The extent of what Bing knew about his family was the area in which they lived, and the bus route that was closest to their home. He was allowed to leave the Flat, but only when given money to buy food. He admitted that he could have contacted the police but said he was afraid; the police could not provide 24-hour protection. He did not know if the two people in the Flat with him worked for Bing. He did not think about running away. He denied making up his account now to find a way of avoiding the consequences of his actions. When asked what had changed, so that he could speak about Bing now, he stated that Bing did not know his whereabouts anymore. The environment was different. He stated that he is currently living with his partner and son in her council house. The report of Professor Katona 30. In his report dated 8 September 2021, following two remote interviews with the appellant and with an interpreter present, Professor Katona opined that the appellant fulfils the criteria for post-traumatic stress disorder (“PTSD”). He based his diagnoses on the presence of the following clinical features: i) The appellant’s description of experiencing significant stressors (being threatened, beaten, confined and forced to work); ii) The appellant’s description of intrusion phenomena in the form of intrusive thoughts and nightmares; iii) The appellant’s description of avoidant behaviour in the form of trying to suppress his intrusive thoughts and not going to Birmingham’s Chinatown; iv) The appellant’s description of significant alterations in arousal and reactivity in the form of disturbed sleep, irritability and being easily startled; v) The appellant’s description of having quite prominent negative alterations in cognitions and mood in the form of low mood and loss of interest; vi) The fact that the appellant’s PTSD symptoms had lasted for more than a month, had considerable functional significance to the extent of substantially impeding his day-to-day activity and could not be explained in terms of alcohol, medication, illicit drugs or other health problems. 31. In Professor Katona’s view, the appellant’s depressive and anxiety symptoms were best understood as “secondary to his PTSD”. 32. Professor Katona recognised that it was not for him to come to any conclusions regarding the appellant’s credibility. However, he stated that nothing in the appellant’s account was “not clinically plausible”. Further, in his opinion, the appellant was not feigning or exaggerating his symptoms. The CG Decision 33. The CG Decision was made on 8 February 2022. The SCA accepted that the appellant was a victim of “modern slavery in United Kingdom during December 2018-January 2019 for the specific purposes of forced labour”. 34. The SCA commented: “The [appellant] has given a generally detailed, plausible and relatively consistent account in relation to his claimed exploitation through his NRM referral and witness statement. Furthermore, it is noted that the account is also consistent with external information from the US State Department Trafficking in Persons Report 2021 in relation to the UK. The report stated that traffickers force adults to work in cannabis cultivation…” 35. It gave weight to the views of Professor Katona, including as to credibility, and to a trafficking assessment report dated 9 September 2021. It stated that there were no significant credibility issues in the appellant’s account. The SCA went on: “Looking at the evidence in the round, it is considered the [appellant’s] account has met the required threshold, namely “on the balance of probabilities” it is more likely than not to have occurred.” 36. The SCA concluded: “Overall, it is considered that the [appellant] was recruited through an online job advert. The [appellant] was then transported from Chinatown (Birmingham) to a flat in the south of Chinatown (Birmingham). As a result of the recruitment and transportation the [appellant] meets part “a”. The [appellant] was beaten and was subjected to death threats towards himself and his family, thus meeting part “b”. Lastly, it is considered that [the appellant] was forced into providing labour against his will, in which he received no pay, therefore meeting part “c”.” (References to parts “a”, “b” and “c” are references to the “action”, “means” and “purpose” elements of trafficking). Responses from the appellant’s previous lawyers 37. According to the appellant’s new solicitors, they received “some immigration and some trafficking material” from Lisa’s Law Solicitors on 5 March 2020. The appellant instructed them to advise on appeal against conviction on 16 March 2020. There is a chronology of the steps taken between April 2020 and January 2022 to obtain relevant paperwork from the court, the SCA, immigration solicitors and his previous legal team, alongside obtaining legal aid. 38. In a statement dated 6 June 2022 the appellant stated that he was relieved when arrested because this meant that he was “no longer under the control of [his] traffickers”. He did not tell the police about his treatment because he had been told that “they were a triad of gangsters and had powerful connections”. He was not referred to the NRM, or advised of a s. 45 defence at any stage during the criminal proceedings. 39. Draft grounds of appeal were sent to the appellant’s previous legal team on 17 May 2022 in accordance with the procedure identified in R v McCook [2014] EWCA Crim 734; [2015] Crim LR 350. 40. The original solicitors’ files record the appellant’s instructions at the police station on 23 January 2019 as follows: “I was arrested outside flat. I have a friend…I didn’t go inside. Said busy so I left. I don’t know anything about the drugs…” 41. The solicitor advocate representing the appellant at the time of his guilty plea stated that it was “very likely the case” that the appellant was not advised in relation to the availability of a s. 45 defence. The basis of plea would have been typed up during the course of a meeting with the appellant. Whilst there is reference to “duress”, the solicitors’ file contains no record of the potential availability of a s. 45 defence being mentioned. 42. The application for leave to appeal conviction was lodged on 10 June 2022. Grounds of appeal and response 43. Ms Ahluwalia for the appellant submits that his conviction is unsafe and should be quashed. At the date of the index offence the appellant was a victim of forced labour, and subject to relevant exploitation. The basis of plea included clear indicators of relevant exploitation, including inducing the appellant into the conspiracy and making him live with several others in a small flat, sharing one room. At no stage did anyone instigate a referral into the NRM. The appellant was never advised as to the availability of a s. 45 defence; he was deprived of a defence which would quite probably have succeeded. There is no challenge by reference to abuse of process. 44. In terms of the appellant’s credibility, Ms Ahluwalia emphasises the consistency of the appellant’s account since the OASys report and the fact, for example, that the police noted the appellant to be “extremely nervous” when they apprehended him. The appellant had not exaggerated his case in the witness box. 45. Ms Ahluwalia recognised that the weakest part of the appellant’s case related to the test in s. 45(1)(d). But, the appellant was in a real predicament. He had been the subject of actual violence on the first day and thereafter Bing had mechanisms of control, keeping an eye on the appellant. 46. For the respondent, Mr Johnson submits that the appellant’s account should not be accepted. But even if that account were to be considered credible, the necessary ingredients of a s. 45 defence are not made out. This was not in any way a “typical trafficking” case. A reasonable person in the appellant’s position would have walked away at or immediately after the first encounter with Bing, or when leaving the Flat to go shopping. The relevant legal principles 47. The relevant legal background and principles were summarised most recently in R v AFU [2023] EWCA Crim 23 at [81] to [99]. For present purposes, it is sufficient for us to repeat the following summary only. S. 45 48. The UK provides protection for victims of forced labour through s. 45, which came into force on 31 July 2015 and applies to all (relevant) offences committed after that date. S. 45 provides materially: “(1) A person is not guilty of an offence if: (a) the person is aged 18 over at the time of the act which constitutes the offence; (b) the person does that act because he is compelled to do it; (c) the compulsion is attributable to slavery or to relevant exploitation; and (d) a reasonable person in the same situation as the person and having the person’s relevant characteristics would have no realistic alternative to doing that act. (2) A person may be compelled to do something by another person or by the person’s circumstances. (3) Compulsion is attributable to slavery or to relevant exploitation only if- (a) it is, or is part of, conduct which constitutes an offence under section 1 or conduct which constitutes relevant exploitation, or (b) it is a direct consequence of a person being, or having been, a victim of slavery or a victim of relevant exploitation…. (5) For the purposes of this section- “relevant characteristics” means age, sex and any physical or mental illness or disability; “relevant exploitation” is exploitation…that is attributable to the exploited person being, or having been, a victim of human trafficking.” 49. S. 1 of the Act provides, amongst other things, that a person commits an offence if they require another person to perform forced labour and the circumstances are such that they know or ought to know that the other person is being required to perform forced labour. S.3 of the Act provides, amongst other things, that a person is exploited if they are the victim of behaviour which involves the commission of an offence under s. 1. 50. It is for the defendant to raise evidence of each of the elements in s. 45(1), and for the prosecution to disprove one or more of them to the criminal standard: see R v MK; R v Gega [2018] EWCA Crim 667; [2019] QB 86 at [45]. 51. Decisions of the SCA are not admissible at trial, but are admissible on appeal when it is contended that a person’s trafficking status has been overlooked or inadequately considered (see R v Brecani [2021] EWCA Crim 731; [2021] 1 WLR 5851 at [40] and [41] and AAD at [79] to [89]). Whilst not binding, the decisions will usually be respected, unless there is good reason not to do so. However, there may be cases where it is necessary for an appellant’s account to be tested independently for the purposes of safe resolution of the issues on appeal; for example, where a finding of trafficking is based on unsatisfactory evidence (see AAD at [108]). 52. As confirmed in R v V [2020] EWCA Crim 1355 at [25], a s. 45 defence does not arise automatically on proof that a person was a victim of forced labour. Whether or not a s. 45 defence exists is entirely a question of fact for a jury to decide. The degree of compulsion on the defendant, and the alternatives reasonably available to them, are “critical features” of the analysis: “the offence must be committed as a direct consequence of or in the course of trafficking or slavery and the criminality must be significantly diminished or effectively extinguished because no realistic alternative was available but to comply with the dominant force of another.” Appeals against conviction following a guilty plea 53. The court should be cautious when overturning convictions following guilty pleas. As Lord Hughes made clear in R v Asiedu [2014] EWCA Crim 567; [2014] 2 Cr App R 7 (“ Asiedu” ) at [19] to [25], and [32], it will ordinarily be difficult to overturn a voluntary confession. The defendant, having made a formal admission in open court that they are guilty of the offence, will not normally be permitted to change their mind. The trial process is not to be treated as a “tactical game”. 54. Broadly, there are three categories of case in which a guilty plea may be vitiated, as summarised in R v Tredget [2022] EWCA Crim 108; [2022] 4 WLR 62 (“ Tredget ”) at [154] to [180] and Archbold (2023 ed) at 7-43 to 7-46. The relevant category for our purposes is that of cases where the guilty plea is vitiated. This can occur in several circumstances, including the appellant being under the influence of controlled drugs when they entered their plea ( R v Swain [1986] Crim LR 480); a plea compelled by an adverse or incorrect ruling as to the law ( Asiedu ); improper pressure ( R v Nightingale [2013] EWCA Crim 405; [2013] 2 Cr App R 7); or incorrect legal advice that deprived the defendant of a defence which quite probably would have succeeded such that a clear injustice has been done. 55. An appeal can succeed if the guilty plea is vitiated by erroneous legal advice or a failure to advise as to a possible defence, even where the advice may not have been so fundamental as to have rendered the plea a nullity. In this case, the effect of the advice must be to deprive the defendant of a defence which would probably have succeeded: Tredget at [158]; R v Kakaei (Fouad) [2021] EWCA Crim 503; [2021] Crim LR 1079 (“ Kakaei” ) at [67]. 56. This test derives from Boal , where the court emphasised that in such situations a conviction should be overturned only “exceptionally”, where “a clear injustice has been done” (see 599-600). This passage was cited with approval in R v PK [2017] EWCA Crim 486; [2017] Crim LR 716 (“ PK ”) at [12]. The exceptionality of the defence was further emphasised in Tredget at [158] and R v PBL [2020] EWCA Crim 1445 at [23]. 57. The Dastjerdi checklist (see R v Dastjerdi [2011] EWCA Crim 365 at [9]), applicable when determining whether a conviction following a guilty plea should be overturned, was subsequently applied in PK at [13]. On the facts in this case, as set out above, it requires: i) That the appellant should have been advised about the possibility of availing himself of the [s. 45] defence; ii) That the appellant was not so advised; iii) That, had [the appellant] been so advised, it was open to him to advance the defence; iv) That the prospects that [the appellant] would have been able successfully to advance such a defence were good. Analysis and findings 58. The central issue on this appeal is whether or not the appellant had a good s. 45 defence. If he did, he was deprived of the opportunity to advance it through the failure of his legal advisers to advise adequately, including at the time that he entered his guilty plea, and there will have been a clear injustice. 59. As set out above, the respondent’s position is that the appellant’s account is not credible but that, in any event, even if credible, the necessary elements of compulsion and a lack of realistic alternatives for a successful s. 45 defence are not made out. The appellant, on the other hand, contends that he had a good s. 45 defence, and that the prosecution would not probably have been able to disprove any of the necessary elements of such a defence. 60. In order to resolve this dispute, we consider it necessary and expedient in the interests of justice to admit the fresh evidence identified in [13] above, together with the appellant’s oral evidence before us. Neither the fact of the NRM referral, nor the RG or CG Decisions, were available before conviction. Although not all of the material is necessarily reliable, it is relevant to the strength or otherwise of a s. 45 defence and/or the advice given to the appellant during his trial and the sentencing process. 61. The following factors point towards the appellant’s central account relating to the events of December 2018 and January 2019 being credible: i) The CG Decision; ii) The fact that he mentioned being “induced through exploitation” and “duress” in his basis of plea; iii) The fact that his account of events has remained largely consistent since the OASys report; iv) The fact that the appellant did not exaggerate his evidence in the witness box. Thus, for example, he confirmed that his face-to-face contact with Bing was limited to the first day when they met. He also stated that he was not sure whether the two men who remained in the Flat with him were associated with Bing. He did not suggest that he had given Bing details of his family’s whereabouts beyond the broad area where they lived and the relevant bus route; v) Professor Katona’s diagnosis of PTSD and his view that the appellant’s symptoms are clinically plausible. 62. That said, there is real scope to doubt the appellant’s credibility: i) The CG Decision is based essentially on an acceptance of the appellant’s account, relying on the consistency of his version of events since 2021. That account was not tested by reference, for example, to the instructions given by the appellant to his solicitors upon arrest (which made no reference to any form of forced labour or exploitation). There was no reference to any of the more general and serious credibility issues affecting the appellant referred to below. Further, there is force in the respondent’s submission that this was not a case requiring the application of the particular trafficking expertise of the SCA. There was no clear international dimension; rather this was, on the appellant’s case, a case of domestic forced labour; ii) As for consistency, by the time that the appellant was speaking to NOMS in 2021 for the purpose of the OASys report (and subsequently), he was well aware of the context, having been referred under the NRM, and that it was in his interests to contend that he had been the subject of forced labour. This would also have been the position at the time of his lengthy witness statement of July 2021, which appears to have had the heavy input of lawyers; iii) The appellant is someone capable of grave deception when he considers it to be necessary - either in his own interests or the interests of those for whom he cares. He has a striking history of deception in circumstances where there could be no excuse by reference to improper pressure, forced labour or trafficking concerns. We refer, by way of example, to the appellant’s introduction in 2011 of his then pregnant partner to another lady whose identity his partner could steal for the purpose of facilitating access to pregnancy healthcare in the UK. This was at a time when the appellant was lawfully resident here under his student visa. In October 2014 he passed off another boy as his son when attending the Home Office. His explanation is that he feared being arrested for kidnap. The following year, in 2015, he gave the Home Office false details of his partner, with whom he said he was living and in a relationship; iv) Further, making all due allowances for linguistic difficulties, the statement in the appellant’s basis of plea that he “had no family…in the UK” was, at best, misleading. It suited the appellant at that stage to deny having any family in the UK; when it came to his asylum and human rights claims, he said quite the opposite. On any view, his statement that he had no “support basis” in the UK was false, given the support available to him from his partner; v) The appellant’s account is not inherently plausible. The suggestion is that one or more drug dealers would advertise on an open platform for assistance which would involve bringing a complete outsider into an environment that was obviously unlawful from the outset – a highly risky recruitment strategy. It is to be noted that the appellant was arrested on a Class B drug offence in 2014, albeit that the charge was later dropped. The circumstances surrounding the appellant’s arrest for attempted kidnap earlier in the same year are difficult to understand. It is also far from obvious why it was necessary to hold the appellant in the Flat under any form of compulsion: he had no real function in the conspiracy, beyond clearing up the boxes that carried the drugs. He was not a cannabis gardener, or a courier, for example. 63. In the end result, we have not found it necessary to resolve the question of whether or not it is likely that the prosecution could have proved the appellant’s account of the events of December 2018 and January 2019 to be fundamentally untrue. That is because, even accepting his account for present purposes, we consider it clear that the prosecution would have been likely to prove to the criminal standard of proof that at least one of the necessary ingredients of a s. 45 defence was not made out. 64. It is essentially common ground that, on the basis of the appellant’s account, the requirements of s. 45(1)(a) and (c) would be made out. However, it is not accepted that the necessary degree of compulsion would be established and, most fundamentally, that a reasonable person in the same situation as the appellant and having his relevant characteristics (age, sex, physical and mental illness or disability) would have no realistic alternative to doing the act in question. 65. At the material time the appellant was 27 years old and an overstayer in the UK. He had no physical or mental illness or disability. (There is no evidence from Professor Katona that he would have had any mental illness in the immediate aftermath of his arrival in the Flat.) He spoke at least some English: he had studied it for two years between 2010 and 2012 (reaching ESOL level 2) and lived in the UK since then, working in multiple jobs over the years. Before us it was clear that he could both understand and speak basic English reasonably well. He had had considerable experience of interaction with the police and the Home Office. He was alive to how the NHS worked (and how to gain access to it, albeit through dishonest means) and, for example, council housing rules. He had a female partner (and someone he regarded as his child) living not far away in this country, in a council house in Coventry. He had a wide network of friends and contacts in the UK, as evidenced by his lifestyle and occupations between 2012 and 2018. He had demonstrated his resourcefulness over this period, holding down various jobs. This is all consistent with his demeanour in court, which was of someone well capable of fending for himself. 66. The only reason given by the appellant for not leaving the Flat permanently was fear of Bing, whom he believed to be part of a gang, and what Bing (or others at Bing’s behest) would do to him or his family. 67. Set against the background above, and even bearing in mind the appellant’s immigration status and any related disinclination to go to the police, the respondent would have been able to prove that the reasonable person in the appellant’s position would have felt able to leave, despite Bing’s threats. 68. The threats were made only on the first occasion. Bing did not visit the appellant again. The appellant did not know if the others in the Flat worked for Bing or not. The appellant had given only very limited details of the whereabouts of his partner and son. Whilst it is important not to apply impermissible hindsight, the appellant confirmed that Bing has never contacted (or threatened) his family. More relevant, perhaps, is the fact that there is no obvious good reason why the appellant felt able from 2020 onwards to name and accuse Bing, but suggested that he was too scared to leave the Flat in 2019 because of Bing’s threats. 69. Further, there is no suggestion that the appellant was held forcibly against his will within the Flat, for example, or controlled when he went out alone. He had his own telephone at all material times, and was able freely to make and receive calls, and did so. Unlike in a typical trafficking situation, the appellant had a well-established network of unconnected contacts in the UK and, most importantly, a partner living in the UK in settled accommodation to whom he could turn. In basic terms, he had somewhere to go, and many different people from whom he could have sought help, beyond and in addition to the authorities. It is notable that the author of the OASys report considered that the appellant had “acted recklessly in allowing himself to become involved with this offence and took a risk in continuing to do so rather than walking away from the crime”. As Mr Johnson put it for the respondent, a reasonable person in the appellant’s situation could realistically have walked away at the very outset or at least on one of the occasions when he was alone and away from the Flat. 70. In short, a s. 45 defence advanced by the appellant would quite probably have failed, in particular by reference to s. 45(1)(d). The objective reasonableness test would probably not have been satisfied: the respondent would probably have been able to prove to the criminal standard of proof that a reasonable person in the appellant’s situation and with his relevant characteristics had a realistic alternative to being involved in the conspiracy. Conclusion 71. In conclusion, and for the reasons set out above, the appellant was not deprived of the opportunity of advancing a good s. 45 defence. Although he should have been, but was not, advised of the availability of a s. 45 defence before entering his guilty plea, there has been no clear injustice and his conviction is not unsafe. The appeal is dismissed.

2023_01_25-5559.xml

dismissed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/40/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/40

228173c57cf6e3116189d7f16afe08708d39291ca03a43e42a94e3250a303c6c

[2018] EWCA Crim 909

EWCA_Crim_909

crown_court

Neutral Citation Number: [2018] EWCA 909 (Crim) Case No: T201702458 B3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) AN APPEAL UNDER PART 1 OF THE CRIMINAL APPEAL ACT 1968 ON APPEAL FROM DERBY CROWN COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 26 April 2018 Before: LORD JUSTICE LEGGATT MRS JUSTICE MCGOWAN DBE and SIR PETER OPENSHAW - - - - - - - - - - - - - - - - - - - - - Between: M NAJIB & SONS LIMITED Appellant/Defendant - and – CROWN PROSECUTION SERVICE Respondent/Prosecutor - -

Neutral Citation Number: [2018] EWCA 909 (Crim) Case No: T201702458 B3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) AN APPEAL UNDER PART 1 OF THE CRIMINAL APPEAL ACT 1968 ON APPEAL FROM DERBY CROWN COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 26 April 2018 Before: LORD JUSTICE LEGGATT MRS JUSTICE MCGOWAN DBE and SIR PETER OPENSHAW - - - - - - - - - - - - - - - - - - - - - Between: M NAJIB & SONS LIMITED Appellant/Defendant - and – CROWN PROSECUTION SERVICE Respondent/Prosecutor - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Stephen Hockman QC and Mr David Hercock (instructed by SAS Daniels LLP ) for the Appellant Mr Richard Wright QC and Mr Howard Shaw (instructed by the Crown Prosecution Service ) for the Respondent Hearing date: 19 April 2018 - - - - - - - - - - - - - - - - - - - - - Judgment Approved Lord Justice Leggatt (giving the judgment of the court): 1. The appellant company operates a slaughterhouse and cutting plant for sheep. It appeals against its conviction of an offence under regulation 17(1) of the Transmissible Spongiform Encephalopathies (England) Regulations 2010 (SI 2010/801) of failing to give an inspector assistance required to take samples. Background 2. The European Parliament and Council of the European Union have enacted a regulation which lays down rules for the prevention, control and eradication of certain transmissible spongiform encephalopathies (TSEs). The full title of the regulation is Regulation (EC) No 999/2001 of the European Parliament and of the Council of 22 May 2001, but we will refer to it for short as the “EU TSE Regulation”. TSEs are a group of infectious diseases which affect the nervous system (including the brain) of many animals. The best known of these diseases is bovine spongiform encephalopathy (or BSE), popularly known as “mad cow disease”, which occurs in cattle; but there are other TSEs, such as scrapie, which affect sheep. 3. The EU TSE Regulation imposes obligations on member states which include, at article 6, an obligation on each member state to “carry out an annual monitoring programme for TSEs based on active and passive surveillance in accordance with Annex III”. Annex III, Chapter A, Part II, deals with monitoring in “ovine and caprine animals” – better known as sheep and goats – and contains certain rules to which we will return. 4. It is matter for each member state to make such provision in its own national law as is necessary to comply with and enforce the EU TSE Regulation. In the UK, statutory regulations have been made for this purpose. Those applicable in England are the Transmissible Spongiform Encephalopathies (England) Regulations 2010, which we will refer to simply as “the Regulations”. 5. Regulation 12(1) of the Regulations gives the Secretary of State the power to appoint inspectors “for the purposes of enforcing these Regulations”. Regulation 14 confers on inspectors various powers, which include at (1)(f) a power to “take any samples”. Regulation 17(b) provides that a person is guilty of an offence if that person: “without reasonable cause, fails to give to an inspector acting under these Regulations any assistance or information or to provide any facilities that the inspector may reasonably require that person to give or provide for the performance of the inspector’s functions under these Regulations;” Pursuant to regulation 18, a person convicted of such an offence on indictment is liable to a fine or to imprisonment to a term not exceeding two years (or both). 6. It is of such an offence that the appellant company was convicted on indictment at Derby Crown Court on 5 May 2017. The particulars of the offence charged were that between 25 September 2014 and 29 January 2016 the company, without reasonable cause, failed to give an inspector the assistance that he required in order to take samples. The company was prosecuted by the Crown Prosecution Service, on behalf of the Department of the Environment, Food and Rural Affairs (DEFRA), the government department responsible for enforcing the Regulations. DEFRA’s TSE monitoring programme 7. DEFRA conducts a monitoring programme for TSEs in sheep each year which involves taking samples from the brain tissue of between 5,000 and 10,000 healthy animals aged over 18 months when they are slaughtered for human consumption and testing the samples for TSEs. The approach taken by DEFRA has been to obtain and analyse data recording the number of sheep slaughtered each month and to identify those slaughterhouses which had the highest throughputs in the previous calendar year. Subject to ensuring that the monitoring programme includes at least one plant in Wales and one in Scotland, only slaughterhouses which had throughputs above a certain level are required to provide samples for testing. In 2014, the cut-off point was 39,000 animals; the slaughterhouses with throughputs above this cut-off point accounted for over 80% of the total number of sheep slaughtered in Great Britain for human consumption in the previous year. 8. The appellant company was first selected to provide samples for testing in 2004 and participated in DEFRA’s TSE monitoring programme every year thereafter until 2014. From May 2014 onwards, however, the company refused to make samples available for testing. Its objections were based on what it claims was the excessive financial burden of compliance and the fact that, in its view, this burden is not spread fairly amongst slaughterhouses because samples are only required from those with the highest throughputs. In addition, the company has complained about the time taken for test results to be returned. Until a sample has been tested and a negative result obtained, the animal from which the sample was taken cannot be sent to market and this delay is said to have caused loss to the appellant’s business because the weight of the carcass reduces with time, as does its shelf-life, making it less valuable. In a witness statement made for the purpose of the Crown Court proceedings the appellant’s General Plant Manager has estimated that the weekly loss sustained by the company when it carries out TSE sampling is £472.50 a week, which equates to over £24,500 a year. This estimate assumes that the test results are returned in time to send the carcass to market on the day after slaughter. On occasions when test results are not returned in time to achieve this, the loss is greater. The Crown Court proceedings 9. When the prosecution was brought, the company sought a preliminary ruling on certain legal issues. In particular, it argued that the facts alleged did not amount to an offence within the scope of the Regulations; that the way in which DEFRA had sought to implement its TSE monitoring programme for sheep was unlawful; and that the relevant inspector did not have authority under the terms of his appointment to require the company to participate in the programme. On 12 January 2017 His Honour Judge Egbuna gave a detailed written ruling in which he rejected the company’s arguments. Following that decision, the company pleaded guilty to the charge. In doing so, it submitted a written plea which stated that the company expressly reserved the right to seek permission from the Court of Appeal to appeal against conviction and the judge’s legal ruling. When the guilty plea was entered on 5 May 2017, the judge asked for it to be noted that he did not agree with the written plea. He observed that the company was not, as a consequence of his ruling, prevented from advancing a defence before the jury because there was a potential defence that the company had “reasonable cause” to act as it did which could have been aired before the jury. 10. When sentence was passed on 22 May 2017, the company was fined £7,000 and ordered to pay prosecution costs in a sum of £5,770.75. 11. The company applied for permission to appeal against its conviction. Permission was refused by the single judge but was granted when the application was renewed orally before the full court. The plea of guilty 12. The single judge considered that the company had no right to appeal against its conviction because it had pleaded guilty to the offence. At the hearing of the appeal the respondent did not seek to support that view; but, as this was the main basis on which permission to appeal was initially refused, we will explain why we are satisfied that the company’s guilty plea is not a bar to an appeal. 13. In R v Asiedu [2015] EWCA Crim 714 , at para 19, Lord Hughes (giving the judgment of this court) referred to the general rule that, once a defendant has admitted facts which constitute the offence charged by an unambiguous and deliberately intended plea of guilty, there cannot then be an appeal against his conviction. Lord Hughes explained that this is: “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.” Lord Hughes went on to say (at para 20) that it does not follow that a plea of guilty is always a bar to the quashing of a conviction. Leaving aside equivocal or unintended pleas, he identified two principal cases in which it is not. He explained that 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.” 14. Lord Hughes derived that distinction from R v Chalkley [1998] QB 848, where defendants charged with conspiracy to rob argued that certain evidence relied on by the prosecution should be excluded under section 78 of the Police and Criminal Evidence Act 1984. When the judge rejected that application, they pleaded guilty and explicitly admitted the conspiracy which was charged. The Court of Appeal held that the defendants’ appeals against their convictions failed because, in circumstances where they intended to admit and had admitted their guilt, their convictions were safe. Auld LJ said (at p864): “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 circumstances would normally be regarded as an acknowledgment of the truth of the facts constituting the offence charged.” 15. The second situation identified by Lord Hughes in the Asiedu case (at para 21) 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. Lord Hughes said that this will be true in those rare cases where the prosecution would be stayed on the grounds that it is offensive to justice to bring the defendant to trial. We think it clear that the present case is not a case of this kind, and therefore leave this second category to one side. 16. In refusing permission to appeal, the single judge took the view that this case also does not come within the first category referred to by Lord Hughes. That was because in the Crown Court the judge’s preliminary ruling on the law still left it open to the company to defend the case before the jury on the basis that it had reasonable cause for failing to give the inspector the assistance he required in order to take samples. Hence the company was not compelled as a matter of law by the judge’s adverse ruling to plead guilty. There was still an arguable defence which the company could advance. 17. In their skeleton argument counsel for the appellant company suggested that, given the judge’s ruling, arguing a “reasonable cause” defence before the jury was not legally possible. They submitted that, once the judge rejected the company’s complaints about the way in which DEFRA implemented its monitoring programme and ruled that its approach was lawful, the company could not realistically rely on the same complaints to argue that it had reasonable cause not to assist the inspector. We do not accept this argument. Whether the request for assistance was unlawful is a different question from whether the company had reasonable cause to withhold assistance. The former question was one of law for the judge and the latter question would have been treated as one of fact for the jury. It is clear that the company was not compelled by the rejection of its legal arguments to abandon the attempt to persuade a jury that it had reasonable cause for failing to give assistance required by the inspector. It chose to do so. 18. This is not, however, a case of the same kind as Chalkley where the defendant, after unsuccessfully attempting to keep out evidence, admitted facts which – whether the judge’s ruling was right or wrong – constituted the offence charged. By tendering its guilty plea, the company admitted the facts alleged by the prosecution – that is, that without reasonable cause it failed to give an inspector the assistance that he required in order to take samples. But it expressly reserved the right to contend on appeal that, as a matter of law, those facts did not give rise to an offence. We can see no good reason why a defendant should not be allowed to follow such a course. It would hardly be in the public interest to require a defendant to contest at a trial facts which he is willing to admit, just so as to preserve the ability to appeal on a point of law which arises whether or not those facts are admitted. In the Asiedu case the Court of Appeal expressly recognised that, if the judge rules that as a matter of law, on facts agreed by the defendant, the offence charged has been committed, the defendant can plead guilty and challenge the adverse ruling by appeal. If the company in this case had admitted the absence of reasonable cause before the judge ruled on its legal arguments, this case would have fallen squarely within that category. It cannot make a difference in principle that the admission was made after the judge’s ruling was given. 19. The Court of Appeal in the Asiedu case was not directly concerned with a case of the present kind but, in our view, the situation in this case is analogous to the first situation referred to by Lord Hughes and similar reasoning applies. This is not a case in which an appellant is now, by challenging the conviction, by implication seeking to deny facts which have previously been admitted. The appellant is seeking only to argue that, on facts which it has admitted (once and for all), it is not as a matter of law guilty of the offence. If that argument is correct, the conviction is unsafe. The short point is that a conviction is unsafe if the facts admitted by the defendant do not in law amount to a criminal offence. 20. Turning then to the substantive grounds of appeal, these track the arguments which were rejected in the court below. Is there an obligation to assist an inspector in taking samples? 21. The appellant first contends that, under the Regulations, there was no legal obligation on the company to make samples available for testing when requested by an inspector to do so as part of DEFRA’s annual TSE monitoring programme for sheep and that, in these circumstances, failure to give an inspector such assistance is not within the scope of regulation 17(b) and does not constitute an offence in law. 22. Regulation 17(b), quoted earlier, applies only when the inspector who requires the assistance is “acting under these Regulations” and where the assistance is required for “the performance of the inspector’s functions under these Regulations”. What are the functions of an inspector under the Regulations? That question is answered by regulation 12, which identifies the purposes for which inspectors may be appointed as “the purposes of enforcing these Regulations”. It follows that a request for assistance made by an inspector only falls within regulation 17(b) if the request is made for the purpose of enforcing the Regulations. 23. In their skeleton argument for this appeal counsel for the respondent sought to resist this conclusion by submitting that, in regulation 12(1), the words “the Secretary of State … may appoint inspectors for the purposes of enforcing these Regulations” mean that the Secretary of State may appoint inspectors for the purposes of enforcing the Regulations and the EU TSE Regulation . Similarly, they argued that in regulation 17(b) the phrase “an inspector acting under these Regulations” means an inspector acting under the Regulations and the EU TSE Regulation . 24. In his oral submissions on behalf of the respondent Mr Wright QC did not seek to sustain this argument. He was wise not to do so, as it is obviously unsustainable. The phrase “these Regulations”, where it is used in any provision of the Regulations, can only reasonably be understood to refer to the Regulations in which the provision appears. Those are not the EU TSE Regulation, which is a different instrument. If confirmation is needed for that plain meaning, it is provided by regulation 1 which states: “These Regulations— (a) may be cited as the Transmissible Spongiform Encephalopathies (England) Regulations 2010; (b) apply in England; and (c) come into force on 6th April 2010.” In addition, regulation 2 (headed “Interpretation”) begins with the words “In these Regulations” and then sets out a series of definitions. One of those definitions is: “‘EU TSE Regulation’ means Regulation (EC) No 999/2001 of the European Parliament and of the Council laying down rules for the prevention, control and eradication of certain transmissible spongiform encephalopathies…” Regulation 2(2) states: “Expressions that are not defined in these Regulations and occur in the EU TSE Regulation have the same meaning in these Regulations as they have for the purposes of the EU TSE Regulation.” Regulation 6(1) states: “The Secretary of State must grant an approval, authorisation, licence or registration under these Regulations if the Secretary of State is satisfied that the provisions of the EU TSE Regulation and these Regulations will be complied with.” 25. All these (and other) provisions show very clearly that the phrase “these Regulations”, where it appears in the instrument, refers to the national Regulations in which the phrase appears and does not refer to Regulation (EC) No 999/2001 of the European Parliament and of the Council, for which the separate expression “EU TSE Regulation” is used. In those circumstances it is impossible to read the references in regulations 12(1) and 17(b) to “these Regulations” as encompassing the EU TSE Regulation. 26. Given that the only purposes for which inspectors may be appointed are the purposes of enforcing the Regulations, the next question is: what provision of the Regulations was the inspector enforcing in this case when he required the assistance of the appellant in order to take samples for TSE testing? The appellant submits that the answer to that question is none. That is because, when one looks in Schedule 2 to the Regulations which contains provisions for TSE monitoring, there is no provision which it can be said, even arguably, that an inspector is enforcing when requiring assistance from the occupier of a slaughterhouse in taking samples for testing as part of DEFRA’s TSE monitoring programme for sheep slaughtered for human consumption. 27. Most of Schedule 2 is concerned with bovine animals. The schedule contains a number of provisions regulating the slaughter, sampling and testing for TSEs of such animals. These include, at paragraph 8, an obligation on the occupier of a slaughterhouse in which a bovine animal is slaughtered for human consumption to take a sample from the animal’s brain stem for testing and arrange for the sample to be delivered to an approved testing laboratory. But there is no equivalent provision in relation to sheep. The only provision of Schedule 2 which says anything about monitoring for TSEs in sheep is paragraph 14. Paragraph 14(1) states: “In relation to any sheep or goats selected for sampling, the occupier of a slaughterhouse … must – (a) for the purposes of point 7(3) of Part II of Chapter A of Annex III to the EU TSE Regulation, retain the carcass and all parts of the body (including the blood and the hide) pending receipt of the test result…; and (b) in the event of a positive result, immediately dispose of the carcass and all parts of the body (including the blood and the hide) in accordance with point 7(4) of that Part.” That obligation only applies, however, where a particular animal has been selected for sampling and a sample taken. It does not apply to the earlier stage at which in this case the inspector was seeking assistance from the appellant. 28. In the Crown Court, the judge nevertheless held that the Regulations impose an obligation on a slaughterhouse operator to “comply with monitoring”. The nub of the judge’s reasoning is contained paragraphs 60 and 61 of his ruling, where he said that: “the [Regulations] contemplate and enact that a monitoring programme should be in place in respect to ovine animals. To give effect to the intention of Parliament as illustrated in the explanatory notes and Schedule 2 of the [Regulations] an obligation is created on a slaughterhouse operator to comply with the [Regulations]. If an obligation did not exist and the [Regulations] were limited to investigation and non-compliance it would run contrary to the intention of Parliament and the EU TSE Regulation. If the submissions advanced by the defence were correct the administration of the [Regulations] in respect of monitoring would be effectively otiose as any slaughterhouse operator could withdraw from sampling, which in my view would defeat the intention of Parliament. I conclude that the legislative words used confer on an inspector … the authority to obtain samples from a slaughterhouse. Furthermore, as set out within the Regulations and explanatory notes, a slaughterhouse operator who fails to comply with the taking of samples, which I consider on an analysis of the Regulations includes obligations on a slaughterhouse operator to comply with monitoring, is committing an offence under regulation 17.” 29. Nowhere in this passage, or elsewhere in the ruling, however, does the judge identify any specific provision of the Regulations which imposes the obligation on a slaughterhouse operator which he claims to discern from an analysis of the Regulations to comply with monitoring and the taking of samples. That is evidently because there is no such provision. 30. The judge referred to the explanatory note to the Regulations, which includes a statement that Schedule 2, paragraph 14, “provides for TSE sampling in sheep, goats and deer”. However, the explanatory note expressly states that it is “not part of the Regulations”. It has no legal force itself and at most could be used as an aid to interpret any language in Schedule 2, paragraph 14, which is ambiguous. It cannot be used to read into paragraph 14 a provision which is not actually to be found there. The judge also referred in general terms to Schedule 2, but the only reference in Schedule 2 to TSE monitoring of sheep is in paragraph 14 which (as just discussed) does not contain a relevant obligation. It is in these circumstances not sufficient to say that, if there were no obligation to comply with monitoring, any slaughterhouse operator could withdraw from sampling, which would defeat the intention of Parliament. It seems likely that the failure to include in the Regulations any provision which imposes such an obligation is an oversight on the part of the Secretary of State. But only the legislature has the power to repair that omission. It is not permissible for courts to fill gaps in legislation by creating obligations which do not otherwise exist. 31. In his well-focused oral submissions on behalf of the respondent, Mr Wright QC accepted that the Regulations do not impose a positive obligation on the occupier of a slaughterhouse to take a sample or arrange for a sample to be taken for TSE testing from the brain stem of any sheep slaughtered for human consumption. But he submitted that there is nevertheless a negative obligation not to obstruct or fail to assist an inspector who wishes to take such samples. Mr Wright took as his starting-point regulation 13(1), which gives inspectors a right to enter any premises “for the purpose of ensuring that these Regulations and the EU TSE Regulation are being complied with”. He submitted that, in view of the reference here to the EU TSE Regulation, the purposes for which an inspector is empowered by this provision to enter premises must include the purpose of ensuring compliance with the obligation imposed on the UK by the EU TSE Regulation to carry out an annual monitoring programme for TSEs in sheep slaughtered for human consumption. Mr Wright argued that an inspector who has entered premises for this purpose must then be entitled to exercise the power given to inspectors by regulation 14(1)(f) to “take any samples”. If then the occupier of the premises, without reasonable cause, fails to give to the inspector any assistance that the inspector has reasonably required the occupier to give for that purpose, the occupier is guilty of an offence under regulation 17(b). 32. In response to this argument, Mr Hockman QC submitted that, on the proper interpretation of regulation 13(1), the only purpose for which the right to enter premises may be exercised by an inspector is that of ensuring that the Regulations and the EU TSE Regulation are being complied with by the occupier of the premises . As the EU TSE Regulation does not impose any obligation directly on the occupier of any slaughterhouse, but only imposes obligations on member states, it is only for the purpose of ensuring that the national Regulations are being complied with that the right of entry can in practice be exercised. It seems to us that the use of the words “are being complied with” (our emphasis) supports this interpretation. These words suggest that the purpose for which the right of entry is exercised cannot be that of ensuring that the UK complies with any obligation imposed on the UK and can only be the purpose of ensuring that one or more obligations contained in the Regulations or the EU TSE Regulation are already being complied with by somebody else. It is true that on this interpretation the reference to the EU TSE Regulation is otiose. But that must be the case in any event since, pursuant to regulation 12, the only purposes for which inspectors may be appointed are the purposes of enforcing the Regulations and it is only therefore for such purposes that inspectors may exercise the power of entry given to them in regulation 13. 33. Furthermore, even if regulation 13(1) can be construed in the way contended for by the respondent, this does not overcome the problem for the respondent’s case that the powers conferred on inspectors by regulation 14, which include the power to take any samples, can only be exercised for the purposes for which the inspector is appointed – that is to say, the purposes of enforcing the Regulations. Nor does it overcome the fundamental problem that it is only an offence under regulation 17(b) to fail to give assistance to an inspector where the inspector is “acting under these Regulations” and the assistance is required “for the performance of the inspector’s functions under the Regulations”. True it is that the Regulations include regulation 13(1), which in turn refers to the EU TSE Regulation. But regulation 13(1) only gives an inspector a right to enter premises. It does not create an obligation which an inspector is enforcing when he or she requests assistance from the occupier of a slaughterhouse with the taking of samples. An inspector who requests such assistance is not asking to be provided with samples for the purpose of enforcing a right of entry to any premises. The purpose of the request is to obtain samples to test whether the sheep from which the samples were taken were infected with a TSE. Regulation 13 does not impose any obligation on the occupier of a slaughterhouse to assist with the taking of samples for the purpose of such testing. Nor for that matter does the EU TSE Regulation which, as discussed, only imposes obligations on member states and not on individual operators. 34. As there is no provision of the Regulations which an inspector can be said to be enforcing when requiring the occupier of a slaughterhouse to assist in the taking of samples for testing, it is not an offence for the occupier to fail to provide such assistance. 35. We would add that it is a salutary principle of the law of this country, and an important one, that a person is not to be prosecuted or exposed to criminal penalties except on clear legal authority: see e.g. Dorset County Council v House [2010] EWCA Crim 2270 ; [2011] 1 WLR 727 ; Bennion on Statutory Interpretation (6 th Edn, 2013) Part XVII, s271. A corollary of that principle is that statutory provisions which create criminal offences should be strictly construed: see e.g. Tuck & Sons v Priester (1887) 19 QBD 629 , 649; R v Allen [1985] AC 1029 , 1034; Bogdanic v Secretary of State for the Home Department [2014] EWHC 2872 (QB) , paras 47-48. In this case, however, the appellant has no need to invoke that principle. In our view, the language of the Regulations is simply not capable of being interpreted as imposing an obligation on a slaughterhouse operator to comply with a request from an inspector to assist in the taking of samples from sheep slaughtered for human consumption as part of a programme for TSE monitoring. It follows that the facts relied on by the prosecution and admitted by the appellant do not constitute a criminal offence. The inspectors’ powers 36. The company’s first ground of appeal therefore succeeds. It is closely connected with the third ground of appeal, which in our view is also well-founded. The argument pursued by that ground is that the inspector in this case had no power to require the appellant to provide assistance in taking samples from sheep slaughtered for human consumption. That follows from the conclusion already reached. As discussed, the only purposes for which inspectors may be appointed under regulation 12 are the purposes of enforcing the Regulations. As the Regulations make no provision for any sampling or monitoring for TSEs of sheep slaughtered for human consumption, enforcing compliance with a monitoring programme is outside the functions which inspectors may be appointed to perform. 37. A further and separate point was taken by the appellant regarding the terms of appointment of inspectors. The relevant appointment letter, which was dated 22 April 2013 and signed on behalf of the Secretary of State, said: “Pursuant to regulation 12(1) of the Regulations, the persons in Annex A and Annex B are appointed as inspectors for the purposes of enforcement of the Regulations, in particular Schedule 2 thereof. The persons in Annex A are authorised, on behalf of the Secretary of State (DEFRA) as follows: • To approve the Required Method of Operation (“RMOP”) for, and the occupier of, a slaughterhouse on behalf of the Secretary of State (DEFRA) in accordance with paragraph 12(1) and 12(3) of Schedule 2 of the Regulations; • To amend and suspend an RMOP on behalf of the Secretary of State (DEFRA) as provided for in regulation 8 of the Regulations; • To revoke an RMOP approval for a slaughterhouse as provided for in regulation 9 of the Regulations; • To grant a derogation in writing as laid down in paragraph 13(5) of Schedule 2 of the Regulations. The persons in both Annex A and Annex B are authorised, on behalf of the Secretary of State (DEFRA) as follows: [Two more matters are then listed in bullet points] …” The inspector who dealt with the appellant was one of the persons listed in Annex A but not Annex B. 38. On behalf of the appellant Mr Hockman QC submitted that the appointment letter should be read in the context of regulation 12(3), which states that the appointment of an inspector may be limited to powers and duties specified in the appointment. He argued that the natural reading of the letter is that the powers and duties of the inspectors appointed by it are limited to the particular matters specified in the bullet points in the letter. All those matters relate to bovine animals and none of them relates to any TSE monitoring or sampling of sheep. Mr Hockman further submitted that it is irrational to interpret the first paragraph of the letter as appointing inspectors to exercise all the functions for which inspectors may be appointed under the Regulations without limitation since, if that were the intention, the bullet points would have been entirely superfluous. 39. It is hard to think of any reason why DEFRA would wish to restrict the role of all the inspectors whom it appoints to dealing with a handful of particular matters, being those specified in the bullet points in the letter, rather than giving inspectors a wider mandate to enforce the Regulations generally, as regulation 12 envisages and permits. Moreover, if the intention were to restrict the role of the inspectors in that way for some reason, one would expect the letter simply to say that the inspectors are appointed for the limited purposes of exercising the powers specified in the bullet points, rather than appearing in the first paragraph to give the inspectors a general enforcement role, only then to restrict it drastically by what follows. 40. In fact, as Mr Wright QC pointed out, when consideration is given to the particular provisions of the Regulations referred to in the bullet points, it can be seen that the first paragraph of the letter and the subsequent paragraphs perform different functions and that the bullet points are not superfluous. The first paragraph appoints the persons named in Annex A and Annex B as inspectors and does so for the purposes of enforcement of the Regulations, pursuant to regulation 12. The subsequent paragraphs then give the inspectors authority which they require to act on behalf of the Secretary of State in relation to various matters. So, to take the first bullet point as an example, paragraph 12(1) and 12(3) of Schedule 2 of the Regulations provide: “(1) It is an offence for the occupier to use a slaughterhouse to slaughter for human consumption a bovine animal that, in accordance with point 2 of Part I of Chapter A of Annex III to the EU TSE Regulation, requires BSE testing at slaughter, unless the Secretary of State has approved the Required Method of Operation (“RMOP”) for that slaughterhouse and that occupier. … (3) The Secretary of State must approve the RMOP if satisfied that all the requirements of the EU TSE Regulation and these Regulations will be complied with …” Simply appointing an inspector for the purposes of enforcement of the Regulations would not confer on the inspector authority to approve the RMOP for a slaughterhouse, and the occupier of that slaughterhouse, on behalf of the Secretary of State; or at the very least it would be open to argument that the inspector did not have such authority if it was not expressly conferred by the appointment letter. 41. The same point applies to the authorisations given in each of the other bullet points in the letter. Each of the bullet points refers to a provision of the Regulations which requires or empowers the Secretary of State to do something – such as to grant or revoke an approval or to give or receive a notification. We agree with Mr Wright QC that, properly understood, the function of the bullet points is to give inspectors the authority which they need to act on behalf of the Secretary of State in relation to the specified matters. We accordingly reject the appellant’s argument that this part of the letter limits the provisions of the Regulations which the inspectors are appointed by the opening paragraph to enforce. 42. This conclusion, however, simply brings one back to the fundamental problem that the Regulations, and in particular Schedule 2 which deals with TSE monitoring, fail to make provision for the occupier of a slaughterhouse to assist in taking samples for TSE monitoring from sheep slaughtered for human consumption. Alleged unlawfulness of the monitoring programme 43. As we are allowing the appeal on the grounds already discussed, it is not strictly necessary for us to deal with the company’s second ground of appeal. But since we have received full submissions on this issue, which could be relevant in a future case, we will indicate the reasons why we reject the argument pursued by this ground. 44. The essence of the appellant’s argument is that DEFRA acted unlawfully and contrary to the EU TSE Regulation in the way that it selected slaughterhouses to provide samples for its TSE monitoring programme, with the consequence that the act of requiring the appellant company to do so was unlawful and invalid. For the purpose of this argument it must be assumed that, contrary to our earlier conclusions, the Regulations do impose an obligation on a slaughterhouse operator to assist in the taking of samples as part of a TSE monitoring programme for sheep slaughtered for human consumption. 45. As mentioned in paragraph 3 above, the obligations imposed on member states to monitor sheep for TSEs are set out in Annex III, Chapter A, Part II of the EU TSE Regulation. Point 2(a) of that part of the EU TSE Regulation states: “Member States in which the population of ewes and ewe lambs put to the ram exceeds 750,000 animals shall test, in accordance with the sampling rules set out in point 4, a minimum annual sample of 10,000 ovine animals slaughtered for human consumption;” We understand that the relevant population of ewes and ewe lambs in the UK has exceeded 750,000 animals at all relevant times, so that the UK has been required to carry out testing in accordance with the sampling rules set out in point 4 of Annex III, Chapter A, Part II of the EU TSE Regulation. (A derogation at point 2(c) permits up to 50% of the minimum sample size to be replaced by testing animals killed for a purpose other than human consumption.) 46. The sampling rules set out in point 4 include the following: “The sample selection shall be designed with a view to avoid the over-representation of any group as regards the origin, age, breed, production type or any other characteristic. The sampling shall be representative for each region and season. Multiple sampling in the same flock shall be avoided, wherever possible. Member States shall aim their monitoring programmes to achieve, wherever possible, that in successive sampling years all officially registered holdings with more than 100 animals and where TSE cases have never been detected are subject to TSE testing.” 47. There is no definition in the EU TSE Regulation of “officially registered holdings”, but the term “holding” is defined in article 3(1)(i) as “any place in which animals covered by this Regulation are held, kept, bred, handled or shown to the public”. This definition plainly includes any slaughterhouse, being a place in which animals covered by the Regulation are held and handled. The appellant submits that the sampling rules quoted above accordingly require the UK to aim to include in its monitoring programme in respect of sheep slaughtered for human consumption all approved slaughterhouses with a throughput of more than 100 animals a year and where TSE cases have never been detected. It is common ground that, if correct, this in practice means that all approved slaughterhouses must be included in the programme, as it is difficult to envisage a slaughterhouse with a throughput of less than 100 animals a year. 48. As described earlier, DEFRA has not sought to obtain samples for testing from all approved slaughterhouses but only from those with the highest throughputs. This resulted in 2014 and 2015 in only 14 and 15, respectively, out of a total of around 222 slaughterhouses in Great Britain being selected for testing. The appellant argues that limiting the monitoring programme in this way is contrary to the EU TSE Regulation and is also unfair because it imposes the financial burden of providing samples for testing on only a handful of operators, instead of spreading it across the entire industry. Counsel for the appellant submitted that this infringes the principle of equality which is a fundamental principle of EU law (now codified in articles 20 and 21 of the EU Charter of Fundamental Rights) by discriminating between operators without an objective justification for doing so. 49. The primary argument made by Mr Shaw, who made submissions for the respondent on this issue, is that the phrase “officially registered holdings with more than 100 animals” actually means officially registered holdings with a resident flock of more than 100 animals, i.e. farms with more than 100 sheep, and hence does not apply to slaughterhouses. In support of this contention, Mr Shaw emphasised that the relevant sampling rule does not refer to “throughput” or “animals per year” but simply to holdings “with more than 100 animals”. He submitted that this wording indicates that the rule is concerned with agricultural holdings with resident flocks of more than 100 animals. 50. The respondent further maintained that DEFRA’s approach to the selection of slaughterhouses for TSE testing is lawful and proportionate. It was pointed out that the costs of taking and analysing the samples are not charged to slaughterhouse operators and that any financial impact on the operator is limited to any loss resulting from the requirement to retain carcasses until the test results are returned. Counsel for the respondent submitted that, insofar as this constitutes a burden, it is fair that it should be borne by the largest operators who (as mentioned earlier) account for more than 80% of all animals slaughtered. In addition, it was argued that DEFRA is entitled to take into account considerations of efficiency and the fact that including smaller slaughterhouses in the monitoring programme would increase the cost to the state of administering the programme. 51. For the appellant, Mr Hockman QC responded that the sampling rules set out in point 4 must be directed at slaughterhouses, as a sample can only be taken for testing once an animal is dead and all animals slaughtered for human consumption must be slaughtered at an approved slaughterhouse. Mr Hockman further submitted that the sampling rules in point 4 must be read in the light of article 6 of the EU TSE Regulation, which requires the member state to carry out an annual monitoring programme in accordance with Annex III, and the requirement in Annex III, Chapter A, Part II, point 2(a) to test a minimum annual sample. He submitted that, read in that light, the requirement in point 4 to aim to include in the monitoring programme all officially registered holdings with more than 100 animals must be interpreted as applying to all approved slaughterhouses which handle more than 100 animals during the relevant sampling year. In other words, all those slaughterhouses with a throughput of more than 100 animals in a year are within the scope of the rule. 52. Mr Hockman QC sought to argue that the phrase “holdings with more than 100 animals” where it appears in point 4 refers only to slaughterhouses at which more than 100 sheep a year are slaughtered and does not even include farms with a flock of more than 100 sheep. That argument is plainly untenable, however, given that the sampling rules in point 4 – as the heading of point 4 explicitly states – apply not only to the animals referred to in point 2 – that is to say, sheep and goats slaughtered for human consumption – but also to the animals referred to in point 3, which relates to animals not slaughtered for human consumption. For the purpose of monitoring animals not slaughtered for human consumption, it would make no sense to aim the monitoring programme at covering slaughterhouses. 53. Point 3 is in the following terms: “ Monitoring in ovine and caprine animals not slaughtered for human consumption Member States shall test, in accordance with the sampling rules set out in point 4 and the minimum sample sizes indicated in Table A and Table B, ovine and caprine animals which have died or been killed, but which were not: — killed in the framework of a disease eradication campaign, or — slaughtered for human consumption.” It would be completely counter-productive, and would make no sense at all, for a member state to design its programme for TSE monitoring in animals which have died or been killed but which were not slaughtered for human consumption so as only to cover slaughterhouses, which by definition are places where animals are slaughtered for human consumption: see the definition of a slaughterhouse in regulation 2(1) and paragraph 1(16) of Annex I to Regulation (EC) No 853/2004. Indeed, it would make no sense to aim to include any slaughterhouses in such a programme – let alone every slaughterhouse in the country with a throughput of more than 100 animals a year. By contrast, it makes obvious sense to aim the monitoring programme to cover as many farms which might be harbouring infected animals as possible, subject to an exemption for holdings where the number of animals is so small that it would be impractical or unduly burdensome to include them in the programme. That this is the intention of the sampling rules is confirmed by the fact that they include a rule which allows member states to exclude from sampling “remote areas with a low animal density, where no collection of dead animals is organised.” That exclusion is clearly directed at agricultural holdings and to the taking of samples from animals which die at such holdings. The exclusion is not apt to apply to slaughterhouses, since the animal density in the area of a slaughterhouse is irrelevant to its throughput and organising the collection of dead animals from a slaughterhouse is a necessary part of its business. 54. Plainly, counsel for the appellant are correct that, for the monitoring required by point 2, the samples must be taken at slaughterhouses. But it does not follow that the requirement to aim the monitoring programme to cover all “holdings with more than 100 animals” must include slaughterhouses among those holdings. There is no reason in principle why DEFRA cannot design a programme to monitor sheep slaughtered for human consumption by taking samples at slaughterhouses from animals emanating from all farms with a resident flock of more than 100 animals. Indeed, we think it clear that this is what the sampling rules require, “wherever possible”. In principle, the phrase “all officially registered holdings with more than 100 animals”, where it appears in point 4, can only have a single meaning. The words cannot mean one thing when sampling is being carried out pursuant to point 3 but yet mean something different when sampling is being carried out pursuant to point 2. Since, for the reasons given, the only interpretation of the phrase which makes sense in the context of the sampling of animals not slaughtered for human consumption required by point 3 is the respondent’s interpretation, the phrase must also have that meaning in the context of the sampling of animals slaughtered for human consumption required by point 2. 55. We accordingly consider that, when the sampling rules set out at point 4 are read as a whole and together with the other provisions for monitoring in ovine and caprine animals in Annex III, Chapter A, Part II of the EU TSE Regulation, it is apparent that the aim is to achieve a representative sample which covers as many flocks of sheep (and goats) as reasonably possible. Consistently with this, the interpretation which in our view makes the best sense of the phrase “holdings with more than 100 animals” is that for which the respondent contends – namely, that it refers only to agricultural holdings with a resident flock of more than 100 animals and not to slaughterhouses which have a throughput of more than 100 animals during the year. 56. Mr Hockman QC made a further submission that there is no evidence to suggest that DEFRA has designed its monitoring programme with the aim of including animals from all farms with a resident flock of more than 100 sheep. Nor, he submitted, is there any evidence to suggest that DEFRA has sought to design the sample selection with a view to ensuring that it is representative for each region and season and avoids the over-representation of any group as regards the origin, age, breed, production type or “any other characteristic”, as the sampling rules in point 4 require. Rather, the evidence indicates that (apart from ensuring that the programme includes at least one plant in Wales and one in Scotland) the only criterion used by DEFRA in designing its annual monitoring programme has been to identify slaughterhouses with a throughput above a certain level, wherever they happen to be situated, and to require them each to provide a stipulated number of samples every week. 57. We agree that the evidence served by the prosecution in this case does not show that DEFRA has designed its monitoring programme in a way which satisfies the sampling rules contained in the EU TSE Regulation. Even if the appellant is right, however, that the monitoring programme did not comply with those rules – indeed, even if (contrary to our view) the appellant is right that DEFRA should have included all slaughterhouses in the programme – we do not accept that this has the consequence that it was unlawful to require the appellant to participate. 58. Counsel for the appellant submitted that this conclusion follows from the principle established by the decision of the House of Lords in Boddington v British Transport Police [1999] 2 AC 143 and of this court in R v Searby [2003] EWCA Crim 190 ; [2003] 3 CMLR 15 . Those cases establish that a defendant in criminal proceedings is entitled to raise in its defence a contention that subordinate legislation or an administrative act undertaken pursuant to it was unlawful and invalid, whether because the subordinate legislation is ultra vires (as in Boddington ) or because it is incompatible with EU law (as in Searby ). 59. The principle established by those cases is not in doubt. The consequence of the appellant’s argument on this ground of appeal, however, is not that it was unlawful for the national authority to require the appellant to provide samples for TSE testing. On the contrary, on the appellant’s case as to the meaning of the sampling rules, DEFRA was bound to require the appellant to provide samples for TSE testing. The unlawfulness alleged by the appellant consists in failing to require other, smaller slaughterhouses to provide such samples as well. Mr Hockman argued that, if DEFRA had included all slaughterhouses with a throughput of more than 100 animals a year in its monitoring programme, the appellant company would have been required to provide fewer samples. Even if that would as a matter of fact be so, however, DEFRA would not have been legally obliged to require fewer samples from the appellant: DEFRA could, for example, consistently with the EU TSE Regulation and without breaching the principle of equality, have increased the total number of samples collected from sheep slaughtered for human consumption and have required the appellant to provide the same number of samples, or even more samples, than it was in fact required to provide. In any event an argument that it would, or even that it should, have been required to provide fewer samples does not assist the appellant, since the position that the appellant took at the time was not that it was only willing to provide a smaller number of samples for TSE testing than the number requested by DEFRA but that it refused to provide any samples at all. 60. In short, the unlawfulness alleged by the appellant consists in failing to require other slaughterhouses to participate in the monitoring programme. That complaint, even if well-founded, did not make it unlawful to require the appellant to take part. We therefore reject this ground of appeal. Conclusion 61. The refusal of the appellant company to assist DEFRA to comply with the UK’s obligations under European law in respect of TSE monitoring in sheep may be lamented. But we are satisfied that the company had no legal obligation to cooperate and that its failure to do so did not constitute a criminal offence. Accordingly, for the reasons given, the appeal is allowed and the company’s conviction will be quashed.

2018_04_26-4279.xml

conviction

allowed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/909/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/909

5bcefd1ee38204ddcd67281dce557898f7667d14d230da34f53ffb02ca7052d8

[2019] EWCA Crim 2057

EWCA_Crim_2057

crown_court

[2019] EWCA Crim 2057 No: 2019 02249 A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday 12 November 2019 B e f o r e : LADY JUSTICE NICOLA DAVIES DBE MR JUSTICE JACOBS HIS HONOUR JUDGE LODDER QC R E G I N A v KEATON BAULD 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

[2019] EWCA Crim 2057 No: 2019 02249 A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday 12 November 2019 B e f o r e : LADY JUSTICE NICOLA DAVIES DBE MR JUSTICE JACOBS HIS HONOUR JUDGE LODDER QC R E G I N A v KEATON BAULD 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 Simon Burch appeared on behalf of the Appellant J U D G M E N T (Draft for approval) LADY JUSTICE NICOLA DAVIES : 1. On 7 June 2019, in the Crown Court at Stafford, the appellant changed his pleas to ones of guilty and was sentenced as follows: • Count 1, burglary, 30 months’ imprisonment; • Count 2, burglary, 30 months’ imprisonment to run concurrently to count 1; • Count 3, theft, 15 months’ imprisonment to run concurrently to count 1. • No evidence was offered in respect of counts 4 and 5. The 30 months’ imprisonment was to run concurrently to an existing sentence of imprisonment being served by the appellant. 2. At the time of the commission of the index offence of burglary (23 January 2018) the appellant had been convicted of one previous domestic burglary for which sentence had been passed on 17 May 2014. Although he committed a further domestic burglary on 19 January 2018, he was not convicted of that offence until 2 March 2018, sentence being imposed on 15 March 2018. The index offence was chronologically the third domestic burglary of which the appellant was convicted, but at the time of its commission he had been convicted of one previous offence in 2014 and was accordingly not subject to the provisions of section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 . 3. Leave has been granted by the single judge, who requested confirmation of the halfway points of sentence imposed upon the appellant. 4. Following the sentence in March 2018, the halfway release date was 14 April 2019. The release date became 30 July 2019 following a sentence of 7 months’ imprisonment imposed for an offence of affray in October 2018. The sentences imposed at the Stafford Crown Court in June 2019 resulted in a release date of 20 August 2020. The appellant was entitled to 16 days’ credit for time spent on remand. 5. The index offences were committed on 23 January 2018. However, it was not until 2019 that the appellant was charged with these offences. It would appear that his involvement became known to the police following investigations at a time when he was a serving prisoner. Counts 1 and 2 relate to domestic burglaries in Tamworth. Count 1 involved the breaking of a lock on a patio door, as a result of which an iPad, a wedding bracelet, two watches, a perfume set, a handbag, sunglasses and a quantity of cash (total value unknown) were stolen. Count 2 involved damage to the front door of the property, which was vacant as the family were out. A set of car keys was stolen from a drawer in the hallway. The car (a Mercedes) was the subject of count 3. It had a value of £28,500. These offences were committed four days after the offence for which he was sentenced in March 2018. 6. The appellant was aged 24 at the date of the June 2019 sentence. He has been the subject of eleven court appearances for nineteen offences between 2008 and 2018. 7. In sentencing the appellant, the judge accepted that the appropriate categorisation within the Sentencing Council Guideline was Category 2: a starting point of 12 months custody, a range of high level community order to 2 years’ custody. The judge indicated that her starting point after trial would be a sentence in the order of 40 months, to which she applied a 15% discount for the guilty pleas. She took account of the principle of totality and (it would appear) some other unidentified mitigation and reduced the sentence to one of 30 months’ imprisonment in respect of counts 1 and 2, with a commencement date of 7 June 2019. 8. The appellant submits that insufficient allowance was made for the principle of totality; that the starting point taken by the judge was too high and out of line with the Sentencing Council Guideline. 9. In granting leave, the single judge noted that by imposing the sentence in the manner in which the judge did an effective total custodial term of nearly 5 years after credit for pleas was passed for three dwelling-house burglaries and associated theft of a vehicle. The single judge considered that the overall term imposed in respect of the burglary committed on 19 January 2018 and the two further burglaries committed on 23 January 2018, including the theft of the car from the driveway, is arguably manifestly excessive by reference to the relevant Guideline. 10. We agree. We accept that insufficient allowance was made for the principle of totality in order to reflect an effective custodial term relating to the three burglaries and theft of the car in January 2018. Accordingly, we quash the sentences in respect of counts 1, 2 and 3, and substitute for them a sentence of 12 months’ imprisonment on each count to run concurrently with each other and concurrent to the existing sentences of imprisonment. The effective date of the commencement of these sentences is 7 June 2019. To this extent the appeal is allowed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: Rcj@epiqglobal.co.uk

2019_11_12-4761.xml

allowed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/2057/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/2057

da0ca59cea286310096f5221334f802a289666d2eebb9fa5a47206402fb3cd6e

[2024] EWCA Crim 322

EWCA_Crim_322

crown_court

WARNING: reporting restrictions may apply to the contents transcribed in this document: as stated in paragraph 3 of the judgment, the appellant is entitled to anonymity and must only be referred to as “AUS”. 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 a

WARNING: reporting restrictions may apply to the contents transcribed in this document: as stated in paragraph 3 of the judgment, the appellant is entitled to anonymity and must only be referred to as “AUS”. 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: 2022/03800/B1 [2024] EWCA Crim 322 Royal Courts of Justice The Strand London WC2A 2LL Wednesday 13 th March 2024 B e f o r e: THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION ( Lord Justice Holroyde ) MR JUSTICE GOOSE MRS JUSTICE DIAS DBE ____________________ R E X - v – “A U S” ____________________ Computer Aided Transcript 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) ____________________ Pippa Woodrow (instructed by Colin Gregory of Bhatt Murphy Solicitors ) for the Applicant Andrew Johnson (instructed by CPS Appeals and Review Unit ) for the Respondent ____________________ J U D G M E N T ( Approved ) ____________________ Wednesday 13 th March 2024 LORD JUSTICE HOLROYDE: 1. On 25 th June 2010, in the Crown Court at Chelmsford, the applicant pleaded guilty to an offence of possession of a false identity document with intent, contrary to section 25(1) of the Identity Cards Act 2006. She was sentenced to 12 months' imprisonment. 2. She now applies for an extension of time of more than 12 years in which to apply for leave to appeal against her conviction on the ground that she was not advised that the statutory defence under section 31 of the Immigration and Asylum Act 1999 ("the section 31 defence") was available to her. Her application has been referred to the full court by the Registrar. 3. The court is asked to order that the applicant's name should be anonymised in any report of these proceedings. For that reason the case has been listed under the randomly chosen letters, AUS. The applicant was granted anonymity in immigration and asylum proceedings to which we shall refer, and the order in that regard of the First-tier Tribunal would plainly be undermined if this court were to take a different course. We are satisfied that it is necessary and appropriate in the circumstances of this case to depart from the important principle of open justice to the extent of granting anonymity and directing that the applicant be referred to as "AUS". 4. The court has been greatly assisted by the care with which this case has been prepared and presented. Miss Woodrow and those instructing her have been most assiduous and thorough in dealing with all aspects of the applicant's case. 5. On behalf of the respondent, Mr Johnson and those instructing him have been equally thorough and scrupulously fair. In the result, the respondent no longer opposes the application. 6. Agreement between the parties does not conclude the issue, because it remains for the court to decide the outcome of the application. It does, however, mean that we can address relevant matters more briefly than would otherwise have been the case. 7. We summarise the relevant facts, including matters which are contained in statements by the applicant and the solicitor now representing her. Those statements are the subject of an application to adduce fresh evidence, pursuant to section 23 of the Criminal Appeal Act 1968. 8. The applicant is a national of Somalia. She entered the United Kingdom via Stansted Airport on 14 th June 2010 carrying a Dutch identification card which had been provided to her by an agent. She said that she had come to the UK because her family had gone; her two sons, aged 12 and 14 had been killed in an attack on their home; and she wished to claim asylum. 9. In a screening interview on the following day, she acknowledged that she had passed through other countries, but said that she wished to claim asylum in the UK because other Somalis lived here. 10. It is now apparent that the applicant had paid to the agent all the money she possessed in order to leave Somalia where she had been the victim of domestic abuse and where she and her family had been caught up in civil unrest. The agent had taken her initially to Dubai, then to Belgium for one night, and then to Germany. After four days she flew to this country with two other men. The agent did not advise her of any possibility of claiming asylum in any of those other countries. 11. The applicant was represented by counsel at her appearance in the Crown Court, but she does not recall having any detailed discussion with him. She says that she was not advised that a statutory defence was or may be available to her. Had she been so advised, she says, she would not have pleaded guilty. 12. The applicant claimed asylum, but on 1 st July 2010 her claim was refused. An appeal to the First-tier Tribunal was dismissed. A deportation order was subsequently made against her, and her appeal against that order was dismissed. 13. Between 2010 and 2013 she made a number of human rights and protection claims, but all were unsuccessful. It appears that the fact that the applicant had given inconsistent accounts of her history counted heavily against her. 14. In 2018, solicitors representing the applicant in immigration proceedings obtained medical evidence in relation to scarring of her body, which was found to be consistent with her account of ill-treatment, including repeated burning with heated metal. The report also assessed her mental health. The author found the applicant to be suffering from severe depressive symptoms. 15. Later in 2018, the applicant applied to revoke the deportation order and made a fresh claim for asylum and leave to remain on human rights grounds. Those claims were refused by the Secretary of State for the Home department. The applicant gave Notice of Appeal to the First-tier Tribunal. 16. A further medical report in 2020 diagnosed a major depressive disorder, with current symptoms in the moderate to severe range, and post traumatic stress disorder. The author of the report attributed those findings to the cumulatively traumatic life events which the applicant had experienced in Somalia and opined, importantly, that the applicant's anxiety and depression would certainly have contributed to her difficulty in disclosing all aspects of her history in the course of her asylum claims, and could account for omissions and discrepancies in her accounts of her experiences. 17. On 17 th February 2021, the First-tier Tribunal allowed the applicant's appeal. The judge took into account the medical evidence and found that the applicant had been subject to abuse and violence in Somali, and would be at real risk of sexual or gender-based violence if returned. The Secretary of State unsuccessfully applied for permission to appeal against that decision. 18. On 15 th July 2021, the applicant was accorded refugee status. She was granted refugee leave to remain for five years, but was warned that she remained liable to deportation and that her case may be reviewed in the future. 19. After the grant of leave to remain, the applicant's immigration solicitors referred her to the specialist criminal solicitors who now represent her. The applicant says that it was only then that she received specific advice as to the section 31 defence, to which we now turn. 20. At the time of the applicant's entry into the UK, section 31 of the 1999 Act provided: " Defences based on Article 31(1) of the Refugee Convention (1) It is a defence for a refugee charged with an offence to which this section applies to show that, having come to the United Kingdom directly from a country where his life or freedom was threatened (within the meaning of the Refugee Convention), he — (a) presented himself to the authorities in the United Kingdom without delay; (b) showed good cause for his illegal entry or presence; and (c) made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom." (2) If, in coming from the country where his life or freedom was threatened, the refugee stopped in another country outside the United Kingdom, subsection (1) applies only if he shows that he could not reasonably have expected to be given protection under the Refugee Convention in that other country. (3) In England and Wales and Northern Ireland the offences to which this section applies are any offence, and any attempt to commit an offence, under — … (aa) section 25(1) or (5) of the Identity Cards Act 2006; … (6) 'Refugee' has the same meaning as it has for the purposes of the Refugee Convention. (7) If the Secretary of State has refused to grant a claim for asylum made by a person who claims that he has a defence under subsection (1), that person is to be taken not to be a refugee unless he shows that he is. …" 21. In R(Pepushi) v Crown Prosecution Service [2004] EWHC 798 (Admin) at [21], the High Court held that the terms of section 31 meant that the defence was only available to a refugee who stopped in another country if the refugee was able to show that he could not reasonably have been expected to be given protection under the Refugee Convention in that other country. 22. In May 2008, however, the House of Lords, in R v Asfaw [2008] UKHL 31, recognised that those who were fleeing from persecution may have to resort to deceptions such as the use of false travel documents, and held that the section 31 defence may be available for offences committed in the course of a flight from persecution "even after a short stopover in transit": see, in particular, the speech of Lord Bingham at [26]. 23. As this court confirmed in R v Ordu [2017] EWCA Crim 4, that decision of the House of Lords was a change of law in relation to the proper construction of the section 31 defence. The operation of the section 31 defence, and the effect of earlier case law, was explained as follows by Leveson LJ (as he then was) in R v Mateta [2013] EWCA Crim 1372; [2014] 1WLR 1516 at [21]: "To summarise, the main elements of the operation of this defence are as follows: i) The defendant must provide sufficient evidence in support of his claim to refugee status to raise the issue and thereafter the burden falls on the prosecution to prove to the criminal standard that he is not a refugee (section 31 Immigration and Asylum Act 1999 and Makuwa [26]) unless an application by the defendant for asylum has been refused by the Secretary of State, when the legal burden rests on him to establish on a balance of probabilities that he is a refugee (section 31(7) of the Asylum and Immigration Act 1999 and Sadighpour [38] – [40]). ii) If the Crown fails to disprove that the defendant was a refugee (or if the defendant proves on a balance of probabilities he is a refugee following the Secretary of State's refusal of his application for asylum), it then falls to a defendant to prove on the balance of probabilities that a) he did not stop in any country in transit to the United Kingdom for more than a short stopover (which, on the facts, was explicable, see (iv) below) or, alternatively, that he could not reasonably have expected to be given protection under the Refugee Convention in countries outside the United Kingdom in which he stopped; and, if so: b) he presented himself to the authorities in the UK 'without delay', unless (again, depending on the facts) it was explicable that he did not present himself to the authorities in the United Kingdom during a short stopover in this country when travelling through to the nation where he intended to claim asylum; c) he had good cause for his illegal entry or presence in the UK; and d) he made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom, unless (once again, depending on the facts) it was explicable that he did not present himself to the authorities in the United Kingdom during a short stopover in this country when travelling through to the nation where he intended to claim asylum. (section 31(1); Sadighpour [18] and [38] – [40]; Jaddi [16] and [30]). iii) The requirement that the claim for asylum must be made as soon as was reasonably practicable does not necessarily mean at the earliest possible moment ( Asfaw [16]; R v MA [9]). iv) It follows that the fact a refugee stopped in a third country in transit is not necessarily fatal and may be explicable: the refugee has some choice as to where he might properly claim asylum. The main touchstones by which exclusion from protection should be judged are the length of the stay in the intermediate country, the reasons for delaying there and whether or not the refugee sought or found protection de jure or de facto from the persecution from which he or she was seeking to escape ( Asfaw [26]; R v MA [9]). v) The requirement that the refugee demonstrates 'good cause' for his illegal entry or presence in the United Kingdom will be satisfied by him showing he was reasonably travelling on false papers (ex parte Adimi at 679 H)." 24. At [22] to [24] Leveson LJ went on to state the following principles: (a) Those representing defendants charged with possession of an identify document with intent are under a duty to advise them of a possible section 31 defence so that the defendant can make an informed decision whether to advance that defence. (b) This court can entertain an application for leave to appeal against conviction on the ground that a guilty plea was a nullity. (c) However, it is not sufficient for a defendant who has pleaded guilty merely to show that some of the advice he received was wrong, or that a possible defence was overlooked. The principles stated in R v Boal [1992] QB 591 is that this court will only intervene "most exceptionally" and only where the court "believes the defence would quite probably have succeeded and concludes therefore that a clear injustice has been done". (d) If the defendant's case has bee considered by the First-tier Tribunal, it is appropriate for this court to assess the prospects of a successful defence by reference to the tribunal's findings: see R v Sadighpour [2013] 1 WLR 2725. The Boal principle has recently been re-affirmed by this court in R v Tredget [2022] EWCA Crim 108. 25. Applying these principles to the present case, the respondent makes the following concessions: (1) At the time when the applicant pleaded guilty, the Secretary of State had not refused an asylum claim by her. She had provided sufficient evidence to raise the issue of whether she was entitled to refugee status. In those circumstances, and importantly, the burden was on the respondent to prove to the criminal standard that she was not a refugee. The respondent would not have been able to discharge that burden. (2) The applicant would then have been able to discharge the burden on her of establishing on the balance of probabilities: (a) that she could not reasonably have been expected to be given protection under the Refugee Convention in Dubai, since the United Arab Emirates is not a signatory to that Convention, and that her time in Belgium and Germany amounted to no more than short stopovers; (b) that she presented herself to the UK authorities without delay when she entered this country – this is so notwithstanding that she was using a false identification document; (c) that the circumstances in which she fled Somalia were as she has described them, and that accordingly she was reasonably using a false identification document and had good cause for her illegal entry. (3) If the applicant had raised the section 31 defence, it quite probably would have succeeded. (4) There is no evidence to undermine the applicant's statements that she was not advised of the section 31 defence at the time of her guilty plea. She could therefore show on the balance of probabilities that she was not properly advised. 26. In our judgment those concessions are properly made. It follows that the applicant is able to show that she did not receive the advice she should have received to the effect that she could advance a defence which would quite probably have succeeded. She has thereby suffered a clear injustice. She would not have pleaded guilty, served her sentence of imprisonment and suffered all the consequences of her conviction if she had been advised of the section 31 defence. The principles stated in Boal and re-affirmed in Tredget therefore apply to her case. 27. The issue of whether the court should grant the very long extension of time has been the subject of detailed written submissions on behalf of the applicant, which the respondent, after careful reflection, has accepted. The following considerations are, in our view, relevant. 28. First, we refer to familiar guiding principles. In R v Hughes [2009] EWCA Crim 841 at [20], the court stated that an extension would be granted only where there is good reason to give it, and ordinarily where the defendant will otherwise suffer significant injustice. In R v Thorsby [2015] EWCA Crim 1 at [13], it was said that this court will grant an extension of time 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 the public interest in the proceedings of the court generally, in particular in the finality of Crown Court judgments, the interests of other litigants, the efficient use of resources and good administration. However, the public interest embraces also, and in our view critically, the justice of the case and the liberty of the individual. …" 29. Secondly, the applicant has provided a comprehensive account of the reasons for the passage of so many years. For much of that time she was ignorant of the section 31 defence and ignorant of the possibility of an appeal. Although an appeal against conviction was mentioned at some stage by the solicitors representing her in her asylum claim, it is clear that they did not purport to give her any specialist advice and, understandably, waited until the successful conclusion of her asylum appal before referring her to her present solicitors. 30. Thirdly, the Supreme Court in R v Jogee [2016] UKSC 8 at [10] held that a conviction based on a faithful application of the law as it stood at the time can only be appealed by seeking exceptional leave to appeal out of time and that this court can only grant such leave if substantial injustice is shown. However, for the reasons we have indicated, this is not a case in which the applicant is relying on a change in the law. Rather she is relying on a failure to advise her as to the law as it had stood for two years before she appeared in the Crown Court. In such circumstances it is sufficient for the applicant to show that a refusal of the extension of time would cause her significant injustice: see R v Abdulahi [2021] EWCA Crim 1629. 31. Fourthly, we are satisfied that a refusal of the necessary extension of time and the consequent refusal of leave to appeal would cause significant injustice to the applicant. Her leave to remain is limited in time, and she remains liable to deportation on the basis of her conviction of this offence. The uncertainty of her position imposes many restrictions on her and gives rise to continuing stress and anxiety. We conclude that in this respect also the concession made by the respondent is a proper one. 32. For those reasons we receive the fresh evidence, we grant the necessary extension of time, we grant leave to appeal, we allow the appeal, and we quash the conviction. _______________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk ______________________________

2024_03_13-6091.xml

conviction

https://caselaw.nationalarchives.gov.uk/ewca/crim/2024/322/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2024/322

a68c9bcbf9815b62f93f9701d9ae144a78da2db0ad9e49a5887b609ddff01b92

[2022] EWCA Crim 1819

EWCA_Crim_1819

crown_court

WARNING: reporting restrictions apply to the contents transcribed in this document, as stated in para 2 of the judgment, because the case concerned sexual offences and involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions

WARNING: reporting restrictions apply to the contents transcribed in this document, as stated in para 2 of the judgment, because the case concerned sexual offences and involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NOS 202202816/A3 & 202202648/A3 NCN [2022] EWCA Crim 1819 Royal Courts of Justice Sitting at Cardiff Crown Court Law Courts Cathays Park CF10 3PG Wednesday 9 November 2022 Before: THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION LORD JUSTICE HOLROYDE MRS JUSTICE FOSTER DBE MR JUSTICE GRIFFITHS REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 and APPLICATION FOR LEAVE TO APPEAL SENTENCE REX v JOSHUA CARNEY 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 B LLOYD appeared on behalf of the Attorney General/Respondent MR C REES appeared on behalf of the Offender/Applicant J U D G M E N T 1. THE VICE PRESIDENT: Joshua Carney, to whom we shall for convenience refer as “the applicant”, pleaded guilty to seven offences of rape and other serious offences committed against a mother and daughter. He was sentenced to life imprisonment with a minimum term of 10 years. 2. His Majesty's Attorney General considers that sentence to be unduly lenient, and accordingly applies pursuant to section 36 of the Criminal Appeal Act 1988 for leave to refer the case to this court so that the sentencing may be reviewed. 3. The applicant submits that the sentence of life imprisonment was wrong in principle or manifestly excessive. His application for leave to appeal against sentence has been referred to the full court by the Registrar. 4. The victims of the offences are entitled to the life-long protection of the provisions of the Sexual Offences (Amendment) Act 1992. Accordingly, during their lifetimes no matter may be included in any publication if it is likely to lead members of the public to identify either of them as the victim of these offences. As the judge did at the sentencing hearing, we shall refer to them simply as the mother and the daughter. 5. The offences were committed around 7 am on 1 March 2022. The applicant, aged 28, had been released four days earlier from a long prison sentence for burglaries. He was under the influence of Spice or another drug and/or of alcohol. 6. The mother heard a noise outside her front door and went to investigate. She saw the applicant, who was barefoot and dishevelled. He forced his way in and locked the door behind him. He punched the mother repeatedly about the head and threatened to stab her if she did not stop screaming. The daughter, who had been asleep upstairs, locked her bedroom door and dialled 999. She could hear some of what was happening downstairs and feared that her mother had been stabbed. 7. We briefly summarise the facts of the offences which the judge was later to describe, accurately as "the stuff of nightmares". The applicant first attempted to rape the mother vaginally. He raped her orally. He then dragged her upstairs, assaulting her with punches when she tried to get away. He again raped her orally in her bedroom. He then demanded to know which room the daughter was in, despite the mother telling him that she was only 14 and imploring him to leave her alone. He took the daughter's mobile phone from her and took her to join her mother. He orally raped her mother in front of her. He hit the daughter to make her take her clothes off and commanded the mother to watch. He penetrated the daughter's vagina with his tongue and raped her both vaginally and orally. He then forced his fingers into the daughter's vagina, telling her that that was her punishment for calling the police. He again raped the daughter vaginally in front of her mother, this time ejaculating inside her. He was not wearing a condom. 8. The applicant then tried to leave, taking the stolen phone with him, but was detained outside the house by police officers responding to the 999 call. 9. The applicant was charged with six offences of rape, one of attempted rape, two of assault by penetration, one of committing an offence with intent to commit a sexual offence, two of assault occasioning actual bodily harm and one of theft. He pleaded guilty at a plea and trial preparation hearing in the Crown Court at Cardiff. He was sentenced at a hearing on 22 August 2022 by the Honorary Recorder of Cardiff, Her Honour Judge Lloyd-Clarke. 10. The applicant had previously been sentenced on 24 occasions for a total of 47 offences, most of them offences of burglary or theft but including some offences of violence when he was an adolescent. His most recent sentence was one of eight years' imprisonment for a number of offences of house burglary, all of which had been committed whilst on bail. He was on licence from that sentence when he committed the present offences. 11. The judge was assisted by a pre-sentence report and a psychiatric report. The pre-sentence report noted that since his teenage years the applicant had had no meaningful periods when he had abstained from offending. He had appeared to be doing well in prison shortly before his release on licence, but had committed these offences within days of release. The author assessed the applicant as posing a high risk of harm through sexual violence to women and girls. He expressed the view that the persistent pattern of burglaries set the circumstances for further serious offending, which could happen at any time. 12. The applicant had told the authors of both reports that he had no recollection of the present offences and was disgusted by what the evidence showed he had done. The consultant psychiatrist thought it likely that the applicant was intoxicated or suffering from drug-induced psychosis at the material time. The applicant had been assaulted in prison some years earlier and had been diagnosed as suffering from post-traumatic stress disorder as a result. There were also possible diagnoses of a mixed personality disorder and polysubstance misuse disorder. No medical disposal was suggested. 13. Both mother and daughter had made victim personal statements, which made clear the fear they had experienced and the flashbacks and nightmares which they have suffered ever since. Each expressed feelings of guilt at having been unable to protect the other. Those are understandable emotions, but of course neither has any reason to reproach herself. They had felt unable to remain in their home and had had to move away. The daughter's education had been interrupted and she was unhappy attending school because she would be asked intrusive questions. The judge summarised the evidence as showing that the offences had had a very severe effect on both victims which would last a lifetime. 14. The judge considered the sentencing guidelines relating to the individual offences and the over-arching guideline relating to totality. She indicated that she would pass concurrent sentences with the sentences for the rape offences reflecting the overall seriousness of the offending. No criticism is or could be made of her approach. Counsel on both sides had provided helpful sentencing notes and were able to make submissions on the issues of dangerousness and the appropriate type of sentence. 15. It was common ground that the rape offences involved level B culpability under the relevant guideline. The judge found that six of the eight features indicating Level 2 harm were present: severe psychological harm; additional degradation or humiliation (in particular by forcing each of his victims to watch what he was doing to the other and by his derogatory comments to them); a sustained incident; violence or threats of violence going beyond what was inherent in the offences; forced or uninvited entry into the victims' home; and, in the daughter's case, a victim who was particularly vulnerable because of her youth. The judge was satisfied that the combination of those factors and the extreme impact on the victims justified a movement upwards into the Category 1B sentencing range. 16. The judge identified a number of aggravating factors: the previous convictions (in particular those involving entering homes); ejaculation during one of the rapes of the daughter; the location of the offences in the victims' home and bedrooms; the fact that they had felt compelled to leave their home; the commission of the offences whilst on licence; the applicant's intoxication; and the increased trauma resulting from the mother/daughter relationship of the victims. 17. The judge was satisfied that any mental health problems did not reduce the applicant's culpability but gave them some little weight as mitigation. She also took into account the fact that the applicant had no previous convictions for sexual offending. 18. The judge found the applicant to be a dangerous offender, having regard to the nature and circumstances of the offences; the deliberate sadism involved in making each victim watch him raping the other; the use of sexual violence as a means of punishing the daughter; the evidence that the applicant was throughout acting in a controlled and deliberate manner; the applicant's capacity for manipulative and predatory behaviour; and the high risk of further sexual violence. She was satisfied that the seriousness of the offences justified a life sentence. She concluded that such a sentence was necessary because previous sentences had done nothing to deter the applicant from offending, his offences were becoming increasingly serious and there was no realistic prospect of his ceasing to abuse drugs. His motive in committing these offences was unknown, and it was impossible to assess when, if ever, the risk of further offending would end. 19. As to the minimum term, the judge concluded that an appropriate total determinate sentence after trial would have been 20 years' imprisonment. That notional term was to be reduced by 25 per cent to reflect the guilty pleas. The appropriate minimum term was therefore two-thirds of 15 years. 20. For each of the offences of rape and attempted rape, the judge sentenced the applicant to imprisonment for life and specified a minimum term of 10 years. She imposed concurrent standard determinate sentences of six years for assault by penetration, two years for committing an offence with intent to commit a sexual offence, nine months for each offence of assault occasioning actual bodily harm and no separate penalty for the theft. A number of consequential orders were made, about which we need say no more. 21. On behalf of the Solicitor General, Mr Ben Lloyd submits that the life sentences were appropriate but that the minimum term was unduly lenient. He submits that for any one of the offences of rape, the number of Category 2 harm factors necessitated an initial upwards adjustment of the guideline starting point, and that the serious aggravating factors then necessitated a further increase to or beyond the top of the category range. The judge then had to reflect the facts that there were multiple offences and that there were two victims. Mr Lloyd submits that a notional determinate sentence of 20 years was much too short to reflect the overall seriousness of the offending and that a significantly longer minimum term was therefore necessary. 22. On behalf of the applicant, Mr Christopher Rees opposes those submissions. He emphasises the fact that the applicant has no previous convictions for sexual offences and has only once before committed any specified offence, that being when he was just 16 years old. In his application for leave to appeal against sentence Mr Rees makes no challenge to the finding of dangerousness or to the length of the notional determinate sentence on which the minimum term was based. He submits however that the safety of the public could sufficiently be protected by a standard determinate sentence or an extended sentence, and that a life sentence was therefore not justified. In particular, he submits that if the judge had passed an extended sentence, the applicant would have to serve at least two-thirds of the custodial term, would not be released before the end of the full custodial term unless the Parole Board assessed him as suitable for release, and would then be subject to licence conditions for what could be a lengthy period. 23. We have summarised those submissions very briefly, but we have taken into account all that was said on each side. We are very grateful to counsel for the clarity of their submissions, which we have found very helpful. 24. Reflecting on those submissions, we have reached the following conclusions. This was a difficult sentencing exercise which the judge carried out with great care. We regard her approach as impeccable and we pay tribute to the clarity with which she explained the course she took. 25. The finding of dangerousness was supported by the pre-sentence report and was in reality inevitable for the reasons which the judge explained. It is, as we have said, sensibly not challenged. 26. Having made that finding, the judge correctly went on to consider what type of sentence was necessary. By section 285 of the Sentencing Code she was required to impose a sentence of imprisonment for life if the seriousness of the offending was such as to justify the imposition of such a sentence. Case law makes clear that a life sentence is a sentence of last resort: see in particular Attorney General's Reference No 27 of 2013 (R v Burinskas) [2014] EWCA Crim. 334, in which Lord Thomas, CJ said at paragraph 22 that the question whether the seriousness of the offending justified a life sentence required consideration of: "i) The seriousness of the offence itself, on its own or with other offences associated with it ... This is always a matter for the judgement of the court. ii) The defendant's previous convictions ... iii) The level of danger to the public posed by the defendant and whether there is a reliable estimate of the length of time he will remain a danger. iv) The available alternative sentences." 27. As counsel have submitted, the judge was therefore required to consider, and clearly did consider, whether a standard determinate sentence or an extended sentence would provide sufficient protection for the public. She was entitled, and in our view correct, to conclude that they would not. The offending here was not only very grave, but also gives rise to serious concerns for the future. There is nothing in the evidence to suggest that the applicant targeted the victims' home with sexual offending in mind; but if he did not, and if he was merely resuming his career as a burglar, then he switched with alarming speed from acquisitive crime to repeated sexual offences, showing a most disturbing attitude towards his victims. The judge was entitled to find that it was impossible to assess when, if ever, the risk for the public would end. Indeed, on the evidence available to the court it is in our view difficult to see what other findings she could have made. 28. The judge then had to reflect that under a standard determinate sentence or an extended sentence the applicant would be entitled to release at latest at the conclusion of the custodial term, whether or not he was assessed as presenting a danger to the public at that stage. He would be subject to licence conditions, which under an extended sentence could be for a lengthy period, but the circumstances of the present offending show that the licence conditions in force did not control the applicant's behaviour or deter him from further burglaries for more than a handful of days. In those circumstances, the sentence of last resort was justified and necessary. We do not regard the contrary as arguable and the application for leave to appeal against sentence must accordingly fail. 29. We turn to the length of the minimum term, which we emphasise is of course simply the minimum term which must be served as punishment before the applicant may apply for consideration for release on life licence. 30. We accept the submission that the guideline starting point for category B2 had to be increased to reflect the multiplicity of category 2 harm factors, and further increased to reflect the serious aggravating factors which substantially outweighed the limited mitigation. However, the judge was of course under a duty to impose the minimum custodial term consistent with the overall seriousness of the offending. She had to be careful to follow the totality guidelines and to avoid double counting, for example as between the Step 1 factor of a sustained incident and the fact that there were several discrete incidents of rape within the overall offending. We do not think the applicant could have had any successful complaint if a slightly longer minimum term had been imposed, but we are not persuaded that the sentence imposed was one which, in the familiar words of Lord Lane CJ in Attorney General's Reference No 4 of 1989, 1990 1 WLR 41 at page 46A: "Falls outside the range of sentence which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate." It was not therefore unduly lenient. 31. For those reasons, we refuse leave to refer and we refuse leave to appeal. The effect of our decision is that the sentences remain as before. 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_11_09-5488.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/1819/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/1819

78159b5d1c6f5652fb0af8bfac9914a1dfbc3780fe75169a60989cb72a14ded8

[2022] EWCA Crim 1869

EWCA_Crim_1869

crown_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. IN THE COURT OF APPEAL CRIMINAL DIVISION [2022] EWCA Crim 1869 No. 202200750 A4 Royal Courts of Justice Tuesday, 13 September 2022 Before: LORD JUSTICE SINGH MR JUSTICE FRASER MR JUSTICE HENSHAW REX V SEAN GERALD DOYLE __________ Computer-aided Transcript prepared from the Stenographic Notes of Opu

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 1869 No. 202200750 A4 Royal Courts of Justice Tuesday, 13 September 2022 Before: LORD JUSTICE SINGH MR JUSTICE FRASER MR JUSTICE HENSHAW REX V SEAN GERALD DOYLE __________ 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 S WALKER appeared on behalf of the Appellant. ________ JUDGMENT MR JUSTICE FRASER: 1 This is an appeal against sentence brought with the leave of the single judge. The appellant pleaded guilty to a single count of dangerous driving contrary to s.2 of the Road Traffic Act 1988, the facts of which we will come to presently. 2 On 4 March 2022 in the Crown Court at Northampton, having previously pleaded guilty before the Northampton Magistrates' Court on 31 January 2022 and having been committed to the Crown Court for sentence, Mr Recorder Green sentenced the appellant to a Community Order for 12 months with a ten-day rehabilitation requirement and a six-month mental health requirement and disqualified the appellant from driving for a period of 30 months. The appellant was also ordered to take an extended retest. 3 The maximum sentence for the offence to which the appellant had pleaded guilty is one of two years' imprisonment. By virtue of s.34(1) of the Road Traffic Offenders Act 1988 the court must disqualify the offender when convicted of dangerous driving for a period of at least 12 months, unless special reasons apply. As we have said, the appellant was disqualified for a period in excess of that; namely, 30 months or two and a half years. This appeal solely concerns the period of that disqualification and that is the one ground of appeal. 4 The facts of the offending are as follows. On 1 January 2022 the police received reports that the appellant was driving potentially under the influence of alcohol and those contacting the police were concerned for his safety, observing that he had or potentially had the intention to commit suicide or harm himself. 5 Police officers picked up the appellant's vehicle whilst it was at a red light at around 9.20pm in the evening. When the traffic lights changed to green, the vehicle made off at speed. The officer in the vehicle was of the view that this was because the appellant had noticed the police car, and the police followed him. The appellant's vehicle was travelling at high speed and was pursued along the A45 by the police. The officers activated the blue light on the vehicle to make the appellant stop, but the appellant failed to do so and reached speeds as high as 110mph along the A45 itself. The appellant forced his vehicle past traffic at a roundabout and then drove through a 40mph zone at a speed of 70mph. At that point, officers requested a helicopter to assist and a police helicopter was deployed. The period of driving lasted for about six minutes. When the police attempted to box the appellant's vehicle in, the appellant attempted to take evasive action and, again, made off at speed. The police did not manage to stop the appellant's vehicle and he was later arrested at his home address. 6 The appellant was, prior to this, a man of good character. The sentencing Recorder had the benefit of a pre-sentence report which observed that the appellant recounted a mental breakdown and mental health difficulties at the time, possibly initiated by a break up with his partner of some 14 years, but also exacerbated by other matters. He was said to have been drinking heavily on the day of the offence and had limited recollection of it. 7 He personally had made, as had his family and friends, various attempts to obtain mental health support in the days leading up to the offence, visiting A&E and also his GP on more than one occasion. There were a number of contacts with the medical authorities on the day of the offence itself. After he was arrested, an urgent care and assessment team or UCAT report was obtained from the Northamptonshire NHS Trust on 4 January 2022, which concluded that he was suffering from Emotionally Unstable Personality Disorder, that he had mental health issues within his family and had experienced them over a period of months and he was prescribed medication. That report was also before the court for sentencing. 8 On this appeal we have been assisted by Mr Walker and we are grateful for his persuasive submissions, which we have found to have been of great assistance and very well expressed by him. He places particular emphasis upon the number of times that the appellant contacted either A&E or his GP in the days leading up to the offence. There were three separate occasions; namely, on 19 December, 20 December and again on 29 December and on the day itself. He submits that the impact of the disqualification period upon the appellant in terms of his work – the appellant being a self-employed electrical engineer – are significant and he also places attention upon the length of time that disqualification period has been passed in excess of the statutory minimum. It is said by Mr Walker that insufficient consideration was given by the sentencing Recorder to the risk of future dangerous driving manifesting itself and he also draws attention to the high impact on the appellant in terms of his work and contact with his children. 9 This court when considering any sentence under appeal must decide whether it is wrong in principle or manifestly excessive. Here, there can be no doubt that the disqualification of itself was entirely correct in principle, and indeed a disqualification period of a minimum of 12 months is a statutory requirement. The sentence passed upon the appellant must be considered in aggregate and a Community Order for this driving could not be said to have imposed an onerous effect upon the appellant. The disqualification element cannot be viewed solely in isolation from the other component parts of the overall sentence. To focus upon disqualification in isolation runs the risk of losing sight of the correct test in law for this court that will be applied upon an appeal against sentence, which is whether the sentence is either wrong in principle or manifestly excessive. 10 Mr Walker has submitted that the risk of a further mental health breakdown on the part of the appellant, with the risk of similar further offending occurring, is not such that disqualification for this period is necessary or proportionate, particularly given the effect upon the appellant of that disqualification period, and therefore it ought to be reduced. There is no doubt that the appellant made considerable efforts to obtain help for his mental health issues, particularly in the days running up to, and the day of, the offending itself. The UCAT report also states that the appellant had been using cannabis daily for a period of five years and would engage in binge drinking of up to one litre per day of spirits. The pre-sentence report observed that in December when visiting his GP, the appellant declined medication that was potentially to be prescribed for him for his depression, because the appellant was concerned about the side-effects of such medication when combined with substance misuse. Consumption of excessive alcohol and use of illegal drugs, namely cannabis, are features of this offending that it should be borne in mind were being used voluntarily by the appellant. 11 There are in the court's view a high number of aggravating features to this driving. The appellant had been drinking, although he passed a breathalyser test, but he was pursued by the police under a blue light and refused to stop, evading the boxing-in technique deployed. His speeds were extraordinarily high; 110mph on a road with a limit of 70mph and 70mph on a road with a limit of 40mph posed a very high risk of danger to other members of the public. Any dangerous driving by definition poses some threat to life and limb of other road users, but in the court's judgment this driving in particular did so to a very high degree. This was a very bad case of dangerous driving causing a high risk of death to other road users and pedestrians. 12 The mitigation that the appellant has, and the other points skilfully put by Mr Walker, have been considered carefully both by the sentencing Recorder and again by us in this appeal. The fact remains this was an exceptionally dangerous piece of driving and in our judgment a lengthy period of disqualification was required both to protect members of the public from driving of this nature, and also to act as a deterrent. Those who engage in escaping from the police in a high speed chase using such dangerous driving can expect to be made subject to lengthy periods of disqualification. 13 In all of the circumstances and when considered as a whole, the learned Recorder arrived at a sentence that properly and fairly reflected the different purposes of any sentence, including both punishment and also protection of the public, but also taking into account the particular considerable mitigation available to this appellant in particular. We are not persuaded that either this sentence in general or the disqualification period in particular is or are manifestly excessive. We therefore dismiss the appeal and the sentence remains undisturbed as passed by the learned Recorder. __________

2022_09_13-5429.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/1869/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/1869

4b40f86b62149c5ca49e04e493335cf6bbdd5c304bcf00990121a25ea9e73e81

[2015] EWCA Crim 350

EWCA_Crim_350

crown_court

Neutral Citation Number: [2015] EWCA Crim 350 Case No: 2013/06585/B1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SNARESBROOK His Honour Judge Lafferty Royal Courts of Justice Strand, London, WC2A 2LL Date: 10/03/2015 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE MITTING and MR JUSTICE LEWIS - - - - - - - - - - - - - - - - - - - - - Between: Regina Respondent - and - Dean Clarke Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2015] EWCA Crim 350 Case No: 2013/06585/B1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SNARESBROOK His Honour Judge Lafferty Royal Courts of Justice Strand, London, WC2A 2LL Date: 10/03/2015 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE MITTING and MR JUSTICE LEWIS - - - - - - - - - - - - - - - - - - - - - Between: Regina Respondent - and - Dean Clarke Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M Cousens (who did not appear at the trial) for the Appellant T Naik for the Respondent Hearing date: 18 February 2015 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Thomas of Cwmgiedd, CJ: 1. On 12 November 2013 the appellant was tried with others at the Crown Court at Snaresbrook of conspiracy to rob. He was convicted and subsequently sentenced to 12 years imprisonment. He appeals against conviction by leave of the Single Judge. The background Robbery at 42 Kenwood Gardens 2. On 1 June 2012 two men disguised as police officers gained access to 42 Kenwood Gardens, London by informing the occupant, Mrs Kumar, that her husband had been involved in a road traffic accident. The two men, subsequently joined by a third, robbed Mrs Kumar of jewellery, a mobile telephone and a bank card. 3. It was the prosecution case that the appellant organised the robbery but did not enter the house. Relying on cell site evidence the prosecution case was that he was in the area at the time the offence took place. There was also CCTV evidence which showed the appellant and his uncle, one of the co-accused, at the business premises of Mrs Kumar days before the robbery. William Hill Bookmakers, Holloway Road, London 4. On 15 June 2012 two men went to William Hill Bookmakers in Holloway Road, London. One of those engaged the cashier, Nakita Jordan, in conversation. That person claimed to be a bailiff who needed access to the flats above the bookmakers. He then returned with an older man and began to talk to the cashier, asking about her job and security. She told them that her colleague, Dahlia Dixon would be present the following day rather than her. The two men asked her to leave a note for her colleague, telling her that the two men would be returning and that she should make them a cup of tea. 5. Two men could be seen arriving in a distinctive Mercedes and walking around on CCTV taken in the vicinity of the premises of the bookmakers that day. Based on subsequent identification by Mr Rafferty (to whose evidence we refer at paragraph 7 below) and subsequent identification at an identification parade by Ms Jordan, the prosecution case was that it was the appellant who had been one of the two men, the man who engaged Ms Jordan in conversation and the man who had got out of the Mercedes. 6. On the following day, 16 June 2012, the prosecution case was that one of the co-defendants, Walsh, approached Ms Dahlia Dixon. He said that Nakita had said that Dahlia would be able to make them a cup of tea. He followed Miss Dahlia Dixon into the building, where she proceeded to make a cup of tea for him. Another man then entered the shop. He grabbed Miss Dixon from behind and put his hand over her mouth. He demanded the keys to the safe. Miss Dixon was then taken to the basement where the safe was kept and asked to open it. The safe was time delayed and therefore could not be opened. On being asked where the money was kept Miss Dixon told the two men that it was upstairs. One of the men led her to the toilets and told her to wait for five minutes. He left but immediately returned asking where the CCTV was located. Miss Dixon refused to answer his question. Once the man had left the shop Miss Dixon left the toilet and noticed the CCTV hard drive, the float and her bag had been stolen. It was the prosecution case that the man who had entered the shop and grabbed Miss Dixon was the appellant. That was based upon Miss Dixon’s identification at an identification parade and the evidence obtained from the CCTV in the roads surrounding the premises. It was the prosecution case also that CCTV evidence showed him outside the premises that day. 7. Stills from the CCTV footage taken on 15 and 16 June 2012 were published in the “Wanted” section of the Police Gazette. On 1 September 2012 Michael Rafferty, a prison officer at HMP Stamford Hill, recognised the appellant. He did so on the basis of the time the appellant had spent in the prison where the officer worked. Mr Rafferty had seen the appellant last in 2010. His contact with him had been over a period of four months while the appellant had been a prisoner between June 2009 and April 2010. The appellant made an application to exclude the evidence on the basis it could not be adduced without the jury being informed that Mr Rafferty was a prison officer and that this would be gravely prejudicial as it would put before the jury the fact that the appellant had been a prisoner. As we set out at paragraph 22 below, the judge ruled that it was admissible. 8. The defence case was that the appellant was not involved in the robberies. He gave an explanation of his presence in the areas. He had said he had little to do with Mr Rafferty and had never been at close quarters with him. 9. His appeal against conviction is based on two grounds, one relating to the sufficiency of the particulars of the offence set out in the indictment and the other to the admission of the evidence of Mr Rafferty. (i) The sufficiency of the particulars of the offence set out in the indictment 10. The indictment was in the following terms: “ STATEMENT OF OFFENCE CONSPIRACY TO ROB, Contrary to Section 1(1), Criminal Law Act 1977. PARTICULARS OF OFFENCE DEAN CLARKE, PAUL WALSH and STEVEN FRY between the 25 th day of May 2012 and the 16 th day of June 2012 conspired together and with other persons to rob a dwelling and business of cash and other items.” 11. It was submitted by the appellant that, although the offence was correctly charged, the particulars of the offence set out in the indictment were so defective that the indictment was a nullity and the conviction must therefore be quashed. This submission was founded upon the decision of this court given on 28 April 1998 in R v McNeill (unreported, Tuesday, 28 April 1998, Reference 97/6303/W3) which was drawn to the attention of the parties by the Registrar. In McNeill , the appellant had pleaded guilty at a Crown Court to an indictment containing three counts, one of which was for robbery. He sought leave to appeal on the basis that the sentence imposed was manifestly excessive. In this court he was given leave to appeal against conviction. The judgment of the court was as follows: “The problem in this case arose when we considered the count of robbery as alleged in the indictment, which, our enquiries revealed, and [counsel for the prosecution]’s presence here confirmed, had not been amended. It read: "Robbery, contrary to section 8(1) of the Theft Act 1968. PARTICULARS OF OFFENCE Graham Frederick McNeill on the 7th day of March 1996 robbed Iceland Plc of a quantity of monies to the value of £60." In fact that indictment simply failed to reflect that to be guilty of robbery an individual, a human being, has to be put in fear or subjected to unlawful force. We have tried to see how this, on one view, technicality, can be circumvented. We are not too apologetic about our concern. It may be a technicality in this case, but it remains a fundamental principle of the whole criminal justice system that no citizen should be locked up and ordered to serve a penal sentence unless he has been properly convicted, and a proper conviction includes being convicted on the basis of an indictment - it may be called a charge, the technical word for it does not matter - which includes particulars of an offence known to the law. Having considered with [counsel for the prosecution] R v Graham [1997] 1 Cr App R 302, our conclusion is that in this case the indictment was defective, so defective as to mean that the plea entered by the appellant was a complete nullity from start to finish.” The court then went on to express the misfortune that no-one had noticed it, but such things happened and they had to be put right. A venire de novo was ordered to be listed in the Crown Court as soon as practicable. 12. It was submitted on the basis of that decision that in the present case the indictment was a nullity, as the indictment did not specify that Mrs Kumar and Ms Dixon, the employee of William Hill, were subjected to unlawful force or put in fear. 13. The prosecution make two submissions. First that, as the appellant was charged with an offence of conspiracy, whatever the status of McNeill , the indictment charging a conspiracy to rob was sufficient. Second, in relation to McNeill , the decision in McNeill should not be followed as the court had not considered the authorities and it was inconsistent with the approach of this court, principally as set out in the later decisions of R v Stocker [2013] EWCA Crim 1993 and R v White [2014] EWCA Crim 714 where the wrong offence was charged in the indictment. Both cases indicate that in such circumstances where no material unfairness whatsoever is caused to the defendant, the courts are increasingly reluctant to take too technical or formalistic an approach. 14. In McNeil the sole authority relied on was Graham . In that case Lord Bingham, CJ set out the principle to be applied by this court when considering whether a conviction was safe under the provisions of the Criminal Appeal Act 1968 as amended in cases where an indictment was defective. “We would deprecate resort to undue technicality. A conviction will not be regarded as unsafe because it is possible to point to some drafting or clerical error, or omission, or discrepancy, or departure from good or prescribed practice. We would, for example, expect R. v. McVitie (1960) 44 Cr.App.R. 201, [1960] 2 Q.B. 483 to be decided under the new law in the same way as under the old. But if it is clear as a matter of law that the particulars of offence specified in the indictment cannot, even if established, support a conviction of the offence of which the defendant is accused, a conviction of such offence must in our opinion be considered unsafe. If a defendant could not in law be guilty of the offence charged on the facts relied on no conviction of that offence could be other than unsafe.” 15. The issue therefore is whether the particulars were sufficient, if established to support a conviction of the offence of robbery which the appellant is accused. The requirement of sufficiency is set out in s.3 of the Indictments Act 1915 which provides: “Every indictment shall contain, and shall be sufficient if it contains, a statement of the offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge.” 16. At the time of the decision in McNeill, the requirements as to the particulars to be given in indictments was amplified by the Indictment Rules 1971. Rule 6(b) of those Rules provided that: “The particulars shall disclose the essential elements of the offence: Provided that an essential element need not be disclosed if the accused person is not prejudiced or embarrassed in his defence by his failure to disclose it.” 17. The Indictment Rules have been revoked. The requirements are now set out in Crim PR Part 14.2(1)(b) as supplemented by the Consolidated Practice Direction. Part 14.2(1)(b) provides that the indictment must contain “such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant” 18. As is pointed out at paragraph D11.23 of Blackstone, the Crim PR now require less than was required under Rule 6(b) of the Indictment Rules. The sole question is whether the particulars make clear what the prosecutor alleges against the defendant. In the present case there can be no doubt that it was clear what was alleged. The indictment was not therefore insufficient, though it was very, very poorly drafted and ought to have been amended. For example it should not have referred to robbing a dwelling but a person, but that was a simple error and has no effect on the validity of the indictment as it was obvious what was meant. The offence set out in the indictment was correctly described, the particulars of the offence specified supported the conviction of the offence of conspiracy to rob and the particulars made clear what the case of the prosecution was. It was not necessary to specify the ingredients of the offence, such as whether a person was put in fear or unlawful force used. This ground of appeal therefore fails. 19. We should, however, deal with one matter. Until this appeal, as far as we have been able to discover, the decision of this court in McNeill went entirely unreported; it is not referred to in any of the leading textbooks. The words of the particulars of the offence in the indictment in McNeill followed the standard form set out in Archbold , 1996 edition paragraph 21-80 which stated: “AB on the … day of … robbed JN of £10,000 in money” The standard form is the same in the 2105 edition of Archbold at paragraph 21-85. The standard form for particulars set out in the 2015 edition of Blackstone at paragraph 4.68 is: “A on the … day of… robbed V of a gold watch” 20. As is clear from the authorities decided under the Indictment Rules 1971, the proviso to Rule 6 was important as, if an essential element of the offence was omitted, it did not render the indictment defective if it caused no prejudice: see for example R v K [2005] 1 Cr App R 408 . The indictment in the form set out in Archbold and in Blackstone would therefore have ordinarily in the overwhelming majority of cases have been sufficient. Although the judgment in McNeill does not make clear why the proviso to Rule 6(b) was not applicable, the decision must be viewed as a decision where there had been some prejudice on particular facts not set out in the very short judgment that was transcribed. 21. As to the second argument advanced by the prosecution, there can be no doubt that the prosecution case was clear. It is therefore not necessary to examine the cases which examine the extent of the particulars to be given in more complex cases of conspiracy, an issue discussed in cases such as R v Landy ( 1981) 72 Cr App R 237 , R v Hancock [1996] 2 Cr App R 534 and R v K. These issues can be revisited under the Crim PR if necessary. (ii) The evidence of Mr Rafferty 22. As we have set out at paragraph 7, the prison officer, Mr Rafferty had identified the appellant whilst the appellant was serving a prison sentence. The appellant sought to exclude the evidence on the basis that it was not possible to adduce the evidence without the jury being informed that the appellant had served a prison sentence and therefore had a previous conviction. In a short, but very clear, ruling the judge held that the evidence had a probative value which heavily outweighed any prejudicial effect. He made clear that any prejudicial effect could be eliminated by the parties agreeing appropriate formulas for evidence-in-chief; Mr Rafferty could then be cross-examined as to how often he saw the witness, at what distance and in what light without revealing the fact that he saw him while he was a serving prisoner. There was no need for the jury to know, unless the advocate for the appellant opened it up in cross-examination, that Mr Rafferty had got to know the appellant while Mr Rafferty was an officer at the prison where the appellant was serving his sentence. 23. When Mr Rafferty was called to give evidence, the prosecution adduced that evidence without in any way disclosing that Mr Rafferty was a prison officer or that he had identified the appellant through reading the Police Gazette. However, in cross-examination both the fact that Mr Rafferty was a prison officer and that he claimed to recognise the appellant through having seen him whilst serving a sentence of imprisonment for a drugs offence was brought out by the way the cross-examination was conducted. 24. In the course of his summing-up the judge therefore had to deal with this issue. He made it very clear to the jury that the evidence about the appellant being in prison for a drugs offence was not something that they could take into account against the appellant when considering the case against him. They had been given the information solely to explain the contact between Mr Rafferty and the appellant. 25. It was contended before us that the prosecution should have made an application under the bad character provisions of the Criminal Justice Act 2003. That ground is wholly misplaced. The prosecution did not seek to adduce any evidence as to the bad character of the appellant. They did not in any way seek to rely upon the fact that he had been convicted of a previous offence. There was therefore no basis whatsoever upon which such an application could have been made. 26. The only ground upon which the appellant could have successfully objected to the admission of the evidence of Mr Rafferty was on the basis that its prejudicial effect would have outweighed its probative value. In our judgment the judge undoubtedly reached the right decision on that issue for the reasons that the judge gave. It should have been possible to cross-examine Mr Rafferty without eliciting the fact that he had identified the appellant solely because he was a serving prisoner. In any event, even if it would have been impossible to cross-examine Mr Rafferty without eliciting that fact, we consider that the evidence was in any event admissible as plainly the evidence of identification was highly probative and the prejudicial effect could have been dealt with, as it was in the case, by a suitable direction from the judge. 27. This second ground of appeal must therefore fail. 28. We have also considered whether the conviction was safe. There was ample evidence of the appellant’s involvement in the conspiracy and no basis for contending that the conviction was unsafe.

2015_03_10-3568.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2015/350/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2015/350

63dde589644d05f0a3377e52f1944caf1c000aefeb20223bb7183e4b1bd62528

[2005] EWCA Crim 1158

EWCA_Crim_1158

supreme_court

Neutral Citation Number: [2005] EWCA Crim 1158 Case No: 2002/06752/B2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM MANCHESTER CROWN COURT His Honour Judge Maddison Royal Courts of Justice Strand, London, WC2A 2LL Date: 10 May 2005 Before : LORD JUSTICE MANCE MR JUSTICE TUGENDHAT and HIS HONOUR JUDGE STEPHENS QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Derek Michael Barnes Appellant - -

Neutral Citation Number: [2005] EWCA Crim 1158 Case No: 2002/06752/B2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM MANCHESTER CROWN COURT His Honour Judge Maddison Royal Courts of Justice Strand, London, WC2A 2LL Date: 10 May 2005 Before : LORD JUSTICE MANCE MR JUSTICE TUGENDHAT and HIS HONOUR JUDGE STEPHENS QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Derek Michael Barnes Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr P Wright QC and Mr I Metcalfe (instructed by Crown Prosecution Service ) for the Respondent Mr Kamlish QC and Mr Huseyin (instructed by Hadgkiss Hughes & Beale ) for the Appellant Hearing dates : 3, 4 March 2005 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Mance: Introduction 1. This appeal arises from the appellant’s conviction at the Manchester Crown Court before HHJ Maddison and a jury on 14 th February 1997 of robbery of Allan and Audrey Pickles (count 1) and inflicting grievous bodily harm on Alan Pickles contrary to s.20 of the Offences against the Person Act 1861 (count 2). The offences were committed on 3 rd August 1995 at Mr and Mrs Pickles’ council house home at 25 Frankton Road, Whitefield, Greater Manchester. The appeal is brought on the ground that fresh evidence is available from an arborealist, Mr Ian Murat. Mr Kamlish QC representing the appellant submits that his evidence is capable of belief, that it would have been admissible at trial, that there a reasonable explanation for the failure to adduce it then, and that if given at trial it might reasonably have affected the jury’s verdict. It is submitted that it should be received and that in its light the verdict reached by the jury on 14 th February 1997 is unsafe. The facts and evidence 2. That Mr and Mrs Pickles were the victims of robbery and, in Mr Pickles’ case, the infliction of grievous bodily harm on 3 rd August 1995 were facts not in question. The offender obtained access to their house under the pretence of being a police officer with the name of “Dave”. After maintaining that pretence for half an hour he became violent, forced the Pickles in headlocks into a bedroom, punched Mr Pickles, fracturing his left cheekbones and jaw in more than one place, and remained in the flat for a long time, behaving erratically, until he left at or shortly after 8.00 p.m. 3. No long thereafter, a telephonist at the Blue Line Taxi Company received a call to collect someone calling himself William from the Junction Public House, a few hundred yards from 25 Frankton Road. A taxi driver, Mr Wilson, duly collected the man, who said that he wished to go to Collyhurst, but then directed the taxi to go via Cheetham Hill and into the car park of the derelict Lonsdale Public House. There he go out of the cab, threw an small empty soft drinks bottle that he was carrying against the back of the pub wall, its parts falling among some “longish” weeds, disappeared from sight for about ten minutes and then re-appeared and resumed his journey for which he paid at its end from a well-stocked wallet. 4. Mr and Mrs Pickles both described the assailant as coloured. Mr Pickles put him in his statement as “full coloured”. He also said in evidence that he was “with dark skin”. He further described him as 25-30 years old, with short black curly hair and a full moustache and stubble on the chin, a red shirt, grey trousers and black leather shoes. Mr Wilson in his statement described his passenger as “a sort of half-caste in colour” but said also that he was dark-skinned with stubble on his face. Mr Wilson was not sure what his passenger was wearing, although he thought that it was light summery clothes and he was carrying a beige shirt. 5. A Senior Scenes of Crime Officer, a civilian employee of the police, Mr Graham Smith, was instructed by his superintendent to look for fingerprints which might establish who had been inside 25 Frankton Road. Together with another such employee, Mr Alan Greenhalgh, who took general photographs of the premises, Mr Smith attended there at 9.00 a.m. on 5 th August 1995, and, by use of aluminium powder and acetate tape, lifted a series of fingerprints, moving from the front door inwards into the house. One of Mr Greenhalgh’s photographs shows a door to the smaller bedroom in the house. According to Mr Smith’s evidence, the sixth lift came from this small second bedroom door, a little above the door handle, which itself appears from the photograph to be about or just under half way up the height of the door. The lift consisted of two adjoining fingerprints (a left forefinger and an adjoining central finger). Mr Smith said that, as he found and took each fingerprint and lifted it onto acetate tape, he labelled it, identifying it as relating to 25 Frankton Road and initialling the label, and also recorded the taking of each lift on the front cover of an official docket, which we have seen. 6. Not long after 4.00 p.m. on 5 th August 1995, Mr Wilson showed another officer, PC William Barclay, the place where his passenger had broken the bottle and where the parts had fallen. PC Barclay’s evidence was that he was able to recover from that place a number of pieces of broken bottle glass which he identified as WB/1 before handing them to the exhibits officer, DC Terence Watson on the same day. DC Watson said that he then handed them to Mr Smith at 11.30 a.m. on 6 th August 1995. Mr Smith said that he lifted a fingerprint off one shard and labelled and identified this too both by reference to 25 Frankton Road and by reference to the initials WM/1, as well as placing on it his own initials. He then added this fingerprint to the official docket as item no. 7. The docket serves both as a record and as an envelope inside which lifts are placed. 7. Mr Smith said that he put the docket with the lifts in it overnight in a locked drawer to which he had the only key, and that he handed it to the fingerprint officer, Mr M. Wilson, early on the next day, Monday 7 th August 1995. The docket, which its list and description of the 7 lifts inside it, bears a stamp and initials recording that the Fingerprint Department received it on 7 th August 1995. 8. The Crown’s evidence at trial was that on 9 th August 1995 a photocopy of lift 6 was submitted to the national fingerprint bank, at that time located in Tacoma, USA. Although the bank included the appellants’ fingerprints, the list of the closest matching fingerprints that the bank returned failed to identify lift 6 as the appellant’s fingerprint. However, the police also had in their possession in England photographs of the appellant’s fingerprints dating from 1 st July 1988, when they had been investigating a previous incident. Mr M. Wilson said that on an informal inspection on 17 th August 1995 he was able to compare lifts nos. 6 and 7 with these photographs, and found that the two sets of prints matched. This comparison was undertaken because by 17 th August 1995 the appellant had, for whatever reason, become a suspect. The fact that he was by then a suspect was expressly confirmed on the docket against the record made of the comparison. 9. Meanwhile, the appellant was paying a series of visits (for, he maintained, entirely legitimate purposes) to the home of a Mr Sullivan at Artillery Court, Chorlton on Medlock. His first visit was on 14 th August, and his last on 18 th August 1995, on which date he was arrested as he left the premises. No fingerprints were taken from Artillery Court. He was interviewed in relation to the offences involving the Pickles on 31 st August, when his fingerprints were taken afresh. On 1 st September 1995 Mr Wilson undertook a formal comparison of these fingerprints with lifts 6 and 7, and again found a match. It is not in issue now that fingerprints 6 and 7 as they appear in the documentation before the jury and before us are the appellant’s fingerprints. The primary issue before the jury was whether there was any reasonable doubt that lift 6 was obtained, as was the Crown case, by Mr Smith from the small bedroom door in the Pickles’ home on 5 th August 1995. 10. At trial it was put to Mr Smith that lift 6 did not come from that door. A suggestion was floated that the police might have obtained it from Artillery Court, but there was, as the judge pointed out to the jury, nothing to support a suggestion that any fingerprints were ever taken at Artillery Court, let alone by 17 th August. The only known record of the fingerprints taken on 1 st July 1988 consists of a print. The documentary material put before us by the Crown also includes a report of a senior crime investigator, Mr Wellock, to the effect that the lifting of fingerprints by use of aluminium lifting powder and adhesive tape was very rare before 1990, due to lack of facilities for processing lifts, and that it was Mr Wellock himself who in 1990 carried out a pilot scheme on the feasibility of such use and was in 1991 instrumental in issuing such equipment generally to scene of crime officers. Nonetheless, the jury were, as the judge understood and reminded them, being asked to consider the possibility that the police may somehow have had fingerprints belonging to the appellant, which the police had pretended came from 25 Frankton Road, or had substituted for any taken from 25 Frankton Road, on 5 th August 1995. Mr Smith gave evidence and denied at trial that lift 6 came from anywhere except the small bedroom door at 25 Frankton Road on 5 th August 1995. 11. As to lift 7, the only positive possibility that the defence suggested at trial was that the broken bottle pieces found in the Lonsdale Public House car-park by PC Barclay on 5 th August 1995 must have resulted from one of the visits to that car-park which the appellant said that he had made on different, previous occasions. He said that, despite the considerable distance from his father’s house where he was living in Rusholme on the other side of Manchester, he used to visit a sandwich bar in Cheetham Hill which “made sandwiches to your desire”, and that he would then sit eating the sandwiches in the deserted car-park of the Lonsdale Public House, where he said that as a result he from time to time discarded used bottles. His last visit there was he said about three or four weeks, or maybe longer, prior to 3 rd August 1995. 12. Subsequent to the assailant’s incursion, the Pickles moved house, but 25 Frankton Road is understood to have been let to other tenants. Following the appellant’s trial and conviction on 14 th February 1997, the small bedroom door was collected by solicitors, Flacks Ross, acting for the appellant, and taken to the home address at 24 Bollington Road of Julie Corrie, an employee in their legal department, where it remained “stood against the wall covered with plastic for a considerable time, months and months”. It was then transported elsewhere, Julie Corrie believed to Flacks Ross’s offices, for fingerprint purposes. At some point, in it appears 1998, most of the litigation department of Flacks Ross (including the relevant solicitor, Mr Leigh Wright, handling the appellant’s case) joined another firm, Draycott Browne, and the door in some way moved to their premises at 45 Hardman Street. From there it was on 23 rd November 2001 transported by courier to the offices at 83 Alceste Street of the solicitors presently acting for the appellant, Hadgkiss Hughes & Beale. On 11 th August 2003 the door is recorded as having been in a Greater Manchester Fingerprint Bureau laboratory at the Bradford Street Complex, Bradford, Manchester. For the appeal before us, the appellant’s legal representatives had the door couriered to the Royal Courts, and we had the opportunity of inspecting it in the well of the court. That it is the small bedroom door which was in 25 Frankton Road in August 1995 is not now in dispute. The efforts to obtain expert evidence 13. According to an affidavit of Maslen Merchant, an executive in Hadgkiss Hughes & Beale, sworn 18 th December 2002, a series of attempts has been made over the years to obtain evidence regarding lift 6. A fingerprint expert, Mr Peter Swann, was instructed prior to trial. So too was Professor Lorimer of Manchester University, with a view to examining the lift under an electron microscope. A conference was held with him on 30 th August 1996, with undisclosed results. After the conviction, Mr Leigh Wright continued efforts to challenge the lift, and Mr Swann was again instructed in 1998. In late 2000 the appellant instructed another firm, Olliers, who consulted a fingerprint expert in the United States called Pat Wertheim, who prepared a short preliminary report (contents again not disclosed) in June 2001. His recommendation led in turn to the instruction in August 2001 of another fingerprint expert, Mr Bayle. He is reported as expressing grave reservations about the scene of crime evidence, and, after copies of the fingerprint forms and other documents were obtained from the police, he is said to have prepared a preliminary report dated 10 th September 2001, which is said to have been “heavily critical of the scene of crime officer’s methods in examining the scene and lifting the alleged finger print”. Counsel however advised on 5 th November 2001 that his report was on its own insufficient to form a ground of appeal, and that Legal Services Commission funding was justified to try conclusively to exclude the lift from the surface of the door. This led to the collection of the door on 23 rd November 2001, as we have already mentioned. “Strenuous and continuous” efforts were then made over the next months to locate an expert who could examine the lift and door and wood grain and provide their opinion as to whether the two were mutually exclusive. Some 30 computer experts said that they could not assist. Only in April 2002 did the Forensic Science Consultancy in London state that they had the requisite computer technology to scan the door and the lift and to exclude one from the other. The necessary £4000 funding was granted by the Legal Services Commission on counsel’s advice, but then it appears that the exercise was never undertaken, because, according to Mr Merchant: “I received information to suggest that the results of the proposed computer analysis of the surface and lift would not be sufficiently positive to provide a ground of appeal”. 14. Mr Merchant recommenced enquiries and wrote to further computer experts. One in May 2002 was “initially …. quite positive that he could assist” and met with Mr Bayle, “but unfortunately he could not, ultimately, help us”. Mr Bayle in June 2002 then suggested a wood grain expert, and Mr Ian Murat of A.C.S. Consulting, an arboriculture consultant, was identified and instructed. It is his proposed evidence that is relied upon on this appeal pursuant to s.23 of the Criminal Appeal Act 1968 . We heard him de bene esse , and having done so proceeded also at the invitation of both counsel to hear Mr Smith and two further witnesses called by the Crown before us who were not called at the trial. They are Jacquelyn Newman, now the assistant director of science services for the Greater Manchester Police, and Kevin Kershaw, a forensic identification services manager, or (for present purposes) fingerprint expert. Mr M. Wilson, who undertook the original fingerprint comparisons in August 1995, was killed in a road traffic accident in 2003. Mr Murat’s reports and evidence 15. Mr Murat produced two reports, dated 13 th November 2002 and 27 th October 2003. In his first report, he recorded that he had inspected the door in conjunction with Mr Merchant on 9 th August 2002. He had, prior to his visit, received a sketch (evidently not to scale) and photographs made by Mr Bayle of central area of the door around the handle area and a copy of lift 6. His report then said this: “4.04 One of the outstanding characteristics of wood is its infinite variety. Some woods are very uniform both in texture and colour and there is little or no visible difference between one species and another. Many timbers show variation in texture and colour over a relatively small area (as illustrated by the extracts of texts in Appendix 3). 4.05 The fingerprint lift has three distinct features, as well as the imprint of the grain of the veneer and the fingerprints. 4.06 An examination of the door, in the area from where the fingerprints have been taken, could find no evidence of the marks corresponding to the fingerprint lift. 4.07 The only mark that was similar to Mark A could not be the mark by virtue of the fact that the grain pattern is incorrect and the fingerprint lift tape protrudes over the edge of the door and the mark appears to be a scuff and not a scratch. 4.08 I conclude that the fingerprint could not have come from that door in the area from where the fingerprint was said to have been lifted.” 16. In reports dated 25 th July 2003 made in reply to Mr Murat’s first report, Mr Kershaw and Mrs Newman pointed out that Mr Murat had misled himself, into thinking that marks A, B and C were part of the lift. They were and are, as is now common ground, creases or bubbles that had come into existence as the adhesive tape used to make the lift was affixed to the transparent acetate, which now holds it. Such creasing is very common during this process and easily felt and observed when handling the original acetate lift. Both Mr Kershaw and Mrs Newman went on, however, to state that they did not believe that the exercise of comparison on which Mr Murat was engaged was within any expertise that Mr Murat possessed and to question its general feasibility. In the latter regard, they referred in particular to the length of time elapsed since August 1995, the unique nature of any lift and the suggested likelihood that the condition of the surface of the door would have changed since August 1995. 17. On 11 th August 2003 Mr Murat visited the Greater Manchester Police Fingerprint Bureau and saw the door in a police laboratory as well as the original lift 6. He observed the creases and Mrs Newman and another police employee, Mr Kelly, explained to him how fingerprints are taken and then mounted, preserved and stored. In his second report, he then said: “5. My original appraisal of the fingerprint lift was based on a photocopied document, a photocopy of the fingerprint lift and advices from a fingerprint expert that the marks within the area of the fingerprint lift were not background noise but could only have been picked up at the time of the original lift. Having viewed the original fingerprint lift in the presence of Miss Newman and Mr J Kelly, Greater Manchester Police, I am happy to accept that those marks that I had interpreted as marks being lifted from the door are indeed air bubbles and creases within the tape used. However, removing these factors from the equation, one can still clearly see an imprint of the grain from the wood area.” In his oral evidence Mr Murat repeated that he had been told – by, he said, Mr Bayle – that the marks A, B and C were on the wood not on the tape itself, and that he had relied on Mr Bayle’s expertise in that regard. Since the whole of Mr Murat’s first report depended on this assumption, one would have expected him to spell it and its origin out in that report. As it is, his first report confused creasing with what he thought were gouges or scratches in the wood (paragraph 3.05). Further, this confusion means that he committed himself to a conclusion in his first report on an entirely erroneous basis. 18. His second report records what followed: “6. I asked Ms Newman to take a fingerprint lift from the door. An area of the door above where it is said that the original lift was taken from was coated in powder. Low tack adhesive tape, was placed over the powder, rubbed and then removed and mounted on a piece of acetate film. The sample showed the fingerprints form someone who had been handling the door and the grain of the wood veneer beneath. A copy of the lift can be found at Annex 1 to this report. 7. I was able to place the lift over the area from where it had been taken from and matched it exactly with the features of the wood grain that were evident on the tape. It is quite clear that the powder enhances the features of the grain beneath the fingerprint allowing it to be picked up by the adhesive in the tape. The powder enhances the various features, the late wood and the early wood, that have been laid down whilst that timber was growing. When overlaid, the numerous feature of pits and lines of early wood and late wood were evident. When laid over the area from where the lift was taken from it could be seen that there was an exact match. This contrasts sharply when comparing it with other areas of the door. Even though there are similar features there was no exact match, because the growth of the timber and the effect of machining the veneer has produced different pattern in the timber therefore, even when a similar growth pattern was found, when the lift was aligned with it, the rest of the lift did not match. 8. When I compared the original fingerprint lift with the one that Ms Newman took for me I noticed striking similarities. The same features that I had noticed on the original fingerprint lift were clearly evident on the one that Ms Newman took – the grain of the wood from the door. As with the sample that Ms Newman took, I overlaid the original lift with various features that appeared both on the door and the lift. Despite finding a number of similar growth patterns in both the lift and the door veneer, when the original fingerprint lift is laid over the door, the match is incomplete. I examined the whole of the door in the area where I was told in a previous examination of the door the fingerprint lift was taken from. The lift was examined in different orientations and in reverse.” The features of the lift - the suggested pattern of wood-grain - which Mr Murat was now trying to find on the door were described before us as the “background noise” on the lift. The exercise of matching Mrs Newman’s lift to the door was one which Mr Murat was able to repeat in court before us after about a minute’s trying – some 18 months, therefore, after he first saw Mrs Newman take her lift. However, he knew the area from which she had taken that lift, and he was assisted by two matters: first, Mrs Newman’s lift was deliberately taken so as (unlike lift 6) to overlap and show the edge of the door; there was therefore only one plane in which Mr Murat had to move the lift in the relevant area in order to find its correct position; second, as will appear, Mrs Newman was, when she took her lift, deliberately taking care, by the overall pressure that she applied, to lift as much background as possible. 19. After responding to Mrs Newman’s and Mr Kershaw’s reports, Mr Murat’s second report then continued with the following paragraphs, which echoed, but adapted to the theme of comparative wood-grain pattern, the similarly headed paragraphs in his first report: “Methodology 12. Through detailed examination of wood structures it is possible by the naked eye, or in exceptional cases with a microscope, to differentiate between the grains of different woods. Each species forms distinct patterns of cell deposition within the annual growth rings, and the growth rings themselves are subject to variation through a number of different factors. The patterns of growth are unique to each tree from where the sample was taken and through analysis of the pattern of growth and the relationship of the alignment of cells, it is possible to determine if the sample was from the same tree, the same timeframe or the same area. Through using these techniques it has still not been possible to match the wood grain of the veneer seen on the door with that seen on the original fingerprint lift. Based on my investigation I have come to the following conclusions: 13. Wood is not a solid homogenous substance but a porous one composed of large numbers of very small elements or cells. 14. Different timbers have widely different properties. The texture of a wood depends on the size of its cells and the distribution of the different kinds of cells which it contains. 15. The absolute width of rings varies by species, age of the tree and growing conditions. In any one tree the rings can be bigger on a side that gets more light or due to the presence of reaction wood. 16. One of the outstanding characteristics of wood is its infinite variety. Some woods are very uniform both in texture and colour and there is little or no visible difference between one species and another. Many timbers show variation in texture and colour over a relatively small area. The fingerprint lift has three distinct features, as well as the imprint of the grain of the veneer and the fingerprints. An examination of the door, in the area from where the fingerprints have been taken, could find no evidence of the wood grain pattern marks corresponding to the wood grain pattern in fingerprint lift. 17. The door has not been changed as suggested by Ms Newman. It is quite apparent that the wood grain is enhanced by the application of the fingerprint powder and that this is the imprint on the tape. This was proved by the fingerprint lift taken by Ms Newman at my meeting on 11 th August 2003. 18. I conclude that the fingerprint could not have come from that door in the area from where the fingerprint was said to have been lifted.” The Crown’s evidence in reply 20. In commenting on the exercise undertaken by Mr Murat on 11 th August 2003, Mrs Newman said in a further report dated 4 th December 2003: “However Mr Murat goes on to say that he failed to match the original lift with any area on the door. He states he examined the whole of the door and used various orientations and in reverse. As I witnessed his examination I would state that his approach was haphazard where he randomly placed the lift on various areas of the door. He did not cover the whole area and it tool less that 1 hour. To do this examination it would require a millimetric scan covering a full 360° rotation of the acetate lift. I would expect this type of examination to take several days.” In her oral evidence, Mrs Newman described Mr Murat’s methodology as appearing random, trying randomly to place the lift by looking at the door, walking away and then back. We can understand that, for some purposes (e.g to see how thick the varnish is in any place or where there is more wear and tear), it is useful to step away from the door the better to see the reflection of light off the door. But the very small detail of the wood-grain pattern in the lift and on the door which Mr Murat was seeking to compare gives us some cause for concern about the utility of such an approach in the present context. Mrs Newman went on to explain diagrammatically how dust, grease and other contaminants will obscure and blur holes or grooves in any surface, and how it is such dust and contaminants that are lifted by adhesive tape. She also said: “In paragraph 12 Mr Murat states that different grains can be differentiated using the naked eye or a microscope. He states that using these techniques it has not been possible to match the wood grain. Mr Murat did not use a microscope, and previously in his statement he comments the pattern between the example lift I took and that on the original lift is “strikingly similar”. I would state again that this is marks and features comparison of pattern lifted from a flat surface as opposed to being totally defined as grain and is therefore outside of Mr Murat's field of expertise.” 21. Mr Kershaw also wrote a further report dated 3 rd December 2003 in which he stated: “Mr Murat does not appreciate the factors which determine what does or does not appear in a fingerprint lift. I have never suggested that there could have been an anatomical change to the wood veneer. What I have stated however, is that the lift under review has been produced under the unique conditions prevailing at that time and with all (or some) of the above factors influencing what was eventually captured by Mr Smith. I feel that Mr Murat has misunderstood my report. I have not suggested at any point that contaminants could be confused with wood grain. I have merely stated the factors which must be considered when evaluating the provenance of a fingerprint lift including any contaminants upon the surface of the door at that time. I am quite aware of the unique qualities of wood grain and can appreciate that Mr Murat has the ability to determine the origin of a wood sample when comparing sample with sample or sample with the same tree, however Mr Murat is conducting an evaluation comparing a fingerprint lift with the grained surface of a door and has no expertise in this area. The fact that he has made some elementary errors in his original evaluation suggests that he is unqualified to pass an opinion on the provenance of this fingerprint lift. I would also question the methodology he has applied to this evaluation. I feel that it is inappropriate to apply a technique for establishing the origin of a wood sample to compare a fingerprint lift with all its imperfections, creases and air bubbles with the surface of a door. I would also add that it is unclear from Mr Murat’s report if he was able to compare the lift against the whole surface of the door, millimetre by millimetre, rotating the lift through 360 degrees at each stage of the process, and at the same time interpreting all the features apparent, as this is the only way that it may be possible to locate the exact point of contact where Mr Smith placed the adhesive tape upon the surface of the door. In conclusion, I feel that there is again no substance to Mr Murat’s additional report. I am satisfied that he has acknowledged his failings in respect of his abilities to evaluate a fingerprint lift, but unfortunately he is still unaware of either the factors which influence what is ultimately revealed in a fingerprint lift and the application of an appropriate methodology to consider the provenance of a fingerprint lift.” 22. Mrs Newman’s and Mr Kershaw’s responses are both vulnerable to the criticism that they postulate a need to rotate the lift through 360 degrees at each stage of any process of comparison. Since the wood pattern of the door runs up and down, it would only be necessary to rotate the lift once through 180 degrees in each position. Furthermore, since the wood-grain shown in the lift runs roughly NNE/SSW, it could be said to be more likely that the upper edge of the lift was uppermost on any door from which the lift came. The further evidence before the Court of Appeal 23. In his oral evidence Mr Murat explained his undoubted expertise as an arboriculturalist. His expertise lies primarily in trees as a living organism and the wood-grain of trees. In this way, he can, as his reports state, differentiate between different woods. However, Mr Murat has at no point suggested that the door in court is made of a different wood to any shown in the lift. He explained to us how trees lay down concentric rings during seasonal growth. Dark lines identify early seasonal wood and white lines later seasonal wood, particularly in temporate climates like the UK’s. The thickness of bands depends on factors like the amount of rainfall. He described broad bands as macro features and narrow bands and other smaller features as micro features. He identified the door in court as having a veneer, possibly stained and thinly varnished. Beyond saying that a council house bedroom door is likely to be cheap and mass-produced, he said no more about it or its origin. 24. So far as concerns the exercise in relation to which Mr Murat was called to give evidence, he conceded at the outset of his cross-examination that it was for him a “new adventure” in comparing wood-grain “in this particular way”, but not he said otherwise. In further describing the exercise of comparison which he undertook on 11 th August 2003, he said that it took about an hour, and he did not feel it necessary to keep stopping, because the grain was vertical, but that he stopped in “several places”, though he could not remember how many. Contrary to a suggestion put at one point by Mr Kamlish to Mrs Newman, it could never have been possible to undertake any such exercise of comparison as Mr Murat sought to effect by placing the lift at fixed points across the grain and then assuming that the bands and lines of grain ran entirely straight and in parallel, so that, if the lift did not match there, it could not match anywhere. Nor do we think that Mr Murat himself ever suggested anything like that. 25. Mr Murat told us that he could find no place on the door with “even remotely similar wood” to the lift. We recall however that in his second report he made statements as follows: (1) “Even though there are similar features there was no exact match” (paragraph 7), (2) “Despite finding a number of similar growth patterns in both the lift and the door veneer, when the original fingerprint lift is laid over the door, the match is incomplete” (paragraph 8) and (3) “It is only on detailed examination that the individual growth patterns of the wood are different” (paragraph 10). In re-examination he furthermore accepted that the wood-grain pattern on lift 6 bore a “large number of similarities” to that on the door. Asked what elements were different when he tried to achieve a match, he said that, you would, for example, find a particularly wide growth ring, where, he said, “you would expect the left and the right to fall into line [i.e. with the lift], but that did not occur”. 26. Mr Murat’s evidence rested on several key points: First, he believed that, for the purposes of the comparison he was undertaking, the condition of the door, and particularly the pattern of its wood-grain, remained effectively the same as in 1995. Second, when asked then whether he considered that he could still make a perfect match from the door, if the lift came from it, he said that he did – the macro and micro elements could still be lined up, by looking for the formation of the wood-grain. Third, he explained that he was relying on further advice from a fingerprint expert (again presumably Mr Bayle), to the effect that the background striations appearing on lift 6 was “exclusively woodgrain”. He said that he had proceeded on the assumption that this information was accurate. Asked to confirm that he was unable to distinguish between any accurate and inaccurate elements of that information, he replied “I suppose so, yes”. He acknowledged that he was not familiar with factors which could affect the ability to recover the entire background surface on a lift. He had not therefore considered the significance of any of the factors relied on by Mr Kershaw or Mrs Newman because he was advised that the “background noise” in the lift was wood-grain. 27. We have been able to examine lift 6 and, as we have said, to see a brief illustration of the approach which Mr Murat deployed to see whether he could find a match. The exercise of comparison was one which he was undertaking for the first time in his life without prior experience, testing or study, apart from the one instance provided on the same occasion by Mrs Newman’s lift. There was no contemporaneous record or diagram of the exercise in any form. It is far from apparent how much of the door it covered. In opening the appeal Mr Kamlish spoke of “quite a large area around the handle”, but explained that as meaning several inches in all directions; and, when questioning the Crown’s witnesses he demonstrated to them as relevant a very small area around the handle. Mr Bayle’s sketch appended to Mr Murat’s first report is not to scale, but it shows the location of his photographs (in columns of five) with an indication which suggests that each photograph covered an area about four inches high. That would give a total column height of around 20”, extending perhaps 10” above the door handle itself. Before us, after reference to his evidence at trial that lift 6 was taken “just above the handle of the door itself”, Mr Smith went on to say that it was “midway between the floor and the top of the door – in the handle area”. In cross-examination, he accepted that this would connote a much larger area than his description at trial. He explained that he had not identified or recorded the precise location, because he had been sent to look inside the house for the fingerprints of any outsider and it would not matter where on the inside door he found any. During the appeal, we questioned whether, in the absence of any contemporaneous record, Mr Smith’s evidence excludes any possibility that lift 6 was taken somewhat higher than 10” above the door handle. The fact that the lift is of the two left hand fingerprints, in a position suggesting that they could well have been placed when pushing the door open with a slightly outstretched arm, may also suggest that the lift could have been taken at a point a little above any apparently covered by Mr Bayle’s photographs. Mr Murat took around an hour on his exercise of comparison. But after we raised our question regarding the possible position of any lift, Mr Kamlish suggested to Mr Kershaw that he should undertake a similar exercise to Mr Murat’s, but over one-third of the door and over a period of four/five hours. Mr Kershaw declined to do so. We return to the significance of this suggestion and its refusal below. 28. The striations on lift 6 are not easy to see, against whatever surface that lift is held. They reproduce more clearly in photographic form, but in that form it is not possible to lay lift 6 as a transparency on top of another surface. The striations are even less visible as soon as the lift is placed on the door. This is because the lift is transparent, the lines on it are faint and the door has a light brown colour from varnish and quite probably stain. Accepting for present purposes the assumption on the basis of which Mr Murat proceeded (viz. that the striations on lift 6 are a consequence of the wood-grain pattern in whatever wood the lift was taken from), it is nevertheless apparent from the lift itself that it has not picked up the whole wood-grain pattern. There are striations suggesting wood-grain which are vestigial in length, although, if they reflect grain, the grain must have continued on the original door but not been picked up on the lift. It also seems quite impossible in these circumstances to exclude the possibility that there were wood-grain lines not picked up at all. The presence of vestigial lines (creating the appearance of much wider bands in those areas where no continuing traces exist in the lift) itself throws grave doubt on the feasibility of the exercise on which Mr Murat engaged. We note in this connection that, when Mr Murat was asked to give an example of the difference in elements that led him to reject any match between lift 6 and the door, the example he gave was of a particularly wide growth ring, where, he said, “you would expect the left and the right to fall into line [i.e. with the lift], but that did not occur”. 29. Another point that emerged from cross-examination of Mr Murat and from the evidence of Mrs Newman and Mr Kershaw was that adhesive tape can, in the process of its application and removal, become subject to slight distortion, both concentrically as a result of the use of thumb and forefinger and as a result of creasing and bubbles, such as actually occurred during lift 6’s attachment to acetate tape. That itself could of course affect the ability of any examiner to match striations on the lift to any wood-grain pattern from which they derived. 30. The fact that a match was possible between Mrs Newman’s lift and the door does not appear to us significant. Mrs Newman explained that in making her lift on 11 th August 2003 she had selected an area near the top of the door which would not normally have been handled or have as much contamination as elsewhere, and that she had applied maximum finger-pressure, to try to pick up all possible background noise. In contrast, when lifting a fingerprint, the usual technique for someone like Mr Smith to adopt would involve heavier pressure in the area of the print, and lighter pressure elsewhere. Mrs Newman confirmed that it was apparent that the taker of lift 6 had indeed concentrated on the areas of the two fingerprints shown in it. Whether for this reason or because of differing degrees of dust and contamination in any area from which lift 6 was taken, it is on any view clear that lift 6 has not picked up the whole of any wood-grain pattern. This as we have said undermines any attempt to match lift 6 with any area from which it derived. Mr Murat’s own evidence indicates that he expected to be able to make a perfect match. If he was looking for that, we do not find it in any way remarkable that he could not achieve it. 31. Mrs Newman and Mr Kershaw emphasised in their reports and evidence the point that any lift can only reflect the condition of the surface from which it is taken at the time it is taken. More accurately, features shown on a lift reflect the accumulation of aluminium powder applied for the purpose of the lift, together with pre-existing dust, grease and other contaminants. These substances accumulate in depressions in the surface, and are lifted on the adhesive tape when that is applied. If at a later stage, another lift is taken from the same spot or the surface there is simply inspected, the condition of the surface in that spot will be affected by, first, the removal of dust, grease and contaminants by the previous lift and, second, any further dust, grease or other contaminants that may have accumulated there since, and of course by any other incidents, or wear and tear, that may have occurred. In their view therefore there was no utility in seeking to compare lift 6, taken in 1995, with the surface, or further lifts taken from the surface, of a door inspected eight years later in August 2003, or nearly 10 years later now. 32. Mr Murat made the valid point that nothing can have affected the wood-grain itself on the door. Despite the long lapse of time since 1995 and the door’s history of use and movement, he did not see any reason to think that the wood-grain in the door would look different visually now or in 2003 when compared with the way in which it would have looked in 1995. Assuming that to be so, the comparison which he has undertaken was not between the door then and the door now, but between the door in 2003 and a lift taken eight years before in 1995. A lift is not a photograph. It is a reflection of physical factors identified by Mrs Newman and Mr Kershaw. The striations shown or not shown on a lift reflect the application of powder and the existence of dust and other contaminants in the surface on a particular day. They may or may not be exactly reproduced by a lift taken on another day, and they may not be capable afterwards of being precisely related to the original door, because of the removal of such powder, dust and contaminants, or the subsequent accumulation of further dust and contaminants. We accept that, if this was the only reason for questioning the validity of the comparison which Mr Murat undertook, we would have felt greater concern about the matter. But it adds to the other grave doubts which we have already expressed about the whole exercise which he undertook. 33. Both Mrs Newman and Mr Kershaw were challenged as to why they had not themselves attempted, and why they would not even now attempt, such an exercise as Mr Murat undertook. We have already indicated the reasons why they regarded this as inappropriate and of no utility. Any feeling on our part that they might have been more forthcoming is outweighed by the information which we have been given, and which Mr Kamlish stressed in other connections, to the effect that those representing the appellant have made repeated efforts in every direction, including with fingerprint, forensic science and computer experts, to find someone able to compare the background noise on the lift with the door. Mr Kamlish said openly that the reaction of all these experts had been the same as that of Mrs Newman and Mr Kershaw, namely that there was no utility in the exercise or no possibility of its being validly undertaken, that is until they were introduced to Mr Murat. For our part, if the exercise of comparing the wood-grain pattern of the door with the faint striations on lift 6 is one that could validly be undertaken at all, we do find it a matter of relevant comment that it could evidently not be undertaken by computer. But it clearly cannot be said to be surprising that individuals such as Mrs Newman and Mr Kershaw should refuse to contemplate it, because that is, as Mr Kamlish himself explained, the general reaction that the appellant’s legal representatives have also elicited through their enquiries. 34. We return to Mr Smith’s evidence. He only moved to Manchester in 1988 and only started working for the police in 1989. He was initially an intelligence officer, and became a scenes of crime officer in 1992. As such, particularly once he became a senior scenes of crime officer in 1994, he was involved in on the spot investigation of the most serious crimes, including violent murders. He retired in August 1996, explaining in his statement dated 6 th July 2004 that this was “due to personal reasons and totally unconnected to any pre-existing condition”. In a later statement dated 2 nd August 2004 he said that he wanted “to make it clear, that the fact that I was medically retired, was for Personal reasons and that it was not in any way, connected to my ability to carry out my Professional Duties at any time whatsoever”. In oral evidence, he explained that the personal reasons related to his marriage and led to his separation in 1997 and eventual divorce. Mr Kamlish cross-examined Mr Smith by reference to a statement to his doctor recorded in his medical records to the effect that he had begun to experience depression and felt that this was related very much to the work he had been doing and that he found himself thinking about instant crime scenes and reliving these episodes. Mr Kamlish suggested to him the possibility that he had wanted to get away from his work, because he had done something wrong – a suggestion that Mr Smith rebutted in a way which we found convincing. Mr Smith’s two statements were evidently concerned to rebut any suggestion that his medical unfitness reflected on his prior competence, particularly in August 1995. They are not inconsistent with him having personal problems, particularly depression, which involved flashbacks to the crime scenes, sometimes gruesome, which he had visited at work. Nor do we think that significance could be attached to his failure when speaking to his doctor to assign as a cause of his depression the marital problems which he told us he was then beginning to experience, but which were with hindsight of sufficient seriousness to lead to separation in 1997 and later divorce. 35. Mr Smith said that he had not had in any capacity any dealings with or knowledge of the appellant or his name prior to taking the lifts at 25 Frankton Road, and that he had not gone there with any person in mind. He said that he was 100% confident where he had lifted lift 6 and that there was absolutely no prospect that it came from elsewhere. He had not had available to him on 4 th or 5 th August 1995 any lifts from other sources. He was also emphatic that lift 7 had come from the piece of glass which he received on 6 th August 1995 from DC Watson. He said at the trial that he had entered as the address for lift 7 on the acetate 25 Frankton Road, because that was where he was told it was from. In cross-examination he said that this was not misleading because it was a lift in relation to the investigation at 25 Frankton Road; and, for the same reason, it was not misleading to enter it as lift 7 on the 25 Frankton Road docket. 36. Mr Smith was cross-examined about the procedure he adopted. He acknowledged that it was unusual in one respect. Instead of using a standard crime scene examination report form, the information on which would then be transferred with the lifts onto and into a docket, he had used the docket to record lifts as and when he made them. He explained that, because he was called out to go to 25 Frankton Road on a Saturday, he only had with him in his car a docket. Mrs Newman confirmed that crime scene examination reports are usually kept in, and taken when needed from, the office, and are not part of the standard kit that scenes of crime officers carry with them. 37. Mrs Newman accepted however that Mr Smith was vulnerable to criticism in another respect. He had recorded on the acetate tape the address and date of the lift and its number and had initialled the lift at the edges. But he had not identified the location of the lift within the address, by writing “door” or “bedroom door”. Nor had he identified the orientation of the lift, although she said that the normal practice would involve placing the lift on the acetate tape the same way up as it had been on a door (and this would also be consistent with the way up the fingerprints would in fact have been, had the fingers been being used to push a door open). She said however that an examiner would not normally put exact measurements of a location on the lift. Drawing a diagram to show these had only become common practice in the last five years. The legal issues on this appeal 38. We turn now to consider whether the evidence which we have heard de bene esse should be admitted under s. 23 of the Criminal Appeal Act 1968 , and whether, if admitted, it renders the jury’s verdict unsafe. Under s.23(1) “the Court of Appeal may, if they think it necessary or expedient in the interests of justice ….. (c) receive any evidence which was not adduced in the proceedings from which the appeal lies”. Under s.23(2) the Court shall, in considering whether to receive any evidence, have regard in particular to: “(a) whether the evidence appears to the Court to be capable of belief; (b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal; (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.” 39. Under 2(1) of the 1968 Act , the Court “(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.” 40. These provisions were considered by the House of Lords in R v. Pendleton [2001] UKHL 66 ’ [2002] 1 CAR 34. There Lord Bingham, with whom three other members of the House agreed, said this: “18. Where the Court of Appeal has heard oral evidence under section 23(1) (c) (whether pursuant to its own decision, or by agreement, or de bene esse), the evidence will almost always have appeared, on paper, to be capable of belief and to afford a possible ground for allowing the appeal. By the time the court comes to decide whether the appeal should be allowed or dismissed, it will have heard the evidence, including cross-examination, and any submissions made on its effect. It may then conclude, without doubt, that the evidence cannot be accepted or cannot afford a ground for allowing the appeal. Such was the case, for example, in R v Jones (Steven) [1997] 1 CrAppR 86, where the court, having decided to receive and having heard opinion evidence from an expert, found conclusive objections to the acceptability of that opinion (see p 94). The court may, on the other hand, judge the fresh evidence to be clearly conclusive in favour of allowing the appeal. Such might be the case, for example, if a witness who could not be in any way impeached testified, on oath and after all appropriate warnings, that he alone had committed the crime for which the appellant had been convicted. The more difficult cases are of course those which fall between these extreme ends of the spectrum. 19. It is undesirable that exercise of the important judgment entrusted to the Court of Appeal by section 2(1) of the 1968 Act should be constrained by words not to be found in the statute and that adherence to a particular thought process should be required by judicial decision. Thus the House in Stafford were right to reject the submission of counsel that the Court of Appeal had asked the wrong question by taking as the test the effect of the fresh evidence on their minds and not the effect that that evidence would have had on the mind of the jury ( [1974] AC 878 at 880). It would, as the House pointed out, be anomalous for the court to say that the evidence raised no doubt whatever in their minds but might have raised a reasonable doubt in the minds of the jury. I am not persuaded that the House laid down any incorrect principle in Stafford, so long as the Court of Appeal bears very clearly in mind that the question for its consideration is whether the conviction is safe and not whether the accused is guilty. But the test advocated by counsel in Stafford and by Mr Mansfield in this appeal does have a dual virtue to which the speeches I have quoted perhaps gave somewhat inadequate recognition. First, it reminds the Court of Appeal that it is not and should never become the primary decision-maker. Secondly, it reminds the Court of Appeal that it has an imperfect and incomplete understanding of the full processes which led the jury to convict. The Court of Appeal can make its assessment of the fresh evidence it has heard, but save in a clear case it is at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard. For these reasons it will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe.” 41. The first question raised by the submissions before us was whether the evidence of Mr Murat would have been admissible at all. After his initial report, it was said on behalf of the appellant that “Based on his expertise in woodgrain, Mr Murat is of the opinion that [lift 6] could not have been removed from the [small bedroom] door” After his second report, his evidence was advanced on the basis that “Having examined the original fingerprint lift [lift 6] …. and the door itself, in his opinion, there is no match between the woodgrain which is present in the fingerprint lift and the woodgrain on the surface of the door”. Before us, Mr Kamlish submitted that Mr Murat had relevant expertise in two respects: (1) in identifying woodgrain and in distinguishing it from contaminants and (2) in rebutting any suggestion that the varnish on the door makes comparison between lift 6 and the small bedroom door impossible. Mr Kamlish did not advance him as an expert in the comparison of such a lift and a door. But he submitted that the exercise of comparison that Mr Murat had undertaken was a matter of observation which could be presented to a jury for them to evaluate. 42. The relevant principles regarding expert evidence were not in issue before us. In Robb (1991) 93 CAR 161, 165 Bingham LJ said that: “the two relevant questions are whether study and experience will give a witness’s opinion an authority which the opinion of one not so qualified will lack, and (if so) whether the witness in question is skilled and has adequate knowledge. If these conditions are met the evidence of the witness is in law admissible, although the weight to be attached to his opinion must of course be assessed by the tribunal of fact.” The question in that case was whether it was the defendant who had made ransom demands and given a cab instructions which were captured on a tape recording which the Crown sought to compare with a control video tape containing the defendant’s voice. The expert called by the Crown was a phonetician who was “well qualified by academic training and practical experience to express a view on voice identification”. The court considered that “his judgment, based on close attention to voice quality, voice pitch and the pronunciation of vowels and consonants would have a value significantly greater than that of the ordinary untutored layman, as the judgment of a hand-writing expert is superior to that of the man in the street”. 43. In Clarke [1995] 2 CAR 425, a robber had been filmed on CCTV, from which stills were made. These were sent to Dr Vanezis, a pathologist and director of the Facial Identification Centre at Charing Cross Hospital, who compared the stills with police identification photographs using the then new technique of video superimposition. The court said this: “It is essential that our criminal justice system should take into account modern methods of crime detection. It is no surprise, therefore, that tape recordings, photographs and films are regularly placed before juries. Sometimes that is done without expert evidence, but, of course, if that real evidence is not sufficiently intelligible to the jury without expert evidence, it has always been accepted that it is possible to place before the jury the opinion of an expert in order to assist them in their interpretation of the real evidence. The leading case on that point is Turner (1975) 60 Cr.App.R 80, [1975] Q.B. 834 . We would add this. There are no closed categories where such evidence may be placed before a jury. It would be entirely wrong to deny to the law of evidence the advantages to be gained from new techniques and new advances in science. An illustration is to be found in the case of Stockwell (1993) 97 Cr.App.R. 260 . That case also involved a bank robbery. The robber was disguised. The prosecution tendered facial mapping evidence through an expert. The principal point on the appeal was whether the judge had rightly permitted that expert evidence to be adduced. The Court referred to the decision on Turner and then remarked as follows at pp. 263-264: ‘Where, for example, there is a clear photograph and no suggestion that the subject has changed his appearance, a jury could usually reach a conclusion without help. Where, as here, however, it is admitted that the appellant had grown a beard shortly before his arrest, and it is suggested further that the robber may have been wearing clear spectacles and a wig for disguise, a comparison of the photograph and defendant may not be straightforward. In such circumstances we can see no reason why expert evidence, if it can provide the jury with information and assistance they would otherwise lack, should not be given. In each case it must be for the judge to decide whether the issue is one on which the jury could be assisted by expert evidence, and whether the expert tendered has the expertise to provide such evidence.’ After dealing with the evidence of facial mapping the Lord Chief Justice observed that the judge described it as “breaking new ground”, and then quoted with approval the observation by the trial judge (at p. 264): ‘’One should not set one’s face against fresh developments, provided they have a proper foundation…’’ There are, of course, differences between the case of Stockwell and the more developed technique used here. But for our part we regard those differences as raising no issue of principle whatever. Indeed, what is involved here is simply an extension of the technique used in Stockwell . We are far from saying that such evidence may not be flawed. It is, of course, essential that expert evidence, going to issues of identity, should be carefully scrutinised. Such evidence could be flawed. It could be flawed just as much as the evidence of a fingerprint expert could be flawed. But it does not seem to us that there is any objection in principle.” 44. Most recently in Dallagher [2002] EWCA Crim 1903 ; [2003] 1 CAR 12, the Crown relied on a comparison by two experts (Mr Van Der Lugt, a Dutch police officer who had specialised in ear print comparison for over a decade and, once again, Prof. Vanezis) of ear print marks found on a window with control prints provided by the defendant and others. After conviction, new evidence emerged about the misgivings that some forensic experts had about the extent to which ear print evidence alone could, in the present state of knowledge, safely be used to identify a suspect. The Court set aside the verdict and ordered a retrial. It cited Bingham LJ’s words in Robb regarding the need both for study and experience to give a witness’s opinion an authority which the opinion of one not so qualified will lack and for skill and adequate knowledge. It said in relation to the case before it that it would not have been possible to exclude the evidence about the finding of the ear prints and their comparison by Mr Van Der Lugt and Prof. Vanezis, but that the issue was as to the value of their conclusion, or in other words weight. The Court concluded that the fresh evidence threw doubt on this and so on the safety of the verdict. Conclusions 45. In all these cases, the making of the relevant comparison was itself treated as a matter to be undertaken by an appropriately qualified and skilled expert. Here, we are satisfied that Mr Murat has no experience or expertise in the relevant comparison; and indeed, as we have observed, Mr Kamlish does not put him forward as having this. Mr Murat does have expertise in identifying woodgrain in wood, including veneer, and also in doing so despite or making allowances for the presence of varnish. But he has no expertise in the interpretation of lifts, or in the identification of wood-grain on lifts. He himself said that he was relying on a fingerprint expert for an assumption that the striations in lift 6 reflected wood-grain. However, we are prepared to accept and to proceed on the basis that the striations which can be seen on lift 6 do derive from wood-grain. But the completeness and precision of the reflection depends on factors such as the quantity of powder and pressure used and the extent of any grease or other contaminants lifted. Mr Murat has no experience or expertise to enable him to judge the extent to which the striations which show on the lift are complete or do or may completely or precisely reflect the wood-grain evident on the door; we have already indicated why it appears that the striations are not and do not. 46. In those circumstances, we do not consider that any expert evidence that it is said that Mr Murat could give could afford any ground for regarding the jury’s verdict as unsafe or therefore for allowing an appeal (cf s.23(2) (b)). However, Mr Kamlish submits that Mr Murat’s exercise in comparison is one which could have been admitted at trial as a matter of observation. He asks rhetorically: how else is the appellant to be able to challenge his conviction, in the apparent absence of (demonstrated by the appellant’s lawyers’ strenuous but unsuccessful attempts to locate) any other relevant expert? The interests of justice in Mr Kamlish’s submission justify the admission of Mr Murat’s comparison. Even if we were to accept this submission, however, we would have to consider what weight might attach to the exercise which Mr Murat undertook. This consideration arises both when considering under s.23(2) (b) whether the evidence “may afford any ground for allowing the appeal” and, if we treat the evidence as having been admitted, when considering whether the verdict is unsafe. For reasons which we have already given, we consider that, quite apart from the technical issue whether Mr Murat’s evidence is admissible, his evidence regarding the comparison he made lacks any substantial force. We refer to his lack of knowledge regarding the taking of lifts and the significance and interpretation of features appearing in them, his lack of any significant experience of prior comparisons, and the absence of any record of the exercise which he undertook. Further, although unnecessary to rely on, there are positive indications in the evidence of Mrs Newman (which we found convincing on this point) that the exercise was, although clearly well-intentioned, haphazard and random. If we pose to ourselves the question whether the jury’s verdict in this case might reasonably have been affected by Mr Murat’s evidence as we have heard and seen it, we would answer that question in the negative. Safety generally 47. The issue of safety of the jury’s verdict can also be viewed against a wider background. In order to have any prospect of undermining the almost inevitable inference to be drawn from the presence of otherwise unexplained fingerprints belonging to the appellant inside the Pickles’ home on 5 th August 1995, the appellant had evidentially to raise some possibility that the prints in lift 6 may have come from elsewhere. In practical terms, that meant some mix-up, but there was nothing to make that remotely plausible, or, as the judge indicated to the jury, some possibility of a deliberate plant, coupled with perjury by the police called at trial. The finger has been pointed at Mr Smith, but, having heard his evidence ourselves, we find no support for the possibility in either its content or in the way in which it was given. Mr M. Wilson, now deceased, has also been mentioned in this connection. Again there is nothing to support that. Points have been sought to be made on the documents, but we see no force in them. It was suggested, for example, that there may be significance in the manual alteration of the print on the docket so that, instead of reading “All the impressions have been eliminated. The fingerprint case is now closed”, it read simply “Some of the impressions have been eliminated”. But that was entirely appropriate and indeed necessary in circumstances where lifts 1 to 5 were found to relate to persons on the premises with authority, but lifts 6 and 7 were found to relate to a suspected intruder, later identified as the appellant. The insertion on lift 7 of the address of 25 Frankton Road also appears entirely explicable and innocent. If lift 7 was not genuine, but was introduced as a plant under the pretence that it came from the Lonsdale car park, the person or persons planting it would hardly have put it forward as coming from 25 Frankton Road. The idea that Mr Smith on 6 th August 1995 originally intended to put it forward as coming from Frankton Road and later changed his mind to refer to the Lonsdale car park is not consistent with the entries that he made on the docket which he passed on to Mr M Wilson on 7 th August 1995, which identified the bottle with the initials “WB1”, referring to PC William Barclay whose only known or suggested involvement consisted in his visit with Mr Wilson the taxi-driver to the Lonsdale on Saturday, 5 th August. 48. The whole subject of lift 7 is in our view of some interest in relation to the safety of the verdict. In order to try to explain lift 6, the appellant has to suggest planting by Mr Smith or possibly Mr M. Wilson. But lift 7 provided an important further link between the date and immediate vicinity of the crime and the appellant. The taxi-driver Mr Stephen Wilson gave evidence of the fare he picked up some 250 metres from 25 Frankton Road shortly after the time of the crime, and that his passenger threw a soft drinks bottle against the wall of the Lonsdale public house, breaking it. He also attended an identification parade on 11 th September 1995, when the persons presented had the lower parts of their faces covered by scarves and their heads covered with hats. He first thought that his fare was no. 4 in the line, and asked that he remove his hat, whereupon he excluded him. He then asked whether he was only allowed just one, and on being told yes, said “No. 5 seems very similar”. No. 5 was in fact the appellant, but Mr S. Wilson was not permitted to ask him to remove his hat or further to confirm any identification. 49. Both Mr S. Wilson and PC William Barclay gave evidence that Mr Wilson took PC Barclay back to the Lonsdale Public House on Saturday 5 th August. PC Barclay there found pieces of a Britvic bottle - according to Mr Wilson in the place where his passenger had broken a bottle. PC Barclay’s evidence was that one of these pieces was exhibit WB1, which he handed to DC Watson on the same day, and DC Watson’s evidence was that he passed this on to Mr Smith on 6 th August 1995. It appears marked WB1 on the docket which Mr Smith had opened and which he passed to Mr M. Wilson with all the lifts on 7 th August 1995. If lift 6 was planted but lift 7 was genuine, it would have to have been the most remarkable coincidence both that the police chose to frame the appellant and then discovered, on a shard in a deserted car park in Cheetham Hill where the appellant happened from time to time to throw bottles, a genuine fingerprint belonging to the appellant, and that someone quite different should, shortly after the commission of the crime, take a taxi from near to the scene of crime in Whitefield to that deserted public house in Cheetham Hill and there throw another bottle (which PC Barclay seems also to have missed on the search which Mr S. Wilson directed him to make in the relevant place). If, on the other hand, one were to postulate the possibility of both lifts 6 and 7 being planted by the police, the implication must be that the police not only had in their possession from some unexplained prior date lifts of the appellant’s fingerprint derived from a door with a grain generally similar to that of the Pickles’ small bedroom door, but also had in their possession a lift of his fingerprint from a glass surface, and that they decided to plant that on a glass shard found in a deserted car park in a different area of Manchester to 25 Frankton Road where, by pure coincidence and luck, the defendant subsequently disclosed that he used to eat sandwiches and from time to time discard glass bottles. Summary 50. In summary, we consider that any expert evidence that Mr Murat can give is of very limited relevance, and he is not qualified to give expert evidence comparing lift 6 with the door. But, leaving that on one side and treating the whole of his evidence, including that given regarding the exercise of comparison which he undertook, as admissible, we do not consider that it has weight sufficient to throw any doubt on the safety of the jury’s verdict. We have seen nothing to lend any support to the wide-ranging allegations of police misdoing, particularly by Mr Smith and/or Mr M. Wilson, which are inherent in the suggestion that lift 6 and/or lift 7 was or were planted. On the contrary, as we have said, any such proposition faces the difficulty that it itself postulates the occurrence of considerable and surprising coincidences. We have considered the possibility, raised before us by Mr Kamlish, of a reference to the Criminal Cases Review Commission for further investigations and a report to the Court to be made under s.23 A(1) of the Criminal Appeal Act 1968 . Having regard to each of sub-paragraphs (b) and (c) and in the light of our conclusions fortified by the appellant’s own complete failure to find any expert other than Mr Murat supporting the feasibility of the comparison which they wish to undertake, we see no basis for that. This appeal therefore falls to be dismissed.

2005_05_10-512.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/1158/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/1158

71c98781c075eaa35c97c417c696e78aaf67dcf18e14c049a427baa6b239a984

[2024] EWCA Crim 38

EWCA_Crim_38

crown_court

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION [2024] EWCA Crim 38 No. 202302854 A2 Royal Courts of Justice Tuesday, 16 January 2024 Before: LORD JUSTICE POPPLEWELL MR JUSTICE CHOUDHURY HER HONOUR JUDGE ANGELA RAFFERTY KC REX V GARY CUSHEN __________ Computer-aided Transcript prepared from the Stenographic Notes of Opus 2 International Ltd. Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 CACD.ACO@opus2.digital _________ Ms A. Nurse appeared on behalf of the Appellant. The Crown were not represented. _________ JUDGMENT LORD JUSTICE POPPLEWELL: 1 On 27 July 2023 the appellant, then aged 37, was sentenced by Mr Recorder King in the Crown Court at Basildon to three years' imprisonment for breach of a restraining order. He appeals against sentence with leave of the single judge. 2 The restraining order was imposed on 10 June 2023 and the breach in question occurred by Facebook messages which were exchanged on 21 to 22 November 2023, but the relevant history goes back further than that. 3 The restraining order arose out of a relationship between the appellant and Ms Mance which began in 2020. She bore his son in June 2021, but by that time the Family Court sitting at Southend had already issued a non-molestation order on 29 October 2020 prohibiting the appellant from contacting Ms Mance for one year. 4 That non-molestation order arose out of three offences which had been committed against her, two offences of battery and one of harassment putting her in fear of violence. He was subsequently convicted of those offences on 21 December 2020. The first battery offence occurred on 3 October 2020 when he attended Ms Mance's address and, when asked to leave, pushed her into a bin causing her stomach to be pressed up against the bin. On that occasion he made threats towards her and the unborn baby. The second battery occurred on 20 October 2020 when the appellant grabbed Ms Mance by the arm and shouted in her face, making threats of violence towards her. Ms Mance's daughter was with her at the time and witnessed what happened. The harassment offence commenced on 2 October 2020 and lasted until 14 November 2020, that is to say continuing after the imposition of the non-molestation order. During that period the appellant had tried to call Ms Mance between 20 and 30 times a day as well as sending multiple text messages. The calls and messages involved making threats of violence towards her, threats to damage her property and other distressing comments such as that he hoped that their unborn baby died. 5 He was sentenced to a total of 10 months' imprisonment on 21 December 2020 for those offences and additionally for breaching the non-molestation order by continuing the harassment which had commenced on 2 October after the non-molestation order was in place. He was also on that occasion sentenced for a conviction comprising a breach of the non-molestation order by activity between 8 and 11 December when he attended Ms Mance's address and tried to call her on two occasions. At that time a restraining order was imposed. 6 On 30 April 2022, some 18 months after those offences, he committed further offences against Ms Mance in breach of the restraining order. On that occasion he attended Ms Mance's address unannounced and kicked the door down, causing the door frame to fall off the wall. Ms Mance attempted to call the police in an effort to get the appellant to leave, but he grabbed her around the arm and tried to take her telephone. As a result, she suffered bruising to her forearm and bicep. 7 On 10 June 2022 he was sentenced to 20 months' imprisonment for those offences and a fresh restraining order was made, to continue until further order, which, amongst other things, included a prohibition on contacting Ms Mance directly or indirectly, save via solicitors by order of the Family Court, or via social services for the purposes of child contact. 8 This was the restraining order which he breached in the instant offence which occurred about three weeks after he had been released from custody on licence. 9 At about 5 pm on 21 November 2022 he contacted Ms Mance via Facebook Messenger. The messages began with him saying that he knew it was a risk to message her. He continued by saying that he wanted closure and he apologised for messaging her. The conversation continued with the appellant asking Ms Mance to make sure that their son did not forget him, and then making a request not to tell anybody that he had messaged her. The messages on that day ended with the appellant asking her to give their son a big kiss, which she said she would. That he was missing his son had been a theme throughout those exchanges. 10 She then initiated a further exchange the following day by contacting him and saying: "You've further messed with my head messaging me." Those exchanges became more argumentative and antagonistic, with the appellant asking her to facilitate child contact and to drop the order against him. Ms Mance made repeated requests that the appellant stop contacting her and go through the proper channels in order to see his son. The appellant eventually agreed, stating that she would not hear from him again. 11 Ms Mance described herself as feeling caught off guard, shocked and confused when he contacted her, as she had not been made aware that he had been released. The fact of release had caused her mental health to deteriorate. She said that he made no threats of violence and had purely contacted her in remorse, but she did not believe anything he said. She remained scared that he would turn up at her address and inflict violence, given his complete disregard for the court order forbidding contact. 12 The appellant had previous convictions for 62 offences. Apart from the previous offending against Ms Mance, these also included instances of domestic abuse of another ex-partner, committed in breach of a non-molestation order. 13 There was no pre-sentence report. The recorder had said that no such report was necessary, and the appellant did not seek an adjournment for one to be prepared. That was understandable. His sentencing had been delayed, and having been in custody on remand for seven and a half months, he was anxious to be sentenced without further delay. 14 In sentencing, the Recorder said that if the offending were looked at in isolation, it fell within Category 2B of the Sentencing Council Guideline which has a starting point of 12 weeks and a range from a community order up to 12 months. However, the previous history of non-compliance with court orders, he said, elevated it to a Category 1A offence which has a starting point of two years and a range of one to four years. He identified as aggravating features the previous convictions, a proven history of violence and threats towards Ms Mance, the use of contact arrangements with a child on this occasion as an excuse for making contact, the effect on the victim, and the offence having been committed when on licence. In the context of aggravating features he referred again to breaches of previous orders. He said it was a case that came very close to requiring the maximum sentence because of the appellant’s history of offending and his manipulative behaviour. Having said that he would give a full one-third credit for the early guilty plea, he said that the least sentence which was appropriate was one of three years. 15 On the appellant's behalf, Ms Nurse, in attractive submissions, argues that a sentence (after a trial) of four and a-half years, which is what the Recorder must have taken, was manifestly excessive. It involved double counting in taking the same factors into account in elevating the offence into Category 1A, and then, as further aggravation, so as to increase the sentence from the starting point in that category. Further, she submitted, and, in any event, it was much too high a figure, being beyond the top of the range for a Category 1A offence. 16 We agree. This was the last chapter in persistent and deliberate disregard for court orders, which is serious. It was that aspect which constituted the gravamen of the offence, and that was the chief aggravating feature of the previous offending, which we would agree was such as to justify moving it into Category 1A. However, the previous history of offending did not justify any further significant uplift having been taken into account in this way. This breach offence did not involve any substantive offence committed against Ms Mance. It did not involve the use or threat of violence, and it was she who initiated the contact on the second day. The impact was real, but in so far as it amounted to a fear of violence, that arose largely, although not wholly, out of his previous conduct and the fact of his release from prison, not from this further contact by way of messaging. It was, in our view, a long way from the kind of conduct which would justify a sentence near the maximum for the offence. 17 Taking into account the other aggravating features, and the very limited mitigation, we consider that an appropriate sentence after a trial would have been one of two and a half years' imprisonment, which after full discount for the early plea becomes one of 20 months' imprisonment. 18 We will, accordingly, reduce the sentence to one of 20 months' imprisonment. To that extent the appeal is allowed. _____________

2024_01_16-5981.xml

allowed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2024/38/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2024/38

182b892a71a515d3b0a3ef83a3e01ed22f87acfad9ea2db12c8dc8c55606b177

[2007] EWCA Crim 53

EWCA_Crim_53

supreme_court

Neutral Citation Number: [2007] EWCA Crim 53 Case No: 200605703 A6 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM MANCHESTER CROWN COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 30/01/2007 Before : THE PRESIDENT OF THE QUEEN'S BENCH DIVISION THE HON MR JUSTICE GRAY and THE HON MR JUSTICE HENRIQUES - - - - - - - - - - - - - - - - - - - - - Between : Reference by HM Attorney General. Section 36 of the Criminal Justice Act 1988 (R v H) - - - - -

Neutral Citation Number: [2007] EWCA Crim 53 Case No: 200605703 A6 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM MANCHESTER CROWN COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 30/01/2007 Before : THE PRESIDENT OF THE QUEEN'S BENCH DIVISION THE HON MR JUSTICE GRAY and THE HON MR JUSTICE HENRIQUES - - - - - - - - - - - - - - - - - - - - - Between : Reference by HM Attorney General. Section 36 of the Criminal Justice Act 1988 (R v H) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Edward Brown for the Attorney General Mr David Steer QC for the Offender Hearing date: 17 th January 2007 - - - - - - - - - - - - - - - - - - - - - Judgment President of the Queen's Bench Division : 1. This is a Reference under s 36 of the Criminal Justice Act 1988 by HM Attorney General of a profoundly disturbing and anxious case. 2. The offender was born in May 1991. He is now fifteen years old. He is of low intelligence and was already emotionally damaged, when, suffering a form of mental disorder, he murdered an even younger eleven year old boy who, with the advantage of a wonderful home, was being taught to and learning to live with the disadvantage of cystic fibrosis, with its attendant impact on his life. 3. At a hearing on 13 October 2006, it was indicated that the offender would plead guilty to murder. He appeared at Manchester Crown Court before Mr Justice McCombe on 16 October and he did indeed plead guilty, at what, it was accepted on all sides, was the first available opportunity. He was sentenced to detention at Her Majesty’s Pleasure. The judge ordered that the minimum term to be served before he could be considered for release was twelve years. From this period 229 days which he had already spent in custody was deducted. The Offence 4. The victim of the murder, Joe Geeling, was born in June 1994. Throughout this judgment we shall refer to him as Joe. The diagnosis of cystic fibrosis was made when he was six weeks old. As a result he was frequently admitted to hospital where he stayed overnight for necessary treatment. His condition affected his weight and his growth. However his parents were anxious that he should lead as normal a life as practicable. He went to school during the day. As necessary his mother would take him to hospital after his return home from school, and when appropriate, she would pick him up from hospital in the morning after an overnight stay. On other days he was allowed to walk the relatively short distance between his school and his home after school ended. 5. The offender was a pupil at the same school in Bury. He lived at home with his mother at an address which was not far from the school, but in the opposite direction to Joe’s home. There was a good deal of information gathered after the murder which showed that he was a lonely, isolated boy who had suffered significant bullying while at school. 6. The two boys did not know each other well, and there was no significant contact between them in the days leading up to Joe’s murder. 7. In general, children in the first year at school were kept separate from the older children during their early days. The purpose was to get them securely into the ordinary routine of school life. There was however a system by which older children were appointed as mentors to the younger children, to keep an eye on them, and help them settle in. There was nothing remarkable or inappropriate about this system, but the offender used it as a way of making contact with the younger boy. He was later to tell psychiatrists that he wanted someone else to feel what it was like to be bullied, and there can be no doubt that because of Joe’s condition, he was more vulnerable and would certainly appear to be less able to resist. In other words, for the offender’s purpose he represented an ideal target. 8. The offender drafted a letter to Joe, purporting to come from the Deputy Headmistress, recording that he was appointed as his mentor, and setting up a meeting with him after school. A copy of that letter was recovered from Joe’s body after his death. A series of drafts of the letter were also found in and close to the offender’s home. The most significant of them was found in his bedroom. It was never in fact sent, but it threw some further light on the offender’s motivation. The draft started off as a letter which was intended to be sent, but then the writing turned into a scrawl and culminated in a suggestion that Joe would have to go to the offender’s home because a teacher would be speaking to him during the morning break, “to tell you that you will have to go to a year 10’s house to have bum sex”. 9. The offender was later to tell a psychiatrist instructed by the Crown that he thought he had written this letter some three weeks before the killing. The text tends to suggest that the offender had made some sort of plan to lure Joe to his home in order to expose him to some form of sexual abuse. During the course of mitigation on the offender’s behalf, it was accepted that this would be an appropriate inference to draw from this letter. 10. The letter which Joe actually received from the offender troubled him, and on 1 March he produced the letter to his teacher. She suggested that he should go to the office of the deputy headmistress. Later Joe explained to one of the teachers that it had all been sorted out, and it is therefore probable that something was said between the offender and Joe which lead Joe to appear relieved. Whatever may have been said, Joe’s concern about the offender’s letter was alleviated, and the offender was able to continue his plan for a private encounter with him. 11. On the morning of 1 March Mrs Geeling picked Joe up from hospital in the morning and took him to school as usual. He was wearing his school uniform. He carried a mobile phone. There were two chargers for it, one kept at home, and one at hospital. 12. Nothing that happened on the same morning at the offender’s home gave his mother any warning of what lay ahead that day. She dropped the offender off near school as usual. 13. At the end of the school day the offender and Joe walked along the route from the school to the offender’s home, that is, in the opposite direction to that which Joe would normally have taken to get home. School finished at about 3.50pm. The walk would have taken approximately 17 minutes. So at about 4.10 or thereabouts, the two boys entered the offender’s home. No one else was present. 14. In an interview the offender claimed that Joe had gone back to his house with him because he wanted to use a charger for his phone, so as to contact his mother. Given the facts already narrated, this explanation was not credible. Nevertheless, by means of one pretext or another, Joe was enticed to go to the offender’s home rather than his own. 15. At about 4.30-4.35 a witness observed the offender pushing a wheelie bin. It contained the dead body of Joe Geeling. The offender became aware of the fact that he had been seen by a witness, so as a distraction tactic, he stopped and tied his shoelace. He then continued on his journey. He took the bin to Whitehead Park, and eventually to a gully at the side of the park. Joe’s body was later found in the gully. It was covered by various items including an old base sprung item of furniture rocks and leaves. Although these efforts had been made to hide the body, it would obviously have been found sooner or later. 16. At 4.48, in conversations between the offender and his mother, he justified his failure to answer the telephone and his absence from the home. There was nothing in his tone of voice or what he said to alert his mother to the fact that anything out of the ordinary had happened. 17. Events during the short time when the offender and the victim were together in the house were reconstructed on the basis of scientific and medical evidence, and from what the offender himself had to say. His account was not entirely consistent with some of the scientific findings, but it is safe to act on the reconstructions. The narrative of what happened to Joe is extremely distressing. 18. Examination of the scene confirmed that at least part of the attack on the victim had taken place upstairs. The first weapon used by the offender was a frying pan which he obtained from the kitchen. In his interview with the police he began by asserting that he had seized hold of the frying pan because Joe was upstairs looking at a photograph of the offender’s stepbrother, who had himself, sadly, died. This made the offender angry, so he found the frying pan and went upstairs and struck the victim with it. It was a very hard blow or blows, and eventually it broke. Post mortem examination showed, among numerous bruises to Joe’s head, a significant injury to the bones of the left eye socket which was fractured. Such an injury required considerable force. Further injuries to the top of Joe’s head suggested that there had been five separate episodes of blunt force trauma, some of them patterned, and therefore consistent with the use of a frying pan. The frying pan itself was never recovered. It was thrown away by the offender and taken away when the rubbish was collected the next morning. 19. After this initial attack, Joe would at the very least have been highly disorientated. The offender went downstairs. This time he took two or possibly three knives from the kitchen, and he then attacked Joe with them. 20. The injuries discovered at post mortem must be summarised. There was a gaping injury across the front of the neck, the result of a stab entering through the left side of the neck and penetrating to a depth of 8cm. The knife was moved whilst still in the wound. There was another irregular stab wound which punctured the trachea in two places. It was difficult to decide whether this injury represented the result of one or two thrusts with a knife, but the nature of the wound itself suggested that again the knife had been moved around while inside the body. This required severe force and penetrated through to the spinal column and injured a major artery. There were a further eight stab wounds and four incised wounds to the head and neck, one of which chipped off some underlying bone, and three of which would also have required severe force. There was a stab wound to the right buttock, inflicted post mortem, and to date unexplained by the offender. 21. Quite apart from a total of sixteen wounds caused by the use of the knives, there was significant blunt force trauma to the head, inflicted with the frying pan at the beginning of the violent attack, with an additional five further blows to the forehead and eye region. There was bruising to both upper lips, which could have been caused by gripping or during a struggle, and typical finger bruises to the victims left inner thigh. A defence injury in the region of the right thumb was also noticed. This suggests that the attack with the frying pan had not rendered Joe unconscious, and that he must have been aware of at least the beginning of the attack on him with a knife. Blood staining in the rear bedroom and landing areas were consistent with him having moved about upstairs after his wounds had started to bleed. He appears to have collapsed. The cause of death was loss of blood due to stab wounds. 22. Joe’s body was dragged downstairs and carried through to the kitchen. It was put into the wheelie bin and eventually disposed of in the gully. In the meantime the offender set about cleaning up the scene as best he could. Blood was later found in the vacuum cleaner, and he explained that he had used it to clear up some of the mess. It appears that at some stage during the evening he did his homework, and when his mother returned home from work, he explained some of the red staining which remained after his efforts to clean the scene, by telling her that his red pen had broken. 23. Next morning the offender went to school as usual. Joe’s disappearance became known, and in view of events on the previous day, the offender was questioned by staff. At first he provided inconsistent accounts. The police attended. He was arrested. He made clear that he did not want any delay in the interview process, and as soon as it began he immediately admitted his responsibility for Joe’s death. 24. His account in interview was that the meeting had been arranged as a “wind-up” for the victim with the object that the victim would go to his home when no one else would be present. He said that he happened to be waiting nearby at school when Joe left, and that he had seen and followed him because he wanted to charge up his telephone. He said that he was sorry for what he had done. He would do anything to put it right. He was formally charged with murder. On advice he gave a lengthy reply in which he stated that there was more that he would wish to say given more time. 25. In due course, however, it was accepted on his behalf during the course of mitigation that he had attacked Joe after he had made some kind of sexual approach to him, which Joe had rejected. In the course of doing so Joe had told the offender that he was gay and threatened to tell others what the offender had tried to do to him. As a result, in order to silence him, the offender attacked and killed him. 26. The judge was provided with a victim impact statement prepared by Joe’s father. We have read it with care, and with sympathy. Joe’s murder is catastrophic. It is indeed the “the worst nightmare” which any parent could be forced to suffer. The Offender 27. The offender had no previous convictions, and there was no history of violence in any form. 28. Detailed psychiatric reports were prepared on behalf of the defence by Dr Hilary Grant, a consultant forensic child and adolescent psychiatrist, and on behalf of the prosecution by Professor Susan Bailey, also a consultant adolescent forensic psychiatrist. Dr Kristy Sedley, consultant clinical psychologist, prepared a psychological report. These reports were closely analysed at the hearing. 29. The offender had a virtually non-existent relationship with his father, and his experience “of paternal contact has left with him with a sense of being unloved, denigrated and deprived” of any relationship with his older half-brother who had died from cancer. He was bullied at primary and secondary schools. This bullying took the form of verbal abuse, exclusion from his own groups, and being pushed about and punched. The bullying was reported to the school. A letter of apology was received, but two days before the murder of Joe, the offender was threatened, “you are a dead man walking”. The upshot of the offender’s life history is that, in addition to his low average range of intelligence, he was emotionally immature and vulnerable. He was suffering from an Adjustment Disorder at the time of the offence, that is to say, a state of subjective stress and emotional disturbance, but not to the extent that his responsibility for his actions was properly to be regarded as diminished to the extent that he was guilty not of murder but manslaughter. In short, the circumstances of his upbringing and childhood were desperately sad and disturbing, and at the time when he committed this offence, the offender was suffering from a consequent mental disorder. Sentencing 30. We have studied McCombe J’s sentencing observations. The analysis of the facts of the case is meticulous and detailed. The provisions of schedule 21 of the Criminal Justice Act 2003 which govern the determination of the minimum term when the judge is required to pass a mandatory life sentence (as he was in this case) were carefully addressed. 31. In essence, the submission on behalf on the Attorney General requires us to reconsider the provisions of schedule 21 and their application to the present case, in effect, on the basis that the minimum term ordered by McCombe J was “unduly lenient”. After careful reflection, and at the direct request of the court, after a measured and valuable argument, Mr Edward Brown submitted that the proper minimum term was fifteen years rather than twelve years. In an equally balanced and helpful argument, Mr David Steer QC suggested that the minimum term ordered by the judge fell within the appropriate range, and that this court should not interfere with it. Schedule 21 of the Criminal Justice Act 2003 32. As is now well known, schedule 21 identifies a series of “appropriate” starting points in the determination of the minimum term, appropriate, that is, to the seriousness of the offence, but linked to the age of the offender. Paragraph 7 provides: “If the offender was aged under 18 when he committed the offence, the appropriate starting point, in determining the minimum term, is twelve years.” 33. By contrast with paragraph 6, which applies to the offender aged 18 or over, but under 21 years of age, paragraph 7 is completely open ended. For any offender convicted of murder committed when aged under 18, the starting point is 12 years. That said, it is clear that the appropriate sentence remains fact specific. It is trite law but occasionally worth reminding ourselves that irrespective of the “starting point”, the end result may be a minimum sentence of “any length”, when appropriate, well below or well above the defined starting point. The court must take account of every aggravating and mitigating feature, with specific reference to those which are expressly identified in paragraphs 10 and 11 of the schedule. These lists are not exhaustive, and they have not meant to be exhaustive. In particular we should emphasise that when the court is dealing with an offender aged under 18 years the provisions of paragraph 7 do not preclude the sentencer from reflecting on all the express features of the crime of murder identified in paragraph 4 and 5 of the schedule, and when they are found to be present, from treating them as features which aggravate the offence. The determination represents the end of the sentencing process which begins at the starting point. In expressing ourselves in this way, we are not limiting our remarks to the determination of the minimum period in cases of murder. The same holds good of definitive guidelines issued by the Sentencing Guidelines Council, or guideline decisions in this court. The starting point, or range, informs the beginning of the process which culminates in the sentence. 34. The second feature of schedule 21 is that it underlines the long established sentencing principle that the level of responsibility, and ultimate criminality of an offender who is young is likely to be (but may not necessarily be) lower than the culpability and criminality of an older offender. No mathematical table can be produced which calculates the culpability of a young offender with any specific age, and no list, however carefully drawn up, can provide an accurate reflection of the way in which a young offender may or may not have learned from or been damaged by the experiences to which his young life has been exposed. The sentencer must make a balanced judgment of these matters. 35. The third feature of the minimum term which can sometimes be overlooked was addressed by McCombe J himself at the end of his sentencing remarks. It is perhaps worth emphasising that a sentence of detention during Her Majesty’s Pleasure means that the offender will not be released unless and until it is safe for him to be released. Even after release, the offender will be subject to the sentence for the rest of his life, and liable to be recalled into detention, or later, imprisonment after he has been released. The purpose of assessing the minimum term is not to define the moment when the custodial part of the sentence will end, but rather to prohibit consideration from being given to release from custody before the specified minimum term has expired. 36. The aggravating features of this murder are obvious, and no less significant for that. 37. This murder involved the death of a physically vulnerable child. The Crown accepts that the killing itself was not premeditated, but nevertheless, the offender targeted Joe at least in part because he was vulnerable, and would make an appropriate victim for a degree of physical and probably sexual abuse intended by the offender. Subject to the limitations of the offender’s immaturity, he spent some time extending to weeks rather than limited to days thinking up and eventually implementing a scheme which would persuade Joe to come to his home with him so that he could achieve this purpose. Again on the evidence, it is not possible to conclude that the murder itself was sexually motivated. Nevertheless the sexual misconduct of the offender triggered off a chain reaction which eventually culminated in his homicidal attack on Joe, the purpose of which was to avoid the offender himself being exposed for what he had done to Joe, and no doubt in the offender’s mind, to the risk of yet further bullying. Save to note that Joe was attacked with more than one weapon, and the second attack was launched when he was already badly injured from the first attack, the attack itself needs no further description. The violence was horrific and sustained. Joe’s physical and mental suffering would have been acute. The offender’s efforts at concealment were unsophisticated, and in the end would have come to nothing, but they were nevertheless cold-blooded, and he lacked the compassion to treat Joe’s body with the dignity and respect which, if less concerned with his own self-preservation, he should. 38. The features of mitigation are also self-evident. The offender had no history of violence, and he was still under fifteen years of age when he committed the murder. His start in life had been very disturbed, and at the time of his offence he was suffering from a form of mental disorder consequent on that sad, emotionally deprived childhood. These are significant features of mitigation, although we should perhaps remind ourselves that the fact that the offender was aged under eighteen at the relevant time has already been reflected in the selection of the appropriate starting point. The offender’s age nevertheless remains a feature because be was significantly under eighteen, and roughly half way between eighteen years and the age when criminal responsibility begins. In addition to these express features of mitigation, the offender was entitled to the full allowance for his early guilty plea. That reflected well on him, and on the basis of the submissions on his behalf to McCombe J, we believe that it is consistent with his expressions of remorse, when they were eventually made, being genuine. 39. After reflecting on all the facts, the judge concluded that the aggravating and mitigating features of the case, including the guilty plea, in effect cancelled each other out, so that the sentencing process culminated where it had originally begun. 40. We have been troubled by this fraught, worrying case. In essence, however, we have come to the conclusion that a number of features of the evidence militate against the conclusion that its aggravating and mitigating features balance each other out. The offender’s culpability, and the consequent seriousness of the offence, are undoubtedly reduced by his age and mental illness, but in our judgment there are some striking features of the case which cannot be treated as wholly consistent with the offender’s extreme youth. These include the deliberate selection of the victim for the purpose of exposing him to bullying and some form of sexual abuse, the elements of planning, which survived the intervention of school staff on the day of the killing itself, the sustained violence with more than one weapon and the murderous nature of the attack, and finally the calm efforts at concealment are all significant in themselves, but even for an offender of this age, with this offender’s disadvantages, taken together they represent a formidable level of culpability and seriousness. 41. In our judgment Mr Brown was right to contend that the appropriate starting point, before credit was given for the guilty plea, was a minimum term of eighteen years. Making the appropriate allowance for the guilty plea, the minimum term is reduced to fifteen years. The term of twelve years was unduly lenient. The allowance for the time spent in custody pre-sentence must continue. Accordingly the Reference succeeds, and in place of a twelve year minimum term, there will be substituted a period of fifteen years.

2007_01_30-1019.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/53/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/53

9ec687f35a33849bbb7435dcbb5a37b415d2d59e4b2e81d89c9c85e9f6efa7cf

[2008] EWCA Crim 2740

EWCA_Crim_2740

crown_court

No: 200803275/A4 Neutral Citation Number: [2008] EWCA Crim 2740 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 22 October 2008 B e f o r e : MR JUSTICE RICHARDS MRS JUSTICE SWIFT DBE SIR CHARLES GRAY - - - - - - - - - - - - R E G I N A v LAWRENCE EDWARD HUGHES - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020

No: 200803275/A4 Neutral Citation Number: [2008] EWCA Crim 2740 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 22 October 2008 B e f o r e : MR JUSTICE RICHARDS MRS JUSTICE SWIFT DBE SIR CHARLES GRAY - - - - - - - - - - - - R E G I N A v LAWRENCE EDWARD HUGHES - - - - - - - - - - - - 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 R Thomas appeared on behalf of the Appellant - - - - - - - - - - - - J U D G M E N T 1. Mrs Justice Swift: In March of this year the appellant was tried at Harrow Crown Court for an offence of wounding with intent contrary to section 18 of the Offences Against the Person Act 1861 . At the conclusion of the trial, on 12 March 2008, he was acquitted of that offence, but convicted by the jury of an alternative count of unlawful wounding contrary to section 20 of the 1861 Act . He was sentenced on 29 May 2008 to an extended sentence of five years pursuant to section 227 of the Criminal Justice Act 2003 (" the 2003 Act "), that sentence comprising a custodial term of three years' imprisonment and an extended period of licence of two years. Pursuant to section 240 of the Criminal Justice Act 2003 the 255 days spent in custody on remand were ordered to count towards sentence. 2. The appellant appeals against sentence by leave of the single judge. 3. In the afternoon of 15 September 2007 Shaun Hughes, who is the appellant's brother, was watching football with friends in a crowded public house in north London. The appellant entered the pub, went over to where his brother was standing and delivered a powerful blow to his face. There was then a short scuffle after which the appellant left. The bar staff administered first aid to Shaun Hughes and an ambulance was called. He was taken to the Central Middlesex Hospital where he was treated for two lacerations to his forehead, one of about 2 inches long which required ten stitches. This was apparently caused by sunglasses which he had been wearing. Shaun Hughes said in evidence that he had made a complete recovery, although the judge was of the opinion that he was would have a permanent scar. 4. The appellant was later arrested at another public house nearby. In interview he made no comment to all material questions, save for saying that his brother had a history of making false allegations against him. 5. At the time of the offence the appellant was 42 years old and usually worked as a self-employed carpenter while living in private rented accommodation. He had 16 previous court appearances for 33 offences. Between the ages of 18 and 24 he was regularly before the courts, often for offences of violence. During that period he was convicted of three offences of assault on the police, four offences of assault occasioning actual bodily harm, one aggravated common assault and one offence of possessing an offensive weapon in a public place. There were other convictions for public order offences, criminal damage, obstructing the police and offences of dishonesty. Between 1989 and 2000 he did not appear before the courts at all. In August 2000 he was fined for having a bladed article in a public place. Since then he has had convictions for driving offences and for possession amphetamine. Significantly, however, he was conditionally discharged for an offence of criminal damage committed in March 2001 having damaged his brother's motor cycle in retaliation for a some perceived wrong perpetrated by his brother. 6. Then, in October 2006, he was sentenced for another offence of criminal damage and for common assault. These offences were committed in the course of an argument about his brother which took place at his parents' home. He caused damage to his brother's bedroom door by kicking it and assaulted his father by grabbing his wrist. He received a community order with a requirement that he attend an aggression replacement therapy programme. This order was revoked in April 2007 since the appellant had been diagnosed with bowel cancer and was undergoing treatment which prevented him from complying with the order. A conditional discharge was substituted. The offence with which we are concerned was committed during the currency of that conditional discharge. Also, at the time of the offence with which we are concerned, the appellant was on bail in connection with other matters which were tried by the Crown Court in September of this year. We are told that those matters ended in acquittals. 7. There was a pre-sentence report before the court. The author reported that in discussion with her the appellant continued to assert that he had acted in self-defence, having been attacked by his brother and his brother's friends. He described a relationship with his brother which was hostile and at times explosive. He blamed his brother for the difficulties between them, describing him as a thief, drug dealer and compulsive liar. Whilst he admitted some culpability for the offence and was able to express some remorse about the injuries caused to his brother, he minimised the extent of his involvement, projecting most of the blame onto his brother. 8. The actuarial risk assessment tool used by the probation service suggested that the appellant posed a medium risk of committing further violent offences. However, the author of the report cautioned that the risk may be higher than the assessment tool suggested given what she described as the appellant's established pattern of offending and the escalation in seriousness and frequency of his offending. Having regard to those matters, and in particular to his previous convictions for assault occasioning actual bodily harm, she assessed him as posing a high risk of harm to the public, specifically his brother, and suggested that the court might consider a finding of dangerousness within the meaning of the 2003 Act and the imposition of an extended sentence for public protection. She recommended that while in custody the appellant should undergo various programmes designed to enable him to control his anger, improve his thinking skills and develop a better understanding of the impact of his actions on the lives of others. 9. Shaun Hughes had told the police that the appellant had been acting strangely for some years as a result of which an assessment of his mental state was made by Dr David Oyewole, consultant psychiatrist. His report, dated 20 April 2008, was before the sentencing court. Dr Oyewole interviewed the appellant, spoke to his girlfriend and his solicitor and examined his prison reports. He found no evidence of any mental illness. 10. When sentencing the appellant the judge said that the jury's verdict indicated that they were perfectly clear that the appellant had launched an unprovoked attack on his brother. The judge took the view that it was probably also a premeditated attack. He observed that this was a serious case of unlawful wounding. It was made more serious by the fact that it was one of a number of offences involving the appellant's family. There were previous convictions for offences of violence followed by a break in his offending which might suggest that the appellant had gained some control over his temper. However, the judge said that he was not satisfied that this was the case. The pre-sentence report spoke of escalating violence towards those near to him, particularly his brother and father. He was assessed as being of high risk at least to his brother. The judge concluded that there was a significant risk to members of the public, namely his family and those close to him, of serious harm occasioned by the commission by him of further specified offences and that the appellant therefore fell within the dangerousness provisions of the 2003 Act . An extended sentence would therefore be imposed. In all the circumstances of the case the appropriate custodial term was three years' imprisonment with an extension period of two years. 11. For the appellant, Mr Thomas submits that the judge should not have found that the appellant fulfilled the criteria of dangerousness. He points out that the judge appears to have relied on the assessment contained in the pre-sentence report, and, in particular, the escalation in the seriousness and frequency of his violent offending referred to therein. He argues that, although the offence of wounding is more serious than any other offence of violence of which the appellant had previously been convicted, the frequency of his violent offending has been significantly lower in recent years than when he was in his 20s. He contends that the author of the pre-sentence report and the judge placed too much emphasis on the appellant's convictions for offences of violence when a young man. He submits that there was no evidence that the appellant posed a significant risk of serious harm to his brother or other members of his family. Mr Thomas also submits that the custodial term imposed was excessive for a "one punch case", even against the background of two previous offences of causing damage to his brother's property. This, he says, is so whether the three years formed the custodial term of an extended sentence or was imposed by way of determinate term of imprisonment. 12. Today in his oral submissions Mr Thomas has made clear that he does not concede that it would be appropriate for the court to find that the appellant fulfilled the dangerousness provisions if the only risk which the court considered he posed was to one individual, namely his brother. 13. The sentence in this case was passed in May 2008 before the coming into effect of the amendments to the dangerousness provisions which have been introduced by the Criminal Justice and Immigration Act 2008 . The appellant had previously been convicted of four offences of assault occasioning actual bodily harm, three in 1984 and one in 1989. Those offences were relevant offences for the purposes of section 229 of the 2003 Act . As a result the judge had to assume that there was a significant risk to members of the public occasioned by the commission by the appellant of further such offences unless he considered that it was unreasonable to conclude that there was such a risk. Although the judge did not in his sentencing remarks specifically refer to the statutory assumption, he plainly concluded that such a risk existed in the appellant's case. 14. Some guidance on the application of the assumption can be derived from the leading case of R v Lang [2006] 2 Cr App R(S) 3. At paragraph 17(v) Rose LJ VP said: "... the language of the statute indicates that judges are expected, albeit starting from the assumption, to exercise their ability to reach a reasonable conclusion in the light of the information before them. It is to be noted that the assumption will be rebutted, if at all, as an exercise of judgment: the statute includes no reference to the burden or standard of proof. As we have indicated above, it will usually be unreasonable to conclude that the assumption applies unless information about the offences, pattern of behaviour and offender show a significant risk of serious harm from further offences." 15. Serious harm is defined at paragraph 224(3) of the 2003 Act as death or serious personal injury whether physical or psychological. The case of R v Johnson [2007] 1 Cr App R(S) 112 makes clear that it does not automatically follow from the absence of actual harm (still less actual serious harm) caused by the offender to date that the risk that the offender will cause serious harm in the future is negligible. 16. Little information is available about the violent offences committed by the appellant in 1984 and 1989, although the suggestion in the pre-sentence report is that they were directed at the police and others in authority. The first group of three offences, committed when the appellant was 18 or 19 years old, were dealt with by way of community service orders. The fourth offence, committed in 1989 when the appellant was 23 or 24, attracted a term of six months' imprisonment concurrent to other sentences imposed at the same time for assaults on the police. As we have said, there was then a substantial gap of about 11 years in the appellant's offending. However, since 2002 there have been a number of incidents arising out of the hostility between the appellant and his brother. The reason for that hostility is not entirely clear, but it has plainly existed for several years and shows no sign of abating. Although up to September 2007 the appellant had not been convicted of any offence of violence on his brother, there had been two incidents of criminal damage directed at him or his property and the assault on the appellant's father. The incident in September represented a disturbing escalation in the appellant's violent behaviour towards his brother. 17. The prosecution case at the appellant's trial was that the appellant had caused grievous bodily harm with intent, probably using a blade or a glass to inflict his brother's injuries. In the event, however, the jury's verdicts imply that they found that he used no weapon and had struck one hard punch without the intent to cause grievous bodily harm. The verdicts also imply that they must have found that the blow was unprovoked. The judge's view was that the attack was premeditated. This finding was presumably based, in part at least, on the CCTV evidence showing the appellant walking into the public house, which he knew Shaun Hughes frequented, only a few seconds before striking his brother. 18. The appellant's continuing feelings of hostility towards his brother, the previous incidents which have occurred and his action in launching an unprovoked and unexplained attack on him, give rise, in our view, to an obvious risk that he may commit further violent offences against his brother or, indeed, against other members of his family if they appear to him to be taking his brother's part. Such offences may well result in serious harm whether or not the appellant intends such harm. We consider, therefore, that the judge was fully entitled to find that the criteria for dangerousness was satisfied in this case and to pass an extended sentence pursuant to section 227 of the 2003 Act . 19. As we have said, we consider that the risk exists not only in respect of his brother, but also in respect of other members of his family, or indeed others if they appear to be taking his brother's part. However, we make clear that, even had we taken the view that the risk existed in respect of his brother alone, on the basis of the Court of Appeal's _dicta_ in the case of Lang , we would nonetheless have considered ourselves fully entitled to make a finding of dangerousness. 20. As to the length of the sentence, the context in which the offence was committed and the previous offences directed at members of the family are aggravating features. Even so, a sentence of three years' imprisonment for an assault involving one punch is, in our view, excessive. In this regard we note that, in the Sentencing Guidelines Council's Definitive Guideline on Assault and other offences against the person (which has direct application to sentences other than those passed under Chapter 5 of the 2003 Act ) the sentencing range identified for a premeditated offence of unlawful wounding where no weapon has been used is 24 weeks to 18 months' custody with a starting point of 36 weeks' custody. This tends to confirm our view that, even taking into account the aggravating features, the length of the custodial term imposed by the judge was excessive. 21. We consider that in all the circumstances a sentence of two years' imprisonment would have been appropriate. We therefore quash the custodial term of three years and substitute a custodial term of two years. The extended licence period of two years will stand, making a total extended sentence of four -- rather than five -- years. To that extent the appeal is allowed.

2008_10_22-1686.xml

allowed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/2740/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/2740

583fecf4014bf4ee1f8b1252ba745b431e60dcb5f3a69da3a0bcc8acabda3428

[2023] EWCA Crim 1560

EWCA_Crim_1560

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 202300486/B5 [2023] EWCA Crim 1560 Sitting at Swansea Crown Court The Law Courts St Helen’s Road Swansea SA1 4PF Thursday, 26 October 2023 Before: THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION LORD JUSTICE HOLROYDE MR JUSTICE GRIFFITHS MRS JUSTICE COLLINS RICE DBE REX v OSMAN OMAR OSMAN __________ 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 RADCLIFFE appeared on behalf of the Appellant MISS A WALTON appeared on behalf of the Crown _________ J U D G M E N T (Approved) 1. THE VICE-PRESIDENT: The appellant was convicted of three offences of being concerned in supplying a controlled drug to another, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. With the leave of the single judge he now appeals against his convictions. 2. In October 2022 the appellant was the driver of a car which was stopped by police in Swansea. A man called Lafferty was his front seat passenger. A mobile phone was found in the front passenger footwell. Stored within it were messages which plainly related to the supply of controlled drugs in June 2022, at a time when the Glastonbury Festival was taking place. The appellant worked as a steward at that festival. 3. We quote the terms of two exchanges of messages stored on the phone, interpolating the names of the controlled drugs to which the messages refer. First, an exchange on 26 June 2022 between the user of the phone and someone with the name "Orla”: "Orla - Also how much for K [ketamine]? Response – 40 for 1g Orla – How much you got? What about 2CB [a psychedelic drug]? Response – Nah, just got K and flake [cocaine]." 4. Secondly, an exchange on 27 June 2022 between the user of the phone and someone identified as "Not Abdul Kadir": "Not Abdul Kadir – How much is the key ket [ketamine]? Response – 1g for 40 Not Abdul Kadir – 1g, MD [MDMA/Ecstasy] Response – No MD, just ket and flake and loud [cannabis] Not Abdul Kadir – How for flake much? For half? Response - £50 Not Abdul Kadir – Bring the flake." 5. Other messages and photographs stored on the phone led the police to believe that the appellant was, or had at the material time been, the user of it. He was charged on an indictment containing three counts, all of which were in identical terms save for the nature and classification of the relevant drug. The particulars of count 1, for example, alleged that between 25 and 28 June 2022 the appellant was concerned in the supply of a quantity of cocaine, a controlled drug of class A, to another in contravention of section 4(1) of the Misuse of Drugs Act 1971. Counts 2 and 3 related to class B drugs, namely ketamine and cannabis. 6. The only witness called for the prosecution at trial was a police officer who gave evidence as to the nature and usual prices of the drugs referred to in the messages. The appellant, who had made no comment when interviewed under caution, did not give evidence. 7. For almost the whole of the trial, the sole issue was whether the jury were sure that it was the appellant, and not some other person, who had been using the phone in the relevant exchanges of messages. It was not disputed that the messages related to the supply of drugs. Thus there was, for example, a formal admission pursuant to section 10 of the Criminal Law Act 1967 that messages pertaining to the supply of class A drugs were found on the phone. 8. Furthermore, the judge in summing-up more than once made statements such as the following: "... there is no issue between the prosecution and the defence that whoever sent those messages was offering to sell drugs and was concerned in the supply of drugs. And the question for you is, have the prosecution made you sure that the messages sent from the iPhone were sent by the defendant, Mr Osman?" 9. None of that was controversial until a very late stage in the proceedings. 10. Whilst in retirement, the jury sent a note seeking clarification of the judge's directions of law. The note was somewhat equivocal in its terms, but plainly showed that the jury were carefully applying their minds to the directions they had been given. 11. In discussing how the note should be answered, both counsel again emphasised that the only issue for the jury was whether they were sure that it was the appellant, and not some other person, who sent the messages. 12. The judge directed the jury to that effect, saying that if they were sure that the appellant sent the messages it was accepted that he thereby committed the offences of being concerned in the supply of drugs. That direction was entirely consistent with the way the trial had been conducted and with all the submissions of counsel up to that point. 13. The jury's question had, however, prompted Mr Radcliffe, then as now representing the appellant, to reflect on the terms of the indictment. He made for the first time a submission of law that the jury could not properly convict the appellant of the offences charged. He submitted that the prosecution had in each count charged the appellant with being concerned in the supply of controlled drugs, not with being concerned in the making of an offer to supply; that it was therefore necessary for the prosecution to prove that there was in fact a supply of each of the drugs concerned; that there was no evidence on which the prosecution could prove whether or not any supply had taken place, as the judge had made clear in the summing-up; and that accordingly the case should be withdrawn from the jury, or they should be directed to the effect that the prosecution had failed to prove the necessary ingredient of the offences. 14. That very late submission was opposed by Miss Walton, then as now representing the respondent, who drew attention to the decision of this court in R v Martin and Brimecome [2014] EWCA Crim 1940, a case to which we shall return shortly and to which we shall for convenience refer as Martin . 15. Having considered the competing arguments, the judge declined to give any further or different direction to the jury. The jury subsequently returned guilty verdicts on each count. 16. Mr Radcliffe now puts forward two grounds of appeal: first, that the convictions are unsafe because the respondent failed to prove that the appellant had been concerned in the supply of controlled drugs; and secondly, that the judge wrongly directed the jury that they need only be sure that the appellant sent messages offering to supply controlled drugs, rather than being concerned in the supply of drugs. 17. As to the first ground, Mr Radcliffe accepts that the word "supply" was given a broad interpretation in Martin but submits that there nonetheless remains a distinction between the offences created by section 4(3)(a) and section 4(3)(b) of the 1971 Act. He points to R v McNaught [2018] EWCA Crim 1588 as support for his submission. He argues that the evidence adduced by the prosecution in this case was such that no jury could have found proved that the appellant was concerned in the supply of the drugs as opposed to the making of an offer to supply. 18. As to the second ground, it is submitted that the jury were directed only to consider whether the appellant was concerned in an offer to supply, not whether he was concerned in supplying controlled drugs. 19. Miss Walton opposes both grounds. Relying again on Martin , she submits that the evidence was sufficient to establish that the appellant was concerned in the supply of drugs. In her admirably focused submissions she draws attention in particular to the final message in the exchange with Not Abdul Kadir. She submits that the instruction "bring me flake" is a clear indication that the user of the phone was engaged in the supply of cocaine, the class A drug charged in count 1 in the indictment. Miss Walton goes on to argue that in the circumstances of this case the judge's direction to the jury was correct. There must, she submits, be a fact-specific assessment of the evidence in each case involving charges of this nature. 20. We are grateful to counsel for their submissions. We begin our consideration by setting out the terms of section 4 of the 1971 Act: " 4 Restriction of production and supply of controlled drugs (1) Subject to any regulations under section 7 of this Act, or any provision made in a temporary class drug order by virtue of section 7A, for the time being in force, it shall not be lawful for a person— (a) to produce a controlled drug; or (b) to supply or offer to supply a controlled drug to another. (2) Subject to section 28 of this Act, it is an offence for a person— (a) to produce a controlled drug in contravention of subsection (1) above; or (b) to be concerned in the production of such a drug in contravention of that subsection by another. (3) Subject to section 28 of this Act, it is an offence for a person— (a) to supply or offer to supply a controlled drug to another in contravention of subsection (1) above; or (b) to be concerned in the supplying of such a drug to another in contravention of that subsection; or (c) to be concerned in the making to another in contravention of that subsection of an offer to supply such a drug." 21. We should note in passing that section 28 has no materiality in this case. 22. We turn to relevant case law. In R v Hughes [1980] 81 Cr.App.R 344, Goff LJ, giving the judgment of the court, noted that paragraphs (a) to (c) of section 4(3) contained three principal offences. He continued, at page 347: "So the difference between (b) and (c) is that in (b) there has to be an actual supply in which the accused was concerned, whereas under (c) it is enough that there was an offer to supply in which the accused was concerned." 23 In Martin the appellants were charged under section 4(3)(b). At paragraph 14, Lord Thomas CJ giving the judgment of the court identified the short point of statutory instruction which was raised by the case: "Was the evidence that was called before the jury sufficient to constitute evidence of 'supply to another'? Those are the words in the statute. It does not say 'actual supply to another'; nor does it say 'delivered to another'. It simply says 'supply to another'. 24 Lord Thomas went on to say that the evidence in that case showed that a text message had been sent discussing the supply, there had been a journey to London to collect the drugs, and the quantity of drugs found by the police was clearly in excess of personal consumption. There was therefore clear evidence of supply to another. He continued at paragraph 16: "Did that, therefore, constitute supply to another? The word 'supply' is a broad term. It does not by any stretch of the imagination result in a confinement to the expressions 'actual delivery' or 'past supply'. It refers to the entire process of supply. In the present case there was clear evidence that the drugs were en route from London to Portsmouth. They were being transported so that they could be delivered to others in the Portsmouth area. It seems to us that that falls plainly within the word 'supply'." 25 The third case we must mention, although not initially cited by either counsel, is R v Coker [2019] EWCA Crim 420, [2019] 2 Cr.App.R 10. The appellant in that case had been charged with an offence contrary to section 4(3)(b). Analysis of messages stored in mobile phones in his possession provided evidence that the user of the phones was involved in drug dealing. The judge in summing-up had directed the jury that: "... the prosecution must prove, firstly, that there has been a supply of class A drugs to another, or the making of an offer to supply class A drugs to another. Secondly, that the defendant participated in such an enterprise involving such supply or such an offer to supply; and, thirdly, that he knew the nature of that enterprise, i.e., that it was the supply of class A drugs." 26 On appeal this court found that direction to have been wrong in law. Gross LJ, giving the judgment of the court, referred to Hughes and to Martin as establishing that section 4(3) gives rise to three separate and distinct offences. He noted at paragraph 25 of the judgment that paragraph (a) dealt with supply or an offer to supply; paragraphs (b) and (c) broadened the ambit of the section by applying it to those who were concerned in either the supply or an offer to supply controlled drugs. At paragraph 26, Gross LJ continued: "It follows that there is no room for an either/or direction. When the issue goes to whether a defendant was concerned with supply or an offer to supply controlled drugs, the count in question must either relate to subsection (b) or subsection (c)." 27 We note that in reaching that conclusion the court rejected a submission by the respondent in that case that a person can be concerned in the supply of drugs by making an offer to supply. That submission, it was said, was in danger of rendering section 4(3)(c) otiose. At paragraph 32 the court added: "... While, generally at least, 'being concerned in the supplying' of a controlled drug may well be preceded by 'being concerned in an offer to supply' such a drug, where the prosecution elects to proceed under s.4(3)(b), it is being concerned in the supplying which must be proved." 28 We would summarise the effect of those decisions as follows: 1. Paragraphs (b) and (c) under section 4(3) of the 1971 Act create two distinct offences. 2. Where an offence contrary to paragraph (b) is charged, the prosecution must prove that the enterprise in which the accused was concerned was the supplying of controlled drugs and not merely the making of an offer to supply. 3. On such a charge, the jury must not be directed in terms which suggest that it is sufficient for the prosecution to prove that the accused was concerned in either the supply or an offer to supply controlled drugs. 4. However, supply is a broad term: it is not confined to actual delivery or a past supply, but rather it refers to the entire process of supply. 29 We therefore accept Mr Radcliffe's submission that it was necessary for the prosecution to prove in this case that the appellant was concerned in an enterprise which could properly be described as the supply of controlled drugs. The question then becomes whether, on the evidence before the jury, it was properly open to the jury to find that offence proved. 30 To that question there can, in our view, only be one answer. Once the jury were sure that it was the appellant, and not anyone else, who sent the relevant messages, then the concession made throughout almost the entire trial that the appellant was thereby guilty of the offences charged was entirely realistic. We agree with Miss Walton that a careful fact-specific assessment of the evidence in a particular case is required. Here the messages were not an abstract offer of a supply which might or might not take place, of a substance which might or might not be a controlled drug, and might or might not be a controlled drug of the kind offered. They were the clearest indication that the appellant was actively concerned in the supply of drugs, stating what stock he had available at a given time, stating the price for which he would supply it and also eliciting from Not Abdul Kadir a response requiring immediate delivery of one of the drugs available. In those circumstances, the jury were entitled to return the verdicts they did and the conviction is safe. 31 It follows from all we have said that the judge, with whom we sympathise in view of the collective misunderstanding underlying the conduct of the entire trial, fell into error in directing the jury in terms which suggested that it would be sufficient for them to be sure that the appellant was concerned in the making of offers to supply controlled drugs. The direction should have made clear that the prosecution must prove that he was concerned in the supply of controlled drugs. In so far as the judge misdirected the jury, however, the misdirection does not render the convictions unsafe; for if the correct question had been posed to the jury, there was, as we have said, only one answer to it. 32 This appeal accordingly 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

2023_10_26-5879.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1560/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1560

c74e4d51951f6c09cc53df6f9f6439b6e752d568926cfb0e06f78b23ed1dc9fd

[2008] EWCA Crim 530

EWCA_Crim_530

supreme_court

Neutral Citation Number: [2008] EWCA Crim 530 Case No: 200702304 D5 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM His Honour Judge Wadsworth QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/03/2008 Before : LORD JUSTICE GAGE MR JUSTICE SIMON and HIS HONOUR JUDGE PAGET QC - - - - - - - - - - - - - - - - - - - - - Between : DAVID CUNNINGHAM KING Appellant - and - THE SERIOUS FRAUD OFFICE Respondent - - - - - - - - - - - - - - - - - - - - - (Trans

Neutral Citation Number: [2008] EWCA Crim 530 Case No: 200702304 D5 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM His Honour Judge Wadsworth QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/03/2008 Before : LORD JUSTICE GAGE MR JUSTICE SIMON and HIS HONOUR JUDGE PAGET QC - - - - - - - - - - - - - - - - - - - - - Between : DAVID CUNNINGHAM KING Appellant - and - THE SERIOUS FRAUD OFFICE Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 190 Fleet Street, London EC4A 2AG Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr David Perry QC and Mr Louis Mably (instructed by Kingsley Napley, Solicitors) for the Appellant Mr Andrew Mitchell QC and Miss Fiona Jackson (instructed by the Serious Fraud Office ) for the Respondent Hearing dates : 28 and 29 February 2008 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Gage : 1. The applicant, David Cunningham King, applies for leave to appeal against orders made by His Honour Judge Wadsworth QC at Southwark Crown Court on 23 April 2007. On that date the Judge dismissed an application by the applicant to discharge a Restraint Order (the RO) and a Disclosure Order (the DO) made by him on an application without notice by the respondent, the Serious Fraud Office, on 31 May 2006. We give leave. Background 2. The appellant is aged 51 and is a British national by birth. For the last 30 years he has been resident in South Africa working as a businessman. 3. For a number of years the authorities in South Africa have been investigating the appellant’s financial affairs and, in particular, his tax affairs. The investigation resulted in the start of civil and criminal proceedings against the appellant in South Africa. The civil proceedings include proceedings in the South African Tax Court started by the South African Revenue Services (SARS). These proceedings are still outstanding. 4. The criminal proceedings against the appellant have been instituted by the National Prosecuting Authority of the Republic of South Africa (the NPA). The appellant was arrested by the NPA on 13 June 2002 and released on bail. He was subsequently charged with a number of offences in proceedings started in the High Court. On 29 April 2005 an indictment was served upon the appellant and a trial fixed for 25 July 2005. On a later date the trial was postponed until 31 July 2006. An amended indictment was served on 17 March 2006. In the event, the trial did not start on 31 July but was again postponed. The trial is currently due to start on 18 April 2008 but we are told on that date it will be further adjourned to 31 July 2008. 5. The amended indictment alleges tax fraud and the contravention of exchange control regulations. It is alleged against the appellant that between 1990 and 2002 he devised and carried out a fraudulent scheme or schemes to evade the payment of income tax, thereby defrauding SARS. It is alleged against the appellant that in the execution of the fraudulent schemes he transferred, or arranged to be transferred, his shares in various South African registered companies into the name of Agnes King, his mother, who lives in Scotland, for no consideration or nominal consideration. The prosecution allege that subsequently the fraudulent scheme involved: (1) the applicant establishing offshore trust structures, involving companies incorporated in the British Virgin Islands and Guernsey (the alter ego entities), with the appellant controlling these trust structures and using them as vehicles for fraud; (2) in contravention of exchange control regulations, arranging for shareholdings in South African companies to be exported and become assets of the companies within the trust structures; (3) in order to evade liabilities for income tax making false tax returns in South Africa, deliberately failing to declare material facts about his true assets, including the assets held by his alter ego entities; further, giving false information to tax officers and failing to submit a tax return for the tax year 2000. 6. The prosecution allege, in general terms, that in the three years up to 2001 the appellant made profits of more than R1 billion and spent hundreds of millions of Rand in South Africa, whereas his income tax returns for those three years were those of a man earning a modest income who had accumulated assets worth only R550,000 in the 23 year period that he had been in South Africa. It is also alleged that members of the public had sustained losses as a result of his activities. The Amended Indictment 7. Counts 1 to 20: The appellant faces 20 counts of common law fraud in respect of 20 tax returns and amended tax returns submitted by him during the period 1990 to 2001. In the alternative he is charged with contravening various sections of the Income Tax Act. 8. Counts 21-40: The appellant faces 20 counts of common law fraud (and in the alternative contraventions of the Income Tax Act) for the same period and for the same tax returns and amended tax returns; but these counts are only applicable in the event of the court finding that the alter ego entities were not the alter egos of the appellant. 9. Counts 41-47: These are counts of fraud, and in the alternative of contravening the Income Tax Act, and are applicable in the event that the court finds that the alter ego entities were not the appellant’s alter ego. The charges are based on allegations that the appellant as the representative of Ben Nevis Ltd, a company incorporated in the British Virgin Islands, had the responsibility to render a tax return for Ben Nevis or Metlika Trading Ltd, another company incorporated in the British Virgin Islands. It is alleged that Ben Nevis or Metlika derived income from a source deemed to be within the Republic of South Africa and had its effective place of management in the Republic as it was effectively managed by the appellant. It is alleged that the appellant wrongfully and unlawfully failed to apply for the prescribed tax return form and render the return; and, by omitting to comply with his obligations in this regard, made a representation by way of omission. 10. Counts 48-50: These are counts of fraud and in the alternative of contravening the Income Tax Act and relate to the appellant’s failure to render tax returns in respect of the tax years ending 28 February 2002, 28 February 2003 and 28 February 2004. It is alleged that the appellant’s failure in relation to his obligations in this regard constitutes a misrepresentation by way of omission. 11. Counts 51-58: These counts allege contravention of the Income Tax Act and are based on SARS’s requests for information and the appellant’s alleged false answers to those requests. 12. Counts 59 and 60: These allege a failure by the appellant to provide information requested by SARS. 13. Count 61: This is a count of fraud and in the alternative an allegation of contravening the Income Tax Act and is based on four applications made with the knowledge and consent of the appellant to SARS to de-register him as a tax-payer with effect from 1 March 2001 on the basis that he was no longer in receipt of taxable income. 14. Count 62: This count alleges a failure by the appellant to furnish, file or submit his income tax return for the year 2000. 15. Counts 63-85: These are 23 counts alleging the contravention of the Income Tax Act in respect of the alleged failure by the appellant in January 2002 to reply to or answer truthfully and fully questions put to him. 16. Counts 86-319: These are counts alleging contravention of various Exchange Control Regulations. 17. Count 320: This is a count of money laundering in contravention of s.28 of the South African Proceeds of Crime Act 76 of 1996 (SAPOCA). 18. Count 321: A further count of money laundering in contravention of s.4 of SAPOCA. 19. Count 322: This count alleges against the appellant a count of racketeering in the terms of SAPOCA. The period covered by the racketeering count is March 1999 to December 2003. Many of the charges on the indictment fall into the category alleged in this count as allegations of fraud. The History of these Proceedings 20. On 31 May 2006 HHJ Wadsworth QC at Southwark Crown Court made the RO against the appellant and a number of corporate entities alleged to be the appellant’s alter ego entities. The order was made on the application of the respondent under article 8(1) of the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 (S.I.2005/3181) (the Statutory Instrument). On the same day the judge made the DO under article 8(4) of the Statutory Instrument. The orders relate to all property held by the appellant (and the alter ego entities) including property held both inside and outside England and Wales. The orders were made without notice of the application to the appellant. The application made by the respondent was pursuant to an external request dated 9 May 2006 from the NPA. 21. On 20 September 2006 the order was varied, again on an ex parte application by the respondent. 22. On 13 December 2006 the appellant served a notice of application to discharge the orders. The application was heard on 26-28 March 2007 and 4 April 2007 and, as we have already stated, on 23 April 2007, dismissed by the judge. The judge also made an order for costs in favour of the respondent and ordered disclosure to be made by 24 May 2007. The DO has been suspended pending the application for leave to this court. The Legislative Framework 23. The power to make the Statutory Instrument is provided by s.444 of the Proceeds of Crime Act 2002 (POCA). This section gives power for secondary legislation to be made providing for prohibition on dealing with property which is the subject of an external request. Section 447 defines an external request as “a request by an overseas authority to prohibit dealing with relevant property which is identified in the request”: see s.447(1). An external request is contrasted with an external order which is defined as an order made by an overseas court (s.447(2)). Property is defined in s.447(4) as “ … all property wherever situated …” The expression “relevant property” which appears in the Statutory Instrument is defined in s.447(7) in the following way: “Property is relevant property if there are reasonable grounds to believe that it may be needed to satisfy an external order which has been or which may be made.” 24. It is relevant to note that s.447 appears in Part 11 of POCA under the heading “Co-operation”. Part 11 also makes provision for separate enforcement of external requests in different parts of the United Kingdom. 25. Part 2 of the Statutory Instrument is headed: GIVING EFFECT IN ENGLAND AND WALES TO EXTERNAL REQUESTS IN CONNECTION WITH CRIMINAL INVESTIGATIONS OR PROCEEDINGS AND TO EXTERNAL ORDERS ARISING FROM SUCH PROCEEDINGS 26. For the purposes of this appeal the relevant articles are articles 6, 7 and 8. We set out those parts of the articles which are material for the purposes of this appeal. They read: “ 6. – Action on receipt of external request in connection with criminal investigations or proceedings (1) Except where paragraph (2) applies, the Secretary of State may refer an external request in connection with criminal investigations or proceedings in the country from which the request was made and concerning relevant property in England or Wales to – (a) … (b) … (c) … (2) This paragraph applies where it appears to the Secretary of State that the request – (a) is made in connection with criminal investigations or proceedings which relate to an offence involving serious or complex fraud, and (b) concerns relevant property in England or Wales (3) Where paragraph (2) applies, the Secretary of State may refer the request to the Director of the Serious Fraud Office to process it. (4) … (5) … (6) … (7) Where a request concerns relevant property which is in Scotland or Northern Ireland as well as England or Wales, so much of the request as concerns such property shall be dealt with under Part 3 or 4, respectively. 7. - Conditions for Crown Court to give effect to external request (1) The Crown Court may exercise the powers conferred by article 8 if either of the following conditions is satisfied. (2) … (3) The second condition is that – (a) relevant property in England and Wales is identified in the external request (b) proceedings for an offence have been started in the country from which the external request was made and not concluded, and (c) there is reasonable cause to believe that the defendant named in the request has benefited from his criminal conduct. (4) In determining whether the conditions are satisfied and whether the request is an external request within the meaning of the Act , the Court must have regard to the definitions in subsections (1), (4) to (8) and (11) of section 447 of the Act (5) … 8. – Restraint Orders (1) If either condition set out in article 7 is satisfied, the Crown Court may make an order (“a restraint order”) prohibiting any specified person from dealing with relevant property which is identified in the external request and specified in the order. (2) … (3) … (4) The court may make such order as it believes is appropriate for the purpose of ensuring that the restraint order is effective. ” Paragraphs (5) and (6) are not material. The Judge’s Reasons 27. We set out the judge’s reasons in summary because the grounds of appeal raise much the same issues as were before the judge. We shall deal more fully with them below. For present purposes, the following short summary will suffice. 28. The judge found that the statutory framework provided the court with power to restrain assets outside the jurisdiction. He reached his conclusion by construing article 7(3) as providing a gateway to the making of a restraint order. Relying on article 7(3)(a), he ruled that provided there was relevant property in England and Wales the court had power to restrain assets outside the jurisdiction as well as within the jurisdiction. In support of this conclusion he relied on the definition of property in s.447(4) which, it will be recalled, contained the expression “… property wherever situated …”. He concluded that once that condition was dissatisfied the court has power to make an order within the terms of article 8. 29. Further, he went on to conclude that article 8 provided the court with power to restrain property not specifically identified in the letter of request. Having reached this conclusion he held that the court had power to make a disclosure order. Accordingly, he granted the respondent’s application for the DO. 30. Finally, the judge dealt with issues of disclosure. It had been argued before him, as it is before us, that the respondent was in breach of its duty to make to the court full and frank disclosure of all matters which might affect the exercise of the court’s discretion to grant the order. Having carefully set out various matters which were relied on by the appellant he expressed his conclusion in the following terms: “Clearly there is a very important principle at stake here. Mr Perry says with considerable force that where there is a failure to disclose matters to this court or an abusive use of this court the remedy must lie here in the United Kingdom and cannot simply be referred back by me to another court in another country. Of course, that must frequently be so. Where there is a clear abuse of the proceedings of the court the court must act both to protect the parties suffering from the abuse and to protect the court’s own integrity. For instance, if the court finds that there has been perjury, forgery of documents relied upon or the like then the court must act. But in the present case the essential allegations made are of abuse of the process of this court in the light of the conduct of the prosecuting authority in its own country. The matter can only come before the court after the Secretary of State has exercised his discretion whether or not to refer the external request to the Director of the Serious Fraud Office under Article 6 of the Order, and the initial decision whether this court should be asked to assist any given external territory is essentially one for the Secretary of State. Where the court is asked to assist the prosecuting authority of another country it should be slow to consider whether the prosecutor has acted in accordance with his powers and duties within the country in making the request. These questions are essentially for the Secretary of State or for the court of the requesting country.” 31. In the light of these conclusions the judge declined to discharge the RO. Grounds of Appeal 32. There are three grounds of appeal. They are: (1) The judge was wrong to conclude that article 8(1) of the Statutory Instrument gave the court a power to make a restraint order in respect of property located outside England and Wales. (2) The judge was wrong to conclude that article 8(4) of the Statutory Instrument gave power to the court to make an order for disclosure in respect of property located outside England and Wales. (3) In exercising his discretion whether or not to discharge the RO and the DO the judge acted erroneously and ought to have exercised his discretion in favour of discharging the orders. We shall deal with the grounds of appeal in the order set out above. However, it is clear that grounds (1) and (2) stand or fall together. Ground 1: 33. Mr David Perry QC, for the appellant, founds his submission on the language of articles 7 and 8 in the Statutory Instrument. He submits that in order to satisfy either the first or second condition required by article 7 before the court can give effect to an external request, the court must be satisfied that relevant property in England and Wales is identified in the external request. 34. Article 8 gives the court power to make the restraint order from dealing with relevant property which “is identified in the external request”. Mr Perry submits that the power to prohibit dealing with relevant property is provided by the words of article 8(1) and is restricted to the property identified in the /external request, which in turn throws the court back to the requirement of the second condition in article 7. What has to be identified is relevant property in England and Wales. 35. Mr Perry submits that this interpretation of the two articles is consistent with the explanatory material put out by the Home Office at the time of and after POCA had passed through Parliament sought to explain the scope of the Statutory Instrument and the statute itself. He further contrasts the statutory scheme for enforcement of the external requests with the statutory scheme for the enforcement of domestic restraint orders. The latter enables the relevant authorities to seek assistance from an overseas territory in restraining property held in that territory (see s.74 of POCA). He points out that unlike domestic restraint orders which can be enforced through the mechanism provided by s.74, there is no such structure or regime for enforcing a restraint order made under article 8. 36. Mr Andrew Mitchell QC, for the Respondent, relies on the language of POCA and also the language of the Statutory Instrument. He points to provisions in POCA which support the proposition that Parliament intended the court to have wide powers in relation to both internal restraint orders and restraint orders made as a result of external requests. In particular, Mr Mitchell relies on the definition of relevant property in s.447(4) which defines such property as “property wherever situated”. He submits that once the gateway criteria provided by article 7(3) are satisfied the court may restrain property wherever it is. Once there is, in his words, “a sufficient nexus” with the United Kingdom, the court’s jurisdiction to make a world-wide order is available and can be exercised subject to the court’s overriding discretion to refuse to make such an order. 37. Mr Mitchell points out that such an interpretation is consistent with this country’s commitment to co-operate in the suppression and control of international crime. It is also consistent with previous legislation (see for example the Criminal Justice Act 1988 ) and with the regime in civil proceedings. 38. Further, Mr Mitchell reminds the court that the Government’s view of the effect of legislation put forward in Explanatory Notes and other material issued by a Government department cannot be used so as to determine the intention of Parliament or in respect of the proper construction of the Statute and delegated legislation (see per Lord Steyn in ( R ( Westminster City Council) v National Asylum Support Service [2002] 1 WLR 2956 ). 39. The above is a short summary of the submissions attractively deployed by both counsel in the course of oral argument. We were treated to further wide-ranging submissions which involved comparisons of the language used in POCA with that used in the Statutory Instrument. Mr Mitchell also referred us, as we have remarked, to the statutory provisions of earlier statutes. However, in the end, in our judgment, the resolution of the issue on this ground of appeal comes down to a narrow issue on the proper construction of the Statutory Instrument in the context of POCA. 40. We accept Mr Mitchell’s submissions that the Explanatory material from the Home Office on the effect of the statutory provisions with which we are concerned cannot be used as demonstrating the intention of Parliament in such a way as to overrule the clear statutory meaning. It is permissible to use Hansard and other background material to identify the mischief at which the Statute was aimed (see Pepper v Hart [1993] AC 593 ). Also, a “categorical” assurance by a Minister to Parliament in the course of debates as to the meaning of statutory language may be relied on by an individual so as to preclude the Government contending to the contrary vis-à-vis that individual (see the narrow ratio of Pepper v Hart explained by Lord Steyn in McDonnell v Christian Brothers Trustees [2004] 1 AC 1101 at para 29). Neither of these two principles applies in this case. 41. We also are not impressed by Mr Perry’s submission that the NPA in its letter of request appears to have accepted the court has power to make the restraint order only in respect of property within the United Kingdom. We have found neither of these two matters helpful in reaching a conclusion on the proper construction of the Statutory Instrument. 42. We also accept Mr Mitchell’s submission that s.447(4) of POCA plainly defines property as all property, whether within England and Wales or overseas. Where we part company with Mr Mitchell’s submission is that this definition of property applies to article 8 so as to provide jurisdiction for the court to make an order under article 8(1) prohibiting a person from dealing with property outside the jurisdiction of the court. 43. We prefer Mr Perry’s submissions on the meaning and effect of article 7(3) and article 8(1) of the Statutory Instrument. In our judgment article 8(1) does have the restrictive effect contended for by Mr Perry. It states that the power of the Crown Court to make a restraint order is in respect of relevant property identified in the external request. It seems to us that this can only mean relevant property in England and Wales as is identified in the external request (see article 7(3)(a)). It is only property in England and Wales that is identified in the external request. Mr Perry concedes that this does not prevent the requesting state from adding to the property identified in the external request which was not initially specified in the request. However, he submits, and we accept, that the added property can only be property within England and Wales. 44. We find support for this construction of article 8 by reference to article 6(7). Had it been intended that article 8 gave power to the court to make a world-wide restraint order there would in our judgment have been no need for article 6(7). Any world-wide restraint order made by a Crown Court in England and Wales would have effect in Scotland and Northern Ireland without the need for the external request to be dealt with by the courts in Scotland and Northern Ireland. Furthermore, the effect of the order in this case may, in certain circumstances, come into conflict with another order made, for instance, by the court in Guernsey after a similar external request was addressed to the authorities in Guernsey. 45. In our view this construction of articles 7 and 8 is not undermined by the definition of property in s.447(4) of POCA. Mr Mitchell points out that article 7(4) requires the court when determining whether the first or second condition is satisfied, to have regard to the definitions in, inter alia, sub-section 4 of s.447 . We do not, however, accept his submission that this has the effect of importing into articles 6, 7 and 8 a power of the court to make a world-wide order. If it was intended that the crown court should have such a power in our opinion it would require a clear expression of that power in either the Statutory Instrument or POCA. The reference in article 7(4) to the need for the crown court to have regard for the definition of property given in this subsection can, we think, as Mr Perry submitted, just as easily be attributed to the requirement in article 7(3)(c) that the defendant has benefited from his criminal conduct. 46. As we have said, in our judgment, the effect of articles 6, 7 and 8 read as a whole is to provide a scheme to make a restraint order in response to an external request only in respect of property in England and Wales. Again, we point out that there would be no need for the separate jurisdictions of the courts in Scotland and Northern Ireland if it was intended to provide power to the Crown Court in England and Wales to make a world-wide order. 47. Finally, we should add that this limitation on restraint orders made in respect of external requests seems to us understandable. As Mr Perry points out, there is a considerable difference between a domestic restraint order made pursuant to ss.40 and 41 of POCA. In the case of the latter, the investigation or proceedings are instituted in England and Wales. The purpose of a restraint order in such cases is to protect property which following a trial in this country may become the subject of confiscation proceedings. 48. In the case of the former, the court can be asked to protect property in the United Kingdom, but not to provide a forum for world-wide protection, which, in this case, could just as well be provided by an order of the requesting state had the authorities chosen to do so. Further, article 18 provides for the action to be taken by the court when it receives an external order. That order is clearly confined to property in England and Wales. In our judgment this is another indication that this part of the Statutory Instrument is concerned only with property in England and Wales. Ground 3 49. This ground is in two parts. First, it is submitted by Mr Perry that the judge’s approach to the question of discretion was wrong. Secondly, it is submitted that the respondent when making its initial ex parte applications was in breach of its duty to disclose material which might have affected the court’s decision to make a restraint order. We deal first with the issue of the judge’s approach. We have already set out the final passage of the judge’s ruling. In it the judge said that failures in respect of disclosure on this case were matters for the Secretary of State to consider or for the South African courts to deal with. Mr Perry submits that this demonstrates a wrong approach. He relies on the fact that the South African authorities chose to apply for a restraint order in England and Wales rather than in South Africa. For that reason, if no other, the Crown Court should have itself considered the failures of disclosure. 50. There are three particular matters which it is alleged the respondent and the NPA failed to disclose to the judge on the initial application for the RO. These are: (1) What we shall refer to as the procedural error based on a decision of the South African Court in Reuters Group plc v Viljoen and others NMO 2001 (12) BCLR 1265. (2) The contradictory stance taken by SARS and the NPA in respect of Ben Nevis. In criminal proceedings Ben Nevis is alleged to have been an alter ego of the Appellant. In civil proceedings SARS assessed Ben Nevis and the Appellant separately for tax purposes. (3) In respect of benefit which is alleged by NPA there was a failure to disclose the fact that the total benefit including a 200% penalty charge which as a matter of law was not benefit. 51. The judge dealt with these three matters after directing himself on the approach set out in Jennings v CPS [2004] 4 AER 391. The judge said: “Applying the test set out in Jennings I am quite satisfied that the failures relied upon, even on the assumption that they are failures and I make no finding on that point, are not such as would enable me in the public interest to discharge this order.” Mr Perry concedes that the judge correctly directed himself. It is clear from this passage in the ruling that the judge dealt with these three factors as matters to be considered by him when exercising his discretion. In our judgment the passage at the end of his ruling, which we have already cited (see para 30 above), can only refer to other factors which the judge considered after dealing with these three. In the circumstances we can see no error of approach by the judge to the exercise of his discretion in respect of these three factors. 52. The final two factors were first an allegation that the behaviour of NPA has throughout been aggressive, unreasonable and unjust. Secondly, Mr Perry relies on matters surrounding the respondent’s ex parte application to vary the RO on 28 September 2006. 53. In respect of the former, the judge referred to a judgment of the South African court in which the judge stated that he was “ … seriously averse to apportioning blame to any of the parties for the quagmire in which we find ourselves”. Judge Wadsworth, in our judgment, correctly ruled that it would be inappropriate for him to delve into a matter which the trial judge felt would not help. 54. The second factor focuses on the application by the Respondent to seek and obtain a variation of the RO. It was dealt with by His Honour Judge Goymer. That was also an application dealt with by the judge on papers. There was no hearing. 55. A number of statements have been filed by both sides on this issue. In addition a large bundle of correspondence has been exhibited. The complaint made on behalf of the appellant is that the respondent and the NPA ought to have disclosed the whole correspondence to the judge when making its application for a variation of the initial order. Further, it is submitted that, at the very least, by not notifying the appellant of the application the Respondent was guilty of a very serious breach of its duty to disclose all material matters to the judge when making such an application. 56. Mr Perry submitted that SARS and the NPA manipulated the proceedings in order to remove from the RO certain property, the Scheerpoort property, which belonged to the appellant. It is submitted that the correspondence shows quite clearly that the appellant was unwilling for this property to be released for the purpose of a subsequent sale. The alleged motive for this application is that SARS intended to use the proceeds from the sale of the property to satisfy tax debts due from the appellant. Further, it is alleged that SARS sought to manipulate proceedings in South Africa so as to cause the Appellant to undergo cross-examination in the civil tax proceedings. 57. On behalf of the respondent, Mr Mitchell candidly accepts that the respondent ought to have notified the appellant that it was going to make the application to vary the RO and informed him of precisely what was being sought (see paragraph 59.4(2) of the Criminal Procedure Rules). However, Mr Mitchell submits that the respondent acted in good faith, albeit careless of the appropriate procedures. 58. The judge in his ruling stated that he had no doubt that the correspondence should have been made known to the respondent by the NPA and thus to the court. He said that it was difficult to see what justification there could be for the failure of the NPA and SARS to disclose this material. However, he took the view that there had been no prejudice to the appellant and accordingly concluded “narrowly and with some hesitation” that it would not be right to discharge the order on this ground. Accordingly, it seems clear to us, that the judge did exercise his discretion without reference to the need for the matter to be considered by the Secretary of State or the South African courts. In our judgment that was a conclusion which, in the exercise of his discretion, the judge was entitled to reach. 59. Finally, on the issue of disclosure, we turn to a submission made by Mr Perry that the Crown Court ought not to have allowed itself to be used as a “primary policeman” so as to aid the authorities of one country who had deliberately chosen not to seek an order in their own country which would be subject to judicial scrutiny there. It seems to us that it was in that context that the judge made the comments in the final paragraph of his ruling (see para 30). Like the judge, we regard this as an important matter. From the passages in the ruling to which we have referred, in our opinion the judge did exercise his discretion in relation to the non-disclosure matters without reference to the need for those matters to be dealt with by the Secretary of State or the South African court. It is not entirely clear to what issue the judge was referring in the final paragraph of his ruling. We can see that the submission made by Mr Perry that it was inappropriate for the Crown Court to act as the primary policeman in respect of this matter has some force. However, since we have concluded that the court had no jurisdiction to make a worldwide restraint order, in our judgment, the relevance of this submission is substantially reduced. If it were necessary for us to hold that the exercise by the judge of his discretion was flawed and that we must exercise the discretion afresh, we would conclude that all these matters of non-disclosure are not sufficient to cause us, in the exercise of our discretion, to reach a different conclusion from that of the judge. Conclusion 60. It follows from our above conclusions that in our judgment the RO Order and the DO Order made by the Judge must both be quashed. In their place we would substitute a restraint order prohibiting the appellant from dealing with any property of his in England and Wales. We leave counsel to draft the appropriate order. It is conceded by Mr Mitchell that in these circumstances there is no basis for making a disclosure order other than in respect of property located in England and Wales. For these reasons and to this extent this appeal is allowed. Post Script 61. The Criminal Procedure Rules make provision for applications in respect of proceedings pursuant to POCA. Rule 59.4(1), (2) and (5) deal with the giving of notice of applications for a restraint order and variation of such an order. In this case, Mr Mitchell accepted that notice of the application to vary the RO ought to have been given to the appellant. We wish to draw attention to these rules and emphasize that they must be complied with. 62. We were surprised to be told that ex parte applications pursuant to POCA are normally dealt with by crown courts on paper without the attendance of the party making the application. It seems to us that in an application of this importance and complexity it ought normally to be dealt with at a hearing whether or not it is being made ex parte. The same applies to applications to vary the order. At such a hearing a full record of the hearing should be made. This would bring proceedings on such applications more in line with applications for Freezing Orders in the civil courts upon which these orders are based.

2008_03_18-1435.xml

allowed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/530/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/530

ee51ec186a06a719c5bad192751e7ea2b83edb96aea9d4ca49edee40f5aaed40

[2012] EWCA Crim 5

EWCA_Crim_5

crown_court

Case No: 201006110 D3 Neutral Citation Number: [2012] EWCA Crim 5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM MAIDSTONE CROWN COURT (Wright J) Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/01/2012 Before : LORD JUSTICE PITCHFORD MR JUSTICE ANDREW SMITH and MR JUSTICE POPPLEWELL - - - - - - - - - - - - - - - - - - - - - Between : ALAN EDWARDS (Formerly Steadman) Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Case No: 201006110 D3 Neutral Citation Number: [2012] EWCA Crim 5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM MAIDSTONE CROWN COURT (Wright J) Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/01/2012 Before : LORD JUSTICE PITCHFORD MR JUSTICE ANDREW SMITH and MR JUSTICE POPPLEWELL - - - - - - - - - - - - - - - - - - - - - Between : ALAN EDWARDS (Formerly Steadman) Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Neil Hawes QC and Philippa Eastwood (instructed by Irwin Mitchell LLP - Solicitors ) for the Appellant Mark Dennis QC and Rosemary Davidson (instructed by Crown Prosecution Service ) for the Respondent Hearing dates : 6 and 7 December 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Pitchford : 1. On 9 May 1996, following a trial before Wright J at Maidstone Crown Court, the appellant, then known as Alan Steadman, was convicted by the jury, by a majority of 10-2, of the murder of Sharon Griffiths (otherwise Quine) and was unanimously convicted of the unlawful concealment, disposal or destruction of her body. The appellant now appeals against his convictions following a referral to the court by the Criminal Cases Review Commission (“CCRC”) under section 9 Criminal Appeals Act 1995. The single ground in respect of which reference is made under section 14 (4A) Criminal Appeal Act 1995 is that: “The conviction … is unsafe as a consequence of non-disclosure (or the failure to give full and proper disclosure) of information/material relating to the credibility of the witness Roy Kearney.” The appellant seeks leave to advance a further ground of appeal out of time namely that: “The conviction … is unsafe as a consequence of the witness Roy Kearney retracting his evidence.” This is the second time the Commission has been invited to refer the appellant’s convictions to the court and a summary of the history is required. The evidence at trial 2. It was common ground at the appellant’s trial that in 1994 he was in a relationship with Sharon Quine. Ms Quine lived in Kent. She claimed income support at the Margate office of the Department of Employment until 2 September 1994. At about that time, Ms Quine and the appellant moved in with Lynnis Keily, the appellant’s co-accused, to Ms Keily’s one bedroom flat at 1 Wynne House, Beach Street, New Cross in south east London. Ms Keily had spent several years living with the appellant’s step-father, Bob Currie, until Mr Currie’s death in July 1994. Ms Quine applied for her income support to be transferred to the Greenwich office. She last collected her giro from Greenwich in company with the appellant on 13 September 1994. She did not return either to Greenwich or to Margate to claim her benefit on 20 September 1994 or on any subsequent date. 3. During the week of Monday, 12 September Ms Keily had arranged for a decorator, Danny Corcoran, to carry out work at her flat. He gave evidence at the appellant’s trial that he started work on Monday but decided not to work on Saturday, 17 September. Instead, he visited the flat in order to collect his week’s money. When the door was opened to him he saw Ms Quine lying motionless on the floor of the bedroom. Her face was bloodied and her hair was tangled. When he told Ms Keily he would not be working that day she replied that that was just as well because there had been arguments. When Mr Corcoran returned on Monday both Ms Keily and the appellant were present but he never saw Ms Quine again. 4. Other evidence suggested that the incident described by Mr Corcoran took place on Friday, 16 September, rather than Saturday, 17 September. On Friday, 16 September, Ms Keily went to her regular public house and asked the landlord, Mr Tomlinson, if she could borrow a shovel. Mr Tomlinson lent her a shovel which was never returned. On the same day Ms Keily arranged to view a red Mark IV Ford Cortina for sale. That evening the car was viewed by Ms Keily and the appellant, who purchased it for £125. 5. The prosecution case was that on Saturday, 17 September, the appellant and Ms Keily placed the deceased’s body in the car, drove to Headcorn in Kent, and buried the body in a shallow grave. At 11.22 pm the same night they were stopped in the red Ford Cortina in East India Dock Road by police officers. The appellant gave a false name, Michael Coyle, the name of an Irishman who was known to him. Ms Keily was drunk. On Tuesday, 20 September, the appellant used the same false name when leaving the car at a garage for repair. 6. In November 1994 the appellant left London and went travelling in the West Country. The car was sold for scrap to a breaker in Swindon, where the appellant was living above a restaurant. On 3 February 1995, two farmhands working in a field at Water Lane Farm, Headcorn found the remains of the deceased. A riverman reported that he also had seen a bone sticking out of the ground in the same spot during November 1994 and assumed it to be animal remains. The deceased’s remains were examined by a pathologist. The skull and the humerus were visible above ground. The body was wrapped in a builder’s dust sheet. The feet were bound and there was a white rope around the neck and shoulders. The cause of death was manual strangulation. The nasal bone had been fractured. The body was identified as the remains of Ms Quine from her dental records. 7. On 23 February 1995 Ms Keily was arrested. Eventually she admitted that Ms Quine had died in her flat. She admitted borrowing a shovel and assisting the appellant to remove the body to Kent in the boot of the red Ford Cortina motor car in order to bury it. She denied having any involvement in the killing. Also on 23 February, the appellant was arrested. He told the police that he had argued with Ms Quine on 14 September 1994 and she had left him. Thereafter he made no comment to questions put to him. 8. The appellant was remanded in custody to HMP Elmley to await his trial. He was detained under rule 43. While there, he was befriended by a prisoner in an adjoining cell, Sidney Patrick Ridger. Ridger was serving a sentence of 2 years 3 months for burglary. Subsequently, having given assistance to the police and prosecution, he was ordered to serve 12 months imprisonment consecutive for further offences for which he was awaiting trial. Ridger was, the jury were informed, a registered informant. He told the jury that over a period of days the appellant, having first claimed that Ms Keily was responsible, admitted the killing. The appellant told Ridger that he had punched Ms Quine in the face and strangled her with his hands. Ms Quine had threatened to expose Lynnis Keily for DSS fraud. Ridger described how the painter had seen the body. The appellant moved the body from the floor of the bedroom to the bath. The appellant described buying a car to dispose of the body. He told Ridger that the body was wrapped in a dust sheet and bound with a clothes line. The appellant and Ms Keily borrowed a shovel which was an inefficient digging tool. That explained why the grave was shallow. The appellant told Ridger that he had removed rows of tiles from the wall alongside the bath and re-painted the bathroom pink in order to conceal possible traces of blood. This last detail was unknown to the police at the time Ridger revealed it. The flat was re-visited for the purpose of inspection and taking photographs. It was possible for the jury to see the outline of the tiles which had been removed even after over-painting. Ridger also gave evidence that the appellant had drawn a sketch of the flat on Ridger’s notepad. The sketch itself had been torn up but the outline was found on an underlying page using the ESDA technique. 9. Ridger was transferred out of HMP Elmley on 19 May 1995. Following his departure, Roy Edmond Kearney, on 4 July 1995, was transferred to Elmley. Kearney was serving a sentence of 9½ years imprisonment imposed for importation of class A drugs and he was awaiting trial for a further charge of importation of cannabis and amphetamine sulphate, the value of the latter importation being some £658,000. That offence, the prosecution alleged, was committed while Kearney had been on home leave from his prison sentence. On 19 July, Kearney and the appellant shared a cell at Canterbury Crown Court. The appellant was being produced for a plea and case management hearing. Kearney was attending a hospital appointment in Canterbury. Due to the shortage of resources they had both been conveyed to the Crown Court in the same transport, probably a standard prison, rather than a cellular, van. They spent, in all, some 84 minutes together in the cell. Kearney gave evidence that the appellant made explicit admissions to him. Their conversation about the killing arose when the appellant’s co-accused, Ms Keily, passed by their cell door. Steadman told him that the woman had “grassed him up”. Steadman went on to tell him the story. Kearney reported that the appellant confessed to punching Ms Quine to the floor and then strangling her. He had done it, he said, because she had been running down his deceased step-father, Bob Currie, calling him a “pisshead”. Steadman said that he lost his head, put his hands around her neck and strangled her. He spoke about buying the car and digging a shallow grave. On the way back to London he claimed that they had called at Plaistow to try to establish an alibi with the appellant’s former girlfriend. There was no one at home. They had re-crossed the river through the Rotherhithe Tunnel when they were stopped by the police. They returned to the flat and cleaned up. Kearney reported that the appellant told him he had disposed of the car in Swindon. He also told Kearney that he had got some people to say that they had seen Ms Quine alive a month after she had been killed. 10. The appellant gave evidence at his trial. He accepted that Mr Corcoran had visited the flat. On the occasion that Mr Corcoran recalled, the appellant said that Ms Quine was not lying on the floor of the bedroom but was getting dressed. He accepted that he had removed tiles from the bathroom wall. Ms Keily, he said, had asked him to prepare the bathroom for re-painting. He had accidentally knocked some tiles from the bathroom wall. At her request he had removed them all and re-painted. He agreed that Ms Keily was with him in East India Dock Road at 11.22 pm on 17 September. At that time, he claimed, Ms Quine was at home in Ms Keily’s flat. The appellant and Ms Keily had been to Canning Town to visit his ex-girlfriend and to see his daughter. He denied having been to Headcorn. The appellant said that on Monday, 19 September, he and Ms Quine were on their way to the dole office when they argued. She stormed off down the road and he had not seen her since. He denied having made any admissions to Ridger about the facts of his case. He suggested that Ridger could have gained access to his case papers from his cell. If he had spoken at all it would have been to deny the allegations made against him. He probably did tell him about re-painting the bathroom, but he did not say that he re-painted to cover up any bloodstains. The appellant accepted that he had shared a cell at Canterbury Crown Court with Kearney. He said that he was on that occasion in possession of some of his case papers which he had taken to court in a plastic bag. At court he was handed a prosecution summary of the case. The appellant said in evidence that he had made no admissions to Kearney either. The appellant was cross-examined by Mr Gale QC, for the prosecution, as to information which Kearney had apparently given to the police but which could not have come from the case summary. This included detail that the deceased used two surnames, Quine and Griffiths; that the car was crushed in Swindon; that an argument about Mr Currie preceded the killing; that Ms Quine was punched to the face; that foxes may have dug up the deceased’s body; that the appellant had found witnesses who would say that they had seen Ms Quine still alive some days after the probable date of her death. 11. The appellant called a witness, Mr I C Thompson, who gave evidence that he had seen Ms Quine at his flat in Margate in October 1994. She was, he said, looking for drugs. The prosecution pointed out the similarity between the event described by Mr Thompson and another which, the appellant accepted in his own evidence, had occurred in September. Mr Phillips gave evidence that a woman calling herself Sharon or Shirley “Coin” telephoned him on 29 September asking about a flat to let in Herne Bay. He showed her the flat. When subsequently shown a photograph of the deceased he could not say whether or not it was the same person. Mr Phillips said that he had responded to a Crimewatch or Crimestoppers programme when the name Sharon Quine was mentioned. There was, however, no record of Sharon Quine or Sharon Griffiths making a claim for benefit in respect of accommodation (or any other benefit) in the Margate area following the transfer of her benefits claim to Greenwich. 12. The joint trial of the appellant and Lynnis Keily commenced on 5 February 1996. At the close of the prosecution case, on 8 February 1996, counsel for Ms Keily submitted that there was no case to answer upon Count 1 of murder in her case. She had already pleaded guilty to Count 2 of assisting in an unlawful burial. On the following day Mr Justice Sedley directed a verdict of not guilty upon Count 1. A re-trial of the appellant upon both counts was ordered. At the re-trial, which commenced on 30 April 1996, Ms Keily’s plea of guilty to Count 2 was admitted in evidence as being relevant to the issue of the date and general circumstances of the deceased’s death. Ridger and Kearney again gave evidence. The appellant was convicted. First appeal 13. The appellant was granted leave to appeal against conviction on the ground that the evidence of Ms Keily’s conviction should not have been admitted. The appeal was dismissed on 11 July 1997. In the meantime, in or about November 1996, Kearney wrote a letter to the appellant in the following terms: “Alan, if you wish to appeal I will tell your solicitor I lied in court to convict you, due to pressure from the police. I am willing to attend court if you need me. Ask your brief to contact me. I will need to be traced from Elmley. Good luck.” The date stamped on the letter, as the date upon which it was received by the appellant’s then solicitors, was 19 February 1997. Kearney’s retraction 14. On 10 April 1997 the appellant’s solicitors interviewed Kearney at HMP Maidstone. From their notes of that interview the solicitors prepared a statement for Kearney’s signature. On 19 June 1997 the solicitors revisited Kearney and revisions were made to the statement. We have been provided with a typewritten copy of the composite statement. In it, Kearney said that, having been “promised” a sentence of 18 months - 2 years imprisonment by his barrister, the judge and the prosecution, he had appeared for sentence at Canterbury Crown Court on 22 July 1996 and was sentenced to 5 years imprisonment consecutive to his existing sentence. The sentence of 5 years was subsequently reduced to 4 years imprisonment on appeal. Kearney said that he had shared a cell with the appellant at Canterbury Crown Court for a short time in July 1995. Steadman was a rule 43 prisoner with whom Kearney should not have been required to share a cell. Kearney said that before he left for the hospital he had a brief chat with Steadman, who told him that he was going to be arraigned. When Kearney returned from hospital they continued their chat for about an hour before being returned to Elmley. Kearney continued: “5.1 No more than a few days after the trip to Canterbury – it may even have been the same day – I was called to an office by security prisoner office Trotter. He explained to me the position of the court case concerning Alan Steadman and he asked me if I would like to be a witness in the case. I wanted an explanation from him and he then went into some detail. He told me that the case involved a “43” inmate and what he was in for. He told me the nature of the case, mentioning murder and, I think also, rape. Officer Trotter pointed out to me that I had a Crown court case coming up – the matter ultimately dealt with at Canterbury in July 1996 – and my parole was coming up, and if I would like to give evidence in the case of Steadman, it would be made easy for me – perhaps the word “beneficial” was used. …Having given the officer’s proposal some consideration, I said words to the effect, “yea, OK, I’ll do it”.” 15. Kearney said that he received an A4 brown envelope containing two sheets of A4 paper. He assumed it was from P.O. Trotter. On them, in small writing, was written an account which Kearney subsequently incorporated within his statement to the police. He believed that Trotter was friendly with a senior police officer called Newman. Kearney said that he wrote to the police at the Maidstone incident room. On Trotter’s instructions Kearney memorised the detail of the A4 sheets, tore them into pieces and flushed them down the toilet in his cell. Kearney said that he was then visited by two police officers to whom he dictated his false statement. He continued: “9. After the statement had been taken as described above, I was visited a few times by police officer Newman. This officer was not one of the 2 officers to which my statement was made. Police officer Newman’s visits were, I think, basically to check that I would go to court voluntarily without a witness summons, to give evidence within Alan Steadman’s trial. References also were made to little promises, including my being told that I would “get a leg-up” at court on my importation matter. By that I took it to mean a reduced sentence. I believe that there were 3 times when police officer Newman visited me.” According to Kearney, he was intending to plead not guilty to the allegation of importation. Reports of Steadman’s trial referring to Kearney as a convicted drug smuggler appeared in a local newspaper. DC Newman told Kearney not to worry. Kearney was, however, annoyed. At Canterbury Crown Court on 22 July 1996 Kearney pleaded guilty to the outstanding charge of drugs importation. He had been told to expect that a letter from the police to the judge would assist him with sentence. However, he had no evidence, he said, that any such letter was placed before the judge. Kearney said that during the first trial, when he was part way through his evidence, he refused to return to court in the morning. Having been informed that he would be summonsed to attend, he eventually went to court and concluded his evidence. Kearney concluded his statement by saying that he believed “the whole thing was a conspiracy from start to finish to get Steadman convicted”. Kearney reiterated that none of the detail provided by him to the police came from Steadman; it all came from the document supplied to him by P.O. Trotter. In his unsigned statement Kearney acknowledged that his reference in his letter to Steadman to “pressure from the police” was not entirely accurate. He explained that the pressure from the police arose from the promise of “a leg-up” in his drug importation case. If he did not assist then the police would not assist him. Furthermore, Kearney claimed that had he not assisted life would have been made difficult for him within the prison. On 14 October 1996, with no prior warning, he was indeed transferred from HMP Elmley to HMP Long Lartin in Worcestershire. He claimed to have believed that his move was directly linked to his participation in the Steadman trial. P.O. Trotter had been promoted to governor. Kearney had not, however, received a sentence as light as that which he had been led to expect. CCRC investigation 16. The appellant’s solicitors judged that Kearney’s retraction evidence could not be used at the appellant’s first appeal because he refused to sign his statement unless he received immunity from prosecution for perjury. On 30 September 1997 the appellant’s solicitors invited the CCRC to investigate Kearney’s retraction. Kearney was interviewed on behalf of the Commission. This time he was offered immunity. Kearney repeated the assertions made in his unsigned statement. However, Kearney never has signed the statement he made in April and June 1997. The Commission requested an investigation by the Metropolitan Police into Kearney’s allegations. The report which followed that investigation was received by the Commission on 1 November 2001. The Commission addressed the issue whether Kearney’s new account was capable of belief, and concluded that it was not. The appellant applied for judicial review of that decision but permission to proceed was refused at an oral hearing on 30 October 2002. A further written application was made to the Commission on 22 July 2005. Following representations by counsel, made on 1 March 2010, the Commission resolved to refer the convictions to the court on the ground that disclosure should have been made, but was not made, of Kearney’s status as a police informant. The sequence of events which led to non-disclosure was as follows. Kearney’s genesis as a witness 17. On 20 July 1995, the day after his cell conversation with the appellant at Canterbury Crown Court, Kearney wrote a letter from HMP Elmley addressed to the Maidstone incident room, in the following terms: “Dr Sir/Madam Yesterday at Canterbury Crown Court I spoke to a man I know as Mr Stedman [sic] . He was up in court for murder. Within 2 hours he told me the whole story. How he killed her and why he killed her. I do believe this information will convict this man along with his co-defendant. I think these sort of people who kill young girls need locking up for a long time. If you need to visit me with regards to this matter then please be disgreat [sic] . 1. I know where she was murdered. 2. I know where she was buried. 3. I know why she was killed. 4. I know the car she was moved in. 5. I know how she was killed. 6. I know he had the car cut up. Should I go on? He seems very confident that he will walk from court. Kind regards Roy Kearney The girl was Sharon Griffish [sic] from Herne Bay, Kent.” The letter was opened in the mail room by P.O. Sargent, who handed it to P.O. Richard Trotter. Mr Trotter was principal officer in the security department at the prison. The letter was handed by P.O. Trotter to D.C. Wellard at HMP Elmley at 8.45 am on 26 July. In the meantime the letter was sent by facsimile transmission from the prison to the incident room at Maidstone and arrangements were made to interview Kearney at the prison on 26 July. DC Wellard took Kearney’s prosecution witness statement at Kearney’s dictation. It is not known for certain whether any other officer accompanied DC Wellard. DC Newman who, in circumstances which we shall describe, gave evidence to the court, does not believe he was present. Had he been present he would have expected to have endorsed the statement with his own signature. Non-disclosure 18. Before the first trial commenced, junior counsel for the appellant made a written request for information from the prosecution. She required knowledge whether Ridger had acted as a police informant before the present occasion and, if so, on how many occasions and for what reward. She was informed that Ridger had been an informant without financial reward; favourable information had been given to courts before which Ridger had appeared as a defendant. In the case of Kearney, the question was asked: “Has Kearney requested, or has he been promised, any favourable consideration in respect of his current sentence as a result of information given by him to the police in this case.” The answer to the question was “No”. At the time the reply was given it was accurate. However, during the second trial when, on 2 May 1996, Roy Kearney was being asked questions by Mr Gale on behalf of the prosecution, Kearney was asked: “Mr Kearney, if you do not want to answer this question you have no need to do so, but I am asking you, have you ever been a police informant?” Kearney answered “No” . That answer, to use a neutral term, was inaccurate. As a matter of fact Kearney had been registered as an informant by the Kent Police on 21 March 1996 in circumstances which we shall describe shortly. 19. In cross-examination by Mr Patience QC on behalf of the appellant, Kearney was asked: “Did you see some advantage to yourself in writing to the police in the way which you did to talk about this alleged conversation at Canterbury Crown Court?” Kearney replied: “No, I cannot get no advantage off it at all.” In fact, Kearney had, recently before the second trial, on 16 February, 27 March and 29 April 1996 been visited at the prison by DC Newman. Kearney was correct when he stated to the appellant’s solicitors in 1997 that he had been visited on three occasions by DC Newman. On the first occasion DC Newman was accompanied to the prison by DC Wellard. We have received the evidence of Mr David Clapperton, then Detective Superintendent and Senior Investigating Officer (“SIO”) in the investigation into Ms Quine’s murder. Mr Clapperton told us that he received information that Kearney wanted to see DC Wellard, the officer to whom Kearney had made his statement. Mr Clapperton instructed that Kearney should be seen by an officer who was a regular handler of informants. The officer chosen was DC Newman. In consequence of his visit to see Kearney with DC Wellard on 16 February 1996, DC Newman wrote the following report to Mr Clapperton: “Kearney is due to appear at Canterbury Crown Court for offences of being concerned in the importation of 30 kilos of cannabis and 3 kilos of amphetamine sulphate. The case is in the list week commencing 19 February 1996. This offence took place whilst he was out on a “town visit” from Elmley. It is a Customs and Excise prosecution. The case officer is Mr John Gregory from the London Investigation Unit. [Kearney] has requested should he be convicted of the offence a letter be submitted to the trial judge from the Detective Chief Superintendant informing the court of the fact that he has given evidence in respect of a murder trial and he is willing to do so again. In view of the above outline circumstances I respectfully request that consideration be given to submitting a letter to the trial judge should he be convicted of the offence as described. I would add that Kearney is a professional criminal who appears to be well connected within the criminal fraternity. He has indicated to me he is willing to give information whilst as a serving prisoner, and also after his earliest date of release, August 1997, if he does not receive any additional custodial sentence. I intend to register him as an informant and will complete contact forms covering all my dealings with him commencing from the 16 February 1996 visit.” 20. Mr Hawes QC, counsel representing the appellant in this appeal, invites the inference that this information had not been passed on to the Crown Prosecution Service or to counsel representing the prosecution in the appellant’s second trial. We have no difficulty in accepting Mr Hawes’ proposition. Prosecuting counsel were plainly unaware, either that Kearney was to be registered as a police informant, or that he had been registered, or that he had been given a specific indication that a “text” would be sought by DC Newman from the Detective Chief Superintendant. We cannot imagine Mr Gale framing his question as he did if he had expected any other answer, nor can we imagine Mr Gale failing to disclose the true position upon Kearney’s denial that he expected any advantage from his evidence. Mr Hawes correctly, in our view, submits that the jury was deprived of information relevant to their consideration of the reliability of Kearney’s evidence. Sedley J, as he then was, had already ordered that Ridgers’ informant status should be disclosed to the defence. It is highly improbable that the prosecution would have been permitted to rely on Kearney’s evidence unless similar disclosure was made in his case. 21. DC Newman accepted in his evidence to this court that his further visits to Kearney on 27 March and 29 April 1996 may well have been concerned with the need to ensure that Kearney would attend the second trial to give evidence. We add that it would not be unusual for an officer in DC Newman’s position to visit a witness such as Kearney to ascertain the witness’s continuing intentions as to giving evidence. DC Newman insists, and we accept, that he prepared contact sheets recording his conversations with Kearney. They would have been placed in Kearney’s informant file whose contents have since, by reason of the passage of time, been destroyed. Kearney’s appeal against sentence 22. On 2 May 1996 Ridger and Kearney gave evidence in the appellant’s second trial, and on 9 May the appellant was convicted. On 22 July 1996 Kearney changed his plea to guilty of the further drugs importation offence. He was sentenced to 5 years imprisonment consecutive to his current sentence of 9½ years. Kearney appealed against his sentence but he was refused leave by the single judge. It is to be noted that it was at about this time and following Kearney’s removal from HMP Elmley that he wrote his handwritten letter to the appellant. We have heard evidence from Mr Trotter. The increase in Kearney’s sentence would have rendered him a category A prisoner who required removal to a more secure establishment. Having made his first statement to the appellant’s then solicitors on 10 April 1997, the Court of Appeal heard, on 8 May 1997, the oral renewal of Kearney’s application for leave to appeal against his sentence. The court granted leave and indicated a willingness to reduce the sentence from 5 years to 4 years imprisonment. The terms of the court’s judgment are explicit in giving credit “to reflect the courage and co-operation this applicant showed on another occasion in the interest of justice”. The court indicated that this was the order which would be made unless within 14 days Kearney made an application to the contrary. No such application was made. Kearney says that he was unaware of the reduction in his sentence and believed that he was still serving 14½ years imprisonment. It is unknown whether the court received only submissions from counsel or received a confirmatory text from the police. Mr Clapperton informed us that the “text” would have come from his Detective Chief Superintendent. Had a text been provided, he, Mr Clapperton, would have been notified. He cannot remember receiving any such notification. There is no doubt that Kearney felt a burning sentence of grievance. He had been led by someone, so he says, to expect a sentence of 18 months - 2 years imprisonment, perhaps concurrent to his existing sentence. 23. On 19 June 1997 the appellant was again visited by his then solicitors and made revisions to his statement which, as we have said, Kearney refused to sign. In interview with the CCRC he maintained the truth of that retraction. In a handwritten statement of 3 May 2011, taken by the appellant’s present solicitors, Kearney repeated that his retraction was true. Ground 2 - Kearney’s ‘fresh evidence’ 24. We received the oral evidence of Roy Kearney, upon the application of the appellant, with a view to making a decision whether to admit his evidence under section 23 Criminal Appeal Act 1968 in support of the appellant’s second ground of appeal. We have also received the evidence of DC Newman, Mr Clapperton and Mr Trotter, called on behalf of the respondent by Mr Dennis QC. In essence Mr Kearney repeated the account he had given in his unsigned retraction statement subject to changes in detail which, no doubt, can be explained by the passage of time. His evidence was that prison officer Trotter made a proposition to him that he should give false evidence against the appellant at his trial. He was provided with a script by Mr Trotter, inserted that night under the door of his cell, which he read, memorised and destroyed. He then wrote to the Maidstone incident room. As a result, DC Wellard came to take his statement which he dictated to him. 25. We have no hesitation in rejecting Roy Kearney’s evidence as to the corrupt proposition from Mr Trotter as manifestly untrue. First, we note that Kearney has never suggested that it was proposed to him that he would be “planted” in a cell with the appellant; only that, having been placed in a cell with the appellant, Mr Trotter afterwards told him what to do if he wanted to gain an advantage for himself. We have examined the terms of the letter written by Kearney on 20 July 1995. Its purpose was clearly to tantalise the investigation by his knowledge of Steadman’s guilt. It betrays no sign that the writer was making contact in consequence of any pre-arrangement between the police and Mr Trotter, or even on the advice of Mr Trotter. Kearney was explicit in his evidence that the letter was of his own composition. 26. Secondly, the witness statement made on 26 July 1995 to DC Wellard is so packed with circumstantial detail that we find it impossible to accept that the account then given by Kearney was contained on two sheets of A4 which he memorised overnight before destroying the evidence. 27. Thirdly, as Kearney himself proposed to the CCRC investigator, the only sensible source of Mr Trotter’s information, if Kearney’s account was true, can have been Ridger or the police or both. However, the account given by Kearney in his witness statement is redolent with detail which was not contained in Ridger’s witness statement. There are, furthermore, details which were not otherwise available to the investigators, and which in some respects differed from the account given by Ridger. We need refer only to the principal features revealed: (1) Kearney said in his statement that he was told that the argument which led to Ms Quine’s death erupted upon Ms Quine’s insults towards Steadman’s deceased step-father, Bob Currie; Ridger, on the other hand, had told the police that the argument which led to Ms Quine’s death was her threat to expose Lynnis Keily for a DSS fraud; (2) Kearney referred to the deceased as Sharon Quine in his witness statement; Ridger referred to her as Sharon Griffiths; (3) Ridger gave an account of Ms Keily’s involvement in the killing as described to him by Steadman; Kearney gave no such account; (4) Kearney said in his statement that Steadman complained that he had been “stitched up” over some blood allegedly found on the bed. The bed, he said, was not present at the time; Ridger gave no such account; (5) Kearney said that Steadman told him that he and Ms Keily decided to bury the body near Ms Quine’s home town so as to place distance between her body and the place where she was killed in New Cross; Ridger made no reference to Steadman’s purpose; (6) Kearney described in his statement how Steadman had driven from Headcorn to Plaistow in search of an alibi; having received no reply from his ex-girlfriend’s address, they returned south of the river via the Rotherhithe tunnel where they were stopped by the police. None of this was mentioned by Ridger. In his evidence at trial, the appellant accepted that he had indeed visited his former girlfriend. He claimed that was in order to see his daughter; (7) According to Kearney, Steadman claimed there would be no forensic evidence under Ms Quine’s fingernails because he had knocked her out first; Ridger made no reference to such a claim by Steadman; (8) Kearney said that Steadman claimed to have found the witnesses to say that Ms Quine was still alive several days after the probable date of death; no such report was made by Ridger; We find the idea that this information was fed to Mr Kearney by Mr Trotter to be wholly implausible. The SIO, former Detective Superintendant Clapperton, informed us that several of the details provided by Kearney came from no other source, specifically that the argument which led to Ms Quine’s death was over Steadman’s step-father; that Steadman was claiming to have been “stitched up” as a result of what Kearney reported was blood found on the bed; that a deliberate decision was made to bury the body in Ms Quine’s home town so as to avoid a connection with New Cross; that before Steadman and Keily were stopped in East India Dock Road, they had been north of the river in an attempt to collect an alibi; that Steadman believed there would be no forensic evidence under Ms Quine’s fingernails; that Steadman was claiming to have found the witnesses who would say Ms Quine was still alive after the probable date of death. Mr Clapperton informed us that the deceased was indeed known by two names. The blood to which Kearney was apparently referring was not on the bed but under the bed, indicating a misunderstanding rather than an invention. It was true that Ms Quine had been convicted of cheque offences using the name of Griffiths. For present purposes, the issue is not whether Kearney told the truth at trial as to Steadman’s comments and confession but whether Kearney, realistically, could have acquired this information from PO Trotter. We are quite satisfied that he did not. 28. Fourthly, upon Kearney’s account, he met Mr Trotter on one occasion only for a period of about 20 minutes after he had been returned to HMP Elmley from Canterbury Crown Court. Roy Kearney and Mr Trotter both gave evidence that there had been no meetings or dealings between them before that meeting, nor did Mr Trotter have any meetings or dealings with Kearney afterwards. Kearney was, at the time, sharing a cell with another inmate. As Mr Dennis QC has argued, it is simply not credible that Mr Trotter would have taken the risk of exposure by propositioning a man he did not know, of whose reliability he was unaware, and who had not before acted as an informant. Mr Kearney’s explanation in evidence was that any risk of Mr Trotter’s exposure was eliminated by Kearney’s knowledge that, as between himself and Trotter, he would never be believed. That may be a reason why Mr Kearney would not have sought to expose Mr Trotter, if propositioned, but that is not the point. The question is whether it is remotely credible that Mr Trotter would take such a risk with a man he did not know. We are quite sure that it is not. 29. Fifth, had Mr Trotter propositioned Kearney as Kearney claims, we have no doubt that there would have been further communication between them. Mr Trotter would have had, on Kearney’s account, the closest possible interest in ensuring that the man he had propositioned remained willing to proceed with his undertaking. Throughout the period between 20 July 1995 and Kearney’s appearance in the second trial on 2 May 1996, Mr Trotter was, if Kearney was telling the truth, at risk of exposure, yet Kearney accepted that there was no attempt by Mr Trotter to engage with him. Further, according to Kearney’s statement to the appellant’s then solicitors, he saw DC Newman three times. The evidence is that DC Newman became personally involved on the dates identified, shortly before the second trial. On Kearney’s account, no-one else appears to have been nurturing Mr Kearney either. 30. Sixth, we have heard the evidence of Mr Clapperton, Mr Trotter and DC Newman. We are quite satisfied that they were telling us the truth. The impetus for Kearney’s information came from Kearney himself and no-one else. There was no envelope under the door of the cell and there was no proposition from either Trotter or Newman. That finding, we consider, has implications for the underlying truth of Kearney’s evidence at trial, an issue to which we shall return later in this judgment. 31. Seventh, on 17 July 1999 Kearney wrote to DC Newman from HMP The Mount in the following terms: “Dr Mr Newman Just a quite [sic] note to let you know I’m still in prison and have failed to obtain parole. Even got a knock back due to helping your murder case! I thought you should know this. I was removed from HMP Maidstone because I was seen by another inmate who knew Steadman and the knock back on my parole reason said “was moved from HMP Maidstone due to threats from other inmates”. Maybe you could contact the parole board and tell them the reason why I was moved and that it was not my own doing. Why I’m writing to you, I thought you may be interested in a matter regarding Lyn and Megan Russell. Having spent 5 weeks at HMP [redacted] two names came to light regarding this murder. Both of these people were at the scene [redacted]. Maybe you should seek advice from Michael Stone. Good luck R Kearney” According to Kearney’s unsigned witness statement of 1997, and his evidence to this court, he was an embittered man who believed he had been corruptly used to convict an innocent man and then abandoned. We find the contents of Kearney’s letter to DC Newman utterly inconsistent with such a belief. We entirely accept that Kearney believed that he had been let down by the police, but we reject his assertion that his original evidence was fabricated. His letter of 17 July 1999 is, in our view, explained by the fact that two years after Steadman’s trial, as he was approaching his release date, Kearney had regained a sense of proportion and was again offering his services to DC Newman in his capacity of informant. He was again seeking advantage by enlisting DC Newman’s support. The difficulty for Mr Kearney is that having, in pique, in the meantime committed himself to a wholly fanciful retraction story, he has had to maintain it because he has been pursued not only by the appellant’s solicitors but also by the CCRC. Having secured his immunity from prosecution for perjury at the original trial Kearney feels safe giving his present account. Mr Hawes argued that Kearney runs the risk of being prosecuted for perjured evidence in the Court of Appeal, a risk he would have been unlikely to take. In our judgment the truth is more prosaic. As Mr Kearney acknowledged in his evidence he had already failed to answer two requests to attend hearings in the Court of Appeal.. He was undoubtedly a reluctant witness. He claims that he felt intimidated by the police. We have no doubt that, for Mr Kearney, it was simpler to stick to the false retraction than to disavow it. We conclude that the evidence given by Roy Kearney as to the truth of his retraction is not capable of belief and, for that reason, does not afford the appellant any ground of appeal. We therefore refuse leave to appeal upon Ground 2. Ground 1 – non-disclosure 32. We turn therefore to ground 1. Having accepted that a meeting did take place between DC Newman and Roy Kearney on 16 February 1996 (which may or may not have included DC Wellard), and having also accepted that the subject of discussion was the provision of a letter from the police to Kearney’s trial judge and DC Newman’s intention to seek Kearney’s registration as an informant, we also accept that the jury in the appellant’s trial was misled as to the true position regarding Kearney’s motivation. In particular, at the time he gave evidence in the second trial, Kearney had a specific interest to serve in giving evidence in the appellant’s trial in accordance with his witness statement which he expressly disowned. The issue which arises is whether, by reason of non-disclosure, the fairness of the appellant’s trial was affected so as to render the verdicts of the jury unsafe. 33. We have already concluded that Kearney’s retraction statement was false. It seems to us that there is little or no room for a half-way house in which Kearney’s claim of pressure from the police and Mr Trotter was false, but his claim to have lied at Steadman’s trial was true. Kearney has never suggested that he exaggerated and has always resolutely denied that he obtained any of his information from the appellant’s case papers. As we have said, there was material in Kearney’s witness statement which could not have come from the case papers. Steadman did not claim that he had provided any detail of his case to Kearney which Kearney could afterwards have manipulated. The two men were not lodged in the same block at HMP Elmley and they never saw one another again until Steadman’s trial. The detail of Kearney’s description of his conversation with Steadman at Canterbury Crown Court was such that, in our view, the underlying truth of Kearney’s account at trial is transparent. The possibility cannot, of course, be excluded that discrete parts of his evidence at trial were exaggerated or inaccurate. These were, however, matters which the jury considered before returning their verdicts of guilty. 34. What then would the jury have learned if full disclosure had been made before the appellant’s second trial? The jury would have been told that Kearney had not before acted as an informant; that he had volunteered his assistance to the police; that he had agreed in principle to become a registered informant; that he had recently been registered; that he had sought from the police an assurance that the court by which he might shortly be sentenced for drug trafficking would be informed of the assistance he had given; that Kearney reasonably expected a reduction in his sentence for his assistance. Mr Hawes submits that although the jury was warned of the need for caution it might be that the jury drew a distinction between the evidence of Ridger (who was a registered informant) and Kearney (who they understood was not). We therefore turn to the terms of the judge’s direction at page 58E of the transcript of his summing up: “Obviously, ladies and gentleman, you will scrutinise the evidence of Mr Ridger and Mr Kearney with the greatest possible anxiety and care. They are both criminals. They both have substantial criminal records. They both would have – and certainly Mr Ridger would have – very good reason for wishing to, as it were, ingratiate themselves with the police with enquiries into serious crime in the hope and expectation that if they were, or purported to be, helpful then they might expect to have that information passed confidentially, as it is on suitable and proper occasions, to the judge of trial which the judge may be prepared to, if he thinks it appropriate to do so, to take into account when passing sentence on the person who has given such assistance to the police.” It must have been obvious to the jury, despite Kearney’s claim that he had nothing to gain by giving evidence, that there was a real possibility that he thought he did; hence, the terms of the judge’s direction. The judge proceeded to direct the jury to concentrate on the question whether it was possible that either Ridger or Kearney had gleaned information about the case from anyone other than Steadman himself and utilised that information to his own possible advantage. In our judgment, that is exactly what the jury would have done. We have already drawn attention to some of the circumstantial detail to which Kearney descended in his witness statement and evidence. We do not consider that if the jury had been given full information about Kearney’s status and probable motivation, the nature of their task would have been significantly different from that which they undertook following the judge’s directions. 35. Furthermore, had Mr Patience utilised the information with which he should have been provided, it must have emerged before the jury that Kearney’s motivation for giving evidence had been revealed shortly before the second trial began. That information would, however, have left untouched the circumstances in which Kearney came to make his offer to give evidence in the first place. The prosecution would have been entitled to demonstrate, through Kearney’s letter of 20 July and his statement of 26 July 1995, that the offer was made to the incident room on the day after the meeting between Kearney and Steadman at Canterbury Crown Court, and that he had then given a full and detailed account. Indeed the terms of Mr Patience’s question to Kearney in cross examination (see paragraph 19 above) suggests that the jury knew at least in general terms of the letter and its circumstances. At that stage there can have been no question in Kearney’s mind that he might be registered as a police informant, nor that he had any guarantee of assistance from the police. The evidence of DC Newman’s conversation with Kearney on 16 February 1996 would undoubtedly have revealed that by the time of the second trial Kearney had an expectation of advantage should he repeat the evidence he had given during the first trial. However, for the reasons we have given we do not take the view that cross-examination of Kearney with the benefit of full disclosure would have undermined the credibility of his account of his conversation with the appellant. 36. We do not accept Mr Hawes’ submission that there would have been available to the defence a realistic suggestion of complicity between Ridger, Kearney and the police. We do not accept that cross-examination of the relevant police officers had any real prospect of exposing what Mr Hawes’ suggests may have been a deliberate decision not to make disclosure. We accept the evidence of Mr Clapperton that the individual whose responsibility it would have been to raise these matters with the Crown Prosecution Service and prosecuting counsel would have been Detective Inspector Townsend, the disclosure officer. We have not heard from DI Townsend. However, Kearney himself gave evidence to this court that he was surprised to hear that he had been registered as an informant in March 1996. He did not regard his reply to Mr Gale as an untruth at the time he gave it. DC Newman confirmed that he could not himself have registered Kearney as an informant. He could and did make a recommendation which would be submitted to his superiors who would make the decision. Ridger’s informant status had already been notified to the CPS and prosecuting counsel for the purpose of making a PII application to Sedley J. Ridger was a comparatively long-standing informant. Kearney had not before his offer to give evidence in Steadman’s trial acted as an informant on any occasion. The solicitor for HM Customs and Excise prosecuting Kearney for his further drugs importation was informed of the assistance Kearney was giving in the Steadman prosecution in February 1996. We conclude that the failure of disclosure to the prosecution and the appellant’s solicitors was a product of a combination of circumstances: first, that Kearney had only recently been in conversation about a text and the possibility of becoming an informant, second, that DC Newman was not a permanent member of the investigating team, third, that having made his report DC Newman properly left the matter to his superiors, fourth, that the disclosure officer did not give proper attention to DC Newman’s report to Detective Superintendent Clapperton. The cause of non-disclosure was lack of care and not deliberation. We can find no basis upon which to conclude that the defence could advance a realistic argument that the prosecution team was deliberately kept in the dark. On the contrary, as it seems to us, the overwhelming interest of the prosecution would have been to make disclosure and to rely on the sequence of events which led to Kearney’s appearance in the witness box. Kearney’s recent status as informant, arising as it did from his offer to give evidence in the trial, if anything, supported his credibility. 37. We turn to the evidence of Ridger. The judge pointed out to the jury that Ridger had given details to the police which could not have come from the evidence gathered in the investigation. First, it was Ridger who, for the first time, said that Steadman had admitted removing tiles above the bath for re-painting. That was confirmed. Second, Ridger said that Steadman described the cord used to tie up the deceased’s body as washing line, not flex as appeared in the witness statements. The cord was exhibited. It was not electric flex; it was washing line. Although the officers in the case would have known that the exhibited cord was not electric flex, it has never been suggested by Ridger, either on enquiry by the CCRC or by the appellant’s solicitors, that he was complicit in receiving information from the officers. On the contrary, he has stoutly denied any such suggestion. Third, the fact was that the cloth in which the body was found wrapped was a builder’s dust sheet. That fact was deliberately not published. Ridger’s knowledge of the wrapping was confirmed by the painter, Mr Corcoran, who said in evidence that one of his dust sheets had indeed gone missing from Ms Keily’s flat. He arrived with four to commence his work and left, finally, with three. 38. Just as the circumstantial detail of Kearney’s evidence was impressive so also, in our view, was Ridger’s. Such differences as there were between the two accounts could not be explained by the undue influence of the police or anyone else, but they could be explained by variations in the details of the appellant’s unwary remarks on two completely separate occasions, spaced some time apart, to two different listeners. Conclusion 39. We have well in mind the need not to substitute our own view of the evidence for that of the jury. The conclusion we have reached is that with full and proper disclosure the task of assessing Kearney’s reliability would have changed little either the landscape of the trial or the jury’s deliberations upon the evidence. The judge invited the jury to treat with caution Kearney’s assertion that he had nothing to gain from giving evidence. Had Kearney’s actual motive been exposed the jury would have been directed to exercise the same caution. Their judgement of Kearney’s evidence would, in the end, have rested where the learned trial suggested it would, in their examination of the question whether the evidence given by Kearney could have come from any other source than the appellant. As our examination of the relevant events demonstrates, there was nothing capable of disturbing the jury’s conclusion that it did not. In our judgment, the circumstantial case was compelling, the verdict is safe, and the appeal must be dismissed.

2012_01_18-2915.xml

sentence

https://caselaw.nationalarchives.gov.uk/ewca/crim/2012/5/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2012/5

9794de0aa9c47aecb4abe788987ef26fe1f0d47e9726a7750f48e7bd5bb68347

[2008] EWCA Crim 1643

EWCA_Crim_1643

supreme_court

Neutral Citation Number: [2008] EWCA Crim 1643 Case No: 2007/05612/D5 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/07/2008 Before : LORD JUSTICE MAURICE KAY MR JUSTICE PLENDER and RECORDER OF NOTTINGHAM (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - REGINA - v - PANESAR (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Comm

Neutral Citation Number: [2008] EWCA Crim 1643 Case No: 2007/05612/D5 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/07/2008 Before : LORD JUSTICE MAURICE KAY MR JUSTICE PLENDER and RECORDER OF NOTTINGHAM (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - REGINA - v - PANESAR (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 190 Fleet Street, London EC4A 2AG Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) Mr Simon Bickler and Ms Denise Breen-Lawton appeared on behalf of the Applicant Mr Adrian Dent and Mr James Bourne-Arton appeared for the Crown Hearing date : 25 June 2008 - - - - - - - - - - - - - - - - - - - - - Judgment Recorder of Nottingham : 1. On the 27 th October 2005, in the Crown Court sitting at Bradford, the respondent Parvinder Singh Panesar, pleaded guilty to count 2 on an indictment which charged him with conspiracy to supply drugs of class A. He was sentenced to 3½ years imprisonment, the judge first postponing the confiscation proceedings and setting a timetable that was agreed by the parties but subsequently varied. On the 20 th September 2007, HH Judge Benson made a confiscation order against the respondent in the sum of £30.687.00, £4,280.00 to be paid within 28 days and the balance to be paid within 6 months. This order was substantially below the sum sought by the Crown. The prosecutor now appeals under section 31 of POCA with the leave of the single judge. 2. It is accepted that the offence to which the respondent pleaded guilty triggers the confiscation provisions of the Proceeds of Crime Act 2002 . The Crown asked the court to proceed to confiscation under section 6 (3) (a) of the Act and it was therefore incumbent on the court to hear a confiscation application. 3. The Crown also considered it appropriate for the court to proceed under section 6(4) of the Act as it was believed that the respondent had a criminal lifestyle. No issue was taken with this. The offence to which he had pleaded guilty is defined in Schedule 2 of the Act as a “lifestyle offence”. The court had to decide therefore whether he had benefited from his general criminal conduct whether occurring before or after the passing of the Act or whether property constituting a benefit from conduct was obtained before or after the passing of the Act (s. 76 (2)) 4. It therefore fell to the judge to determine the answer to three questions: (1) Has the offender benefited from criminal conduct? (2) If so, what is the value of the benefit he has so obtained. (3) What sum is recoverable from him? 5. As the House of Lords has recently underlined, May [2008] UK HL 28 these are separate questions calling for separate answers and the questions must not be elided. In answering these questions the court must first establish the facts as best it can on the material available, relying as appropriate on the statutory assumptions and, of course, in many cases the factual findings will be decisive. 6. The statutory assumptions are to be found in section 10 of the Act. Section 10 provides:- “10. Assumptions to be made in cases of criminal lifestyle. (1) If the court decides under section 6 that the defendant has a criminal lifestyle it must make the following four assumptions for the purpose of – (a) deciding whether he has benefited from his general criminal conduct, and (b) deciding his benefit from the conduct. (2) The first assumption is that any property transferred to the defendant at any time after the relevant date was obtained by him – (a) as a result of his general criminal conduct, and (b) at the earliest time he appears to have held it. (3) The second assumption is that any property held by the defendant at any time after the date of conviction was obtained by him – (a) as a result of his general criminal conduct, and (b) at the earliest time he appears to have held it. (4) The third assumption is that any expenditure incurred by the defendant at any time after the relevant day was met from property obtained by him as a result of his general criminal conduct. (5) The fourth assumption is that for the purpose of valuing any property obtained (or assumed to have been obtained) by the defendant, he obtained it free of any other interests in it. (6) But the court must not make a required assumption in relation to particular property or expenditure if – (a) the assumption is shown to be incorrect, or (b) there would be a serious risk of injustice if the assumption were made. (7) If the court does not make one of more of the required assumptions it must state its reasons. (8) The relevant date is the first day of the period of six years ending with – (a) the date when proceedings for the offence concerned were started against the defendant, or (b)…” It was agreed that the relevant date in this case is the 11 th November 1998. 7. The respondent had pleaded guilty on a basis. He accepted that he had driven one of his co-accused from Leeds to Bradford on a few occasions in order for his co-accused to deal in class A drugs. He also accepted that he had stored about 1 kilogram of heroin in his home on behalf of his co-accused for which he was paid. He was also engaged in driving his co-accused to a meeting with third person where drugs were supplied to his co-accused. He then assisted in bagging them up. The Crown suggested that he was minimising his role but there was no substantial challenge to it. The respondent was previously a man of good character whom the judge described as having a hard working lifestyle. Unfortunately for the respondent, the offence to which he had pleaded guilty meant that he also had a criminal lifestyle (section 75 (2) (a)) and the judge was therefore bound to consider making a confiscation order in accordance with the Proceeds of Crime Act 2002 . 8. The legislative policy of the 2002 Act and its predecessors is now very clear. Many decisions of this court have spoken of the draconian nature of the legislation. In Glatt [2006] EWCA Crim 605 , Tugendhat, J, giving the judgment of the court, said of the Criminal Justice Act 1988 "A confiscation order: (1) is a penalty, and is a measure to which Article 1 of Protocol 1 is applicable; (2) is designed to deter those who consider embarking upon criminal conduct; (3) is designed to deprive a person of profits received from criminal conduct and to remove the value of the proceeds received from criminal conduct from possible use in criminal conduct; (4) is designed essentially to impoverish defendants, not to enrich the Crown" These sentiments apply equally to the 2002 legislation. see, for example, Nottingham CPS v. Rose [2008] EWCA Crim 239 at paragraph 67 per Richards LJ” 9. The Crown, in its section 16 statement, sought to establish that the respondent had benefited in the sum of £230,850.91, amended from the original £294,399.02. It was conceded that the respondent had assets, valued at the time at approximately £200,000. There was no issue concerning the value of the those assets, although given that a considerable proportion of the same were made up of the equity in his home and shares, there may well have been a diminution of value since the judge had the matter before him. The contest before the judge related to the benefit figure, the respondent seeking to persuade him that his assets did not owe their origin or maintenance to criminal conduct. He sought to explain that his declared earnings as a taxi driver did not represent his sole earnings from that trade and he said that certain cash deposits evidenced in his bank accounts came from either a committee saving fund, the sale of his wife's jewellery or insurance payments. As to his earnings as a self employed taxi driver, those he declared to the revenue were very small. In the 6 years in question his declared income ranged between £5,730 and £8,230. In addition he was in receipt of working tax credit. He told the judge that his earnings as a taxi driver were in fact higher, although he produced no documentary evidence to support what he said. He did, however, call as a witness, a director of the taxi firm for whom he worked in a self employed capacity. This witness, Mr Ghazan Iqbal, told the judge that the respondent worked 6 or 7 days every week and had done so since December 1997 and that in addition to "cash" work he would have been expected to undertake a number of contracts with local schools and social services, for which he would have been paid by cheque one or two months in arrears. Mr. Iqbal was unable to produce any documentary evidence in support (it was at the accountants). He also lent some support to the respondent's evidence that he earned more than he declared to the revenue. 10. The Crown also pointed to a number of transactions in the respondent's accounts suggestive of transfers that could not have come from his legitimate earnings. In relation to these specific sums the judge made the following findings. i) £3,500 deposited on the 21st January 2000 . The respondent's evidence that this represented the accumulation of cash from his general legitimate activities that he paid into his account as a lump sum was not accepted. Accordingly, as he had failed to displace the assumption, this sum formed part of his benefit from criminal conduct. ii) £5,100 deposited on 31st May 2000. Again, the judge was not satisfied with the respondent's explanation that this represented the proceeds of a successful insurance claim following a car accident. The respondent was unable to produce any documentation or any evidence in support. iii) £4000 informal savings scheme - 11th August 2001. The respondent asserted that this was the proceeds of a payment out of an informal savings scheme into which he had paid a weekly sum. Again, no cogent evidence was produced in support and the judge found the respondent's evidence unconvincing. iv) £4,000 payment for jewellery. This payment was stated by the respondent to be the proceeds of sale of his wife's jewellery but no evidence of any kind was produced in support and the judge found that the respondent had failed to displace the assumption that this sum was the proceeds of crime. It is noteworthy that both sums of £4,000 were paid into different accounts on the same date, in the circumstances, a very telling point against the respondent. v) The judge accepted that the respondent had discharged the burden in respect of his motor car and accepted that its purchase may well have come from the generality of his legitimate income and its value was therefore excluded from the calculation. 11. Certain other matters were not disputed. The value of the drugs found (£9,807) and the cash, tainted by trading in heroin, (£4,280) went towards the benefit as found by the judge. The total benefit figure found was the aggregate of these amounts, namely £30,687. The Crown accepted that some shares belonging to his wife fell outside the period in question and that others had been purchased from legitimate sources. 12. We must now turn to consider those matters which the judge found should not be included in the benefit figure because the Crown's appeal essentially relates to these findings. These fall under two headings which we shall consider separately. General earnings 13. The judge found that his declared earnings were to be read in the light of the evidence from Mr Iqbal. He also said that he took "judicial notice" of the fact that the sums declared to the Revenue probably did not reflect the totality of the income received. The judge said, " Taxi driving is a cash business and realistically one must take account, it seems to me, of the fact that people operating cash businesses, reprehensibly, do not always declare their full income for the purpose of taxation." He went on to fix a "notional" figure of £3,000 per annum over and above his declared income as a taxi driver. 14. This finding is attacked by the Crown. It is submitted that there was no evidential basis for such a finding. Counsel for the Crown referred us to the well known principle enunciated by this court in Walbrook and Glasgow (1994) 15 Cr. App. R. (S) 783 to the effect that an offender can only discharge the burden on him by producing clear and cogent evidence. Vague and generalised assertions, unsupported by evidence will rarely, if ever, be sufficient to discharge the burden on him. The Crown also referred us to the case of Croft (unreported) 1999/06731/Y3 in further support of its submission that the judge had erred in accepting the evidence of the respondent as supported to some degree by Mr Iqbal, that his legitimate earnings were as high as he claimed. Counsel further submits that given the judge's refusal to accept the respondent's evidence in respect of certain specific transactions, he should have looked for supporting evidence in relation to this matter too. Counsel for the respondent submits that the judge was entitled to find as he did and that his finding is not based upon vague and generalised assertions. The judge was entitled to find that the respondent had a hardworking lifestyle, it was appropriate and right to take into account his previous good character and the evidence of Mr Iqbal. There was a proper evidential basis for the judge's finding. 15. We regard the finding of the judge in this respect as generous to the respondent. On the other hand, had he expressed himself differently, it may have been impossible for the Crown to seek to undermine his conclusion. We have decided, with some little trepidation, that the judge was entitled to make the finding that he did in relation to the respondent's general legitimate income. There was, just, an evidential base and his reference to taking judicial notice of the presumed practices of cash businesses should really be regarded as something which renders plausible the evidence of the respondent and Mr.Iqbal. Accordingly, we are not minded to interfere with this aspect of the judge's decision, although each of us might well have reached a different conclusion from him. His findings were within his discretion on the available evidence. We dismiss this aspect of the Crown’s appeal. The Respondent's home 16. We turn now to the issue of the respondent's home. It is necessary to describe something of its history. The respondent and his wife purchased in 1985 their home at 120 Sherburn Road, Leeds for £21,300 with the assistance of a mortgage advance of £20,250 from Halifax plc. On the relevant day (11th November 1998) there was approximately £16,000 still outstanding on the mortgage. Very little had been paid off in the 13 years since the mortgage was taken out. Between the 12th January 1999 and the 6th June 2002, mortgage repayments totalling some £19,374.75 were made. It is the Crown's case that some of these repayments directly or indirectly represent the proceeds of the respondent's general criminal conduct. 17. The judge found that two payments made to the mortgage account did represent the proceeds of the respondent's general criminal conduct. These were sums of (1) £3,500 paid on the 27th January 2000 and (2) £5,100 paid on the 31st May 2000. The judge specifically rejected the respondent’s evidence that these sums came from legitimate sources. These sums, it is accepted, were used to reduce the mortgage on 120, Sherburn Road, Leeds. The respondent then purchased, with his wife, his present property at 104, Montagu Avenue, Leeds. This property was purchased on the 31st May 2002 for £99,950.00. A mortgage advance was obtained from the same bank for £40,000 and the balance was provided by the proceeds of sale of the Sherburn Road property (about £60,000). Although the judge had found that the payments totalling £8,600 were from the proceeds of crime (the respondent having failed to displace the assumption) he nevertheless held that the respondent's equity in his present property should not be taken into account. He said (on page 10 of the transcript): “when one looks at the reality of this, the proportion of contribution of these sums to the purchase price of the house, when one looks at it in a historical context, are not significant, and that to reflect, as I am invited to do by the Crown, that contribution in saying that the defendant has benefited to the tune of the entirety of the existing equity would be disproportionate and unjust, and I bear in mind not just the requirement of the statute that I act justly in coming to these conclusions, but also I bear in mind the Human Rights Act and the requirement to act proportionately, and in those circumstances, I prefer the argument of [counsel for the respondent] that to follow that line of reasoning would be unjust and disproportionate and that the case here can be distinguished very significantly from the circumstances that applied in the case of Mouldon .” 18. The Crown submits that the judge fell into serious error at this point. It is first submitted that the judge, having found that the £8,600 was the proceeds of criminal conduct, was bound to apply that finding when coming to his decision on this aspect of the case. There is no discretion in the matter. Subsection 10 (6) enables the court not to make a required assumption in relation to particular property or expenditure if the assumption is shown to be incorrect or there would be a serious risk of injustice if the assumption were made. Here the judge, in making the assumption that he did, must have concluded that the assumption had not been shown to be incorrect, neither would there be a serious risk of injustice if the assumption were made. In any event, the Crown submits there would be no injustice in regarding the equity in the respondent's present home as the proceeds of crime. The sum found by the judge to be tainted (£8,600) was approximately half of the amount used to pay off the mortgage on the original property. It therefore follows that this payment was a significant payment at the time it was made. Without that payment, there would have been no realistic prospect of the respondent purchasing his present property at the time he bought it. The judge was wrong to conclude that, "in a historical context" the payment was not significant. It was significant, very significant, at the time the payment was made. The significance of proceeds of crime in relation to the value of appreciated property is not to be assessed by expressing the former as a proportion of the latter but by determining whether the proceeds of crime were significant in enabling the criminal to come by the appreciated property. It is also submitted that the judge was wrong in seeking to distinguish Mouldon [2004] EWCA Crim 2715 . While the facts are different, in that in Mouldon , the tainted funds were used as the deposit to purchase the property in question, the underlying principle applies equally to this respondent's case. As Stanley Burnton, J. (as he then was) stated: "In circumstances where the value of the property in the hands of the defendant exceeds the cash investment he made in it, because the value of that property has risen, we see nothing unjust or even arguably unjust in the value of the property being taken to be the payment or reward of the defendant made in connection with drug trafficking. It has frequently been said that the legislation is draconian. Its object is to deprive those involved in drug trafficking of the benefit of drug trafficking and in a case such as that we are considering, where a deposit has been made of cash monies in order to buy a property, we see nothing unjust or arguably unjust and no risk of injustice if the property which is acquired, which we remember is not the deposit but the equity in the property if there is a mortgage, is taken to be the reward of drug trafficking. It is accepted that the assumptions do apply and the property is assumed and therefore taken to be a payment or reward in connection with drug trafficking, the property is to be valued as at the date of the proceedings resulting in the confiscation order...In our judgment it is neither unjust nor surprising that where a property increases in value, the benefit to the defendant is a sum that may be a multiple of the original deposit." 19. Counsel for the respondent sought to repeat the arguments he put before the judge in the court below. He also submitted that on the judge's findings as to the respondent's general level of legitimate income and the assets he held which were not tainted, he could have paid off the mortgage without using tainted funds. But the fact, as found by the judge, is that he did use tainted funds. In our judgment, it is fallacious to seek to argue that because on the judge's findings that there was sufficient available to make payments towards the mortgage from untainted funds, the provisions of the Act should not bite. The legislative policy is plain. This respondent used tainted funds to pay off a substantial portion of his mortgage on his previous home. He then used the proceeds of sale of that property to purchase his present home. In our judgment, it was not open to the judge to make the assumptions that he did and then fail to apply them in making his decision. It was not open to him to avoid the finding contended for by the Crown by declaring that it would be disproportionate and unjust to do so. He was right to make the assumptions that he did in relation to this sum of £8,600 but wrong to fail to apply that finding to the equity in the respondent's present property. 20. Counsel's fall back position was to invite us to apply the decision in Ginwalla [2005] EWCA Crim 3553 where the judge at first instance took equitable interests rather than market price in order to avoid the risk of injustice, and he took into account only a proportion of the benefit as being attributable to the criminal conduct. This court did not interfere with that finding on the defendant's appeal (which was dismissed). There was no appeal by the Crown in relation to that particular finding or, indeed, any finding. We do not feel it appropriate to depart from the principle enunciated in Mouldon. The judge having made the assumptions that he did should have applied them to the whole of the equity in the property. 21. We allow the Crown's appeal in relation to the equity in 104, Montague Avenue, Leeds which we were told during argument was, at the relevant time, about £150,000. If that is correct, the benefit must be increased from £30,687 to £180,867.00 or to whatever sum the precise calculation establishes. To that extent, the Crown's appeal is allowed. We shall deal with any consequential orders when this judgment is handed down. 22. Appeal allowed. 23. The substituted figures for the purposes of confiscation are: (1) Benefit : £174,087; (2) Available amount : £174,087; (3) Confiscation Order : £174,087. 24. The sum of £174,087 is to be paid by 31 July 2009, failing which the term of imprisonment is 18 months. Lord Justice Maurice Kay 17 July 2008

2008_07_17-1595.xml

allowed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/1643/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/1643

6ca248469e34040a20d6f791f1121946ce7e8433be9c08245528a5931e77d7a1

[2008] EWCA Crim 467

EWCA_Crim_467

crown_court

Neutral Citation Number: [2008] EWCA Crim 467 No. 2008/00055/A5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Friday 22 February 2008 B e f o r e: LORD JUSTICE DYSON MR JUSTICE COLLINS and MR JUSTICE MADDISON - - - - - - - - - - - - - - - - - - - - R E G I N A - v - MUJID HUSSAIN - - - - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 190 Fleet Street, London EC4 Te

Neutral Citation Number: [2008] EWCA Crim 467 No. 2008/00055/A5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Friday 22 February 2008 B e f o r e: LORD JUSTICE DYSON MR JUSTICE COLLINS and MR JUSTICE MADDISON - - - - - - - - - - - - - - - - - - - - R E G I N A - v - MUJID HUSSAIN - - - - - - - - - - - - - - - - - - - - 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 G Lewis appeared on behalf of the Appellant Mr N Ogborne appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - J U D G M E N T Friday 22 February 2008 LORD JUSTICE DYSON: I will ask Mr Justice Maddison to give the judgment of the court. MR JUSTICE MADDISON: 1. On 29 November 2007, at the Crown Court at Aylesbury, the appellant, Mujid Hussain, was convicted of causing death by dangerous driving. He was sentenced to two and a half years' imprisonment. He was also disqualified from driving for three years, subject to taking an extended retest. He appeals against that sentence by leave of the single judge. 2. The circumstances are that at about 10.30am on 29 October 2006 police officers were called to the scene of a road traffic accident which had occurred at a road junction in Milton Keynes. The appellant, who was a private hire driver, had been conveying two passengers to their destination in his car. He approached a road junction at which he was on the minor road. His progress was governed by "Give Way" signs. He slowed at these signs, but then drove into the junction, apparently intending to turn right. As he did so, a motorcyclist was driving down the main road, approaching from the appellant's right. The result was that the motor cyclist struck the appellant's car. The 24 year old rider of the motorcycle suffered extreme injuries as a result of his hitting the roadway. He was pronounced dead at the scene. The passengers in the appellant's car were also injured to some extent. They and some of the eyewitnesses said that they had seen the motorcycle travelling at speed as the appellant began to turn into the main road. At the time of the accident the road was dry and the visibility and the weather were good. 3. A police accident investigation officer concluded that the motor-cycle was probably travelling at less than 74mph, but its precise speed could not be calculated accurately. The speed limit at the section of road concerned was one of 60mph. It is right to add that the accident investigation officer also stated that the motorcycle should have been visible to the appellant as he emerged from the minor road. 4. The appellant is now 32 years of age. He was of previous good character. There was no pre-sentence report before the court. The judge had a moving family impact statement from the parents of the deceased, which made clear the devastating effect which the death of their son had had on their lives. This court is, of course, conscious of the grief which the family must inevitably have suffered. No sentence that any court can pass can begin to compensate for such grief. 5. Passing sentence, the learned judge described what had happened as having been a momentary act of dangerousness on the appellant's part. He failed to see the motorcyclist in circumstances where he had pulled out of the junction apparently to get ahead of traffic coming from his left. The learned judge took account of all the matters advanced in mitigation on behalf of the appellant who did not, however, have the mitigation of a plea of guilty. The judge stated that there were none of the "traditional aggravating features" present using guidance from the Court of Appeal in such cases. He concluded: "Applying the criteria, as I understand the criteria to be, the sentence is 30 months' imprisonment. You will be disqualified from driving for three years and when you are free to drive you must take the extended driving test." 6. The appeal against the sentence is lodged on the basis, first, that the learned judge failed in the event to have regard to guidance from this court as to the sort of sentence appropriate in such a case. Moreover, it is submitted that in the circumstances of the appellant the disqualification was too long. 7. The decisions of this court in R v Cooksley and Others [2003] 2 Cr App R 18 , as recently updated in R v Richardson [2007] 2 Cr App R(S) 36, provide guidance for sentencers in cases such as this. Numerous potential matters of aggravation are indeed identified in these cases. In our judgment the judge was correct in saying that none applied in this case. The previous decisions of this court go on to suggest that, in the absence of any aggravating features, a starting point of between 12 and 24 months' imprisonment in a case involving an adult convicted after a trial is appropriate. 8. It follows that the sentence of 30 months' imprisonment passed by the learned judge was outside the bracket identified by this court. We have had regard to this bracket. We take the view that this was indeed no more than a case of momentary inattention and dangerousness on the part of a man otherwise previously of unblemished character. In our judgment the appropriate sentence of imprisonment is one of 15 months. 9. We turn briefly to consider the length of the disqualification. Having regard to the appellant's unblemished record to which we have referred, and to the fact that he has earned his living from driving, we agree that the disqualification of three years was longer than it should have been. The disqualification will be reduced to one of two years, subject to the qualification that, at the expiry of that period, the appellant must first pass an extended retest. 10. To that extent, therefore, the appeal is allowed.

2008_02_22-1387.xml

sentence

allowed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/467/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/467

6d5a13423c4661cacc03493d4769ba609085ca6b952a25a6d34d06f7ca1474ad

[2011] EWCA Crim 1695

EWCA_Crim_1695

crown_court

Removed by Court 15 July 2011

2011_07_14-2790.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/1695/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/1695

2ae2c0ca5c49426e410c20b22364861877b4a1f9c739a7be31782dc24909bdf7

[2012] EWCA Crim 1785

EWCA_Crim_1785

crown_court

Neutral Citation Number: [2012] EWCA Crim 1785 Case No. 2011/04796/C3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Friday 20 July 2012 B e f o r e: LADY JUSTICE HALLETT DBE MRS JUSTICE COX DBE and MR JUSTICE HADDON-CAVE - - - - - - - - - - - - - - - - R E G I N A - v - STEPHEN ANDERSON - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, Lon

Neutral Citation Number: [2012] EWCA Crim 1785 Case No. 2011/04796/C3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Friday 20 July 2012 B e f o r e: LADY JUSTICE HALLETT DBE MRS JUSTICE COX DBE and MR JUSTICE HADDON-CAVE - - - - - - - - - - - - - - - - R E G I N A - v - STEPHEN ANDERSON - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4 Telephone No: 020 7404 1400; Fax No 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - Mr M D Barlow appeared on behalf of the Applicant - - - - - - - - - - - - - - - - Judgment LADY JUSTICE HALLETT: 1. On 2 August 1995 at the Luton Crown Court before His Honour Judge Rodwell QC and a jury the applicant, who is now in his mid-sixties, was convicted by a majority of the jury of indecent assault on a male. He was sentenced to three years six months' imprisonment. His trial counsel advised against an appeal against conviction, but did advise an appeal against sentence which failed. He renewed his applications for an extension of time (approximately sixteen years), for leave to appeal against conviction, and for leave to call a witness (Professor Conway), after refusal by the single judge. 2. The reason for the delay of sixteen years since the trial in making this application is set out in a statement from the applicant's solicitor dated 8 August 2011. The applicant applied first to the Criminal Cases Review Commission and received a response in 2002. He approached his present solicitors in 2009. Professor Conway, upon whose report the applicant had intended to rely, agreed to act but could not provide a report until October 2010. Counsel (Mr Barlow) was instructed to analyse the material on 7 October 2010. For reasons that remain unexplained, his advice was not dated until 3 August 2011. Mr Barlow's solicitors have not attended this morning. Mr Barlow has attended pro bono. We have no further information from Mr Barlow or his solicitors as to why the various delays have occurred. 3. The facts are as follows. The complainant, to whom we shall refer as "C", was 9 years old and a new pupil at the Royal Caledonian boarding school. He was there from about September 1989 until at least 1992. The applicant was one of those responsible for C's pastoral care. One night C was crying in his bed and this fact was brought to the attention of the masters. C was taken into the applicant's room, where he fell asleep in a chair. He woke much later on the applicant's bed. When he woke he found himself on his side facing the window. He claimed that the applicant was behind him with his hand under his pyjamas, rubbing his penis and stroking his legs. He recognised the applicant from the smell of nicotine on his breath. C froze. After a while the applicant stopped and C was carried back to his own bed in the dormitory. The prosecution alleged that this behaviour happened more than once during the months of September, October and November 1989. Each time the applicant removed the complainant from his bed in the dormitory, and took him to the applicant's own room on the pretext of comforting him for home-sickness. Sometimes the assaults of which complaint was made consisted of rubbing C's bottom rather than touching his private parts. C could not remember how many times this occurred, but he specifically remembered one other occasion when he wore boxer shorts rather than pyjamas. 4. C complained to a Mr Weiner at the school. Mr Weiner told him to tell the padre. C also told his parents that he had been assaulted. The padre visited the family at home four or five days later and said that he had spoken to C. The purpose of his visit was to persuade the family that it would be in C's best interests if no fuss was made and the matter not reported to the police. He led them the family to believe that the applicant would be sacked. The headmaster did subsequently give the applicant notice, but the applicant insists that this was because of a personality clash rather than allegations of abuse. He left the school on 22 October 1989. 5. A man called Meredith, who had been the applicant's assistant and whom C also remembered, took over the applicant's job. A separate investigation (by a police officer looking into Meredith’s behaviour) uncovered C’s complaint. 6. C made a statement in October 1994 and the applicant was arrested in November 1994. In interview he denied the allegations, although he accepted that there were circumstances in which C had been alone in his room at night. He asserted that nothing untoward had ever happened with any other child. However, the prosecution called another pupil, "A", who claimed at trial that he had also been invited to share the applicant's bed when he had gone to the applicant complaining of feeling unwell. 7. At trial the applicant gave evidence in accordance with his interview. He could not rely upon the evidence of the headmaster Mr Pope and his deputy, Mr Watts, because they were themselves standing trial the following year, in June 1996, on charges of failing to act on concerns and to prevent abuse at the school. They were acquitted. However, both C and his parents gave evidence at their trial. 8. This application was launched on the basis that the first ground of appeal would be fresh evidence from Professor Conway and from the 1996 trial of Pope and Watts. However, somewhat belatedly Mr Barlow decided to abandon his reliance upon the evidence of Professor Conway. 9. Although not now relevant to this appeal we feel we should mention that this is not the first time that Mr Barlow and his instructing solicitors have attempted to overturn a conviction on the basis of Professor Conway's evidence as to the reliability of childhood memories. His reports are controversial. Only once to our knowledge, in an "unusual" case, has this court accepted his evidence (see R v JH and R v TG [2006] 1 Cr App R 10 ). However, the court was unaware at that time of significant criticisms of Professor Conway’s methodology which have led to the court’s declining to receive his evidence (see R v S [2006] EWCA Crim 1404 , R v E [2009] EWCA Crim 1370 and R v H [2011] EWCA Crim 2344 ). In the light of those decisions, we have our doubts as to whether JH and TG , which was restricted very much to a specific set of facts, would be decided the same way today. Professor Conway may wish to consider amending his CV in which, we note, he mentions only R v JH and r v TG . 10. We turn to the grounds of appeal as now advanced which focus on the 1996 trial. The first hurdle in the applicant’s path is providing a satisfactory explanation for the 16 years delay in putting the so-called fresh evidence forward. In truth no real attempt was made. Nothing daunted, Mr Barlow pointed to what he claimed was a catalogue of "changes in the evidence" of C and his parents about the alleged abuse and the detail of C’s complaints. 11. The remaining three grounds of appeal consist of criticisms of the judge's summing-up. Mr Barlow accepted that at the time of the trial the judge's directions were entirely appropriate on the evidence as given. The sole basis for his criticism was that in the light of the evidence at the subsequent trial, the directions were “wrong”: a novel proposition. 12. Ground 2 relates to the direction given by the judge on what was alleged to be a specimen count. Mr Barlow submitted that this alone renders the conviction unsafe. At the applicant's trial the Crown alleged indecent assault on at least two separate occasions. On his reading of the complainant’s evidence to the Pope and Watts jury, there was only one actual “indecent assault”, Mr Barlow argued, therefore, that the judge’s direction on specimen counts was otiose and dangerous. 13. Ground 3 is a criticism of the judge's direction to the jury on the recent complaint evidence, which he accepts, was accurate at the time. In the light of the material from the second trial, Mr Barlow suggested the recent complaint was not one of a sexual nature. C complained of one incident only, he did not complain of his penis being touched until much later. His recent complaint was simply that he had been "touched down below". On that basis, Mr Barlow submitted, there was no evidence of fresh complaint and no need for a direction. 14. Finally, Mr Barlow referred us to the evidence of A. In the course of his summing-up the judge directed the jury: "A's evidence was called and this is important evidence because if you accept this to be the truth it would indeed then lend confirmation to C's story of what happened to him. Let me tell you that the [applicant] disputes this in part." Mr Barlow had originally intended to argue that this direction was plainly wrong and that the evidence was inadmissible. However, having seen what the single judge said in refusing leave, he changed his mind. He accepts now as he should have accepted all along, that the evidence was clearly admissible to rebut the defence that, despite many years caring for young boys, no-one else had ever complained. It was clear from the evidence of A that a complaint as to the applicant's behaviour was made. Nevertheless, under this head, Mr Barlow sought to argue that the judge failed to give the jury a full direction highlighting the “issues of contamination and/or collusion". This was said to be a serious non-direction which rendered the resulting conviction unsafe. Unfortunately, he was unable to put before us any evidence of collusion or contamination to justify the direction. 15. In summary, Mr Barlow claims, as he has claimed in other cases, that the applicant is a victim of a "miscarriage of justice" because the allegation was investigated and prosecuted when "the dangers of such historic investigations into care homes, schools and other youth organisations were not recognised". For those of us in practice at the time, this came as something of a generalisation. 16. In his very carefully crafted observations, the single judge, when refusing leave, said: "There is no valid explanation of the delay. You cannot wait for many years to see if there is a change in attitudes or procedures and then -- substantially in reliance upon evidence of an expert (whose evidence has been of doubtful assistance in other cases and who has no knowledge other than of his reading of papers of the circumstances of your case) -- to seek to upset a verdict which was obtained in accordance with the proper trial procedures at the time. Even after you determined to try and mount an appeal, there has been delay in obtaining the evidence of the expert and the advice of counsel. I see no merit in your application and am satisfied that there is no basis for extending time. Nevertheless, in case there was a good basis for considering that your conviction was unsafe, I have spent several hours upon your papers and you do not begin to persuade me that you have any valid ground of appeal. You rely principally upon the wish to call Professor Conway. I consider that much of his evidence would be inadmissible for reasons which the Court of Appeal have given in earlier cases when refusing permission to adduce his evidence; otherwise it is of marginal value. A jury can well understand from their own experience how a child's memory may be coloured. As to the evidence of [C], your complaints of inconsistency and the judge's inadequate summing-up are not made out on the material which I have read. The jury was well aware that there was a real issue as to the reliability of his memory and the extent to which he had said (to that point) inconsistent things. This ground also lacks merit. You rely upon what you say are inconsistencies in his evidence at the later trial. These are more supposed than real. I fail to see how the conviction can be considered unsafe by the judge's giving a specimen count direction. Evidence of complaint (ground 3): The judge gave a perfectly adequate direction in line with directions given at the time; your secondary submission that the evidence at the later trial undermined the direction given does not stand scrutiny. There is nothing in his evidence which (had it been given at your trial) would have made the judge's direction inappropriate. Evidence of [A] (ground 4): As the respondent contends, it must be the case that this evidence was called to rebut the defence and the direction given was appropriate. I should add this. As I have read into these papers, I have been able to see for myself what a strong case this was and you do not begin to mount an argument that the conviction was unsafe." We agree. We, too, have spent many hours upon these papers and we have yet to see any hint of an arguable ground which can properly be advanced. 17. There seems to be an increasing trend for advocates who were not instructed at trial to scour a summing-up in an ancient case to look for possible failings. It should be remembered by those who indulge in minute forensic examination of a summing-up that the test for this court is safety of the conviction. It is highly unlikely that a conviction will be overturned sixteen years after the event on the basis that the judge directed the jury in a particular way, with the agreement of the parties and in accordance with proper and fair practice at the time, unless, of course, the directions were plainly wrong. 18. It is also highly unlikely, given the state of medical opinion that this court will receive the evidence of the kind put forward by Professor Conway in the near future. Yet, according to Mr Barlow’s solicitor, “substantial funding” has been obtained from the Legal Services Commission to advance this appeal. Mr Barlow cannot help us on what that money has been spent, save that part has been spent upon the report from Professor Conway. Any lawyer attempting to obtain public money with which to instruct experts has a duty to reveal to the funding authority decisions of the Court of Appeal Criminal Division which suggest such evidence may not be received. 19. For all those reasons we are satisfied that nothing has been put before us which, even arguably, would provide any grounds for concluding that the conviction is unsafe. The applications are refused. ____________________________

2012_07_20-3026.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2012/1785/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2012/1785

348cea443f6e4b8ae1969414528fa5ce8622277902fe032199635b826de15ec3

[2003] EWCA Crim 436

EWCA_Crim_436

supreme_court

Neutral Citation No: [2003] EWCA Crim 436 Case No: 2002/1136/Z2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: Friday 21 st February 2003 Before : LORD JUSTICE KENNEDY MR JUSTICE McCOMBE and MR JUSTICE TREACY - - - - - - - - - - - - - - - - - - - - - Between : R - v - Edward Peter RANDALL - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Robert Marshall-Andrews QC appeared for the app

Neutral Citation No: [2003] EWCA Crim 436 Case No: 2002/1136/Z2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: Friday 21 st February 2003 Before : LORD JUSTICE KENNEDY MR JUSTICE McCOMBE and MR JUSTICE TREACY - - - - - - - - - - - - - - - - - - - - - Between : R - v - Edward Peter RANDALL - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Robert Marshall-Andrews QC appeared for the appellant Brian Escott Cox QC appeared for the Crown Hearing dates: 11 th February 2003 - - - - - - - - - - - - - - - - - - - - - REASONS FOR JUDGMENT: APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS) Lord Justice Kennedy: 1. On 30 th January 2002 in the Crown Court at St Albans, following a trial for murder, the appellant was convicted of manslaughter and sentenced to 8 years imprisonment. His co-accused Nicholas Glean was acquitted. Randall now appeals against conviction by leave of the single judge. Facts 2. Michael Barber, aged 55, was found unconscious and bleeding from head injuries shortly before midnight on 8 th May 2001 on a path in Rickmansworth, near a pumping station. He had sustained nine separate blunt instrument blows. He was treated in hospital but never regained consciousness, and on 12 th May 2001 he died from the cumulative effect of his injuries. 3. At the material time Randall and Glean had been staying at the house of Susan Rowe, Randall’s aunt, some 50 metres from where Barber was found. Barber had called at Susan Rowe’s address that night in an intoxicated state. There was a struggle to eject him from the premises and he staggered away. The prosecution alleged that either acting jointly or independently, one after the other, Randall and Glean had deliberately caused one or more of the nine injuries. Thus it was submitted that they, or at least one of them, was guilty of murder. Randall admitted physical contact between himself and Barber at the house and near the pumping station, but claimed that he did not cause any injury which caused or contributed to death, and was acting in self-defence. Glean denied any physical contact except at the house, and denied going out of the house at all. Provocation was also raised as an issue on behalf of both defendants. 4. The deceased had an extensive record, including robbery, use of violence, and possession of firearms. He had known Susan Rowe for 10 years. She said that he was normally drunk when she saw him. He had introduced Susan Rowe to Glean and Glean had used her home as a “safe house”. Glean had a formidable record, including significant offences of violence, and at the time of the offence he was on the run having committed an armed robbery. Randall did not know Barber but knew about him. According to Randall Glean had trashed Barber’s flat and caused animosity between them. Furthermore, on 12 th April, about a month before the killing, Barber was said to have taken a gun to Susan Rowe’s house. 5. There was evidence that on the day of the killing Barber had been drinking for a significant part of the day. At about 10.30 pm he was taken by taxi from a public house to Susan Rowe’s address. The taxi driver waited to be paid but Barber was aggressive and did not pay. The taxi driver saw him go to the door of the house where male and female voices were heard to argue. He then saw a man arrive, and there was a fight. Barber was spread eagled on the floor and kicked by the man who had arrived. 6. Susan Rowe said that Glean had been in her house that evening. At about 10.45 pm Barber knocked at the door. She did not want him inside, because she feared trouble, but Glean told her to let him in. In fact she told him to go, but he did not. When Randall arrived Barber fell through the door. Randall asked him to leave, and took Barber’s arm. Barber fell and there was a scuffle. Glean got between them. Barber agreed to leave and walked off. Susan Rowe was concerned about him, and Randall agreed to go after him to see if he was alright. Then Glean said he would go too, and followed Randall out. Before Glean left he went to the back of the house and held his coat together as if hiding something. Susan Rowe told a police officer that a hammer was missing. Barber had been drunk when he arrived at her door. Previously he had accused her of being present when his flat was trashed. Randall had taken hold of Barber and showed him the path because he would not go, and then a scuffle started but it was not violent and she did not see any punches thrown. She said there were no kicks. Randall had played the part of the Good Samaritan. When he returned to the house he told her that Barber was alright. 7. At about 10.50 pm Emma Davies saw something to her right on the other side of the road – a dual carriageway. She saw two kicks delivered to a prone male as she approached the lights. She saw one more kick, then the kicker walked away across the road and jumped over railings. 8. The workman who found Barber just before midnight said he was making a snoring noise, had a pulse and his head was towards some steps, not in the position seen by Miss Davies. Earlier in the evening Barber had been seen wearing a watch and in possession of a wad of money. There was no sign of either. 9. Susan Rowe said that Randall returned to the house first. Glean followed a few moments later, and said “he’s alright, he across the road”. One of them said he was lying on the pavement sprawled like a drunk. Glean said he was alright, someone would find him. After Randall had gone to bed Glean said his jumper needed washing and she soaked it. That was not accepted by Glean. She said that he also put his head in his hands, indicated that he had argued with Randall, and that Barber would not be bothering her ever again. That too was denied by Glean. Susan Rowe said that Glean told her to say that Barber had arrived with another man who had threatened her. He later told her that it did not concern her or Eddie. When the police made enquiries she told them that there had been no one except herself and her son in the house between 10 pm and midnight. Glean had threatened her that if she said anything to the police he would blow her head away. That was denied by Glean. 10. Examinations at the scene of the assault revealed 8 marks made by one foot which had stepped in blood. The expert, Mr Lamb, considered that the wearer’s lower clothing would have been blood stained. Susan Rowe’s front door had on it spots of blood which appeared to have come from Barber. Glean’s jacket had 30 tiny spots of blood on the lower left sleeve indicative of impact into wet blood. That impact could have occurred if the wearer had intervened between two others. No blood was found on Glean’s trainers. 11. The pathologist, Dr Djurovik identified three really serious injuries or blows to the right side of Barber’s head and face, and four to the left side. There were no defensive injuries. It was put to her that the three depressed skull fracture injuries were caused by a hammer, but she said not. The injuries were consistent with kicks from footwear. She could not exclude the possibility of a hammer causing some of the other injuries, but her over all view was that kicks were the cause, with considerable force and whilst the deceased was lying down. 12. A second pathologist, Dr Rouse, could not exclude a hammer, but preferred another type of blunt instrument as the cause of injury. He envisaged one or two punches which caused the deceased to fall backwards, and then him being kicked on the ground. Randall’s description of a kick with the sole of a boot landing hard on the right cheekbone was put to him. He thought that if it had happened that way it was very unlikely that no marks would have been left. 13. The Surgical Registrar who treated the deceased in hospital to relieve the blood pressure inside his skull saw multiple depressed open wounds and bruising on the head which was suggestive of an assault with a hammer, but agreed with Dr Djurovik that the skull fractures seen at post mortem examination and consistent with hammer use were old. 14. Karen Parr had a child by Glean. She said that he telephoned her several times on 9 th May and said he had killed Barber. He “did him” with a hammer. It was put to her that her relationship with Glean had gone down hill, and she had been dishonest about receiving the proceeds of a robbery, and that what Glean had actually said was that Barber had been given a hammering. 15. Elaine McGrath had been Randall’s girl friend. She said that he telephoned her on 9 th May sounding upset and nervous and said that he thought he had killed someone. He had got into an argument at his aunt’s house, chased the victim down the road, and left him in a pool of blood. He had kicked the bloke in the head. He called her again 15 minutes later, and said it was not true. In a further telephone call two days later Randall said he got rid of his clothes in a skip. Subsequently he wrote to her requesting her not to say anything which would harm him. She added in cross-examination that Randall admitted standing on Barber’s head as well as hitting him. She had told the police that she had never known Randall to be violent, but that was not true. She said their relationship had been volatile and he flipped and became aggressive when in drink. She did agree that she might have said that it was worth a couple of grand for not causing any trouble, but she had not been paid any money. Whilst released on bail Randall had taken his boots from where he had placed them in a skip, and put them into a passing dust cart. 16. When first interviewed by the police Randall said he had got home, found a man in the doorway, told him to go, and manhandled him. There was a scuffle and he fell in the doorway. The man was given 10 seconds to leave and he did so. Randall went out to check that he was not hanging around. He had told Susan Rowe to say he had not been there at all. He had drunk six pints. He wore trainers (that was later admitted to be a lie). He had been trying to hit the man at the house a little bit, and Glean pulled them apart. He had followed Barber outside, concerned that he might return and put a brick through the window, but did not see him. He used just enough force to defend himself. 17. In a second interview Randall said that he did not go outside with Glean, and did not remember seeing him outside. Glean’s suggestion that he had admitted stamping on Barber was a lie. He still insisted that he wore trainers. 18. In a third interview Randall told the police that he was wearing black boots with buckles. He had been led to believe by Glean that Barber was a dangerous man. He had chased him across the road knocked him down and hit him. He just wanted to be rid of him, and it was not his intention to hit a defenceless bloke. He had seen Glean cross the road. He had wanted to make sure that Barber was on his way. 19. In a fourth interview Randall said that he was a bit drunk at his aunt’s house. He fought to defend himself, and to defend his aunt and to get Barber to surrender. Glean had pulled him off. He chased Barber, caught up with him and hit him with the left hand to the jaw. Barber landed on his bottom, but seemed to be getting up again so Randall kicked him in the side of the head with his heel. It was enough force to put him over. It was not the same side as he had punched. He was sure he only hit Barber once. He wanted to get away in a hurry. He got rid of his boots. 20. At the trial the jury was made aware that the appellant had convictions for driving under the influence of alcohol, and disorderly behaviour. Susan Rowe denied that he was violent, unruly or aggressive. A police inspector who had known him for 20 years described him as very steady and family orientated. He worked hard and had not been seen to act violently or aggressively. But the inspector was not aware that he had admitted kicking someone in the face, and had solicited a false alibi. Another friend of Randall of several years standing had never seen him aggressive in drink. In 1999 Randall had written to his girl friend that he was a Jekyll and Hyde character needing to be brought under control. He explained that it was a grovelling letter, and he did not mean that he lost self control. He also denied that he was out of control at the time of the assault. Randall said that he had not met Barber before that evening, but he had been warned of Barber’s reputation. He estimated that he had drunk 4 to 5 pints. When he got to his aunts there was a row going on. His aunt wanted the man to leave. Randall asked him to go politely several times, but was ignored, then treated dismissively and rudely. His aunt was frightened so Randall panicked, and grabbed the man by the shoulder to move him. The man wriggled and struggled and Randall thought the man was going to hit him, so he hit the man in the mouth and both fell to the floor. The man carried on struggling, then Glean said that will do. The man was told he had 10 seconds to get out. He had not given the impression of being drunk. 21. Randall said that he was a bit shaken after the man left. He was concerned because he learned who the man was, and thought he might return to cause problems. Four or five minutes later he went out to check, and saw Barber. He decided to chase him off. Barber walked away, and then turned to confront him. He asked what was Randall’s game and spat in his face. As Randall went to wipe it away Barber lunged at him, so Randall hit out with the left hook to check Barber. It knocked Barber to the ground. He did not look happy and was getting up. Randall thought he was reaching for something, so he kicked Barber in the face to keep him down. He did not kick or strike Barber again. He left him lying in a different position to that found by the police. He denied kicking Barber in the stomach. He had not seen any blood, but did not hang about. He jumped through the railings and spotted Glean. Randall said that he had not caused the multiple injuries. Glean followed him about a minute or two later empty handed. Randall felt he was justified in doing what he had done at the time. He disposed of his boots because of the police presence, and feared he would be in deep water. He did not accept that he was aggressive when in drink. He said he was more pleasant. He denied Elaine McGrath’s allegation that he injured her. If he had done so she would have gone to the police. He did not tell the police about the spitting or that he thought that the deceased was going for a weapon, because it gave him a motive. He had thought that he had reason to kick the deceased because he felt threatened. Kicking did go against his principles. It was a push kick rather than with the toe, and it was not hard enough to cause the injuries that were caused. He denied attacking Barber in a violent and drunken rage and said that he had not invented seeing Glean in the vicinity. 22. Glean’s formidable record was outlined to the jury, including one offence of aggravated burglary and a recent offence of robbery in which the team were armed with knives. He said that he remained inside Susan Rowe’s house at all times. He had intervened to separate the appellant and the deceased fighting at the house. He only went outside as far as the garden path, and never went to the dual carriageway. He did not participate in an attack on Barber. When Barber arrived at the house he was drunk. Randall came home and Susan Rowe asked him to get Barber out of the house. Barber had said not to give him any trouble. Randall pushed Barber with the flat of his foot then punched and kneed him. They were in a headlock facing each other. Barber was bleeding from the mouth at the time. Glean broke them up. Randall counted down and Barber left from a position of being on all fours. Glean said he went off to the toilet and when he returned Randall had gone. He went out to the gate to look. Then, after a short interval he saw Randall coming from the dual carriageway direction partly waking, partly running. He was angry and said to Susan Rowe that now she could not say no one cared for her. Barber was over the road all sprawled out. When Rowe wiped blood off Randall’s cheek he said it was all in a day’s work. Randall said “I’ve really fucking hurt him. I’ve stamped on his head and everything.” There was “loads of blood”. Glean said that he did not go out for fear of getting involved, and because he was wanted for the robbery. As the night wore on Randall got more and more frightened and panicky. Randall’s jumper was taken off for Rowe to wash. His clothing was taken away by Rowe next day in a plastic bag. Glean said that he had not made any admission to Karen Parr but he had said that Barber had taken a hammering. That was because of what Randall had said. Under cross-examination he gave details of his own offending. He said that he had not left the house with a hammer, and it was not true that he and Barber were on bad terms. Grounds of Appeal 23. On behalf of the appellant Randall, Mr Marshall Andrews QC pursues two grounds of appeal against conviction namely – “(1) That the judge failed properly to direct the jury as to the relevance of Glean’s bad character. (2) That the judge failed properly to direct the jury as to the legal basis on which a verdict of manslaughter could be reached, and in particular failed to deal properly with the question of intent.” Relevance of Glean’s bad character. 24. This was, as Mr Marshall Andrews submits, a cutthroat defence. The case on behalf of Randall was that he had not inflicted the fatal injuries. They had been inflicted by Glean. There were no eye witnesses who identified either man as the assailant, and on behalf of Randall, Mr Marshall Andrews sought to support Randall’s case by adducing and dwelling on Glean’s record of serious offending, including in particular offences of dishonesty and violence, in contrast to the criminal record of Randall which contained only relatively minor matters, and no offences of violence. Put bluntly Mr Marshall Andrews was submitting that in the light of Glean’s record it was more likely that Glean rather than Randall had inflicted the fatal blows. That line of defence was, he submits, perfectly permissible in the light of Lowery v R [1974] AC 85 , and in any event no objection was raised in relation to it. Yet the judge directed the jury to have regard to the bad character of Glean only in relation to the truthfulness of the evidence he gave in the witness box, thus undermining and limiting the defence which Mr Marshall Andrews on behalf of Randall had sought to advance. What the judge said was – “So the issue I want you to grasp now is this, that you have heard about those previous convictions because they may assist you when you come to judge the truthfulness of this defendant, Nicholas Glean’s evidence, when he gave evidence before you in this court earlier this week. It is important that you remember that it would be utterly wrong for you automatically to assume that either he is guilty of murder or he has not been telling you the truth just because he has those previous convictions, grave though they are and grave though it is, the matter which he has admitted to you, though he has not yet been convicted in a court about it. So those convictions are not relevant to the likelihood of his having committed this offence of murder, nor are they evidence that he did commit this offence of murder. Their relevance is to allow you to assess whether you believe what he had told you on oath. You do not have to allow those convictions to affect your judgment. It is for you to decide the extent to which, if at all, those previous convictions and what he has told you about his character help you as you reach your true verdict according to the evidence in this case.” It is the sentence “so those convictions are not relevant to the likelihood of his having committed this offence of murder” of which Mr Marshall Andrews really complains, and he submits that the judicial error was compounded because, evidence having been understandably and properly adduced by those acting for Glean and the prosecution as to the occasions when Randall had been violent or admitted violence in the past (for example in relation to his former girlfriend Elaine McGrath), when that evidence was reviewed in the summing up there was no suggestion that it should not be treated as evidence of propensity on the part of Randall. Mr Marshall Andrews submits that in directing the jury as he did the judge lost sight of the fact that a defendant such as Randall has a right to deploy his case as he chooses in relation to any matter properly regarded as relevant, and he used the evidence of Glean’s violence on other occasions to meet those positive aspects of Glean’s case which directly or indirectly inculpated Randall, and which included assertions by and on behalf of Glean that – (1) whatever he might have done at any other time, at the time of the attack on Barber he had every reason not to get involved because he was already wanted by the police for an aggravated burglary: (2) He had good relations with Barber, who had initially given him shelter after his most recent crime. [It was the case for Randall that all was far from well between Glean and Barber]. (3) Randall, when he returned to the home of Susan Rowe after the assault, had boasted of having stamped on Barber’s head. 25. As Mr Marshall Andrews put it, by the end of the evidence Glean was in truth the main prosecution witness against Randall, and vice versa. Furthermore there was evidence from Glean in cross-examination to show that when he considered it necessary he was prepared to attempt witness intimidation. 26. For the Crown Mr Escott Cox QC submitted to us that propensity is never probative, and that even if that be not right, the dishonest and violent offending which under cross examination Glean was constrained to admit was wholly different from the violence suffered by Barber. Glean was a violent burglar or robber, who operated as part of an armed team, and may have exhibited a propensity to violence in the course of theft, but he had no history of inflicting gratuitous violence in the street on his own, so the judge was right to direct the jury as he did. 27. Both counsel invited us to consider the relevant authorities in relation to this area of the law, beginning with Miller [1952] 36 Cr App R 169 , then Lowery (supra), Neale [1977] 65 Cr App R 304 and Bracewell [1978] 68 Cr App R 44 . We have also looked at the more recent decisions of this court in Murray the Times 24 th June 1994 and Thompson and others [1995] 2 Cr App R 589 . In Lowery the Privy Council at 102 approved what had been said in the Court of Criminal Appeal in Victoria, namely – “It is … established by the highest authorities that in criminal cases the Crown is precluded from leading evidence that does no more than show that the accused has a disposition or propensity or is the sort of person likely to commit the crime charged; .. it is, we think, one thing to say that such evidence is excluded when tendered by the Crown in proof of guilt, but quite another to say that it is excluded when tendered by the accused in disproof of his own guilt. We see no reason of policy or fairness which justifies or requires the exclusion of evidence relevant to prove the innocence of an accused person.” So the evidence of a psychologist who had examined both defendants in that case was admitted. As Mr Escott Cox points out, his evidence was not related to crime or criminal tendencies, but to personality traits relevant to the question as to which account of the killing was the more probable. Murray was charged with reckless driving and raised the defence of necessity or duress of circumstances because of the driving of another driver. This court ruled that evidence of the convictions of the other driver should have been admitted even though he did not give evidence because they were relevant. Knowledge of his character might well have coloured the jury’s deliberations and bolstered the credibility of Murray’s account. Similarly, as is pointed out by the editors of Archbold, Criminal Pleading Evidence and Practice, 2003 Edition, at 8-244, where the defence to a charge of murder is self-defence it is often elicited that the deceased had convictions for violence, and the relevance of that evidence is that it goes to disposition. Similarly in Lee [1976] 62 Cr App R 33 it was said that a defendant charged with burglary of a house should have been allowed to introduce into evidence the bad character of others, not called as witnesses, who had access to the house. 28. In Thompson Evans LJ at 593 summarised the effect of the authorities, and we gratefully adopt the summary – “(1) It is a fundamental principle that it is not normally relevant to enquire into a defendant’s previous character or to ask questions which tend to show that he has previously committed some criminal offence. This is ‘not relevant because the fact that he has committed an offence on one occasion does not in any way show that he is likely to commit an offence on any subsequent occasion’ (per Devlin J in Miller ). (2) A defendant is always entitled to call evidence of his own good character or other evidence ‘in disproof of his own guilt’ of the offence charged against him: Lowery and compare Vye [1993] 97 Cr App R 134 at 136. The test is whether the evidence is relevant or not to the question of guilt. The evidence was relevant ‘if it tended to show that the version of the facts put forward by one co-accused was more probable than that put forward by the other’ (per Lord Morris in Lowery ). (3) When there is more than one defendant, the test of relevance must be strictly applied ‘for if irrelevant and therefore inadmissible evidence is admitted, the other accused is likely to be seriously prejudiced, and grave injustice may result’ ( Bracewell ). (4) A leading example of the strict application of the test of relevance is Neale .” 29. So the critical test is relevance, and Mr Marshall Andrews submits that the material in relation to Glean which he wanted the jury to consider was relevant to the issue of who, as between Randall and Glean was temperamentally more likely to have used very serious violence on Barber. Had Randall been tried alone the same material would, Mr Marshall Andrews submits, have been adduced, and no one would regard it as irrelevant but if the judge was right it should then be excluded because the credibility of Glean would not be in issue. In Phipson on Evidence 15 th Edition (2000) it is pointed out at paragraph 17-74 that in none of the cases decided since Neale is any allowance made for the prejudice to the accused in the position of Glean which may accompany the probative advantage for the co-accused. Indeed that prejudice, if it arises, has been specifically, for example in Thompson, held to be irrelevant. In paragraph 17-75 the editors of Phipson submit that the decision of the House of Lords in DPP v P [1991] 2 AC 447 “knocks the last nail in the coffin of the argument that it is impermissible to employ the disposition mode of reasoning. It therefore follows that the statement in Lowery (which we have set out above), a statement later endorsed by the Court of Appeal in Bracewell , should now be treated as stating English law correctly.” We agree, and accordingly in the particular circumstances of this case, where there was a cut throat defence, the antecedent history of Glean was relevant not only in relation to the truthfulness of Glean’s evidence but also because the imbalance between that history and the antecedent history of Randall, in the words of Lord Morris, “tended to show that the version put forward by one co-accused was more probable than that put forward by the other.” In most cases the situation will be governed by the fundamental principle to which Evans LJ referred in Thompson , but this was an unusual case in which the judge should not have directed the jury as he did in relation to the relevance of the previous offending of Glean, and the violence to which he had been a party. If, as we have held, what was said by the judge was a misdirection, it was clearly a misdirection of considerable significance to Randall’s case because of the way in which his case had been presented, and that is why on 11 th February 2003 we allowed this appeal and ordered that there be a re-trial. Ground 2: The manslaughter direction. 30. As to Mr Marshall Andrews’ second ground of appeal it is clear that when directing the jury as to the law at the start of his summing up the judge omitted any reference to the alternative offence of which Randall was in the end convicted. The judge went straight from dealing with self-defence to provocation. But at the end of his summing up he gave a full and comprehensive exposition of the law in relation to which the jury had the benefit of a flow chart, and, as Mr Marshall Andrews frankly accepts, it is clear from the verdict that the jury understood the full direction which they received. Accordingly we found no substance in the second ground of appeal.

2003_02_21-29.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2003/436/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2003/436

d4ac0ab889da0f180110861d95d1d02a7caad14a776da9a277f6ceba8225bb8e

[2023] EWCA Crim 1244

EWCA_Crim_1244

crown_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. I N THE COURT OF APPEAL CRIMINAL DIVISION Neutral Citation Number: [2023] EWCA Crim 1244 Case No: 2023/01981/B2 Royal Courts of Justice The Strand London WC2A 2LL Friday 6 th October 2023 B e f o r e: LORD JUSTICE STUART-SMITH MR JUSTICE CHOUDHURY THE RECORDER OF NOTTINGHAM ( Her Honour Judge Shant

This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. I N THE COURT OF APPEAL CRIMINAL DIVISION Neutral Citation Number: [2023] EWCA Crim 1244 Case No: 2023/01981/B2 Royal Courts of Justice The Strand London WC2A 2LL Friday 6 th October 2023 B e f o r e: LORD JUSTICE STUART-SMITH MR JUSTICE CHOUDHURY THE RECORDER OF NOTTINGHAM ( Her Honour Judge Shant KC ) ( Sitting as a Judge of the Court of Appeal Criminal Divisions ) ____________________ R E X - v - REBECCA THOMPSON ____________________ 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) _____________________ Miss G Daly appeared on behalf of the Appellant Miss A Keighley appeared on behalf of the Crown ____________________ J U D G M E N T ____________________ Friday 6 th October 2023 LORD JUSTICE STUART-SMITH: I shall ask Mr Justice Choudhury to give the judgment of the court. MR JUSTICE CHOUDHURY: 1. On 11 th November 2015, in the Crown Court at Wolverhampton, the applicant changed her plea to guilty on three counts of dishonestly making false representations. 2. The facts, very briefly, are that on various dates in 2013 the applicant, in communications with financial institutions, impersonated a Ms Ashfield (her husband's aunt) and thereby caused the funds under two investment policies belonging to Ms Ashfield to be paid into the applicant's account. The sums so paid came to a total of just under £32,000. 3. The applicant had also arranged for Mr Ashfield's disability living allowance to be paid into her account. The sum defrauded by that means was £1,511.10. 4. On 1 st February 2016, the applicant was sentenced to 20 months' imprisonment on each count to run concurrently. 5. On 28 th October 2019, in confiscation proceedings under the Proceeds of Crime Act 2002 ("POCA"), His Honour Judge Boora considered whether a confiscation order should be made against the applicant. 6. The applicant lived in Wolverhampton ("the property") with her husband, Mr Mark Thompson, their adult son, who has learning difficulties, and, as at the date of conviction, Mr Thompson's mother, Kathleen. The property, which had previously been owned by Mr Thompson's parents, was held in Mr Thompson's sole name. It had been transferred to him some years earlier. 7. Notwithstanding the sole ownership status of the property, the Judge found that the applicant held a 45 per cent beneficial interest in the equity in the property. That interest was valued at £64,459.80. The overall agreed equity value in the property at the time was £143,244. 8. The Judge proceeded to make a confiscation order against the applicant in the sum of £35,922.47. 9. The applicant's applications for an extension of time (around three and a half years) and for leave to appeal against the finding as to her interest in the property have been referred to the full court by the Registrar. 10. Miss Keighley, who appears on behalf of the Crown (but who did not appear below), has very helpfully indicated that the Crown does not contest the applications. Given the latter concession and the court's view that there was good reason for the delay, we grant the extension of time sought and we grant leave to appeal. 11. As to the substance of the appeal, both Miss Keighley and Miss Davy, who appears for the applicant (but also did not appear below), agree that the Judge was led into error in considering whether the applicant had an interest in the property. It is common ground that the Judge was not directed to key provisions contained in section 84 of POCA. Section 84 provides, amongst other matters, that property is held by a person for the purposes of confiscation proceedings "if the relevant person holds an interest in it". An interest in land for these purposes is confined to "any legal estate, beneficial interest or power": section 84(1)(b) and (2)(a) and (f). 12. Miss Daly submits that the correct approach to be taken in sole ownership cases is that set out by the House of Lords in Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432, in which Baroness Hale stated: "56. Just as the starting point where there is sole legal ownership is sole beneficial ownership, the starting point where there is joint legal ownership is joint beneficial ownership . The onus is upon the person seeking to show that the beneficial ownership is different from the legal ownership. So, in sole ownership cases it is upon the non-owner to show that he has any interest at all . In joint ownership cases, it is upon the joint owner who claims to have other than a joint beneficial interest." (emphasis added) 13. The Judge was not referred to this authority, and none was cited in his ruling. Instead, the Judge was erroneously invited to consider the question of interest as if it were a question of determining what would happen if the court were exercising its power pursuant to the Matrimonial Causes Act 1973 , to make discretionary orders as to the distribution of assets and income as between spouses on a decree of divorce, judicial separation, or nullity. Miss Daly submits that the 1973 Act was wholly irrelevant to the task before the Judge. 14. Miss Keighley accepts those submissions. Given that sensible concession, it is not necessary for this court to engage in an extensive discussion of the law. Suffice it to say that it is plain to this court that the 1973 Act was not relevant and that the Judge was led into error by not being invited by counsel below to consider whether the applicant had any interest in the property within the meaning of section 84 of POCA. 15. The sole legal ownership of the property was in Mr Thompson's name. In those circumstances it would be for the non-owner (in this case the Crown) to show that the applicant had any interest at all: see Stack v Dowden at [56]. Not only did the Judge not have that burden in mind, but there was also no consideration of whether there was any common intention between the applicant and her husband that she should share the beneficial interest in the property with him: see Jones v Kernott [2011] UKSC 53 , [2012] 1 AC 776 at [52]. 16. Ordinarily, the matter would have been remitted, pursuant to section 11(3) (a) of the Criminal Appeal Act 1968 , for reconsideration below, in accordance with the terms of section 84 of POCA. However, Miss Keighley has stated that, given the passage of time and the likely sums involved, the Crown does not invite remittal. In the circumstances, including the fact that the applicant is incapacitated and suffering from a terminal illness, that is a very sensible and reasonable concession. 17. In these circumstances we allow the appeal. We quash the confiscation order made on 28 th October 2019. There is no order for remittal. _______________________________ 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_10_06-5848.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1244/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1244

1ae5590c1631ed8c622bf2dd56154f5191298e94e69f96bf052de5f517d01188

[2009] EWCA Crim 1700

EWCA_Crim_1700

supreme_court

Neutral Citation Number: [2009] EWCA Crim 1700 Case No: 2007/03149/B2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LIVERPOOL CROWN COURT HH JUDGE DAVID CLARKE QC T973512 Royal Courts of Justice Strand, London, WC2A 2LL Date: 31/07/2009 Before : LORD JUSTICE THOMAS MR JUSTICE TREACY and HIS HONOUR JUDGE STEWART QC - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Lee Carter Appellant - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2009] EWCA Crim 1700 Case No: 2007/03149/B2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LIVERPOOL CROWN COURT HH JUDGE DAVID CLARKE QC T973512 Royal Courts of Justice Strand, London, WC2A 2LL Date: 31/07/2009 Before : LORD JUSTICE THOMAS MR JUSTICE TREACY and HIS HONOUR JUDGE STEWART QC - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Lee Carter Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr M Bowes QC and Mr P Buckley instructed by Myer Wolff for the Appellant (none of whom appeared for the appellant at trial) Mr A Edis QC and Mr S Ball for the Respondent Hearing dates: 29 and 30 April, 1 May 2009 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Thomas: 1. On 1 December 1998 at the Crown Court at Liverpool before His Honour Judge David Clarke, the Recorder of Liverpool QC (as he then was), the appellant was convicted of the murder of Nicole Goodwin on 13 July 1997 and sentenced to life imprisonment with a recommended minimum term of 10 years. He appeals against his conviction for murder by leave of the Full Court given in September 2008 on the basis of fresh medical evidence. It is not in dispute that for the purposes of s.23 of the Criminal Appeal Act 1968 there is fresh evidence, that evidence is capable of belief and there is a reasonable explanation why it was not called at the time. The sole issue before us is whether, in the light of the test in Pendleton [2001] UKHL 66 , that fresh medical evidence might reasonably have affected the decision of the jury to convict and so render the conviction unsafe. The factual background 2. It is convenient first to set out a brief synopsis of the facts. 3. In 1997 the appellant lived at 6 Buckfast Avenue, Haycock with Michelle Goodwin and her two children, Nathan born on 29 April 1992 and Nicole born on 30 November 1995. Michelle Goodwin was divorced from the children’s father, Nigel Goodwin, who lived nearby. The children regularly stayed overnight with him, generally at weekends and on Thursdays. There was support from the grandparents on both sides. The incident on 13 June 1997 4. On Friday, 13 June 1997, an emergency 999 call was placed by the appellant at 8.46 p.m. in which he reported that Nicole had fallen off a kitchen unit at 6 Buckfast Avenue and was unconscious. The ambulance crew arrived at 8.50 p.m. and found Nicole lying on the living room floor deeply unconscious. She was taken to hospital accompanied by Michelle Goodwin. She told the staff at the hospital that Nicole was on a work surface in the kitchen from where she had fallen onto a ceramic tiled floor. In subsequent interviews with the police both the appellant and Michelle Goodwin maintained they were present when she fell, although part of the tape-recorded 999 call contained passages that indicated that Michelle Goodwin was not present when the fall occurred. Before referring to the evidence of the injuries Nicole sustained, which are relevant to the circumstances in which of Nicole died on 13 July 1997, it is necessary to record that the appellant was charged in relation to her fall on 13 June 1997 with inflicting grievous bodily harm with intent on Nicole, contrary to s.18 of the Offences against the Person Act 1861 . That charge was tried jointly with the charge of murder, but he was acquitted on that charge. 5. As regards Nicole’s injuries sustained on 13 June 1997 and the treatment of these injuries, she made a steady recovery. X-rays were taken but were reported as normal. Although Dr Sills, the Consultant Paediatrician in charge of her, had some concerns, he allowed her to be discharged home on Sunday, 15 June. She spent the Sunday with her father, Nigel Goodwin. His evidence, and that of his parents, was that Nicole was not her usual self. When she was collected by Michelle on Monday 16 June her condition was such that she was taken to hospital. After her readmission, a CT scan was taken on 17 June and a linear fracture of the occiput was shown. Professor Carty, the well-known paediatric radiologist, gave evidence at trial that on re-examination of the x-rays of 13 June, evidence of the fracture could be seen. In addition to the discovery of the fracture, gross retinal haemorrhages to the left eye were diagnosed by Dr Sills and confirmed by an eye specialist. It was as a result of this diagnosis and Dr Sills’ suspicions that the retinal haemorrhages had been caused by shaking that the police were contacted and the appellant and Michelle Goodwin interviewed. 6. Nicole was kept in hospital until Thursday, 26 June when she was discharged. On the weekend of 27-29 June she was with her father, Nigel Goodwin, but over the weekend of 4-6 July was with her mother, Michelle Goodwin, and the appellant. On 7 July 1997 the appellant and Michelle moved to 171 New Street, St Helen’s. On 10 July she was seen by Dr Sills who was very pleased with her progress. The events surrounding the death of Nicole on 13 July 1997 7. On Saturday, 12 and Sunday, 13 July Nicole was with her father, Nigel Goodwin, and his girlfriend, Gillian Fisher, and from time to time with her paternal grandparents. It had originally been intended that Nicole stay with her father for the night of Sunday, 13 July but she was brought back to Michelle Goodwin on the Sunday evening because they wished to go out. At about 6 p.m. Nicole was taken to the house at 171 New Street to which the appellant and Michelle Goodwin had moved. 8. It is not in dispute that she arrived back at about 6 p.m. At 7.28 p.m., a 999 call was made in which Michelle Goodwin said that she had dropped her child, that the child was unconscious and asked for the ambulance to attend. When the ambulance men arrived shortly thereafter, Nicole was lying on the worktop in the kitchen unconscious. She was taken to hospital. On arrival there was no heartbeat, resuscitation was attempted but Nicole was certified dead at about 8.10 or 8.15 p.m. Dr Sills arrived as these attempts were being made. 9. On 14 July the appellant and Michelle Goodwin were interviewed by the police. On 15 July they were both arrested on suspicion of murder and the appellant was re-interviewed. In the accounts given in these interviews both essentially maintained that Nicole had been dropped accidentally whilst Michelle was present. During the course of 15 July, the police discovered a timed till receipt which placed Michelle Goodwin at a grocery shop at 7.24 p.m., about four minutes before the 999 call. The appellant’s confessions 10. In an interview at 7.44 p.m. on 15 July, following a consultation with his then solicitor, the appellant gave an account of what had happened. After her return home Nicole had been put to bed by her mother but she had awoken, probably when the door shut when her mother went to the shops. He had tried to quieten her but she would not stop crying. He had then lost control and had shaken her and thumped her on the head. He had punched her with his fist. He had not meant to, he just went blank. He said he had picked her up by her arms, held her round the ribs and shaken her. He had made up a false story of what had happened which he discussed with Michelle on their way to hospital. 11. He was then charged with murder at 8.39 p.m. that evening. 12. On 16 July the appellant changed his solicitor. In the course of a further interview he said that he knew he would end up admitting the killing on 13 July, but he could not admit it in front of Michelle. He maintained in that interview the account in relation to the injuries sustained on 13 June which he said was the result of a fall from the worktop in the kitchen at 6 Buckfast Avenue. 13. The appellant retracted his confession on 9 September 1997. In November 1997 the appellant wrote letters whilst on remand in prison indicating his responsibility for the actions that led to the death of Nicole. The evidence at the trial 14. At his trial in November 1998, the Crown relied on five matters in relation to the charge of murder: i) The timing. The appellant was alone with Nicole in the period immediately preceding the 999 call. ii) The medical evidence. The essential feature of that evidence was a fresh fracture found after death, external and internal bruises and haemorrhages of the eyes and bleeding inside the skull which was said to evidence shaking. iii) The evidence of Nigel Goodwin and the grandparents. Their evidence was that, apart from being tired at the end of the day when she was returned to New Street at about 6 p.m., Nicole was uninjured. It is important to point out that she did in fact have a greenstick fracture to the arm which doctors thought would cause Nicole to recoil or wince if touched, but no-one noticed this. iv) The lies told by the appellant prior to his confessions. v) The appellant’s own confession to which we have referred. 15. The medical evidence at trial was principally that of Dr Tapp, a Home Office pathologist called by the prosecution, and Dr Williams, also a Home Office pathologist who was called on behalf of the appellant. As the judge pointed out to the jury, the medical and pathological evidence was relevant first, to whether the injuries were accidental or deliberate and second, as to whether they could have been sustained before Nicole was brought back to be in the appellant’s custody at 6 p.m. 16. There was also evidence from Dr Sills who saw Nicole as resuscitation was being attempted; he expressed the view that if there was nothing apparently wrong when she returned at 6 p.m. apart from being tired and cranky, it suggested that the fatal injury occurred between then and the ambulance arriving. 17. The significant medical evidence was that of Dr Tapp which can be summarised as follows: i) There were fresh bruises which, in his view, had been sustained within 48 hours of death. There were marks and bruises on the ears; it looked as if the ears had been gripped. ii) Of particular importance was a bruise at the back of the head; some of the bruise was fresh and it overlay the site of two fractures. iii) The linear fracture of the occiput which had occurred on 13 June was accompanied by a fresh fracture which was no more than 4 to 5 days old. Dr Tapp drew that new fracture in blue on a photograph showing it extending in a triangular shape, with one of the bases of the triangle being the line of the linear fracture sustained on 13 June being shown in pink. iv) There were fresh haemorrhages in the eyes; the presence of haemosiderin indicated that these were 3 to 4 days prior to death. v) Inside the skull there was blood and heavily stained cerebrospinal fluid which gushed out under pressure; it was bright red. There were fresh haemorrhages in the meninges in the brain – subdural and subarachnoid, but no intracerebral haemorrhage. There were small amounts of haemosiderin. In addition to the fresh haemorrhages, the presence of haemosiderin indicated that there had been damage some time before due to shaking. The blood was a mixture of fresh and older blood; it could not be suggested that the blood which came gushing out was so old as to be associated with the haemosiderin. vi) He considered that the cause of death was blunt head injury and shaking. Although the blunt head injury could be an accident, he did not think that was likely given the site of the fracture, but he could not exclude it completely. vii) As to shaking, it resulted in disruption to the nerve fibres of the brain which killed the child. The fact that the blood which gushed out was bright red indicated it was recent; Nicole had not been bleeding there two hours before. viii) It was not possible for the injury to have been sustained before 6 p.m. on 13 July. Although there was evidence that Nicole was tired and cranky, these were not symptoms he associated with bleeding inside the brain. The bleeding inside the brain would have caused her to lose consciousness almost immediately on being shaken, as it was the disruption of the nerve fibres in the brain that caused unconsciousness. ix) It was not possible on the appellant’s account of Nicole waking up when Michelle Goodwin left the house for the injury to have been sustained prior to that time, as she would have been unconscious; she could not have cried out when the door slammed. 18. Dr Williams questioned whether Nicole had died from being shaken; he did not subscribe to the view that some of the matters relied on showed that this was a cause of death. He considered that death occurred as a result of head injuries which could have been caused by a blow to the head. He accepted that the injuries to the brain could have been caused by the blow to the back of the head. He could not put a time on when this had happened. He gave evidence, without apparently going into detail, that there could be a lucid interval after the injury; he disagreed with Dr Tapp that the severity of the injury would have resulted in immediate unconsciousness. 19. The appellant gave evidence at trial. He said that on 13 July he had got back from friends at about 5.30 p.m. As he was worn out and tired, he went to bed. He heard the children arrive back and got up and went downstairs. Nicole was tired and cranky and then was put to bed. When Michelle Goodwin went to the shop with Nathan and the door banged, he heard Nicole crying. He ran upstairs and picked her up to comfort her as she was crying loudly. He felt light headed and thought he would pass out. He put her down quickly on the cot. She was then quiet. He picked her up and she was all floppy then. He threw or placed her on the bed to one side. He did not throw her hard, but panicked and ran out of the door to get a cloth. He heard a thud, turned and saw her on her back on the floor at the side of the bed. He picked her up, threw her on the bed and got a cloth from the bathroom. He wiped her face and called her name, but there was no response. He then picked her up and ran downstairs. She gave a cry and started to vomit. He cleaned her mouth out. Michelle Goodwin then came home. He told her he had dropped Nicole. Michelle Goodwin then phoned the ambulance. He explained in detail why he had confessed on the basis of the legal advice he said he had been given. He was cross examined extensively on his account of events and his confession. The nature of the fresh medical evidence 20. As we have set out, the fresh evidence relied on in the appeal was solely medical evidence. It was undisputed that Nicole had died from the complications of head injury. She had received blunt trauma injuries within hours of death and this was the cause of her death. All the experts agreed that the findings viewed as a whole were in keeping with non accidental injury, save that one expert was of the view that it was not possible to tell whether they were or were not accidental. The fresh evidence related to the timing and nature of that trauma, as to whether she had been shaken and, if so, whether that could have caused or contributed to her death. 21. It was contended by Mr Michael Bowes QC on behalf of the appellant that the new evidence undermined, in the detailed respects which we set out below, the evidence given at trial by the pathologist called on behalf of the Crown and other medical evidence. When properly analysed it also cast doubt upon the confession made by the appellant and pointed to there being an issue as to whether the injuries had occurred prior to 6 p.m. and thus whilst Nicole was in the custody of her father and his family. The only aspects of the Crown’s case which Mr Bowes QC accepted the new evidence did not affect were the reliance on the appellant’s lies and the fact that he was with her in the period after 6 p.m.. 22. There was a substantial body of expert evidence before the court. We heard evidence from the following experts. i) Dr R S James, a Home Office pathologist and a senior lecturer in forensic pathology at the University of Wales College of Medicine, Cardiff. He had prepared the initial report which formed the basis of the appeal. ii) Dr Rogers, a Home Office pathologist, based in North West England. He had reviewed Dr James’ report and was called by the Crown. iii) Dr Waney Squier, a Consultant and clinical lecturer at the Department of Neuropathology at the John Radcliffe Hospital, Oxford. She had provided a report and was called on behalf of the appellant. iv) Dr du Plessis, a Consultant Neuropathologist at the Salford Royal Hospital and the Greater Manchester Neurosciences Centre. He commented on Dr Waney Squier’s report and was called by the Crown v) Mr Peter Richards, Consultant Neurosurgeon at the John Radcliffe Hospital Oxford. He provided a report and was called by the Crown. Discussion between these experts prior to the hearing of the appeal on the direction of the court had significantly narrowed the issues. We would wish to observe that in respect of the evidence of each, it was given with very considerable professionalism and in a completely impartial and detached manner. 23. There were also before us reports and agreed statements of Dr McCarthy, a Consultant Histopathologist, and Dr R E Bonshek, a Consultant Ophthalmic Pathologist, and reports of Dr Neil Stoodley, a Consultant Neuroradiologist and Dr George Kokai, a Consultant Paediatric Pathologist at Alder Hey and a Senior Lecturer at Liverpool University and also an agreed statement from them. It was in the light of the agreement those experts reached that it was not necessary for us to hear evidence from them. 24. In the light of the way the experts had approached their task, there was a very substantial measure of agreement as to the nature of the fresh evidence, although there was some difference as to its significance. Before we turn to describe that evidence it is, we think, important in fairness to Dr Tapp to point out that there has been a significant advance in medical science since the time he conducted his post mortem examination in 1997. There is a considerable difference in approach. Whereas it was common at the time Dr Tapp conducted his post mortem for him to conduct that post mortem on his own and for his report to be reviewed by a further pathologist, in this case by Dr Williams, the practice these days is for the pathologist to consult experts of the kind who gave evidence before us. This enables a much more precise and expert determination to be made than was possible in the circumstances prevailing in 1997. 25. We will first set out the evidence, both undisputed and disputed, and then our conclusions as to whether, applying the test in Pendleton , the fresh evidence might reasonably have affected the decision of the jury. The undisputed evidence 26. The undisputed new evidence can be summarised as follows: i) The evidence of pathology both general and ophthalmic did not enable the time of the fatal blunt trauma injuries to be stated with precision; it could not be said that the injuries had occurred after 6 p.m., though they had occurred within hours of death. It is now not possible to say that the external appearances of the bruises meant that they were less than 48 hours old. Nor did the appearance of red blood cells without associated iron pigment in macrophages allow a time to be placed on the injury other than to say it had occurred within the day or two previous to death. ii) The bruises to the area around the ears were likely to have been caused by a severe blow rather than by someone holding the ears and shaking Nicole. These were purple. Although it was not possible to age these accurately, they were not more than a day or so old, as they were not yellow. These were blunt injuries. iii) The bruise at the back of the head was of an age and shape that it was unlikely to have been caused by a fist shortly before death; it was not fresh, as it showed signs of healing. iv) It was recognised that fractures to the occipital bone could occur accidentally; the view of Dr Tapp was based on a study by CJ Hobbs: Head Injuries, ABC of Child Abuse (BMJ Vol 298, 29 April 1989), but more recent research showed that occipital fractures are common in accidents. v) There was now much more understanding as to the effect of shaking a baby. It was accepted that Dr Tapp was wrong in saying that this definitely brought about the death. The consultant ophthalmic pathologists agreed that blunt head injury was the more likely cause of the final injury than shaking. There was some dispute about this to which we refer at paragraphs 40 to 44 below. The disputed evidence 27. There was disputed evidence in relation to three questions: i) Was there was an interval between the fatal injury and loss of consciousness – the lucid interval issue? ii) Was there evidence of shaking having a fatal effect? iii) Was there a new fracture? (i) Was there an interval between the injury and loss of consciousness? 28. The most important aspect of the evidence was the issue as to whether there was the real possibility of an interval between the infliction of the fatal injury and Nicole losing consciousness; this was referred to as “the lucid interval”. 29. Both Dr James and Dr Waney Squier made clear that on the pathology evidence, though the blunt trauma injuries to the head which had caused death had occurred within hours of death, it was not possible to be more precise. It could not be said that the injuries occurred after 6 p.m. This was not disputed. There were cases which showed that there could be an interval between the fatal injury and severe distress or loss of consciousness. Although it was not possible for Nicole to have been absolutely normal if she had sustained the fatal injury before 6 p.m., the cases showed that a child could have sustained a severe brain injury, but appeared only to be lethargic and irritable. As Nicole had been reported to be tired and cranky on her return, the state of medical science had now to admit of the possibility that the fatal injuries had occurred before 6 p.m. 30. The contention was advanced on the basis of medical literature. The Crown in response contended that the cases in the literature were rare. In the circumstances of this case, there was no possibility of such an interval as the pain from which Nicole must have been suffering would have been evident. The Crown also relied on evidence relating to the nature of the subdural haemorrhage as supporting the conclusion that there was no lucid interval. (a) The medical literature 31. We were taken by Dr James and Dr Waney Squier to medical literature which set out a small number of cases where there had been an interval between injury and loss of consciousness. The principal materials relied upon were a letter published in the American Journal of Forensic Medical Pathology in March 2002 by Dr Robert W Huntingdon and the following papers: Arbogast, Margulies and Christian: Initial Neurological Presentation in Young Children Sustaining Inflicted and Unintentional Fatal Head Injuries ( Paediatrics, 2005); Graham, Smith et al: Trials and Tribulations of using β-amyloid precursor protein immunohistochemistry to evaluate traumatic brain injury in adults (Forensic Science International, 2004); Gilliland: Interval duration between injury and severe symptoms in non-accidental head trauma in infants and young children (Journal of Forensic Sciences (1998); Sauvageau, Bourgault and Racette: Cerebral traumatism with a playground rocking toy mimicking shaken baby syndrome (J. Forensic Science vol 53); Plunkett: Fatal paediatric head injuries caused by short-distance falls (American Journal of Forensic Medicine and Pathology vol. 22 (1) 2001); Denton and Mileusnic: Delayed sudden death in an infant following an accidental fall (American Journal of Forensic Medicine and Pathology vol. 24 (4) 2003). 32. Dr James relied in particular on the case described in the letter by Huntingdon where the 13 month old child who died of a subdural haemorrhage many hours later was described on admission to hospital as being irritable and sleepy, clingy and fussy, but being interactive and responsive. He pointed to the fact that Nicole had a fracture of the arm which no one had noticed. He also pointed to the case reported by Graham, Smith et al where a child had suffered a minor head injury but was lucid until experiencing a series of seizures from which he died. 33. Dr James accepted that it was easier to see how the injury occurred in the period after 6 p.m. and there was other evidence that might allow that inference to be drawn. The cases where there was an interval were rare and the common reaction to a fractured skull would be severe pain. Indeed the cases set out in the paper by Plunkett showed that where there was more than a minimal fall, the interval was only 5-10 minutes. However, the definitive evidence of Dr Tapp that the injury must have occurred immediately prior to unconsciousness could no longer be accepted in the light of the literature. He emphasised however that the evidence of clinicians was very important. (b) The pain from which Nicole would have been suffering 34. Mr Richards, a clinician who has specialised in neurosurgery of children for many years, accepted that there could be very rare cases where there could be a lucid interval. However if a child has suffered an injury to the head which would cause death, the child would be in acute pain from a very short time after the injury had been sustained. It was inconceivable that the injuries sustained by Nicole would not have caused severe pain and other signs of distress that would have been obvious to those looking after her; furthermore from the moment Nicole suffered a subarachnoid haemorrhage there would have been severe pain and there would only be a minimal chance that she would not be unconscious. If she had suffered such injuries before 6 p.m. and remained conscious, then she would have been in severe pain and very distressed on her return home. The cases where there had been the lucid intervals described in the literature to which we have referred were very different; each depended on the accuracy of the recollection and description of the person at the first point of examination. He considered strange the single case referred to in the paper by Denton and Mileusnic where a 9 month old child was reported to have fallen 30 inches from a bed striking the back of his head on a concrete floor; he was not taken to hospital or to a doctor as he appeared to have recovered after initial crying but died 72 hours later; a post-mortem revealed a linear fracture and haemorrhaging. (c) The extent of the subdural bleeding 35. A space occupying lesion, such as an expanding subdural haematoma, can explain a delayed reaction to a fatal blunt injury. The Crown contended that the evidence showed that there was no space occupying lesion and hence there was another independent basis for showing there was no lucid interval. 36. As we have set out at paragraph vii) above, Dr Tapp’s evidence was that when he conducted the post mortem, the blood which gushed out was bright red, indicating that it had not been there very long. His report also described a large amount of blood stained fluid. He also described a residual liquid acute subdural haemorrhage as present over both cerebral hemispheres. 37. Unfortunately Dr Tapp did not provide further details. In May 2008, Dr du Plessis asked Dr Tapp about the nature of the bleed. He recorded that he had been told by Dr Tapp that there was a relatively small volume of subdural collection which was unlikely to be space occupying. Dr Tapp did take photographs. These were seen by Dr du Plessis who concluded that they revealed a small subdural blood clot in the right parieto-occipital region against a background of extensive bilateral thin film blood staining of the dura and brain surface on both sides extending onto the skull base. 38. Dr du Plessis considered the description given by Dr Tapp and what he had observed from the photographs ruled out a space occupying lesion as a mechanism which could give rise to a lucid interval after an injury sustained before Nicole was returned to the appellant and her mother at 6 p.m. He accepted, however, that clinical evidence was the more important in assessing the delayed reaction. 39. After the hearing before us, Dr Tapp produced his notes; the experts were asked to express further views on the subdural bleeding and its relevance to the lucid interval issue. Dr du Plessis gave further reasons for his maintaining the view he had expressed. Dr Rodgers and Mr Peter Richards both expressed the view that in the light of the apparent scale of the subdural haemorrhage, it was unlikely there had been any lucid interval. Dr James did not think it was now possible in the absence of proper contemporaneous evidence to express a view on the nature and size of the subdural haemorrhage. He did not place a great deal of significance in relation to disagreement on this lucid interval issue, as the pathology evidence could not tie down the timing of the fatal injury to a period other than one measured in hours. Dr Waney Squier commented that all that could be said was that there was no evidence of an absence of a space occupying subdural haemorrhage; there was in any event no evidence to show that a space occupying subdural haemorrhage was necessary or even a frequent prerequisite to a lucid interval in infants. (ii) Was there evidence of shaking having a fatal effect? 40. It was the evidence of Dr James that in the 1990s there was a widely held view that severe shaking caused subdural haemorrhage which would result in unconsciousness. There were some who questioned the effect of shaking at that time, but now there was a much more cautious approach; he relied on the analysis by Leestma. It was also thought at the time, as Dr Tapp had said in his evidence, that shaking caused damaged to the nerve fibres of the brain – diffuse axonal injury. This was no longer a tenable view. Nor was it any longer tenable to state that retinal haemorrhages were definitely caused by shaking; it would be necessary to be more circumspect about the cause of the retinal haemorrhages. 41. If Nicole had been shaken violently, then Dr James would have expected to see bruises where she had been gripped and tears to the neck muscles, but he could not exclude the possibility of shaking causing or contributing to the death. Dr Waney Squier’s evidence was to the same effect. Although she considered it was clear that Nicole had suffered a severe blunt injury which would have been fatal, there was none of the evidence such as grip marks, bruises, neck injuries or rib fractures normally associated with shaking a child of Nicole’s age. 42. Dr du Plessis disagreed with this evidence; he considered that a child of Nicole’s age could be shaken by gripping the clothing and that shaking in this way sustained for sufficient time could cause a subdural haemorrhage and retinal bleeds. He supported his views by reference to work by Roth using computer-generated biomechanical modelling based on finite element analysis. Dr Waney Squier considered that it was not possible to rely on such computer modelling without any real life data. 43. In Dr du Plessis’s view the thin film non space occupying and widely distributed subdural bleed (to which we have referred in paragraph 37) was typically associated with non accidental head injury consequent on shaking or some form of impact. Although Dr Waney Squier agreed with the description given by Dr du Plessis, she expressed the view that whilst blunt trauma might be a cause of the thin film in the subdural haemorrhage, it was more common to see a thicker film. It was not possible to say from the evidence whether the injury was accidental or inflicted. 44. It is not, we think necessary to set out further details of the evidence given nor to traverse again the issues considered by this court in R v Harris [2005] EWCA Crim 1980 . For reasons we explain at paragraph 48, it is sufficient to say that Dr Waney Squier remained of the very firmly expressed view that there was no merit in the hypothesis that subdural bleeding could be caused by shaking and the evidence to which Dr du Plessis referred was not in any way convincing, although she accepted that this was not the majority view. (iii) Was there a new fracture? 45. It seems clear from the report of Dr Williams and the summing up that there was no dispute at trial that there was a fresh fracture as drawn in blue by Dr Tapp along the triangular shape lines in the manner we described at paragraph iii) above. 46. Dr James considered that Dr Tapp might have been wrong in his evidence summarised at paragraph iii) that there was a new fracture of the occiput some 4-5 days old – shown on an image as a blue triangular shape, one of the bases of which was part of the linear fracture which was agreed to be old. He considered that the histological appearances were inconclusive and that he was not convinced he could diagnose a fresh fracture. He supported his view by a comparison of the evidence of Dr Tapp and a report of Professor Carty which had not mentioned the fresh fracture, but which had commented that the CT scan of 17 June and the post mortem x-rays were consistent; Professor Carty had referred to a depressed element being present on the CT scan of 17 June. This could have been a crack, but he could not be more definite in his view as the x-rays had been destroyed. 47. The evidence of Dr Kokai as set out in his agreed report was that the fracture of the occipital bone had two different ages; one which was healing which correlated with the June incident and one which was more recent and consistent with the July incident. He considered that these findings were confirmed by Professor Carty’s evidence. Dr James was asked about the skull blocks that had been the subject of a histological investigation by Dr Kokai who reported that the fifth of those blocks revealed a fresh fracture. He accepted that there were two different injuries. One of these might be a fresh fracture, but he was not convinced by the histology. Dr James said that what Dr Kokai described might be accommodated with his view that the bruises to the rear of the head were about a week old. Would the new medical evidence have made a difference? (i) Shaking 48. We accept that the evidence of Dr Tapp that the subdural haemorrhage was caused by shaking can no longer be accepted as undisputed. If there had been no other cause of death than injuries that were said to have resulted from shaking, it might well have been the case that the new evidence in relation to shaking and the evidence in relation to the imprecision of the original pathology might have made a difference to the verdict the jury would have returned. However it is clear that the death was caused by blunt trauma to the head. 49. What therefore is of significance is the evidence in relation to the blunt trauma and the evidence in relation to the possibility of a lucid interval. (ii) The blunt trauma injury to the head. 50. Mr Bowes QC submitted that it was significant that in his confession, the appellant had referred to striking Nicole on the back of the head. Thus before the jury, on Dr Tapp’s evidence, there had been strong support for the fact that the confession was true because of the evidence Dr Tapp gave in relation to the blow to the back of the head. That position was now altered in the light of the undisputed new evidence that the bruising there was not fresh as Dr Tapp had said. 51. We conclude that although there is some evidence to suggest that there was no new fracture, there was strong evidence, particularly the unchallenged evidence of Dr Kokai, that there was a new fracture. The evidence before us showed the single blow to the back of the head was not consistent, by reason of its age and shape, with a blow being struck on 13 July. However, we do not consider that whether or not there was a new fracture was of central significance. 52. What was of real importance was Dr James’ evidence to us that there was a severe blunt injury to the area around the ears. Although it was not possible to be definite as to the cause, as there were bruises on both sides, blows were more likely. The evidence of Mr Richards was that this must have caused immense pain. Thus, although the confession evidence is not consistent entirely with the pathological evidence, it is clear that Nicole did receive a severe blunt injury to the area around the ears. We have little doubt that a jury would accept the evidence that this must have caused her immense pain, as this was the only evidence from a clinician. This strongly suggests an assault to the child’s head after 6 p.m. consistent with the appellant’s confession. (iii) Nicole’s condition on her return to the appellant’s custody 53. As we have set out at paragraphs 31-33 above, there are instances of cases where a fatal injury is sustained and a child does not immediately become unconsciousness and has a lucid interval. An examination of each of the cases set out in the literature produced to us shows that there are plainly a tiny number of such cases which happen in certain circumstances. The significance of each case depends on a detailed consideration of the circumstances and of the accuracy of what is reported. 54. It was, however, common ground that a child will not be normal and will exhibit signs that show this. The evidence of Dr James was based on a study of the papers which in fact go no further than we have described; he very properly accepted that he would have to defer to a clinician in relation to pain and other symptoms of the trauma. 55. As regards the signs which are accepted as inevitable, as we have set out at paragraph 34, the evidence of Mr Richards was that if Nicole had suffered a severe blow to the head prior to 6 p.m. on 13 July, she would not merely have been cranky or not herself, but, if conscious, showed signs of acute pain and distress as a result of the injuries that she had received. Any jury would have attached considerable weight to the fact that this was the only evidence from a clinician. We have, in reaching this conclusion, taken into account the submissions of Mr Bowes QC that on the evidence no-one on the paternal side of Nicole’s family seems to have recognised the greenstick fracture (to which we referred at paragraph iii)) but it seems to us that the pain and distress that would have been caused as a result of a fatal blow to the head would have been of an altogether different order. We have not in considering the issue of a lucid interval attached any significance to the evidence in relation to the subdural haemorrhage set out at paragraphs 35 to 39; it is not relied upon by those called on behalf of the appellant and is too uncertain to assist the Crown in the contention that it makes the case for a lucid interval impossible to sustain. 56. It is important to point out, though this issue did not have the significance at the trial that it assumed on the appeal, that as we have set out Dr Williams (at paragraph 18) gave evidence that it was not medically possible to say how long before death a fatal injury was sustained; there was sometimes a “lucid interval” after an injury. It was necessary to be very cautious about saying Nicole sustained the fatal injury shortly before collapsing. 57. The jury also had to consider at the trial the case made against Nicole’s paternal family who had charge of her prior to 6 p.m. on 13 July. The paternal family was adamant in the evidence that they gave that no such injury occurred. The jury had the opportunity of considering that evidence and plainly rejected any suggestion that the injury had occurred prior to 6 p.m. We accept, of course, that Dr Tapp’s evidence would strongly have militated against the defence case, but on the new evidence before us a jury would conclude that it was clear that if Nicole had suffered the fatal injuries prior to 6 p.m. she would not merely have been cranky but also in great pain. There was no evidence of distress of that kind and therefore, although the pathological evidence before us was different, it would have made no material difference to a finding that the fatal injuries were not caused before 6 p.m. (iv) Lies and the confession Conclusion 58. We consider that the confession evidence was very strong. Shortly after arrest the appellant confessed separately in the presence of solicitors from two different firms. The first of those solicitors was called by the Crown at trial and gave evidence strongly rebutting the appellant’s explanation as to why he had confessed. The appellant did not repudiate his confession when interviewed in the presence of the second solicitor. Only in September 1997 did the appellant repudiate his confession. Subsequent to that, however, he wrote a series of letters from prison in which he clearly accepted that he was responsible for inflicting the fatal injuries on Nicole. It is also highly significant that, in his initial interviews the appellant had maintained the false account that he and Michelle had been together at home at the time of Nicole’s collapse, but when shown the evidence of the shop receipt proving that he had been alone with Nicole at the time, he confessed, having been caught out in a lie. Moreover, there was never any suggestion that he had tailored his confession to fit with the state of the medical evidence as made known to him. In our judgment, this is very compelling evidence and must have appeared so to any jury. The appellant never provided any satisfactory explanation for it. 59. Although the new evidence that has been placed before us does raise a different mechanism of causation, there is nothing in that new evidence which would lead us to conclude that if the new evidence had been before the jury at the trial they might have come to a different verdict. Whilst there is now evidence of a different mechanism of causation in terms of detail, this difference does not undermine the essential force and thrust of the appellant’s repeated confessions. In those circumstances, the appeal must be dismissed as we are satisfied that the safety of the conviction is not impugned.

2009_07_31-2045.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/1700/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/1700

81f9cc42fc78c2a2a4b715cbd83fd6fc0e069d256e749baa6e6600386e3c0f28

[2012] EWCA Crim 2

EWCA_Crim_2

crown_court

Neutral Citation Number: [2012] EWCA Crim 2 Case No: 2011/04258/C3 (1) 2011/03081/D1 (2) 2011/03115/C3 (3) IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM: (1)HH JUDGE SMITH (READING CC); (2) HH JUDGE METTYEAR (3) MR JUSTICE LLOYD JONES (1) T2010/7430; (2) T2010/7390-1; (3) T2010/7399 Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/01/2012 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE HENRIQUES and MRS JUSTICE GLOSTER DBE - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2012] EWCA Crim 2 Case No: 2011/04258/C3 (1) 2011/03081/D1 (2) 2011/03115/C3 (3) IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM: (1)HH JUDGE SMITH (READING CC); (2) HH JUDGE METTYEAR (3) MR JUSTICE LLOYD JONES (1) T2010/7430; (2) T2010/7390-1; (3) T2010/7399 Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/01/2012 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE HENRIQUES and MRS JUSTICE GLOSTER DBE - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - v - Clinton (1) Appellant And R Respondent -v- Parker (2) Appellant And R Respondent -v- Evans (3) Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M Birnbaum QC for Clinton (1) W Harbage QC for Parker (2) C Clee QC for Evans (3) A Edis QC for the Crown Hearing date: 25 th October 2011 - - - - - - - - - - - - - - - - - - - - - Judgment The Lord Chief Justice of England and Wales: Introduction 1. The difficulties of giving consistent effect to section 3 of the Homicide Act 1957 , which encapsulated in statutory form the common law defence of provocation, were notorious. As Professor David Ormerod observes in Smith & Hogan’s, Criminal Law, 13 th Edition, “For the appellate courts to fluctuate so often and so significantly on the interpretations of a defence in cases of such seriousness led to confusion and presented a disappointing spectacle”. This measured criticism is entirely justified. With effect from 4 October 2010 section 3 of the 1957 Act ceased to have effect. The ancient common law defence of provocation, reducing murder to manslaughter, was abolished and consigned to legal history books. 2. It was replaced by sections 54 and 55 of the Coroners and Justice Act 2009 ( the 2009 Act ) which created a new partial defence to murder, “loss of control”. Just because loss of control was an essential ingredient of the old provocation defence, the name is evocative of it. It therefore needs to be emphasised at the outset that the new statutory defence is self-contained. Its common law heritage is irrelevant. The full ambit of the defence is encompassed within these statutory provisions. Unfortunately there are aspects of the legislation which, to put it with appropriate deference, are likely to produce surprising results. 3. In order to enlighten our understanding our attention was drawn to different passages in the Report of the Law Commission (Report No. 290, Partial Defence as to Murder (2004), the Law Commission Consultation Paper No. 177, A New Homicide Act for England (2005) and the Law Commission Report No. 304 ( Murder, Manslaughter and Infanticide (2006). In July 2008 the Ministry of Justice issued its consultation paper in response to these recommendations, Murder, Manslaughter and Infanticide; proposals for reform of the law . Although the title of the Law Commission Report was adopted, its contents were selectively chosen. Looked at overall, the legislation does not sufficiently follow the recommendations of the Law Commission to enable us to discern any close link between the views and recommendations of the Law Commission and the legislation as enacted. 4. In these appeals the main focus of our attention is the controversial provision which relates to the impact on the “loss of control” defence of what is described as “sexual infidelity”. We looked, de bene esse, at the debates in Parliament prior to the enactment. Even on the most generous interpretation of Pepper v Hart , the debates did not reveal anything which assisted in the process of legislative construction. So we must ascertain the meaning of these provisions from their language. As we shall explain, however, the conclusion we have reached is consistent not only with the views which would have been expressed by those who were opposed to this provision in its entirety, but also with the views expressed by ministers responsible for the legislation during its passage through Parliament. The convictions 5. These are appeals against conviction for murder by: (a) Jon-Jacques Clinton was born in 1965. On 15 th November 2010 he killed his wife, Dawn Clinton, then aged 33 years, in the family home in Bracknell. On 23 rd May 2011, in the Crown Court at Reading before Her Honour Judge Smith, he was convicted of murder and arson. On the following day he was sentenced to imprisonment for life on count 1, with a specified minimum term of 26 years, less 187 days, for murder and to 2 years imprisonment concurrent on count 2. The verdict was returned by the jury after considering the partial defence of diminished responsibility. Judge Smith ruled that there was insufficient evidence of loss of control for that issue to be considered by the jury. The correctness or otherwise of this decision forms the basis for the present appeal. (b) On 26 th October 2010 Stephen Parker killed his wife, Jane Parker, in the family home in …. On 9 th May 2011, in the Crown Court at Hull before His Honour Judge Mettyear, the jury rejected the loss of control defence and convicted him of murdering his wife. He was sentenced to imprisonment for life. The specified minimum term was 17 years, less 196 days. (c) Dewi Evans killed his wife … on 11 th November 2010 in the matrimonial home in South Wales. On 29 th June 2011, in the Crown Court at Swansea before Mr Justice Lloyd Jones, again, the jury rejected the loss of control defence and he was convicted of murdering his wife. He was sentenced to imprisonment for life, with a minimum specified term of 11 years, less 248 days. The legislation The “loss of control” defence 6. Section 54 of the 2009 Act provides: “ Partial Defence to Murder: loss of control (1) Where a person (“D”) kills or is party to the killing of another (“V”), D is not to be convicted of murder if – (a) D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-control, (b) the loss of self-control had a qualifying trigger, and (c) a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D. (2) For the purposes of subsection (1)(a), it does not matter whether or not the loss of control was sudden. (3) In subsection 1(c) the reference to “the circumstances of D” is a reference to all of D’s circumstances other than those whose only relevance to D’s conduct is that they bear on D’s general capacity for tolerance or self-restraint. (4) Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge. (5) On a charge of murder, if sufficient evidence is adduced to raise an issue with respect to the defence under subsection (1), the jury must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not. (6) For the purposes of subsection (5), sufficient evidence is adduced to raise an issue with respect to the defence if evidence is adduced on which, in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply. (7) A person who, but for this section, would be liable to be convicted of murder is liable instead to be convicted of manslaughter. (8) The fact that one party to a killing is by virtue of this section not liable to be convicted of murder does not affect the question whether the killing amounted to murder in the case of any other party to it. ” 7. Section 55 provides: “ Meaning of “qualifying trigger” (1) This section applies for the purposes of section 54 . (2) A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies. (3) This subsection applies if D’s loss of self-control was attributable to D’s fear of serious violence from V against D or another identified person. (4) This subsection applies if D’s loss of self-control was attributable to a thing or things done or said (or both) which – (a) constituted circumstances of an extremely grave character, and (b) caused D to have a justifiable sense of being seriously wronged. (5) This subsection applies if D’s loss of self-control was attributable to a combination of the matters mentioned in subsections (3) and (4). (6) In determining whether a loss of self-control had a qualifying trigger – (a) D’s fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence; (b) a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence; (c) the fact that a thing done or said constituted sexual infidelity is to be disregarded. (7) In this section references to “D” and “V” are to be construed in accordance with section 54 .” 8. This is the “loss of control” defence in its entirety. Its components are set out in section 54(1) , as amplified in section 55 . There is however a further reference in the 2009 Act to the concept of loss of control. Section 2 of the Homicide Act 1957 , which dealt with the diminished responsibility defence, has been replaced by section 52 of the 2009 Act and, as with the law relating to provocation, the ingredients of the defence have changed. Its potential relevance to the issues under discussion is readily identified. There are cases, and Clinton was one, where the defences of loss of control and diminished responsibility will be raised in the same proceedings. The defence arises from an abnormality of mental functioning which “… (b) substantially impaired D’s ability to do one or more of the things mentioned in sub-section (1a) and … (1A) those things are - (a) to understand the nature of D’s conduct; (b) to form a rational judgment; (c) to exercise self-control. …” 9. The first feature of section 54 is that it identifies three statutory components (or ingredients) to the “loss of control” defence. We begin by emphasising that each is integral to it. If one is absent, the defence fails. It is therefore inevitable that the components should be analysed sequentially and separately. However, it is worth emphasising that in many cases where there is a genuine loss of control, the remaining components are likely to arise for consideration simultaneously or virtually so, at or very close to the moment when the fatal violence is used. Further, the discussion will proceed in terms which suggest that the defendant seeking to advance the loss of control defence is not always male. This is because experience shows that women as well as men kill when they have lost self control. In the legislation no special provision is made for the gender of the killer. Finally, by way of introduction, we do not overlook that the burden of disproof is on the prosecution. The first component 10. For present purposes, subsection 1(a), which addresses the first ingredient, is self explanatory. The killing must have resulted from the loss of self control. The loss of control need not be sudden, but it must have been lost. That is essential. Before reaching the second ingredient, the qualifying trigger, there is a further hurdle, that the defendant must not have been acting in a “considered” desire for revenge. The possible significance of “considered” arises in the appeal of Evans . In the broad context of the legislative structure, there does not appear to be very much room for any “considered” deliberation. In reality, the greater the level of deliberation, the less likely it will be that the killing followed a true loss of self control. The second component 11. The qualifying trigger provisions are self contained in section 55 . There is no point in pretending that the practical application of this provision will not create considerable difficulties. Sections 55(3) and (4) define the circumstances in which a qualifying trigger may be present. The statutory language is not bland. In section 55(3) it is not enough that the defendant is fearful of violence. He must fear serious violence. In subsection (4)(a) the circumstances must not merely be grave, but extremely so. In subsection (4)(b) it is not enough that the defendant has been caused by the circumstances to feel a sense of grievance. It must arise from a justifiable sense not merely that he has been wronged, but that he has been seriously wronged. By contrast with the former law of provocation, these provisions, as Mr Michael Birnbaum QC, on behalf of Clinton submitted, have raised the bar. We have been used to a much less prescriptive approach to the provocation defence. 12. Mr Birnbaum submitted, and we think correctly, that the defendant himself must have a sense of having been seriously wronged. However even if he has, that is not the end of it. In short, the defendant cannot invite the jury to acquit him of murder on the ground of loss of control because he personally sensed that he had been seriously wronged in circumstances which he personally regarded as extremely grave. The questions whether the circumstances were extremely grave, and whether the defendant’s sense of grievance was justifiable, indeed all the requirements of section 55(4)(a) and (b), require objective evaluation. 13. The process of objective evaluation in each individual case is hugely complicated by the prohibitions in section 55(6) which identifies a number of features which are expressly excluded from consideration as qualifying triggers. Thus the defendant, who, looking for trouble to the extent of inciting or exciting violence loses his control, does not qualify. In effect self induced loss of control will not run. The most critical problem, however, which lies at the heart of the Clinton appeal, is subsection 6(c), “sexual infidelity”. 14. This provision was described by Mr Andrew Edis QC, who acted for the prosecution in each of the appeals, as a “formidably difficult provision”: so indeed it is. On the face of the statutory language, however grave the betrayal, however humiliating, indeed however provocative in the ordinary sense of the word it may be, sexual infidelity is to be disregarded as a qualifying trigger. Nevertheless, other forms of betrayal or humiliation of sufficient gravity may fall within the qualifying triggers specified in section 55(4) . What, therefore, is the full extent of the prohibition? 15. We highlight some of the matters raised in argument to illustrate some of the potential problems. This list is not comprehensive. The forensic analysis could have gone on much longer, and so, for that matter, could this judgment. 16. We immediately acknowledge that the exclusion of sexual infidelity as a potential qualifying trigger is consistent with the concept of the autonomy of each individual. Of course, whatever the position may have been in times past, it is now clearly understood, and in the present context the law underlines, that no one (male or female) owns or possesses his or her spouse or partner. Nevertheless daily experience in both criminal and family courts demonstrates that the breakdown of relationships, whenever they occur, and for whatever reason, is always fraught with tension and difficulty, with the possibility of misunderstanding and the potential for apparently irrational fury. Meanwhile experience over many generations has shown that, however it may become apparent, when it does, sexual infidelity has the potential to create a highly emotional situation or to exacerbate a fraught situation, and to produce a completely unpredictable, and sometimes violent response. This may have nothing to do with any notional “rights” that the one may believe that he or she has over the other, and often stems from a sense of betrayal and heartbreak, and crushed dreams. 17. Mr Birnbaum drew attention to and adopted much of the illuminating and critical commentary by Professor Ormerod at pp.520-522 in Smith and Hogan’s Criminal Law. To begin with, there is no definition of “sexual infidelity”. Who and what is embraced in this concept? Is sexual infidelity to be construed narrowly so as to refer only to conduct which is related directly and exclusively to sexual activity? Only the words and acts constituting sexual activity are to be disregarded: on one construction, therefore, the effects are not. What acts relating to infidelity, but distinguishable from it on the basis that they are not “sexual”, may be taken into account? Is the provision directly concerned with sexual infidelity, or with envy and jealousy and possessiveness, the sort of obsession that leads to violence against the victim on the basis expressed in the sadly familiar language, “if I cannot have him/her, then no one else will/can”? The notion of infidelity appears to involve a relationship between the two people to which one party may be unfaithful. Is a one-night-stand sufficient for this purpose? 18. Take a case like R v Stingel [1990] 171 CLR 312 , an Australian case where a jealous stalker, who stabbed his quarry when he found her, on his account, having sexual intercourse. He does not face any difficulty with this element of the offence, just because, so far as the stalker was concerned, there was no sexual infidelity by his victim at all. Is the jealous spouse to be excluded when the stalker is not? In R v Tabeel Lewis … an 18 year old Jehovah’s Witness killed his lover, a 63 year old co-religionist, because on one view, he was ashamed of the consequences, if she carried out her threat to reveal their affair to the community. She was not sexually unfaithful to him, but he killed her because he feared that she would betray him, not sexually, but by revealing their secret. Mr Birnbaum asked rhetorically, why should the law exclude one kind of betrayal by a lover but not another? 19. Mr Edis agreed that “sexual infidelity” is not defined. He suggested that its ambit is not confined to “adultery” and that no marriage or civil partnership ceremony or any formal arrangement is required to render the violent reaction of the defendant to the sexual infidelity of the deceased impermissible for the purposes of a qualifying trigger. He suggested however that the concept of “infidelity” involves a breach of mutual understanding which is to be inferred within the relationship, as well as any of the more obvious expressions of fidelity, such as those to be found in the marriage vows. Notwithstanding their force, these considerations do not quite address the specific requirement that the infidelity to be disregarded must be “sexual” infidelity. The problem was illustrated when Mr Edis postulated the example of a female victim who decided to end a relationship and made clear to her former partner that it was at an end, and whether expressly or by implication, that she regarded herself as free to have sexual intercourse with whomsoever she wanted. After the end of the relationship, any such sexual activity could not sensibly be called “infidelity”. If so, for the purposes of any qualifying trigger, it would not be caught by the prohibition in section 55(6)(c) . In such a case the exercise of what Mr Edis described as her sexual freedom might possibly be taken into account in support of the defence, if she was killed by her former partner, whereas, if notwithstanding her disillusionment with it, she had attempted to keep the relationship going, while from time to time having intercourse with others, it could not. 20. Mr Birnbaum and Mr Edis could readily have identified a large number of situations arising in the real world which, as a result of the statutory provision, would be productive of surprising anomalies. We cannot resolve them in advance. Whatever the anomalies to which it may give rise, the statutory provision is unequivocal: loss of control triggered by sexual infidelity cannot, on its own, qualify as a trigger for the purposes of the second component of this defence. This is the clear effect of the legislation. 21. The question however is whether it is a consequence of the legislation that sexual infidelity is similarly excluded when it may arise for consideration in the context of another or a number of other features of the case which are said to constitute an appropriate permissible qualifying trigger. The issue is complex. 22. To assist in its resolution, Mr Edis drew attention to the formal guidance issued by the Crown Prosecution Service on this issue. This provides that “it is the issue of sexual infidelity that falls to be disregarded under sub-section (6)(c). However certain parts of the case may still amount to a defence under section 55(4) ”. The example is given of the defendant who kills her husband because he has raped her sister (an act of sexual infidelity). In such a case the act of sexual infidelity may be disregarded and her actions may constitute a qualifying trigger under section 55(4) . 23. This example is interesting as far as it goes, and we understand it to mean that the context in which sexual infidelity may arise may be relevant to the existence of a qualifying trigger, but in truth it is too easy. Any individual who witnesses a rape may well suffer temporary loss of control in circumstances in which a qualifying trigger might well be deemed to be present, although in the case of a rape of a stranger, insufficient to cause the defendant to have a sense of being seriously wronged personally. A much more formidable and difficult example would be the defendant who kills her husband when she suddenly finds him having enthusiastic, consensual sexual intercourse with her sister. Taken on its own, the effect of the legislation is that any loss of control consequent on such a gross betrayal would be totally excluded from consideration as a qualifying trigger. Let us for the purposes of argument take the same example a little further. The defendant returns home unexpectedly and finds her spouse or partner having consensual sexual intercourse with her sister (or indeed with anyone else), and entirely reasonably, but vehemently, complains about what has suddenly confronted her. The response by the unfaithful spouse or partner, and/or his or her new sexual companion, is to justify what he had been doing, by shouting and screaming, mercilessly taunting and deliberately using hurtful language which implies that she, not he, is responsible for his infidelity. The taunts and distressing words, which do not themselves constitute sexual infidelity, would fall to be considered as a possible qualifying trigger. The idea that, in the search for a qualifying trigger, the context in which such words are used should be ignored represents an artificiality which the administration of criminal justice should do without. And if the taunts by the unfaithful partner suggested that the sexual activity which had just been taking place was infinitely more gratifying than any earlier sexual relationship with the defendant, are those insults – in effect using sexual infidelity to cause deliberate distress - to be ignored? On the view of the legislation advanced for our consideration by Mr Edis, they must be. Yet, in most criminal cases, as our recent judgment in the context of the riots and public order demonstrates, context is critical. 24. We considered the example of the wife who has been physically abused over a long period, and whose loss of self control was attributable to yet another beating by her husband, but also, for the first time, during the final beating, taunts of his sexual activities with another woman or other women. And so, after putting up with years of violent ill-treatment, what in reality finally caused the defendant’s loss of control was hurtful language boasting of his sexual infidelity. Those words were the final straw. Mr Edis invited us to consider (he did not support the contention) whether, on a narrow interpretation of the statutory structure, if evidence to that effect were elicited (as it might, in cross-examination), there would then be no sufficient qualifying trigger at all. Although the persistent beating might in a different case fall within the provisions for qualifying triggers in section 55(4)(a) and (b), in the case we are considering, the wife had endured the violence and would have continued to endure it but for the sudden discovery of her husband’s infidelity. On this basis the earlier history of violence, as well as the violence on the instant occasion, would not, without reference to the claims of sexual infidelity, carry sufficient weight to constitute a qualifying trigger. Yet in the real world the husband’s conduct over the years, and the impact of what he said on the particular occasion when he was killed, should surely be considered as a whole. 25. We addressed the same issue in discussion about the impact of the words “things said” within subsection 55(6)(c). Everyone can understand how a thing done may constitute sexual infidelity, but this argument revolved around finding something “said” which “constituted” sexual infidelity. Mr Edis accepted that no utterance, as such, could constitute sexual infidelity, at any rate as narrowly construed. Professor Ormerod suggests the example of a defendant hearing a wife say to her lover, “I love you”. On close examination, this may or may not provide evidence of sexual infidelity. However it does not necessarily “constitute” it, and whether it does or not depends on the relationship between the parties, and the person by whom and to whom and the circumstances in which the endearment is spoken. It may constitute a betrayal without any sexual contact or intention. Mr Birnbaum raised another question. He pointed out that in the case of Clinton, Mrs Clinton confessed to having had an affair on the day before she was killed, but earlier she boasted that she had had sex with five men. If the boast, intended to hurt, was simply untrue, how could those words “constitute” infidelity? 26. We are required to make sense of this provision. It would be illogical for a defendant to be able to rely on an untrue statement about the victim’s sexual infidelity as a qualifying trigger in support of the defence, but not on a truthful one. Equally, it would be quite unrealistic to limit its ambit to words spoken to his or her lover by the unfaithful spouse or partner during sexual activity. In our judgment things “said” includes admissions of sexual infidelity (even if untrue) as well as reports (by others) of sexual infidelity. Such admissions or reports will rarely if ever be uttered without a context, and almost certainly a painful one. In short, the words will almost invariably be spoken as part of a highly charged discussion in which many disturbing comments will be uttered, often on both sides. 27. We must briefly return to the second example suggested by Professor Ormerod, that is the defendant telling his spouse or partner that he or she loves someone else. As we have said, this may or may not provide evidence of sexual infidelity. But it is entirely reasonable to assume that, faced with such an assertion, the defendant will ask who it is, and is likely to go on to ask whether they have already had an affair. If the answer is “no” there would not appear to be any sexual infidelity. If the answer is “yes”, then obviously there has been. If the answer is “no”, but it is perfectly obvious that the departing spouse intends to begin a full relationship with the new partner, would that constitute sexual infidelity? And is there a relevant distinction between the defendant who believes that a sexual relationship has already developed, and one who believes that it has not, but that in due course it will. Situations arising from overhearing the other party to a relationship saying “I love you”, or saying to the defendant, “I love someone else”, simple enough words, will give rise to manifold difficulties in the context of the prohibition on sexual infidelity as a qualifying trigger. 28. This discussion of the impact of the statutory prohibition in section 55(6)(c) arises, we emphasise, in the context, not of an academic symposium, but a trial process in which the defendant will be entitled to give evidence. There is no prohibition on the defendant telling the whole story about the relevant events, including the fact and impact of sexual infidelity. To the contrary: this evidence will have to be considered and evaluated by the jury. That is because notwithstanding that sexual infidelity must be disregarded for the purposes of the second component if it stands alone as a qualifying trigger, for the reasons which follow it is plainly relevant to any questions which arise in the context of the third component, and indeed to one of the alternative defences to murder, as amended in the 2009 Act , diminished responsibility. 29. We shall return to the question whether, notwithstanding that it must be disregarded if it is the only qualifying trigger, a thing done or said which constitutes sexual infidelity is properly available for consideration in the course of evaluating any qualifying trigger which is not otherwise prohibited by the legislation. The third component 30. Assuming that the qualifying trigger is present, the defence is still not complete. We must return from section 55 to section 54 (1)(c). This third ingredient is related to the requirement, that even faced with situations which may amount to a qualifying trigger, the defendant is nevertheless expected to exercise a degree of self control. For this purpose the age and sex of the defendant is relevant. Perhaps a very immature defendant will be less likely to be able to exercise the self control which might be exercised by an adult. The defendant’s reaction (that is what he actually did, rather than the fact that he lost his self control) may therefore be understandable in the sense that another person in his situation and the circumstances in which he found himself, might have reacted in the same or in a similar way. 31. For present purposes the most significant feature of the third component is that the impact on the defendant of sexual infidelity is not excluded. The exclusion in section 55(6)(c) is limited to the assessment of the qualifying trigger. In relation to the third component, that is the way in which the defendant has reacted and lost control, “the circumstances” are not constrained or limited. Indeed, section 54(3) expressly provides that reference to the defendant’s circumstances extends to “all” of the circumstances except those bearing on his general capacity for tolerance and self-restraint. When the third component of the defence is examined it emerges that, notwithstanding section 55(6)(c) , account may, and in an appropriate case, should be taken of sexual infidelity. 32. We must reflect briefly on the directions to be given by the judge to the jury. On one view they would require the jury to disregard any evidence relating to sexual infidelity when they are considering the second component of the defence, yet, notwithstanding this prohibition, would also require the same evidence to be addressed if the third component arises for consideration. In short, there will be occasions when the jury would be both disregarding and considering the same evidence. That is, to put it neutrally, counter intuitive. Diminished responsibility 33. The situation for the jury, and the judge, is yet further complicated if and when, as sometimes happens, the defence is inviting the jury to consider possible verdicts of manslaughter both on the grounds of loss of control and diminished responsibility. If the defendant is suffering from a recognised medical condition, for example, serious and chronic depression, the discovery that a partner has been sexually unfaithful may, and often will be said to, impair the defendant’s ability to form a rational judgment and exercise self control. This situation is not all that uncommon. It arose in Clinton where one of the psychiatrists suggested that if Clinton was telling the truth, the effect of his “depressed state” would have been that he would have been more likely to lose self control following his wife’s graphic account of sexual activity with other men and her taunts that he lacked the courage to commit suicide. Sexual infidelity may therefore require consideration when the jury is examining the diminished responsibility defence even when it has been excluded from consideration as a qualifying trigger for the purposes of the loss of control defence. Sexual infidelity – conclusion 34. We must now address the full extent of the prohibition against “sexual infidelity” as a qualifying trigger for the purposes of the loss of control defence. The question is whether or not sexual infidelity is wholly excluded from consideration in the context of features of the individual case which constitute a permissible qualifying trigger or triggers within section 55(3) and (4). 35. We have examined the legislative structure as a whole. The legislation was designed to prohibit the misuse of sexual infidelity as a potential trigger for loss of control in circumstances in which it was thought to have been misused in the former defence of provocation. Where there is no other potential trigger, the prohibition must, notwithstanding the difficulties identified earlier in the judgment, be applied. 36. The starting point is that it has been recognised for centuries that sexual infidelity may produce a loss of control in men, and, more recently in women as well as men who are confronted with sexual infidelity. The exclusion created by section 55(6) cannot and does not eradicate the fact that on occasions sexual infidelity and loss of control are linked, often with the one followed immediately by the other. Indeed on one view if it did not recognise the existence of this link, the policy decision expressly to exclude sexual infidelity as a qualifying trigger would be unnecessary. 37. In section 54(1)(c) and (3) the legislation further acknowledges the impact of sexual infidelity as a potential ingredient of the third component of the defence, when all the defendant’s circumstances fall for consideration, and when, although express provision is made for the exclusion of some features of the defendant’s situation, the fact that he/she has been sexually betrayed is not. In short, sexual infidelity is not subject to a blanket exclusion when the loss of control defence is under consideration. Evidence of these matters may be deployed by the defendant and therefore the legislation proceeds on the basis that sexual infidelity is a permissible feature of the loss of control defence. 38. The ambit of section 55(3) and (4) – the second component, the qualifying triggers – is clearly defined. Any qualifying trigger is subject to clear statutory criteria. Dealing with it broadly, to qualify as a trigger for the defendant’s loss of control, the circumstances must be extremely grave and the defendant must be subject to a justifiable sense of having been seriously wronged. These are fact specific questions requiring careful assessment, not least to ensure that the loss of control defence does not have the effect of minimising the seriousness of the infliction of fatal injury. Objective evaluation is required and a judgment must be made about the gravity of the circumstances and the extent to which the defendant was seriously wronged, and whether he had a justifiable sense that he had been seriously wronged. 39. Our approach has, as the judgment shows, been influenced by the simple reality that in relation to the day to day working of the criminal justice system events cannot be isolated from their context. We have provided a number of examples in the judgment. Perhaps expressed most simply, the man who admits, “I killed him accidentally”, is never to be treated as if he had said “I killed him”. That would be absurd. It may not be unduly burdensome to compartmentalise sexual infidelity where it is the only element relied on in support of a qualifying trigger, and, having compartmentalised it in this way, to disregard it. Whether this is so or not, the legislation imposes that exclusionary obligation on the court. However, to seek to compartmentalise sexual infidelity and exclude it when it is integral to the facts as a whole is not only much more difficult, but is unrealistic and carries with it the potential for injustice. In the examples we have given earlier in this judgment, we do not see how any sensible evaluation of the gravity of the circumstances or their impact on the defendant could be made if the jury, having, in accordance with the legislation, heard the evidence, were then to be directed to excise from their evaluation of the qualifying trigger the matters said to constitute sexual infidelity, and to put them into distinct compartments to be disregarded. In our judgment, where sexual infidelity is integral to and forms an essential part of the context in which to make a just evaluation whether a qualifying trigger properly falls within the ambit of subsections 55(3) and (4), the prohibition in section 55(6)(c) does not operate to exclude it. 40. We have proceeded on the assumption that legislation is not enacted with the intent or purpose that the criminal justice system should operate so as to create injustice. We are fortified in this view by the fact that, although the material did not assist in the construction of section 55(6)(c) , our conclusion is consistent not only with the views expressed in Parliament by those who were opposed in principle to the enactment of section 55(6)(c) but also with the observations of ministers who supported this limb of the legislation. 41. Thus, for example, on 3 March 2009, Angela Eagle, speaking for the Government, said that the Government did not believe that “sexual infidelity ought to be a sufficient reason to reduce a murder charge to a finding of manslaughter … we do not accept that that itself ought to lead to reducing a murder finding …” (our emphasis). 42. On 9 November 2009, Claire Ward, speaking for the Government, said that the Government did not think it appropriate in this day and age “for a man to be able to say that he killed his wife as a result of sexual infidelity … if other factors come into play, the court will of course have an opportunity to consider them, but it will not be able to make the decision exclusively on the ground of sexual infidelity”. Answering a later question, she observed that the court would not be able to “take into account a set of circumstances in which the defendant killed someone in an attempt to punish … them or carry out some form of revenge purely as a result of sexual infidelity”. Later still she said “We are simply saying that sexual infidelity in itself cannot and should not be … a defence for murder”. Yet later she spoke of how important it was in relation to sexual infidelity “to set out the position precisely and uncompromisingly – namely that sexual infidelity is not the kind of thing done that is ever sufficient on its own to found a successful plea of loss of control”. Later she observed: “If something else is relied on as the qualifying trigger, any sexual infidelity that forms part of the background can be considered, but it cannot be the trigger”. (Our emphasis). This was the consistent pattern of her observations. 43. In the House of Lords, Lord Bach on 26 October 2009, speaking for the Government, invited opponents of the prohibition in section 55(6)(c) to explain “why they consider that, when one person kills another, the fact that the deceased had been unfaithful to their killer should ever be enough …”. Shortly afterwards, on 11 November 2009, he suggested that opponents of the provision were implicitly arguing that the defendant “should be able to make out a partial defence based on sexual infidelity, in and of itself , on the part of the victim. We simply do not agree…” (Our emphasis.) 44. Our approach to the legislative structure is entirely consistent with these responses. The responsibilities of the judge (a) at the conclusion of the evidence 45. One of the responsibilities the trial judge in the context of the new defence is defined. Unless there is evidence sufficient to raise the issue of loss of control it should be withdrawn from consideration by the jury. If there is, then the prosecution must disprove it. In this context “sufficient evidence” is explained by reference to well understood principles, that is, that a properly directed jury could “reasonably conclude that the defence might apply”. In reaching this decision the judge is required to address the ingredients of the defence, as defined in section 54 and further amplified in section 55 . There must be sufficient evidence to establish each of the ingredients defined in subsections 54(1)(a),(b) and (c), and this carries with it, evidence which satisfies the test in subsections 55(4)(a) and (b). In making the decision in accordance with the principles identified in this judgment the judge must exclude the specific matters which might otherwise be regarded as constituting possible justification in section 55(c)(b) and the express conditions to be disregarded in accordance with section 55(6)(a) and (c). In the end however, although the judge must bear these different features in mind when deciding whether the case should be left to the jury, and the task is far from straightforward, these statutory provisions reflect well established principles summarised in the phrase “the evidential burden”. Sufficient evidence must be adduced to enable the judgment to be made that a jury could reasonably decide that the prosecution had failed to negate the defence of loss of control. 46. This requires a common sense judgment based on an analysis of all the evidence. To the extent that the evidence may be in dispute, the judge has to recognise that the jury may accept the evidence which is most favourable to the defendant, and reject that which is most favourable to the prosecution, and so tailor the ruling accordingly. That is merely another way of saying that in discharging this responsibility the judge should not reject disputed evidence which the jury might choose to believe. Guiding himself or herself in this way, the more difficult question which follows is the judgment whether the circumstances were sufficiently grave and whether the defendant had a justifiable grievance because he had been seriously wronged. These are value judgments. They are left to the jury when the judge concludes that the evidential burden has been satisfied. 47. When exercising these responsibilities, the judge is not, where there is no sufficient evidence to leave the loss of control defence to the jury, directing a conviction in the sense prohibited in Wang [2005] 1WLR 66 . The statutory provision is clear. If there is evidence on which the jury could reasonably conclude that the loss of control defence might apply, it must be left to the jury: if there is no such evidence, then it must be withdrawn. Thereafter in accordance with the judge’s directions the jury will consider and return its verdict. 48. The appeals of Clinton and Parker highlight these difficulties. In Clinton the defence was not left to the jury and it is argued that it should have been. In Parker the defence was left to the jury, and certainly had the prosecution suggested that the defence should be withdrawn, the judge might have felt it necessary to withdraw it from the jury. (b) The Summing Up 49. Confining ourselves to the second component (the qualifying trigger or triggers under section 55 ), for the reasons already given, if the only potential qualifying trigger is sexual infidelity, effect must be given to the legislation. There will then be no qualifying trigger, and the judge must act accordingly. The more problematic situations will arise when the defendant relies on an admissible trigger (or triggers) for which sexual infidelity is said to provide an appropriate context (as explained in this judgment) for evaluating whether the trigger relied on is a qualifying trigger for the purposes of subsection 55(3) and (4). When this situation arises the jury should be directed: a) as to the statutory ingredients required of the qualifying trigger or triggers; b) as to the statutory prohibition against sexual infidelity on its own constituting a qualifying trigger; c) as to the features identified by the defence (or which are apparent to the trial judge) which are said to constitute a permissible trigger or triggers; d) that, if these are rejected by the jury, in accordance with (b) above sexual infidelity must then be disregarded; e) that if, however, an admissible trigger may be present, the evidence relating to sexual infidelity arises for consideration as part of the context in which to evaluate that trigger and whether the statutory ingredients identified in (a) above may be established. Jon-Jacques Clinton 50. We shall summarise the facts very briefly, and then describe them in much greater detail. Mr and Mrs Clinton had lived together for 16 years. They had two children of school age. They married in 2001. Two weeks before her death, the appellant’s wife had left him and the children of the family as they began what was described as a trial separation. She went to live with her parents. The couple continued to spend time together with the children as a family, and their mother would return to the family home to look after them on their return from school until the appellant returned home from work. 51. Mrs Clinton spent time in the family home on Saturday 13 th November, and they went swimming and ate dinner together as a family on the next day. On that day Mrs Clinton told the appellant that she was having an affair. 52. That evening Mrs Clinton’s Land Rover or Jeep (her most treasured possession) was stolen from outside her parent’s home. On the following morning it was found in a burnt out condition. The jury was satisfied that the appellant was responsible for the removal and damage to the car. He was contacted by the police on the morning when the vehicle was found. He went over to see Mrs Clinton at her parent’s home to tell her of the incident, and during a brief visit, arrangements were made for her to return to the family home to collect insurance documents relating to the vehicle. During the morning the appellant consumed drink and drugs, including a large amount of Codeine and he searched websites containing material dealing with suicide. 53. Mrs Clinton was dropped at the family home by her mother at about 14.00 hours. When her mother returned at 15.40 she found that the curtains were drawn and the door was barricaded. Police attended at about 17.10. They forced the front door. They found the body of Mrs Clinton on the living room floor semi naked. She had obvious head injuries. There was a ligature around her neck. She was pronounced dead. The appellant was found in the loft with a noose around his neck attached to the rafters. 54. The deceased had been beaten about the head with a wooden baton, strangled with a belt, and then a piece of rope had been tightened around her neck with the aid of the wooden baton. There were defensive injuries. The cause of death was head injury and asphyxia caused by a ligature compression of the neck. After he had killed her the appellant removed most of her clothes and having put her body into a number of different poses, took photographs of it and then sent text messages to Mr Montgomery, the man with whom she was having a relationship. 55. The prosecution case was that the appellant had set fire to the Land Rover out of spite and then, incensed when he found out that she was conducting an affair with another man, he had confronted her at the family home in the afternoon of 15 th November. He had planned to kill her before she arrived at the house and had made preparations to do so. During the confrontation he beat her and strangled her to death. At a plea and case management hearing the appellant pleaded guilty to manslaughter, but not guilty to murder. Although responsible for his wife’s death, either on the basis of “loss of control” or “diminished responsibility”, he was not guilty of murder. 56. We shall narrate the facts in more detail. 57. By the autumn of 2010 the couple were seriously overdrawn at the bank and dependent on Mrs Clinton’s earnings once the overdraft limit had been reached, as it normally was, by the middle of the month. The appellant had a history of depression for which he was prescribed medication and Mrs Clinton herself was prescribed anti-depressants. Their teenage children gave evidence of some of the tensions between them. By mid-September 2010, via Facebook, Mrs Clinton had come to know another man. A relationship developed between them. 58. In early November Mrs Clinton moved out of the family home to the home of her mother, leaving the children in the family home. After her departure there was evidence that the appellant’s behaviour became more erratic. The appellant was desperate for his marriage to work, and eventually become “obsessional” about it. He mentioned to the mutual friend on 12 th November in an email his suspicions that his wife was having an affair. She was worried that he would try and kill himself. On 13 th November he indicated that his son had told him that his wife had put an entry on her Facebook page which read “bollocks to it all”. On the following day they went swimming together and that evening the vehicle was stolen from outside Mrs Clinton’s mother’s home. The following morning it was found, significantly damaged. The appellant expressed concerns about how his wife would react to the news of the fire. Together with a police officer he went to her mother’s home and saw her. He did not apologise for what had happened to the vehicle and, as we know, he was later to insist that he was not responsible. The evidence suggested that the appellant appeared to be concerned and gave his wife a hug. Indeed her mother said that he was all over her like a rash and kissing her, but, as her mother could see from her reaction, she did not want him. 59. Following earlier searches of suicide websites at the end of October, the appellant recommenced his searches on 14 th November continuing them through to the 15 th . Among the searches shown in a schedule before the jury there were entries referring to “sleeping pills” and “how to hang yourself” and “the best suicide methods”. From early in the morning of 15 th November he also accessed various sites including sites on which he and his wife had formerly posted photographs of themselves, his wife’s Facebook site, and a website which had been set up by Mr Montgomery called “Fast as Fuck”. At 12.10 he visited his wife’s Facebook site and at about 12.30 he returned to look at suicide sites. At 12.58 on 15 th November the appellant received a telephone call from his wife which lasted just over 1 minute 30 seconds. At 13.12 he composed a “note to everyone”. The Crown suggested that it showed an intention to kill himself and his wife, but his case was that it was a suicide note. At 13.31 he texted the mutual friend to say that he had asked his wife to come round “so we could tell the kids two bits of bad news”. He said that he had been drinking and had had a very bad night’s sleep. His voice was shaking and he sounded shattered and exhausted. She told him to calm down. He said that they would tell the children that the separation would be permanent. He was expecting his wife to arrive at 2 o’clock. 60. At 13.07 Mrs Clinton sent a text message to the appellant asking him to text the children to let them know he would collect them from school. He did this at 13.10. 61. Mrs Clinton’s mother dropped her off at the family home at about 2pm. At 14.24 the appellant sent a message to his daughter telling her that there had been a change of plan and they were to go to their Grandmother’s house. At 14.42 an unanswered telephone call was made from Mrs Clinton’s mobile phone to a man called Nick whose number was stored in her “contacts list” and text was sent to Mr Montgomery at 14.47 and 14.49 which read respectively “Cunt” and “It’s over”. At 15.20 a further text message from Mrs Clinton’s phone to Mr Montgomery comprised a jumble of letters which made no sense. By not later than 14.51 Mrs Clinton was dead. At that time and again at 14.59 explicit photographs of her naked body had been taken on her mobile phone. All this material was relied on in support of the Crown’s case that the appellant was acting out of a desire for revenge. 62. Following the visit by Mrs Clinton’s mother to the family home at about 3.40 the police were called and in due course forced the front door. They found Mrs Clinton’s body in the living room. We have described her injuries. They found the appellant in the loft with a rope round his neck attached to the rafters. He said “it’s the voices in my head”. His voice was slurred. He said he had been drinking all day. He said his children’s names were “cunt and cunt”. Following his arrest he told a doctor that he had taken 22 Cocodemal and 15 Phenagan tablets and that he wished he was dead. A subsequent toxicology report suggested that the drugs had been taken after the death of the deceased. 63. On “loss of control” the appellant’s evidence was critical. After dealing with background matters he said that from the end of 2009 financial difficulties had imposed a strain on the relationship between him and his wife. From March 2010 her interest in him and their children dwindled and he suggested that she had become “tarty” and “slutty” in her behaviour and there was increasing tension at home. He himself was much less tolerant and often angry. He had lost his libido. He felt a failure at work and was prone to tears. He suffered depression. He saw his doctor, and after taking medication, there was some improvement in the relationship. However by September she was drawing away from him and becoming angry with the children. At work things were “ramping up”. 64. On 30 th October Mrs Clinton told him she needed time out. They agreed on a trial separation for 4 weeks. He had searched suicide sites and was contemplating suicide as one option, and later “it became more serious”, although by 14 th November he still had some hope. When cross-examined he explained that Mrs Clinton had caught him looking at suicide sites and told him not to be stupid. She would only be gone for a month. She said that she needed time out of the relationship. She had been prescribed anti-depressant tablets herself. 65. On 13 th November they met and for the sake of the children discussed going to Relate. Although he didn’t think that she was genuine she had to go, and this gave him some hope. On the 14 th the family went swimming. On their return to the family home he showed her a note he had written on his computer. In the note he had said that he now knew that she would not be coming back which was something he had feared for a long time. He expressed a fear about how he and the children would manage when she had gone. He wrote “where will we live, how will we live”? It went on, “there is so much underneath in both of us just bubbling away your fear, mine, add our finances, my bullying, the kids getting a bit older, you wanting freedom, me getting suspicious … a lot of it is my fault but we both had our parts to play. We all need to move on now. Don’t we?” 66. He gave evidence that his wife told him about her affair. When she did so, she was upset and crying, and they agreed to meet the next week to discuss how they would tell the children. He realised that his marriage was over. 67. On 15 th November he obtained access to her Facebook, and he viewed Mr Montgomery’s website via a link from her website. After taking the children to school he “tortured himself” by looking at the photographs they had posted on the internet site and he visited Mrs Clinton’s Facebook site. He found messages containing sexual innuendos. She had made an entry on the date of their daughter’s birthday in February about wanting to be “poked”. Her “status” was shown as “separated” and “open to offers”. At about 12.30 he looked at some sexual images which confirmed that Mrs Clinton had been unfaithful to him. 68. By the time she arrived at the family home at about 14.00 he had taken 80mg of Codeine and about a quarter of a bottle of brandy. When she arrived he made a cup of tea. They sat on the sofa in the living room. She went to the kitchen for more milk and when she came back she was holding a piece of wood. She said “did you fucking do that to Fred?” They were both agitated. She was tearful. Although he knew what she had been doing he asked her what was going on and she said “there’s nothing going on. You’re fucking paranoid”. He then touched the cursor on the laptop and looked at her Face book page and said “how could you do that at half term and go shagging other people?” She became very spiteful and said “it should have been like that every day of the week” and that she had had sex with five different men. She gave details about the sexual activity saying that they had come inside her. The appellant said that this was deeply hurtful. 69. She asked him whether he had done the damage to Fred. He denied it. She came back to the room holding a piece of wood, which was kept in the house, and she asked again whether he’d damaged the car telling him to “tell me the truth now”. He stood up and said “how dare you fucking talk to me about the truth”, and he took the piece of wood off her. There was no struggle. She had just been pointing it at him. When he took it off her, that was quite easy. He was angry and hurt when she asked him to tell the truth because “for months he had been asking her to tell him the truth of what was going on”. He put the piece of wood down. She sat down. He went into the kitchen. While she was sitting down she was still a little bit agitated and so was he, and, in effect, for distraction purposes, he asked how her mother’s shoulder was. 70. They were sitting on the sofa. After some conversation about the police and the vehicle he said “look we need to discuss things”. He realised that the relationship was over. To say he was quite upset was an understatement. He had been open and honest with her, and he wanted her to be the same with him so that he could realise that it “wasn’t 17 years of a bloody sham”. So he asked her, as he’d asked her many times before what was going on. She said “nothing. I’ve told you before, “it’s you, you’re fucking paranoid. There is nothing going on.” With that he touched the cursor thing on the laptop and it showed her Face book page through their son’s log in. Her Face book page came up on the screen. He said “well it’s all there, you know. I’ve looked on it. I know what you’ve been up to. How could you leave them at half term, as you did, and go shagging other people leaving them?” With that she became, “very spiteful”. He had never seen her like that. It was “like she was another person”. She said either “it could have been” or “should have been everyday of the fucking week”. He took that to mean that there were “five different people, Monday to Friday”. He went on “like I say, I’ve never, ever, ever, ever seen her behave like that. She’s never – it was just pure – it was said with such pure hatred. I can’t explain it”. 71. At that point they stood up. He was getting angry but he didn’t want a confrontation. He wanted “a bit of open honesty so that he could make sense of what she was throwing away, why we were throwing away 17 years of a relationship”. 72. He walked towards the kitchen thinking that he would calm down and have a cigarette. He didn’t want the confrontation. As he was walking towards the kitchen she turned round and “started giving me some graphic details of sexual acts that had, in the past, formed part of our kind of role play stuff, about other men, her with other men, she wanted me to watch, etc. etc. – it was in a different context now and it wasn’t very nice, obviously, hearing your wife talking about up to 5 different people having sex with her. I didn’t want to go into detail, but it was very very graphic”. 73. He had never seen her like that before. She was “almost in a rage”. It seemed “to build up and up and up, it didn’t seem like she was going to stop this kind of thing.” “She was talking, more or less but in a much sort of gruffer, I guess deeper voice than she would do normally. So it wasn’t really a shout, but it was – I mean … she obviously raised her voice as she was giving me the graphics of it”. 74. He was asked how long this had gone on for and he said that he couldn’t rightly remember. He went into the kitchen, and after pouring another brandy and coke, and perhaps having a swig of Codeine he had a cigarette. He started smoking it. He didn’t want to go back into the living room because his wife was angry and he could feel that he was getting angry too. While he was in the kitchen there was no conversation. He took control of himself to calm down. He smoked a cigarette and had a drink to calm himself. 75. When he returned into the living room, there was some conversation about what they would tell the children. There was no point in carrying a conversation about her infidelity, “as much as it hurt me, we needed to talk about the children”. He told her that he was scared that he wouldn’t have enough money to feed them. He was concerned about finances. She “sort of sighed” and said something like “it won’t be fucking easy for me either”. He had never seen her talk like that before. He said “How could you do that on your daughter’s birthday?” He then realised he’s made a mistake in bringing the conversation back to her affairs, but he probably said it in response to her. He heard her kind of snigger. He was not looking at her and she was not looking at him. He heard her snigger and “sought of almost like laugh”, and then she said “you haven’t got the fucking bollocks”. I thought “what?” so I turned round and looked. “She’d gone on to one of the pages I’d minimised, suicide sites, the hanging rope”. She then went on “it would have been easier if you had, for all of us”. He never ever seen “my Dawnie like that”. He felt “useless, awful, confused and fearful. And then she became very angry saying that she’d done her bit with the children. She said “I didn’t fucking sign up for this. You have them. You look after them”. He said it was horrible. His wife was a different person “it was like she was somebody else”. With that the walls and the ceiling just seemed to close in. She was talking but he could not hear what she was saying. He could see her mouth opening and closing. He could hear a noise, like the distant sea. He wanted everything to stop. He wanted everything to slow down. He then reached out and grabbed the piece of wood. The attack on her followed. 76. At the conclusion of the evidence Judge Smith directed herself that there was no evidence that the loss of self-control necessary for the purposes of this defence was due to one of the qualifying triggers identified in the statute. She was required “specifically” to disregard anything said or done that constituted sexual infidelity. The remarks allegedly made by the wife, challenged about her infidelity, to the effect that she had intercourse with five men were to be ignored. Removing that element of that evidence, what was left was the evidence when the wife saw that the appellant had visited the suicide site on the internet, she commented that he had “not the balls to commit suicide” and that she also said, so far as the future was concerned, that he could have the children who were then currently living with him at their home. The judge observed that she could not see that the circumstances were of an extremely grave character or that they would cause the defendant to have a justifiable sense of being seriously wrong. On this issue no sufficient evidence had been adduced. She could not find that a jury properly directed could reasonably conclude that the defence might apply. In due course she proceeded to her summing up, leaving diminished responsibility for the consideration of the jury. 77. In addressing these problems, Judge Smith did not have the advantage of the careful and detailed submissions made to us by leading counsel on behalf of the appellant and the Crown. On the basis that the remarks made by the wife had to be disregarded, her conclusion that the defence should be withdrawn from the jury was unassailable. In context, it was a characteristically courageous decision. For the reasons we have endeavoured to explain in this judgment, we have concluded that she misdirected herself about the possible relevance of the wife’s infidelity. We have reflected whether the totality of the matters relied on as a qualifying trigger, evaluated in the context of the evidence relating to the wife’s sexual infidelity, and examined as a cohesive whole, were of sufficient weight to leave to the jury. In our judgment they were. Accordingly the appeal against conviction will be allowed. 78. In the circumstances of this case, we shall order a new trial. The issues should be examined by a jury. R v Steven Parker 79. The appellant and his wife, Jane, were both in their mid twenties at the date of her death. They had been in a relationship for some 10 years, and they were married for the last 4 years. They had three children together. 80. During their marriage the appellant had a number of affairs, and his wife had a brief sexual relationship with another man. The appellant was unaware of this until after her death. During the year prior to her death she had confided in close friends and family that she was unhappy in her marriage and was seeking to separate from the appellant. She planned to leave him after the October half-term holiday in 2010, although she had not told the appellant. 81. On the night of 26 th October 2010 in the course of an argument between them, he inflicted what was described as a “fat lip” on her. On the following afternoon while she was at an activity centre with her children, Mrs Parker sent a text message to the applicant who was at home. Ignoring the text language it reads as follows: “I’m sorry, Steve. I will always love you but you have hurt me too much now. I’ve never forgived you for Claire, so think it’s time for us to separate. Pack your stuff while I am here so kids don’t see it all. And I’ll drop car off in a bit for you to put your stuff in and go. Nothing you say or do will change my mind. x” 82. On leaving the activity centre her brother-in-law accompanied her to the matrimonial home. They arrived at the house between 15.54 and 15.58. Mrs Parker went into the house. The appellant locked the back door. Her brother-in-law was told to wait outside. Within a short period of her entering the house, the precise length of which was in dispute, Mrs Parker was attacked and repeatedly stabbed by the appellant. Her brother-in-law heard her screams and broke into the house. He wrestled the appellant off her and summoned the emergency services. Paramedics and the police arrived. 83. The deceased was found dead at the scene. It later emerged that the deceased had suffered 53 separate stab wounds to the body, which varied in severity, but also included 5 stab wounds to the neck, shoulder and face. There were superficial incised and stab wounds to the body, with defence incised wounds to the hands. The cause of death was blood loss from the stab wounds to the neck. 84. The appellant was arrested outside the house. After her brother-in-law had pulled him off Mrs Parker, he had become compliant with whatever he was told to do. He waited outside for the emergency services and on a number of occasions said he was very sorry for what had happened. He had scratches the length of his left arm which appeared to be self inflicted, and a heart and the initials JP (his wife’s initials) scratched onto his chest. 85. Investigating officers recovered a letter from the lounge floor addressed to Mrs Parker. In it the appellant declared his love and pleaded to her not to leave him. An open family photograph album and photographs were found on the bed in an upstairs bedroom. Two knives were recovered from the scene, a large kitchen knife and a shorter knife, the tip of which was missing, which was discovered under the deceased’s body. 86. In interview the appellant exercised his right to silence. He produced a prepared note which explained that his decision to do so was made on the basis of legal advice. It is clear from the tape recording that throughout the interview he was sobbing. The appellant admitted that he was responsible for the fatal injuries. 87. The case for the prosecution was straightforward. The appellant had decided to kill his wife before she arrived at the house and that this was why he asked her brother-in-law to remain outside. The crown alleged that he had locked the back door of the house. He had placed knives close to hand in preparation for the attack, which started almost as soon as she entered the house. The appellant was jealous and controlling and he resented Mrs Parker’s newly found confidence and ambition, and, although not habitually violent, he was capable of being violent towards her, as indeed he had been on the previous night. He was guilty of murder. 88. The defence case was that the appellant was guilty of manslaughter, but not murder, on the basis of “loss of control” within the 2009 Act . There was no pre-planning and that the loss of control resulted from a combination of the contents of the text message demanding that he leave the family home, which it was said came as a “bolt from the blue”, and from what she said to him and her manner when she returned to the house, and his realisation that she would have the children and that she had been planning this for a while with other people behind his back. 89. The appellant was a man of previous good character. In evidence he described various problems in the relationship at an earlier stage, but by 2010 he thought the relationship was in good order. He knew nothing of any relationship in which she had become involved. 90. The argument on the evening of 26 th October was about money. He said that he pushed her out of frustration as he walked past. The cup struck her in the mouth. He didn’t realise she had an injury, and didn’t mean to hurt her. She chucked it at him and its contents went everywhere. He cleared it up. He apologised. They had sexual intercourse together that night. 91. On the following morning she took him to work and then went with the children. They had a disagreement via text messages as to whether he had apologised for the incident the previous night, but he still thought that everything was all right between them. She collected him from work because he was unwell, dropped him off home, and then went back to the children. 92. The text message came as a “bolt from the blue”. He was devastated. He used the small knife which was later found under Mrs Parker’s body to self harm, scratching his left forearm repeatedly but not deeply. He scored a love heart onto his ribs. He wrote a non-threatening letter to his wife, professing his love for her. He was really upset, distressed and crying, and not thinking clearly. He had never self harmed before. 93. He said that he put that knife down in the kitchen and went upstairs to pack his belongings. He felt that he had no choice. He looked through a family photograph album which he happened to come across, and became increasingly upset. He texted her asking how long she would be. He wanted to be able to tell her that he loved her. 94. When she returned home, the car pulled up without the children. He realised it was all over between them, and that her actions had been pre-planned. He remembered going to the back door, but did not recall opening it or asking her brother-in-law to give them a minute, nor did he recall locking the back door, although he accepted that he must have done. Mrs Parker walked passed him into the kitchen. He followed and pleaded with her not to leave. He said that he loved her. With a smug look on her face she said that she did not love him anymore. He then lost it. 95. He said that he was upset and he “snapped “and lashed out at her. He said that he did not recall doing it. He could not recall if he used the small knife. He had no recollection of the large knife or of the attack itself. The next thing he could recall was his brother-in-law with his arm around his neck shouting at him to drop the knife. 96. We must briefly address a distinct further submission on appeal. During the course of the Crown’s case, the prosecution sought leave to introduce hearsay evidence from friends and family about the background to the relationship and events which led up to Mrs Parker’s death. This included evidence of violence by the appellant directed at his wife. The crown suggested that this was admissible hearsay and admissible as bad character evidence under section 101(1)(c) as important explanatory evidence within the ambit of section 102 of the Criminal Justice Act 2003 . 97. Although it was accepted at trial that a number of different categories of evidence could be put before the jury by consent, the main contention was that the evidence of previous incidents of violence should be excluded. The level of violence described by the witnesses did not provide any real explanation for the level of violence which occurred on the afternoon of Mrs Parker’s death. There was a dispute about some of the details, and this would lead to satellite litigation. 98. The judge ruled that evidence of the appellant’s bad behaviour to his wife, including the occasional use of violence, was relevant to the prosecution case not least because it made it more likely that the crown’s submission as to the truth of events which occurred on 27 th October was correct. It was relevant, and unless there were reasons for it to be excluded, it should be admitted. Although hearsay, it was admissible pursuant to section 116 of the 2003 Act , and the judge was satisfied that it was in the interests of justice that the evidence should be put before the jury. In relation to the admissibility of bad character evidence he held that in principle it was admissible. To exclude it would deprive the jury of important explanatory evidence and leave them with only the appellant’s version of the background. This would convey an unreal impression of the facts, and make it difficult for the jury to grasp the issues in the case. Although he specifically excluded passages of the evidence from two witnesses, in general terms he agreed with the crown’s submissions. 99. This ground of appeal arises from a straightforward ruling which, when examined in the factual background, causes us no concern. It is further suggested that the judge gave inadequate directions to the jury about how this evidence should be approached. We are equally untroubled. 100. The main ground of appeal arises from the way in which the judge directed the jury on the loss of control issue. It is suggested that he failed to direct them adequately about the burden of proof, wrongly implying that the burden rested on the defendant. Alternatively, the summing up on these issues was unclear and confusing and had the effect of reversing the burden of proof. 101. The criticisms of the judge’s directions to the jury begin with his assertive failure to tell them what a “loss of control” was, and what it amounted to, and the jury’s attention was not drawn to all relevant matters in a coherent way. 102. Judge Mettyear began his directions to the jury in unequivocal terms. The burden of proof rested on the prosecution. It “always, always rests” on the prosecution and never shifts. The Crown had to prove all the elements of the offence. The standard to be reached was that the jury had to be sure of guilt. The directions were given in unequivocal terms. 103. In his route to verdict (which was agreed by both counsel at trial), the judge directed the jury: “The defendant has admitted unlawful killing of his wife Jane Parker. He is, on the facts of this case guilty of murder unless the killing resulted from his loss of self control”. Question 1. When he stabbed Jane had he lost self control? If you are sure he had not lost his self control your verdict must be guilty of murder and you should proceed no further. Otherwise go to the next question. Question 2. Was the defendant’s loss of self control caused by a qualifying trigger? (note. The qualifying triggers are things which you find to be said or done by Jane individually or in combination which a. constitute circumstances of an extremely grave character and b. which caused the defendant to have a justified sense of being seriously wronged. You should look at the whole of the evidence relating to the relationship between them including the events of the 27 th October, when judging whether things said or done by Jane constituted circumstances which caused the defendant to have justifiable sense of being seriously wronged. If you are sure that his loss of self control was not caused by a qualifying trigger or triggers then your verdict must be guilty of murder and you should proceed no further. Otherwise go on to the next question. Question 3. Might a man of the defendant’s age with a normal degree of tolerance and self restraint have reacted in the same or in a similar way to the way that the defendant reacted? If you are sure that such a person would not have reacted in the same or similar way to the defendant then your verdict must be guilty of murder. If you think such a person might have reacted in the same or a similar way your verdict must be not guilty of murder but guilty of manslaughter. 104. We have examined the document, and the judge’s oral directions. On this particular point, taken in isolation, the answer to the second question could have been more felicitously expressed in relation to the burden of proof. However that may be, the remainder of the directions to the jury were impeccable. In particular, the references in the route to verdict plainly put the burden of proof where it rested. It carefully isolated the three ingredients of the “loss of control” defence. We have examined the criticisms of the summing up with care. We can discern no unfairness or lack of balance. It fairly reflected the available evidence. The defence was put before the jury in careful detail. We cannot identify any reason for concluding that this conviction was unsafe. 105. Before leaving the conviction appeal we propose to add one further observation. The judge was not invited to withdraw the “loss of control” defence from the jury. With our increased understanding of the differences between the loss of control defence and the former provocation defence, we anticipate that such a submission would now be raised by the Crown for the judge to consider. He might well have concluded that the matters relied on by the appellant could not reasonably be treated by any jury as circumstances of an extremely grave character which caused him to have a justifiable sense that he had been seriously wronged. 106. The appeal against conviction is dismissed. We were invited to give leave to appeal against sentence. The submission that the sentence was manifestly excessive is unarguable. The judge carefully weighed the essential features of the case and, bearing in mind the provisions of Schedule 21, reached a conclusion which cannot be criticised. R v Dewi Evans 107. The applicant was a man of good character, aged 61 years at trial. He had been married to his wife …, … for 41 years. They had adult children, and grandchildren. 108. On 11 th November 2010 the appellant inflicted stab wounds to his wife’s neck and killed her. 109. The prosecution case was that she was murdered because she told her husband that she was going to leave him. The defence case was that Mrs Evans had stabbed the appellant before he stabbed her, and when he did stab her he had lost his self control. The crown’s case was that wounds found on the appellant after the fatal attack were self inflicted, but that in any event, when stabbing his wife, he had acted out of revenge and not through any loss of control. 110. The question raised in this appeal is whether the judge properly directed the jury as to the meaning of the words in section 54(4) of the 2009 Act , “acted in a considered desire for revenge”. 111. For the children of this couple, this trial must have been an ordeal. Their son gave evidence about his father’s gentleness. He never lost his temper or raised his voice. It was his mother who told them off. He accepted that his mother had a bit of a temper. He had never seen her act violently towards him, although she had told him that on one occasion she had slapped his father. He thought that when he was growing up his parents had a brilliant relationship. Their daughter also described a happy loving relationship, at any rate until an incident in 2004, when the appellant found the dead body of his neighbour. Thereafter he became totally different, very lazy and unmotivated, and much quieter, reliant for everything on his wife. She tried to help him, but gradually she became frustrated at his behaviour. He became obsessed with her, like a shadow. He was referred to a counsellor and psychiatrist. Mrs Evans started to become aggressive, shouting at him, because he was lazy and pathetic. She saw her mother push her father on a number of occasions, and her mother told her that she had slapped the appellant more than once. 112. Plainly, after 2004 the marriage sadly deteriorated. Mrs Evans talked about leaving the appellant, but when in the end she could not do it. She had applied to be re-housed in March 2007. She was offered a flat. Then she turned it down, saying that she did not want to move. She wanted to remain on the housing list. In April 2009 she stated on a housing application form that her husband suffered from depression. He needed his own room. 113. Evidence from an occupational therapist described how the appellant acknowledged that his problems related to and arose from the death of his neighbour. His wife was very supportive. She wanted him to change so that they could go back to the life they used to have together. He also said that he was concerned that his wife was having an affair. He was diagnosed as suffering from depression and severe anxiety. He was seen by psychiatric nurses for assessment and treatment of his mental health on some eighteen occasions between December 2008 and July 2010. 114. On 11 th November 2010 their son could hear his parents arguing in the early morning. His mother was in the kitchen sobbing, saying she could not take any more. Mrs Evans called her daughter who described her as upset. Various members of the family saw Mrs Evans that day, and by then she seemed like her normal self. Their son saw them both at 13.30, and their daughter saw her mother at 14.45. Both were untroubled. He said that his parents were happy, and their daughter said that her mother was fine. 115. At about 16.45 the son arrived home with his children. He walked into the house and saw his mother on the floor. Her face was swollen. There was a knife on the floor next to her. He went into the bedroom and found the appellant. He said “I couldn’t help myself” or “I couldn’t control myself I lost my temper”. The appellant lifted his tee-shirt and showed his son a wound on the stomach. Help arrived. The appellant was seen in the bedroom. He said that he had been stabbed. When the police arrived the appellant was lying on the bed clutching his stomach. The record of what he said was “Had an argument. She went for a knife. I went berserk so I stabbed her in the neck. I cut my wrist. My wife stabbed me in the stomach. She stabbed me in the bedroom. I grabbed knife and stabbed her in living room, twice to neck”. 116. When the paramedics arrived the appellant said that he had caused injuries to his wrist, and his wife had caused the wound to his abdomen. 117. The knife found on the living room floor had been a lock knife purchased by the son many years earlier. Mrs Evans didn’t like it, and their son believed that it had been handed in during a knife amnesty. He had never seen it in a drawer or cupboard in the kitchen. It had never been left in a unit. It might have been kept in the tool box in the shed. The knife found on the bed, referred to as the green handled kitchen knife, was kept in a utensil jar in the kitchen, for show. 118. On post mortem four separate penetrating incise wounds, seven superficial incise wounds, wounds, caused by a separate impact, but with two separate injuries possibly caused in one action were found. There was bruising to the lips, swollen eyelids, and defensive injuries, together with an abrasion on the neck. There was evidence to suggest that pressure had been applied to the neck. The account given by the appellant in interview did not account for the totality of the injuries sustained by his wife. Either knife could have caused the superficial incised wounds. The lock knife was the more likely cause of the penetrating wounds. The deep penetrating wounds to the neck caused death. 119. Neither the pathologist nor the forensic scientist could throw significant light on the question whether the appellant had suffered an injury to his stomach before he stabbed his wife. Analysis of blood stains and findings of blood, again, were inconclusive. 120. The appellant was interviewed on a number of occasions. As he did not give evidence at trial, we should set out his account in some detail. 121. During the first interview, the appellant said that they were watching television and started to argue. His wife started shouting at him over something silly. He said he would watch television in the bedroom. Five minutes or so later she came to the bedroom holding the kitchen knife and held it to the soft part at the bottom of his neck saying, “I’ll let you have this in your throat now”. He responded “You do that”. She had done this before, he thought it was a joke. She then called him an ugly little bastard, taking a step back and with both hands on the knife, she stabbed him in the stomach, leaving the knife in place. She left the bedroom, and he pulled the knife out and threw it down on the bed. The wound wasn’t bleeding. He could not remember whether his tee-shirt was up or down when she stabbed him, a question of some importance because no cuts to the tee-shirt were found. He said “I was mad, crazy, I saw stars”. 122. He went into the kitchen to look at his wound in better light. The wound was still not bleeding. The lock knife was on the top of the unit. He then noticed some yellow liquid coming out of the wound. This made him feel mad. He opened up the knife and stabbed his wife in the throat. He said “it wasn’t a spur of the moment thing, it just … look at the knife, went in the living room and stuck it in her throat”. He said he knew what he had done, but at the time it was just the way he felt. 123. Later he said “I wasn’t intending to, you know, to do that, it’s just that it happened on the spur of the moment thing”. He hadn’t walked in intending to do it. He had walked into the lounge and things happened from there. He decided to do what he did when he was walking into the lounge. He intended to frighten her, but everything got out of hand. He agreed that he had stabbed his wife twice in the throat. As he walked out he started to bleed heavily from his wound. When he saw the injuries to his wife he said to himself “well what have I done? I thought the best way, the easiest way out was to go back to the bedroom, pick up the other knife and slit my wrists”. There were two stab wounds because he thought he had missed with the first. 124. In the second interview he said that no violence took place in the living room other than his wife grabbing his arm. He did not think that he had stabbed her a third time. He dropped the knife down by the settee and put his hand on it. When he walked into the lounge his wife had said something like “go on then good boy”. When he stabbed her he had his hand on her shoulder for balance. The struggle only lasted for seconds, and when he stabbed her the first and second time he thought “what am I doing?” He intended to hurt her, but he went too far. After stabbing his wife he stood in the passage for a while and went back to the bedroom and cut his wrist. 125. In this interview he said that he had felt frightened of his wife when she held the knife over him. She had held the knife to his throat before. He went on to state that relations that day had been pretty good. She had kicked him in the morning. He said that if she fancied giving him a clout, she would. His son had seen her do it. She had pulled his hair, hit his head against a wall and kicked him. This had happened on several occasions. She would hit him once a day. This had gone on for a few years. Asked why she treated him in this way, he said that he nagged her, he didn’t do anything physically, but perhaps mentally. 126. In the third interview he said that if he wanted to injure his wife he would have taken the knife which she had used to stab him. It was when he was in the kitchen that he started boiling. He just wanted to stab her back after he had seen the knife. He felt ashamed to call the police and say he had been stabbed by his wife. He didn’t know how his wife had received injuries to her face and neck, because he had never punched her. 127. In the fourth interview he said that he was concerned that his wife was having an affair. That morning she had told him that she was going to leave him, but that was something she said every other day. He denied that it was the thought of her leaving that drove him to assault her. It was put to him that the stab wound to his stomach was higher than his belly button, but below his ribs, and his shirt would have had to come up very high to have been missed by the knife. He insisted that he had not stabbed himself. He thought he had only stabbed his wife twice. He denied making the other two penetrating puncture wounds. 128. When he summed up the judge addressed the issue of loss of self control in accordance with section 54 and 55 of the 2009 Act . He explained a loss of self control. “The defendant lost his self control if his ability to restrain himself was so overwhelmed by emotional passion that he could not resist the impulse to attack (his wife) with a knife. A considered act of revenge, whether performed calmly or in anger, is not a loss of self control. The Act of Parliament says that the defence does not apply if the defendant acted in a considered desire of revenge.” That was precisely accurate, a clear reference to the crown’s contention that Mrs Evans had been killed in the course of a revenge attack on her by her husband. 129. The judge then amplified the meaning of a considered desire for revenge: “An act of retribution as a result of a deliberate and considered decision to get your own back, that is one that has been thought about. If you are sure that what the defendant did was to reflect on what had happened and the circumstances in which he found himself and decided to take his revenge on (his wife), that would not have been a loss of self control as the law requires.” 130. He then summarised the evidence relied on by the crown which was said to be consistent with an absence of loss of control but consistent with a considered act of revenge. He then, with equal emphasis, summarised the evidence relied on by the defence to show that there must or may have been a loss of self control, and that he was not acting out of a considered desire for revenge. He concluded this part of his summing up: “If you conclude so that you are sure either that this was a considered act of revenge by the defendant or that he had not lost the ability to control himself, this defence does not apply and your verdict would be guilty of murder”. 131. The criticism of this direction is that it did not provide the jury with a sufficient elucidation of the significance of the use of the word “considered” in its statutory context. The problem with the argument is simple. The judge directed the jury in accordance with the statutory language. There was no need to rewrite, and there was a potential for confusion if he had rewritten the language of the statute, and reformulated the statutory criteria. There was no reason to do so. The language is clear. The direction accurately encapsulated the issue to be decided by the jury, and the way they should approach to it. 132. There are no further grounds of appeal. Accordingly the appeal will be dismissed.

2012_01_17-2910.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2012/2/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2012/2

58b2bb106849eeb1bf21dd95b2309d8c0d6628f1db756a5647ff03a1d51ca713

[2023] EWCA Crim 1612

EWCA_Crim_1612

crown_court

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. Neutral Citation Number: [2023] EWCA Crim 1612 IN THE COURT OF APPEAL CRIMINAL DIVISION Case No: 2023/02278/A5 Royal Courts of Justice The Strand London WC2A 2LL Thursday 14 th December 2023 B e f o r e: MR JUSTICE TURNER and SIR ROBIN SPENCER ____________________ R E X - v – LEWIS RICHARD JOHN ROMANIS ____________________ 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 J Rosen appeared on behalf of the Appellant ____________________ J U D GMENT SIR ROBIN SPENCER: 1. This is an appeal against sentence brought by leave of the single judge. 2. On 19 th June 2023, in the Crown Court at Warwick, the appellant (who is now 23 years old) was sentenced by Mr Recorder Mason to concurrent terms of three years' imprisonment for two offences of causing or allowing serious injury to a child, contrary to section 5(1) of the Domestic Violence, Crime and Victims Act 2004 . He had pleaded guilty to the offences some 16 months earlier, but for reasons which we shall explain, sentencing had to await further investigations. The facts 3. The offences were committed in December 2019. The victim was a baby boy who was then aged only seven months. The appellant was 20 years old at the time. He had moved in to live with the baby's mother, "M", in October 2019. She was 19 years old. They had met through social media in the summer. 4. In the first offence (count 5 on the indictment), the appellant admitted shaking the baby which resulted in a degree of brain injury. In the second offence (count 6), the appellant admitted causing severe bruising to the baby's bottom on a later occasion. 5. The relationship between the baby's mother and father had ended soon after the baby was born, but the father still had regular contact with the baby. 6. The appellant and M were living with the baby in M's flat. The appellant showed little or no interest in the care of the baby. He would become irritated when the baby cried. He expected M to give him as much attention as the baby. He was plainly immature. 7. From November 2019 onwards, the baby was having weekend staying contact with the father and his family. They became concerned that the baby would arrive with bruising. By then M was pregnant again, this time with the appellant's child. 8. On 6 th December 2019, the appellant was left in charge of the baby while M went to the shops. As she was making her way home, the appellant ran towards her in the street. He told her that the baby had gone "all stiff and floppy" and would not move his hand from above his head. M phoned her aunt for advice and was told to call an ambulance, which she did. Before the ambulance arrived, the baby vomited several times and then appeared to be unconscious. The baby was rushed to hospital. The appellant refused to travel to the hospital. 9. It was believed initially that the baby had a viral infection. After a period of observation he was discharged. The baby's father was told what had happened, and he took the baby to his home for the weekend. However, the baby continued to present as unwell and was admitted to hospital again. The baby was given medication to prevent sickness and was again discharged. After the weekend the baby was returned to the care of his mother and the appellant at her flat. 10. At that stage the treating clinicians did not recognise the significance of the symptoms, and no CT scan was carried out. In fact, however, it was established in due course that the baby must have suffered a subdural haemorrhage from some trauma to the brain. The appellant was later to accept that he had shaken the baby that day (count 5). 11. Happily, the baby appears to have suffered no long-term ill effects from that injury but, obviously, the consequences of such an injury could have been very serious indeed. 12. Between 7 th and 19 th December (after the baby had come back to the flat following the hospital admissions), very severe bruising appeared on the baby's bottom. On one occasion, when M returned home, she heard the baby crying in his cot, followed by a bang. When she changed his nappy, she saw bruising to his bottom. She pointed it out to the appellant who said, "That's bad". By now M suspected that the appellant had been harming the baby, but she sought no professional assistance. She asked her brother to have the baby for a while. 13. On 18 th December the brother saw the bruising to the baby's bottom and took appropriate steps, as a result of which the baby was again admitted to hospital, where he remained for six days. It was determined that the injuries were non-accidental. The appellant was later to accept that he had caused them (count 6). 14. A lengthy police investigation followed. In February 2021 both the appellant and M were charged with offences of child cruelty, although it was not suggested that the mother had inflicted any injuries, simply that she had neglected the child or failed to protect him. 15. The first hearing in the Crown Court was in August 2021. There were proceedings in the Family Court, which led to further delay in the criminal proceedings. Eventually, both M and the appellant tendered guilty pleas which were acceptable to the prosecution. M accepted that she had not protected the baby as she should have. The appellant pleaded guilty to counts 5 and 6 on 14 th February 2022. That was only a day or so before his trial was due to commence. The sentencing hearing 16. Sentence was adjourned to a date in April 2022, but could not go ahead because more medical evidence was required, and so it was that sentencing eventually took place over a year later, on 19 th June 2023. 17. The appellant had no previous convictions. There was a pre-sentence report. In accordance with his basis of plea, the appellant told the probation officer that he had not harmed the baby intentionally, but he accepted that he had been reckless. He said that he had shaken the baby, not because he was crying, but in order to get a reaction. He was scared and unsure what to do when he had been left alone with the baby. 18. There were two psychological reports: one prepared in 2020, the other in 2021. The appellant had suffered physical, emotional and sexual abuse at the hands of both his natural parents and his stepfather. He was fostered at around the age of 7, and at the age of 10 was adopted by a family who still support him and are currently looking after the baby whom the appellant fathered subsequently. The reports confirmed that the appellant functioned intellectually in the bottom four per cent of the population. This impacted on his problem solving ability and his ability to anticipate the consequences of his actions. He would struggle to work things out. He tended to be impulsive. He was emotionally immature. 19. The judge had an impressive letter from the appellant's adoptive parents in Yorkshire which acknowledged the seriousness of what he had done, but spoke too of his positive qualities. 20. There was a new Sentencing Council guideline for the offence of causing or allowing a child to suffer serious physical harm, which came into effect on 1 st April 2023, a couple of months before the sentencing hearing. It was common ground that these offences fell within category 3C of the guideline: medium culpability and serious harm which has not had a substantial or long-term effect. The starting point for a single category 3C offence is 18 months' custody, with a range of six months to three years. 21. In his sentencing remarks the judge said: "Even at your age, with your cognitive understanding, everybody knows you do not shake a baby because it can lead to death and very serious brain damage". The judge said that, having done that, when the baby was discharged from hospital, the appellant continued to cause bruising to the baby over the following two weeks. The judge continued: "I accept that you are clearly not capable of looking after a child, but to treat a child in that way, particularly the child of your partner, is unforgivable." 22. The judge acknowledged that the appellant was a man of good character and that the offending was now a long time ago, but he said that the offences were far too serious to be dealt with by a non-custodial sentence. The judge took the view that because there were two separate offences, and because of the seriousness of the first offence in particular, the sentence before credit for the guilty plea would, in total, be three and a half years' custody. For the late pleas of guilty, which had come only a day or so before trial, he allowed credit of six months, which resulted in the sentence of three years' imprisonment. The appellant’s submissions 23. We are grateful to Mr Rosen for his written and oral submissions on behalf of the appellant. Mr Rosen submits primarily that the judge failed to take proper account of the findings in the psychological reports, with the result that the sentence was manifestly excessive. He points out that the judge acknowledged that the appellant was not capable of looking after a child. He submits that the appellant lacked the cognitive ability to understand and appreciate the implications of his actions at the time and to assess the significant risk of injury. Mr Rosen accepts that the judge was correct to place the offences in category 3C, but submits that a sentence at the lower end of the range would have been appropriate. 24. Developing these grounds of appeal in his oral submissions this morning, Mr Rosen relies on the fact that the second offence (the bruising to the bottom) was, in comparison to the first offence, far less serious and would not have justified a sentence even at the level of the starting point of 18 months’ custody had it been the only offence for which sentence was being passed. He goes on to submit (although this was not part of the grounds of appeal as such) that if the court felt able to reduce the sentence below two years, as he submits would be proper, the court ought also to consider suspending the sentence, on the basis that a far more constructive way forward could be achieved along the lines of the recommendations in the pre-sentence report. Discussion and conclusion 25. We have considered all these submissions carefully. As the judge said, these were indeed very serious offences committed against a small baby. There were two separate offences, and the second was committed after the baby had been discharged from hospital, which was an aggravating factor. However, from a starting point of 18 months under the guideline, the judge elevated the total sentence to three and a half years before credit for the guilty plea. We think that was manifestly excessive for a number of reasons. 26. First, although the overall sentence had to reflect the fact that there were two offences, we think that if individual sentences for each offence had been imposed consecutively, with a starting point of 18 months for each, considerations of totality would alone suggest that an uplift to three and a half years was manifestly excessive. 27. Second, having fixed upon his starting point, the judge did not identify specifically the mitigating factors under the guideline. He mentioned the appellant's age, his lack of previous convictions and the delay. But the principal mitigating factor was the appellant's limited mental and emotional functioning. Under the guideline for this offence, a specific mitigating factor is mental disorder, learning disability or lack of maturity. The judge accepted that the applicant was not capable of looking after a child. We agree that, even with his limitations, the appellant must have known that he should not shake a small baby and that he should not have inflicted bruising as he did, and must have known that it was very wrong to do so. But those limitations in his functioning were nevertheless a significant mitigating factor. 28. Third, there was no consideration, as there should have been, of the overarching Sentencing Council guideline on sentencing offenders with mental and developmental disorders. Regrettably, the judge's attention was not specifically drawn to that guideline. The guideline required the judge to consider whether the appellant's culpability was reduced by reason of his psychological problems. The guideline states that a careful analysis of all the circumstances and all the relevant materials is required in such a case, and an explanation must be given of the judge's conclusions. The judge was required to consider whether the appellant's psychological difficulties impaired his ability to exercise appropriate judgment, to make rational choices, and to understand the nature and consequences of his actions. Had that assessment been carried out, there would have been a reduction in the sentence to reflect that mitigating factor. 29. Taking all these matters into account, we think that the proper total sentence here, before credit for the guilty pleas, giving appropriate weight to the mitigation, was two years' imprisonment, not three and a half years. The judge allowed six months' credit for the guilty pleas, which equated to a reduction of one seventh. We shall allow a reduction of three months' credit from the reduced term of two years, which results in a sentence of 21 months' imprisonment. 30. We turn to the secondary submission which Mr Rosen made in the event that we came to the conclusion we have: his submission that the sentence should be suspended. We have considered that matter carefully. We have had regard to the Sentencing Council guideline on the imposition of custodial sentences and have considered the factors in the guideline for and against suspension. It may well be the case that there is a realistic prospect in due course of rehabilitation and there is, as we have indicated, some strong personal mitigation. But the guideline requires the court to weigh the factors for and against suspension. It seems to us – and in effect this is what the judge said in his sentencing remarks – that for an offence as serious as this, appropriate punishment can only be achieved by immediate custody. That is our firm view. 31. We are therefore unable to accede to the submission that the sentence should be suspended. But we hope that when he is released on licence there will be work done with the appellant to achieve that which might have been achieved by work with him either under a community order or under a suspended sentence. 32. We therefore allow the appeal. We quash the sentence of three years' imprisonment and substitute, on each count, concurrent terms of 21 months' imprisonment. _______________________________

2023_12_14-5961.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1612/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1612

83f2ba6663706f80d04a51b965741cbca5e0f9fc35ff36b8b16ca2988ad2bf84

[2022] EWCA Crim 1208

EWCA_Crim_1208

crown_court

Neutral Citation Number: [2022] EWCA Crim 1208 Case No: 202202182 A2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM The Crown Court at Bradford T20210337 Royal Courts of Justice Strand, London, WC2A 2LL Date: 07 September 2022 Before : LORD JUSTICE WILLIAM DAVIS MR JUSTICE HOLGATE and MR JUSTICE MURRAY - - - - - - - - - - - - - - - - - - - - - IN THE MATTER OF A REFERENCE BY HER MAJESTY'S ATTORNEY GENERAL UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 STEVEN PRIESTLEY Respondent -

Neutral Citation Number: [2022] EWCA Crim 1208 Case No: 202202182 A2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM The Crown Court at Bradford T20210337 Royal Courts of Justice Strand, London, WC2A 2LL Date: 07 September 2022 Before : LORD JUSTICE WILLIAM DAVIS MR JUSTICE HOLGATE and MR JUSTICE MURRAY - - - - - - - - - - - - - - - - - - - - - IN THE MATTER OF A REFERENCE BY HER MAJESTY'S ATTORNEY GENERAL UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 STEVEN PRIESTLEY Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Paul Jarvis appeared on behalf of HM Attorney General Adam Lodge appeared on behalf of the Respondent Hearing date : 1 September 2022 - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment was handed down remotely by circulation to the parties’ representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 2pm on 07 September 2022. The provisions of the Sexual Offences (Amendment) Act 1992 apply to the offences with which we are concerned. No matter relating to those against whom the offences were committed shall, during their lifetime, be included in any publication if it is likely to lead members of the public to identify them as victims of the offences. There are two individuals to whom these provisions apply in this case. We shall refer to them as AB and CD. Introduction 1. On 23 March 2022 in the Crown Court at Bradford before HH Judge Rose and a jury Steven Priestley was convicted as follows: Count Offence 1 Indecent assault on a male person, contrary to section 15(1) of the Sexual Offences Act 1956 – between 1.9.89 and 1.2.90 - AB 2 Indecency with a child, contrary to section 1(1) of the Indecency with Children Act 1960 – between 1.9.89 and 1.2.90 - AB 3 Indecent assault on a male person, contrary to section 15(1) of the Sexual Offences Act 1956 – between 1.9.90 and 1.2.91 - AB 4 Indecency with a child, contrary to section 1(1) of the Indecency with Children Act 1960 – between 1.9.90 and 1.2.91 - AB 5 Indecent assault on a male person, contrary to section 15(1) of the Sexual Offences Act 1956 – between 5.4.92 and 25.9.93 - AB 6 Indecent assault on a male person, contrary to section 15(1) of the Sexual Offences Act 1956 – between 5.4.92 and 25.9.93 - AB 7 Indecent assault on a male person, contrary to section 15(1) of the Sexual Offences Act 1956 – between 5.4.92 and 25.9.93 - CD 8 Indecent assault on a male person, contrary to section 15(1) of the Sexual Offences Act 1956 – between 5.4.92 and 25.9.93 - CD 9 Indecent assault on a male person, contrary to section 15(1) of the Sexual Offences Act 1956 – between 5.4.92 and 25.9.93 - CD 10 Indecent assault on a male person, contrary to section 15(1) of the Sexual Offences Act 1956 – between 5.4.92 and 25.9.94 - CD 11 Indecency with a child, contrary to section 1(1) of the Indecency with Children Act 1960 – between 5.4.92 and 25.9.94 – CD 2. On 13 June 2022 the offender was sentenced By HH Judge Rose to concurrent terms of imprisonment totalling 32 months. In relation to Counts 1, 3 and 6 to 10, the sentence on each count was 32 months’ imprisonment. In relation to Counts 2, 4, 5 and 11, the sentence on each count was 15 months’ imprisonment. 3. HM Attorney General seeks leave pursuant to Section 36 of the Criminal Justice Act 1998 to refer the sentence to this court as unduly lenient. At the conclusion of the hearing on 1 September 2022 we announced that we refused leave with written reasons to follow. These are the reasons for our decision. The Facts and the Indictment 4. AB was born in February 1985. CD was born in September 1984. They are cousins. When AB was aged between 4 and 8, he was sexually abused by the offender on occasions when he was at a house (not his own home) at which the offender was present. On at least three occasions, the abuse occurred in the presence of CD who was also at the house. CD was sexually abused by the offender when he was aged between 7 and 9 when he was at the same house at which the offender had abused AB. The offender was born on 25 March 1975. He was about 10 years older than AB and CD. 5. AB first made allegations of sexual abuse against the offender in 2003, namely about 10 years after the events about which he complained. The offender was arrested and interviewed. The offender denied the allegations. No further action was taken at that point. In 2019 CD made similar allegations against the offender. In January and February 2020 AB and CD provided ABE interviews to the police which formed the basis of the indictment against the offender. 6. Counts 1 and 2 referred to an occasion when the offender and AB were in the living room of the house. The offender took the penis of AB and put it into his mouth (Count 1). The offender also put his own penis into AB’s mouth (Count 2). AB recalled that this occurred when he was due to go to school on the following day. AB first went to school in September 1989. Thus, the count was framed to cover the first few months AB went to school up to his 5 th birthday. 7. Counts 3 and 4 referred to an occasion some months after the first occasion. AB recalled that he was 5 years old. The offender took AB to a bedroom in the house after he had played pornographic material on the television in the living room. Again, he took AB’s penis in his mouth (Count 3) and put his penis into AB’s mouth (Count 4). 8. Counts 5 to 7 related to four occasions on which the offender sucked the penis of AB when CD was present and when AB and CD were both at the house at which the offender was present. CD recalled that these occasions were after his grandfather had died, the date of the grandfather’s death being 6 April 1992, and before his 9 th birthday in September 1993. 9. On one of those occasions the offender also sucked the penis of CD (Count 9). There were two other occasions on which the offender sucked the penis of CD (Counts 7 and 8). AB was not present on those occasions. 10. Counts 10 and 11 reflected a specific incident which occurred in a bedroom at the house where CD was staying. The offender removed his own clothes. He stood in front of the door to the bedroom so that CD could not leave. He then forced CD onto the bed and touched his penis. The offender tried to get CD to touch his penis, but CD refused. 11. In the course of his ABE interview CD said that he stopped going to the house “after two years of (the offender) doing this”. Counts 10 and 11 were framed to cover a period of something over two years from the point at which CD’s grandfather died. 12. Save for Count 6 all of the Counts were single incident counts. Count 6 referred to two separate instances of sucking AB’s penis. There was no incident which could be said to have occurred on a particular day or date. The Sentence 13. The judge considered victim impact statements from AB and CD. CD read out his statement at the sentencing hearing. AB said that he had turned to drugs in his teenage years as a way of helping him block out the memories of being abused by the offender. He said that he has struggled to form relationships and that he felt internal anger. CD explained that the sexual abuse had had a massive impact on him. He remained traumatised by the memories of it. He had trouble connecting with friends and family. He had suffered depression and had had suicidal thoughts. 14. The pre-sentence report set out the offender’s account of his involvement with AB and CD. The offender continued to deny any sexual abuse of either of them and any sexual interest in children. Nonetheless, the author of the report did recommend participation by the offender in a sexual offender programme. The report assessed the offender as presenting a medium risk of re-offending. Were he to re-offend the risk of serious harm would be high. 15. The judge had a number of statements and letters from friends and acquaintances of the offender which spoke of his trustworthiness and of his care for others. The offender had been in employment for almost all of his adult life and had had at least two long term relationships. The offender had been convicted in 1998 of indecent exposure. He was otherwise of good character. He had suffered considerable trauma in his adult life. It is not necessary for us to set this out in any detail. The judge properly took it into account as a mitigating factor. 16. The judge made specific reference to the following when considering the appropriate overall sentence: • The offender’s age when he committed the offences, the offending having ceased in 1994. • The offender’s blame free and largely untroubled life since then, apart from two minor offences in 1998 for which he received a fine. • The principle of totality. • Annex B of the Sentencing Council Definitive Guideline for Sexual Offences and Forbes [2016] EWCA Crim 1388 . 17. The judge found that the offending did not involve significant planning and that there was no breach of trust in relation to either victim. However, both victims were vulnerable by reason of their extreme youth and both had suffered severe psychological harm. In relation to Count 1 he said that, by reference to the equivalent offence in the Sexual Offences Act 2003 (sexual assault of a child under 13), the offending fell into Category 1B in the Sentencing Council guideline. For an adult offender the starting point would be 4 years with a category range of 3 to 7 years. Noting that there were two victims and taking into account the number of offences committed over a period of time, the judge concluded that the appropriate sentence for an adult would have been 54 months. He reduced the sentence to 32 months to take account of the offender’s age imposing the same sentence concurrently on Count 3 and Counts 6 to 10, with concurrent sentences of 15 months on the remaining counts. The submissions of the parties 18. On behalf of the Attorney-General Mr Jarvis argued that the proper sentence for an adult who had committed these offences would have been significantly greater than 54 months. The proper sentence in relation to an adult for a single offence of indecent assault by reference to the equivalent offence in the Sexual Offences Act 2003 and the guideline for that offence had to fall in the range 3 to 7 years’ custody. Whilst the starting point in the guideline was 4 years’ custody, some account had to be taken of the fact that the maximum sentence for the offence of indecent assault in the 1956 Act was 10 years as opposed to 14 years for the offence to which the current guideline referred. Thus, it properly could be said that the least sentence for a single offence would have been 3 years. The overall sentence necessarily had to reflect that there had been multiple offences over a period of years committed against two different victims. An uplift of 18 months from the sentence appropriate for a single offence (which is what the notional adult sentence adopted by the judge involved) did not adequately reflect those factors. The adult starting point used by the judge based on the totality of the offending was outside the range of sentences reasonably open to him. Thus, the eventual sentence was unduly lenient. It is not submitted that the judge erred in discounting the sentence by around 40% to take account of the age of the offender when he committed the offences. However, the discount should have been applied to a much longer custodial sentence. 19. It is noted on behalf of the Attorney-General that the judge was not referred to and did not mention the case of Limon [2022] EWCA Crim 39 . It is argued that, insofar as there is tension between what was said in Limon and the principles set out in Forbes , the latter is to be preferred. Thus, any judge sentencing an adult for offences committed when they were a child needs only to conduct two historical inquiries. First, what was the maximum sentence for the offences committed by the defendant? Second, could the defendant have been made the subject of any form of custodial sentence if he had been convicted and sentenced at the time the offences were committed? So long as the defendant could have been sent to custody had he been sentenced as a child, the court would be free to impose any custodial sentence up to the maximum for the offence. 20. Mr Jarvis in oral submissions acknowledged that the absence of any reference to Limon by the judge in this case meant that the apparent tension between that decision and Forbes may not need to be resolved for the purposes of our determination of the Attorney-General’s application. Were it to remain a live issue and were there to be any departure from the reasoning in Forbes , a constitution of this court similar to that assembled in Forbes ought to consider the issue. 21. On behalf of the offender, it is submitted that, as the trial judge, HH Judge Rose was best placed to assess the level of harm and culpability. Whilst another judge might have taken a higher starting point for an adult who had committed these offences, the figure adopted by the judge in this case could not be described as so far outside the reasonable range as to render the eventual sentence unduly lenient. Discussion 22. In considering the appropriateness of the sentence imposed in this case we note first that the indictment (with one limited exception which referred to two incidents) charged single offences. Moreover, Counts 1 and 2 concerned a single incident as did Counts 3 and 4 and Counts 10 and 11. Thus, the judge in accordance with the jury’s verdicts on the indictment had to reflect 9 occasions of sexual abuse over a period which, by reference to the dates of the indictment, spanned the years between 1989 and 1994. In the final Reference, it was said that the offending “went on for years”. Insofar as this was intended to indicate that there was repeated and regular offending over the years, this is not a conclusion properly to be drawn from the jury’s verdicts. On the basis of the evidence of AB and CD it would have been possible to take one of two courses. First, the indictment could have charged additional counts e.g. two or more offences in each calendar year. Second, the indictment could have included multiple incident counts charging (for instance) at least 5 incidents in any given period. Neither course was adopted. The consequence of this in terms of sentencing was explained clearly at [30] to [34] in Forbes . Although this is not an instance of the court being prevented from any consideration of multiple offences, the way in which the indictment was framed means that we cannot consider the application on the basis of a regular course of conduct repeated month after month. 23. The second point to be made in relation to the indictment is that there was and is no proper basis upon which the judge could have concluded that the offender committed any offence after his 18 th birthday. In the final Reference it was said that in relation to Counts 7 to 11 the period of offending began in April 1992 when the offender was 18. Had that been correct we observe that the same argument would have applied in relation to Counts 5 and 6. In fact the argument is based on an arithmetical error. The offender was born on 25 March 1975. He did not reach his 18 th birthday until March 1993. Thus, for about 11 months of the indictment period in relation to Counts 5 to 11, the offender was 17. It is impossible to conclude from the jury’s verdicts on those counts that any of the offences charged had been committed at any particular point during the indictment period. By way of example the verdict in relation to Count 9 meant that on a day between April 1992 and September 1993 CD had been indecently assaulted. No further conclusion could be drawn from the jury’s verdict. 24. In his oral submissions Mr Jarvis accepted that the final Reference contained the arithmetical error to which we have referred. He drew our attention to the judge’s reference to “the fact that the last of those offences was committed in 1994”. Mr Jarvis tentatively suggested that this could be read as a finding of fact that at least one offence had been committed in 1994 when the offender was at least 18. The suggestion was only tentative and rightly so. The judge was referring to the last date on the indictment and no more. He made no finding of fact. He could not have done so given the way in which the indictment was framed and the evidence called in the trial. It follows that all of the offences could have been committed before the offender achieved the age of 18. In those circumstances, the only proper basis on which his sentence could and should have been imposed was that he was at all times under the age of 18. 25. By reference to these matters relating to the structure and nature of the indictment, we are not satisfied that the sentence of the judge was so far outside the reasonable range as to require us to interfere with it. It is accepted on behalf of the Attorney General that the judge was correct when he used the current guideline for sexual assault of a child under the age of 13 as the proper benchmark for the sentence to be imposed. Given that there were two victims and multiple offences, there had to be an uplift from whatever sentence after trial was appropriate for a single offence within that guideline. For the reasons advanced by Mr Jarvis, it is accepted that a single offence committed by an adult properly could have attracted a sentence of 3 years’ custody. Whatever overall period could be justified by the fact that there were nine separate incidents involving two different victims, there were mitigating factors to be considered before any allowance for the offender’s age at the time of the offences. The judge considered that they were of substantial effect. So do we. As submitted on behalf of the offender, another judge might have concluded that a longer overall sentence was required to reflect all of the offences. But we do not consider that the adult sentence identified by this judge fell outside the range of sentences reasonably open to him on the facts of the case. 26. The Attorney-General does not criticise the overall discount of 40% from the adult sentence to take account of the offender’s age at the time of the offences. We understand why that view is taken. Although the offending from April 1992 onwards occurred when the offender was 17 (in which event discounting the sentence for age by 40% would be very generous), what might be regarded as the most serious offending occurred when the offender was 14 or 15. Since we are not persuaded that the judge erred in setting the notional adult sentence at 54 months’ custody, it must follow that the eventual sentence of 32 months’ custody was not unduly lenient. So it was that we refused leave to bring the application pursuant to Section 36 of the 1998 Act. 27. Given this conclusion any tension there might be between Forbes and Limon falls away. It is not suggested that the judge in this case took an inappropriate approach to the issue of the offender’s age at the time of the offence. He made a significant reduction by reason of the offender’s age because the youth of the offender reduced his culpability to a substantial degree. That approach was in line with Forbes at [19] to [22]. 28. However, the Attorney-General has put forward the argument that Limon invites a different approach which is wrong in law and should not be adopted. Whilst we do not need to consider whether that is in fact the case, we have heard full argument on the point. Therefore, we propose to offer our observations albeit that they will be obiter. Should the issue arise in another case where the facts of the case mean that the issue is of real significance, it may be necessary to assemble a special court to consider the point. 29. In Limon the offender, when he was aged 14 to 17, had committed offences of indecent assault against a girl aged between 6 and 9. The offences had been committed between September 1993 and September 1996 though, on the evidence, it could not be shown that any offence had occurred after January 1995. At all material times the offence of indecent assault contrary to Section 14 of the 1956 Act was not one to which the grave crime provisions applied. Thus, a sentence of long term detention could not have been imposed on the offender had he been convicted at the time of the offences. Moreover, at the relevant time, the maximum period of detention in a young offender institution to which a person under 18 could be subject for an offence to which the grave crime provisions did not apply was 12 months. By reference to paragraphs 6.1 to 6.3 of the Sentencing Children and Young Persons Guideline (introduced with effect from 1 June 2017) the court in Limon concluded that it was not appropriate for the sentence in his case to exceed 12 months i.e. the maximum period of detention which could have been imposed at the time of the offending. The court referred in particular to paragraph 6.3: When any significant age threshold is passed it will rarely be appropriate that a more severe sentence than the maximum that the court could have imposed at the time the offence was committed should be imposed. The court in Limon observed that this guideline had not been published at the time of the judgment in Forbes . The court in Forbes could not have applied the principles set out in the guideline. 30. The Attorney-General submits that this proposition is contradicted by a consideration of the Sentencing Guidelines Council Definitive Guideline entitled Overarching Principles – Sentencing Youths published in November 2009. Paragraph 5 of that guideline is not identical to paragraphs 6.1 to 6.3 of the 2017 guideline but the effect of the guidance given is precisely the same, in particular in the third and fourth bullet points of paragraph 5.2. Therefore, the rationale adopted by the court in Limon is not sustainable. Moreover, reference was made to the November 2009 guideline in Forbes at [22]. When sentencing an adult offender, the Youth Guidelines ….will not be generally applicable as they are predicated on the basis that the offender is still a youth. Their relevance in these circumstances is confined to the emphasis placed in each on the significance of immaturity at the time of the offending to the assessment of culpability. They are not relevant for any other purpose. It is argued that it was entirely open to the court in Forbes to apply the principles in paragraph 6.3 of the 2017 guideline because precisely the same principles appeared in the 2009 guideline to which the court referred. The court in Forbes deliberately chose not to do so. The question to be asked related to the maximum sentence for the offence at the time of its commission, not for the offender. 31. We accept that the relevant part of the earlier guideline would support the approach adopted in Limon . This point was made by the commentary on the decision in the Criminal Law Review: Crim LR [2022] 419. But the relevant part of the earlier youth guideline was not referred to in Forbes . The court said that the youth guideline when sentencing an adult offender would not generally be applicable “as they are predicated on the basis that the offender is still a youth”. This cannot be correct in relation to paragraph 5. It refers in terms to an offender attaining the age of 18 and the approach to be taken to such an offender. Thus, that part of the guideline is not “predicated on the basis that the offender is still a youth”. Paragraph 5 was relevant to the issues which arise when sentencing an adult for something they did as a child. 32. As was explained in Limon , whilst the principles set out in the guideline (whether the SGC guideline or the current youth guideline) usually will apply when the offender is a young adult who has recently crossed the relevant age boundary, there is no reason in logic why they should not apply when many years have passed between the offending and the date of sentence. Mr Jarvis accepted that logic did not require a distinction between a young adult and a much older person. He argued that it was an issue of pragmatic sentencing policy. He pointed to the potential difficulties in identifying maximum sentences for a young offender when the legislative regime changed more than once in 1980s and 1990s. We observe that similar difficulties arise by reference to the not infrequent changes to maximum sentences for sexual offences over the same period. Those are difficulties with which, by reference to Forbes , judges in the Crown Court have to grapple on a regular basis. There is no reason why they should not do so in relation to sentences available for those under 18 at different times. 33. In our view as a general rule logic should prevail over pragmatism unless there are compelling reasons to the contrary. Changes to the legislative regime may introduce complications which are acute in particular cases. Where the complications are intractable, it may be that a pragmatic solution has to be adopted. That is no reason to abandon logic for all cases. 34. Consideration of the second enquiry sanctioned as appropriate by Forbes supports the argument based on logic. This enquiry involves asking whether the offender at the relevant time could have been made the subject of any kind of custodial sentence. The particular example in Forbes is BD at [102] to [124]. It is clear that the court when considering BD had to investigate whether at the time of the offending (1968 to 1971) an offender under 14 could be subject to any form of custodial sentence. 35. We reject the view advanced by Mr Jarvis that Limon was per incuriam because of its departure from Forbes . In Forbes the reference to the youth guideline indicates that the court had not considered paragraph 5.2 of that guideline. Had the court done so, it could not have said that the guideline was predicated on the basis identified. We consider that the guidance in Forbes was designed to prevent a court dealing with historic sexual offences being required to consider the general level of sentencing current at the time of the commission of offences many years before. That is not the exercise in which the court engaged in Limon . The agreed position in that case was that the maximum sentence which could have been imposed on the offender by reference to the provisions of Section 1 B of the Criminal Justice Act 1982 (had he been sentenced at the time of the offences) would have been 12 months’ detention. Taking account of that legislative position did not involve any qualitative departure from the principles in Forbes . 36. It is not for us to speculate what the position would have been had the judge in this case taken the approach suggested in Limon . There has been no appeal against the sentence. What is certain is that the provisions which led to the reduction of the sentence in that case did not apply until October 1992. Thus, the legislative position in relation to this offender was significantly different to that which applied to the appellant in Limon .

2022_09_07-5427.xml

sentence

https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/1208/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/1208

fcac1b8a165cb0fd7cac7caea6b600746a412175036c4d1d285cfb3c52f49417

[2020] EWCA Crim 1348

EWCA_Crim_1348

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 Neutral Citation Number: [2020] EWCA Crim 1348 CASE NO 2019 04246 B2 Royal Courts of Justice Strand London WC2A 2LL Wednesday 7 October 2020 LORD JUSTICE HOLROYDE MR JUSTICE KNOWLES MR JUSTICE CHAMBERLAIN REGINA v JOE DEREK GYNANE __________ 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 E HENRY QC appeared on behalf of the Appellant. MR G PATTERSON QC appeared on behalf of the Crown. _________ J U D G M E N T 1. LORD JUSTICE HOLROYDE: On 9th October 2019, after a trial at the Central Criminal Court before HHJ Foster and a jury, this appellant was convicted of offences of murder of Mohamed Elmi (count 1) and causing grievous bodily harm with intent to Abdullahi Mohammed (count 2). He appeals against his convictions by leave of the Single Judge. His grounds of appeal relate to decisions by the judge not to discharge a juror on grounds of actual or apparent bias. 2. For present purposes, the facts of the offences can be briefly summarised. The appellant, now aged 35, has a history of drug abuse and had a number of previous convictions. In March 2019 he was awaiting trial on robbery charges. Having been remanded in custody for a time, he was granted conditional bail on 1st March 2019. He was unable to collect the prescription for methadone which had been issued to him whilst he was in custody. He left the prison and, instead of going to his specified bail address, he went to the Soho area of London. 3. CCTV footage showed that on the night of 2nd/3rd March he was in contact a number of times with Mr Elmi, who was then aged 37. It appears that the appellant acquired drugs from Mr Elmi. The prosecution case was that he subsequently searched for Mr Elmi in order to obtain more drugs. He was armed with a large kitchen knife. Shortly after 5 a.m., he found Mr Elmi and stabbed him in the abdomen and thigh, inflicting fatal injuries. At 11 a.m. that day, he met Mr Mohammed, then aged just 16, who accompanied him into an alley in order to sell him drugs. The appellant stabbed him twice in the thigh, causing serious injury. Mr Mohammed spent some days in hospital and underwent surgery. 4. The appellant was arrested a short time after that second stabbing. He said he had taken heroin and crack cocaine. He admitted the stabbings on a number of occasions. Whilst in police custody, he displayed sudden outbursts of aggressive behaviour. 5. The appellant pleaded not guilty to both charges. In relation to count 1, his case was that he was not guilty of murder but guilty of manslaughter on the ground of diminished responsibility. His case on count 2 was that he had unlawfully inflicted grievous bodily harm on Mr Mohammed but had not intended to cause him really serious injury. He admitted his guilt of the two lesser offences. 6. The appellant gave evidence at trial. He told the jury that he began using Class A drugs when he was aged about 13 or 14, and said that he had lost count of how many times he had tried to stop using drugs. He pointed to his previous convictions as evidence of his addiction to drugs. 7. Two consultant psychiatrists gave expert evidence to the jury. Their respective professional commitments placed some constraints on the timing of their evidence. Dr Farnham, called by the defence, diagnosed the appellant as suffering from polysubstance dependence syndrome, a dissocial personality disorder and cocaine psychosis. His opinion was that these disorders had the effect that the appellant's drug use was involuntary, and on his evidence the partial defence of diminished responsibility was available to the appellant. Dr Blackwood, called by the prosecution, also diagnosed a personality disorder. However, he disagreed with Dr Farnham as to the severity of that disorder and as to the extent of the appellant's dependence on drugs. On his evidence, the partial defence was not available to the appellant. 8. The trial began on 23rd September 2019. The judge gave some initial directions of law to the jury, including as to the need for them to decide the case only on the evidence which they would hear during the trial. As in this court, Mr Henry QC appeared for the appellant and Mr Patterson QC for the respondent. By agreement between them, Mr Patterson in his opening speech explained to the jury that the appellant would be raising the defence of diminished responsibility, and he explained that the prosecution case was that the killing of Mr Elmi was murder not manslaughter. Mr Henry made a short opening speech in which he too referred to diminished responsibility and made clear that the jury would be hearing about the appellant's drug taking and past offending. Mr Henry urged the jury not to reach any conclusions until they had heard all of the evidence, in particular that of the psychiatrists. After those opening speeches, and before any evidence was adduced, the judge directed the jury to similar effect. 9. A number of notes were sent to the judge in the course of the trial. We are concerned with three of them, all written by a member of the jury to whom we will refer simply as “the juror”. We will for convenience refer to the three notes as notes A, B and C. 10. On 25th September 2019 there was a short outburst from the appellant in the dock. The jury were asked to leave court. On their return, the judge explained that the appellant had apologised. He said: i. "As you know, in due course you will be hearing from two psychiatrists as to his condition, so I must direct you not to form any view about his conduct until you have heard all the evidence, and that includes the psychiatric evidence, and been directed by me on the law at the end of the case." 11. On 26th September the juror sent Note A, in which he asked eight questions. The first four related to aspects of the evidence which had been given and are uncontroversial. Mr Henry was, however, concerned about questions 5-8, which were as follows: i. "5) Is diminishing responsibility morally right and conducive to protecting the general public and helping the defendant realise his crimes and giving the defendant the opportunity to come to terms with them - especially as in the case of the defendant he has been sentenced for crimes of a similar nature on numerous occasions (16 times according to the defendant)? I am questioning the application of diminished responsibility in cases such as this. ii. 6) How do you objectively measure one's responsibility? To what degree should the defendant's responsibility be diminished? iii. 7) What is the agreed definition of 'addiction' among the scientific community? iv. 8) What is the objective diagnosis for discovering the presence of addiction in the human body?" 12. The judge allowed time for counsel to consider this note. At the start of the hearing on the following day, 27th September, Mr Henry applied to the judge to discharge the juror. He submitted that, despite the judge's clear directions to the jury to keep open minds until they had heard all the evidence, the juror had already formed adverse conclusions, and by the terms of question 5 had displayed bias. The juror had not yet heard the evidence of the appellant or of either psychiatrist but was questioning the application of diminished responsibility to a case such as this. Mr Henry referred to the passage in Archbold which quoted the familiar test of bias expressed in Porter v Magill [2002] 2 AC 357 at paragraph 103: i. "... whether the fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real responsibility that the tribunal was biased." 13. Mr Henry acknowledged the reference in Archbold to Gregory v United Kingdom 25 EHRR 577, in which it was held that firm directions to a jury, with particular emphasis on their duty to try the case on the evidence, had been a sufficient guarantee of impartiality. He submitted, however, that in the light of the juror's note, whatever direction the judge might give, an appearance of bias would remain. 14. Mr Patterson resisted the application. He submitted that no necessity to discharge the juror had arisen. The jury had been told that if they had any questions, they should raise them with the judge, and the note was no more than an appropriate request for guidance in relation to diminished responsibility. To this Mr Henry responded with a submission that the juror was not asking for guidance but showing that he had already jumped to a conclusion. 15. The judge refused the application. He pointed out that the jury had not yet been directed about the strict criteria applicable to the partial defence of diminished responsibility, had not yet been told that the burden of proof was on the defendant and had not yet been directed about the relevance of voluntary use of drugs in relation to that partial defence. He was satisfied that the note did not necessarily indicate bias. If it did indicate a view being taken as to the public policy of diminished responsibility, that could be remedied by directions he would give, both immediately and in his summing-up. 16. The jury then returned to court. The judge answered questions 1-4 in the note. He then said that there were other questions relating to diminished responsibility which he did not intend to read out. He continued as follows: i. "... of course it is entirely appropriate that at any time you may have any questions that you send me a note and it is very important that you keep an open mind. I have stressed that to you, as has Mr Henry in his opening remarks to you, and I have on a couple of occasions as well. Keep an open mind on all issues in the case until you have heard all the evidence and all the legal submissions and my summing-up. ii. As I say, you will be directed by me in due course as to the law of diminished responsibility. You must carefully apply the law to the facts as you find them to be. You do not question the rights or wrongs of the law, this is not a court of morals, the law is what the law is. Whether or not diminished responsibility applies is to be determined by you in due course, having heard all the evidence and carefully applying to the facts the directions of law which I will give you. iii. You have not yet heard the evidence of the defendant himself -- he is giving evidence -- or of the two psychiatrists and, of course, you must keep an open mind until you have heard all the evidence. It is important not to pre-judge any of the issues. You will recall the oaths or affirmations you made to return true verdicts according to the evidence, and that means according to all the evidence ignoring other considerations and applying to the facts as you find them to be the directions of law which I will be giving to you." 17. On 30th September 2019 the jury were permitted to retire for a time to a private room so that they could read a bundle of medical records relating to the appellant. The judge told them that he would in his summing-up direct them to elect a foreman. He suggested that they might like at this stage to choose "an interim or provisional foreman just to chair your discussions". 18. On 2nd October 2019, at or near the end of the appellant's evidence, the juror sent note B, which contained seven questions. The first was uncontroversial. Questions 2-7 were as follows: i. "2) Is it true to say that the defendant has never made any sincere wilful attempt to cessate from drugs ever since taking them in 1998? ii. 3) Does the defendant feel a better person when he's taking drugs? iii. 4) Why did the defendant need a knife when he confronted the second victim? iv. 5) Knowing the possible side-effects and potential consequences of taking drugs at the time the defendant started taking them and that he would still choose to take them despite the risks because they are enjoyable, does he not think this behaviour to be wholly irresponsible and demonstrable wilful self-stupefaction? v. 6) Is this not a demonstration of the defendant taking control and dictating his own life? vi. 7) Is the defendant not using addiction as an excuse in order to relinquish full responsibility for his crimes?" 19. Mr Henry renewed his application for the juror to be discharged. He referred to his earlier application, which he acknowledged had been dealt with entirely fairly by the judge. He suggested that the juror's further note was in part a stream of consciousness, though he noted that question 2 contained adjectives indicative of moral and value judgments. He submitted that question 5 went to the heart of the case and showed that the juror had made up his mind before hearing from the psychiatrists. He submitted that question 7 demonstrated prejudice, and that the questions were not really questions at all but were indications of concluded views prejudicial to the defence and of a failure by the juror to comply with the clear directions which the judge had given. 20. Mr Patterson again resisted the application. He submitted that there was no reason to think the juror was not complying with the judge's directions: he was asking obvious questions when the appellant was in the witness box, which related to important issues which the jury would need to consider. The appellant would be able to give evidence answering those questions if he wished to do so. 21. The judge refused the application. He said that the note raised questions going to the issue of voluntary or involuntary intoxication with drugs, about which he would give directions in due course. The questions did not, in his view, show any prejudice or bias. Rather, he said: i. "They show preliminary views being expressed or not even that, they are questions being asked on issues that go to the heart of the case, which no doubt will be dealt with to a large extent by the expert evidence." 22. The judge indicated that he would again direct the jury not to form any concluded views until the very end of the trial. 23. The jury then came back into court. The judge did not read the contents of the note, but simply indicated that it asked questions going to some of the issues in the case. He directed the jury as follows: i. "Again, as I said before, it is very important that, although quite understandably now you have heard a considerable volume of evidence that you begin to form in your own minds at least preliminary views about the case, what you must not do is reach any final or concluded views until you have heard all the evidence, heard the speeches from counsel, you have heard my summing-up and at the appropriate stage you will be retiring to consider your verdicts in this case. That is the time when you can sit down and talk amongst yourselves and begin to form concluded views. Before that you really must not do so. Although these questions really are important and relevant questions you may feel, they will be dealt with I am sure to some extent by the experts you are about to hear and, furthermore, as regards the law you will get full directions from me in writing on the law of diminished responsibility and other aspects of the case as well." 24. The court sat late that day in order to complete the evidence of Dr Farnham. At the end of the day the juror submitted note C, which contained three questions: i. "1) How do you objectively measure just how in or out of control a patient is? ii. 2) What is the objective physical evidence for this inability to stop taking drugs? iii. 3) Is there not evidence to suggest that there is a significant correlation with psychoactive drugs and violence?" 25. On the following morning Mr Henry submitted that the terms of question 3 suggested some possible expertise or research interest on the part of the juror. He invited the judge to make inquiries of the juror less there be a situation in which the juror was in effect giving expert evidence to his fellow jurors during their retirement. Mr Patterson submitted that there was no basis for inferring any particular knowledge on the part of the juror. The judge decided that he would ask questions of the juror, and arrangements were made as a matter of convenience and practicality for that to be done in chambers in the presence of counsel with the proceedings properly recorded. 26. The judge indicated that he wished to know if the juror had any specialist knowledge or interest, academically, professionally or in any other way, in areas such as psychiatry, mental health issues within the criminal justice system, pharmacology or anything like that. The juror said that he had an interest, but nothing academic. He said he had a troubled upbringing and his mother took drugs during his childhood: i. "So through my childhood and my life I have seen the consequences of these things and how they affect not just family life but other people as well. So that is a reason why I have a personal interest in such things." 27. The juror went on to say that in the questions he had asked in his notes he was not saying "these things are true". He explained: i. "I am merely saying, is it ... you know, is this true or not? I don't know. But that is why I felt I should put it to the court and put it to you to decide whether any questions I have are true or not. Are they relevant or not? I feel that's important when it comes to deliberating. I don't wish to ask any questions to the jury members that is either misguided, wrong, inaccurate or irrelevant. That is my reasoning." 28. Counsel were given an opportunity to ask any questions of the juror, but understandably neither wished to do so. 29. Counsel then made submissions. Mr Henry again applied for the juror to be discharged. He submitted that the juror clearly found it difficult to restrain his sense of moral repugnance and there was a danger that that would condition his view of the case. Mr Patterson again resisted the application. He submitted that it would be unrealistic to exclude any juror who had any experience of the harm caused by controlled drugs, and that the questions asked by the juror did not suggest that he would not comply with the judge's directions. 30. The judge in his ruling referred to the juror's expressed wish not to raise anything irrelevant or misleading. He was satisfied that all the juror was doing was bringing to the jury his life experience, as others would do. He ruled that the test for bias or the appearance of bias was nowhere near met. He indicated that he would again stress to the jury the importance of reaching their verdicts on the basis of the evidence and arguments which they heard in court and nothing else. 31. The evidence was then concluded, and in due course the judge summed up. He gave detailed directions of law, with copies in writing, and provided the jury with routes to their verdicts. He again emphasised, as he had said he would do, that the jury must decide the case only on the evidence. 32. As we have indicated, the jury convicted the appellant on both counts. When they returned their verdicts, it was the juror who acted as foreman. 33. The grounds of appeal contend that the juror should have been discharged for actual or apparent bias after note B or after note C. The juror displayed actual bias and entrenched prejudice or at the very least the incontrovertible appearance of bias from the early stages of the trial, thus undermining the safety of the convictions. As the foreman from 30th September onwards, the juror had the opportunity to shape the jury's reception of the evidence they heard from around that time. No judicial direction was capable of remedying this unfairness as the juror had ignored repeated judicial directions. 34. In his written and oral submissions in support of these grounds Mr Henry accepts that in every other respect the judge conducted the trial impeccably fairly and gave the jury clear and correct directions of law. He further accepts that the judge was entitled to refuse the first application to discharge the jury, and he pursues no ground of appeal specifically in relation to that ruling, though he argues forcefully that the terms of note A are highly relevant when considering the judge's later rulings. He submits that the judge was wrong to refuse the second and third applications for the juror to be discharged. The judge, he submits, was led into error by submissions on the part of the prosecution which failed to acknowledge that the juror had clearly displayed actual bias or had at the very least undoubtedly given the appearance of bias. He suggests that the juror was probably the foreman of the jury from 30th September onwards and was therefore able to influence the views of other jurors. 35. Mr Henry has taken us, in addition to the decision in Porter v Magill , to the decision in Abdroikof, Green and Williamson [2007] 1 WLR 2679 . He particularly relies on the passage at paragraph 15 of that judgment in which Lord Bingham said that the fair-minded and informed observer must adopt a balanced approach and is to be taken as a reasonable member of the public, neither unduly complacent or naive nor unduly cynical or suspicious. 36. In addition, Mr Henry has taken us to the cases of Khan [2008] 2 AC 13 ; LS [2009] EWCA Crim 104; KC [2009] EWCA Crim 2458 ; and Pouladin-Kari [2013] EWCA Crim 158 . He attaches particular emphasis to the last of those cases, in which the defendant was convicted of attempting to export restricted goods without the necessary licence. A juror had sent a note to the judge indicating that in his professional capacity he had supervised similar transactions, and that in his organisation the defendant's actions would have resulted in automatic rejection of the transaction on compliance grounds. The juror in his note expressed concern that he would find it difficult to forget that knowledge and to judge the case on the evidence and that his views might affect the conclusions of other jurors. He said that he was happy to continue to serve on the jury if the judge felt it appropriate for him to do so. The judge refused an application to discharge the jury. An appeal against conviction was allowed. The court held that the juror had taken his responsibilities very seriously and was not biased against the defendant, but a fair-minded observer would have concluded that there was a real possibility of unconscious bias. Mr Henry points out that in contrast to that case, the juror here had not taken any step to bring his relevant personal experience to the attention of the judge. Moreover, Mr Henry submits, when the juror was asked about that matter by the judge the answers which he gave were either untrue or, at best, disingenuous. Mr Henry submits that the answers which the juror gave to the judge could only be regarded as providing any comfort on the issue of impartiality if one were to ignore what Mr Henry suggests is the lack of self-awareness on the part of the juror, reflected in the terms of his questions. 37. Mr Patterson submits that the judge made no error of law, that the issues about which he gave his rulings were facts-sensitive and that he was entitled to reach the decisions he did. He submits that there is no basis for assuming that the juror was the foreman from 30th September onwards, and he points out that at no point in this quite lengthy trial did any of the other eleven members of the jury raise any concern as to the conduct of the juror. Following from that, Mr Patterson emphasises that the verdicts were the verdicts of twelve jurors, not of one. He emphasises that the jurors collectively had been invited to send notes if they wished assistance from the judge. He submits that when the juror was asking questions in note A he did not yet know, because no relevant direction had yet been given, that the appellant would have to surmount a number of hurdles before the partial defence of diminished responsibility could arise. In those circumstances, submits Mr Patterson, it was not inappropriate for the juror to be asking questions about whether the partial defence could apply to a case such as this. 38. Mr Patterson relies upon the familiar decision in Abu Hamza [2007] 1 Cr App R 27 , citing the experience of judges as to the ability and willingness of jurors to follow legal directions. Mr Patterson suggests that, whilst the juror's questions might be said to show that the juror was coming to towards a conclusion adverse to the appellant's case, they did not show bias and did not show or suggest that the juror was relying on anything other than the evidence in the case. 39. We are grateful to both counsel for their written and oral submissions, and in particular for the assistance they have both given the court today by their helpfully focused oral submissions. 40. A judge only has the power to discharge a juror where there is an evident need to do so. An evident need may arise if a juror displays actual or apparent bias. Jurors bring with them their life experiences. That is one of the strengths of the jury system. Where a particular juror's life experiences are said to have caused him or her to display actual or apparent bias, the test to be applied is that stated in Porter v Magill . A trial judge must make a judgement of fact as to whether, in the circumstances of the particular case, that test is met. 41. As was pointed out in LS at paragraph 7, this court on appeal cannot interfere with the judgement of the trial judge on an issue of this kind unless it concludes that the decision was outwith the range of reasonable responses to the issue with which the judge was faced. We note that in LS the trial related to alleged offences of historic sexual abuse of young girls. A juror reported that she had suffered panic attacks as a result of the evidence bringing back memories of what had happened to her as a child. The judge, after making inquiries, was satisfied that the juror would give the defendant a fair and impartial trial, unprejudiced by her own experiences. An appeal against conviction on the ground that the juror should have been discharged was dismissed. We regard that case as an important illustration of the need for a trial judge to make a fact-specific judgment as to the specific issue in the case. 42. As Mr Henry realistically recognises, he has to argue that the decisions of the judge refusing to discharge the juror on the applications made after note B or after note C were not properly open to him because they were outside the range of reasonable responses. 43. We accept that some of the questions asked in those notes contain elements of apparent moral judgment, and we understand why Mr Henry was concerned on the appellant's behalf. The issue we have to decide is whether it was open to the judge to conclude, in relation to each of the applications, that there was no actual bias on the part of the juror, and that a fair-minded and informed observer would not consider there to be a real possibility of bias. In resolving that issue, we regard the following points as important. 44. First, Mr Henry rightly accepts that no criticism can be made of any of the directions which the judge gave to the jury or to any other aspect of his handling of the case. In short, save for refusing the relevant applications, the judge did not put a foot wrong. It is therefore evident that he was fully alive to all the issues in the proceedings and fully in control of his court. 45. Secondly, it is accepted that the judge was entitled to reach the decision he did when the first application was made to discharge the juror after note A. We accept, of course, Mr Henry's point that the contents of note A nonetheless remain very relevant to his submissions in respect of the later applications. The relevance of the decision on the first application is that the judge made it on the basis that the questions asked by the juror did not indicate that his mind was already closed, and did not appear to give rise to a real possibility that his mind was closed. 46. Thirdly, the opening speeches of counsel understandably gave the jury no more than an outline of the issue of diminished responsibility. No detailed explanation of that partial defence and no direction as to the circumstances in which a defendant may rely on it were given until the summing-up. There is no suggestion that the juror had any legal training or any other source of information about the partial defence. The judge accordingly had to assess the juror's questions on the basis that they were not informed by any detailed knowledge of the legal concept of diminished responsibility. It would have been wrong to treat any apparent expressions of a moral stance on the concept as being grounded in a full understanding of it. 47. Fourthly, we are unable to accept that there was a clear inference to be drawn that the juror had been in the position of foreman from 30th September onwards. It is not known whether the jury on that date adopted the judge's suggestion of choosing an interim foreman. Even if they did, it is not known whether they choose the juror. Insofar as it is suggested that the juror was in a position to exercise special influence over the other members of the jury, we therefore reject that argument. We note also that no other member of the jury at any stage expressed to the judge any concern about the conduct of the juror. Nor do we see any substance in the criticism that the juror did not reveal his life experiences until asked. This is not a case in which it was felt necessary or appropriate to make any specific enquiry of the jury panel, on the ground that anyone with a particular experience of the consequences of drug abuse should not serve as a juror on this trial. 48. Fifthly, it is important to view notes B and C in the context of their timing. Note B was written when the appellant had given evidence about his drug use and had asserted that he had made repeated efforts to overcome his addiction but had been unable to do so. The questions asked related to the appellant's attitude to his drug-taking. We agree with the judge that they were questions which were relevant to the issue of whether the appellant's drug use was voluntary or involuntary. Note C was sent after Dr Farnham had given evidence. The questions asked were plainly relevant to the jury's evaluation of that expert evidence. We note that Mr Henry's concern on this occasion was primarily as to whether question 3 indicated some relevant expertise, not whether the questions were indicative of a closed mind. 49. Sixthly, the judge inquired into the suggested possibility that the juror had some expert knowledge. He was in the best position to assess the truthfulness of the juror's answers. It is clear from his ruling that he accepted the juror's answers and was satisfied that the juror could be true to his oath or affirmation. He was entitled to make those findings. We do not accept Mr Henry's submission that the judge was bound to find that the juror was either not telling the truth or was deceiving himself as to the extent to which his childhood experiences had affected his ability to give this appellant a fair trial. 50. In those circumstances, we are satisfied that the judge was entitled to refuse both the relevant applications for the reasons which he gave. He was entitled to view the questions asked in notes B and C as genuine questions seeking guidance and information, and not indicating any concluded view. In contrast to Pouladin-Kari , where the juror concerned had himself doubted his ability to try the case only on the evidence, the juror here had told the judge in chambers that he wanted to know what was and was not relevant, and wanted to avoid raising anything which was incorrect or irrelevant. There is, in our view, no basis on which it could be said that the judge was not entitled to accept those statements or was bound to treat them either as untrue or as revealing a lack of self-awareness. Throughout the trial the judge made crystal clear the duty of the jury to reach their verdicts only on the evidence which they heard in court. The judge found and was entitled to find that the juror could and would comply with those directions. It did not follow from the fact that the juror's life experiences gave him reason to have views as to drug abuse and its consequences that he was, or would appear to the informed bystander to be, incapable of complying with the judge's directions or of remaining true to his oath or affirmation and giving the appellant a fair trial. We do not accept that the questions asked in the notes showed that the juror repeatedly disobeyed the judge's instructions. The judge was entitled to conclude that they were genuine questions, seeking relevant information and guidance. 51. For those reasons, grateful though we are to Mr Henry for his submissions on the appellant's behalf, we reject the grounds of appeal. We would add that the case against the appellant was very strong. We are satisfied that the convictions are safe. This appeal accordingly 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

2020_10_07-4986.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2020/1348/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2020/1348

a88783c6ec2b18a7f24f0d04a4bef32393a91a768f1d9bbb68faaebab0341564

[2005] EWCA Crim 1594

EWCA_Crim_1594

crown_court

No: 2005/00570/A8 Neutral Citation Number: [2005] EWCA Crim 1594 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2 Friday, 10 June 2005 B e f o r e: LORD JUSTICE GAGE MR JUSTICE STANLEY BURNTON MRS JUSTICE DOBBS - - - - - - - ATTORNEY GENERAL'S REFERENCE No. 10 of 2005 UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 - - - - - - - R E G I N A - v - DEEJAY DWAYNE EDWARDS - - - - - - - Computer Aided Transcription by Smith Bernal, 190 Fleet Str

No: 2005/00570/A8 Neutral Citation Number: [2005] EWCA Crim 1594 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2 Friday, 10 June 2005 B e f o r e: LORD JUSTICE GAGE MR JUSTICE STANLEY BURNTON MRS JUSTICE DOBBS - - - - - - - ATTORNEY GENERAL'S REFERENCE No. 10 of 2005 UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 - - - - - - - R E G I N A - v - DEEJAY DWAYNE EDWARDS - - - - - - - Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4A Telephone No: 020-7421 4040 (Official Shorthand Writers to the Court) - - - - - - - MISS S BENNETT-JENKINS appeared on behalf of the ATTORNEY GENERAL MR J D S WISHART appeared on behalf of THE OFFENDER - - - - - - - J U D G M E N T Friday, 10 June 2005 LORD JUSTICE GAGE: 1. This is an application by the Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer for review a sentence which is said to be unduly lenient. We grant leave. 2. The offender is Deejay Dwayne Atherton Edwards, now aged 22. On 29 November 2004 he pleaded guilty to one count of robbery. No evidence was offered in respect of a co-defendant on the same count. Similarly, no evidence was offered against the offender in relation to a second count of robbery relating to the same day. The offender initially entered pleas of not guilty to these matters on 25 May 2004 at the plea and directions hearing and a trial date was set for 29 November 2004. However, the offender had tendered a plea in advance of the hearing date which was acceptable to the Crown and the matter was adjourned for the preparation of a pre-sentence report. On 4 January 2005, at Manchester Crown Court, the offender was sentenced to a Combination Order comprising 80 hours' community punishment and a two-year Rehabilitation Order. 3. The facts are as follows. On 29 November 2004, a young girl aged 17, went with a friend to the Liquid Nightclub in Oldham. The victim and her friend left the nightclub at about 1.15am on the following morning. They went to buy some food in Yorkshire Street. As they walked towards the takeaway restaurant they heard the offender and another man, Dominic Jallum, shout at them. The two men were seated in a silver Ford Focus vehicle. They shouted, "Can I have your number? You look nice" and, "Oi, come here, my mate wants to talk". The victim and her friend ignored the shouts and met up with the friend's boyfriend, Shamsu Miah, and got into his car. As they set off they became aware that the offender and Jallum were following behind in the silver Ford Focus vehicle. Shamsu Miah attempted to drive away, but was chased by the offender for about ten minutes, with speeds on occasions reaching up to 60mph. Shamsu Miah drove his vehicle into a car park on Featherstall Road North, where he had seen a number of cars parked. He hoped to find some assistance. The cars stopped. The offender and Jallum left their vehicle. The offender put on a balaclava and he and Jallum went towards Shamsu Miah's vehicle. The offender then said, "Give me your phones. I'm going to strip you of your stuff. I want everything you've got." He was speaking about guns and he made a shape of a gun with his hand. Miah saw the offender put something under his jumper. The victim then handed her mobile phone to the offender. The offender said to the victim and her friend, "Get out of the car. We'll take you home". The victim got into the offender's car as she was directed, together with her friend. A short time later the car stopped. Both the offender and Jallum got out and became involved in an argument with other men in a Corsa. The friend of the victim took the opportunity to get out of the car and call the police. The victim was driven away by Jallum, who then attempted to rape her. He subsequently pleaded guilty to an offence of attempted rape in respect of which he was sentenced to three years and nine months' imprisonment. The offender did not go in the car. He made off from Featherstall Road, but was detained by members of the public until the police arrived. He was arrested by two police officers and cautioned. He replied, "Okay, just get these boys off me". 4. He was taken to Oldham Police Station. On a search he was found to be in possession of a black woolly hat, black gloves and a black balaclava. He was found still to have in his possession the victim's mobile telephone. 5. He was interviewed on 8 March 2004. In summary he said that he had been at a club during the course of the evening and that he was drunk. He claimed that he had arranged to meet two girls by the food shops and as a result of being invited to do so had followed the girls in the car. He accepted that he had had a balaclava on, but said that this was as a joke and that he had taken the victim's mobile telephone so that he could her details onto his own telephone. He was charged with the offence of robbery. 6. The Attorney General submits that the following aggravating features are present in this case. First, this was a planned robbery executed at night. Secondly, the victim was a vulnerable young female. Third, the victim was pursued in a car at high speeds. Fourth, the offender wore a black balaclava during the course of the robbery and made gestures which seemed to indicate that he might have a weapon on him. Fifth, the subject of the robbery was a mobile telephone. 7. The Attorney General accepts that the following mitigating features are present. The offender pleaded guilty (albeit not tendered at the earliest stage). He was of good character, save for one offence for which he had been cautioned. 8. The Attorney General submits that the sentence was unduly lenient and principally relies on the decision of this court in Attorney General's Reference Nos 4 and 7 of 2002 ( R v Lobban and Anothr ) [2002] 2 Cr App R(S) 345. 9. The offender is a young man who had an unblemished record, save for the caution in 2003. That was a caution for an offence of criminal damage. We are prepared to deal with him at this stage on the basis that he had a good character. There was before the sentencing court a pre-sentence report in which the author of the report stated that the offender could pose a risk of harm to the public in the future, but suggested a community order. That was the order that was made by the sentencing judge. 10. This court has a relatively up-to-date further report from the probation officer and we have been given further information by Mr Wishart who appears on behalf of the offender. In summary it appears that not only has the offender complied with the conditions of the Community Punishment Order, he has now completed the whole of the 80 hours that he was ordered to serve. We have been told by Mr Wishart that the probation officer describes the offender's progress as excellent. 11. This was in our judgment a serious offence of its kind. We accept the submissions made on behalf of the Attorney General in relation to the aggravating features. In Lobban to which we have already referred, at page 347 the Lord Chief Justice giving the judgment of the court said the following: "3. The information available points in the direction of telephones having played a part in the rise in robberies. Those under 18 constitute nearly 48 per cent of all victims, with a peak age at 15 and 16. Faced with that background, the courts have no alternative but to adopt a robust sentencing policy to those who commit these offences. Those who do so must understand that they will be punished severely. Custodial sentences will be the only option available to the courts when these offences are committed unless there are exceptional circumstances. That will apply irrespective of the age of the offender and irrespective of whether the offender has previous convictions. However, both those factors are very important when the judge comes to decide on the length of the sentence." The court went on to agree with the bracket suggested on behalf of the Attorney General by Mr Orlando Pownall that it should be 18 months to five years. 12. In our judgment there are no exceptional circumstances in this case which would justify a non-custodial sentence. We conclude that the sentence passed upon the offender by the judge was unduly lenient. Taking into account all the circumstances, including the mitigating factors to which counsel has referred, as did the judge in his sentencing remarks, taking into account the double jeopardy factor and no least the offender's hitherto good character and early plea of guilty, we conclude that the appropriate sentence in this case is 12 months' imprisonment. That will run from the date of the offender's surrender. We should make it clear that in arriving at this sentence we have taken into account that the offender, since originally being sentenced, has complied with the Community Punishment Order and has served the whole of the 80 hours that he was ordered to perform. But for that factor the sentence that we have imposed would be rather longer. For those reasons the sentence passed by the judge is quashed. For it we substitute a sentence of twelve months' imprisonment. ___________________________________

2005_06_10-530.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/1594/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/1594

b47e1bcacb260f555244f6e2e3bb8b7985e266fdc5e07a979caf53a08a4cdae3

[2017] EWCA Crim 43

EWCA_Crim_43

crown_court

Neutral Citation Number: [2017] EWCA Crim 43 No: 201604251 A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 26th January 2017 B e f o r e : THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION (LADY JUSTICE HALLETT DBE) MR JUSTICE STUART-SMITH MS JUSTICE RUSSELL DBE R E G I N A v L 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 7

Neutral Citation Number: [2017] EWCA Crim 43 No: 201604251 A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 26th January 2017 B e f o r e : THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION (LADY JUSTICE HALLETT DBE) MR JUSTICE STUART-SMITH MS JUSTICE RUSSELL DBE R E G I N A v L Computer Aided Transcript of the Stenograph Notes of WordWave International Limited Trading as DTI 8th Floor, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) Mr R S Sandford appeared on behalf of the Appellant Mr P Jarvis appeared on behalf of the Crown J U D G M E N T (Approved) Crown copyright© THE VICE PRESIDENT: Introduction 1. Despite what was hoped to be the clear guidance of the specially constituted court in R v Forbes [2016] EWCA Crim 1388 ; [2017] 1 WLR 53 , we have been asked yet again to consider the proper approach to sentencing an adult for sexual offences committed as a teenager. With very little notice, we invited the Crown to be represented. We are indebted to the Crown and to Mr Paul Jarvis whom they instructed to appear before us this morning. He has been of very considerable assistance. 2. The 51-year-old appellant was convicted on 18 August 2016 of sexual offences on two female relations when he was aged between 14 and 17 and they were considerably younger. Given the seriousness of his offending and the impact upon his victims, Mr Sandford accepted that, at first sight, the total sentence of 30 months' imprisonment imposed by the trial judge, Mr Recorder Gateshill, was merciful. The question posed for this court is whether the judge had the power to impose it. 3. We should emphasise that reporting restrictions apply, albeit we hope not to say anything that could lead to the identification of the victims. Facts 4. Both counts on the indictment were specific. The prosecution's case was that on two separate occasions the appellant indecently assaulted two different complainants. It was impossible to prove the exact date of the offences so as to establish precisely the age of the offender or the age of his victims. 5. The appellant was born on 17 March 1965. The period set out in count 1 (the indecent assault on C1) was from 1 January 1980 to 1 January 1982 when the appellant would have been aged between 14 years and 10 months to 16 years and 10 months. He made C1, then aged approximately six, perform oral sex upon him under a blanket. The period set out in count 2 (indecent assault on C2) was 26 April 1979 to 26 April 1981 when the appellant would have been aged 14 years and 1 month to 16 years and 1 month. He digitally penetrated C2, then aged nine or ten, when they were together in a tent in the garden. When interviewed about the offences, he denied them. By the time he appeared in the Crown Court he had 45 convictions spanning from 1978 to 2011. They included two offences of indecent assault on a female under the age of 14 in 1980, for which he received a supervision order. Sentencing remarks 6. The trial judge, Mr Recorder Gateshill, observed that this was one of the worst cases of indecent assault that could be imagined. The appellant violated two very young girls and the impact upon them had been long-standing and serious. It had left them with psychological damage that had persisted throughout their lives. Significant substantial problems they had experienced over the years had been attributable to the appellant's behaviour years ago. The appellant had evaded justice for many years. 7. The Recorder, who did not have the benefit of the judgment in Forbes , determined that, had the appellant committed these acts in the recent past, as an adult, he would be sentenced to a period of at least 10 years' imprisonment based on the various guidelines now in place. The appellant's offence against C2 would now be categorised as an offence of rape for which the maximum is life imprisonment. The maximum sentence that could be imposed for offences of indecent assault at the time of his offending was 5 years' imprisonment. The appellant's offences were so serious, the Recorder felt justified in taking the maximum sentence of 5 years as a starting point, but decided he must make a significant adjustment to that figure to reflect the fact that teenagers should not be sentenced as heavily as adults. He was unable to determine the exact age of the appellant at the time of the offences. He decided to sentence on the basis he was at the younger end of the scale of 14 to 17. He reduced the sentence by 50 per cent to reflect the appellant's youth and ordered the sentences to run concurrently. Ground of Appeal 8. The appellant has leave of the single judge to argue essentially one point: that the Recorder’s powers were constrained by the statutory maximum penalty available at the time of the offence for an offender aged 14. It was common ground that the maximum powers of the juvenile court for a 14-year-old would have been 3 months' detention for a single offence with a maximum of 6 months for consecutive terms. A 14 year old offender committed to the Crown Court for sentence, would have faced a maximum of 6 months for a single offence and a maximum of 12 months for consecutive terms. 9. Reliance was placed on Forbes in support of the proposition that sentencing the appellant as an adult to a longer sentence than would have been available to the court had he been sentenced as a 14 year old offends Article 7 of the European Convention on Human Rights. Conclusions 10. In R v Bowker [2007] EWCA Crim 1608 the court held that the fact that a defendant who committed an offence two days short of his 18 th birthday was sentenced as an 18-year-old (for whom there was a higher maximum penalty) did not involve a breach Article 7. The court observed: “It seems to us that the provisions of Article 7.1 are clearly directed to the mischief of retroactive or retrospective changes in the law. In the present case, there was no change in the law. The penalties for violent disorder remained the same. All that changed was the penal regime to which the appellant would be exposed as a result of the normal operation of existing law to his age at the time of conviction. For those reasons, we do not consider that the court is constrained in any way by the provisions of Article 7 in situations such as the present." 11. Similarly, in R v H [2011] EWCA Crim 2753 ; [2012] 1 WLR 1416 the court held that, provided a sentence imposed upon an offender did not exceed the maximum sentence applicable to the offence at the time the offence was committed, then Article 7 would not be contravened. 12. Without expressing any dissent from the principles set out in H and Bowker , the court in Forbes distinguished both cases, stating it made a difference to the operation of Article 7 where no custodial sentence of any kind could have been imposed upon an offender at the time he committed the offence, given his age. In those circumstances it would be contrary to Article 7 and ordinary common law fairness to impose a custodial sentence upon him now (see paragraph 120). 13. The court in Forbes stressed the limited nature of this exception. Article 7 is not offended where a custodial sentence was always available for an offender, even if the type of custodial sentence may be different (see paragraph 119). The court stressed that this departure from the H principle should not "operate as encouragement or licence to courts to indulge in a similar exercise in any other situation" (see paragraph 121). 14. Following Forbes , the position is, therefore, as follows: (a) The general principle is that the relevant maximum penalty is the maximum penalty available for the offence at the date of the commission of the offence. (b) There is an exception to the general principle where the offender could not have received any form of custodial sentence at the time he committed the offence. (c) The exception is no licence for any broader inquiry. If custody was available at the time of the offending for the offender, the age of an offender at the time of the commission of the offence is relevant solely to the assessment of culpability. The only constraint in those circumstances on the powers of the sentencing court is the statutory maximum for the offence. The court should not analyse the nature of the custody available for a young offender at the time, the maximum length of that custody, the court's powers to commit for sentence as a grave crime or the principles governing sentencing of young offenders, in so far as they go beyond the importance of assessing culpability and maturity. 15. On the facts of this case, therefore, reliance on Forbes is misplaced. If the appellant had been sentenced for these offences as a 14-year-old, the sentencing court would have had available to it at least one custodial option. The fact that a form of custodial sentence could have been imposed on him, irrespective of its maximum length or nature, is sufficient to satisfy the requirements of Article 7 and the principles of common law fairness. There has been no retroactive or retrospective change in the law; it is simply that the penal regime has changed because his age has changed. 16. It is not suggested by Mr Sandford that the sentence, if lawful, was excessive and for good reason. These were serious offences committed by a teenage boy on much younger children, with devastating consequences for them. The appeal must be dismissed.

2017_01_26-3903.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/43/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/43

6dea36a64f0183d2cd5a1721f38aa7481aa0ea82ed77e29117b70cfcb66af4bc

[2008] EWCA Crim 872

EWCA_Crim_872

crown_court

Case No. 2007/2093/D2 Neutral Citation Number: [2008] EWCA Crim 872 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 5 March 2008 B e f o r e : LORD JUSTICE DYSON MR JUSTICE PENRY-DAVEY SIR CHRISTOPHER HOLLAND - - - - - - - - - - - - - - - - - - - - - R E G I N A v MICHAEL SUMMERS - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 19

Case No. 2007/2093/D2 Neutral Citation Number: [2008] EWCA Crim 872 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 5 March 2008 B e f o r e : LORD JUSTICE DYSON MR JUSTICE PENRY-DAVEY SIR CHRISTOPHER HOLLAND - - - - - - - - - - - - - - - - - - - - - R E G I N A v MICHAEL SUMMERS - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr G Mercer QC and Mr I Hughes appeared on behalf of the Appellant Mr M Edmunds QC appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE PENRY-DAVEY: On 2nd February 2006 in the Crown Court at Bristol the appellant pleaded guilty on rearraignment to 32 counts of obtaining a money transfer by deception. On 28th April he was sentenced to four years' imprisonment on each count concurrent. A count of conspiracy to defraud was quashed. Two counts of money laundering were ordered to remain on the file. Two other defendants called Mills and Mead were acquitted on a number of counts and were discharged. 2. On 15th March 2007 a confiscation order in the sum of £4 million was made, with 18 months to pay from that date and six years' imprisonment in default. Compensation of £1,902,464 was to be paid out of the sums recovered under the confiscation order. There is no appeal in this case against the sentence of imprisonment. The appeal, with the leave of the single judge, is against the confiscation order. 3. The offences charged covered a period from 1997 to 2004. The fraud perpetrated by the appellant was an elaborate investment fraud described by the Crown as a typical "Ponzi" scheme. Investors were persuaded that the appellant had access to High Yield Investment Programmes and a high yield or return was promised ranging from 25% to 60% and in some cases 100% in a year. It was too good to be true, but numbers were induced to invest substantial sums under what were described as Secure Investment Programme Agreements. Under the terms of the agreement the money was paid over for the sole purpose of investing in a trading programme for the buying and selling of what was said to be a form of bank investment. The security of the money was said to be guaranteed and secure because there was a form of bank guarantee or professional indemnity insurance backing it. The agreements however were entirely bogus. The appellant had no access to any sort of trading programme of the type represented into which the money could be invested and none of the money was so invested. The monies were paid into a succession of accounts. Some repayments of capital and interest were made to earlier investors by a process of teaming and lading with money coming from later investors and the earlier investors thinking their capital was producing a return from the trading programme they believed their money had been invested in. Payments were made to a number of intermediaries, including Mills and Mead who negotiated the agreements in part II of the indictment. 4. The first three counts of that indictment related to monies coming from a Miss Gordon, an elderly lady living in a retirement home in Torquay whose affairs were controlled by the proprietor of the home and her accountant, Mr Marlow. The total amount obtained from her in 1997 and 1998 was £1,744,000.00, the majority of which was paid into the appellant's account, Bank Sarasin, in Switzerland. Happily in civil proceedings brought by the Public Trustee, for whom Allen & Overy acted, £1,313,779.00 of Miss Gordon's money was recovered in due course. 5. Counts 5 to 27 of the indictment covering the substantial period of the fraud between 1998 and 2002 involved the use by the appellant of Channel Islands Accounts of companies operated by Mr Roger Taylor to receive the investors' monies. The total amount obtained in respect of those counts was well in excess of $2 million, approximately £1,450,000.00. The determined benefit in respect of payments into the Channel Island Accounts, not all from defrauded investors and excluding payments which were accepted as relating to Mr Taylor's own separate business, was approximately £5 million. 6. Counts 28 to 33 of the indictment related to further monies totalling £145,000 obtained by the appellant by means of substantially identical frauds committed in 2003 and 2004 when he was on bail. 7. It was the Crown's case that the appellant had no intention of investing the money and did not invest it, rather using it as if it were his own, spending much of it on himself. It was also their case that Mead and Mills were his assistants, recruiting investors and helping him keep them at bay. 8. The Crown made clear from the earliest stage of the confiscation proceedings their case that the appellant had undisclosed hidden assets. The appellant sought to say that he had no such assets beyond those disclosed and no undisclosed bank accounts. 9. The confiscation hearing extended over some days and at the outset of his ruling the judge referred to his earlier decision as to the amount of benefit, somewhat in excess of £11 million. That aspect of the matter was, it appears, ultimately agreed and the benefit figure is not significantly challenged in this appeal. The appeal relates solely to the amount of the confiscation order, namely the sum of £4 million, which it is submitted was manifestly excessive or wrong in principle. 10. The legislative framework for this case is contained in sections of the Criminal Justice Act 1988. Section 71(6) provided as follows: "Subject to section 1(c) above the sum which an order made by a court under this section requires an offender to pay shall be equal to- (a) the benefit in respect of which it is made; or (b) the amount appearing to the court to be the amount that might be realised at the time the order is made, Whichever is the less." Subsection (6) of section 73 provides: "If the court is satisfied as to any matter relevant for determining the amount that might be realised at the time the confiscation order is made ... the court may issue a certificate giving the court’s opinion as to the matters concerned and shall do so if satisfied that the amount that might be realised at the time the confiscation order is made is less than the amount the court assesses to be the value of the defendant’s benefit from the offence or, if more than one, all the offences in respect of which the order may be made." 11. It is clearly established by authority and was accepted in this case that the burden of establishing that the realisable amount was less than the benefit so as to justify a lower figure for the confiscation order was on the appellant to the civil standard on the balance of probabilities and it is equally clear that if he sought to establish that he had to do so by clear and cogent evidence: Walbrook & Glasgow [1994] 15 Cr.App.R (S) 783 followed in Anderson [2005] EWCA Crim. 3384 . Following from that, it is also clear that there is no burden on the prosecution to show a prima facie case of hidden assets, but for the appellant to provide evidence demonstrating the extent of his realisable assets: Barwick [2001] 1 Cr.App.R (S) 129 and Barnham [2006] 1 Cr.App.R (S) 16 . 12. At paragraph 39 of the judgment in the latter case, Gage LJ, giving the judgment of the court, said: "We reject the submission that the prosecution was required to do anything further at the second stage of the proceedings by way of providing a prima facie case for the appellant to meet. In our judgment the correct approach for the court to take when dealing with confiscation proceedings at the second stage is the same whether the benefit has been proved by evidence in addition to the statutory assumptions. Once the prosecution has established the benefit there is no requirement on it to provide a prima facie case. At the second stage the burden of proof shifts to a defendant to establish, if he can, his realisable assets to the satisfaction of the court. By the second stage a defendant will know exactly how the court has determined benefit attributable to him and must prove by evidence what his realisable assets are. It is for him to show why the confiscation order should not be 'the value of (his) proceeds of drug trafficking'. If he proves that he has no, or appreciably less, realisable assets than the amount of the benefit determined by the court the order will be made in the lesser sum. Provided the judge keeps well in mind the principle that the risk of serious injustice to the defendant must be avoided and does not just pay lip service to that principle the order will be in the amount assessed as either the amount of benefit or such other sum as the defendant shows represents his realisable assets. To hold that the prosecution must, in some way, show a prima facie case that the defendant has hidden assets in our judgment would defeat the object of the legislation. It is designed to enable the court to confiscate a criminal's ill-gotten gains. The expression 'hidden assets' is indicative of the fact that the prosecution can have no means of knowing how and where a defendant may have dealt with or disposed of the proceeds of his criminal activities." 13. We should refer finally to section 71(1C) providing as follows: "If ... the court is satisfied that a victim of any relevant criminal conduct has instituted, or intends to institute, civil proceedings against the defendant in respect of loss, injury or damage sustained in connection with that conduct - (a) the court shall have a power, instead of a duty, to make an order under this section; (b) subsection (6) shall not apply for determining the amount to be recovered in that case by virtue of this section; and (c) where the court makes an order in exercise of that power, the sum required to be paid under that order shall be of such amount, not exceeding the amount which (but for paragraph (b) above) would apply by virtue of subsection (6) below, as the court thinks fit." When that section applies it converts the duty to make the confiscation order into a power to do so and provides a discretion not otherwise available to make a lower order than that which would otherwise be required under subsection (6). 14. The ruling of the judge after a significantly lengthy hearing has the merit of brevity, but it is suggested that it is seriously defective in a number of respects. Having referred to the benefit figure, he said this: "I have been referred to a number of individual items upon which I have been invited to rule and really, apart from what has been frozen in the bank of Butterfield, the value of Highbridge Farm and comparatively small sums in the United Kingdom plants for cars, no real assets have come to light and I am invited to make assumptions that there are assets available to the defendant which should be included in any figure for confiscation. It is -- and indeed it is the law -- that the onus is upon Mr Summers to show that he has no assets." He went on to refer to two amounts paid to Mills and Mead, on which there had been submissions as to whether or not they constituted gifts, and in the event he concluded that he should not take them into account for the purposes of this calculation. He went on in these words: "The only other item about which I am able to make really an individual finding is Highbridge Farm. From the evidence I heard on the last occasion from Mr Summers I am in no doubt that the property belongs to him and to him alone, and that the sham of his wife paying the mortgage on no earnings demonstrates this completely. I am mindful of the danger of double taxation in respect of the purchase proceeds. His evidence, as I said on the first day of this application, shows him to be somebody who was prevaricating. He was attempting even then to minimise his considerable dishonesty, and when he has disclosed anything in this case it really has been drip-feed. He was untruthful, as demonstrated by him agreeing to a proposition and then having to concede it as being wholly erroneous when he was presented with the figures. The evidence shows that he is clearly adroit at laundering money; his revelation that he had, I think it was £56,000 in a locked tin box in cash in his garage. He had and does deliberately move money about, and has done so to make it difficult to trace. On his own acceptance and admission he has never paid any tax, and he agreed in cross-examination that his position was that if it was inconvenient to disclose any money to the authorities he would not do so. An example perhaps in this case was the €83,000 he failed to disclose in respect of the restraint order proceedings. I have come to the conclusion that I am not in a position to determine every item individually and make a ruling on each one. I have the information before me as to the funds that came to him and the amount by which he had benefited. His evidence does not satisfy me that there are no hidden assets. On the other hand, I am unable to be more precise than to take an overall view of what he has kept back and hidden for himself. The combination of all the evidence that I have heard and read, together with the amounts listed, allows me to say that of the benefit of just over £11 million the defendant has been able to satisfy me that £7 million of that is no longer available to him in the form of realisable assets. Accordingly, I have come to the conclusion that a figure of £4 million is the fair and proper figure to order by way of confiscation." ] 15. The appellant suggests that the rationale behind the principle that the onus is on the defendant to establish that the amount that might be realised is less than the benefit figure is that the prosecution often cannot know what has become of the proceeds of the defendant's criminal activities. It is however submitted on the appellant's behalf that there is a distinction to be drawn between the situation where a defendant is unable to show what has become of all or part of the proceeds of his criminal conduct reflected in the benefit figure and where it is asserted that he has other assets available to satisfy the confiscation order not derived from the proceeds of his criminal conduct. In the latter case it is submitted effectively that the burden should be on the prosecution to show that he has such other assets, alternatively that there should at least be some evidence that he does. It is submitted that the distinction is of importance in this case. The submission is made that the destination of the proceeds reflected in the benefit figure was substantially explained in the evidence and that the unexplained would not justify an order to the extent of £4 million. In particular the fact is relied on that the benefit figure was very much a gross figure which did not take into account repayments to investors of monies recovered in civil actions brought, for example, on behalf of Miss Gordon, or monies paid to or retained by others involved innocently or otherwise in the mechanics of the fraud. It is suggested that analysis of the bank accounts which formed the basis of the prosecution statements substantially demonstrated how much was received personally by the appellant and in particular during the substantial period of the fraud when payments into the Channel Islands accounts reflected in the benefit figure were approximately £5 million and payments out to the appellant were in the region of £428,000. It is suggested too that the destination of the monies received by the appellant and his various accounts and how the sums were spent is substantially explained by the prosecution's own analysis of the accounts. Following that, the appellant submits through Mr Mercer that although the judge was entitled to reach the conclusion on realisable assets on the basis of a broad assessment rather than a precise calculation, he failed in his judgment to explain in any way how he had reached the figure of £4 million or to address the submission that the disposal of benefit assets was substantially explained, or to make any findings to the extent to which it was unexplained, or to distinguish between benefit assets and other assets. In the result it is submitted that the order the judge made could only be justified by a finding that the appellant had substantial undisclosed other assets and that there was no evidence of that in this case. 16. The respondent submits that the burden lay and remained on the appellant to prove that the realisable amount was less than the benefit figure. The judge found that the appellant was dishonest, prevaricating, seeking to minimise his considerable dishonesty, not providing disclosure or, if so doing, only on a drip-feed basis, that he was adroit at laundering money, including moving it about to make it difficult to trace and was forced to admit in cross-examination that he would not disclose money to the authorities if it was inconvenient to do so. Those conclusions are relied upon by the Crown and it is submitted that the judge approached the assessment of the realisable amount applying proper principles. The suggestion is also made that the appellant may have been fortunate not to have been subject to a confiscation order in the full sum of the benefit figure, but it is contended equally that the fact that the judge identified a substantially lower figure amply demonstrates that he had taken account of the material before him as he said in terms he had done. It is, the respondent points out, common ground that the judge was entitled to reach his conclusion on the basis of broad assessment rather than precise calculation which may well in many cases be the only possible approach. 17. The assertion that where hidden assets are alleged by the Crown it is for the Crown to prove the amount and availability wrongly it is submitted seeks to reverse the clear burden on the appellant. Thus the judge properly concluded, it is suggested, that the appellant's evidence did not satisfy him that there were no hidden assets. He was however unable to be precise and only able to take an overall view of the amount that had been kept back and hidden. 18. The respondent concedes that the judge made no express reference to the matter in his judgment, but it is submitted that the practical effect of his ruling was to discount from the benefit figure the approximate sums recovered or paid to victims and intermediaries. That figure, it is submitted, can be identified from the evidence and in particular a schedule of amounts paid out of Swiss and Channel Island bank accounts, amounts frozen in the Channel Islands and other direct payments to the appellant. That figure overall it is submitted is in the region of £5.8 million, and with the retail price index addition at 15.2% as with the benefit calculation amounts to a total of approximately £6.7 million. That total, it is submitted, is in line with the figure the judge identified in his ruling of £7 million no longer being available to the appellant in the form of realisable assets. It is clear from the ruling that it was on the basis of that figure of £7 million that the judge concluded that the figure of £4 million was the proper amount to order by way of confiscation. 19. There was also in the case another schedule produced by the prosecution of realisable assets on which we were addressed. That totalled some £4.188 million, less the £600,000 or so which in the event was discounted by the judge in respect of gifts, leaving in the region of £3.5 million. Of that the appellant conceded in argument that £1.3 million was available and the judge was in our judgment entitled to conclude that he was not satisfied that the balance of £2.2 million was not available to the appellant on the evidence and arguments that he had heard. In any event, that schedule was limited to identified realisable assets related to the benefit amounts, and did not include realisable assets from other unconnected sources. 20. Thus, although the judge did not refer expressly to the discretion that he had as a result of the assistance of civil proceedings in the case, nor indeed did he refer to the other conceivable way of approaching the matter, it is submitted that what he ordered was in line with a proper exercise of discretion and was therefore not manifestly excessive or wrong in principle. 21. We have considered the ruling that the judge made with some care. It is in our judgment defective in that it fails to indicate the basis, even in general terms, of how the judge had reached the figures concerned and simply stating that he had taken all the evidence into account is no substitute for indicating, even if briefly, his conclusions and the basis on which those conclusions were reached including in this case the important figures of £7 million and £4 million. 22. However, in our judgment the fundamental submission made on the appellant's behalf to the effect that there is some form of shifting of the burden of proof away from the defendant is misconceived. On the basis of clear authority the burden of showing that his realisable assets are less than the amount of his benefit under the Act rests and remains on the appellant and it was, in our judgment, not for the prosecution to establish that the appellant had undisclosed assets, more particularly where the case from the outset was clearly that he had such assets, but for the appellant to the appropriate standard and on the basis of evidence to satisfy the court that he had no such assets. The judge properly concluded that the appellant had failed to discharge that burden. 23. Thus we come back to the figure for confiscation which the judge identified. Although the basis on which the judge reached the two figures of £7 million and £4 million was not explained in the course of the ruling and should have been, what we have to consider is whether the amount of the order, namely £4 million, was clearly excessive or wrong in principle. Although it was unsatisfactory for the judge not to identify the basis on which he reached the ultimate figure in our judgment there is a rational and proper basis for both figures, having regard to the matters that we have set out, and in the result there is no proper basis for saying that the ultimate amount of the order, namely £4 million was manifestly excessive, nor that the making of an order in that amount was wrong in principle. 24. Our decision in this case in no way discounts or diminishes the desirability of a judge in cases of this kind identifying, even if only in general terms, the basis on which figures are arrived at. In all the circumstances of this case, however, we conclude that there was a proper basis for the conclusion the judge reached even though he failed to explain or identify that basis and accordingly the appeal against sentence is dismissed.

2008_03_05-1416.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/872/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/872

bdccfa3eecf7fe15f1fc51ff067cf52bd238a7079d680249ccc589f73ffcd499

[2003] EWCA Crim 815

EWCA_Crim_815

supreme_court

Case No: 200106700Z2 Neutral Citation No: [2003] EWCA Crim 815 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM MRS JUSTICE HALLETT Royal Courts of Justice Strand, London, WC2A 2LL Wednesday 26 th March 2003 Before : LORD JUSTICE MANTELL MR JUSTICE JACK and MR JUSTICE HEDLEY - - - - - - - - - - - - - - - - - - - - - REGINA - v - DAVID WELLER - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of Smith Bernal Wordwave Limited, 190

Case No: 200106700Z2 Neutral Citation No: [2003] EWCA Crim 815 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM MRS JUSTICE HALLETT Royal Courts of Justice Strand, London, WC2A 2LL Wednesday 26 th March 2003 Before : LORD JUSTICE MANTELL MR JUSTICE JACK and MR JUSTICE HEDLEY - - - - - - - - - - - - - - - - - - - - - REGINA - v - DAVID WELLER - - - - - - - - - - - - - - - - - - - - - (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 C Campbell-Clyne Appeared for the Appellant Mr N Ford QC & Mr W Hart Appeared for the Crown - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Mantell: 1. On 1 November 2001 the appellant, David Weller, was convicted of the murder of his girlfriend, Ziggy Fisher, at the conclusion of his trial before Hallett J. in the Crown Court at Bristol. The sole issue for the jury at the trial was whether the appellant was guilty of murder as charged or guilty of manslaughter by reason of provocation. There was no dispute that he had strangled Ziggy Fisher. The appeal turns on the directions given by the judge to the jury with regard to provocation. It involves consideration of how a jury is to be directed on provocation following the decision of the House of Lords in R v Smith (Morgan) [2001] A.C.146 , [2001] 1 Cr.App.R. 31 . The appeal is brought with the leave of the full court. 2. It is unnecessary to refer to the facts in any detail. The appellant and Ziggy Fisher had been lovers for about 12 months. She was 18 years old; he was 34. On Friday, 27 October 2000 after they had been living together for about five months there was a heated argument because she wished to end the relationship. It appears that this was because he was unduly possessive and jealous as to which there was considerable evidence. She spent the night with a friend and over the weekend attempted to collect her belongings from the flat they shared in Bridgwater. On Monday 30 October they met up and went back to the flat. Another heated argument occurred over her conduct with other men. The appellant grabbed her by the throat and strangled her. He hid her body. He gave himself up to the police on Wednesday, 1 November 2001. The law of provocation 3. The issue raised by the appeal is whether the judge’s directions to the jury on the issue of provocation were adequate. We do not intend any wider review of the law relating to provocation than is necessary to set the legal context and to deal with the matters that arise on this appeal. 4. As is well known, there are two elements to the ‘defence’ of provocation. For present purposes they may be identified as follows: (a) whether the defendant lost his self-control; (b) whether he should reasonably have controlled himself. They are sometimes called the ‘subjective element’ and the ‘objective element’. The first element sets up the defence. The second sets a limit. 5. The first element raises a question of actual fact: at the time of the killing had the defendant suddenly and temporarily lost his self-control? Whether or not the defendant was likely to lose his self-control because of the position in which he found himself or because of the kind of man he was, is at first sight irrelevant because the issue is not why he lost his control but whether he did. We refer to the Judicial Studies Board model direction published in August 2000, which does not include any reference to the ‘characteristics’ of the defendant at this point. 6. There may, however, be inconclusive direct evidence as to whether the defendant did lose his self-control. Evidence coming from the defendant that he did lose his self-control may be challenged. Then other factors as mentioned may come into play. The relevance of such evidence to this question was accepted in Smith – see per Lord Slynn [2001] 1 A.C. 146 at 152H. 7. Section 3 of the Homicide Act 1957 is concerned with the second element and not with the first. It provides: 3. Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both said and done according to the effect which, in their opinion, it would have on a reasonable man. 8. In Smith the House of Lords was concerned with the effect of the section and what would be an appropriate direction to a jury. Although it was probably only Lord Hoffmann among the majority in the House in favour of dismissing the appeal who directly considered how juries should be directed, the speeches of Lord Slynn and Lord Clyde (who with Lord Hoffmann constituted the majority) necessarily touch upon the question. The specific issue on the facts of Smith was whether, in considering whether the defendant should have controlled himself, his depressive illness was to be taken into account. The answer was ‘yes’. 9. Lord Slynn stated at [2001] 1 A.C. at 155F that: “In my view the section requires that the jury should ask what could reasonably be expected of a person with the accused’s characteristics. … It is thus not enough for the accused to say “I am a depressive, therefore I cannot be expected to exercise self-control.” The jury must ask whether he has exercised the degree of self-control to be exercised by someone is his situation.” 10. At [2001] 1 A.C. 163 C Lord Hoffmann concluded in relation to the construction of section 3 : “It follows, in my opinion, that it would not be consistent with section 3 for the judge to tell the jury that they should ignore any factor or characteristic of the accused in deciding whether the objective [i.e. the second] element of provocation has been satisfied. That would be to trespass upon their province.” 11. Likewise, at page 166G/H he concluded his review of R v Camplin [1978] A.C. 705 with these words: “The jury is entitled to act on its own opinion of whether the objective element of provocation has been satisfied and the judge is not entitled to tell them that for this purpose the law requires them to exclude from consideration any of the circumstances or characteristics of the accused.” 12. Later at page 169F, he considered the Australian case of R v Stingel (1990) 171 C.L.R. 312 . An infatuated man had stabbed his former girlfriend’s lover. The High Court of Australia held that the judge had been right to withdraw the issue of provocation from the jury. Lord Hoffmann agreed, saying ‘Male possessiveness and jealousy should not today be an acceptable reason for loss of self-control leading to homicide,…. .’ He went on to say that section 3 forbad an English judge from withdrawing the issue from the jury. He then said: ‘So, it is suggested, a direction that characteristics such as jealousy and obsession should be ignored in relation to the objective element is the best way to ensure that people like Stingel cannot rely on the defence.’ We note that Lord Hoffmann is here simply restating a suggestion and not commending an approach. 13. At the beginning of his first paragraph under the heading ‘Guiding the jury’, page 171A, Lord Hoffmann referred to the concern that, if certain characteristics were not excluded from the jury’s consideration, they might receive the impression the law actually required them to take such matters into account. This was, he said, the risk which followed from section 3 : but judges could guide juries taking account of their different roles. 14. Later ([2001] 1 A.C. at 173D) Lord Hoffmann set out how he considered that juries should be directed on this objective element of the law of provocation: “In my opinion, therefore, judges should not be required to describe the objective element in the provocation defence by reference to a reasonable man, with or without attribution of personal characteristics. They may instead find it more helpful to explain in simple language the principles of the doctrine of provocation. First, it requires that the accused should have killed while he lost self-control and that something should have caused him to lose self-control. For better or for worse, section 3 left this part of the law untouched. Secondly, the fact that something caused him to lose self-control is not enough. The law expects people to exercise control over their emotions. A tendency to violent rages or childish tantrums is a defect in character rather than an excuse. The jury must think that the circumstances were such as to make the loss of self-control sufficiently excusable to reduce the gravity of the offence from murder to manslaughter. This is entirely a question for the jury. In deciding what should count as a sufficient excuse, they have to apply what they consider to be appropriate standards of behaviour; on the one hand making allowance for human nature and the power of the emotions but, on the other hand, not allowing someone to rely upon his own violent disposition. In applying these standards of behaviour, the jury represent the community and decide …. What degree of self-control “everyone is entitled to expect that his fellow citizens will exercise in society as it is today”. The general principle is that the same standards of behaviour are expected of everyone, regardless of their individual psychological make-up. In most cases, nothing more will need to be said. But the jury should in an appropriate case be told, in whatever language will best convey the distinction, that this is a principle and not a rigid rule. It may sometimes yield to a more important principle, which is to do justice in the particular case. So the jury may think that there is some characteristic of the accused, whether temporary or permanent, which affected the degree of control which society could reasonably have expected of him and which it would be unjust not to take into account. If the jury takes this view they are at liberty to give effect to it.” He continued: “My lords, I do not wish to lay down any prescriptive formula for the way in which the matter is explained to the jury. I am sure that if judges are freed from the necessity of invoking the formula of the reasonable man equipped with an array on unreasonable “eligible characteristics”, they will be able to explain the principles in simple terms. Provided that the judge makes it clear that the question is in the end one for the jury and he is not seeking to “impose a fetter on the right and duty of the jury which the Act accords to them”, the guidance which he gives must be a matter for his judgment on the facts of the case.” 15. Lord Clyde was the third among the majority of their Lordships in favour of dismissing the appeal. At the conclusion of his speech he stated his agreement with the speeches of Lord Slynn and Lord Hoffmann. He considered (at [2001] 1 A.C. 177 H) the position of a battered wife and stated: “The reasonable person in such a case should be one who is exercising a reasonable level of self-control for someone with her history, her experience and her state of mind. On such an approach the jury should be perfectly capable or returning a realistic answer and thus achieve a verdict which would fairly meet any peculiarities of the particular case consistently with the recognition of the importance of curbing temper and passion in the interest of civil order.” Later, at page179G, he stated: “It seems to me that the standard of reasonableness in this context should refer to a person exercising the ordinary power of self-control over his passions which someone in his position is able to exercise and is expected by society to exercise. By position I mean to include all the characteristics which the particular individual possesses and which may in the circumstances bear on his power of self-control other than those influences which have been self-induced. Society should require that he exercise a reasonable control over himself, but the limits within which control is reasonably to be demanded must take account of characteristics peculiar to him which reduce the extent to which he is capable of controlling himself. Such characteristics as an exceptional pugnacity or excitability will not suffice. Such tendencies require to be controlled. Section 3 requires that the accused should have made reasonable efforts to control himself within the limits of what he is reasonably able to do. This is not to destroy the idea of the reasonable man not to reincarnate him; it is simply to clothe him with a reasonable degree of reality. But as the statute prescribes, the matter comes to be one of the circumstances of the case and the good sense of the jury. Although the statute expressly refers to a reasonable man it does not follow that in directing a jury on provocation a judge must in every case use that particular expression. The substance of the section may well be conveyed without necessarily importing the concept of a reasonable man.” 16. In our view it is to be concluded from the majority speeches in Smith that the question whether the defendant should reasonably have controlled himself is to be answered by the jury taking all matters into account. That includes matters relating to the defendant, the kind of man he is and his mental state, as well as the circumstances in which the death occurred. The judge should not tell the jury that they should, as a matter of law, ignore any aspect. He may give them some guidance as to the weight to be given to some aspects, provided he makes it clear that the question is one which, as the law provides, they are to answer, and not him. 17. This approach has the considerable advantage that it is unnecessary to determine whether what has been called a “characteristic” of the accused is an eligible characteristic for the purposes of the second element in provocation, the objective element, or is one of which no account should be taken. It avoids categorising human defects into one category or the other, which would otherwise be necessary and is surely artificial. We refer in particular to the difficulties which arose in R v Dryden [1995] 4 All E.R. 987 and to R v Humphreys [1995] 4 All E.R. 1008 . It is all a matter for the jury. 18. One of the leading authorities considered by their Lordships in Smith and to which we were referred by Mr Campbell-Clyne for the appellant was R v Camplin [1978] A.C. 705 . We need say no more for the purposes of this judgment than that the jury were there directed by the judge that they should not consider whether the provocation was sufficient to make a reasonable boy or lad lose his control, but a reasonable man. The House of Lords upholding the Court of Appeal held that the jury should have been directed in different terms including taking account of the age and sex of the defendant. The well-known passage is at [1978] A.C. 718 F in the speech of Lord Diplock. The present case 19. The complaint is that the judge did not direct the jury that, in considering whether the defendant should reasonably have controlled himself, they could take into account his jealousy and possessiveness. 20. In accordance with good practice the proposed direction on provocation was discussed between the judge and counsel. The transcript is incomplete. However, it is clear that with regard to the second element leading counsel for the appellant was anxious that the jury should be invited to take the appellant’s unusually possessive and jealous nature into account. The judge said “I think I would probably tell them to consider all the circumstances, make allowances for emotions and the like and conclude with, ‘they have to consider what society expects of a man like this defendant.’ I don’t think I am prepared to add ‘an unusually possessive and jealous man like this defendant.’” There was then an exchange between counsel and the judge in which counsel seems to have been distinguishing between an ever present characteristic such as extreme pugnaciousness and qualities or characteristics which only emerge in response to particular situations. The judge’s response was to say that she could follow the reasoning more willingly if this had been a case were jealously was unjustified. She continued “I don’t therefore see that this reaches the stage of being irrational or exceptional in the sense that I think, looking at the speeches in Smith, it needs to be.” Quite what that all added up to we find difficult to see but, in any event, what is important is not the route but the result, that is the direction which was eventually given to the jury. So far as the second element of provocation is concerned the direction is to be found at 6D to 7D of the transcript. “The second aspect is this. The fact that someone may have lost their self-control as a result of some provocative act cannot by itself be a defence to murder, because if it were it would mean anybody who found it difficult to control their emotions or their temper could kill and then say, “Well, I lost my self-control. I’m not guilty of murder.” The law isn’t that stupid, members of the jury. The law expects people to control their emotions. It expects people to exercise reasonable restraint. Even if you are an unusually excitable sort of person the law expects you to control yourself. So that is why you have the second aspect and that is why the section keeps referring to the role of the jury and what a reasonable person would do. So the law says, right, you the jury, you decide, representing the community as you do, you decide whether the circumstances were such or may have been such as to make the loss of self-control excusable so that you reduce the offence from murder to manslaughter. You apply the appropriate standards of behaviour and again you consider all the circumstances. You of course make allowances for human nature and the power of emotions but you have to consider and decide what society expects of a man like this defendant in his position. If you are sure his behaviour was not a reasonable reaction, if you are sure his behaviour was inexcusable, then the verdict would be one of guilty of murder. If it was or may have been excusable your verdict would be ‘not guilty of murder but guilty of manslaughter by reason of provocation.” 21. The first thing to be noted is that the judge did not remove obsessiveness and jealousy from the jury’s considerations. Indeed having emphasised those features when dealing with the first element she advised the jury to take into account “all the circumstances” and decide the question by applying the standard of “what society expects of a man like this defendant in his position.” That direction, it seems to us, leaves entirely open for the jury’s consideration the particular characteristics upon which the appellant was seeking to rely. Indeed, a specific mention coupled with a comment that the jury may think that such characteristics constitute defects of character rather than an excuse for killing could be seen as far less favourable to the appellant than the direction which was actually given. 22. However, the matter does not end there. Following retirement it is clear that the jury had difficulty in following the direction on provocation. They sent a note. We do not have its terms. We do have a transcript of what passed between leading counsel for the appellant and the judge. At one point counsel said “I would respectfully suggest the first thing that you do is, after you have dealt with, as it were the preliminaries and dealt with the ingredients of murder, I would respectfully suggest that you do repeat your directions on provocation. The jury may be able to haul them in more easily a second time.” The judge accepted the suggestion. When the jury returned she told them that she intended to read out what she had said previously. That she then proceeded to do save that second time round she missed out what she had said earlier about “what society expects of a man like this defendant in his position.” 23. We think that the omission was unfortunate. But does it render the conviction for murder unsafe? We think not. The original and the repeat direction have to be taken together. The nature of the provocation together with the appellant’s characteristics must have been in the forefront of the jury’s considerations. They had not been told at any stage to disregard those matters. It is inconceivable that they would not have taken into account the appellant’s obsessive and jealous nature in determining whether or not the provocation was sufficient to provide such excuse as might reduce the offence from murder to manslaughter. 24. Accordingly this appeal is dismissed. 25. However, we would not wish to leave this case without adding some further comments, particularly as appeals concerning the appropriate direction on provocation seem to have increased since the decision in Smith. 26. It is plain from the majority speeches in Smith that characteristics such as jealousy remain with the jury as matters which fall for consideration in connection with the second, objective element of provocation and section 3 . Plainly the jury must not be directed that they should take no account of them and it is essential that it is made clear that such matters may form part of their deliberations. In this case we have concluded that the direction given was sufficient. In many cases, however, it might well prove the better course to identify the particular characteristics relied upon whether or not accompanied by further guidance. 27. In Lowe, unreported 21 February 2003 a decision of this Court, the practice was commended by which the judge places the proposed direction on provocation in writing before counsel for their consideration. In that case, as in this, the jury came back with a question showing that they were having difficulty in understanding the direction. It seems to us that there may also be considerable advantages in giving the direction to the jury in writing at the appropriate moment in the summing up before taking them through it. It is asking a lot of a jury to absorb the direction as they listen to it and to carry it in their minds with them into the jury room.

2003_03_26-49.xml

dismissed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2003/815/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2003/815

4e976b20eab9ccced51bb78c40ba0a0d89f3778a88a31e9ebba1d93d07cb928b

[2017] EWCA Crim 2461

EWCA_Crim_2461

crown_court

201701284 A2 Neutral Citation Number: [2017] EWCA Crim 2461 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Wednesday 1 st November 2017 B e f o r e: LORD JUSTICE SIMON MR JUSTICE LEWIS and THE RECORDER OF PRESTON ( His Honour Judge Brown ) ( Sitting as a Judge of the Court of Appeal Criminal Division ) - - - - - - - - - - - - - R E G I N A - v - ACHILLEAS MICHALIS KALLAKIS - - - - - - - - - - - - - Computer Aided Transcription by Wordwave

201701284 A2 Neutral Citation Number: [2017] EWCA Crim 2461 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Wednesday 1 st November 2017 B e f o r e: LORD JUSTICE SIMON MR JUSTICE LEWIS and THE RECORDER OF PRESTON ( His Honour Judge Brown ) ( Sitting as a Judge of the Court of Appeal Criminal Division ) - - - - - - - - - - - - - R E G I N A - v - ACHILLEAS MICHALIS KALLAKIS - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd trading as DTI 165 Fleet Street, London EC4A 2DY Telephone No: 020 7404 1400; Fax No 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - Mr M Mansfield QC appeared on behalf of the Applicant Ms A Darlow QC appeared on behalf of the Crown - - - - - - - - - - - - - J U D G M E N T LORD JUSTICE SIMON: 1. On 16 th January 2013, in the Crown Court at Southwark, the applicant, Achilleas Kallakis (now aged 49), was convicted of two offences of conspiracy to defraud. The jury were discharged from reaching verdicts on a number of other counts which were ordered to remain on the file on the usual terms. 2. On 17 th January he was sentenced by the trial judge, His Honour Judge Goymer, to concurrent terms of seven years' imprisonment on each of the two counts (counts 1 and 21). The total sentence was a term of seven years' imprisonment. He was also disqualified from acting as a company director for six years. 3. A co-defendant, Alexander Williams, who was also convicted on counts 1 and 21, was sentenced to concurrent terms of five years' imprisonment. 4. The facts can be briefly summarised, but it is necessarily a summary. The applicant and Williams were charged with conspiracy to defraud the Allied Irish Bank Plc ("AIB") between 1 st August 2003 and 13 th November 2008 (count 1). They had used various dishonest means to cause AIB to advance very large sums of money for the purpose of funding the purchase of property by companies owned or controlled by the applicant. Count 1 identified nine particulars of the dishonest conduct by which the fraud was completed. 5. Counts 2 to 20 charged 19 alternative substantive offences committed in the performance of the conspiracy. 6. Count 21 charged the second conspiracy between the applicant, Williams and Michael Becker. Between 1 st January 2007 and 2 nd May 2008 they defrauded the Bank of Scotland Plc by dishonestly causing the bank to advance money for the purpose of converting a passenger ferry by producing false documents and making false representations. 7. No issue arises in relation to the convictions for these offences. We can therefore turn to the sentencing hearing. In his sentencing remarks the trial judge observed that both AIB and Bank of Scotland had acted carelessly in their own interests. The Bank of Scotland in particular had made a loan on the mere assertion of a Swiss lawyer that the recipient of the funds, Oregon Finance (involved also in the count 1 conspiracy), was good for the money. It had been advised by its own inhouse lawyers as to the unsatisfactory nature of that assurance. Nonetheless, the judge observed that the offenders must themselves bear personal responsibility for their offending and that the carelessness of the banks was no mitigation. The central features of the fraud were the provision of forged and false information relating to the purported involvement of Sun Hung Kai Properties (a Hong Kong company) and the financial worth of Oregon. There were, the judge found, forged and false documents at every turn. He also found that both defendants took an active part in the production and use of those documents. Elaborate subterfuge was used to ensure that the bankers got nowhere near the truth. He accepted that the offenders were taking advantage of a rising property market in the hope that the market would rise so as to cover the fraud. The judge declined to place firm figures on any loss to AIB or personal gain to the offenders. 8. Turning to the sentencing guidelines issued by the Sentencing Guidelines Council for the substantive offence of fraud, the judge observed: "I am required by statute to follow those guidelines unless there is good reason not to do so in the interests of justice, and I must be prepared to justify any departure from them with sound and clear reasons." He identified the starting point for a banking or insurance fraud that was fraudulent from the outset (which this was), in which a sum of £750,000 was obtained by means of a professionally planned fraud carried out over a significant period of time, as five years' custody, with a range of four to seven years. There was, he said, a need to leave headroom for sentencing in respect of the most serious offence outside the range and up to the statutory maximum of ten years. 9. The judge identified two questions: first, whether he should impose sentences outside the guideline range; and secondly, whether he should impose consecutive sentences. 10. As to the first question, the judge concluded that the count 1 fraud was not the worst type offence of its type. In reaching this conclusion he took account of the fact that repayments to AIB were kept up until the summer of 2008, by which time alarm bells were ringing extensively in the property market. The judge was influenced by the sentence of ten years' imprisonment recently imposed by Holroyde J (as he then was) on Asil Nadir for fraud involving much larger sums and a very substantial breach of trust. 11. As to the second question, the judge concluded that count 21 represented only the extension of the same conduct upon which the prosecution had relied to prove count 1. He did not consider that it was open to him to pass consecutive sentences merely because he might think that the statutory maximum was too low. 12. In the result, the judge took in the applicant's case a starting point of eight years' imprisonment. He regarded him as the prime mover. He took account of the fact that he had not served a sentence of imprisonment before. There had been some honest business transactions. Neither of the offenders was in robust health, and Williams had lost his family. The judge then imposed the sentences to which we have referred. 13. The Attorney General applied to refer these sentences to the Court of Appeal under section 36 of the Criminal Justice Act 1988 on the basis that they were unduly lenient. The application was heard on 12 th April 2013 before Pitchford LJ, Roderick Evans and Turner JJ. It took place in what was a conjoined hearing of an appeal by Nicholas Levene. The Levene appeal related to overall sentences of thirteen years' imprisonment passed in the Crown Court at Southwark on 5 th November 2012, following his pleas of guilty to statutory fraud and related offences arising out of what his counsel described as a "Ponzi-type fraud". That hearing related to the argument on behalf of Levene that the sentences were manifestly excessive. 14. The applicant was represented by trial leading and junior counsel. Levene was also represented by his trial counsel. The Attorney General was represented by leading counsel and Ms Darlow as junior counsel. The Attorney General submitted that the judge had erred in his approach to sentencing. First, he was wrong to apply the Sentencing Guidelines Council's guideline because it was clear that this did not apply to offences of conspiracy to defraud. Secondly, he submitted that consecutive sentences should have been imposed on established principles. Thirdly, he submitted that the right approach to seriousness was that laid down in R v Bright [2008] EWCA Crim 462 ; that it was not for the court to imagine a more (or most) serious type of offence within the relevant category. 15. It was submitted on behalf of the applicant that the judge, who had presided over both trials, was in the best position to evaluate the seriousness of the offending by reference to the culpability of the offenders and the harm which they either caused or foresaw. It was conceded that the guideline was not strictly applicable, and submitted that the judge was right to conclude that the additional offending revealed by count 21 did not require a consecutive sentence. 16. The Court of Appeal reserved its judgment and on 16 th May 2013 handed down its decision in both cases: Attorney General's Ref Nos 7 and 8 of 2013 (R v Kallakis and Williams) and R v Levene [2013] EWCA Crim 709 . The judgment dealt with the three issues raised by the Attorney General, the third of which was the appropriate use of the power to impose consecutive sentences for the substantive offences of fraud and conspiracy to defraud: see [1]. At [2] to [19] the court dealt in detail with the facts of the conspiracy directed against the AIB (count 1), the substantive offences within the conspiracy (counts 2 to 20) and the further conspiracy (count 21). At [20] and [21] the judgment addressed the judge's sentencing remarks, and at [22] and [23] the Attorney General's submissions. Importantly, for present purposes, the court also recited the submissions made on behalf of the applicant at [24] to [26]. The court noted the points made by counsel for the applicant in relation to the sentence, which we have already summarised, namely: (1) A judge who presides over a trial (in this case two trials) was in the best position to assess culpability and harm. (2) The judge had not erred in sentencing on count 1 on the basis of the statutory maximum sentence for fraud and then considering whether the sentence on count 21 should be consecutive or concurrent; (3) The judge was right to pass a concurrent sentence on count 21; the victim was different, but the deception was in many senses similar ([24] of the Court of Appeal's judgment). (4) There was no particular need for a deterrent sentence, since the banking collapse was caused by the banks placing profit over prudence; there was no targeting of a vulnerable victim; and the sentencing judge had accepted that the applicant and his co-defendant believed that the property price would continue to rise, preventing loss and concealing their offending: ([25]). (5) There was a likelihood that AIB would not, in fact, suffer a loss on the facts of the case and this was material to sentence: ([26]). 17. Having summarised the submissions on behalf of the applicant, the Court of Appeal went on to consider the facts, the plea and sentence, and the submissions on behalf of Levene, before coming at [49] to [71] to its observations on the Sentencing Council's Guidelines on Fraud and Totality and on the previous reported decisions of this court. From [72] onwards the court set out its conclusions on the two cases with which it was concerned. In the case of the applicant, the court considered that the correct sentence was a term of eleven years' imprisonment. It therefore quashed the concurrent term of seven years' imprisonment on count 21 and substituted a sentence of four years' imprisonment, to be served consecutively to the sentence on count 11, which remained unaffected. We will return to this point when we consider Mr Mansfield's submissions. In the result, the overall sentence was therefore increased from seven to eleven years' imprisonment: see [72] to [78]. 18. In summary, the court concluded that although the Sentencing Guidelines Council guidelines on statutory offence of fraud did not apply to offences of conspiracy to defraud, the underlying principles of sentencing for fraud applied both to the substantive offence and conspiracy to defraud: see [73]. (We would add that the current definitive guidelines for fraud, with effect from 1 st October 2014, explicitly cover conspiracy to defraud.) 19. The court considered that the count 1 conspiracy was clearly more serious than the count 21 conspiracy. Seriousness comprised both culpability and harm. The culpability of the applicant and Williams was at the highest level because they set out and persisted over a significant period with planning, determination and audacious dishonesty to commit commercial fraud of international proportions. Harm was, by reason of section 143(1) of the Criminal Justice Act 2003, to be treated as harm which was intended or may have foreseeably been caused by the offence: see [74]. Notwithstanding the judge's mistaken belief that he was bound by the statutory offence guideline, his approach to identification of the starting point accorded with the principles stated in the guideline and the decisions of the Court of Appeal: see [75]. 20. The judge had acknowledged that the maximum sentence was available for offences of the most serious kind. This was not, he concluded, such a case. He reached this view because the offenders had managed to make mortgage repayments. In the view of the Court of Appeal, the judge had been too generous to the applicant and Williams in this regard. They had had to make payments to prevent the scam from being uncovered: see [75]. 21. The Court of Appeal concluded that the starting point of eight years' imprisonment for count 1 was not unduly lenient: see [75]. We note that the court was, in fact, doubtful that there was any significant mitigation which justified reducing that starting point: see [76]; not least because both offenders had committed fraudulent offences together on a previous occasion. 22. Looking at the concurrent sentence on count 21, the court rejected the argument that a consecutive sentence indicated a view that the maximum sentence for conspiracy to defraud was inadequate. On the contrary, the concurrent sentence gave the impression that the applicant had entirely escaped the consequences of a serious fraud in which substantial loss resulted. While the nature of the fraud was similar and overlapped in time with count 1, the Bank of Scotland was a separate victim and suffered substantial loss, unlike AIB. A consecutive sentence was required, subject to the principle of totality. 23. The court then quashed the concurrent term of seven years' imprisonment on count 21 and substituted the sentence of four years' imprisonment and ordered that that term be served consecutively, increasing the total sentence from seven to eleven years. In Levene , the court allowed the appeal, considering that the overall sentence should be a term of twelve years' imprisonment and not thirteen: see [79] to [85]. 24. The applicant was not of good character at the time of the sentence. He had four convictions over the period 1993 to 2011. In 1995, he had been sentenced to a community order for an offence of conspiracy to defraud. 25. The present application is for an extension of time in which to apply for leave to appeal out of time, and for leave to appeal against the sentence imposed by the Court of Appeal on the ground that it was manifestly excessive. 26. Both applications raise difficulties for the applicant. The application for leave requires an extension of time of just over three years. The substance of the application is a challenge to a sentence imposed by the Court of Appeal on the basis that it was manifestly excessive or wrong in principle following a Reference under section 36 of the Criminal Justice Act 1988 of a sentence considered to be unduly lenient. The delay must be explained and justified. 27. Mr Mansfield QC, who did not represent the applicant at trial or before the Court of Appeal in 2013, addressed the issue of delay. The applicant's current representatives were first instructed in January 2014. The papers in the case were voluminous and had to be considered by the solicitors in order to narrow the issues for counsel. Thereafter, funding ran out until July 2015. In December 2015 a full brief, including instructions, was sent to current counsel. Much of 2016 was spent complying with the obligations described in McCook [2014] EWCA Crim 734 and obtaining further papers and instructions. 28. At the heart of Mr Mansfield's submission is the contention that the applicant had no real opportunity to challenge what was an unforeseen result in the Court of Appeal, on the basis that it led to a manifestly excessive sentence. The applicant's counsel were there to support the judge's conclusion and to reject the Attorney General's argument that the sentences were unduly lenient. 29. Such a challenge is open to an applicant in the light of the decision in R v Hughes [2009] EWCA Crim 841 at [20]. The judgment of the court was given by Hughes LJ (as he then was). [20] in the following terms: "20. It ought clearly to be understood that it by no means follows that the court will in fact entertain such an appeal. Any application for leave to appeal sentence requires leave and, in this case and no doubt any others like it, an extension of time. The right to appeal given by section 9 of the 1968 Act is subject to section 18, which requires an application to be lodged within the time stipulated – which is, by section 18(2), 28 days. An extension of time is by no means a formality. It will be granted only where there is good reason to give it, and, ordinarily, where the defendant will otherwise suffer significant injustice. In the very small number of instances in which there has been an earlier reference by the Attorney General, it will be a highly significant factor that it was then open to the defendant to mount any argument that he wished to the effect that his sentence was too long or otherwise wrong in principle. Leave is likely to be refused in any case in which what he now seeks to argue could and should have been argued then. Wholly unmeritorious applications which are no more than an attempt to ventilate second thoughts or to re-litigate decided issues are likely to be met by an order for loss of time under section 29 of the 1968 Act. In all but the wholly exceptional case the decision of this court upon a reference by the Attorney General is, as this court held in Rowan , as much an end of the sentencing process as is its decision upon an application by the defendant under section 9." 30. It is clear that while the power of the Court of Appeal Criminal Division to entertain an application for leave to appeal against sentence is not removed by the fact that there has been a Reference, leave is likely to be refused in any case in which an applicant seeks to put forward an argument which could have been raised at the time of the hearing of the Reference. Any extension of time in such a case, which will plainly be inevitable, will be granted only where there is good reason to grant it and ordinarily where the defendant will otherwise suffer significant injustice. 31. Mr Mansfield submits that the applicant did suffer significant injustice. He relies on six broad arguments. First, he submits that the sentencing judge was highly experienced in this type of case, had presided over two trials and therefore had a unique view of the detail of the fraud and is impact. It was never suggested that he failed to take into account material matters relevant to sentence, or that he failed to take into account the basic sentencing principles. It follows that the starting point – and perhaps the ending point – was his view as to the culpability and harm of this offending. 32. We accept that submission, at least to this extent. The matters in issue in the Court of Appeal were the three issues it identified, which included the judge's view that he was constrained to pass a sentence lower than the maximum for a single offence of fraud. The Court of Appeal held that this was not so and that this resulted in a sentence that was not merely lenient, but unduly so. 33. Secondly, it is said that the Court of Appeal did not materially criticise the sentence on count 1, and in fact reduced the sentence on count 21. In those circumstances, Mr Mansfield seeks to argue that it was unfair, unjust and disproportionate to increase the sentence effectively by four years on count 21. He refers to the sentencing remarks in which the judge specifically posed the relevant question: "The two questions are whether I should go outside the guideline and whether I should impose consecutive sentences. As to the latter, I think it would be wrong to do so." The judge then gave his reasons. 34. Mr Mansfield's argument has the appearance of an attractive submission, but is in our view unarguable. The court considered very carefully the overall criminality covered by the two counts and concluded that it justified an overall sentence of eleven years' imprisonment. We will come shortly as to the way in which it did so, which is the subject of a separate criticism. 35. Thirdly, it is argued that no mention was made of the principle of double jeopardy when the Court of Appeal imposed the increased sentence. The reason that no mention was made of double jeopardy was, in our view, the change in the practice of the court in relation to jeopardy: see Archbold 2018 at 7-449 and R v Afzal and Malik [2014] EWCA Crim 1566 . 36. Fourthly, it is argued that the total sentence of eleven years' imprisonment did not reflect the overall criminality and "did not accord with potential comparators". Examples are given: in Nadir the sentence imposed by Holroyde J, referred to by the sentencing judge; Levene itself; and R v Adoboli (a sentence imposed by Keith J). 37. This court discourages reference to sentences in other decisions of the Court of Appeal unless they are guideline cases, because other sentencing decisions are so often dependent on their facts. The same is plainly true of sentencing decisions in the Crown Court. It is of little assistance to this court to point to other cases where the fraud may have resulted in greater loss because in every case the court will be concerned with both harm and culpability. In fact, as we have noted, the Court of Appeal considered at length some of the sentencing principles that emerged from earlier decisions of the court: see [59] to [71]. 38. The submission that there was a discordance between the court's approach in the applicant's case and in the case of Levene (decided at the same time) is, we would add, unrealistic. 39. Fifthly, Mr Mansfield argues that the differential sentencing bracket between the principle fraudulent conduct on count 1 and that represented by count 21 was disproportionate. Reliance is placed on the view of the judge that count 1 involved multiple transactions, and count 21 "though different in character is simply an extension of it". In his oral argument, Mr Mansfield relied on the fact that there was effectively the same modus operandi in relation to both frauds. 40. These were points specifically addressed on the applicant's behalf in the Reference. They were rejected by the court for the reasons it gave. In such circumstances, on the basis of Hughes , the ground is not arguable. 41. Finally, it is argued that it is unclear how the Court of Appeal came to the overall sentence of eleven years' imprisonment. While the sentencing judge expressed very clearly the basis on which he concluded that the correct overall sentence was a term of seven years' imprisonment, Mr Mansfield submits that the sentence of four years on count 1 appears "less to do with the count itself and more to do with accommodating the totality of eleven years". We do not accept that submission. At [77] the court said this: "77. We turn, secondly, to the question whether a consecutive sentence should have been imposed for the count 21 fraud. We do not accept that that a consecutive sentence would have indicated a view that the maximum sentence for conspiracy to defraud was inadequate. On the contrary, the effect of the concurrent sentence is, in our view, to give the impression that the offenders have entirely escaped the consequences of a serious fraud in which substantial loss has resulted. It is true that the nature of the fraud was similar and that it overlapped in time with the count 1 conspiracy but Bank of Scotland was a separate victim, separately targeted, and, unlike the count 1 offence, a substantial loss was realised. We have no doubt that a consecutive sentence for the offence was required, subject to the principle of totality. Had the offenders been sentenced for the count 21 offence standing alone it is our view that the appropriate starting point after a trial would have been six years' imprisonment." In our view the reasoning is clear and gives rise to no arguable grounds. It was on that basis that the court reduced the sentence from six to four years' imprisonment to take into account the principle of totality. It was described as the "just and proportionate sentence for this offending as a whole”: see [78]. 42. We have considered whether, either individually or together, these points give rise to arguable grounds. In our view they do not. Not only could the arguments have been raised during the Reference, many of them were. Nor are we satisfied that significant injustice has occurred in the sentencing and resentencing process. 43. Accordingly, the applications for an extension of time and for leave to appeal will be refused. 44. In view of the circumstances outlined to us by Mr Mansfield, we will not make any loss of time order.

2017_11_01-4090.xml

sentence

https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/2461/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/2461

c9b2936052a2157895e1ad3bffa183ed4396892abcce171e77635c30d643dc9c

[2006] EWCA Crim 707

EWCA_Crim_707

crown_court

No: 2005/03836/C2 Neutral Citation Number: [2006] EWCA Crim 707 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Tuesday, 21 st March 2006 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Phillips of Worth Matravers ) MR JUSTICE McCOMBE MR JUSTICE GROSS - - - - - - - R E G I N A - v - FREGENET ASFAW - - - - - - - Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shortha

No: 2005/03836/C2 Neutral Citation Number: [2006] EWCA Crim 707 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Tuesday, 21 st March 2006 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Phillips of Worth Matravers ) MR JUSTICE McCOMBE MR JUSTICE GROSS - - - - - - - R E G I N A - v - FREGENET ASFAW - - - - - - - Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) - - - - - - - MR RICHARD THOMAS appeared on behalf of THE APPELLANT MR GRAHAM LODGE appeared on behalf of THE CROWN - - - - - - - J U D G M E N T Tuesday, 21 st March 2006 THE LORD CHIEF JUSTICE: Introduction 1. On 22 June 2005, in the Crown Court at Isleworth, before His Honour Judge Lowen, the appellant pleaded guilty on re-arraignment to a charge of attempting to obtain services by deception, contrary to section 1(1) of the Criminal Attempts Act 1981 (count 2), and was convicted by the jury on the judge's direction following a legal ruling. She was acquitted of using a false instrument with intent contrary to section 3 of the Forgery and Counterfeiting Act 1981 (count 1). The following day she was sentenced to nine months' imprisonment. The appellant appeals against conviction by leave of the single judge, who referred the application for leave to appeal against sentence to the full court. The Facts 2. The appellant is an Ethiopian aged 29. She alleges that her father was murdered and that some years later she was raped and tortured. She set out from Ethiopia intending to travel to the United States on forged documents, there to seek asylum. She was assisted in this venture by an agent. She arrived at Heathrow with her agent on a forged passport and successfully passed through immigration. Her agent gave her another forged passport, purporting to be an Italian passport, in the name of Hana Gebrele, a forged Italian driving licence in the same name, and an "E" ticket, purchased in London, for a passenger of the same name, for a Virgin Atlantic flight from Heathrow to Washington. 3. When the appellant presented her ticket at the Virgin Atlantic check-in an airline official spotted that her passport was forged. He checked her in, but informed the police who arrested her at the embarkation point. She alleged that she claimed asylum in this country shortly after being arrested, although there was an issue about this at her trial. 4. The appellant was acquitted by the jury of the offence charged by count 1, having raised a statutory defence that affords protection to refugees charged with that offence, provided that certain criteria are satisfied. That defence was enacted by section 31 of the Immigration and Asylum Act 1999 (" section 31 ") in belated recognition of this country's obligations under Article 31 of the 1951 Convention and Protocols relating to the Status of Refugees ("Article 31"). The statutory defence does not extend to the offence charged by count 2. Mr Richard Thomas, who was acting for the appellant, sought a ruling from the trial judge before the trial began that the appellant could nonetheless rely upon Article 31 by way of defence to the second count. The judge rejected that application, whereupon the appellant pleaded guilty to the second count. 5. The appellant has been given leave to appeal in order to challenge the judge's ruling. The case that Mr Thomas has advanced differs to some extent from that advanced before the trial judge. Before the judge he argued that the appellant could rely upon Article 31 by way of defence to count 2. Before us he has argued that the prosecution acted in abuse of process by seeking to avoid the effect of section 31 by adding count 2 to the indictment. The background to section 31 6. Article 31 provides as follows: " Refugees unlawfully in the country of refuge 1. The contracting states shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence." 7. In R v Uxbridge Magistrates' Court, ex parte Adimi [2001] QB 667 , three applications were heard together by the Administrative Court consisting of Simon Brown LJ and Newman J over three days in July 1999. In each case the applicant applied for judicial review to challenge the decision taken to prosecute him. Each was an asylum seeker. One had travelled to this country on a forged passport to seek asylum here. The other two were apprehended when in transit for Canada, using forged passports. All three were charged with possession or use of false passports contrary to section 5 of the Forgery and Counterfeiting Act. The two who were bound for Canada were also charged with attempting to obtain services by deception contrary to section 1(1) of the Criminal Attempts Act 1981 . All three alleged that their prosecution was unlawful because it infringed Article 31. 8. After setting out the facts Simon Brown LJ turned to consider the scope of protection under Article 31. He remarked at page 677: "What then was the broad purpose sought to e achieved by article 31? Self-evidently it was to provide immunity for genuine refuges whose quest for asylum reasonably involved them in breaching the law. In the course of argument, Newman J suggested the following formulation: where the illegal entry or use of false documents or delay can be attributed to a bona fide desire to seek asylum, whether here or elsewhere, that conduct should be covered by article 32. That seems to me helpful." 9. In dealing at page 678 with the phrase in Article 31 "coming directly" Simon Brown LJ held that there was some element of choice open to refugees as to where they might properly claim asylum, so that a short stop-over in a country en route to their chosen refuge could be accommodated within the phrase. 10. Subsequently, when dealing with the two applicants who were arrested en route to Canada, Simon Brown LJ said this at page 687: "I propose to deal with these two applicants together since both were arrested as transit passengers embarking for Canada and, in my judgment, no material distinction can be drawn between them. I use the term transit passenger here not in a technical sense to mean only passengers who throughout have remained airside of United Kingdom immigration control (even then, if discovered with false documents, they will be brought landside for that reason) but rather to mean passengers who have been in the United Kingdom for a limited time only and are on the way to seek asylum elsewhere. I understand the respondents to argue that such passengers can never be entitled to article 31 immunity because, having been apprehended whilst attempting to leave the United Kingdom rather than enter it, it follows that they never intended to present themselves, least of all without delay, to the immigration authorities here. Mr Kovats further submits that, having chosen not to claim asylum here despite the United Kingdom clearly being a safe country for the purpose, these passengers will in addition be unable to satisfy the coming directly condition. Neither of these arguments are in my judgment sustainable. If I am right in saying that refugees are ordinarily entitled to choose where to claim asylum, and that a short term stopover en route in a country where the traveller status is in no way regularised will not break the requisite directness of flight, then it must follow that these applicants would have been entitled to the benefit of article 31 had they reached Canada and made their asylum claims there. If article 31 would have availed them in Canada, then logically its protection cannot be denied to them here merely because they have been apprehended en route." 11. The court allowed the applications for judicial review on the ground that the prosecutions were in breach of this country's obligations under Article 31 and the applicants had had a legitimate expectation that they would be accorded the immunity from penalty that should have been conferred under that article. 12. The respondents to the application were the Secretary of State for the Home Department and the Crown Prosecution Service. They conceded that no arm of the state had ever given thought to the obligations imposed by Article 31 and gave an assurance that a multi-agency group was being convened to examine the whole issue. In these circumstances the court decided that there was no need to make specific orders or declarations but their judgments could be left to speak for themselves. In the course of their judgments, however, the court gave consideration to what relief was appropriate. The applicants contended that the onus should be on the Secretary of State to ensure that asylum seekers entitled to expect the protection of Article 31 should not be prosecuted. The respondents contended that it was for the Crown Prosecution Service to ensure that asylum seekers were not prosecuted where they were entitled to expect the protection of Article 31. Should they fail to do so, an application for a stay of the prosecution would be the appropriate remedy. Simon Brown LJ's conclusions at page 684 were as follows: "Much though I prefer the applicant's proposed solution, it cannot I think be imposed upon the state as the only lawful way forward. Provided that the respondents henceforth recognise the true reach of article 31 as we are declaring it to be and put in place procedures to ensure that those entitled to its protection (ie travellers recognisable as refugees whether or not they have actually claimed asylum) are not prosecuted, at any rate to conviction, for offences committed in their quest for refugee status, I am inclined to conclude that, even without enacting a substantive defence under English law, the abuse of process jurisdiction is able to provide a sufficient safety net for those wrongly prosecuted." 13. Newman J at page 696 differed from Simon Brown LJ. He concluded that it was for the Secretary of State to decide whether to accord an asylum seeker immunity from suit in accordance with Article 31. A stay of criminal proceedings could be sought while the Secretary of State decided whether to do so. If he decided not to, it would be no abuse of process for the Crown Prosecution service to proceed with a prosecution. The defendant would be left to raise the facts in mitigation. 14. In response to the state of affairs disclosed by the applications in Adimi Parliament enacted section 31 , which provides as follows: " Defences based on Article 31(1) of the Refugee Convention (1) It is a defence for a refugee charged with an offence to which this section applies to show that, having come to the United Kingdom directly from a country where his life or freedom was threatened (within the meaning of the Refugee Convention), he -- (a) presented himself to the authorities in the United Kingdom without delay; (b) showed good cause for his illegal entry or presence; and (c) made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom. (2) If, in coming from the country where his life or freedom was threatened, the refugee stopped in another country outside the United Kingdom, sub section (1 ) applies only if he shows that he could not reasonably have expected to be given protection under the Refugee Convention in that country. (3) In England and Wales and Northern Ireland the offences to which this section applies are any offence, and any attempt to commit an offence, under -- (a) Part I of the Forgery and Counterfeiting Act 1981 (forgery and connected offences); (b) section 24A of the 1971 [Immigration] Act (deception); or (c) section 26(1)(d) of the 1971 Act (falsification of documents) ..... and any attempt to commit any of those offences." 15. The protection afforded by section 31 does not extend as far as that provided for by Article 31, as interpreted in Adimi . In particular, the asylum seeker is not afforded protection if he stopped en route to this country in another country which could reasonably have been expected to grant him asylum. This was the position of the applicant for judicial review in R(Pepushi) v Crown Prosecution Service [2004] EWHC 798 (Admin) . He was a national of the former Yugoslavia and was arrested as he attempted to board an Air Canada flight for Canada, using a false Swedish passport. On the way to the United Kingdom he had passed through both Italy and France. He was originally charged both with offences under sections 3 and 6 of the Forgery and Counterfeiting Act 1981 and with attempting to obtain services by deception. In his case, however, the Crown Prosecution Service discontinued the latter charge. 16. The applicant, with permission, sought by judicial review to challenge the decision of the Crown Prosecution to prosecute him. He relied upon Adimi , arguing that he could invoke Article 31 where its scope was wider than that of section 31 . 17. The court held in paragraph 21 that it was clear that section 31 did not cover the entire scope of the application of Article 31. In particular it did not cover the further offence of attempting to obtain an advantage by deception with which the applicant had initially been charged. In these circumstances the court, in paragraph 33, reached the following conclusion: "We have reached the clear conclusion from the application of well-known principles and our consideration of the language of the 1999 Act that the scope of the defence available to the claimant is that set out in section 31 and not in Article 31. Parliament has decided to give effect to the international obligations of the UK in a narrower way, but that is, on the authorities that are binding on us, the law which must be applied in the UK. The decision on the first issue in Adimi is therefore, in effect, no longer relevant to persons such as the claimant when faced with a criminal prosecution in the UK." 18. The court went on to hold that the effect of section 31 was that there was no longer scope for a legitimate expectation that Article 31 would be respected in respects that fell outside the scope of the section. 19. Turning to the question of procedure, the court held that it was not appropriate to attack the decision to prosecute by applying for judicial review. The proper course was to raise an objection to prosecution by way of defence in the Crown Court and, if necessary, by appeal to this court. That is the course that the appellant has followed. 20. For the appellant Mr Thomas submitted that what had happened in this case was an abuse of process. Parliament, by section 31 , had, as the jury's verdict demonstrated, given the appellant a defence to using her forged passport in the circumstances in which she was using it, when charged specifically with that offence under the Forgery and Counterfeiting Act. It was improper that a different charge, not falling within the statutory defence, should be brought in respect of precisely the same facts. The proper course would have been to follow the example of the prosecution in Pepushi and withdraw the second count. As that course had not been followed the appropriate course was to quash the conviction. 21. Mr Graham Lodge for the Crown accepted that, on the facts of this case, Article 31 required that the appellant should have a defence, even if charged with attempting to obtain the service of the airline by deception. This concession did not extend to other circumstances in which services might have been so obtained. He further accepted that both Article 31 and section 31 could apply to an asylum seeker who is seeking to use this country as a transit post in a journey to a preferred place of refuge. He submitted, however, that Parliament, in enacting section 31 had expressly determined the offences to which the defence should apply and that there was no basis for contending that the defence should apply to other offences. It was the duty of the Crown Prosecution Service to enforce the law of the land, and no criticism could be made of the Service for including the second count. 22. There are aspects of this case that have caused us concern. It is apparently standard practice when an asylum seeker is attempting to leave this country for another place of refuge using false documents to combine a charge of infringement of the Forgery and Counterfeiting Act with a charge of attempting to obtain air services by deception. It seems to us likely that this practice reflects a policy. It is also possible that the decision to withdraw the latter charge in the case of Pepushi also reflected some policy consideration. We asked Mr Lodge if he was aware of any such policy and he said that he was not, although he would have expected to if such a policy existed. He suggested that the practice of including the second count might be out of concern for the airlines, which were put at potential risk of financial penalties if they carried passengers who lacked proper documentation. 23. Mr Lodge may be correct, but the sentencing remarks of the judge suggest that he was under the impression that the object of the second count was immigration control. His sentencing remarks included the following passage: "The courts must ensure that people are deterred from using forged documents in a way which undermines the whole system of immigration control and these offences and others like it are very prevalent [so] that public interest requires deterrent sentences for them and for that reason only a custodial sentence can be justified." 24. We have not found it possible to reach any firm conclusion as to the reason why, in cases such as this, the prosecution combine the two counts. If it were the case that the second count was added in the interests of immigration control, in order to prevent the asylum seeker from invoking he defence that section 31 would otherwise provide, we believe that there would be strong grounds for contending that this practice constituted an abuse of process. At the same time we cannot ignore the possibility that Mr Lodge is correct to suggest that the Crown Prosecution Service is doing no more than seeking to enforce the law in the interest of the airlines that are put at risk by the use of false documents. 25. We hope that careful consideration will be given to our concerns and to whether the practice reflected by the facts of this case is a proper one. We need say no more than this for we believe that we have identified a response to this appeal which will be fair to the appellant regardless of whether or not there is merit in Mr Thomas' argument that there has been an abuse of process. 26. The offence to which the appellant pleaded guilty was of attempting to obtain services by deception, that is to commit an offence of dishonesty under the Theft Act. When sentencing for that offence the judge should have had regard to the circumstances and consequences of that dishonesty. As for the circumstances, the attempt was made in an attempt to fly to Washington in order to seek asylum; conduct which, on Mr Lodge's concession, should attract no punishment were there to be full compliance by this country with Article 31. So far as concerns consequences to Virgin Atlantic, the putative victim of the deception, there is no suggestion that the appellant's ticket was not properly purchased, nor any evidence that, had the appellant been carried to Washington, the airline would in fact have been exposed to the risk of any penalty. 27. Mr Lodge accepted that he could not support the reasoning that led the judge to impose the custodial sentence that he did. That reasoning was not merely not appropriate in the light of the offence for which the appellant fell to be sentenced, it was at odds with the principle reflected by Article 31 and section 31 , assuming that each has the ambit that Mr Lodge has accepted. 28. Having regard to all these circumstances, we consider that the proper course is to dismiss the appeal against conviction, but to give leave to appeal against sentence, to allow that appeal, to quash the sentence of nine months' imprisonment, and to order instead that the appellant should have an absolute discharge pursuant to section 12 of the Powers of Criminal Courts (Sentencing) Act 2000 . This will mean, by virtue of section 14 of that Act , that she will not in future be deemed to have had a conviction for any purpose. ________________________________________

2006_03_21-763.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/707/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/707

b3f755c4bf7d001ed47a1c875adc2787dda414d731f7c3a630028e30e8bbfaee

[2011] EWCA Crim 1461

EWCA_Crim_1461

crown_court

Neutral Citation Number: [2011] EWCA Crim 1461 Case No: 201100831A8 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT CHELMSFORD Mr Justice Nichol T20107164 Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/06/2011 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES LORD JUSTICE LEVESON and MR JUSTICE BEAN - - - - - - - - - - - - - - - - - - - - - ATTORNEY GENERAL’S REFERENCE No. 008 of 2011 Between : THE QUEEN Appellant - and - RONALD ED

Neutral Citation Number: [2011] EWCA Crim 1461 Case No: 201100831A8 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT CHELMSFORD Mr Justice Nichol T20107164 Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/06/2011 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES LORD JUSTICE LEVESON and MR JUSTICE BEAN - - - - - - - - - - - - - - - - - - - - - ATTORNEY GENERAL’S REFERENCE No. 008 of 2011 Between : THE QUEEN Appellant - and - RONALD EDWARDS Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Edward Brown Q.C. for the Attorney General Mr Neil Fitzgibbon for the Respondent Hearing dates : 12 May 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Leveson: 1. On 18 January 2011, in the Crown Court at Chelmsford before Nicol J and a jury, Ronald Edwards (who is 66 years of age) was acquitted of murder but convicted (effectively upon his own admission) of the manslaughter of his partner, Sylvia Rowley-Bailey (“the deceased”), who was aged 66 at the time of her death and who had been in a relationship with him for approximately 8 years. The basis for the conviction for manslaughter was by reason of provocation. Nicol J imposed a sentence of five years’ imprisonment. Her Majesty’s Solicitor General now seeks to refer the sentence to this court as unduly lenient pursuant to s. 36 of the Criminal Justice Act1988 . We indicated at the hearing that we granted leave. The Facts 2. The background can be summarised quite shortly. The parties had met in 2002 and, two years later, bought a house together. In 2004 the offender suffered a heart attack and, two years later, underwent a heart bypass operation. The deceased cared for him throughout this period but, at the same time, was overbearing, demanding and very hurtful. By 2009, the relationship had come to an end. Although it seems that they still occupied the same bed and study, they lived in separate sitting rooms and had discussed using separate beds. It was also suggested by the offender that he should buy his partner’s one third share of the house. 3. As the relationship deteriorated, neighbours heard the deceased constantly nag and belittle the offender. They heard arguments between the two but noted that those arguments were one sided (the deceased as the principal voice). The son and daughter of the deceased also gave evidence that they had experienced the deceased berating the offender and spoke of how their own childhood and their father’s life had been made a misery by the deceased. As to the offender, witnesses spoke of his usual unflappable and non-violent nature. 4. On 11 June 2010, following as a culmination of a long period of criticism and belittling conduct, matters came to a head. The deceased said that the offender could not use the bed that they shared and that he should buy a separate bed. She also said that she hated the building that he had bought and built for her in the garden, as she did the jewellery he had given to her as a birthday present: she said that she had sold it. She said that she could not wait for his mother to die so that he could inherit her money and buy her out of the bungalow. It was in these moments that the offender also felt his chest tighten and led him to fear that he was about to suffer a further heart attack. He went to the kitchen for a drink of water but was followed by the deceased who continued to be critical of him. He then picked up a knife. 5. The offender said in evidence that he could not remember the attack but it is clear that, having picked up a knife with a 13 cm blade, he followed the deceased to the study and attacked her whilst she sat at a desk. He slashed her several times with it and stabbed her 12 times, mainly to the head, neck and upper body. Some of the wounds went to the full depth of the blade; one blow caused the blade of the knife to buckle. The knife was left imbedded in the neck of the deceased neck. There was a defence wound to the forearm that indicated that the deceased had tried to ward off the attack; the deceased also suffered bruises and abrasions. The attack was described by the judge as “ferocious”. 6. The reaction of the offender is important. First, he telephoned a firm of (conveyancing) solicitors and spoke to them for 7 minutes and 48 seconds. That firm gave him the number of another firm. The offender spoke to a solicitor from that firm for 7 minutes and 4 seconds, before contacting the emergency services. The offender gave evidence that he spoke to the solicitor because he was worried about his position and that of his mother and daughters. In the telephone call to the emergency services he said, amongst other things, that she had gone "on and on and on at me for ages" and “we’ve had a row and I’ve just flipped out…..I just saw red.” The judge found that the offender expressed genuine remorse on the telephone to the emergency services, to the police and whilst giving evidence. Having offered to plead guilty to manslaughter, it was for that offence that he fell to be sentenced after the jury acquitted him of murder. 7. When passing sentence, Nicol J referred to the different level of sentences characterised by the Sentencing Guidelines Council for manslaughter based upon provocation and the distinction between immediate provocative conduct and the duration for which it lasted. He concluded that this case was one of low level provocation by words not deeds although it had been lasting for months and, on 11 June, was “the straw that broke the camel’s back”. In the circumstances, he concluded that he would have imposed a sentence of 8 years imprisonment, had it not been for the early stage at which the offer to plead guilty to manslaughter was made: thus, he imposed the term of 5 years imprisonment to which we have referred. 8. On behalf of the Solicitor General, Mr Edward Brown Q.C. placed the following aggravating features before the court. First, the offender used a knife in the attack. Secondly, the degree of provocation was low (by words and without violence) albeit having continued for months. The deceased did not present a threat to the offender who acted out of anger and frustration rather than desperation or fear. It was not suggested that the ferocity of the attack (which went to the issue of loss of control) should aggravate the offence. At the same time, Mr Brown accepted mitigating features in the form of the offender’s age, positive good character and poor health. Secondly, the attack was the spontaneous and his actions lacked premeditation. Third, the offender denied that he deliberately targeted the chest and neck of the deceased or that he had intended to kill her. Finally, the offender had expressed remorse for his actions (albeit that he did not call the emergencies services immediately) and, on 11 October 2010, had offered to plead guilty to manslaughter by reason of provocation, although this was never in fact tendered before the court. 9. Essentially, Mr Brown submitted that, in accordance with the guideline on Manslaughter by reason of Provocation issued by the Sentencing Guidelines Council, the learned judge should have started at a term of 12 years imprisonment (low degree of provocation over a short period) which it was then appropriate for him to reduce balancing the use of a knife against the lengthier provocation to which the offender was subject. He also argued that the discount from 8 years to 5 years by reason of the plea (amounting to over 37%) was excessive not least because he did not, in fact, enter a plea to manslaughter and, in any event, never had any defence to that charge. In the circumstances, these errors led to a sentence that was below the bottom of the range. 10. Mr Fitzgibbon (who appeared for the offender as he had before Nicol J) took issue with this analysis and argued that the sentence was not unduly lenient. He submitted that the degree of remorse was very high: the offender had broken down on several occasions when giving evidence. Further, the offender was generally a kind, phlegmatic man and the critical feature of the case was that there was no cooling off period: he had felt a heart attack coming on yet the deceased had continued to abuse him. The use of the knife was not an aggravating feature because the knife was to hand and he had lost his self control. As for the fact of the admission, it was clear from the transcript of the 999 call that the offender had admitted what he had done. Mr Fitzgibbon also referred to the contribution that the offender had made while in prison as well as his medical condition and his concern for the welfare of his mother and daughters. Analysis 11. The guideline on Manslaughter by Reason of Provocation applied to offenders being sentenced after 28 November 2005. Work began on the guideline before the Criminal Justice Act 2003 came into force but although the legislation is referred to, the guideline does not include any analysis of (or make reference to) the potential impact on sentences for manslaughter of s. 269(2) and Schedule 21 of the Act which provides the framework within which the court must approach sentences for murder. In R v. Porter [2007] 1 Cr App R (S) 115 , May LJ (as he then was) noted the disparity between the effect of a life sentence for murder and determinate terms imposed for those convicted of manslaughter and expressed the court “not satisfied” that the higher starting points prescribed by Parliament were of relevance to the issue of sentencing for manslaughter. In Attorney General’s Reference Nos 90 and 91 of 2006 (R v Richards & Botchett) [2007] 2 Cr App R (S) 31, the court considered a sentence for manslaughter in the course of a burglary (which, if the conviction had been for murder would have led to a 30 year starting point for the minimum term). Latham LJ observed (at para. 17) that the extent to which sentencing for manslaughter should in any way be equated with the sentence appropriate for murder was one which “calls for some caution”. 12. On the other hand, more recently, there has been a greater recognition that the significance of loss of life which, at least in part, is reflected in the approach prescribed by Schedule 21 , should be matched by a recognition of that fact in sentences passed in manslaughter cases albeit that the lack of intent, diminished responsibility or provocation was also of critical significance. Thus, in relation to manslaughter by reason of diminished responsibility, in R v. Wood [2010] 1 Cr App R (S) 2 , [2009] EWCA Crim 651 , a court of five judges, in which the Lord Chief Justice presided, considered how to determine the minimum term when imposing an indeterminate sentence. Lord Judge said (at para. 21): “There is no express statutory link between the guidance in schedule 21 of the 2003 Act and the principles to be applied to sentencing decisions in diminished responsibility manslaughter. Where diminished responsibility is established it serves to reduce the defendant's culpability for his actions when doing the killing, but the remaining circumstances of the homicide are unchanged. Specific features of the seriousness of the homicide, for example a double rather than a single killing, or the sadistic killing of a child may be common both to murder and diminished responsibility manslaughter. At the same time the mitigating features expressly identified in schedule 21 extend to what may approximate but not amount to the defence of diminished responsibility and provide an additional connection between the schedule and the defence. Finally, the culpability of the defendant in diminished responsibility manslaughter may sometimes be reduced almost to extinction, while in others, it may remain very high. Accordingly when the sentencing court is assessing the seriousness of the offence with a view to fixing the minimum term, we can discern no logical reason why, subject to the specific element of reduced culpability inherent in the defence, the assessment of the seriousness of the instant offence of diminished responsibility manslaughter should ignore the guidance. Indeed we suggest that the link is plain.” 13. Similarly, in cases of involuntary manslaughter, the same point has been made. In Attorney General’s Reference No 60 of 2009 (R v. Appleby and others) [2010] 2 Cr App R (S) 311, [2009] EWCA Crim 2693 , the Lord Chief Justice presided over another five judge court. Noting (at para. 3) the same “catastrophic result for the deceased and his family”, namely “the loss of a precious life”, he said (at para. 22): “If it is necessary to examine any sentencing decisions prior to Furby , and indeed prior to this judgment, they should be examined with the clear understanding that none of the decisions we have seen, … has proceeded on the basis which we have now addressed, that crimes which result in death should be treated more seriously, not so as to equate the sentencing in unlawful act manslaughter with the sentence levels suggested in schedule 21 of the 2003 Act , but so as to ensure that the increased focus on the fact that a victim has died in consequence of an unlawful act of violence, even where the conviction is for manslaughter, should, in accordance with the legislative intention, be given greater weight. ” 14. A similar approach has been adopted in other cases (see, for example, involuntary manslaughter in a baby shaking, R v Burridge [2010] EWCA Crim 2847 and Attorney General’s Reference No 125 of 2010 (R v. Draper ), [2011] EWCA Crim 640 ). Finally, we refer to R v Thornley [2011] EWCA Crim 153 . In relation to manslaughter by reason of provocation, where death was caused with a knife, Lord Judge referred not only to this greater recognition of the relevance of Schedule 21 but also other changes since the guideline relating to the significance of knife crime by a generally and the impact of para. 5A of Schedule 21 (introducing a starting point of a minimum term of 25 years where a knife or other weapon is taken to the scene by a defendant intending to commit an offence or to have it available for use as a weapon). He said (at para 15): “It is clear to us from the developments analysed by Calvert-Smith J that the use of a knife, even in cases of manslaughter by provocation shall now be regarded as a more significant feature of aggravation than it was when the guideline was published. In the end everything depends upon the individual circumstances of each case: why and how the knife came to be picked up and eventually used.” 15. Lord Judge noted that even with a starting point (as in this case) of a determinate term of 12 years imprisonment, the range was from ten years to life which provided “an ample bracket which makes allowance for the changes and developments indicated by this court in its judgments or indeed by the legislation”. Such legislation obviously includes ss 54-55 of the Coroners and Justice Act 2009 which introduces new provisions relating to loss of control to replace the defence of provocation and which came into force for offences committed after 4 October 2010. Although by s. 54(2) of the Act, loss of control does not have to be sudden, there must be a qualifying trigger: see s. 54(1)(b). These consist of fear of serious violence from the victim or another and things said and/ or done constituting circumstances of an extremely grave character and causing the defendant to have a justifiable sense of being seriously wronged: s. 55. Thus, what appears to be a higher (and certainly a different) threshold than the common law has been created and will have to be taken fully into account in its impact on the culpability of the offence while, at the same time, the greater focus on the death of the victim as represented by the authorities to which we have referred equally falls to be considered. Just as important will be the adjustment to minimum terms in sentences for murder (a mitigating factor being provocative conduct albeit not sufficient to provide a partial defence in circumstances such as sexual infidelity), which might have generated a partial defence under the old law. At this stage, it is inappropriate to seek to elaborate upon the likely impact of these changes by reference to hypothetical situations although we anticipate that they will shortly fall for consideration. 16. Turning to the facts of this case, although we recognise the impact of prolonged, albeit low level provocation, it cannot be gainsaid that the deceased did not present a threat of any sort to the offender who could have left the house and then sought some other way of resolving the continuing tension that existed between him and the deceased. While we entirely accept that he did not bring the knife to the scene (as to which see the judgment in R v. Kelly; R v Bowers; R v Singh;R v Harding; R v Robinson; R v R; R v Roberts and R v Barr [2011] EWCA Crim 1462 ), he did take it from the kitchen and followed the deceased into the nearby study; his actions albeit spontaneous were not instantaneous. Because he was in the kitchen, the knife may well have been close to hand but he chose to pick it up, follow the deceased into the study and then attack her with it. For every offences of violence, the use of any weapon (in particular, a knife) will always be an aggravating feature and will serve to increase sentence. 17. In the circumstances, we agree with Mr Brown that the learned judge did not adequately bear these aggravating features in mind and, additionally, allowed too much credit for the guilty plea which was not formally entered at the first reasonable opportunity. Making every allowance for the offender’s remorse, his offer to plead guilty to manslaughter and the personal circumstances of which Mr Fitzgibbon so eloquently spoke and which are also contained in the letter from the offender placed before the court, in our judgment this sentence was clearly unduly lenient. After a trial, the sentence could not have been less than 10 years and the least sentence that can now be imposed on this reference is 7½ years. That is the change to the sentence which we now impose and, to that extent, this reference succeeds.

2011_06_16-2760.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/1461/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/1461

f74ff7515d0d14432c84a3b5f43b23aca984024c08a9bcc6ab9c401843a53901

[2012] EWCA Crim 1005

EWCA_Crim_1005

crown_court

No: 2012/1374/A7, 2012/1407/A1, 2012/1408/A2, 2012/1409/A4 & 2012/1925/A2 Neutral Citation Number: [2012] EWCA Crim 1005 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2(A 2LL Wednesday, 9 May 2012 B e f o r e : THE VICE PRESIDENT (LORD JUSTICE HUGHES) MR JUSTICE COOKE MR JUSTICE BURNETT - - - - - - - - - - - - - - - - R E G I N A v ROBERT HEALEY MATTHEW TAYLOR GARY BREARLEY ALEXANDER MCGREGOR MARK BOLTON - - - - - - - - - - - - - - - - Computer Aided Transcrip

No: 2012/1374/A7, 2012/1407/A1, 2012/1408/A2, 2012/1409/A4 & 2012/1925/A2 Neutral Citation Number: [2012] EWCA Crim 1005 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2(A 2LL Wednesday, 9 May 2012 B e f o r e : THE VICE PRESIDENT (LORD JUSTICE HUGHES) MR JUSTICE COOKE MR JUSTICE BURNETT - - - - - - - - - - - - - - - - R E G I N A v ROBERT HEALEY MATTHEW TAYLOR GARY BREARLEY ALEXANDER MCGREGOR MARK BOLTON - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - Mr R Barradell appeared on behalf of Healey Miss J Seaborne (Solicitor Advocate) appeared on behalf of Taylor and McGregor Mr G Wyatt appeared on behalf of Brearley Mr I West appeared on behalf of Bolton Mr L Mably appeared on behalf of the Crown - - - - - - - - - - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: These five defendants were all sentenced on the same occasion in the Crown Court at Sheffield for offences of cultivating cannabis. Their cases are entirely separate, but it has been convenient to hear them here one after the other in the same court in much the same way as it was obviously convenient in the court below. That is especially so since the judge sentenced them together and offered some generalised remarks about the basis on which he approached such cases. 2. Amongst those generalised remarks, the judge referred (correctly) to the frequency with which such cases were being encountered currently in Sheffield. He referred to the impact on the neighbourhoods in which they occurred. He referred to the decision of this court in R v Auton [2011] EWCA Crim. 76 , [2011] 2 Cr.App.R (S) 75. Having done so, he said this: "If it is not possible to continue passing immediate sentences of imprisonment in Auton 1 type cases under the [Sentencing Council] guideline, then I would have no hesitation in saying that in those cases to follow the guideline would not be in the interests of justice and decline to follow it." He was referring to the then recently published Sentencing Council definitive guideline on drug offences which was published in February 2012 and was expressed to have effect from 27th February 2012 onwards. 3. We are obliged to say that the approach encapsulated in the last brief citation of the judge's remarks is wrong. 4. There are inevitably bound to be different views from time to time about the general level of sentencing. In some fields, and drugs offending is one of them, there is a level of public debate at least about parts of it. That may or it may not be one of the reasons why Parliament elected to create the Sentencing Council as an independent body to take an overview of sentencing and to publish guidelines. At all events Parliament did so. The Sentencing Council receives a very wide range of information, statistical data, research and opinion, both lay and professional. The collection of information available to it is far wider than the members of this court, individually or collectively, or individual sentencers, can hope to have. The Council also engages in a comprehensive consultation programme before it publishes any guideline, frequently with the publication of one, or sometimes a succession, of drafts for discussion. That process frequently involves - and it did in this case - extensive testing of commonly encountered scenarios upon experienced sentencers, namely Crown Court judges and district judges. 5. There is deliberately built in to the guidelines issued by the Sentencing Council a good deal of flexibility, as we shall in a moment demonstrate. The flexibility available to Crown Court judges is appreciable. It does not, however, extend to deliberately disregarding the guidelines, not on the grounds that the case has particular facts which warrant distinguishing it from the general level, but because the judge happens to take a different view about where the general level ought to be. The latter approach is demonstrably unlawful. It would remove all point from the issuing of any guidelines at all but such guidelines are required by the Coroners and Justice Act 2009 . It would also, for that matter, equally rob of any point guidelines contained in a decision of this court. Indeed, such approach amounts to frank disobedience of the statute. That provides in section 125(1) of the Coroners and Justice Act 2009 that the court: " ... must follow ... any sentencing guidelines which are relevant to the offender's case ... unless satisfied that it would be contrary to the interests of justice to do so." In the end, that kind of approach, if adopted, would also be contrary to the rule of law to which all judges are committed. Very few judges are fortunate enough to go through life without encountering rare occasions when they would prefer the law to be otherwise to that which it is. The judge's duty is nevertheless to apply it, whether at first instance or in this court, just as it is the duty of the citizen to obey the law whether he happens to agree with it or not. 6. This court's decision in Auton was explicitly delivered in anticipation that the more general factors affecting drugs sentencing were to be addressed by the statutory body responsible, that is to say the Sentencing Council. The decision in Auton contained this observation at paragraph 13: "We are aware that the Sentencing Council has before it the task of framing guidelines for a wide range of drug offences. What we say by way of assistance to judges for the present must necessarily be subject to any more general guidelines thus prepared." For that additional reason it was simply not open to the judge to announce that he preferred the earlier and limited analysis of the level of sentencing which had been given in Auton to the definitive guidelines published by the Sentencing Council. One of the principal purposes of the Sentencing Council and of the guidelines that it creates is to avoid the necessity for repeated reference back in Crown Courts, Magistrates' Courts or here to previous decisions whether they are single instances or, for that matter, previously delivered guideline judgments. 7. There are in fact some, but limited, differences between the levels of sentencing contemplated at the time of Auton for offence of cultivation of cannabis and the levels of sentences contemplated by the definitive guideline. The sentencer's job is to read the guidelines for what they are. The differences however are not nearly as large as the arguments before the judge seem to have contended. 8. We recognise that the preparation of guidelines which are designed to assist in advance the whole range of drugs sentencing, if they are to be put in a reasonably condensed form, is a formidable task for those who undertake it. We also recognise that the concentrated form which such guidelines necessarily take requires reading in a manner which is different to reading a narrative judgment of this court given upon one or a few cases on known factual bases. The process is unavoidably different. 9. The format which is adopted by the Sentencing Council in producing its guidelines is to present the broad categories of offence frequently encountered pictorially in boxes. That is perhaps convenient, especially since it is necessary to condense the presentation as much as possible and to avoid discursive narrative on so wide a range of offending. It may be that the pictorial boxes which are part of the presentation may lead a superficial reader to think that adjacent boxes are mutually exclusive, one of the other. They are not. There is an inevitable overlap between the scenarios which are described in adjacent boxes. In real life offending is found on a sliding scale of gravity with few hard lines. The guidelines set out to describe such sliding scales and graduations. We wholeheartedly endorse the approach of Mr Wyatt, counsel for one of these defendants (Brearley), who asked us to find that a particular case was to be located on examination somewhere between two of the pictorial boxes. 10. In these guidelines, as in almost all such, there is a recognition that the two principal factors which affect sentencing for crime can broadly be collected together as, first, the harm the offence does, and secondly, the culpability of the offender. Those two root factors are often linked but not always. In some other contexts from that which we are now considering, such as for example offences of impromptu violence or offences which are committed carelessly, the two factors may not march together. In the context of offences which involve a considerable degree of deliberation and planning, such as will normally be the case for the production of drugs, they generally do march broadly together and certainly the one is likely to colour the other. Quantity, which is a broad appreciation of harm, may well colour participation, which is a broad appreciation of culpability, and vice versa. What we have just said about sliding scales applies equally to both elements, both to culpability and to harm. In neither case do the boxes have hard edges. 11. In these drug guidelines the broad indicator of harm in most cases, not all but including the cultivation of cannabis, is quantity. As this court made clear recently in R v Boakye [2012] EWCA Crim 838 , the quantities which appear in the sentencing guideline pictorial boxes as broad indicators of harm are neither fixed points nor are they thresholds. They are, as the heading to the relevant column says, "indicative" quantities designed to enable the experienced judge to put the case into the right context on the sliding scale. In the particular context of the production of drugs with which we are today concerned, they are indicators of output or potential output as the preamble to the relevant page (18) explicitly says. In production cases it is the output or the potential output which counts. The guidelines have to provide for all manner of production methods of all manner of drugs. They are not limited to cannabis, nor to plants. Nor can they be revised from month to month as production techniques or cultivation practices or the breeding of plants changes. At the time of R v Auton and at the time of the drafting of these guidelines, such evidence as there was suggested that many cases seemed to involve an output of about 28 to 40 grams, or an ounce to an ounce and a half, to the plant. A note on page 18 of the guidelines expressly states this assumption. Where numbers of plants are indicated that assumption underlies the numbers. The cases dealt with by the Recorder of Sheffield in the present sequence seem to indicate that at least in these cases, and perhaps for all we know more generally, productivity has increased markedly. The indicative quantity for the lower of the categories of harm is suggested to be around nine plants. Nine plants at 40 grams would be about a third of a kilo. The indicative quantity for the next category up is around 28. Twenty-eight plants at 40 grams would be something just over a kilogram. The judge however in the present case had one or more statements from police officers or forensic scientists indicating a yield very substantially greater than that this: sometimes 100 grams for a plant, sometimes 200 and sometimes apparently even more. That kind of yield is a step change. It demonstrates that the number of plants is, as the note to the guidelines makes clear, to be considered only as a route to the more fundamental question of output or potential output. 12. In the present case, the defendant McGregor stood to obtain no less than 1.47 kilograms, just under one and a half kilograms, nearly three-and-a-half pounds, from only seven plants. Another defendant, Brearley, stood to obtain about a kilogram and a third from a mere six plants. As is obvious, that puts their cases and ones like them squarely into category 3 of harm and not category 4, irrespective of the number of plants. 13. The same approach needs to be applied to the assessment of culpability which is particularly a matter for the experience of the judge. The guidelines say this, if one takes one's eyes out of the pictorial boxes and troubles to read the whole of them: "Culpability demonstrated by offender's role One or more of these characteristics may demonstrate the offender's role. These lists are not exhaustive." We would draw attention to the use of the words "may" and "not exhaustive". 14. The characteristics which are designed to assist sentencers in assessing the culpability of the defendant are couched in terms of role, no doubt because many cases of production, or for that matter of supply, involve chains of defendants operating at different levels. It is no doubt as good a generic word as can be thought of to meet all the different types of offence which there might be. It has somehow to contain within it both, on the one hand, the case where there are several offenders operating with different functions and, on the other, those where there is but a single defendant working on his own. The present cases, with one minor modification, are essentially cases of people working on their own. But their culpability still has to be assessed. The guidelines make it clear that one or more of the listed characteristics may (we emphasise) demonstrate the category into which the culpability of the defendant falls but it also says explicitly that those listed characteristics are not exhaustive. These pictorial boxes are not to be treated as exhaustively defining every possible form of criminal activity, even if that were ever possible, which it is not. 15. The lowest level of culpability headed, for convenience, "lesser role", encompasses those whose activity is at the bottom of the range of offending which courts encounter in the particular field which one is considering. So it includes, for example, those who are exploited or coerced by others or who became involved through naivety. Where there is a chain it encompasses those who are at the bottom of it and have little or no influence on those above them. It would, to take an example at random, be likely one suspects to include the defendant whose only function was to be the delivery man taking from A to B a batch of cutting agent for the producer who is busy bulking up quantities of heroin for onward sale. 16. This lowest category may (our emphasis again) also include those who if operating entirely alone are acting entirely for their own use. The box says so: "If own operation, solely for own use (considering reasonableness of account in all the circumstances)." That recognises a critical distinction which is highly material to these cases. It is the distinction between those who produce a drug which will increase the general availability of the forbidden substance by circulating it and those who do not. 17. The defendant who has half a dozen plants or so in a grow-bag alongside his tomatoes outside the back window is no doubt contemplated as engaged in what the guidelines would call a domestic operation (see category 4 of the harm). Assuming he is growing only for his own use, he would clearly have what they envisage as the lowest level of culpability within the range of offences of this kind. However, those who create a purpose-built room in the loft or the cellar or the garage, or who dedicate a bedroom to the exclusive purpose of cultivating cannabis, having invested substantially in professional equipment for watering, for lighting and/or for electronically controlled timing of those operations and others, cannot sensibly be described as having a lesser role. Nor can they sensibly be bracketed with people who perform a limited function under direction, who were engaged through coercion or intimidation or who were involved through naivety or exploitation. People with the kind of determined approach to cultivation which we have described and who are prepared to make the investment, do so because they are contemplating repeated cropping under professional or semi-professional conditions with dedicated apparatus which has been bought for the purpose, usually at a cost of some hundreds of pounds. Those people can perfectly properly be described, and in our view should be described, as having the kind of level of culpability which is the next level up from those who are at the lowest level, ie that labelled "significant role." Also in significant role will be those who like the defendants we have just described have the apparatus and the dedicated space for cultivation but in whose case there is a real likelihood of additional wider circulation, in other words supply, whether for money or not. That latter group is clearly higher up in the sliding scale and higher up in the significant category than those who do not. There is an essential and important distinction between cases where there is likely to be circulation or supply and cases where there is not. 18. We observe that we are conscious that the Council was not, unlike a judge dealing with a single or even a number of similar cases, confining itself to the relatively small part of the tapestry which we are here considering. It was not confining itself to the cultivation of cannabis or even to the production of drugs generally. It was attempting the much heavier task of giving help in the sentencing of drugs cases across the board. In particular, a large part of drug sentencing is concerned with those whose offence is not cultivation but supply. There has to be a sensible relationship between the levels for small scale supply and the levels for cultivation which will be likely to give rise to circulation or small scale supply. If one looks at the indicated levels in the section of the guidelines concerned with supply (pages 10 to 15) and compares them for cannabis with those with which we are concerned, one can see that the Council has sought to achieve a proper balance between the two. 19. In considering the question of the prospect of supply or circulation, we ought to say this. First, all these cases were explicitly dealt with by the judge on the assumed basis that there was no prospect of a future circulation. We in this court must honour that approach. We cannot forbear to say that the quantities involved in at least two of the cases would have caused all of us acute anxiety as to whether the assertion of sole consumption could possibly be truthful. Second, it is important to note that the prospect of future supply does not generally call for the inclusion of additional counts for possession with intent to supply. On this, the view of this court remains that which it held in R v Auton . The offence of possession with intent to supply relates to the possession of an identifiable quantity of drug which is in being. It does not relate to the possession of plants from which drug may or will in the future be extracted. In cultivation cases it follows that the prospect of future supply very often simply has to be evaluated by the judge and cannot be the subject of a jury verdict. Third, we have deliberately used the expression "the prospect of circulation or supply" because it is that, as it seems to us, which is the important question. It is not necessarily the same (although it often will be) as the defendant's intention. The reality is that if the cultivation process is going to produce a substantial surplus, beyond what the defendant will himself consume, of a substance which is worth something in the general region of £10 a gram, there will in many cases (although not all) be a real prospect of circulation even if he did not set out with that principally in mind. Moreover, circulation in this context is not confined to sale. Particularly in the context of cannabis the use is often semi-socialised. Those who use it in social conditions are committing an offence just as much as those who use it anywhere else. The reality is accordingly very likely quite often to be that supplies of surplus cannabis which has been grown will take place without the inevitable exchange of money consideration. It may well take place in circumstances which are rather different from the hole in the corner exchange of a small plastic bag at the back of a public house. But it still supply and it is still expanding, socialising and increasing the circulation of a product which Parliament has forbidden. Accordingly, what has previously been said in this court in a number of cases about the perils of the expression "social supply" remains as relevant now as it ever was. 20. As the quantity of cannabis or for that matter any other drug produced increases, the likelihood of it all being destined for the sole consumption of the defendant reduces. It may be possible for a defendant to consume a kilogram of cannabis all by himself, but it would take some time and involve very heavy use. Some of these defendants asserted that they were heavy users. The heaviest of them suggested that he had been spending as much as £200 per week on his habit. We do not know, and it is not necessary for the purposes of this case for the reasons we have given for us to investigate, the truthfulness of that, nor to examine whether his past income ever provided the possibility of him spending at that rate. But even assuming that it was truthful, it would take him about a year to consume a kilogram of cannabis. The cycle of production under the intensive conditions which were operated by all these defendants and are frequently encountered, produces either three or four crops each year, which means that a unit producing a kilogram at a time is going to produce about three times what even that kind of allegedly heavy user could possibly consume for himself. 21. We wish to reiterate that if a judge is faced with a defendant who asserts that an improbably large quantity of cannabis is entirely for his own use, he is entitled to indicate that he is not presently inclined to accept that assertion. He is entitled to give the defendant and his counsel the opportunity to give evidence about it if he wishes. We would suggest that that should generally be done, if the quantities involved raise a question of improbability. If it is done it does not involve an adjournment to some long post-dated future special hearing; it can usually be accomplished, and should usually be accomplished, by the hearing of evidence there and then. That is, as it seems to us, perfectly possible in the time available even in a busy Crown Court list. The defendant may then be able to explain both his production cycle and the consumption that he is engaged in, consistently with his occupation and family circumstances, or he may not. If he can, he must be sentenced on the basis that the drug was for himself. If he cannot, he will be sentenced on a different basis further up in the significant role box and he will of course moreover generally forgo most of the reduction for the plea of guilty which would otherwise have been accorded to him. What however the judge is not entitled to do is to say that he accepts the assertion that the drug cultivation was all for the defendant's own use and yet sentence on the basis that there is likely to be a supply to somebody else. In the present case the judge came close, if he did not, to falling into that error, for he said, whilst accepting in each of these cases that the use was going to be personal, this: "Often even if the original purpose was personal use there is a temptation to supply, not least to recover the set-up costs when the plants produce more than expected." The sentiment behind those remarks is right. If it had led him to find that there was a prospect of supply in these cases, such a finding would have been wholly unchallengeable. What, however, cannot be done is take that reality into account at the same time as accepting the defendant's assertion that there is no prospect of supply. 22. Those general observations lead us to the very clear conclusion that the defendant who invests substantial sums in the creation of a production line for the cultivation of cannabis, usually in a separate room dedicated for the purpose, is properly to be located on the sliding scale of culpability at the bottom end of the significant role category. Those who do the same where there is a prospect of supply are higher up in the significant role category and those who do it where it is frankly clear that there will be supply for money are a little further up again. When the operation becomes commercial, in the ordinary sense, then one is talking about the uppermost category of culpability. That, as it seems to us, is a perfectly workable form of approach and it is entirely consistent with the guidelines. It does not involve any departure from them at all. If (as here in most cases) the quantities are such as to put the case into category 3, then for those where there is no prospect of supply it seems to us that the appropriate level for sentencing will very often be in the general region of six to 12 months after trial. There may of course be cases where it is entirely proper for there to be a non-custodial penalty but the general range seems to us to be that which we have identified. That again, we make clear, is achieved by the application of the guidelines and not by departure from them. 23. That having been said, we turn to the present cases. The defendant Brearley was 45 years of age. He had a specially constructed room at the back of his garage, partitioned off from the rest of it. Whether it was formally concealed or not is not entirely clear. In it he had the usual collection of equipment for the intensive cultivation of cannabis. At the time that he was arrested there were six plants in there, but their potential yield was very high and would have been as much as one and a third kilograms. He had spent something like £600 on the equipment, an investment which would have meant undoubtedly that it must have been his intention to have repeated crops. There were aggravating factors. He involved other people. On the occasion of his arrest two of his friends were there, apparently helping him crop the plants. In addition, he had bypassed the electricity. The equipment that is used for this kind of intensive cultivation uses a lot of electricity. That means that the person who does it either has to sustain a substantial further investment or he has to swindle the electricity company. Brearley chose the latter course and that is a clear aggravating factor which affects the sentence. 24. At the age of 45 he had a number of previous convictions but none was for a like offence. He pleaded guilty at an early opportunity. He asserted that the product would all be for his own use and that appears to have been accepted notwithstanding the yield. We here proceed on the same basis, as we must. He is a below-knee amputee (he is missing a foot) as a result of an unfortunate accident some years ago. He asserted that he used the cannabis to assist the phantom pains which he experienced. We observe, as did the judge, that there was no medical evidence whatever, not so much for the presence of the pains (which may well exist in an amputee) but for any effort on his part to obtain legitimate prescription medicine for them. 25. The judge passed a sentence of nine months' imprisonment which would suggest a starting point around 13 months or thereabouts. Because there is the clear possibility that the judge's approach was to some extent flawed by his general approach to the guidelines, we have thought it right to approach this case, as indeed the others, afresh. That will result in a modification of the sentence which had there not been the arguably flawed approach might have been smaller than would ordinarily justify intervention by this court. The proper sentence in his case, given the quantities and the aggravating features of the operation, would have been about 12 months after trial, eight months on a plea of guilty. That is based on significant role, category 3. We allow the appeal and substitute the sentence of eight months for nine months. 26. The defendant McGregor was 24 years of age. He had constructed a dedicated room with a similar set of equipment, no doubt at similar expense, in this case in the loft of the house which belonged to his mother where he also lived. She, it seems, was kept in the dark about it. He had seven plants there at the time of his arrest. They would have yielded as much as 1.47 kilograms of product - in other words something that would be worth, were it to be sold, something just short of £15,000. The offence was aggravated by the risk to which he exposed his mother and for that matter by the presence of other non-users in the house who at least were at risk of being affected by the fumes. He pleaded guilty. There had been a warning for a different offence in the past, but he was otherwise unconvicted. 27. Once again, given the quantities and the circumstances of the offence, in our view the proper sentence after trial would have been about 12 months. He pleaded promptly and his sentence ought to be eight months in the same way as Brearley's should. That too is based on significant role, category 3. We allow the appeal, quash the sentence of 10 months and substitute one of eight. 28. The defendant Healey had a purpose-built structure of wood erected in the cellar of the house where he lived. It had once again the same kind of specialist semi-professional equipment for the cultivation of cannabis. In his case, as in all the others, clearly a continuous process of cultivation was afoot. There were at the time of his arrest nine growing plants with a further 14 cuttings which were clearly going to be the next batch. The potential output of those altogether, even taken at the lower assumed yield of 40 grams per plant, would have been something over 900 grams, in other words just short of a kilogram. 29. Healey pleaded guilty at an early stage. There were cautions as a child, although they were for the possession of cannabis, but there were no other convictions and he was 23 years of age. The case did not have the aggravating features which were present in the case of Brearley and McGregor. It seems to us the right sentence after trial would have been about nine months and accordingly six months to recognise his prompt plea. That also is significant role, category 3. We allow the appeal. We quash the sentence of nine months and substitute one of six months. 30. The defendant Taylor had a purpose-built room this time in the loft. The equipment once again demonstrated that what was afoot was a continuous process of cultivation. There were at the time of arrest eight plants with an estimated yield of 800 grams or about £8,000 worth. He had two previous cautions for the possession of cannabis and a number of other unrelated convictions. He was not a man of good character. There were however no particular aggravating features of the kind that we have identified in the case of Brearley and McGregor. He was 28 years of age. In his case, as in Healey's, we think that the sentence after trial ought to have been about nine months based on significant role, category 3. We quash the conviction and substitute, allowing for his plea of guilty, a sentence of six months. 31. Lastly, the defendant Bolton had a loft conversion structure. In it at the time he had 10 plants. In his case the assumed yield was significantly less. It was assumed on the basis of 40 grams of plant and thus was only about 400 grams. The defendant advanced a clearly unsustainable and untruthful story when first asked about it and suggested that somebody else had put the equipment and the plants in his loft without his knowledge and thereafter there was a good deal of prevarication about his account. Eventually, he came before the court on the admitted basis that there would have been an element of supply by way of sale in his offending. There are therefore two differences between his case and the others. The first is the admitted prospect of sale which puts him clearly into the significant role box, but the second is the much smaller quantity which does put him in the lower category 4 level of the range of harm contemplated by the guideline. In that case the appropriate range is between a community order and about six months' imprisonment. He is at the top of that range, as it seems to us, and after trial his sentence ought to have been about six months. His plea was extremely late. We shall adjust it to a small extent. We shall quash the sentence of nine months which was imposed upon him, very much the same as on all the others, but substitute a sentence of five months in his case. 32. To those limited extents, the appeals of each of these defendants are allowed.

2012_05_09-2976.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2012/1005/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2012/1005

8c235faeb67b93574932b79d15161188b6eb53a8bae4a6717a1898637566d8df

[2016] EWCA Crim 441

EWCA_Crim_441

crown_court

Neutral Citation Number: [2016] EWCA Crim 441 Case No: 2015/2664/C4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 18 March 2016 B e f o r e : LORD JUSTICE HAMBLEN MR JUSTICE JEREMY BAKER HIS HONOUR JUDGE KRAMER QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v CHRISTIAN COULTHURST - - - - - - - - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph notes of WordWave International L

Neutral Citation Number: [2016] EWCA Crim 441 Case No: 2015/2664/C4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 18 March 2016 B e f o r e : LORD JUSTICE HAMBLEN MR JUSTICE JEREMY BAKER HIS HONOUR JUDGE KRAMER QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v CHRISTIAN COULTHURST - - - - - - - - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph notes of WordWave International Ltd trading as DTI 8th Floor, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Non-Counsel Application appeared on behalf of the Appellant The Crown did not appear and were not represented - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (As Approved by the Court) 1. JUDGE KRAMER : On 16th January 2015 at the Crown Court at Aylesbury, the applicant, now 38 years old, was convicted after a trial before Mr Recorder Soole QC and a jury of an offence of intimidation, contrary to section 51(1) of the Criminal Justice and Public Order Act 1994 . It was alleged that on 25th September 2014, knowing or believing that Alison Chester was a potential witness in proceedings for an offence, he attended her place of work and made demands for her to change her witness statement and failed to leave when required which intimidated and was intended to intimidate her, intending thereby to cause the course of justice to be obstructed, perverted or interfered with. On 27th May 2015 he was sentenced to six months' imprisonment. 2. On 14th January 2014 the applicant attended the job centre at Milton Keynes with his partner. He became involved in a violent incident with members of the staff. A security guard, the head of security, Alison Chester, witnessed the incident. The applicant was charged with offences of violence. He was bailed with conditions not to go to the job centre or to contact any of the staff. 3. On 24th September 2014 the applicant's partner went back to the job centre to ask for the identity numbers of the security officers involved. Miss Chester refused to give the details. About 20 minutes later the applicant entered the job centre and Miss Chester was alerted to his presence. It was alleged that the applicant spoke to her and told her to change her statement or she would lose her licence. He repeated that twice more. He refused to leave when asked. Miss Chester felt scared and intimidated. The police were called and arrived. The applicant continued to intimidate Miss Chester by staring at her. 4. He was arrested and interviewed. He said in interview that he had gone to the centre to obtain the identity numbers of the two guards involved in the January incident, something he said to which he was entitled. He told staff that he would wait for the police to arrive so that he could obtain that information. He denied requesting that information from Miss Chester. He maintained that he had not spoken to her at all and had made no threats to her. That was the case he put before the jury. 5. The trial began on 13th January 2015. At the lunch break on 14th January 2015 Miss Chester had not finished giving evidence. At that break the judge's clerk overheard a conversation between Miss Chester and an unknown male. The court clerk overheard the male to say "We must tell the prosecution" but heard nothing else. The matter was raised with the Recorder. It appears that he ruled the morning after the incident over lunch the day before. He declined to initiate an enquiry as a possible prelude to proceedings for contempt in the face of the court because what was said "may be entirely innocent" and the discussion may have been about the earlier alleged offence, proceedings for which were still before the Magistrates' Court. He concluded: "There is not enough there to raise a prima facie case of contempt and that is the first basis on which I am taking the matter no further." He ruled that the primary reason for taking no further action was that in his judgment the threshold had not been reached. He also gave as a secondary reason for not taking any further action, the fact that it was too complicated to deal with it in the middle of a trial. Miss Chester would need separate representation and another judge would probably have to deal with it. 6. The applicant was granted an extension of time of four months in which to seek leave to appeal and now renews his application for leave to appeal against his conviction following refusal by the single judge. The grounds of appeal are that the Recorder erred by wrongfully rejecting an application that the court should make an enquiry of its own motion into whether Alison Chester had committed a contempt of court by virtue of her failure to abide by the order of the court not to discuss her evidence. It is further contended that by virtue of the ruling the defence were derived of potential evidence affecting the credibility and reliability of the only prosecution witness of fact. It is not suggested that the Recorder misdirected the jury during the trial or in the summing-up or wrongfully admitted any evidence. Nor is it suggested that there was any other procedural defect in the conduct of or procedure during the trial. 7. Whilst a different court might after the lunch adjournment on 14th January 2015 have conducted an enquiry of the witness in the absence of the jury, as the single judge said there was no requirement on the Recorder to conduct some kind of enquiry. As the single judge also observed in refusing leave to appeal against conviction: " ... the applicant and his counsel were aware of what it was said had occurred vis-a-vis the witness while the witness was still in the witness box. If counsel thought that the issue could have had a significant effect on the credibility of the witness, he could have asked her himself about it. His judgment may have been that this would have been too risky - but the decision was his to take." In our judgment, on the evidence before this court the submissions that Miss Chester and the unknown male were discussing the ongoing case are entirely speculative. In those circumstances, we have concluded that the conviction is safe and accordingly we reject this application.

2016_03_18-3728.xml

conviction

https://caselaw.nationalarchives.gov.uk/ewca/crim/2016/441/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2016/441

9b575468eea6522492fad1b320eba70a8b7ff905836556f15975506512c73788

[2009] EWCA Crim 1939

EWCA_Crim_1939

crown_court

Neutral Citation Number: [2009] EWCA Crim 1939 Case No: 2008/0978/C3 IN THE COURT OF COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT NORTHAMPTON Royal Courts of Justice Strand, London, WC2A 2LL Date: 08/10/2009 Before : LORD JUSTICE RICHARDS MR JUSTICE IRWIN and HIS HONOUR JUDGE BEVAN QC - - - - - - - - - - - - - - - - - - - - - Between : The Queen Respondent - and - Peter Pomfrett Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2009] EWCA Crim 1939 Case No: 2008/0978/C3 IN THE COURT OF COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT NORTHAMPTON Royal Courts of Justice Strand, London, WC2A 2LL Date: 08/10/2009 Before : LORD JUSTICE RICHARDS MR JUSTICE IRWIN and HIS HONOUR JUDGE BEVAN QC - - - - - - - - - - - - - - - - - - - - - Between : The Queen Respondent - and - Peter Pomfrett Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Nicholas Purnell QC and Joseph Templeton (instructed by Bankside Law ) for the Appellant Sir Derek Spencer, Mark Bryant-Heron and Rebecca Chalkley (instructed by Solicitor to HM Revenue & Customs ) for the Respondent Hearing dates : 28-30 July 2009 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Richards : 1. Peter Pomfrett appeals against his conviction on 23 January 2008, after a 3½ month trial at Northampton Crown Court before His Honour Judge Ian Alexander QC and a jury, on a count of conspiracy to cheat the public revenue. The alleged conspiracy concerned a chain or carousel fraud, referred to as a missing trader intra-Community fraud (or “MTIC” fraud), whereby Her Majesty’s Revenue and Customs (“HMRC”) was cheated out of some £25 million of VAT. It was one of a number of frauds and related money laundering offences investigated by HMRC in the period 2002 to 2006 under code-names such as “Operation Vitric” and “Operation Devout”. The prosecution in this case arose out of Operation Devout II. At the forefront of the appeal is an issue of non-disclosure. The prosecution admit that they failed to disclose a large body of material concerning Operation Vitric which ought to have been disclosed for the purposes of the appellant’s trial. The question is whether that material, now available to this court, casts doubt on the safety of the appellant’s conviction. That issue has to be considered together with a number of grounds of appeal relating to the fairness of the judge’s summing up and of the trial process. Leave to appeal in respect of the grounds other than non-disclosure was granted by the single judge. The issue of non-disclosure emerged in its present form at a later stage and is the subject of supplemental grounds for which leave was granted by the full court. 2. In the event that the appeal against conviction fails, there is a renewed application for leave to appeal against sentence. The alleged conspiracy and the trial: overview 3. A chain or carousel fraud of the kind that occurred in this case involves a series of transactions (or nominal transactions) starting with the import of goods into the United Kingdom from a supplier within the European Union, followed by onward supplies through a number of “buffer” traders within the United Kingdom and ending with the re-export of the goods from the United Kingdom. The import and export transactions are zero-rated for VAT, whereas the onward supplies within the United Kingdom are subject to VAT. The importer, however, is a missing or “hijacked” trader who does not account to HMRC for the VAT payable on the supply to the next trader in the chain. The exporter pays VAT on the goods supplied to it by the previous trader in the chain; but since the export is zero-rated, the exporter is able to claim back from HMRC the VAT it has paid. The overall effect is that HMRC incurs a loss, whereas the fiscal position would have been neutral if the trading had been genuine and the VAT had been accounted for properly. 4. In this case the goods were computer processing units (“CPUs”). The nominal importer was a firm by the name of PJ Spencer, a company which had its identity hijacked for the purposes of the fraud. 5. The first line buffer was Aurum Jewellery Wholesale Limited (“Aurum”). A man by the name of Pravin Jogia was a director of Aurum. Between 25 June and 19 July 2002 Aurum purportedly made 56 purchases of CPUs from PJ Spencer, at a total price of £169.2 million and a VAT charge of over £25.2 million. The invoices were a sham and the VAT was not accounted for to HMRC. 6. The second line buffers were Lightcare Limited (“Lightcare”) and Vendon (UK) Limited (“Vendon”). Jonah Adali-Mortty was a director of Lightcare, and Arash Masoumzadeh was a director of Vendon. Aurum’s records showed 51 sales to Lightcare and 3 sales to Vendon, at a total price of £169.5 million. 7. The third line buffers were Globalactive Technologies Limited (“Globalactive”) and Beronvine Limited (“Beronvine”). The appellant was a director and company secretary of Globalactive; Mustafa Mehmet was another director of the company; and Timur Mehmet , the nephew of Mustafa, was an employee of the company. Globalactive is considered in greater detail below. Babak Cherazi was a director of Beronvine; Khalid Hamidi took over the role of company secretary of Beronvine on about 11 July 2002. According to the invoices found, Lightcare made 46 sales to Globalactive at a total price of £135.6 million (with a VAT charge of £20.2 million) and 4 sales to Beronvine at a total price of £13 million (with a VAT charge of £1.9 million); and Vendon made 3 sales to Globalactive at a total price of £14 million (with a VAT charge of £2 million). 8. Of the individuals identified above, Jogia pleaded guilty at an early stage to the conspiracy alleged. Mustafa Mehmet changed his plea to guilty at the beginning of the trial. Masoumzadeh was outside the jurisdiction, in Dubai, and was not tried. Adali-Mortty, the appellant, Timur Mehmet, Hamidi and Cherazi faced trial on an indictment alleging, in the particulars of the offence charged, that “between the 1 st April 2002 and the 23 rd July 2002 … [they] conspired together and with Pravin Jogia, Mustafa Mehmet, Arash Masoumzadeh and other persons to cheat Her Majesty the Queen and The Commissioners of public revenue, namely monies being or purporting to be Value Added Tax payable …”. Timur Mehmet did not answer to his bail at the commencement of the trial and was tried in his absence but was represented throughout by counsel. The remaining four defendants were present and represented at the trial. All those who were tried were found guilty by the jury. 9. On 28 January 2008 the appellant was sentenced to 10 years’ imprisonment (with 4 days in custody on remand to count towards sentence) and was disqualified under section 2 of the Company Directors Disqualification Act 1986 for 14 years. Adali-Mortty was sentenced to 6 years’ imprisonment and disqualified for 10 years. Mustafa Mehmet was sentenced to 4 years’ imprisonment and disqualified for 10 years. Timur Mehmet was sentenced in his absence to 8 years’ imprisonment and disqualified for 12 years. Hamidi and Cherazi were each sentenced to 4 years’ imprisonment and disqualified for 8 years. Sentencing of Jogia was adjourned because he had recently had a serious medical operation, and we do not have details of the sentence later imposed on him. The case against and for the appellant at trial 10. Although the indictment referred to the period from 1 April to 23 July 2002, the prosecution put its case at trial on the basis of a conspiracy to carry out a dishonest scheme during 20 days of trading between 25 June and 22 July 2002. The entire trade was said to have been rigged. 11. The position of each of the defendants at trial, and what the prosecution said about them, was explained as follows in the prosecution’s opening note: “3. The defendants do not dispute there was a conspiracy to cheat. The defendants Adali-Mortty, Timur Mehmet and Babak Cherazi admit they did acts which furthered the conspiracy because they carried out the deals. But they say they did not know of any VAT fraud and acted honestly. They say they are the victims of other people’s dishonesty. They were used or hoodwinked by others who were dishonest, such as Jogia and Mustafa Mehmet. In the case of any defendant where that may be so you will acquit. The prosecution say these are lying defences, each of these defendants was dishonest because he too had agreed to help what he knew was a VAT fraud. The central issue in the case, therefore, is whether any of these defendants had a dishonest state of mind. You will decide that by looking at all the evidence including what they did or did not do or said. 4. In the case of Peter Pomfrett he denies any knowledge of the fraud and participation in the deals. If that might be so you will acquit. The prosecution contend that this is also a lying defence because he agreed to and did assist what he knew to be fraud by financing it, supervising it and receiving a substantial dishonest profit. In the case of Hamidi he denies being involved in any way whatsoever. If that might be so you will acquit. The prosecution say this is a lying defence …. 49. … The prosecution contend that the only sensible inference from all the evidence is that each defendant who was involved in the day to day operation of Aurum, Lightcare, Globalactive and Beronvine must have been aware that they were participating in an MTIC carousel fraud because such a fraud requires that movements and pricing of goods, and transfers of money are carefully synchronised and that each party has a pre-ordained and agreed role to achieve the dishonest objective. The goods have to be sold to the right people at the right price at the right time ….” 12. Thus the appellant’s essential defence was a denial of knowing participation in the fraud. He said that he was the innocent victim of the dishonesty of others, who had used Globalactive without his knowledge for the purposes of their fraud; and in particular, he had been duped by Mustafa and Timur Mehmet. 13. On the evidence at trial the genesis of the fraud charged in the indictment was obscure, though the suggestion before the jury was that it originated in, or had its epicentre in, Dubai. Certain information about this had been provided to the prosecution by Jogia after he entered his plea of guilty. That information was disclosed to the other defendants but very little of it could be deployed in evidence in the absence of Jogia as a witness. Jogia had said that he used to deal in the jewellery trade with a man called Raffi, whose companies included Masheikh Commercial Brokerage (“Masheikh”) and Emirates European General Trading in Dubai. Around March/April 2002 Raffi approached him to act, in return for a small commission, as a go-between in respect of deals with PJ Spencer and Globalactive, as Raffi did not want those two companies to meet. Jogia agreed. In May 2002 Raffi faxed him various documents, including drafts of letters to be sent to PJ Spencer and to Globalactive. Raffi also asked him to book flight tickets to Dubai for a man called Chopra and others involved in the fraud: Chopra had a hotel in Singapore but all his money was in Dubai. According to Jogia, the money from the fraud went to Raffi’s companies and was then redistributed to the others involved. 14. The documents sent by Raffi to Jogia were in evidence before the jury, and the fax details showed that they had been sent from Masheikh in Dubai. This invited an inference that someone else, in Dubai, was behind the fraud, but what Jogia said about it, including the involvement of Raffi, Chopra and others, was not in evidence. 15. Also in evidence was a letter of introduction written by Jogia to Globalactive on 7 May 2002, in terms corresponding to the draft sent to Jogia. Entries in Globalactive’s cashbook provided evidence of two payments of £667.20 to Emirates on 7 May for travel: and the appellant said in evidence that Timur Mehmet had visited Dubai that day. 16. On receipt of Jogia’s letter of introduction of 7 May, the appellant wrote a reply on the same day, thanking Jogia for the letter, indicating a willingness to trade with Aurum, and asking for a trade reference and for clarification of Aurum’s trade classification. Globalactive subsequently sent completed purchase orders to Aurum, but there was no evidence that the trading between them went ahead. During the period of trading relied on by the prosecution at trial, sales by Aurum were made to Lightcare and Vendon as second line buffers, and then on to Globalactive and Beronvine as third line buffers, rather than direct from Aurum to Globalactive. 17. There was evidence from a Customs & Excise officer, Mr Davies, that he had attended the offices of Globalactive on 18 April 2002 and was informed that the company had set up a practice of contacting the Redhill Business Centre to validate VAT registration numbers of potential new suppliers. The appellant confirmed to him that the company would continue to do so. The appellant’s evidence was that Aurum’s classification as a jewellery business prompted him to query, in his reply to Jogia’s letter of 7 May 2002, whether Aurum was allowed to trade in computer hardware. A note was subsequently sent to Globalactive by a VAT specialist (marked for the attention of Mustafa Mehmet but seen by the appellant) confirming Aurum’s VAT registration and that it could deal in any goods. But the appellant had also sent a request to the Redhill Business Centre for confirmation that Aurum was a bona fide company registered for VAT purposes; and he followed this up by sending them a copy of the VAT specialist’s note. He did not receive a satisfactory response: the Redhill Business Centre in fact referred Aurum to a local customs officer to check why a jeweller was trading in CPUs. The appellant said that because his concerns about Aurum were not satisfied he gave instructions that no-one at Globalactive was to trade with Aurum without his consent. The defence relied on these matters as evidence of the appellant’s innocence. The prosecution’s case was that as a knowing participant in the fraud the appellant was checking whether it was safe for Globalactive to deal with Aurum. 18. Another element in the prosecution case was evidence from a representative of Barclays Bank that sudden activity, with turnover bigger than expected in the Globalactive bank account, gave rise to a concern that the company was being used for a VAT fraud, and the bank decided for commercial reasons to give notice of closure on 16 May for 15 June. The appellant wrote to the bank to complain about the notice of closure, and following negotiations an extension was granted to 23 July. There was evidence that the appellant took steps to obtain an alternative banking facility and managed to secure the opening of a bank account at Bank of Scotland with effect from 9 August 2002. Globalactive, however, ceased to trade after 27 July. 19. As a major plank of the prosecution case, the jury were taken through a detailed schedule of the various chains of transactions entered into by the companies concerned, including the payments made in respect of them (many of which were made to third parties rather than to the suppliers of the goods), to show how the fraud operated in practice. 20. When it came to the defence case, the appellant gave evidence and called a number of witnesses. He said that he played very little part in Globalactive and did not know that the Mehmets were using the company for VAT fraud. He explained how he became involved with the company. He had regretted not taking up a previous opportunity to become involved in a computer business. He knew Timur and family because his sons and Timur went to the same school. Timur had originally sought funding for a company to refurbish phones, which was not successful. Timur had returned in 2001 with a fresh proposal for Globalactive, which had been set up by Mustafa Mehmet. They needed capital to fund the VAT element in export sales before the VAT could be reclaimed from HMRC. At the time the appellant’s funds were tied up, but when he sold his country club business his position changed. He visited two companies (IT Wholesale and DVD Trading) and was impressed, so he agreed to become involved in Globalactive. He became a director and company secretary of the company, brought in his own accountants and communicated with the bank, informing them that he would be dealing with the company and that he was proposing to invest a considerable sum to enable trading to commence. The business was to be the buying and selling of computer hardware both at home and overseas. On 19 March 2002 he put £500,000 into the company and obtained 51% of the shares: the £500,000 was only intended to be a short-term loan. 21. According to the appellant, Globalactive had been looking for offices and it made sense for it to use the offices, and the secretarial and accountancy services, of the golf club business. He became sole bank signatory in order to safeguard finances. Timur requested online banking facilities in order to make payment instantly in a fluctuating business. The accountancy and bookkeeping were done by the appellant’s staff, whom he trusted. Checking procedures were carried out as requested by Customs & Excise. He tracked what was happening financially by asking for preparation of a deal sheet for a given period. He looked at cash flow occasionally, knowing it was important. He did not get involved in the trading side. He understood that Timur had the goods sold before they were purchased because of a wish not to be left with unsold stock. The appellant himself was out of the United Kingdom regularly twice a month and was planning retirement. Although the business was dealing in very large sums of money, he had experience and trusted the bookkeepers. He did not involve himself in the day to day business but was busy increasing the value of his remaining assets. He normally attended the office at about 8 a.m., and Mustafa Mehmet arrived at about 10 a.m., around which time the appellant tended to leave. He could see that trading was hectic and non-stop, and he was unable to conduct his own business at the same time because there were too many distractions. If he returned to the office it was not until after the banks closed. He looked at the cash flow at the end of the trading day: Timur and Mustafa showed him what the company owed and what was owing to it. 22. The appellant said that from an early stage Customs & Excise had asked him to check and verify the people the company was purchasing from. Unless he checked and it was verified he would not allow them to trade. He was aware of, and was concerned about, missing traders. He gave instructions for every enquiry to go through the system. 23. The prosecution case had included evidence of the payment to Globalactive of two sums of about £1 million each, on 17 April and 10 May respectively, from the client account of the company’s solicitors, Tolhurst Fisher. In his evidence in chief the appellant said that the money was from a contact of Timur’s but he gave no details. He was cross-examined extensively about this. The relevant files had been in the possession of Tolhurst Fisher and the defence had had difficulty in obtaining them, so that they became available to the appellant only shortly before he gave evidence. Asked at the outset of the cross-examination who the contact of Timur’s was, he said that he had now had an opportunity to look at the files and it was an investment company called Atlantic (it was in fact Atlantic Custodian SA; we will refer to it as “Atlantic Custodian”). He said he did not know who controlled Atlantic Custodian and he could not recall any other details about it, such as whether it was a limited company or where it was registered. At a meeting also attended by Timur and, he believed, arranged by Timur, he met two men who were either agents of or worked for Atlantic Custodian. He did not recall their names or where precisely they met, though it was in a hotel in the City or West End. He thought that one of the men was possibly American and the other Asian but he could not give further details about them. The meeting resulted in an oral agreement that Atlantic Custodian would advance an initial sum of £1 million to Globalactive, with the possibility of calling down further funds if Globalactive required further investment. It was left to the parties’ solicitors to draw up a written agreement. 24. Later, after prosecuting counsel had had a chance to look at the Tolhurst Fisher file, there was further extensive cross-examination about the documents. They showed the process of finalising a Co-operation Agreement between Atlantic Custodian and Globalactive. Instructions were being given to Tolhurst Fisher by the appellant, with no evidence of any involvement by Timur Mehmet. A lawyer by the name of David Post in Virginia, USA, was acting for Atlantic Custodian. At one point the appellant requested that a copy of the draft Agreement showing the amendments proposed by Tolhurst Fisher be faxed to a Mr Davey at a Dubai number. The Agreement in its final form provided for the parties to undertake “the Project” (namely the trading of electrical and electronic goods and components and computer parts and peripherals) for one year, with Atlantic Custodian to pay Globalactive the initial funding of £1 million on signature, and Globalactive to pay Atlantic Custodian 25% of the gross profit on the trading. The Agreement was signed on behalf of Globalactive by the appellant and Mustafa Mehmet. The first payment of £1 million was transferred to Tolhurst Fisher soon afterwards. A second payment of about £1 million followed later. Repayments were made just before the closure of Globalactive’s bank account at Barclays Bank. It was put to the appellant that he was using Atlantic Custodian as a means of investing his own monies to finance Globalactive’s part in the fraud. 25. Another area of cross-examination concerned large payments that had been made by Globalactive to a company called HIFX Limited in Canada. It was put to the appellant that they were a means of extracting some of the fruits of the fraud into a foreign jurisdiction. 26. More generally, there was lengthy cross-examination about the nature and extent of the appellant’s involvement in, and knowledge of, Globalactive’s day to day operations. 27. In addition to the appellant’s own evidence, he adduced supporting evidence from his architect (who gave evidence about their projects together and the appellant’s pattern of work) and from two long-serving employees, namely Theresa Calvey and Sandra Dee (who both gave evidence about the system in the Globalactive office and the nature of the work carried out by the appellant on the one hand and by Mustafa and Timur Mehmet on the other), in addition to character evidence. The appellant had said that a third employee, Christine Killigrew, would also be called as a witness, but in the event this did not happen. 28. By the end of the trial the prosecution was able to summarise the appellant’s defence as follows (and the fairness of the summary was not disputed by Mr Purnell). At Timur Mehmet’s invitation the appellant made a short-term loan of £500,000 to Globalactive, and became the sole bank signatory and majority shareholder to protect his investment. The loan was soon repaid. Timur arranged further finance with Atlantic Custodian. It was really Timur’s company; he controlled it; he was the driving force behind it. The appellant had other business interests. He set up procedures including verification with Redhill. This included Aurum. He was not satisfied with the results of the verification of Aurum and told Timur and Mustafa Mehmet not to trade with it. He supplied premises and three staff who authorised online payments. He spent only 10 minutes or half an hour a day on Globalactive’s business. The trading room was manic so he would leave. He was really only concerned with the cash flow. On a daily basis he saw the amounts owed and owing at the end of the day, and he saw the deal sheets monthly. His profit was about £120,000. He believed it was honest trading. He trusted the Mehmets and when he heard Mustafa Mehmet had pleaded guilty he was disappointed and shocked. 29. The issue for the jury was whether the appellant’s evidence, supported by the witnesses called on his behalf, was or might be truthful. 30. In his closing speech, prosecuting counsel made various general points, including the need for the jury to consider such matters as the machinery of the conspiracy, how events dovetailed and locked together, what each defendant did or said, who benefited from the fraud (“Following the money is a sound principle in these cases because they are committed for money”), whether a defendant had lied on oath, whether two or more defendants had cooperated in the way they conducted their defences in court, and, in the case of the appellant, whether he had got witnesses to come to lie on his behalf. 31. It was submitted that the appellant and his witnesses had lied and that the only sensible inference from a number of matters taken together was that the appellant was a knowing party to the cheat, together with Mustafa and Timur Mehmet. The matters relied on were as follows. First, what the appellant did: (i) his 51% controlling shareholding; (ii) he was sole bank signatory; (iii) he had arranged for his companies’ accountant to be Globalactive’s accountant; (iv) he had arranged for his companies’ solicitors, Tolhurst Fisher, to act for Globalactive in connection with the Atlantic Custodian agreement; (v) he wrote to the VAT registration unit to effect speedy VAT repayments; (vi) he signed most of the VAT returns; (vii) he wrote five letters to HMRC about the VAT affairs of Globalactive in 2003; (viii) he dealt with Barclays, especially to extend the life of the account; (ix) he tried to obtain banking elsewhere and succeeded in securing further banking with Bank of Scotland; (x) he gave instructions to Tolhurst Fisher in connection with the written agreement with Atlantic Custodian; (xi) he gave instructions for the written agreement with Atlantic Custodian to be sent to Mr Davey in Dubai; (xii) he signed the Atlantic Custodian agreement; (xiii) he took the lead at the meeting with the Customs & Excise officer Mr Davies on 18 April 2002; (xiv) he supplied the accommodation for Globalactive; (xv) he supplied his own long-standing and loyal staff to assist in the trading and administration; (xvi) he authorised loans to IT Wholesale totalling £1.4 million with a view to them being repaid when Globalactive got another bank account; (xvii) he answered the letter from Jogia on 7 May 2002 written to implement the fraud blueprint received from Dubai; (xviii) he initiated the verification of the Aurum VAT number; (xix) he wrote the memo that there was to be no trading with Aurum; and (xx) he wrote letters to customers about damaged goods. 32. The prosecution relied further on the way he gave evidence, referring to his three refrains of “I can’t remember”, “it was Timur Mehmet” and “I was not there”. It was submitted inter alia that he had been unable to give a convincing reason why he loaned £500,000 with no written agreement to a company that had never traded, to engage in trade he knew nothing about; that he and Theresa Calvey had lied in evidence about the role of Timur Mehmet; that he was a successful property developer and financial sophisticate who liked to have hands-on dealings with all his companies; that he lied about the circumstances of the £2 million loan from Atlantic Custodian, which was said to be the perfect arrangement for a fraudulent venture (though it was not possible to tell whether the appellant had laundered the proceeds of sale of the country club through Atlantic Custodian or whether the money had been provided by other fraudsters); that he lied about his lack of any connection with Dubai, as shown by his request for the Atlantic Custodian agreement to be faxed to Davey in Dubai; that he lied about the profit made by Globalactive; that he lied about the atmosphere in the trading room; that he and his witnesses lied about the level of financial supervision he gave, about the role they played in the bank payment process, and in saying that they did not pay any attention to the payment instructions from Lightcare and Vendon. 33. The issue for the jury was put very clearly by the judge in his summing up: the appellant’s criticisms of the summing up, which we consider later, are not directed to this point. The jury’s verdict shows that they were sure that the appellant lied in evidence and that he was a knowing participant in the fraud. The nature of the undisclosed material 34. As we have said, the prosecution accepts that it ought to have disclosed but failed to disclose to the defendants a body of material relating to Operation Vitric. The Operation Vitric fraud was a multi-handed MTIC fraud causing a VAT loss of £100 million.. The proceedings relating to it were stayed on 18 May 2005 as an abuse of process on grounds of non-disclosure of documents. The indictment charged a man by the name of Eric Rachar with being a party to the main conspiracy to cheat, alternatively with money laundering. This was based on the fact that seven of his companies received third party payments (i.e. payments to persons other than the suppliers of the goods) throughout the life of the fraud, amounting in total to over £40 million. 35. There were three stages to the Operation Vitric fraud: i) Stage 1 ran from 30 November 2001 to 19 April 2002. A company called Tradex, acting as a first line and then a second line buffer, bought directly or indirectly from nine missing traders and sold to fourteen companies, including sales of £9.4 million to Globalactive in the period 8-19 April 2002 (this was virtually the first trading carried out by Globalactive). Tradex made third party payments to Rachar companies totalling £29 million. ii) Stage 2 ran from 22 April to 17 May 2002. A company called Cytech bought from a single missing trader and sold to seven companies, including sales of £56 million to Globalactive. Cytech made third party payments to Rachar companies totalling £2.7 million. iii) Stage 3 ran from 21 May to 27 June 2002. A company called Rage bought indirectly from two missing traders and sold to nine companies, but none of those sales was to Globalactive. Rage made third party payments to Rachar companies totalling £10.5 million. 36. Much of the money paid by Tradex, Cytech and Rage to Rachar companies was withdrawn by Rachar in cash and dispersed through a web of companies. The case against Rachar was based on repeated money laundering. 37. The Operation Vitric fraud was followed by the Operation Devout frauds, which themselves fell into two phases. Operation Devout I was a fraud executed between 12 April and 30 April 2002, causing a VAT loss of £12.5 million. The machinery of the fraud involved the extraction of part of the VAT by third party payments to eleven money laundering accounts of persons who were not involved in CPU trading. There was no material showing any involvement of Rachar in this fraud. Jogia was alleged to have been involved in it, and was arrested on 22 July 2002 in the Devout I operation because of his laundering of £2 million through the account of Aurum. As a result of Jogia’s plea of guilty to participation in the Devout II fraud and his provision of information to the prosecution, the case against him in relation to Devout I was not proceeded with. 38. Operation Devout II related, as we have indicated, to the fraud charged in the trial of the appellant and his co-defendants. The fraud ended on 22 July 2002 because of the arrest of Jogia on that day in the Devout I operation. There was some evidence of involvement by Rachar in Devout II, including the making of payments to a company, Camross, owned by him, but he was not proceeded against as a defendant in the Devout II trial because, on the information available at the time to prosecuting counsel, he was (wrongly) regarded as a minnow in the context of Devout II. 39. The parties agreed, for the purposes of this appeal, a statement of facts arising from the Operation Vitric documents which should have been, but were not, disclosed to the appellant for the purposes of his trial. We do not need to set out in detail the 131 facts so agreed. In summary: i) The first section of the statement relates to Rachar and his companies and includes the fact that he was a target in the Operation Vitric investigation and was under covert surveillance from May to June 2002, and that he was the director of companies called LaSale Ltd (the registered address of which was his home in London W2), Camross Ltd, Danakil Ltd, Midthorpe Ltd, Tantivy Ltd, Infrasonique Ltd, City & London Ltd, and Managing Agents Ltd. ii) The next section concerns Rachar’s partner or wife, Jane Campbell, who lived with him in London, also had an address in Brisbane, Australia, and was the company secretary of LaSale, Camross, Danakil, Midthorpe, Tantivy and Infrasonique (which changed its name to City & London International Ltd). iii) There follow two sections concerning the relationship between Rachar, David Post, Sun Trust (a bank in Miami, Florida, which held an account in the name of David Post), Atlantic Custodian and IMS. They show in effect that, inter alia , Atlantic Custodian was controlled by Rachar through IMS (which was the corporate director of Atlantic Custodian and was itself owned by Rachar, with Jane Campbell as company secretary), and that the two payments of £1 million or thereabouts made by Atlantic Custodian to the Tolhurst Fisher client account and thereby to Globalactive were made on Rachar’s instructions and funded by payments from Rachar’s other companies: the mechanics involved payments into David Post’s Sun Trust account and the giving of instructions by David Post to Sun Trust for payments to Tolhurst Fisher. There are also references to the involvement of a solicitor by the name of Bernard Halpin in the affairs of Atlantic Custodian. The payments made by Atlantic Custodian to Tolhurst Fisher are touched on further in some later sections. iv) A section concerning the invoices and payments between companies involved in the Operation Vitric fraud shows numerous third party payments, along the same lines as subsequently occurred in the Operation Devout II fraud. A further section details third party payments made offshore from United Kingdom companies controlled by Rachar to a British Virgin Islands company called Managing Agents (Europe) Ltd, of which Rachar was the director. Another section refers to significant amounts of money being transferred by Rachar through the intermediary of a Singapore company called Cedgar, and includes a statement of account referring to very substantial payments made by Cedar to Mr Harbhajan S Chopra and Mrs Surjit K Chopra. It also details third party payments made by Globalactive to various Rachar companies both in the context of the Operation Vitric fraud between 2 May and 21 May 2002 and, as regards a single payment of £41,000 to Camross on 5 July 2002, in the context of the Operation Devout II fraud. v) There are sections relating to Rachar’s trading in CPUs through his companies in the Far East and his apparent intention to start new carousels through Singapore. It is also recorded that Rachar was connected with a company called Diva Pte Ltd in Singapore; and on 3 May 2002 there was trade between Globalactive and Diva, and an invoice was sent by Globalactive for the attention of “Mr Kumar” (who, it was suggested by Mr Purnell, was Chopra). vi) Finally, there are two sections relating primarily to Masheikh in Dubai. They detail various dealings between Rashar and Masheikh. They also refer to a transaction on 9 April 2002 in which Timur Mehmet (i.e. Globalactive) purchased CPUs from Tradex and sold them on to Masheikh; and transactions on 16/17 April 2002 in which Globalactive imported CPUs from PCC Europe and sold them on to Masheikh, but received payment on 29/30 April 2002 not from Masheikh but from Rachar’s company Midthorpe. The effect of non-disclosure on the safety of the appellant’s conviction 40. The appellant’s supplemental grounds and the written submissions of Mr Purnell QC on the issue of non-disclosure dwell at length on the litigation history, detailing the pre-trial requests for disclosure and further matters which, it is said, ought to have acted as triggers causing a revision of the decision not to disclose the Operation Vitric material. In our view no useful purpose is served by going over that history. As was common ground, the issue for the court, applying R v Pendleton [2001] UKHL 66 , [2002] 1 WLR 72 , is whether in the light of the additional material now disclosed the conviction is safe. We should therefore concentrate on the consequences of non-disclosure for the safety of the appellant’s conviction. So far as the reasons for non-disclosure are concerned, it suffices to record that at the hearing before us Sir Derek Spencer QC, who was leading counsel for the prosecution at the trial as on the appeal, accepted full responsibility for the decisions made and acknowledged that he should have co-ordinated more effectively the disclosure process and should have insisted that the Operation Devout disclosure team went deeper than they did into the Operation Vitric material. We should also make clear that there was no suggestion of bad faith in relation to the non-disclosure. 41. For the appellant, Mr Purnell submitted that the additional material fell into three specific categories: (i) evidence establishing that Rachar was the organising mind of both Operation Vitric and Operation Devout II, acting as the international banker and extracting the money through his corporate vehicles and thence to investment vehicles such as Atlantic Custodian to distribute the proceeds and invest in further carousels; (ii) evidence that the fraud in Operation Devout II was put into effect in order to divert fraudulent funds from Operation Vitric to the next cycle of fraudulent activity and in anticipation of a third cycle which was intended to operate through Singapore entities; (iii) evidence that Chopra and Raffi were personal associates of Rachar and were used by Rachar to give effect to his fraudulent schemes (or, as it was also put in the course of oral submissions, those three and the solicitor used by them, Halpin, formed a group constituting the directing minds of the fraudulent schemes). The way in which they planned Globalactive’s role in the fraud, and the funding to be provided through Atlantic Custodian, was highlighted by rough diagrams drawn by Rachar. The evidence demonstrating those various matters would also have provided the missing explanation for the “genesis” of the fraud charged, namely the aborted early transactions which were intended by Rachar, Chopra and Raffi to be undertaken directly between Aurum and Globalactive. It would also have corroborated the appellant’s case that his correspondence with the Redhill Business Centre of Customs & Excise (the intelligence-gathering centre that was specially designated to track and identify missing trader activity) was a genuine enquiry: Redhill refused to clear Aurum as a trader in CPUs and the appellant subsequently directed that Globalactive was not to trade with Aurum. A further point to emerge from the additional material was that Davey, who was mentioned in the context of the Atlantic Custodian documents available at trial, could now be seen to have links with Chopra and to have been involved in the fraud. 42. Mr Purnell submitted that the case against the appellant had proceeded on an artificial basis as if it was a self-contained conspiracy, owing to the tunnel vision of prosecuting counsel in keeping back the Operation Vitric material. If the additional information had been available at trial, it would have changed the landscape of the entire case and would have enabled the appellant’s defence to be advanced in a very different context. Rachar would have had to be joined as a defendant or, if not joined, named in the indictment as a co-conspirator, and the prosecution would have brought out the roles of Rachar and his associates, thereby fundamentally changing the nature of the prosecution case. If the prosecution had not brought out those matters, the defence would have done so. This was not possible on the material available to the defence at the trial, owing to the limitations in the information provided by Jogia and the impossibility of cross-examining on it since it came from a co-defendant who was not giving evidence. The appellant’s defence that he had been the innocent victim of the dishonesty of others could have been advanced much more effectively with the benefit of the additional material. It would have enabled a picture to be built up of a group of people who knew one other and were masterminding the overall fraud but with whom the appellant had no association. The picture of Timur Mehmet conspiring with Raffi, Chopra and Jogia to have in place a conspiracy with a respectable front would have supported the defence case that the appellant was duped by sophisticated and experienced fraudsmen. The question whether a defendant has been duped can only be answered fairly if one can identify the persons by whom he is said to have been duped. The additional material would also have helped to negative the prosecution contention that the appellant was financing and supervising the fraud. All the matters now included within the 131 agreed facts could and would have been deployed by the defence. 43. One specific and important area in relation to which Mr Purnell submitted that the case would have been fundamentally different was the cross-examination of the appellant on the documents relating to Atlantic Custodian. The fact that Atlantic Custodian was controlled by Rachar and was being used by him as a means of channelling monies from a previous fraud into this further fraud would have been brought out in the course of the prosecution case. Prosecuting counsel would not have called for the Atlantic Custodian file during cross-examination of the appellant. Counsel would not have cross-examined on the basis that the appellant was using Atlantic Custodian as a means of investing his own money for the purposes of the fraud or as a means of obtaining payments as the principal beneficiary of the fraud. The entire story would have been available, instead of just half of it; and whilst the appellant’s evidence that he knew nothing about the people behind Atlantic Custodian would have been the same, he would have been able to show who was in fact behind it and how it was being used, through the instrumentality of David Post and Bernard Halpin, to channel monies from Rachar and others into the fraud whilst creating a barrier between them and the appellant. Prosecuting counsel had told the jury to “follow the money”, but the additional material presented an altogether different picture of where the money came from and how it was processed. All this, in relation to a matter that occupied so much time at the outset of the appellant’s cross-examination, was capable of having a material effect on the jury’s assessment of his credibility; and there would have been an evidential basis for inviting the jury to draw an altogether different inference from that put forward by the prosecution as to the appellant’s knowledge of the conspiracy. 44. For the prosecution, Sir Derek submitted that the undisclosed material would not have fundamentally changed the prosecution case at trial or the appellant’s explanations or evidence. If the material had been drawn to his attention, it would not have caused him unilaterally to add anything from Operation Vitric into the trial, since the Operation Vitric trial had been stayed for non-disclosure and he regarded it as tainted and “a can of worms”. He also considered the case in respect of Operation Devout II to be near the limits of manageability. Thus, he would not unilaterally have added Rachar into the indictment as a defendant or as a named conspirator, or have alleged a conspiracy going wider than that in fact put forward at the trial. He accepted, however, that he might have acted differently in response to a defence statement raising these matters. He would also have been prepared, if asked, to make admissions about Rachar’s role and about the involvement of Raffi, Chopra and others as directing minds of Masheikh. He pointed out that the prosecution case throughout was that there were other persons, including the people behind Masheikh, acting as ringmasters of the fraud. In any event he could not have stopped the defence from bringing in the substance of all the material now disclosed. He submitted, however, that the court should not concern itself with how the material might have got in front of the jury or what the modalities of the trial might have been. The question was whether, if it had got in front of the jury, it might reasonably have led the jury to a different verdict. 45. As to that, Sir Derek submitted that the material would not have changed the central issue, namely the appellant’s defence that he had been an innocent dupe and had not been involved in the day to day operations of Globalactive, or caused the jury to view in a different light the evidence of guilt that they heard. On the contrary, it would have been strongly supportive of the prosecution case and would have demolished the appellant’s defence. 46. He submitted that the appellant was proactive in negotiating the terms of the co-operation agreement with Atlantic Custodian and that the additional material would have shown by inference that he was negotiating directly with Rachar, as well as that the £2 million was money from Rachar. It would also have supported the complicity in the fraud of Davey in Dubai, to whom the appellant instructed his solicitors to send a copy of the Co-operation Agreement. It would not have altered the thrust of the cross-examination of the appellant with regard to Atlantic Custodian, which was to demolish the appellant’s evidence that the deal was all down to Timur Mehmet. The correspondence in the Tolhurst Fisher file already gave the lie to that: there is no mention of Timur, as opposed to the appellant, in any of the documents, and it was evidently the appellant who was acting in practice as the client of Tolhurst Fisher. The additional material contains nothing to help the appellant’s position in relation to such cross-examination. It would merely have raised lots of further questions concerning his relationship with Rachar. The only point in the cross-examination at trial that would not have been made if the additional material had been available was the suggestion that the £2 million had been put up by the appellant himself; but that was not of major significance in the context of the cross-examination as a whole and was downplayed in the prosecution closing speech. It cannot have been determinative of the jury’s verdict. 47. The additional material would also have shown Globalactive’s involvement in fraud prior to the period of the conspiracy alleged in the actual trial (25 June to 22 July). In particular, Globalactive had transactions with Tradex and Cytech which formed part of the Operation Vitric conspiracy (and evidence produced by the defence at the trial showed that the appellant personally asked for and obtained verification of Tradex from Redhill on 3 April 2002, and also of Rage on 4 July 2002, though no actual trading took place with Rage). The appellant’s loan of £500,000 could be seen as having funded this part of the fraud, thereby destroying a point made by the defence that the loan had been repaid weeks before the fraudulent transactions comprised in the conspiracy with which the appellant was charged. The involvement of Globalactive over this longer period would also have reduced the possibility that the appellant and his staff were ignorant of the fraud. Further, since all the trading could be seen to have been rigged from first to last, without any period of legitimate trading prior to the period of the conspiracy alleged at trial, the appellant’s story about keeping away from the trading room because of the noise would have been unsustainable. 48. More generally, the additional material would have strengthened the prosecution case that Mustafa and Timur Mehmet and the other fraudsters (now shown to include Rachar and his associates) had no need of an innocent target, as the appellant claimed to have been, since they had the knowledge and the finance to engage in the fraud without an innocent “front” such as the appellant. Moreover Rachar, an experienced and very successful international fraudster, would not have countenanced using Globalactive without the appellant’s complicity, in circumstances where the appellant was the major shareholder and controlled the bank account. Timur Mehmet was an employee, not director, and was unable to make payments. Without the appellant’s complicity the fraud might have been discovered at any time or have been impeded because payments could not be made. 49. A further respect in which the additional material would have strengthened the prosecution case was by showing that the sole purpose of the payments to HIFX was to launder the profits of fraud and that the entries in the ledger pages of the cash books were bogus. The payments went to a Canadian company, and Rachar is Canadian, although there is nothing to show that he controlled the company or what happened to the money. 50. In assessing those competing submissions, we have directed ourselves in accordance with the decision of the House of Lords in R v Pendleton (cited above). Pendleton was a murder case in which the court received fresh evidence, including a statement made by the appellant at the time of the murder and a report and oral evidence by a forensic psychologist relating to the reliability of the appellant’s admissions to the police in 1985. The question was whether, in the light of the fresh evidence, the conviction was unsafe. The decision of the House of Lords lays down how the Court of Appeal should approach such a question. It was common ground between counsel before us that the same principles apply in the present case to our assessment of the safety of the appellant’s conviction in the light of the additional material that should have been disclosed to the defendants and is now available to the court. 51. The leading speech in Pendleton was that of Lord Bingham of Cornhill. At paragraph [15] he quoted from the speech of Viscount Dilhorne in Stafford v Director of Public Prosecutions [1974] AC 878 . In that speech Viscount Dilhorne rejected an argument that in a fresh evidence case the Court of Appeal should only apply the proviso to section 2(1) of the Criminal Appeal Act 1968 in its then existing form if it was of the opinion that, if the jury had been properly directed, they would inevitably have come to the same conclusion; and he observed that, while the Court of Appeal might find it a convenient approach to consider what a jury might have done if they had heard the fresh evidence, the ultimate responsibility for deciding the question rested with the court and the court alone. Lord Bingham continued: “16. In hearing any appeal against conviction the Court of Appeal will ordinarily have a considerable body of material before it: grounds of appeal; transcripts of the judge's summing up to the jury and any relevant passages in the evidence and of any material rulings given before or in the course of the trial; plans, photographs and so on. And although the court does not have the jury's reasons, it does have the jury's verdict. From this, some inferences may always be drawn. If the issue is consent, the jury must, to convict, have been sure that the victim did not consent. If the issue is pure identification, the jury must, to convict, have been sure that the evidence identifying the defendant was accurate and reliable. If a proper judicial direction has been given, it will ordinarily be safe for the Court of Appeal to infer that the factual ingredients essential to prove guilt have been established against the defendant to the satisfaction of the jury. But the Court of Appeal can rarely know, save perhaps from questions asked by the jury after retirement, at what points the jury have felt difficulty. The jury's process of reasoning will not be revealed and, if a number of witnesses give evidence bearing on a single question, the Court of Appeal will never know which of those witnesses the jury accepted and which, if any, they doubted or rejected. 17. My Lords, Mr Mansfield is right to emphasise the central role of the jury in a trial on indictment. This is an important and greatly-prized feature of our constitution. Trial by jury does not mean trial by jury in the first instance and trial by judges of the Court of Appeal in the second. The Court of Appeal is entrusted with a power of review to guard against the possibility of injustice but it is a power to be exercised with caution, mindful that the Court of Appeal is not privy to the jury's deliberations and must not intrude into territory which properly belongs to the jury. ... 19. It is undesirable that exercise of the important judgment entrusted to the Court of Appeal by section 2(1) of the 1968 Act should be constrained by words not to be found in the statute and that adherence to a particular thought process should be required by judicial decision. Thus the House in Stafford v Director of Public Prosecutions [1974] AC 878 were right to reject the submission of counsel that the Court of Appeal had asked the wrong question by taking as the test the effect of the fresh evidence on their minds and not the effect that that evidence would have had on the mind of the jury. It would, as the House pointed out, be anomalous for the court to say that the evidence raised no doubt whatever in their minds but might have raised a reasonable doubt in the minds of the jury. I am not persuaded that the House laid down any incorrect principle in Stafford , so long as the Court of Appeal bears very clearly in mind that the question for its consideration is whether the conviction is safe and not whether the accused is guilty. But the test advocated by counsel in Stafford and by Mr Mansfield in this appeal does have a dual virtue to which the speeches I have quoted perhaps gave somewhat inadequate recognition. First, it reminds the Court of Appeal that it is not and should never become the primary decision-maker. Secondly, it reminds the Court of Appeal that it has an imperfect and incomplete understanding of the full processes which led the jury to convict. The Court of Appeal can make its assessment of the fresh evidence it has heard, but save in a clear case it is at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard. For these reasons it will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe.” 52. In applying that approach to the particular facts of Pendleton’s case, Lord Bingham observed at paragraph [26] that “given the primacy of the jury, it must always be a ground for concern if the jury have never considered a potentially important aspect of the case”; and at paragraph [27] he said that no-one could now be sure what would have happened if the psychologist’s evidence had been available at the time of the trial, but the defence might in at least three respects have been conducted differently (the first being the obviously important consideration that the appellant might have been called to give evidence on his own behalf). At paragraph [28] he concluded that in the light of the uncertainties and the fresh psychological evidence, it was impossible to be sure that the conviction was safe, and that was so whether the members of the House asked whether they themselves had reason to doubt the safety of the conviction or whether they asked whether the jury might have reached a different conclusion. 53. Applying those principles, we have asked ourselves in the present case whether, in the light of the additional material, we have reason to doubt the safety of the conviction; and having reached a provisional view on that matter, we have tested it by asking whether the additional material, if available at trial, might reasonably have affected the decision of the trial jury to convict. We accept Sir Derek’s submission, illustrated by the decision in R v Kenedy (Hamidi) [2008] EWCA Crim 2817 , paragraph [23], that the mere fact that the material satisfied the test for disclosure does not decide the question (not least because any potential assistance that the material gives the defence may be greatly outweighed by the help it gives the prosecution case). The question has to be decided by consideration of the overall impact of the additional material on the case. 54. In reaching our decision we have given very careful consideration to the written as well as oral submissions of both counsel. Long though this judgment is, it provides only a summary of the matters covered by counsel and does not detail every matter relied on even in oral submissions. We are also acutely conscious of the fact that we have seen only a fraction of the evidence in this very long trial and, of course, that we do not know the detailed process of reasoning by which the jury reached their verdict. 55. We accept that with the additional material the landscape of the case, as Mr Purnell put it, would have been significantly different and the appellant’s defence would have been advanced in a different context. The conspiracy alleged would have fallen to be considered within a much wider context of fraudulent activity than appeared at the trial itself. It may be, as Mr Purnell submitted, that this would have enabled aspects of the defence to be advanced more effectively and would have prevented the prosecution from making certain points against the appellant. It would not, however, have altered the essential nature of the prosecution case against him, or his defence, or the evidence he gave in support of that defence. The central issue would still have been his defence that he was an innocent dupe who was not involved in the day to day operations of Globalactive and was unaware that Globalactive was participating in fraudulent activity. That defence was rejected by the jury, who must have found that the appellant had lied about his lack of knowledge of the fraud. In our judgment, the overall effect of the additional material would have been seriously damaging to the defence rather than helpful to it and would not have warranted a different conclusion as to the appellant’s credibility or his knowledge of the fraud. 56. We do not accept that the involvement of sophisticated fraudsmen such as Rachar and his associates in the organisation and financing of the fraud made it more likely that the appellant was duped. As Sir Derek submitted, it would have strengthened the prosecution case that those responsible for the fraud had no need to involve the appellant as an innocent dupe, since they had the knowledge and finance to engage in the fraud without an innocent front of that kind; and that they would not have countenanced using Globalactive without his complicity, in circumstances where he was the major shareholder and controlled the bank account. 57. The cross-examination of the appellant in relation to Atlantic Custodian would, to a certain extent, have had a different shape to it. It would already have come out that Rachar was behind Atlantic Custodian and was using the company as a vehicle for financing the fraud. Thus it could not have been suggested that the appellant was channelling his own money through Atlantic Custodian to finance Globalactive’s participation in the fraud (but that suggestion, whilst made in cross-examination, was downplayed in the prosecution closing speech, where the alternative that the money had been provided by other fraudsters was advanced). Moreover, even if there had still been late disclosure of the Tolhurst Fisher file, it is possible that no point would have been made of it and it is unlikely that it could of itself have given rise to any adverse inference against the appellant. But the appellant’s evidence concerning his knowledge of, and dealings, with Atlantic Custodian would have been the same, as would the main thrust of the cross-examination in relation to those matters. The prosecution’s point that the documents evidenced the appellant’s detailed involvement in the negotiation of the Co-operation Agreement, and no involvement by Timur Mehmet, would have lost none of its force. That the appellant’s negotiations were with the major fraudster Rachar would have been an additional point, and a very damaging one. Although there was no direct evidence of association by the appellant with Rachar, or that the appellant knew Rachar’s identity, his instruction to fax the draft of the Agreement to Davey in Dubai would have had an even greater significance because of the links shown to exist between Davey and the fraudsters in Dubai; and, in any event, the cross-examination directed to the implausibility of the appellant having no real idea of the identity of the people with whom he was negotiating would have had an even greater resonance to it. 58. The evidence that Globalactive was involved in the latter stages of the Operation Vitric fraud, so that it could not be said that the company had been engaged in legitimate business prior to the period relied on by the prosecution at the appellant’s trial in respect of the Operation Devout II fraud, would also have been damaging to the appellant’s defence, for the reasons advanced by Sir Derek. 59. Having considered those and the other matters raised by counsel, and having looked at them in relation to the case as a whole, we have formed the view that the additional material provides no reason to doubt the safety of the appellant’s conviction. 60. In order to test that view, we have gone on to ask ourselves whether the additional material might reasonably have affected the jury’s decision to convict. In that connection we have considered the various matters that might have been particularly influential in the jury’s assessment of the appellant’s credibility, including Mr Purnell’s submission that the beginning of the appellant’s cross-examination, concerning Atlantic Custodian, must have been particularly significant yet would have proceeded in a materially different way if the additional material had been available at trial. We have also borne in mind that if, as Sir Derek asserted and we are inclined to accept, the additional material would not have caused the prosecution to add Rachar as a defendant in the trial, the very fact that Rachar was not being pursued for his role in the fraud could have been deployed forcefully as a forensic point in the appellant’s favour. In general, however, the matters that we have taken into account in reaching our own provisional view on safety would have been of equal importance for the jury’s decision. Taking everything together, we cannot see a sustainable basis for concluding that the additional material might reasonably have affected the jury’s decision. 61. Our conclusion, therefore, is that the non-disclosure of the additional material, taken by itself, did not affect the safety of the appellant’s conviction. Before reaching a final conclusion on safety, however, we need to consider the other grounds of appeal. The summing up: alleged fragmentation of the defence case 62. The judge’s summing up extended over some two and half days. He adopted an essentially chronological approach, interleaving the prosecution and defence cases into a narrative history or dealing with them in the context of various topic headings. It is submitted that this had the effect of fragmenting the appellant’s defence and that, whilst the essence of his case would have been clear to the jury, the evidence in support of it was not pulled together or summarised in any coherent way so as to enable the jury to understand it as of a piece. The force of the defence was thereby diluted and diminished, and the appellant was deprived of a fair trial. 63. In developing this submission Mr Purnell pointed to the various different contexts in which the judge dealt with items of evidence supporting the appellant’s case; but we think it unnecessary to recite the detail. He also contrasted the position of the appellant with that of the defendants who did not give evidence (including the absent Timur Mehmet), in relation to each of whom the judge gave the jury, by way of reminder, a summary of the submissions that had been made by their counsel. He submitted that it was incumbent on the judge to include a similar section in relation to the appellant; the more so since the case for Timur Mehmet, which the judge did summarise, was inimical to the appellant. 64. In our judgment it would have been better if the judge, in addition to dealing with matters in the way he did, had given the jury a short summary of the defence of each of the defendants, especially as this was done for the defendants who did not give evidence. We are satisfied, however, that his omission to follow that course did not render the summing up unfair or the conviction unsafe. That the jury were aware of the essential nature of the appellant’s case is not in dispute. It seems to us that they must also have been well aware of the main points of evidence relied upon in support of that case. It was accepted by Mr Purnell that no vital point was omitted from the judge’s summing up, albeit they were not pulled together as he contended should have been done. The jury had also heard a closing speech from Mr Purnell which, we are told, took about 5 hours; and whilst we accept that the judge’s summing up, especially after a long trial, has a different focus and one cannot rely on counsel’s closing speech alone, the combined effect of the closing speech and the summing up must have been to leave the jury in no doubt as to the appellant’s defence. The summing up: the judge’s new points 65. A further complaint about the summing up is that in the course of it the judge introduced a number of points which, it is said, had not been canvassed in evidence or submissions and some of which were simply wrong. The specific matters raised are as follows. 66. First, having referred to Jogia’s introductory letter of 7 May 2002 to Globalactive and to the appellant’s prompt reply to it, the judge said “I do not have any note of Mr Pomfrett giving an explanation of why he should have chosen to answer that letter and not Mr Mehmet who was after all running the trading”. The fact was that the appellant was not asked for an explanation during his evidence. The submission is that, if the judge wished to raise the point, he should have asked a question in the course of evidence rather than making a comment of this nature in his summing up. Against that, Sir Derek Spencer told us that the point had already been made in the prosecution closing speech. 67. Second, the judge referred to a visit by the Customs & Excise officer, Mr Davies, to the premises of Globalactive on 9 April 2003 while the appellant was in Spain. Mr Davies spoke mainly to one of Globalactive’s employees, Ms Killigrew, but he also spoke to the appellant by phone. The judge attributed to the appellant information recorded in Mr Davies’ notebook about the places and companies with which Globalactive was trading (including that there had been trading with Dubai). There was in fact an issue, explored in cross-examination of Mr Davies, as to whether that information had come from Ms Killigrew rather than the appellant. This matter was raised promptly by Mr Purnell with the judge, who thereupon reminded the jury of the relevant cross-examination. In our view that dealt with the matter satisfactorily. 68. Third, in relation to a particular transaction examined by Mr Davies, concerning export sales by Globalactive to Masheikh in April 2002, the judge commented “you will not find anywhere in those Global accounts any payments at all coming in from [Masheikh] for the goods that apparently they were buying from Global”, and that it was not known why that was so. In fact Globalactive did receive a payment, but from Midthorpe rather than from Masheikh. Mr Purnell submitted that the judge’s comment was adverse to the appellant because the gravamen of the prosecution case was that since he was in charge of money he must have known about the various payments. We accept that submission, though we do not regard the comment as one of great significance in the context of the case as a whole. We think that Sir Derek went too far in submitting that this was not a point against the appellant at all. 69. Fourth, the judge carried out a detailed mathematical exercise, which had not been done in evidence or submissions, to show that there were considerable variations in the number of boxes of CPUs sold in the various transactions: he told the jury that they might like to ask themselves whether this had been done deliberately by the organisers so that the sales would not stand out to any assurance officer looking at the documents. Although Mr Purnell described this point as being generally anti-defendant, it can have had no material impact on the appellant since there was no suggestion that he had anything to do with the number of boxes comprised within individual transactions. 70. Fifth, in going through a detailed schedule of the transactions, the judge commented at one point that the supplier appeared to have been underpaid, and that “no documents have been recovered as to why anybody [i.e. nobody] is complaining about not getting quite large sums of money or sometimes being paid large sums of money”. Mr Purnell submitted that the judge’s comment might be taken to imply that the appellant must have been aware that this was bogus trading. Two considerations reduce the force of that submission. First, Mr Purnell himself, as he told us, spent a long time going through the schedule with the jury to show that every CPU supplied was paid for by somebody, even though the payments were not always direct payments between supplier and purchaser. Secondly, since the appellant’s evidence was that he was not involved in the day to day trading, the part of the judge’s summing up devoted to going through the schedules had little, if any, direct impact on his case. 71. The sixth and final matter raised under this ground concerns the judge’s comment that Globalactive could have continued to trade in August 2002 and did not have to repay the money to Atlantic Custodian: although the Barclays bank account had been closed on 22 July, an account with Bank of Scotland was opened on 9 August. Mr Purnell submitted that this overlooked the evidence that the company needed an account with an online facility for the purposes of trading, and the Bank of Scotland account lacked that facility. Moreover the evidence was that Mustafa and Timur Mehmet had gone to Cyprus at the end of July. The monies were repaid to Atlantic Custodian because the Barclays account was being closed and all outstanding liabilities were settled. Sir Derek’s response to all of this was that what happened in August was well after the event and not a point of substance. 72. In addition to the comments we have made when summarising the specific matters raised under this ground, we have a number of more general observations. First, the judge’s comments on the evidence have to be considered in the context of the direction he gave the jury at the outset of his summing up, in clear and conventional terms, that the evidence and facts were entirely for them. Secondly, in so far as it is said that the judge erred in his summary of the evidence, it was incumbent on counsel to draw the errors to the judge’s attention, so that they could be put right at the appropriate time: that was how the second matter, concerning the evidence of Mr Davies, was dealt with, and it removed any reasonable concern. Thirdly, if the judge was minded to make a new point in his summing up, it would have been prudent for him to canvass it in advance with counsel in the interests of accuracy and fairness, especially in a trial of this length and relative complexity. Thus it might have been better in the circumstances for the judge not to have made, without notice to counsel, some of the points on which this ground of appeal is based. 73. We are, however, satisfied that the matters identified by Mr Purnell, whether taken individually or in the aggregate, did not render the summing up as a whole unfair and did not have any material impact on the fairness of the appellant’s trial. They do not provide a ground for doubting the safety of the conviction. Receipt of instructions by counsel for Timur Mehmet in his client’s absence 74. Timur Mehmet had attended pre-trial hearings when required to do so and had entered a plea of not guilty to the indictment but, as we have said, he absented himself from the trial itself. His counsel informed the judge that he was at an unknown location, was in continuing communication with his solicitors by means of email and had been advised that he should attend trial and was in breach of his bail conditions. The judge ruled, on the prosecution’s application, that he should be tried in his absence and that he should be represented by leading and junior counsel and solicitors. In so ruling the judge observed that if any matter arose on which they did not have instructions there was the possibility of email communication, so that any unfairness that might otherwise arise through, for example, new evidence coming to light or new matters becoming part of the case could be resolved by the legal team obtaining instructions. Immediately after the ruling Mr Purnell put down a marker concerning that issue but he considered it unnecessary to pursue it at the time. 75. As the trial proceeded, there was a developing conflict between the appellant’s case and that of Timur Mehmet. Then there came a time, in the course of the appellant’s evidence in chief, when there had to be an adjournment to enable counsel to examine a large number of additional documents just produced by a Customs & Excise officer, Mr Bright. An indication was given by Timur’s counsel that he would need to take instructions on the new material because he might need to deploy it against the appellant. This prompted an application by Mr Purnell for a ruling to the effect that Timur’s counsel should be restricted to the instructions received prior to Timur’s failure to surrender and that no fresh instructions should be taken in the course of the trial. The judge ruled against that application. One of the grounds of appeal is that the judge’s ruling was wrong and that the opportunity for Timur’s counsel to receive and deploy instructions from, and give advice to, an absent defendant led to the appellant having an unfair trial. It is said that the damaging effect on the appellant’s case was all the greater because the judge had restricted the making of any adverse comment in respect of Timur’s absence and had ruled that no inference could be drawn against him under section 35 of the Criminal Justice and Public Order Act 1994 from his failure to give evidence. 76. The principles governing the trial of a person in his absence are set out in the decision of the House of Lords in R v Jones (Anthony William) [2002] UKHL 5 , [2003] 1 AC 1 . One of the matters covered is the representation of the absent defendant. As to that, Lord Bingham of Cornhill stated at paragraph [15]: “Secondly, it is generally desirable that a defendant be represented even if he has voluntarily absconded. The task of representing at trial a defendant who is not present, and who may well be out of touch, is of course rendered much more difficult and unsatisfactory, and there is no possible ground for criticising the legal representatives who withdrew from representing the appellant at trial in this case. But the presence throughout the trial of legal representatives, in receipt of instructions from the client at some earlier stage, and with no object other than to protect the interests of that client, does provide a valuable safeguard against the possibility of error and oversight. For this reason trial judges routinely ask counsel to continue to represent a defendant who has absconded during the trial, and counsel in practice accede to such an invitation and defend their absent client as best they properly can in the circumstances. The current legal aid regulations provide for that contingency …. It is in my opinion a practice to be encouraged when the defendant absconds before the trial begins.” 77. The question whether the legal representatives of an absent defendant are entitled to receive and act on fresh instructions during the course of the trial was not the subject of argument in Jones , and nothing said by their Lordships provides a direct answer to it. Lord Bingham, in stating at paragraph [15] that an absent defendant “may well be out of touch” with his legal representatives, evidently also contemplated that an absent defendant might be in touch with his legal representatives, but he did not go on to consider the implications as regards the giving of further instructions. Similarly, he referred at paragraph [12] to a multi-defendant trial, noting that a defendant who absconded might gain a wholly unjustified advantage unless he were tried with the others in his absence, but he did not go on to consider the implications for the co-defendants of a defendant being tried with them in his absence, or how the trial judge’s discretion was to be exercised so as to ensure fairness to the co-defendants in those circumstances. It is, however, fair to say that there is nothing in Jones to suggest any distinction of principle between instructions given by the absent defendant before he absconded and those given by him after he absconded. 78. Nor is any distinction drawn in the Bar Council’s guidance on the subject. Paragraph 15.3.2 of section 3 (“Written Standards for the Conduct of Porfessional Work”) of the Bar Code of Conduct states: “If for any reason the barrister’s professional client does not withdraw from the case, the barrister retains an absolute discretion whether to continue to act. If he does continue, he should conduct the case as if his client were still present in Court but had decided not to give evidence and on the basis of any instruction he has received. He will be free to use any material contained in his brief and may cross-examine witnesses called for the prosecution and call witnesses for the defence.” 79. Mr Purnell submitted that in any case where a defendant absconds and is tried in his absence, his counsel is limited to acting on instructions received before the date when the defendant absconded. He said that it would be contrary to the public interest to confer an advantage on an absconding defendant by enabling his counsel to cross-examine witnesses, including any co-defendants who give evidence, on the basis of fresh instructions received in the course of the trial. 80. We disagree. In our judgment, no principled distinction can be drawn between instructions received before and instructions received after the date of absconding. If counsel were not permitted to take into account fresh instructions received from the absent defendant, it would increase unnecessarily the possibility of error or oversight against which, as Lord Bingham said in Jones at paragraph [15], representation by counsel provides a valuable safeguard. It could lead to counsel having to advance a case wholly at odds with the defendant’s true case. An example suggested by the court in the course of argument was that of a pub fight in which the defendant lied in interview as to presence (because he did not want his girlfriend to know he had been there), was proved by DNA evidence to have been present, but in an email to his legal representatives after absconding admitted that he had been present but said he had been acting in defence of himself and a co-defendant: it would be highly unsatisfactory for counsel in those circumstances to be precluded from advancing the defendant’s true defence and to be required instead to advance a hopeless defence of absence from the scene. It could also prevent counsel from being able to deal effectively with new evidence or new issues, even where the absent defendant had valid points to make in relation to them: the possibility of taking instructions on any new matter that might arise in the course of the trial was one of the considerations the judge had properly in mind in ruling in the first place that Timur Mehmet could be tried in his absence. If it is generally desirable that a defendant be represented even if he has voluntarily absconded, it is equally desirable in our judgment not to impair the effectiveness of that representation by laying down an artificial restriction on the instructions upon which counsel can act. The public interest does not require a cut-off point at the date of absconding. 81. It will, of course, always be important for the judge to keep an eye on the overall fairness of the proceedings and to exercise his discretion appropriately to prevent any unfair manipulation of the process by an absent defendant to the disadvantage of co-defendants. But Mr Purnell’s submission on the issue of fresh instructions was put forward as one of principle, applicable in every case irrespective of the circumstances, not on the basis that there was a particular point in the present case where the judge ought, in the exercise of his discretion, to have intervened to stop or restrict cross-examination of the appellant by counsel for the absent Timur Mehmet. In any event, Mr Purnell’s arguments appeared to us to make too much of the damage that could be done to a co-defendant, even in a cut-throat situation, by cross-examination on behalf of an absent defendant. He conceded that in his speech to the jury he was “entirely dismissive” of what was said against the appellant on behalf of Timur Mehmet. The fact that Timur was not present at the trial to be cross-examined himself was no doubt one of the points deployed in support of that dismissive approach. It is unnecessary for us to consider the precise extent to which comment could properly be made on Timur’s absence. Although Mr Purnell submitted to us that the problem of cross-examination on behalf of Timur was exacerbated by the limitations the judge imposed on counsel’s freedom to make such comment, he accepted that he was not making any separate challenge to the judge’s rulings as to comment on absence or as to the drawing of an inference under section 35 of the 1994 Act . Since we do not accept that there was any error in the judge’s ruling about cross-examination on behalf of Timur on the basis of fresh instructions, any question of exacerbation of an error falls away. Visits by junior prosecuting counsel to see the judge alone 82. This issue relates to visits by junior counsel for the prosecution to the judge’s room at the judge’s request, without attendance by other counsel in the case and, as is contended, without any assurance that what took place in the room was recorded or properly documented. When, early in the trial, Mr Purnell raised with the judge his concern about such a visit, the judge made clear in open court that it concerned an administrative matter that the judge needed to deal with in respect of other, unrelated cases. The judge’s remarks also suggest that what took place in his room was recorded. Sir Derek told us, on the basis of information provided by junior counsel and the instructing solicitor, that there had previously been ex parte PII hearings before the judge in an unrelated case. He submitted that, whilst it was not known why the judge wanted to see junior counsel on the occasion to which Mr Purnell took objection, the judge would have been entitled to see counsel in his room in connection with ex parte PII matters. He also informed us that on two subsequent occasions the judge invited junior counsel to his room to find a file, but after Mr Purnell’s intervention junior counsel asked Sir Derek to forbid him from making further such visits. Mr Purnell took issue with junior counsel’s recollection, assuring us that visits to the judge’s room took place regularly. 83. To the extent that there is a factual dispute, it is one that we do not need to resolve. Mr Purnell accepted that these visits were not concerned with the case against the appellant or his co-defendants and did not put them forward as rendering the appellant’s conviction unsafe, though he described them as an irregularity that added to the unfairness of the appellant’s trial. In our view, if they gave rise to any problem, it was in relation to the other trials with which they were concerned. It was nonetheless right of Mr Purnell to draw the matter to the court’s attention. Whilst there may well be a good explanation for visits of this kind for the purpose of an ex parte PII application, we would stress the need for full and careful compliance with the requirements of Part 25 of the Criminal Procedure Rules in relation to the making of such applications, the importance of ensuring that the proceedings are recorded, and the need for discretion in how the matter is handled. If the visit to the judge’s room relates to something other than PII, for example if the judge is simply seeking the assistance of counsel in finding a document, it should be dealt with on notice to, and with agreement of, all counsel in the relevant case, so as to avoid any impression of unfairness. 84. This ground of appeal is, however, of no assistance to the appellant in the present case. Appeal against conviction: conclusion 85. For convenience, we have dealt with each of the grounds of appeal in turn and have explained in relation to each why we do not consider it to provide a basis for doubting the safety of the conviction. Having regard to the way in which Mr Purnell put his case, we have also considered whether they have any different effect when looked at together. We are satisfied, however, that they provide no greater assistance to the appellant when taken in the aggregate than when examined individually. 86. It follows that in our judgment the appellant’s conviction is safe and his appeal against conviction must be dismissed. Appeal against sentence 87. We turn to consider the renewed application for leave to appeal against sentence. The appellant was 55 years of age at the time of conviction (he is now 56). He had no relevant previous convictions. He was a self-made man who had effectively retired from his other business interests by the time he became involved in Globalactive. He had arranged the sale of his country club and golf club businesses and was spending a substantial amount of time in Spain. 88. In sentencing him, the judge said that he was “no doubt a very clever and well organised person and as the jury have found a thoroughly dishonest person”. The judge was satisfied that he controlled the detailed finances of Globalactive with a very careful eye. As to the Crown’s case that the appellant was the financier of the fraud, the judge observed that “[i]t is undoubtedly the fact that you primed the pump of Global’s trading but that is not necessarily the same as saying you were the financier of the fraud”. He summarised the appellant’s involvement in Globalactive, the appellant’s investment of £500,000 and the receipt of payments totalling £2 million from Atlantic Custodian, which money “was available in the Global bank account … for what use you decided upon”. He had no doubt that the fraudulent exercise was intended to start on 7 May but that the concerns of Customs & Excise about Aurum caused the appellant to abort the process of Aurum purporting to sell to Globalactive and led to the delay in setting up Lightcare as second line buffer and Globalactive moving down to third line buffer. The judge continued: “When the scheme got going on 25 June the very first transaction ended with Global selling to Perles France, which enabled Global to later make repayment claim for the VAT element. However Global had to outlay £982,713 payments to third party accounts. They sold to Perles for £864,000 but … there is no receipt of this sum. In all the other transactions Gobal sell on to a UK company and I accept … that thereafter money flows into the Global account from the next traders in the chain. The evidence shows Global in effect financed this fraud and became its paymasters, paying the largest portion of the monies out of the UK. This puts you in a different category to the other defendants, you were in control of the finances. I reject your evidence that you were only concerned in a general overseeing way. There is in my judgment little difference between the instigator and organiser of these frauds and the financier of them. However I cannot on the evidence find that you were the actual top dog in this conspiracy who remains unknown.” 89. On that basis, and having taken into account the appellant’s personal mitigation, the judge imposed a sentence of 10 years’ imprisonment. 90. The authorities to which the judge referred in setting that and the other sentences included Attorney-General’s References Nos. 88 etc of 2006 (Brian John Meehan and Others) [2007] 2 Cr App R (S) 28 (at page 155). In that case the offenders had been convicted of cheating the public Revenue in a missing trader fraud. The court held that those who organise such fraudulent activity can and should expect sentences well into double figures after trial (paragraph [18]). The role of the first three offenders, however, was limited to running the buffer companies which handed over the VAT to the organiser of the fraud; they were not involved in any deeper way in the planning, organising or running of the scheme. For them, a substantial period of imprisonment was clearly required because of the money involved (the total VAT lost as a result of the involvement of the first and second offenders was just under £24 million, and in the case of the third offender it was £28 million), but there should be a substantial discount from the sort of sentence to be expected by an organiser. The court held that “the right bracket for this type of offending, with the amount of money involved in these cases, after a plea of guilty, would have been six to eight years” (paragraph [19]). 91. Mr Purnell submitted that even on the evidence before the judge it was unfair and inappropriate to focus on the appellant as the judge did, treating him as playing the crucial financier’s role within the fraud. In any event the additional material shows a very different situation, in which Globalactive played a satellite role within a much larger fraud, and that role was itself organised and substantially funded by Rachar and his associates. The appellant’s role was limited to his involvement in running Globalactive as a buffer company. The appellant’s £500,000 investment in Globalactive did not make him the financier of the fraud and he should not be sentenced as a financier. He was a facilitator rather than a financier or organiser. 92. Mr Purnell also advanced a submission to the effect that, since the appellant could have been charged with the statutory offence of conspiracy covering the same criminality and carrying a 7 year maximum sentence, it was wrong for the prosecuting authority to bring a common law charge of conspiracy to cheat or for the judge to impose, in respect of such an offence, a sentence in excess of the maximum for the statutory offence. He accepted that the decision of the Court of Appeal in R v Ward [2006] 1 Cr App R (S) 66 (at page 356) was against him, but he signalled in his written submissions that he would seek leave to argue that that case and the authorities it followed were wrongly decided; and he submitted orally that the charging of conspiracy to cheat so as to give a higher sentencing range should be limited to the most exceptional cases and that it was not appropriate for this appellant, a fortiori in the context of the landscape disclosed by the additional material. 93. We are satisfied that the approach in R v Ward is correct and should be followed, and we reject the contention that the appropriate level of sentencing in this case was constrained by the maximum of 7 years that would have applied to the statutory offence of conspiracy. In our view the level of sentencing indicated in Attorney-General’s References Nos. 88 etc of 2006 (cited above) for an offence of cheating the public Revenue in a missing trader case provides a useful guide for the offence of conspiracy to cheat of which the appellant was convicted. 94. On the information available to the sentencing judge, the appellant’s sentence of 10 years was within the range properly open to him. In particular, he was entitled on the evidence he had heard to treat the appellant as the financier of the fraud, albeit, as he said, “not the actual top dog”. But we accept Mr Purnell’s submission that the additional information now available shows the appellant to have had a lesser role in the overall scheme of things than appeared on the evidence at trial. He was neither an organiser of the conspiracy nor a principal financier of it: that role belonged to Rachar and his associates. The appellant’s role was essentially that of running a buffer company, though it was a particularly important buffer company and was used as the vehicle for the introduction, through Atlantic Custodian, of finance for the fraud. 95. In all the circumstances we consider that the appropriate sentence for the appellant would be one of 8 years’ imprisonment, the same as that imposed on Timur Mehmet. We will therefore grant leave to appeal and allow the appeal to the extent of quashing the sentence of 10 years’ imprisonment and substituting a sentence of 8 years (with the 4 days in custody on remand still to count towards that sentence).

2009_10_08-2105.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/1939/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/1939

657f73fad23f45053a4829474242505c779a1e46366c5d8494c832e33388b9ed

[2017] EWCA Crim 870

EWCA_Crim_870

crown_court

Neutral Citation Number: [2017] EWCA Crim 870 Case No: 2016/05174/C4 & 2016/05209/C4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Friday 16 th June 2017 B e f o r e: LORD JUSTICE HAMBLEN MRS JUSTICE McGOWAN DBE and HIS HONOUR JUDGE WAIT ( Sitting as a Judge of the Court of Appeal Criminal Division ) - - - - - - - - - - - - - - - - R E G I N A - v - DS - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave Internati

Neutral Citation Number: [2017] EWCA Crim 870 Case No: 2016/05174/C4 & 2016/05209/C4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Friday 16 th June 2017 B e f o r e: LORD JUSTICE HAMBLEN MRS JUSTICE McGOWAN DBE and HIS HONOUR JUDGE WAIT ( Sitting as a Judge of the Court of Appeal Criminal Division ) - - - - - - - - - - - - - - - - R E G I N A - v - DS - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd trading as DTI 165 Fleet Street, London EC4A 2DY Telephone No: 020 7404 1400; Fax No 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - Mr P Raudnitz appeared on behalf of the Applicant Mr P Arnold appeared on behalf of the Crown - - - - - - - - - - - - - - - - J U D G M E N T Approved LORD JUSTICE HAMBLEN: Introduction 1. On 17 th October 2016, in the Crown Court at Wolverhampton, before His Honour Judge Webb and a jury, the applicant was convicted on counts 2 to 9 (by a majority verdict of 11:1). On 21 st October 2016, he was sentenced as follows: on each of counts 2 to 5 (Rape), to thirteen years' imprisonment; on counts 6 and 7 (Causing a person to engage in sexual activity without consent), to ten years' imprisonment; on count 8 (a further count of Causing a person to engage in sexual activity without consent), to four years' imprisonment; and on count 9 (Assault occasioning actual bodily harm) to two years' imprisonment. All of the sentences were ordered to run concurrently, making a total sentence of thirteen years' imprisonment. He was acquitted in respect of count 1 (a further count of rape). 2. The applicant's applications for leave to appeal against both conviction and sentence and for leave to call fresh evidence have been referred to the Full Court by the Registrar. 3. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this case. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. The judgment will be anonymised accordingly. The Outline Facts 4. The complainant, "K", lived in a flat in Walsall with her young son, "H", then aged 6 years. In July 2014, she met and formed a relationship with the applicant who frequently stayed overnight at her address. Extensive text and Facebook messages between them suggested that the relationship was intense and tempestuous. The complainant described the applicant as "controlling". Count 1 (of which the applicant was acquitted ) 5. In relation to this count, K alleged that on an unknown date in October 2014, after an evening out, the applicant raped her. She informed her mother, sister and a friend, and ended her relationship with the applicant. Thereafter, the applicant sent a series of text messages in which he appeared to apologise to the complainant and asked her to have him back. She agreed and resumed the relationship. Counts 2 to 9 (of which the applicant was convicted ) 6. In relation to these counts, K stated that on 31 st January 2015, after an evening out in Birmingham, the applicant committed a series of further sexual assaults upon her at her flat as follows. He penetrated her vagina with his penis (count 2). He twice penetrated her anus with his penis (counts 3 and 4). He penetrated her mouth with his penis (count 5). He caused her to penetrate his anus with her finger (count 6); to lick his anus (count 7); and to touch her vagina with her fingers (count 8). In addition, he physically assaulted her, causing her actual bodily harm (count 9). 7. In the early hours of the following day, whilst the applicant was sleeping, the complainant left her flat wearing her pyjamas. She reported the matter to her mother and to the police the following day. She never returned to live at that address. 8. The prosecution case was that the complainant's account was true and accurate. The applicant had raped her on a date in October 2014 and thereafter on 31 st January 2015 had embarked on a series of sexual acts to which the complainant did not consent and to which he knew she did not consent. In respect of count 9, he had hit her during the sexual assaults and had caused injuries. 9. The defence case was that the applicant did not rape the complainant in October, but that he had slapped her on an occasion when she had hit him twice and was accusing him of seeing another woman. In respect of counts 2 to 9, the allegations of forced sexual activity and assault on 31 st January 2015 were denied. It was the complainant who instigated sexual activity on this occasion, all of which was consensual. It was denied that there was any physical assault at all. The Prosecution Evidence 10. The complainant, K (aged 27 at the time of trial), lived with her young son, H, in a flat in Walsall. She met the applicant in July 2014 and their relationship quickly became sexual. They both worked and the applicant frequently stayed at the complainant's address overnight. She described him as "controlling" and her impression was that there was something psychologically wrong with him. 11. In relation to count 1 (on which the applicant was acquitted) K's evidence was that on the night in question in October 2014 she had gone to bed because she was tired and wanted to sleep. The applicant had probably had a drink and started to make sexual advances. She tried to shrug him off and told him "No", but he continued and placed his penis into her vagina. She described him holding her down for about half an hour, during which she was crying and telling him to stop. Eventually, she got her hand free and tried to hit him, but he hit her back several times, hard and continued to have sex. Afterwards, he ejaculated over her face. She had not reported this incident to the police, but had told her mother, her sister and her friend about it. 12. In cross-examination she said that the incident seemed to last an eternity. She had not sought medical attention and did not shout or cry loudly because her son was sleeping in the room next door. She had not accused the applicant of a sexual relationship with another woman, nor had she pointed her finger in his face or shouted at him. She later phoned her mother, her sister and her friend to tell them what had happened. 13. The complainant agreed that she resumed her relationship with the applicant within days of the incident alleged in count 1 because, she said, he seemed so charming. He had sent her a large number of messages in which he appeared to apologise for his behaviour, seek forgiveness, promise never to make her feel "scared" again, and to declare his love for her. 14. The relationship continued and, despite a series of further short break-ups, the applicant proposed marriage and a move to Norfolk. The complainant explained that she loved the applicant, but did not want to get married until he sorted out his problems and issues. They split up again in January 2015, and between 16 th and 20 th January the applicant went to Amsterdam without her, to which she did not object and was not jealous. 15. K explained that, on a number of occasions, the applicant had threatened to commit suicide as a way of controlling her. On 25 th January 2015, they had words and split up. She was sufficiently concerned about the suicide threats being made by the applicant that she called the police. 16. After an exchange of more friendly messages between 28 th and 30 th January 2015, the complainant and the applicant again declared that they loved each other and met on 31 st January 2015 for an evening out in Birmingham. The complainant said that they both consumed alcohol – the applicant much more than her, but that he could drink a lot. On the way back to her flat by taxi at the end of the evening, the complainant told the applicant that she was tired and wanted to go straight to sleep. 17. The complainant explained that when they arrived back at her flat the applicant started to make sexual advances, but she told him to "get off" and tried to escape. Everything that followed was without her consent. In the bedroom he penetrated her vagina and her anus with his penis (counts 2 and 3), and in the living room he again penetrated her anus with his penis (count 4), and also penetrated her mouth with his penis (count 5). 18. In addition, the applicant also made her lick his anus, put a finger inside his anus, and touch her vagina with her fingers. 19. During the sexual assaults, K sustained several injuries as follows: marks on her wrist, where he gripped her tightly; an injury above her right eyebrow, where he punched her; a mark at the top of her shoulder (which she could not explain); and a cut to the inside of her mouth, where he pushed his fingers down her throat. 20. Throughout these events, she asked the applicant to stop and had screamed out, but he had covered her mouth with his hand. She tensed up and tried to move away, but feared for her safety. Matters came to an end when the applicant fell asleep. The complainant left the flat in her pyjamas and travelled by taxi to her parents' home in the early hours of 1 st February. 21. As she left her address, she saw a neighbour returning from a nightshift. The neighbour described her as looking upset and asked where she was going, to which she replied, "I am fine. I'm going to my mum's" and then ran off. 22. K sent the applicant a text message at 0344 hours on 1 st February, stating: "I've never been so hurt by anyone. I just don't understand why. I never want to see you again." 23. The next morning, K told her mother what had happened and the allegations were formally reported to the police. 24. In cross-examination it was put to her that there was no penetration of her mouth, vagina or anus in the living room, and that everything had happened in the bedroom, with her full consent, and in some instances at her instigation. She insisted that she had been raped by the applicant as alleged, and reiterated that she had not consented to any of the sexual activity that evening. The applicant had simply put her in the various positions and performed the various acts. Her recollection was vague as to what happened between arriving home on 31 st January and the applicant first getting on top of her, but she was not drunk and had not taken any medication. She told him "No", but he just carried on. She was unsure how long the ordeal lasted, but it seemed like hours. 25. The complainant's mother, "KS", described how she saw K the following morning. She looked upset and she could tell that something was wrong. She said that she asked her what had happened and K told her "Dan happened", and she showed her teeth marks on her lip. She asked whether he had hurt and raped her. K replied, "Yes, from front and back". She then rang the police. 26. The complainant's sister, "S", also gave evidence about her understanding of events on 31 st January, although, as the judge pointed out in his summing-up, it was not clear whether K had actually complained to her. 27. The complainant's first two Achieving Best Evidence (“ABE”) interviews on 1 st February, during which she gave her account of the allegation in count 1, failed to record due to technical issues. In a third ABE interview the same day, she gave her account in relation to count 1, and also about the matters that had occurred the previous night on 31 st January. 28. The applicant was arrested. In interview he gave a full account in which he denied the allegations, which account was generally consistent with his account at trial, albeit he did not mention that he believed that the complainant was jealous about him and had seen messages on his phone from another woman. The Defence Evidence 29. The applicant gave evidence that the complainant was contradictory during their relationship; sometimes she was controlling and jealous, but at other times she wanted her "space". 30. He denied raping the complainant, as alleged in count 1, but did recall an occasion when he slapped her face, lightly. This was after she had hit him twice during an argument about his phone. She wanted to go through his messages because she believed that he was seeing other women. After he had left her flat he felt mortified at what he had done. He sent a number of messages apologising for his behaviour, but the apology was in relation to the modest slap. 31. He confirmed that he had asked K to marry him and that he had taken steps to look for a property in Norfolk where they could live together. But in early January they argued again and he went off to Amsterdam. He said that K was continuously jealous of him, and especially of his cousin V, although he accepted that he could not identify any text message from her accusing him of chasing other women. 32. In relation to the suicide threat, he said that on 24 th and 25 th January they decided that they did not want to be together. He accepted that he had sent her text messages making references to funeral plans, which was silly. He was upset. They decided that their relationship would not continue. 33. Thereafter, there was a coming together. They met on 29 th January. On 30 th January, they exchanged declarations of love. On 31 st January, they went out for an evening in Birmingham. They each had a similar amount to drink but were not drunk. At one stage which he returned from a visit from the toilet, K told his that she had been accidentally elbowed in the face which caused the injury to her mouth. K denied any such conversation. She said that she had not been injured in this way. 34. When they arrived back at her flat they talked and cuddled in the kitchen. As they walked through the lounge he gestured towards the sofa and suggested "Now, there's an idea", but K said, "No, we're going to bed". She undressed herself and told him to remove his clothes, which he did. She then proceeded to perform oral sex on him for ten minutes before laying back and saying "Come here". They kissed and had vaginal intercourse and then anal intercourse. 35. The applicant denied that there was a second episode of vaginal intercourse afterwards. K licked his anus and put her finger into his anus of her own volition. This was something she did quite often. He put his finger into anus with her consent. She also masturbated him at one stage. They used lubrication which they had purchased together. He denied putting his hand over her mouth, but did put his fingers in her mouth because she was nibbling them playfully. Throughout the complainant was willing, consenting and encouraging. The sexual activity was rough and vigorous at her instigation, after which she felt "sore". 36. There was no sexual activity in the living room at all. He did not hit her at any stage. He did not ejaculate. They stopped because they were both tired. They went for a cigarette in the kitchen and then returned to bed to sleep in each other's arms. 37. When he received her text message saying that she was "hurt" and "never wanted to see [him] again", he assumed that she had looked through his phone and read messages between him and V about his relationship with K. As set out in the summing-up, he said that the messages were not available as they had not been extracted from his mobile phone. He went home and expected K to contact him. 38. In interview he had not mentioned the possibility of K being jealous about messages, but had said that he assumed she had gone to collect her son from her mother's address. 39. In cross-examination he made it clear that he was not accusing the police of failing to investigate the case properly. However, he insisted that he was not lying when he suggested K reacted as she did because of jealousy towards V. 40. As to why he did not obtain copies of the messages via his legal team, he said that he had been confused by K's text in the early hours of 1 st February. He had not contacted her to ask why she felt hurt or what he was supposed to have done. The reason he chose not to ask was because their relationship was always up and down and he just thought that he would forget it. He denied that his failure to reply was because he knew that he had done something brutal. The Grounds of Appeal The Appeal against Conviction 41. The grounds concern two matters: first, evidence of Facebook messages obtained after the jury had retired; and secondly, events concerning a juror after retirement. The Facebook Messages 42. The jury retired to consider their verdicts on 13 th October 2016 at 3.38pm. On the morning of 14 th October 2016, defence counsel handed to the judge a bundle of documents that he had received that morning. He explained that, following the applicant's cross-examination the previous day regarding his failure to produce the Facebook messages between him and his cousin V, his mother had contacted V and had obtained "screen shot" copies directly from her Facebook page. Counsel applied for permission to re-open the defence case and introduce this evidence. The judge refused the application. 43. Thereafter, defence counsel applied for the jury to be discharged. Again, the judge refused the application. The judge held that this material did not go to a central issue in the case. It was peripheral evidence and open to comment, which would divert the jury from the real task. Further, the evidence would and should have been available, if it was important, months earlier. 44. On behalf of the applicant it is contended that the judge erred in refusing to admit the further evidence (ground 1); alternatively, having refused to admit the evidence, he erred in refusing to discharge the jury (ground 2); alternatively, the evidence should be admitted as fresh evidence and it renders the convictions unsafe (ground 3). 45. The background against which this further evidence falls to be considered is as follows. The case for the Crown was that K had left her flat hurriedly in the early hours of 1 st February 2015 in her pyjamas in a bid to escape the applicant who had fallen asleep following the alleged sexual assaults. 46. The applicant did not dispute that K had left apparently hurriedly in the early hours in her pyjamas. However, he denied that she had left because she was in fear following any sexual assault. His case on her hurried departure was that K was often quite controlling and possessive of him and that she had searched through his phone on previous occasions. K was also jealous of his cousin V and had previously accused him of "fancying" V. The applicant believed that after he had fallen asleep in the early hours of 1 st February 2015, K had searched through the recent messages on his mobile phone. He said that she must have found Facebook messages between him and V from the days just before 31 st January in which he had told V that in his view his relationship with K was over and that there was no chance of a reconciliation. 47. The applicant had had an offer accepted on a house purchase on 30 th January 2015 and there was a possibility that K could move in with him at the new address. The applicant's case was that viewing the Facebook messages in which the applicant appeared to be discussing the relationship in negative terms with a woman whom K saw as a rival had crystallised K's own negative feelings about the relationship. In light of what she had read, she had taken the sudden decision that she did not want to move in with the applicant and in fact immediately sought to extricate herself from their relationship. The applicant's case was that, no doubt acting in anger, she had left without further ado. 48. This case was put to K in cross-examination. Her evidence was that K had met V, but that she had not accused the applicant of "fancying" her. She denied that she had searched through the applicant's phone in the early hours of 1 st February. She denied that she had viewed any Facebook messages in which V and the applicant had been discussing their relationship or that her departure from the premises in the early hours of 1 st February was in any way connected to this. 49. When the applicant gave evidence, he set out the matters outlined above. He placed before the jury a schedule of text messages. These texts had been obtained from the forensic imaging by the prosecution of a mobile phone seized from him on his arrest. Whilst the schedule of texts did contain a number of communications between the applicant and V, they did not contain any messages sent by the applicant to have been those viewed by K immediately prior to her departure. The applicant's explanation for the absence of such messages from his phone was that he had deleted his Facebook account when he had been released from the police station because he did not want to be drawn into any breach of bail in the event that K tried to contact him through that medium. Thus, whilst there were ordinary text messages, there were no Facebook messages; and the relevant messages with V had all been Facebook messages. 50. Prosecution counsel cross-examined the applicant about the absence of the supporting Facebook messages. He put to the applicant that he was lying about these messages, which was denied by the applicant. 51. On the morning of the day after the jury had retired, the applicant's mother, KS, attended court and handed to defence counsel the Facebook messages exchanged between the applicant and V. KS had been in court on 12 th October when the applicant had given evidence about the possibility that K had checked his phone and had seen messages from V. Following the applicant's evidence on 13 th October 2016, KS had contacted V and had asked if she would check for any messages that she had exchanged with the applicant in the days prior to 31 st January 2015. V had thereafter forwarded a number of messages to KS's mobile phone, which the latter had then printed out. This account has now been confirmed and witness statements provided by KS and V in support of the application to be allowed to adduce fresh evidence. 52. The four pages of messages were placed before the court. The conversations recorded were as follows: 25.01.15, 17.20 – V to the applicant: "Wanna be friends now do you lol" 25.01.15, 18.13 – applicant to V: "Lol new fb" 25.01.15, 19.04 – V to applicant: "How come?" [No time stamp] – applicant to V: "Long story but I'm sure you don't really need an explanation. X" [No time stamp] – V to applicant: "Are you ok? Are you and [K] over? X" [No time stamp] – applicant to V: "Yea we are and no not really but I am capable of a brave face. X" [No time stamp] "Bless ya. Is there no hope of you two getting back together? X" [No time stamp] "No there isn't. X" 25.01.15, 19.39 – applicant to V: "unfortunately it's one of those things. I haven't a bad word to say about her but it just didn't work it's a real shame. X" 25.01.15, 20.44 – V to applicant: "that is a shame, sorry to hear about that. X" 53. We propose to consider first the application now made to adduce fresh evidence. In order for fresh evidence to be admissible under section 23 of the Criminal Appeal Act 1968 it is necessary for the court to consider whether: (1) the evidence is capable of belief; (2) the evidence may afford a ground for allowing the appeal; (3) the evidence would have been admissible; and (4) there is a reasonable explanation for the failure to adduce the evidence. 54. A fundamental difficulty facing the applicant is demonstrating that there is a reasonable explanation for the failure to adduce the evidence which, as is accepted, was clearly available at the time of the trial. Whilst there is a reasonable explanation as to why KS did not obtain the Facebook messages until when she did, that does not begin to explain why neither the applicant nor the applicant's defence team sought to do so, and there is no evidence before the court to explain that failure. What was obvious to KS would or should have been obvious to the applicant and his defence team. The fact that these messages had been deleted from the applicant's phone did not mean that they no longer existed, and the obvious person to ask was V. The applicant and his defence team were well aware that he would be relying on these Facebook messages as part of his case to explain why K had fled the flat in the middle of the night in her pyjamas, since they were put to K in cross-examination, and evidence about them was given by the applicant in chief. As the judge held: "this evidence would have been and should have been available, if it was important, months ago". 55. That is a sufficient reason to refuse the application to adduce fresh evidence. In any event, we are not satisfied that the evidence may afford a ground for allowing the appeal. 56. It is to be noted that the messages all occurred on 25 th January 2015. They confirmed that on that day the applicant regarded his relationship with K as being over. But that was common ground on the evidence. It was the evidence of both K and the applicant that they had split up on that day. That was the background to the suicide threat messages. Whatever was on the phone was common ground to K and the applicant. If K had read the messages of 25 th January they would therefore have been no surprise to her. They would simply have confirmed what she already knew. As such, they would have provided no good reason for her to be upset with the applicant. A focus on these messages would, if anything, have undermined the explanation the applicant was providing, rather than supporting it. 57. Emphasis is placed on the fact that the existence of the messages had been challenged, that this went to credibility, and credibility was a central issue in the case. There were, however, far more important issues bearing on credibility than the simple fact of whether these messages existed: such as, what had happened on the evening in question; how K had sustained her injuries; and why the applicant had failed to respond to her text message. 58. In our judgment, the judge was justified in regarding the existence of these messages as peripheral and collateral to the events covered by the indictment and credibility in relation to those events. We are not satisfied that the evidence arguably may afford a ground for allowing the appeal. That is an additional reason for refusing the section 23 application. It also provides objective justification for the judge's refusal of the application made at trial. Even if the applicant could show that the judge should have admitted the Facebook messages, any failure to do so would not affect the safety of the convictions. 59. In any event, we consider that the judge was correct to refuse the applicant's application to adduce fresh evidence after the jury had retired. As the judge held, the evidence was peripheral. If it was considered important, it could and should have been obtained long before. In addition, the introduction of such late evidence would have had a seriously disruptive effect upon the trial. The prosecution at no stage accepted the veracity of the material purported to have come from the phone. Had the judge been minded to allow the evidence to be introduced, the prosecution would have asked for an adjournment to allow for expert examination of the phone to see if the material was genuine and to see if there was other material which was relevant to the issues. 60. Further, the applicant did not have the proper evidence at court in order to prove the material. The proper evidence would be the person who was the maker and receiver of the calls, not the applicant's mother who had simply talked to that person. It was never established whether the proper witness was available and willing to give evidence. But, if she was, that would have required the giving of oral evidence, examination in chief, cross-examination, speeches from both prosecution and defence, and a further summing-up. 61. There is no doubt that the general and settled principle is that no further evidence is to be provided to a jury after its retirement. As Lord Widgery CJ stated in R v Davis 62 Cr App R 194 (at page 201): "… The jury may not when they have once retired to consider their verdict be given any additional evidence, any additional matter or material to assist them. They can come back and ask the judge to repeat for their benefit evidence which has been given, but they cannot come back and ask for anything new and the judge must not allow them to have anything new." 62. As more recent authorities show, there is no absolute rule to that effect: see, for example, R v Karakaya [2005] EWCA Crim 346 at [18]; R v Hallam [2007] EWCA Crim 1495 at [22]; and R v Khan [2008] EWCA Crim 1112 at [39]. There may be exceptional cases where the admission of further evidence is permitted because justice requires it, as was the case, for example, with the corrected phone schedules which assisted the defendant's case in Khan , or the photograph produced by the prosecution in Hallam , which was agreed to be of importance to the defence. 63. There is, however, no authority which comes close to allowing the admission of evidence such as that in this case, namely peripheral evidence which, if important, could and should have been obtained by the defence long before, which required further investigation and disclosure, as to which there were admissibility issues, and which, if admitted, would have required oral evidence to be given and the re-opening of the trial after the retirement of the jury. Equally, such evidence cannot properly found an end of trial application to discharge the jury. 64. For all these reasons, we refuse the application for leave to appeal against conviction on grounds 1 and 2, and the application to adduce fresh evidence. Events concerning a juror on 17 th October 65. On 17 th October the court received a note from one of the jurors which appeared to suggest that he was struggling with his obligations under the oath. He identified concerns and sought to be discharged. The note listed five points: " Points observed 1. When selected, certain individuals stated by just looking at the [applicant] that 'he looks the type' (reference is made to that he's a rapist). 2. Some members were constantly talking about the case (against the Honourable Judge's directions). 3. One juror during deliberations stated that she had been raped but never reported it to the authorities. I feel this statement has influenced some jury members. I strongly feel this is wrong. 4. Also some members were making decisions on their experiences with their ex-husbands. 5. I was asked that if it was my son in the position of the [applicant]. I am very disappointed and offended with this comparison. To me this has no bearing on the case. My son is not on trial." 66. The judge and counsel considered the appropriate procedure and steps to be taken. It was agreed that the single juror should be invited back into court, alone initially. The juror was asked about point 2 of his note, namely about his assertion that the other eleven jurors had been discussing the case outside of the jury room, and when he was not sat with them. It was this point which the defence submitted "really is of great concern". There followed a discussion between the judge and counsel as to how best to proceed. 67. Following that discussion, the juror was asked a further question relating to point 5 of his note and his reference to being asked by other jurors what he would do if his son was in the position of the applicant. He explained that he considered that to be offensive. 68. The judge then gave directions to the jury regarding their deliberations. He reminded them that they must not discuss the case outside their room, and should do so only when all twelve of them were together. He also reminded them of their oath, and that they must consider the case only on the evidence that had been placed before them, objectively and dispassionately, and draw reasonable inferences as appropriate. He asked them to retire and consider whether they thought they could continue with the case and discharge their duty in accordance with the oath. 69. The individual juror was then invited back into court alone. He was reminded of the need to discuss the case politely and rationally with his fellow jurors and that, ultimately, if he did not agree he should say so; he was to remain true to his oath; and he was not expected to be party to a decision with which he did not agree. The juror asked if he could just tell his decision to the others and then walk away. He was advised that this was not permitted. It was part of his civic duty as a juror to stick with the case, and he was required to do so. 70. The judge then brought the entire jury back into court and reminded them of their duty to exchange views and to discuss the case rationally and politely with their colleagues. There was no need for complete agreement on every point, and they ought not to agree to something just for a "quiet life". He asked whether they felt able to continue in accordance with their oath, to which they answered in the affirmative. 71. Immediately after the judge had sent the jury out to continue their deliberations, defence counsel applied for the jury to be discharged. He submitted that the applicant was entitled to be tried by twelve jurors considering the case on the evidence alone and that there was a clear prima facie irregularity, as described in the Criminal Procedure Rules, in that one juror at least had expressed the view that he was unable to decide the case on the evidence alone, or to be true to his oath. The juror had sent a note raising five points of concern, but had only been asked about his second and fifth points. The points of concern indicated that a serious and fundamental breach of the judge's directions had occurred, on more than one occasion throughout the trial. Even though the judge had now further directed the jury, that could not remedy what had already occurred, namely that eleven of them had been discussing the case in the absence of the twelfth. The integrity of the trial process had been undermined. In relation to the other questions raised in the juror's note, the court had declined to inquire, and that left the position that one juror had questioned the fairness of the proceedings. The mischief had been done and could not be rectified by the directions given. Since the integrity of the trial could no longer be guaranteed, the jury ought to be discharged. 72. The judge ruled that the jury would not be discharged. He read the juror's note for the record, setting out his five points, and noted that the juror felt, after deep reflection over the weekend, extremely stressed, especially with his fellow jury members, and that he was not doing justice or right be taking the oath. 73. The judge set out the chronology of what had occurred following receipt of the notes, including that defence counsel had been given time to consider the matter, to take instructions, and to make representations as to the best way forward. The judge stated that he knew no more than that which he had set out in his ruling and that he had carried out those investigations he considered to be appropriate. He was confident that, when given proper directions and when those directions were reinforced, as his had been, jurors would follow those directions and act with objectivity and fairness. For that reason, he would not accede to defence counsel's application that the jury be discharged. 74. The applicant now appeals on the grounds that the judge erred in dealing with the note, and in particular erred in failing to make adequate enquiries concerning alleged failures to decide the case on the evidence (ground 4); and that the judge erred in rejecting a second application to discharge the jury (ground 5). 75. As stated by Judge LJ in R v Momodou and Limani [2005] 2 Cr App R 6 at [94]: "… the exercise of the trial judge's discretion to discharge an individual juror or the entire jury for impropriety, requires him to address the question whether impropriety has in fact occurred, and if it has, whether it can be cured, and if so how, or whether it is irremediable. This is a case specific decision." 76. In the present case it is submitted that the judge did not make sufficient inquiry into whether an impropriety had occurred. In particular it is submitted that inadequate inquiry was made in relation to points 1, 3 and 4 of the juror's note. It is submitted that point 1 raised the prospect of improper bias against the applicant based upon wholly irrelevant factors from the outset of the case by a number of jurors. Point 3 raised the prospect of ingrained antipathy to the applicant based upon the personal experience of one member of the jury, which may have spread to others. Point 4 raised the further prospect that the case was being approached by one or more jurors in an inappropriate way, bringing to bear to decisions in the case matters other than the evidence. 77. It was originally submitted that the judge should have questioned the juror in respect of points 1, 3 or 4 in the following terms. 78. In relation to what had been said in respect of point 1, by how many jurors and when? Had such views been repeated during jury deliberations? To what extent have such views been expressed so as to call into question whether any juror was acting in breach of the jury oath? 79. In relation to what had been said in respect of point 3, to what extent had the jury who had made disclosure of rape evinced general antipathy to the applicant based upon her personal experience? Had this been taken up by others? In all the circumstances, to what extent had the juror or jurors acted in breach of the jury oath? 80. In relation to what had been said in respect of point 4, to what extent had the individuals to whom reference had been made at point 4 acted in this regard in breach of the jury oath? 81. It is now accepted that such questioning would have been inappropriate. Instead it is suggested that the juror should have been asked whether he considered that on the basis of what he had seen and heard he felt that any or all of the other members of the jury would be able properly to discharge their duties, remaining faithful to their oath. Depending upon answers given, further questions could have been framed accordingly. 82. It is contended that, had the judge properly embarked upon questioning the juror in respect of points 1, 3 and 4, then depending upon the outcome of those inquiries, the judge could thereafter have assessed whether further inquiry needed to be made of other jurors in the case. He would, at the very least, have had a far better idea of the extent of any impropriety and whether it could be cured. As it was, the failure to ask any further questions meant that the court simply had no proper idea of how far the possible prejudice went or the extent to which other jurors were in breach of the jury oath. If so, then it may not have been sufficient simply to direct the jury to put outside their concerns any personal experiences or to direct them to ask themselves the question whether they felt able to discharge their duty in accordance with the oath they had taken. 83. It is submitted that the judge's failure to conduct an adequate inquiry means that it simply cannot be said that the applicant had a fair trial in which the jury discharged their oath to try the case on the evidence. Even in the absence of further inquiry, it is submitted that there was enough material before the court as a result of the note and the questions asked to show that a fair trial was no longer possible and that the jury should be discharged. It is submitted that such inquiries as had been made suggested that there had been a fundamental breach of the court's directions, in particular the direction not to talk about the case outside the jury room and the direction that deliberations should only take place following retirement when all twelve jurors were present and participating. Further, the juror who had produced the note had distanced himself from other jurors. The risk in all the circumstances was that opinions adverse to the applicant might have become entrenched and hardened in the absence of that juror's participation. It is submitted that it follows that the integrity of the trial process had been compromised so that a fair trial from twelve impartial jurors deciding the case on the evidence could no longer be guaranteed. At that stage the judge should have discharged the jury and he erred in ruling otherwise. 84. As observed in Momodou , how to deal with a jury note such as this is a "case specific decision". When these issues arise, each case has to be dealt with depending upon its own facts. The trial judge is best placed to decide how that is to be done and this court will be slow to interfere with his or her assessment. 85. In the present case the judge appropriately approached the issues raised. He discussed the note with counsel and considered their submissions as to the best course of action to take. He then made such further enquiry as he considered to be appropriate in all the circumstances. 86. As to point 1, this was an observation said to have been made at the outset of the trial and there was no reason to suppose that it could not be appropriately addressed through directions to the jury. 87. As to points 3 and 4, the judge has to ensure that he does not trespass into enquiry about what has been happening in the jury room. The judge has a difficult line to draw between attempting to make a proper investigation and trespassing into the jury room. Points 3 and 4 were essentially about how the jury deliberations were being conducted. The judge was justified in concluding that it would not be appropriate for him to start to enquire into that area of the case. This is borne out by the further questions which it was originally suggested should have been asked. These were essentially enquiries into what was happening in the jury room. 88. As to the question which is now suggested should have been asked, this is to enquire into one juror's subjective view of whether he "felt" the other jurors would be able to remain faithful to their oath. Such an enquiry would be neither appropriate nor helpful. Any investigation to be made has to be into the facts, not into individual jurors' opinions or feelings. 89. It is inevitable that there will from time to time be issues between individual jurors and jurors who are unhappy as to the conduct of their colleagues. As the judge observed: "… I will deal with that in the usual way that it is not an unknown situation in cases for one juror to say ' I am worried about the rest of the jury'. And the classic way of dealing with it is for the judge to explain, in general terms, what the concern is that is mooted. Then to ask the jury to reflect upon it, to go away, consider and if any of them feel that they cannot do the job properly, in accordance with their oath, they must say so. But that it is fundamental that they put out of their minds anything that may have happened to them or anything they may know about that has happened to a friend. They have to deal with this case on the information that has been presented to them in this court and only that. And that is the way to deal with it." That is what the judge then did. He gave a full and robust direction in the following terms: "Ladies and gentlemen, I have received a note. I am not going to read out the note; it is enough to say that both counsel have seen it, Mr Raudnitz, of course, was here last week, Ms Murray is sitting in for Mr Arnold, who has other commitments today, and we have been discussing it. The first thing that I should say is that it has come to my notice that some, or nearly all of you, may have been talking about the case outside your jury room. It is very important that when you do talk about the case, all twelve of you are together and that it is not where you can be overheard. And therefore your discussions should take place in your jury room. Please make sure that they do. That is the first thing. Now, another thing that I need to talk about to you – and this is also very important – is your consideration of the evidence. And what I am going to do, because of this note, I have got to deal with it like this, what I am going to do is I am going to say a few things to you, send you out, ask you to mull them over and then come back in a few minutes and let me know the position. So suspend all discussion of the evidence for at least a few minutes; that is the first thing. Now, when you were sworn I said to you that you had to try this case objectively, dispassionately, on the basis of the evidence, which is the information that you are given within these four walls. That means that you deal with the case firstly objectively, and dispassionately. One of the things that cannot be objective is deciding evidence simply on the basis of how the complainant looks, or how the defendant looks. That would be wrong. Another way that you must avoid following is some or all of you – and I would not pick all of you, but some of you may know of somebody who has been the subject of a sexual offence. What you may have learned, what you may have experienced will have nothing to do with the decision you have to make in this case. You have to, as it were, if you have any experiences, or knowledge, put them outside your thinking, do you see? So, objective analysis of the evidence and the drawing of inferences using your common sense, which is what I told you at the very beginning of the case. And what I would like you to do is to retire and ask yourselves this question: 'Do we feel that we can discharge our duty in accordance with the oath that we have taken and try this case fairly, applying those precepts?' And I shall have you back into court in 20 minutes … and one of you can speak for the rest, if any of you feel you cannot please say so. But if you feel that you can, also please say so." 90. The jurors later came back and confirmed that they felt able to continue with the case in accordance with their oath and to deal with the evidence fairly and objectively. 91. In our judgment, the jury directions given were sufficient to address any concerns that the jury might be actually or apparently biased. For the purpose of that direction the judge assumed that what was said in the note under points 3 and 4 was true, thereby obviating the need for further factual enquiry. He directed the jury accordingly and received clear confirmation from them that they felt able to continue in accordance with their oath in the light of the directions given. 92. As to the individual juror, the judge made clear to him his duty to be true to his oath and what that required. He was clearly a most conscientious juror. There was no reason to suppose that he would not act as directed. In any case where jurors disagree, there is a risk that one or more jurors may, rightly or wrongly, feel side-lined or marginalised. 93. In all the circumstances, we are not satisfied that the judge arguably erred in his handling of the case, in dealing with the issues raised by the jury note, or, if he did, that the safety of the conviction was arguably affected. It is to be noted that, notwithstanding the concerns raised, the applicant was acquitted on count 1. 94. For all these reasons, we refuse the application for leave to appeal on grounds 4 and 5. The Application for leave to appeal against Sentence 95. The judge set out the offences for which the applicant fell to be sentenced on counts 2 to 9. He referred to the earlier allegation in October 2014 (count 1), in respect of which the applicant had been acquitted, and observed that the complainant had taken the applicant back after that allegation because she believed that he cared for her and because she had feelings for him. 96. In the judge's opinion, the applicant was obsessed with the idea of sex with K, to the exclusion of almost all other considerations, including, importantly, her attitude to it. On the night in question, K described the applicant forcing her into various positions when she did not consent. It was as though he was using her for sexual experimentation for his sole enjoyment. When he did not achieve what he wanted, he had resorted to violence. The judge found the applicant "troubling". He concluded from what he had seen during the trial that he was glib and seemingly lacking in emotions, except when the affected his interests. The judge suspected that he was wholly self-centred and had a side that was callous and controlling. 97. Although the judge had considered the obtaining of a pre-sentence report to determine the issue of dangerousness, as the applicant was of previous good character, he could not see that anything other than a determinate sentence would be justified. 98. The judge had regard to the sentencing guidelines, but reminded himself that he was not dealing with an isolated offence. The offences did not conveniently fall within category 1 or 2. The incident was sustained. The complainant K was vulnerable, and alone in her own house. There was violence beyond that inherent in the offences. There was additional degradation, and the complainant was left with serious emotional and physical consequences. She wears a neck brace and lacks confidence as a consequence of what happened to her. 99. The applicant's culpability, however, was not in the higher category. There was no conclusive evidence of significant planning; abuse of trust did not apply; and any previous violence was not proved in view of the jury's verdict on count 1. 100. The aggravating features included the location of the offences and the fact that K was compelled to leave her home as a result of the offences. 101. The mitigating features included the applicant's previous good character, and letters from his present and former girlfriend, which the judge had read. There could be no reduction in sentence because the applicant had been convicted by the jury following a trial. 102. In the light of the accumulation of harm factors, the offence was pushed upwards beyond category 2 into category 1 (albeit 1B) of the guidelines. The judge could not apply the guidelines precisely for the reasons he had explained. In addition, in reality he was dealing with one lengthy incident of sexual offending which had dreadful consequences for the complainant. He bore totality in mind, and thus did not impose consecutive terms. 103. The judge concluded that, having regard to the applicant's overall offending, the appropriate total sentence was one of thirteen years' imprisonment. 104. We should mention at the outset that it was understood by both prosecution and defence that the maximum sentence for that offence charged in count 7 was life imprisonment. In fact, the maximum sentence was ten years' imprisonment. The judge imposed a sentence of ten years' imprisonment, which represents the maximum sentence. Accordingly, we grant leave in relation to that point. We accept that it is not a case in which it would be appropriate to impose the maximum sentence. Accordingly we impose in its stead, on count 7, a sentence of seven years' imprisonment, to run concurrently. 105. In relation to the overall sentence, the grounds of appeal are that the sentence of thirteen years' imprisonment was in all the circumstances manifestly excessive. In particular, it is submitted that the judge erred in placing the offences in the upper bracket of category 1B, which has a starting point of twelve years' custody and a sentencing range of ten to fifteen years. 106. The guidelines state that a category 1 offence is one where the extreme nature of one or more category 2 factors, or the extreme impact caused by a combination of category 2 factors, may elevate it to category 1. The category 2 factors which were relied upon here were: severe psychological harm; additional degradation or humiliation; prolonged detention or sustained incident; violence or threats of violence beyond that which is inherent in the offence; and the vulnerability of the victim due to personal circumstances. 107. It is accepted that this was a serious set of allegations, but it is submitted that not all of the features in this case were in the first rank of gravity when compared with some other cases that come before the court. In particular, it is pointed out that the additional degradation or humiliation was, in essence, the matters in counts 6, 7 and 8. These were reflected in separate counts, but there was no additional degradation or humiliation over and above the matters indicted. Whilst it could be regarded as a sustained incident with prolonged detention, it was limited in fact to a period of, at most, one and a half hours. Whilst there were a number of offences committed, there was in essence a single course of conduct representing abuse manifested in different ways over this period. Further, the alleged violence was not such as to inflict serious injury. The injury was limited to actual bodily harm in the form of, in essence, bruising to the eye and lip. There was otherwise only a report of tenderness at various bodily locations. No weapon was used. There was no serious violence, nor serious threats of violence beyond that which was inherent in the offence. 108. In all the circumstances, it is submitted that while the judge was not wrong in principle to sentence on the basis that this case crept into category 1B, to have imposed a sentence of thirteen years' imprisonment was to have moved too far into category 1, given the fact that the harm factors were not in the first rank of gravity. To have imposed a sentence of thirteen years' imprisonment was to have imposed a sentence almost 50 per cent higher than the highest end of the category 2B range, which is nine years. It was also a year above the starting point of twelve years for a category 1B offence. 109. It is submitted that the appropriate starting point was the bracket of nine to eleven years, representing a range between the top end of category 2 and just below the starting point for category 1, and that there should have been a corresponding reduction down from ten years in the starting points for counts 6 to 8 in respect of the offences under section 4 of the Sexual Offences Act 2003 . 110. Further, or alternatively, it is submitted that insufficient weight was given to the applicant's personal mitigation. Aside from the fact that the applicant was 29 years of age and of previous good character, the following factors are stressed in particular. The applicant was adopted at the age of 2. He adoptive family was a close and loving one and have given him considerable support during the case. He had worked consistently since the age of 17. He had not been working for some part of the relationship with V. He had sold his house and was waiting to study to be a driving instructor. That career change had been put on hold after the charge on these matters. He had embarked upon a new relationship in May 2015. This was with a woman to whom we shall refer as "RW". A letter from RW spoke as to the fact that, in their relationship, there was no hint of the behaviours that had featured in the instant case. There was also a very positive testimonial from his first long-term girlfriend, "DG". The applicant had recently been in touch with his birth mother, who had also appeared to support him at trial. 111. In addition, reliance is sought to be placed on a number of positive testimonials since sentence, all of which we have read. 112. This is a case in which the judge has considered the relevant guidelines and reached the conclusion that the most serious offences, namely, the counts of rape, fell within category 1B. It is accepted that he was entitled so to conclude. Category 1B has a starting point of twelve years' custody, and a sentencing range of ten to fifteen years. 113. Having justifiably decided that this was the relevant category, the judge appropriately took the starting point within that range and considered the relevant aggravating and mitigating factors. Having done so, his conclusion was that an uplift from the starting point of one year was appropriate. 114. In our judgment, there was ample material before the court to justify that conclusion. In particular, the guideline applies to a single count of rape, and the judge was sentencing for four offences of rape. Further, all the other sentences imposed were concurrent. The thirteen-year term was meant to reflect the applicant's overall offending, which included a number of other serious offences. In addition, as the judge noted, the incident was sustained; the victim was vulnerable; there was violence beyond that inherent in the offence; there was additional degradation; and there were serious emotional and physical consequences for the victim. 115. The judge had regard to the applicant's personal mitigation. He made express reference to his good character and testimonials received. Having regard to the guidelines, the totality of the offending, and weighing up the aggravating and mitigating factors, the judge's assessment was that thirteen years' imprisonment was the appropriate sentence. Whilst some might regard that as a severe sentence, in our judgment it cannot be said to be wrong in principle or manifestly excessive. 116. Accordingly, it follows that, save in relation to the reduced sentence on count 7, the appeal against sentence is dismissed. 117. We conclude by paying tribute to Mr Raudnitz who has said on behalf of the applicant all that could be said in relation to the applications both for leave to appeal against conviction and sentence. We are grateful for the assistance of both counsel. ________________________________

2017_06_16-3998.xml

conviction

https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/870/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/870

9570295cab23d749970320ba0d9a8e80a7688564bb083ad4954506168812e279

[2004] EWCA Crim 2685

EWCA_Crim_2685

supreme_court

Neutral Citation Number: [2004] EWCA Crim 2685 Case No: 2002 06987-9/B2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SOUTHWARK CROWN COURT HH Judge Hardy Royal Courts of Justice Strand, London, WC2A 2LL Date: 2 November 2004 Before : LORD JUSTICE THOMAS LORD JUSTICE GAGE and HH JUDGE RICHARD BROWN DL (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN Respondent - and - K, G & M Appel

Neutral Citation Number: [2004] EWCA Crim 2685 Case No: 2002 06987-9/B2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SOUTHWARK CROWN COURT HH Judge Hardy Royal Courts of Justice Strand, London, WC2A 2LL Date: 2 November 2004 Before : LORD JUSTICE THOMAS LORD JUSTICE GAGE and HH JUDGE RICHARD BROWN DL (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN Respondent - and - K, G & M Appellants - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Jeffrey V. Pegden QC , instructed by Reynolds Dawson, for the Appellant K Dorian C. Lovell-Pank QC , instructed by Peters and Peters, for the Appellant G Stephen Walters, instructed by Hodge, Jones & Allen for the Appellant M Bobbie Parmjit Cheema and Christopher Foulkes, instructed by the Crown Prosecution Service, for the Prosecution Hearing date: 16 July 2004 - - - - - - - - - - - - - - - - - - - - - JUDGMENT LORD JUSTICE THOMAS : 1. On 23 October 2002, after a trial of 133 days (including submissions before the jury were empanelled), the appellants were convicted of conspiracy to defraud. The appellant G was sentenced to a term of 2 years imprisonment and the appellant M was sentenced to a community punishment order of 200 hours. Although it is now a considerable time since the conclusion of the trial, the appellant K has not yet been sentenced; that is a matter for the trial judge to consider and not for us. Each appellant appeals by leave of the single judge on one ground and each renews the application for leave on other grounds. 2. The ground on which leave was given and, in our judgment, the only arguable point on the appeal, related to the application to the offence of conspiracy to defraud of the principle that the jury must be unanimous on the ingredients of the offence. It is necessary briefly to set out the factual background. THE FACTUAL BACKGROUND 3. The fraud alleged against the appellants was a relatively simple one through which investors were induced to invest money in a company called [H] plc. Although at the trial none of the appellants admitted that the investors had been deceived, it was obvious that there had been a fraud; the only real issue in the case was whether and, if so, in what way, any of the appellants had been involved in it. 4. [The Court summarised the facts, the incorporation of [H] plc (subsequently renamed [H] International plc), its ostensible purpose for acquiring a product or process known as C, the preparation of a prospectus and the employment of professional advisers, the inducement of investors to purchase shares, the diversion of money and the insolvency of the company without it having acquired the rights to the product or process known as [C]]. 5. It was the prosecution’s case that [H] was a hollow shell with no assets; the appellants and their co-conspirators had defrauded the investors either by selling shares to the investors or by participating in the operation of the company in the knowledge that shares were being sold at a time when they knew that [H] never had acquired the rights to the product or process known as [C], that it was therefore a hollow shell and that there was no prospect of a flotation. 6. [The Court summarised the defence case – a genuine intention to acquire the rights to [C] which was defeated by the sellers, the honest conduct of each of the appellants and the very different role of the appellants]. 7. The prosecution called over 40 witnesses, 24 of whom were investors. M and G gave evidence and called 7 witnesses. K did `not give evidence. 8. We therefore turn to the only issue for which leave to appeal has been granted. ON WHAT WAS THERE A NEED FOR UNANIMITY? (a) The ruling by the trial judge on the indictment and the summing up 9. The indictment on which the appellants were charged alleged that the appellants between 1 June 1995 and 31 December 1997 conspired with F, [L] and others unknown “to defraud shareholders of a company known as [H] plc and [H] International plc by falsely representing: a. that the said company owned the rights to a product known as[C] b. that the said company was formed to develop the product c. that the said company would market and develop the product d. that licences to market the product would be sold e. that the said company was to be imminently launched on the Alternative Investment market f. that the said company was oversubscribed before the launch on the Alternative Investment Market g. that after the launch the share value would be many times the price h. that the said company was solvent i. that the shareholders’ purchase money would be used for the benefit of the company j. that the said company was supported by reputable advisers k. the extent of their shareholding l. the nature of their personal investment” 10. During the course of the trial submissions were made on behalf of the appellants about the indictment culminating in the submission that the jury were not entitled to convict any of the appellants unless they were unanimous not only that that appellant was a party to the conspiracy to defraud the shareholders but also unanimous that that appellant had been party to an agreement to make at least one of the specific representations set out in the particulars to the indictment. During the course of the trial, the appellants had made submissions in respect of the indictment which the Judge had rejected. i) They had contended that the particulars lacked precision. In rejecting this submission, the trial judge held: “.. the particulars are not meant to be regarded as essential ingredients to be proved by the prosecution… the essence of this case is the alleged agreements (sic) and not the precise details in paragraphs (a)-(l) and I find no further clarification necessary.” ii) As part of the submission of no case to answer, the appellants contended that there was insufficient evidence of an agreement given that no representation was precisely the same. The judge rejected that submission in these terms: “The agreement the prosecution have to prove is to defraud shareholders and the exact means are not meant to be found in paragraphs (a)-(l) of the indictment as I have already ruled earlier. Those paragraphs merely delineate the general ball park area in which the Crown may operate during the trial in suggesting what sort of agreement it was. As Miss Cheema said, ‘the crime is the agreement, not the particulars’.” 11. When he came to sum up to the jury, the Judge directed them: “What is alleged here in this case by the prosecution is a dishonest agreement, or plot, entered into by these three defendants, together with others to defraud the shareholders of [H] plc and/or [H] International plc. The way they did that, say the Crown, is by falsely representing that a certain state of affairs about the company existed which in truth it did not. That state of affairs is encompassed in the twelve particulars set out at paragraphs (a) to (l) on the indictment. That does not mean to say that you have to find each and every representation there set out proved before you could convict. Those twelve representations are set out by the prosecution so that the court, the defendants and you the jury can see from the start of the trial the area, as it were the ball park, in which the alleged agreement is set. It is the agreement itself dishonestly to persuade potential shareholders to part with their money with the intention of carrying it out which must be proved rather than any precise particular set out in paragraphs (a) to (l).” (b) The submissions of the appellants 12. It was submitted to us by Mr Lovell-Pank QC, on behalf of all the appellants, that the judge had been wrong in his rulings and misdirected the jury in his summing up; the jury had to be unanimous, before convicting any one of the appellants, that he had been party to an agreement that at least one of the representations set out in the particulars to the indictment would be made. The submissions can be summarised: i) It was well established that a jury could not convict a defendant unless they were unanimous as to each ingredient of the offence. ii) The agreement which had to be proved for the purposes of establishing a conspiracy to defraud had to be sufficiently certain and precise; the description of the agreement given by the judge in the summing up as set out at paragraph 11was insufficiently precise or certain. iii) The agreement had been specified in the indictment by reference to the particulars which we have set out at paragraph 9; proof of the agreement so specified was therefore an essential element of the offence. iv) The jury had not been directed that they must be unanimous as to at least one of the elements of the agreement so specified in the particulars. v) There had therefore been a misdirection to the jury. (c) The requirement for unanimity on each ingredient of the offence 13. It is well established that a jury cannot convict a defendant of an offence unless they are unanimous on each ingredient of that offence. In Brown (1984) 79 Cr App R 115, the defendant was charged with fraudulently inducing investments contrary to s.13(1) of the Prevention of Fraud (Investments) Act 1958 by inducing persons to enter into agreements to buy shares by making misleading statements about the company. Each count of the indictment set out particulars of each false statement alleged to have been made to the individual investor; for example one of the counts set out as particulars (i) the statement alleged to have been made about the staff employed by the company (ii) the statement alleged to have been made about the assets of the company (iii) the statement alleged to have been made that there had been no material change of position or the prospects of the company (iv) the statement alleged to have been made that the company was absolutely entitled to the assets and (v) the statement alleged to have been made that the defendant was not aware of any matter which would affect the decision to invest. The jury were directed that it was sufficient if all of the members of the jury were agreed that there was a dishonest statement which induced the investment, even if they differed as to which of the statements had been made or relied on; it did not matter some thought that one representation had been made out and others thought that another had been made out. This Court held that this was a misdirection; as was made clear by this Court, 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; that the making of a false statement was an essential ingredient of the offence charged in that case. The position was summarised by Eveleigh LJ at page 119: “1.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.” 14. There are numerous other decisions on this issue; we were referred to some of these. It is, we think, only necessary to refer to two. In R v Mitchell [1994] Crim LR 66, the defendant was convicted of a count of unlawful harassment in which a number of different acts was alleged, each amounting to unlawful harassment. The judge had not directed the jury that they each had to be sure in respect of the same act. In allowing the appeal, Simon Brown LJ, giving the judgment of the court set out three principles to be derived from Brown and the cases that had followed it: “(1) Where a number of different matters are set out in a single count, the judge should consider whether he should give the jury a direction that they must all be agreed upon the particular ingredient which they rely upon to find the defendant guilty of the offence charged ( Brown (1984) 79 Cr.App.R. 115). (2) That such a direction will be necessary only in comparatively rare cases. In the great majority of cases, particularly cases alleging dishonesty, and cases where the allegations stand or fall together, such a direction will not be necessary. It is of first importance that directions to the jury should not be overburdened with unnecessary warnings and directions which serve only to confuse them. ( Price [1991] Crim.L.R. 465 and R. v More (1988) 86 Cr.App.R. 234 (HL). (3) However, in an appropriate case where there is a realistic danger that the jury might not appreciate that they must all be agreed on the particular ingredient on which they rely to found their verdict of guilty on the count, and might return a verdict of guilty as charged on the basis that some of them found one ingredient proved and others found another ingredient proved, so that they were not unanimous as to the ingredient which proved the offence, a direction should be given that they must be unanimous as to the proof of that ingredient. (Lord Ackner in More (1988) 86 Cr.App.R. 234 .) 15. Second and more recently, in R v Morton [2003] EWCA Crim 1501 a number of the decisions were reviewed. The defendant had been charged with murder; the case against him was that he had either himself caused the fatal injury or been party to a joint attack. It was contended that the judge should have directed the jury that they had to be unanimous as to whether he was guilty as the principal who had caused the injury himself or unanimous that he was guilty on the basis of secondary liability as a party to the joint attack. In rejecting that contention, Rix LJ held: “In our judgment a Brown direction may be required in principle in all cases where a single judge or juror could not satisfy himself of guilt without improperly aggregating the factual allegations necessary to guilt. Thus in the context of Brown a single judge could not say to himself: I am not satisfied as to fraudulent dishonesty in the case of any single one of the statements relied on by the prosecution, but there is sufficient suspicion arising from the alleged statements in aggregate to satisfy me of guilt. In the context of Carr a single judge could not say: I am not sure that the defendant is the man who delivered the kick, nor I am satisfied that the defendant was acting unreasonably in defending himself with that punch, but I am satisfied in all the circumstances that he was guilty of manslaughter. If in such contexts a single judge could not convict a defendant, then a jury cannot any the more do so by aggregating the split votes of their body, if perchance some only (less than a required majority) were satisfied of any such route to guilt. But, in a case, say, of ‘Who did it?’, just as a single judge might be satisfied that the defendant was the culprit by seven out of the ten pieces of evidence relied on by the Crown, or by any other combination of such evidence, so a jury would not need to be unanimous as to the particular pieces of evidence which satisfied them of guilt, provided that all (or at least all in the majority on a majority verdict) were .” 16. The principle is, in our view clear, and we turn to consider its application to the offence of conspiracy to defraud. ( d) The wide ambit of the offence of conspiracy to defraud 17. Conspiracy to defraud is a common law offence; a helpful definition was given by Viscount Dilhorne in Scott v Metropolitan Police [1975] AC 819 at 1039 as “An agreement by two or more by dishonesty to deprive a person of something which is his or would be or might be entitled, or … an agreement by two or more dishonestly to injure some proprietary right” Nothing need be done in pursuance of the agreement, provided that the agreement encompasses an agreement to carry it into effect: Mulcahy v R (1868) 3 HL 306 at 317. 18. In Welham v DPP [1961] AC 103 , a case now accepted to set out general principles and not merely principles confined to deceiving a person into acting contrary to his public duty (see Wai Yu-Tsang v R [1992] 1 AC 269 and R v Moses and Ansbro [1991] Crim App R 617) Lord Radcliffe set out the broad characteristics of the offence at page 123: “ Now, I think that there are one or two things that can be said with confidence about the meaning of this word “defraud”. It requires a person as its object: that is, defrauding involves doing something to someone. Although in the nature of things it is almost invariably associated with the obtaining of an advantage for the person who commits the fraud, it is the effect upon the person who is the object that ultimately determines its meaning. This is none the less true because since the middle of the last century the law has not required an indictment to specify the person intended to be defrauded or to prove intent to defraud a particular person. Secondly, popular speech does not give, and I do not think ever has given, any sure guide as to the limits of what is meant by “to defraud”. It may mean to cheat someone. It may mean to practise a fraud upon someone. It may mean to deprive someone by deceit of something which is regarded as belonging to him or, though not belonging to him, as due to him or his right. It passes easily into metaphor, as does so much of the English natural speech. Murray’s New English Dictionary instances such usages as defrauding a man of his due praise or his hopes. Rudyard Kipling in the First World War wrote of our “angry and defrauded young”. There is nothing in any of this that suggests that to defraud is in ordinary speech confined to the idea of depriving a man by deceit of some economic advantage or inflicting upon him some economic loss. Has the law ever so confined it? In my opinion there is no warrant for saying that it has. What it has looked for in considering the effect of cheating upon another person and so in defining the criminal intent is the prejudice of that person: what Blackstone (Commentaries, 18 th ed., vol.4, at p.247) called “ to the prejudice of another man’s right”. East, Pleas of the Crown (1803), vol.2, at pp.852, 854, makes the same point in the chapter on Forgery: ‘in all cases of forgery, properly so called, it is immaterial whether any person be actually injured or not, provided any may be prejudiced by it’. ” (e) The practice in relation to indictments for conspiracy to defraud 19. From these well established principles, two issues were raised in the submissions made to us in relation to the application to the offence of conspiracy to defraud of the principles as to unanimity as set out in Brown and subsequent cases: (1) What degree of specificity of an agreement must the prosecution allege in the indictment and prove? (2) What was the agreement which the indictment in this case specified and which therefore had to be proved to the unanimous satisfaction of the jury (or the requisite majority)? 20. It is necessary before considering the first of those issues to set out the way in which practice in relation to indictments has developed as a result of the decision in R v Landy [1981] 1 W.L.R. 355; (1981) 72 Cr App R 237. The indictment in that case was in a form commonly then in use; it had charged the defendants with conspiracy: “ to defraud such corporations, companies, partnerships, firms and persons as might lend funds to or deposit funds with Israel British Bank (London) Limited by falsely representing that the business of Israel British Bank (London) Limited was being conducted in an honest and proper manner, by knowingly employing such funds to the prejudice of the said lenders and depositors and contrary to the best interests of Israel British Bank (London) Limited, by fraudulently concealing that the said funds were being supplied and by divers other false and fraudulent devices.” 21. Lawton LJ in giving the judgment of the Court described the indictment in these terms: “It is a form which is commonly used, particularly at the Central Criminal Court. In simple cases it may be adequate but in a complicated case it is not because it lacks particularity. There was nothing to show how the false representations were made or how the funds were employed to the prejudice of IBBL and its customers or what the nature of the concealment. Junior counsel for Landy asked for particulars at the beginning of the committal proceedings, the committal charge being the same as count 1 of the indictment. He was told that he would get all the information he needed from the leading counsel’s opening speech. Attempts to get particulars at later stages of the case were met with the same answer. We were told by counsel that this is the answer almost always given by prosecuting counsel. In our judgment particulars should have been given and for these reasons: first, to enable the defendants and the trial judge to know precisely and on the face of the indictment itself the nature of the prosecution’s case, and secondly to stop the prosecution shifting their ground during the course of the case without the leave of the trial judge and the making of an amendment. The words “ and by divers other false and fraudulent devices” are a relic of the past and should never again appear in an indictment. In criticising the form of indictment used in the case, we should not be taken to be adjudging that particulars of conspiracies to defraud should be set out in the same kind of detail as would be required in a statement of claim in an action for damages for conspiracy to defraud. What is wanted is conciseness and clarity. In our opinion the particulars of the count charging conspiracy to defraud should have been in some such terms as these: Particulars of offence Harry Landy, Arthur Malcolm White, Charles Kay and Peter Lynn on divers days between September 30, 1968 and July 12, 1974, conspired together and with the late Walter Nathan Williams, Joshua Bension and the late Isaac Cohen to defraud such corporations, companies, partnerships, firms and persons as might lend funds to or deposit funds with Israel British Bank (London) Limited (“the Bank”) by dishonestly (i) causing and permitting the Bank to make excessive advances to insubstantial and speculative trading companies incorporated in Liechtenstein and Switzerland, such advances being inadequately secured, inadequately guaranteed and without proper provision for payment of interest (ii) causing and permitting the Bank to make excessive advances to its parent company in Tel Aviv, such advances being inadequately secured, inadequately guaranteed and without proper provision for payment of interest (iii) causing and permitting the Bank to make excessive advances to individuals and companies connected with the said Walter Nathan Williams and his family, such advances being inadequately secured, inadequately guaranteed and without proper provision for payment of interest (iv) causing and permitting the Bank’s accounts and Bank of England returns to be prepared in such a way as (a) to conceal the nature, constitution and extent of the Bank’s lending and (b) to show a false and misleading financial situation as at the ends of the Bank’s accounting years (v) causing and permitting the bank to discount commercial bills when (a) there was no underlying commercial transaction (b) the documents evidencing the supposed underlying transactions were false and (c) the transactions were effected in order to transfer funds to the Bank’s parent company in Tel Aviv. Such particulars would have avoided such terms as “falsely representing” and “to the prejudice” which are imprecise and likely to confuse juries and would have made everyone aware of what the prosecution were alleging” Since Landy, indictments have in general followed the form understood to have been suggested by Lawton LJ in that they gave more detailed particulars. (f) The specificity of the agreement that has to be proved for the purposes of a conspiracy to defraud. 22. Having set out the practice of giving particulars understood to have been derived from Landy in relation to indictments, we turn to the first of the questions which we identified in paragraph 19 - the degree of specificity of the agreement that had to be alleged and proved by the prosecution. 23. It was submitted by Mr Lovell Pank QC on behalf of the appellants that a conspiracy which simply alleged an agreement to take money from victims by making misrepresentations was too vague; similarly an agreement as to the general form of the misrepresentations to be made would be too vague if formulated “by making misrepresentations about the economic health of the company and the interests in it”. It was necessary for the agreement alleged to be more specific. Taking an example from the facts of this case, it would not have been sufficient for them to agree to make misrepresentations about the assets owned by [H] plc; they would have had to agree to make misrepresentations about the rights to the product or process known as [C]. As therefore the agreement had to be specific as the misrepresentations to be made, then it was necessary for the jury to be unanimous that they had agreed to make at least one of those specific misrepresentations. It was no different to the position in Brown where the jury had to be unanimous as to the representation made. 24. However, the essential ingredients of the offence of conspiracy are the agreement to defraud a person of something, as we have set out at paragraphs 17 and18. The offence is quite different to the offence considered in Brown where the ingredient of the offence comprises the making of a specific statement; the appellants were not charged with the offence charged in Brown , but the wider charge of conspiracy to defraud. 25. In Hancock [1996] 2 Cr App R 554, this Court considered this same issue. The indictment charged the defendants with conspiracy to defraud people invited to become agents of a company called STVC by dishonestly and falsely representing a number of matters relating to the company and its intended business which were set out in particulars (i) to (ix) to the indictment; for example, one of the particulars stated “misrepresenting that [STVC] was a successful company, was sound financially, had no bank overdraft, and was ‘cash rich’”. The sole ground of appeal was that the judge had been in error in not directing the jury that they should reach unanimity (or the requisite majority) upon at least one of the particulars in the indictment. In giving the judgment of the Court, Stewart Smith LJ held at page 559: “The question therefore is whether each of the particulars in the count constitute an essential ingredient of the offence charged, such that if any one of the particulars was proved the accused is guilty of the offence. Or as Mr. Farrer Q.C. put it: is there a real risk of different jurors convicting of different offences encompassed within the single count? The answer in our judgment is plainly ‘No’. The essential ingredients of the offence of conspiracy to defraud, or what the Crown had to prove to establish the actus reus of the offence is that each of the accused has entered into an agreement to defraud the agents. It was necessary to prove that there was an agreement to act dishonestly to prejudice the agents and that each of the accused was party to that agreement. Since the case of Landy , in a case where conspiracy to defraud is alleged, the Crown are required to set out sufficient particulars of the offence to enable the defence and the judge to know precisely, and on the face of the indictment itself, the nature of the prosecution case and to stop the prosecution shifting their ground during the course of the case. But simply because particulars of an offence are given does not mean that those particulars are an essential ingredient of the offence. In a case such as this the particulars do no more than specify the nature of the case the prosecution seek to prove and the principal overt acts upon which they rely to invite the jury to infer that there was a dishonest agreement and that a particular defendant was a party to it. We do not accept the submission that the agreement alleged was to represent STVC as a successful company, financially sound with no bank overdraft.., each particular being in effect a separate agreement. We are fortified in our view that this was not a case where a Brown direction was required, because that was the view of all the experienced counsel in the case at trial….” 26. That decision was subsequently followed in R v Fussell and Mendoca [1997] Crim LR 812, where the indictment was in a similar form, without any further analysis of the position. However, the importance of that decision to the argument of the appellants was the commentary in the Criminal Law Review of the late Professor Sir John Smith upon which the appellants’ submission to this court was grounded: “The decision in Hancock , to which the Court refers, seems much more doubtful. There the indictment alleged a conspiracy to defraud by dishonestly making 10 specified representations. It was held that a Brown direction was unnecessary. But if the appellants had been charged with the offences of obtaining property by deception and obtaining services by deception, which was the substance of the allegations, the case would have been indistinguishable from Brown . The Court, however, stated [as set out at paragraph 25 above]. The proposition that the particulars of the offence are not an essential ingredient of it is extraordinary. What is the offence if it does not consist in the particulars? What then if the jury (as distinct from the individual jurors) was not satisfied about any of the 10 specified allegations? If the court was correct in holding that a Brown direction was unnecessary, it follows that they could, nevertheless, properly convict. On what basis? That there were other, unspecified ‘overt acts’? Or (more likely perhaps) that they were satisfied in a general way that the appellants were a dishonest lot, up to no good? Neither basis seems at all satisfactory. First, an accused is entitled to know as precisely as possible what allegations he has to meet and it would be misleading if, having specified in some detail 10 such allegations, the prosecution were to rely on any others. Secondly, it is fundamental that the prosecution must prove its case to the satisfaction of the jury (subject to any majority direction, the whole jury) beyond reasonable doubt. It would be enough that the jury was satisfied as to one allegation, but it should be made clear to them that this, at least, is necessary. It appears that at the trial, all the counsel were agreed that this was not a Brown case. By the time of the appeal defence counsel had changed their minds. It is submitted that the second thoughts were best, but their original opinion “fortified” the Curt of Appeal in their decision” 27. As far as the researches of counsel have gone, no challenge has been made to the correctness of the decision in Hancock, despite the criticisms of the late Professor Sir John Smith; indictments have, as in the present case, in many cases continued to follow the form understood to be required by the decision in Landy. 28. The judge directed the jury, as we have set out at paragraph 11, that they had to be sure that there was an agreement dishonestly to persuade potential shareholders to part with their money by false representing that a certain state of affairs about the company existed which in truth did not. Was that a sufficient agreement to establish a conspiracy? We consider that it was on the facts of this case. One way of approaching the question is to ask was there sufficient certainty for there to be an agreement? We consider that there was sufficient certainty; if the conspirators agreed to make dishonest representations about the company to induce investors to buy shares, that was sufficient to constitute a certain agreement; it was not necessary that the conspirators agreed more specifically on the misrepresentations that were to be made; the precise nature of the representations to be made or made do not, in contrast to the statutory offence considered in Brown, constitute ingredients of the offence of conspiracy to defraud. (g) The agreement set out in the indictment 29. However, it was next contended by Mr Lovell-Pank QC on behalf of the appellants, in an attractive submission, that even if that were so, nonetheless the prosecution had in the indictment in this case set out a more specific agreement and having alleged that more specific agreement; proof of that agreement therefore became an ingredient of the offence on which the jury had to be unanimous; they relied on the decision of this court in Bennett (6 May 1999, 98/02782/Z3). 30. In Bennett , the agreement alleged in the indictment set out three specific stages of involvement by the conspirators: “to defraud computer companies by: i) dishonestly obtaining the account details of credit card holders ii) falsely purporting to be in possession of those details iii) dishonestly using such details to obtain goods and services” As the court observed, the first stage might be done by someone with the opportunity to copy out the numbers on the credit card, though he may not have been a party to the second or third stage which involved the dishonest use of the credit card details so ascertained to obtain goods and services. The judge’s direction to the jury in summing up was not considered by the court to be clear; it might have been understood as directing them that a defendant would be guilty if he knew only one part of the agreement and did not know and agree to the other two parts. In giving the judgment of the Court, Henry LJ said: “As a conspiracy is an agreement, and the parties to that agreement are the conspirators, so, with a criminal conspiracy the indictment must define the conspiracy and the summing-up must spell out the agreement alleged. Here as we have seen the agreement was particularised in the indictment as including the three stage of involvement set out above. 31. After setting out the direction to the jury, the Court concluded: “We feel that we cannot be sure that the jury after this confusing direction would have understood that to be convicted a conspirator must have agreed to all three stages. We fear that the jury would or might have concluded that the agreement to take part in the first phase only would have been sufficient.” 32. Since that decision the editors of Archbold have pointed out (see paragraph 34-44 of 2004 edition): “Care should be taken to differentiate between particulars which define the agreement which the Crown seek to prove, as in Bennett (… ) and those which set out the overt acts from which the Crown invite the jury to infer the existence of an agreement. Some counsel have begun to limit the particulars to the terms of the agreement to be proved, followed by voluntary particulars which set out the principal overt acts relied upon. This practice, it is submitted, has the advantage of clarity and precision” The last two sentences were added in the 2004 edition. 33. The question for us to determine is what was the agreement specified in the indictment preferred against these appellants. In doing so, we must have regard to the distinction between the ingredients of the offence and the particulars which give reasonable information as to the nature of the charge in this form of indictment as required by the decision in Landy . As Lawton LJ pointed out the purpose of the particulars was to set out the nature of the case and to prevent the prosecution shifting its ground. In Hancock, it was made clear that the particulars given in an indictment in the form in common use did not mean that those particulars became ingredients of the offence. The purpose of giving particulars is also made clear in the Indictments Act and the Indictment Rules: s.3 (1) of the Indictments Act 1915 provides that: “Every indictment shall contain, and shall be sufficient, if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge” Rule 5 (1) of the Indictment Rules 1971 provides: “Subject only to the provisions of Rule 6 of these Rules, every indictment shall be sufficient if it contains a statement of the specific offence with which the accused person is charged describing the offence shortly, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge” Rule 6 provides: “Where the specific offence with which an accused person is charged in an indictment is one created by or under an enactment, then (without prejudice to the generality of Rule 5 of these Rules) (a) ….. (b) the particulars shall disclose the essential elements of the offence….” 34. Bearing in mind the clear distinction which must be drawn between the ingredients of the offence and the particulars, we are satisfied that the agreement alleged in this indictment was that spelt out by the judge in his summing up. It was an agreement for a single specified purpose – to defraud potential shareholders to part with their money by making representations about the company that a certain state of affairs existed whereas in truth it did not. Particulars (a) – (l) were given only to provide reasonable information as to the nature of the charge and as to the principal matters upon which the prosecution would invite the jury to infer that there was an agreement to defraud and that each of the defendants was party to it; the particulars did not purport to define the agreement. The indictment and nature of the conspiracy alleged were quite different to the indictment and the nature of the conspiracy in Bennett where the indictment specified the agreement as having three particular stages and the involvement of the conspirators was referable to those stages. 35. We therefore see no reason to question the approach taken in Hancock nor, given the way in which this form of indictment has developed, to treat the particulars in any other way. We are mindful of the very forceful criticisms of the late Professor Sir John Smith. Although any criticism by such an authoritative commentator on the criminal law is entitled to the highest respect, we consider that his criticism of the decision in Hancock was misplaced; the principle in Brown is only applicable to the ingredients. The ingredients of the offence of conspiracy to defraud are different for the reasons given to the ingredients of the offence considered in Brown and the particulars in this indictment did not delineate one of the principal ingredients of the offence of conspiracy to defraud – the agreement . The rationale for the retention of the offence of conspiracy to defraud is that the criminality aimed at is the agreement, not the carrying out of the agreement; if a sufficiently certain agreement is made to defraud, that is the criminal conduct encompassed within the offence and no more need be proved; provided there is that certainty in the agreement, it matters not how the participants individually intended to go about or actually went about defrauding the intended victims of their money. 36. However, for the future, we agree with the editors of Archbold that much greater care needs to be taken in framing the indictment and especially in the definition of the agreement alleged. There must be a clear distinction between the agreement alleged and the reasonable information given in respect of it. If the form of the indictment set out by Lawton LJ is carefully considered it does not provide a precedent for the form of indictment used in Hancock or this case. In our view therefore, the indictment should identify the agreement alleged with the specificity necessary in the circumstances of each case; if the agreement alleged is complex, then details of that may be needed and those details will as in Bennett form part of what must be proved. If this course is followed, it should then be clear what the prosecution must prove and the matters on which the jury must be unanimous: see Bennett. Further particulars should be given where it is necessary for the defendants to have further general information as to the nature of the charge and for the other purposes identified by Lawton LJ in Landy . Such further particulars form no part of the ingredients of the offence and on these the jury do not have to be unanimous, as this court correctly decided in Hancock. 37. We are, for these reasons, therefore satisfied that there was no misdirection by the judge and therefore the sole ground on which leave to appeal was given fails. Conclusion 38. For the reasons set out in the Appendix to this judgment [not released for publication] we refuse the renewed application for leave to appeal on all the other grounds advanced. We have considered the overall safety of the convictions of each of the appellants. We are satisfied that there was strong evidence on which each of the appellants were convicted of a serious fraud; we are satisfied that the convictions are safe. We therefore dismiss the appeal. 39. We were dismayed that the trial of what was a relatively simple fraud took 133 days; legal submissions at the outset occupied 24 days; the prosecution case took 64 days and the defence case 18; the balance was occupied in submissions, speeches, summing up and some days lost though illness. We are very grateful to counsel for their written observations as to why the case took so long. We have noted, with concern, that the legal arguments at the outset of the trial lasted 24 days; it is also a matter of regret that the position regarding the legal and commercial background to the formation of the company, its running and the proposed flotation were not agreed. 40. We cannot, however, on the materials before us determine the responsibility for the length of this trial or the time that was occupied in legal argument. However we must point out that this case is yet another example of a case which has taken far, far too long for what was a relatively simple fraud. It underlines yet again the urgent need for a different approach by the lawyers and advocates responsible for the preparation and conduct of this type of case and for adherence to the matters relating to the conduct of a trial summarised by the Lord Chief Justice in his Foreword to the Criminal Case Management Framework (July 2004). 41. There is one further point. The requisite forms in relation to the means of K and G for the purposes of representation orders had not at the time of the hearing of the appeal been lodged. We will consider such representations as may be advanced for the failure and the Orders as to defence costs which we should make when this judgment is handed down.

2004_11_02-360.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/2685/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/2685

80f61f37e82463881185c9ef951bf83c87d3b80f9b92d4699fab53454416df54

[2008] EWCA Crim 1524

EWCA_Crim_1524

supreme_court

Neutral Citation Number: [2008] EWCA Crim 1524 Case No: 2008/01184/C5 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/07/2008 Before : LORD JUSTICE MAURICE KAY MR JUSTICE PLENDER and THE RECORDER OF NOTTINGHAM (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Regina - v - B - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Joh

Neutral Citation Number: [2008] EWCA Crim 1524 Case No: 2008/01184/C5 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/07/2008 Before : LORD JUSTICE MAURICE KAY MR JUSTICE PLENDER and THE RECORDER OF NOTTINGHAM (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Regina - v - B - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr John Alban Williams for the Defence Mr Tim Naik for the Crown Hearing date : 26 June 2008 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Maurice Kay : 1. We have given leave for this appeal by the prosecution pursuant to section 58 of the Criminal Justice Act 2003 . On 21 February 2008 in the Crown Court at Isleworth, B was to be tried for offences of kidnapping and robbery. The evidence against her was essentially identification of her by the victim in the course of a video identification procedure. At the outset of the trial, counsel on behalf of B made an application to exclude that evidence pursuant to section 78 of the Police and Criminal Evidence Act 1984 . Having heard submissions, the judge ruled that the evidence be so excluded. There being no other evidence upon which the prosecution could seek to prove its case, the ruling was a “terminating ruling”. Thereafter the procedure under section 58 was properly followed. 2. The offences of kidnapping and robbery occurred on 16 May 2007. Charan Singh was walking along Southall Broadway when he was approached by a female who asked for the time. He crossed the road to a better lit area and told her. She then asked if he wanted to buy a mobile phone. At this stage they were approaching a jeep-like vehicle which was parked on a corner. Mr Singh declined the offer but was suddenly grabbed by two men who, together with the female, forced him into the jeep which was driven off by one of the men. The female sat next to Mr Singh in the rear of the vehicle. She had an arm around his throat and she gave directions to the driver. Mr Singh was searched by the other man and various items were taken from him including £2,000 in cash, a mobile phone and a wallet containing bank cards. A gold ring was forcibly removed from his finger. The female then ordered him out of the vehicle. A member of the public, who had seen Mr Singh being dragged into the vehicle, made a 999 call. Police officers went to B’s house. Outside the house was a blue 4x4 estate which belonged to B. Arrangements were made for her to attend Southall Police Station on 22 May. When she attended on that day she was arrested and interviewed about the offences but she denied involvement and said that, at the material time, she had been in the house of a neighbour. On the following day, 23 May, Mr Singh attended Acton Police Station where he positively identified B in a video identification procedure. 3. The identification procedure was carried out by Inspector Winnett who completed a standard form document as the procedure progressed. Mr Singh was assisted by an interpreter. No complaint is made about the general arrangements. We have had the advantage of seeing a video recording of what transpired. 4. At the outset the Inspector said to Mr Singh: “You have been asked here today to see if you can identify one of the persons you saw on Wednesday 16 May 2007 at 10.20pm … who assaulted and robbed you.” He then added (reading from the proforma): “In a moment I am going to show you a film of nine people. I want to make it clear to you that the person you saw may or may not be on the film. You must view the film at least twice, but may see all or any part of it again if you so wish. You may also have an image ‘frozen’ to study. When you have finished I will ask you some questions. If you cannot make a positive identification then you should say so. Do you understand?” Mr Singh confirmed that he understood. 5. After Mr Singh had viewed the nine people once and prior to the second viewing, he volunteered: “Its number one.” 6. Number one was B. There was a brief exchange involving Mr Singh, the Inspector and the interpreter which took place whilst the early part of the second showing was underway. The Inspector told Mr Singh that he must watch the film a second time, expressing himself in similar terms to those used prior to the first showing. After the second showing, the Inspector asked Mr Singh whether he wanted to see the film or any individual images again. Mr Singh replied that he wanted to see number one. When that was replayed and the Inspector asked again whether Mr Singh wanted to see the film or any individual images, Mr Singh replied: “No. I suspect number one and my suspicions are one hundred per cent correct.” 7. The formalities required by the proforma were then completed. 8. Video identification procedures are covered by Annex A to Code D, Code of Practice for the Identification of Persons by Police Officers , issued pursuant to the Police and Criminal Evidence Act 1984 . Paragraph D11 includes the following: “Furthermore, it should be pointed out to the witness that there is no limit on how many times they can view the whole set of images or any part of them. However they should be asked not to make any decision as to whether the person they saw is on the set of images until they have seen the whole set at least twice.” 9. Paragraph D12 then provides that once the witness has seen the whole set of images at least twice and has indicated that he does not wish to view them again, he “shall be asked to say whether the individual they saw in person on a specified earlier occasion has been shown and, if so, to identify them by number of the image”. It is apparent from our description of the procedure which took place in the present case that, notwithstanding the final sentence of paragraph D11, Mr Singh was not asked not to make any decision as to whether the person he saw was on the set of images until after he had seen the whole set at least twice. The Inspector was working from the proforma and, unfortunately, the proforma did not take cognisance of the final sentence of paragraph D11. It is common ground, therefore, that there was a breach of paragraph D11. 10. Section 78(1) of the Police and Criminal Evidence Act provides: “In any proceedings the Court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the Court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the Court ought not to admit it.” 11. By his ruling, the judge excluded the identification evidence pursuant to section 78 and by reference to the breach of the Code. 12. For some reason, the ruling of the judge was given by reference not to paragraph D11 of the Code but to paragraph D16, which applies to identification parades as opposed to video identification. The two provisions are expressed in different terms. Whereas D11 says that witnesses at a video identification “ should be asked not to make any decision … until they have seen the whole set at least twice”, D16 states that the witness “ must also be told that they should not make any decision about whether the person they saw is on the identification parade until after they have looked at each member at least twice.” 13. We have not been able to discover any good reason for this difference in language. However, it is a possible explanation for the hybrid wording of the proforma used by the Metropolitan Police in this case: “You must view the film at least twice, but may see all or any part of it again if you so wish … When you have finished I will ask you some questions.” 14. What troubled the judge is expressed in this way in his ruling: “The true answer, it seems to me, to the question whether the witness may have given a different answer had he been properly instructed is that we simply cannot ever know. The fact is, though, that there is a possibility that he might have given a different answer had he been properly instructed.” 15. The judge further considered that any cross-examination of the witness directed to that question would be pointless because “almost inevitably, looking at the matter realistically, the so-called identifying witness would say that which amounted to a confirmation of this original identification”. For these reasons “I withdraw or do not allow that evidence to be led because of the breach of Code D16 under the Police and Criminal Evidence Act.” 16. He considered it to be a matter of incurable unfairness in the context of section 78 . 17. On this appeal, three points are common ground. First , a breach of the Code will not necessarily lead to the exclusion of evidence pursuant to section 78 . Counsel are content to accept the proposition that it is only a “significant and substantial” breach that may lead to that conclusion. Secondly , as Hobhouse LJ said in Popat [1998] 2 C App R 208: “… it is always necessary to have regard to the purposes of Code D even in interpreting and applying the Code. The overall purpose is one of adopting fair identification practices and adducing reliable identification evidence. Where insufficient regard is had to these purposes, the discretion to exclude evidence under section 78 is likely to be exercised and convictions will be liable to be treated as unsafe.” 18. Thirdly , whether an appeal is brought by the prosecution or by the defence, this Court will not lightly interfere with a trial judge’s decision under section 78 . It will only do so on Wednesbury grounds. 19. It seems to us that the judge was right to consider whether the consequences of the breach could be cured and any unfairness in the proceedings alleviated by the trial process. The submission of the prosecution at trial and in this Court is that, to put it at its lowest, there was scope for such cure and alleviation and that it was wrong for the judge to reach the contrary conclusion and to do so on the basis that Mr Singh might have given a different answer to the Inspector if he had been given the full instruction. 20. We accept this submission. We consider that the judge fell into error by concentrating on that point and the assumed answer to any question in cross-examination about it. When one speaks of a problem being cured or alleviated within the trial process, one is not simply referring to the possibility, however remote, that a controversial witness will contradict his previous identification or account. There are other ingredients of the process to be considered. If, having heard all the prosecution evidence, the judge concludes that a defence submission on the basis of Galbraith and Turnbull should succeed, he will stop the case at that stage. If he declines to do so, he will be obliged to give the jury cautionary directions drawing attention to shortcomings in the identification evidence, including reference to any breaches of the Code. By that stage, the defendant will also have had the opportunity to give and to call evidence and counsel will have been able to address the jury, again inviting consideration of the significance of breaches of the Code. This is not to say that a judge can never terminate a case in limine in the way that the judge did in this case. However, he will fall into legal error if he does so without considering the full potential of the trial process to enable fairness and justice to be assured. 21. One of the matters which a judge will have to consider is the existence or otherwise of other evidence which may be said to support the disputed identification. There is some, albeit not overwhelming, evidence in this case. In his statement, Mr Singh described the vehicle as a “sky blue colour car … not a saloon … a jeep type of vehicle … a very old model … a 4 door vehicle”. When the defendant was arrested after the robbery, there was what the police described as a blue Vauxhall Frontera, registration number L847 NGS, parked outside her home. In interview, she admitted that it was effectively hers and described some recent transactions in which it had changed hands for some £300-£400. Although Mr Alban-Williams tells us that its colour, as described in the registration document, is green rather than blue, that is precisely the sort of issue that can be illuminated by evidence and cross-examination. We mention the evidence about the vehicle because the judge, in our view wrongly, failed to consider it. 22. We also understand that the judge declined to view the recording of the video identification procedure. In his skeleton argument Mr Alban-Williams submitted that it was essential that we should view it because it showed the demeanour of the witness to have been “impatient, petulant even”. We have viewed it. None of the three members of the Court agrees with that description. There is nothing in the material before us that causes us to be critical of the witness. We acknowledge that his identification of the defendant arose out of difficult circumstances but this, it seems to us, all goes to weight rather than admissibility and it is a matter for resolution at trial and not by us. 23. For all these reasons, we consider that the judge did fall into error and ought not to have excluded the identification when and for the reason that he did. We allow the appeal, reverse his decision and return the case to Isleworth Crown Court for the trial to be resumed. Nothing we have said should be taken as encouragement to or discouragement from the making of a defence submission, if so advised, at the conclusion of the prosecution case.

2008_07_17-1591.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/1524/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/1524

031eca5cf9535fb94f6d5148767f4ad3ac69c1d1125c0eb0c23e035560625914

[2016] EWCA Crim 18

EWCA_Crim_18

crown_court

Neutral Citation Number: [2016] EWCA Crim 18 Case No: 201502409 B4 ; 201504393 C2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT LEWES His Honour Judge Tain (T20117111) AND ON APPEAL FROM THE CROWN COURT AT ISLEWORTH Miss Recorder Glynn Q.C. (T20070799) Royal Courts of Justice Strand, London, WC2A 2LL Date: 26/02/2016 Before : THE PRESIDENT OF THE QUEEN’S BENCH DIVISION (SIR BRIAN LEVESON) MR JUSTICE GLOBE and MRS JUSTICE CHEEMA-GRUBB - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2016] EWCA Crim 18 Case No: 201502409 B4 ; 201504393 C2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT LEWES His Honour Judge Tain (T20117111) AND ON APPEAL FROM THE CROWN COURT AT ISLEWORTH Miss Recorder Glynn Q.C. (T20070799) Royal Courts of Justice Strand, London, WC2A 2LL Date: 26/02/2016 Before : THE PRESIDENT OF THE QUEEN’S BENCH DIVISION (SIR BRIAN LEVESON) MR JUSTICE GLOBE and MRS JUSTICE CHEEMA-GRUBB - - - - - - - - - - - - - - - - - - - - - Between : YY Appellant - and - THE QUEEN Respondent And Between: AYAD MOHAMMED NORI Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Richard Thomas for the Appellant, YY Taimour Lay for the Appellant Ayad Nori Benjamin Douglas-Jones for the Respondent Hearing date : 3 February 2016 - - - - - - - - - - - - - - - - - - - - - Judgment Sir Brian Leveson P : 1. Once again, it is necessary to analyse the safety of convictions arising from prosecutions for passport and document related offences which lead to guilty pleas by those who, at the time or subsequently, seek asylum or other humanitarian protection. Thus, on 11 September 2008, in the Crown Court at Isleworth before Miss Recorder Glynn Q.C., Ayad Nori pleaded guilty to entering the United Kingdom without a passport contrary to s. 2(1) and (9) of the Asylum and Immigration (Treatment of Claimants) Act 2004. He was sentenced to 12 weeks imprisonment suspended for 12 months with a residence requirement. Similarly, on 26 April 2011, in the Crown Court at Lewes before His Honour Judge Tain, YY (to whom we grant anonymity) pleaded guilty to the offence of possession of false identity documents without reasonable excuse contrary to s. 6 of the Identity Documents Act 2010. He was sentenced to 6 months imprisonment. 2. Neither sought to appeal to the Court of Appeal (Criminal Division) either in time or thereafter; seven years have passed since Nori’s conviction and over four years since YY’s conviction. Instead, both applied to the Criminal Cases Review Commission (“CCRC”) and both convictions have been referred to this court pursuant to the provisions of s. 9 of the Criminal Appeal Act 1995: we return to this aspect of the cases below. In any event, in both cases, it is contended that the men could have relied upon statutory defences of which they were unaware and not appropriately advised. We shall turn to the individual facts of the appeals having first rehearsed the law in relation to appeals following unequivocal pleas of guilty. 3. In R v Mohamed Abdalla, R v V(M), R v Mohamed (Rahma Abukar), R v Nofallah [2011] 1 Cr App R 35 ; [2010] EWCA Crim 2400 (" R v MA" ), this court held that there is an obligation on those representing defendants charged with an offences under the Identity Cards Act 2006 (now to be found in the Identity Documents Act 2010) to advise them of the existence of a possible defence based not on any provision in that Act but on s. 31 of the Immigration and Asylum Act 1999; similar issues arise in relation to the offences and defences contained in s. 2 of the Asylum and Immigration (Treatment of Claimants) Act 2004. 4. In relation to the former legislation, the court did so in the following terms (at [10]-[13] and [56]): "10. The upshot […] is that it is open to anyone charged with an offence under s.25(1) of the 2006 Act to adduce sufficient material to raise an issue that he or she is a refugee and entitled to the protection of s.31 of the 1999 Act whereupon the burden of disproving that defence will fall upon the prosecution: see R. v Makuwa [2006] EWCA Crim 175 ; [2006] 2 Cr. App. R. 11 (p.184). It is thus critical that those advising defendants charged with such an offence make clear the parameters of the defence (including the limitations and potential difficulties) so that the defendant can make an informed choice whether or not to seek to advance it. 11. There is no doubt that this court can entertain an application for leave to appeal against conviction on the grounds that a tendered guilty plea was a nullity. The limited basis of that jurisdiction was explained in R. v Evans [2009] EWCA Crim 2243 ) by Thomas L.J. in these terms (at [52]): "The applicable general principle is that such a writ will be granted where the proceedings are a nullity, that is to say where a purported trial 'is actually no trial at all' (see the opinion of Lord Atkinson in Crane v DPP [1921] 2 AC 299 at 330) or where there has been 'some irregularity in procedure which prevents the trial ever having been validly commenced' (see the opinion of Lord Diplock in Rose (1982) 75 Cr App R 322 at 336." 12. The test for a plea to be held a nullity was elaborated (per Scott Baker L.J. in R. v Saik [2004] EWCA Crim 2936 ) as requiring the facts to be so strong as to demonstrate that there is no true acknowledgment of guilt with the advice going to the heart of the plea so that it was not "a free plea". It is, however, important not to water down the underlying concept of the jurisdiction so as to bring nullity into play purely on the basis of advice alleged to be wrong. For those circumstances, there remains a basis on which this court can intervene which is firmly grounded in the safety of the conviction. Thus, in R. v Lee (Bruce) (1984) 79 Cr. App. R. 108, the approach was articulated by Ackner L.J. in this way at 113: "The fact that Lee was fit to plead; knew what he was doing; intended to make the pleas he did; pleaded guilty without equivocation after receiving expert advice; although these factors highly relevant to whether the convictions, or any of them, were either unsafe or unsatisfactory, cannot of themselves deprive the court of the jurisdiction to hear the applications." 13. This alternative approach was adopted in R. v Boal (1992) 95 Cr. App. R. 272 which concerned the failure to challenge what was held to be the erroneous assumption that an assistant general manager at a bookshop, responsible for the shop during a week in which the manager was absent, was a manager within s.23(1) of the Fire Precautions Act 1971 . In quashing the conviction that followed guilty pleas based on that assumption (observing that the appellant "was deprived of what was in all likelihood a good defence in law"), Simon Brown L.J. also made clear the additional hurdle that had to be overcome when he said at 278: "This decision must not be taken as a licence to appeal by anyone who discovers that following conviction (still less where there has been a plea of guilty) some possible line of defence has been overlooked. Only most exceptionally will this Court be prepared to intervene in such a situation. Only, in short, where it believes the defence would quite probably have succeeded and concludes, therefore, that a clear injustice has been done. That is this case. It will not happen often." […] 56. These cases are characterised by allegations that those advising illegal entrants to this country have simply failed to ensure that the scope of the potential defences to an allegation of breach of s.25 of the 2006 Act have fully been explored. If the circumstances and instructions generate the possibility of mounting a defence under s.31 of the 1999 Act, there is simply no excuse for a failure to do so and, at the same time, properly to note both the instructions received and the advice given. If these steps are taken, cases such as the four with which the court has just dealt will not recur and considerable public expense (both in the imprisonment of those convicted and in the pursuit of an appeal which will involve evidence and waiver of privilege) will be avoided." 5. In R v Ali Reza Sadighpour [2012] EWCA Crim 2669 , the Court of Appeal further held that if the appellant’s case has reached the stage of the First-tier Tribunal (Immigration and Asylum Chamber) and if the latter’s decision is available, it is appropriate for the Court of Appeal to assess the prospects of an asylum defence succeeding by reference to the tribunal’s findings. It did so in these terms (at [35]-[36]): "35. We are therefore satisfied that it is appropriate to have regard to the Tribunal's decision in assessing the Appellant's prospects under Section 31 on any retrial. After all, the Tribunal is a properly constituted judicial body. Its members have particular specialist experience in dealing with matters pertaining to immigration and asylum. The Appellant was able to deploy his full arguments and call relevant witnesses. The evidence was fully tested. Both parties made their respective submissions, and a fully reasoned judgment was reached. 36. As already stated, paragraph 31(7) provides if the Secretary of State has refused to grant a claim for asylum made by a person who claims that he has a defence under subsection (1), that person is taken not to be a refugee unless he shows that he is." 6. Distilling these passages from R v MA and Sadighpour , in R v Mateta [2013] EWCA Crim 1372 , [2014] 1 WLR 1516 , [2013] 2 Cr App R 35 , the court summarised the main elements of an accused’s entitlement to advice on the s. 31 defence as follows (at [24]): “i) There is an obligation on those representing defendants charged with an offence of possession of an identity document with improper intention to advise them of the existence of a possible section 31 defence if the circumstances and instructions generate the possibility of mounting this defence, and they should explain its parameters ( R v MA [10]). ii) The advisers should properly note the instructions received and the advice given ( R v MA [56]). iii) If an accused's representatives failed to advise him about the availability of this defence, on an appeal to the Court of Appeal Criminal Division the court will assess whether the defence would "quite probably" have succeeded ( R v MA [13]). iv) It is appropriate for the Court of Appeal to assess the prospects of an asylum defence succeeding by reference to the findings of the First Tier Tribunal (Immigration and Asylum Chamber), if available ( Sadighpour ) [35]).” 7. These principles are equally applicable to advice on whether a defendant charged with an offence under section 2 of the 2004 Act also has a defence under that section; the complication in relation to s. 31 was that the defence was not identified in the statute which created the defence and, on occasion, had been overlooked. YY 8. This appellant, who is an Iranian national, presented himself to an immigration desk at Gatwick airport on 11 February 2011, together with an Israeli passport in the name of Levi Samir. When the immigration officer challenged him as to whether that passport was genuine, he admitted that it was false, that he was Iranian, and that he wished to seek asylum in the UK. He was arrested. 9. At his screening interview the following day, he told the interviewing immigration officers of his true identity and said that he had fled Iran because his life was in danger because he had committed adultery. He had fled from Iran to Iraq on his own passport and had used an agent who directed him and controlled his movements and documentation. He had travelled from Iraq to Turkey and then flew to a destination that he did not know from where he was collected and transported by road to the airport (in France) from which he flew to the United Kingdom. 10. On 13 February 2011, the appellant was interviewed by police in the presence of an interpreter and a duty solicitor: he responded to all questions by making no comment. He did so, on advice, on the basis that it would not assist his asylum claim to provide the police with a different account to that advanced in the screening interview. The duty solicitor has stated (without contradiction by Mr Richard Thomas who now appears for the appellant), that his instructions were that he left Iran solely because he had committed adultery and feared that he would come to harm. He also admitted to his solicitors that he had lied to the authorities about his movements and circumstances. 11. The appellant was initially charged with an offence of possession of a false passport with intent contrary to s. 4 of the Identity Documents Act 2010 which required proof of improper intention to use the passport to establish personal information about himself. Given his behaviour at passport control (admitting his true identity), the solicitor advised that he should successfully maintain a defence to that charge. The solicitor was, however, conscious (correctly) that he could not maintain an arguable defence under s. 31 of the Immigration and Asylum Act 1981 on the basis that he was not a refugee. On 25 February 2011, the appellant appeared before the Crown Court but did not enter a plea. There then followed correspondence between the solicitors and the Crown Prosecution Service (“CPS”) ventilating this issue. 12. On 6 April 2011, the appellant was re-interviewed by immigration officers by way of an asylum interview. He stated that he married a girlfriend of his choice and that they had been forced apart by her family and had ultimately divorced. She had re-married but they had met again and been involved in an affair. Her husband had discovered this and he had made a complaint causing the authorities to search for him. During a search, the authorities had found a leaflet about conversion from Islam to Christianity. These factors taken together, the appellant believed that his life was in real danger. 13. On 26 April 2011, the appellant appeared before the Crown Court at Lewes sitting in Brighton. Prior to the hearing, submissions had successfully been made to the prosecutor that he did not have an improper intent to use the passport as would be necessary for an offence under s. 4. The result was that the indictment was amended to add the lesser count of possession of a false passport without reasonable excuse contrary to s. 6 of the 2010 Act. The solicitor explains: “That was the case plan explained to [YY] at the preliminary hearing with the help of an interpreter, and although I saw him before the hearing without an interpreter, it was not new ground and I was completely satisfied that [YY] understood his position.” 14. The appellant then pleaded guilty to that offence. The solicitor went on to make it clear that at no time during the prosecution did his client mention Christianity and his sur place conversion after its conclusion could not have a bearing on the conduct of the case. With an interpreter after the hearing, neither doubt nor misgiving was expressed about either the appellant’s representation or the outcome of the case. 15. Thereafter, in a further asylum interview on 2 June 2011, the appellant restated he would have problems if he returned to Iran and would be executed for committing adultery (his family had received a court summons in Iran). He added that the Iranian authorities had found material on converting from Islam to Christianity and added that he had wished to convert to Christianity before he left Iran. The authorities had also found CDs containing anti-government material, including in regard to a demonstration held on 29 December 2009. The material was discovered in what now totalled five separate searches of the appellant’s family home. In his last interview on 25 April 2013, the appellant stated that he had been introduced to Christianity by an American neighbour in Iran. However, it appears from the asylum decision made by the Secretary of State for the Home Department (“SSHD”) that he had not yet contacted the local priest. The appellant was granted asylum by the home office on 7 May 2013. 16. Therefore, irrespective of whether the appellant had in fact considered converting to Christianity while in Iran and, if so, whether this amounted to a reason for his persecution, the evidence shows that at no stage during the criminal proceedings did the appellant give instructions to this effect to the solicitors representing him. The criminal case proceeded on the basis that he fled Iran because he had committed adultery. 17. The difficulty with that proposition is contained within ME Iran CG [2003] UKIAT 166 , in which the Immigration Appeal Tribunal held that Iranian male adulterers were not members of a “particular social group” for the purpose of the Refugee Convention. In that case, the appellant had had an adulterous relationship with a woman and argued, for that reason, he was part of a particular social group. However, the Immigration Appeal Tribunal reasoned (at [11]): “… the principal factors relied upon to identify him as a particular social group amounted to no more than those which defined his persecution. He was persecuted because he was an adulterer who had transgressed Iranian law. The argument for a particular social group in this case is wholly circular.” 18. In the light of the authorities, notwithstanding the reason proffered by the CCRC for the reference to the court, for good reason, it is not argued that this defence was not considered or that there was the possibility of mounting a defence under s. 31 of the 1999 Act. Rather, it is submitted that there was inadequate advice as to the prospect of his mounting a reasonable excuse pursuant to s. 6 of the 2010 Act on the basis that evidence might be available as to the risks faced by male adulterers in Iran. As to that defence, the solicitor accepts that explicit advice on this issue was not provided but goes on: “Given that he was not in law a refugee and given that he knew full well that the passport he had travelled on through many safe states in Europe was not genuine, he had raised no good cause for having it in his possession and no such advice was required.” 19. It is clear that the appellant’s solicitor was familiar with the law in this area and, reverting to the observations of Simon Brown LJ in Boal , we are far from clear that “some possible line of defence” was overlooked. Even if it was, however, for the reasons advanced by his solicitor in relation to his possession of the passport in this country, we are not able to conclude that the defence would quite probably have succeeded let alone that a clear injustice has been done. 20. For good reason, the ground on which this case was referred by the CCRC has not been pursued and, in the circumstances, we decline to give leave to argue that the prospects of succeeding in a defence based on s. 6 of the 2010 Act (which the CCRC did not consider). This appeal, therefore, is dismissed. Ayad Nori 21. On 20 October 2007, this appellant arrived at Heathrow airport with wife and two daughters and promptly told an immigration officer that that he did not have a passport. He identified himself as an Iraqi national and claimed asylum. 22. In a screening interview that afternoon, the appellant stated that he had left Iraq on 15 September 2007, because his life was in danger. He travelled by car to Syria with his family where he remained until 1 or 5 October 2007, when they flew to Ankara, Turkey; for this journey, the appellant and his family used their genuine Iraqi passports although he explained that he was required to hand over these passports to the agent when they arrived in Ankara. The family then stayed in a flat in Turkey until they were taken by car to another flat some five or six hours away (which may or may not have been in Turkey). He explained that he did not claim asylum in Turkey because Turkey does not accept Iraqi asylum seekers and he had agreed with the agent that they would be brought to the UK. The appellant further explained that the family flew to the UK on passports given to them by the agent saying that he did not know whether they were the family’s genuine Iraqi passports or false passports: they were taken by the agent after check-in and were not in the family’s possession on landing at Heathrow. 23. That evening, the Chief Immigration Officer on duty considered the appellant’s interview, particularly with regard to the suspected commission by him of an offence contrary to s. 2(1) of the 2004 Act. He decided that the appellant did not have a “reasonable excuse” within the meaning of s. 2(4)(c) of the 2004 Act for presenting himself at Passport Control without a passport. The next day, on 21 October 2007, the appellant was arrested and was interviewed under caution when he repeated that his genuine passport had been seized by the agent, who had commanded “don’t ask questions. [D]o as I tell you”. He also repeated that the agent had taken back the passports he had handed the appellant and his family before boarding. 24. Following the interview, the appellant was charged with an offence contrary to s. 2(1) of the 2004 Act. Later that same evening, the Chief Immigration Officer on duty further interviewed the appellant under caution through an interpreter. The main thrust of what the appellant said was again that the agent would not have helped the family if they had not handed back to him the passports, the agent instructing the appellant to “obey” him. Further, returning to Iraq would mean death for him and his family at the hands of the Almehdi Army. 25. On 11 December 2007, the appellant was interviewed by the Home Office in connection with his asylum claim. This claim was rejected by the Home Office on 4 January 2008: significant aspects of the appellant’s evidence were rejected on the ground that they lacked plausibility, were uncorroborated or contradicted by the evidence of the appellant’s wife. The appellant was instead granted humanitarian protection on the basis that he would face a real risk of suffering serious harm if returned from the UK. 26. In regard to the criminal proceedings, on 2 January 2008, there was a plea and case management hearing at Isleworth Crown Court; on 20 May 2008 (after the appellant’s solicitors had invited the CPS to review to discontinue the prosecution on public interest grounds), the case was listed for mention and it was then ordered that, by 6 June 2008, a defence statement be lodged. There was thus ample time for instructions to be taken. In the event, the defence statement read: “A. The nature of the accused defence in relation to the Count: The accused did not have an immigration document because the agent who facilitated his passage to the UK took the passport from him under duress. B. The accused takes issue with the prosecution in relation to the following matters: The accused vehemently denies the allegations against him. The agent forced him to give up his passport and he had no choice but to give up his travel documents. C. The reason why the accused takes issue with the prosecution about this matter is that the allegation is untrue.” 27. On 11 September 2008, while represented by the same barrister who had appeared for him at the initial arraignment, the appellant pleaded guilty and sentence was adjourned for a pre-sentence report. The writer of the report recorded that the appellant had said that he had used his genuine Iraqi passport to fly from Turkey to the UK and then handed that passport over to the agent whom he had paid to arrange the journey because he was frightened. The report went on: “He could not explain why, if that was the case, he did not use it and purchase his own air tickets, once in Syria, as opposed to paying another an extortionate amount. During his interview, I was not totally convinced by Mr Nori’s explanation with regards to events surrounding his arrival in the UK. I am of the view that the [Appellant] was fully aware of the consequences of entering the UK without a passport.” 28. The appellant said that he did not believe that he had told the author of the report that which was reported, the problem probably arising as an issue of communication and the CCRC expresses itself satisfied that the apparent inconsistency did not detract from the credibility of his account and that it would have been unreasonable to have expected the appellant not to comply with the agent’s instructions. Without expressing our conclusion with the same conviction (on the basis that we have not heard evidence although, of course, neither had the CCRC), we recognise that a jury might have accepted that factual analysis. 29. At the centre of this case is the fact that the appellant pleaded guilty. It is not, perhaps, surprising that seven years later, the barrister has no recollection of the case and was unable to find his own records (only data stored on the solicitors’ computer being available). Similarly, the CCRC record: “Mr Nori does not recall what advice he was given by his representatives at the police station and the Magistrates’ Court. When asked about the advice afforded to him during the Crown Court proceedings, [he] was initially reticent about giving information because he was concerned about “getting people into trouble”. He subsequently confirmed that he was advised to plead guilty because he had, in fact, entered the UK without a passport …. Mr Nori is unable to recall whether he was ever advised of the statutory defence i.e. whether he had a reasonable excuse for not having his Iraqi passport in his possession when he arrived in the UK.” 30. In the light of the defence statement, the CCRC concluded that it was reasonable to conclude that the defence advanced was one of duress and that if the appellant had been properly advised of the statutory defence and of what they describe as the “enhanced credibility” of the fact of his being granted humanitarian protection, he would not have pleaded guilty. On that basis, it is said that there is a real possibility that this court will conclude that the defence would ‘quite probably’ have succeeded and that a clear injustice has been done. 31. In fact, Mr Taimour Lay on behalf of this appellant, goes further. He submits that the grant of humanitarian protection strengthened his account that he had fled to the UK in fear of his life and had good cause to follow the agent’s instructions in using and handing back a passport. That submission is based on the argument that to have declined to do so would have been to risk safe passage for himself and his family. 32. Mr Douglas-Jones for the Crown argues that this submission is flawed. The offence is directed both to asylum seekers and genuine refugees as well as those intending to enter illegally: see the analysis in Weng and Wang [2006] 1 Cr App R (S) 97 [7-8]. He recognised that the appellant could have sought to avail himself of the defence under s. 2(4)(c) of the Act but points to the fact that para. 2 of the defence statement (“he had no choice but to give up the travel documents”) was not limited by the earlier reference to duress and might suggest that the lawyers representing the appellant interpreted the statutory defence too broadly. Nevertheless, he entered an unequivocal plea of guilty. 33. In the circumstances, Mr Douglas-Jones submits that the defence was prima facie neither overlooked nor, as a result, was the plea a nullity. This factual matrix is different to that identified in cases such as AM and Mateta , not least because of the terms of the defence case statement. In the circumstances, it is argued that it cannot be said that the defence would quite probably have succeeded or that a clear injustice had been done. 34. As for the enhanced credibility afforded by the humanitarian protection, Mr Douglas-Jones suggests that it is of note that the Home Office did not concede that the claim was to be believed and rejected both the asylum claim and other significant aspects of his account (contradicted by that of his wife). Had the case gone to trial, however, the fact of humanitarian protection would have been capable of being evidenced; the opinions of the Home Office would not. On the other hand, he is correct to observe that the Home Office decision does not have the status of a determination of the First Tier Tribunal. 35. We turn to the fact that the writer of the pre-sentence report noted that the appellant could not explain why, if that was the case, he did not use the family passports to purchase their own air tickets, either out of Syria or out of Turkey, or why he was prepared to pay a very substantial amount of money to an agent. Although Mr Lay sought to address this point in his skeleton argument by reference to what he said would have been the practice of the Entry Clearance Officer, these questions were not satisfactorily addressed in evidence by the CCRC, the appellant or in any other way. 36. In the light of the foregoing, whether or not the appellant could have mounted a defence, we are not prepared to accept was not considered. Furthermore, on the evidence, we feel unable to conclude that, if he could have done, it was a defence of such strength as to negate the unequivocal plea of guilty, or one that would quite probably have succeeded. Thus, neither can we say that a clear injustice has been done. In the circumstances, this appeal is also dismissed. 37. That is not to say that we do not have considerable sympathy for this appellant (and, indeed, YY). Whether or not they brought themselves within the strict rules which cover those who seek refuge in this country and whether or not they behaved appropriately in connection with their approach to the immigration authorities, care needs to be taken not to stigmatise them in the same way that might be appropriate for others who evade the immigration laws. There are, of course, degrees of criminality and it is appropriate for the authorities to have regard to the underlying merit of the cases which those in the position of these appellants seek to advance and not to focus to an excessive extent on the manner in which they entered the country either to their detriment or the detriment of their families. The position of the CCRC 38. Before leaving the case, it is appropriate to say something of the role of the CCRC. In Mateta , the court recognised (at [57]) the very real contribution made by the CCRC to this area of the law. It may be that these comment has been taken as an encouragement to the CCRC, given the increased number of referrals which concern asylum seekers convicted of identity document offences. We were told that the CCRC advertise for such cases and (as is the case in both these references) will pursue them irrespective of the fact that the case has not previously been before the Court of Appeal on the basis that there are exceptional circumstances. In that regard, it is to be noted that s. 13(1) of the Criminal Appeal Act 1995 specifically provides that a reference shall not be made unless “(c) an appeal against the conviction, verdict, finding or sentence has been determined or leave to appeal against it has been refused”. That is subject to s. 13(2) of the Act which is in terms ( inter alia ): “Nothing in subsection (1)…(c) shall prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify it.” 39. Cases referred by the CCRC in which there had been no previous appeal (as in these two cases) include R v Zondo [2014] EWCA Crim 1501 , R v Sadeghi [2014] EWCA Crim 2933 and R v Shabani [2015] EWCA Crim 1924 . On the other hand, the jurisprudence in this area was developed in cases which were pursued through the traditional route of the Court of Appeal: see R v Asfaw [2008] 1 AC 1061 , R v Kamalanathan [2010] EWCA Crim 1335 , R v Ali Rezi Sadighpour 2012] EWCA Crim 2669 and R v Jaddi [2012] EWCA Crim 2565 . 40. The result of the jurisprudence of the court is that, these days, the Registrar regularly refers cases to the full court where cases of this type have been lodged. The Registrar is more than able to require waiver of privilege (which was necessary in one of the cases in this appeal notwithstanding the intervention of the CCRC) and delay can be avoided: see R v Sadiqi & Misini [2014] EWCA Crim 2479 , R v Ghorbani [2015] EWCA Crim 275 and R v NH [2015] EWCA Crim 649 . Where the process of the court is being abused, a referral under s. 20 of the Criminal Appeal Act 1968 is also possible: see R v Davis & Thabangu [2013] EWCA Crim 2424 . 41. This list of cases is not intended to be exhaustive but it is an indication that if the exceptional procedure available to the CCRC is being deployed as a matter of routine as the CCRC takes on cases that can be referred directly to the Court of Appeal, resources are not being deployed as efficiently as possible. More important, detailed consideration of other cases of alleged miscarriage of justice (which have previously exhausted all rights of appeal) is being delayed while these cases are being subject to detailed analysis when they could go directly to the Court of Appeal where they will be processed efficiently by the Criminal Appeal Office. 42. We recognize that appeals from the magistrates court to the Crown Court after a plea of guilty have to be processed through the CCRC because of the constraints placed on the Crown Court (sitting on appeal) in relation to unequivocal pleas of guilty: see s. 108(1) of the Magistrates’ Court Act 1980 and decisions such as R v McNally 38 Cr App R 90 and S v Recorder of Manchester [1971]. Thus, in these circumstances, the Crown Court is limited to a consideration of matters apparent to the magistrates and, if a plea was equivocal, bound to remit: see s. 48(2) of the Senior Courts Act 1981. A reference by the CCRC in relation to a conviction by the magistrates, however, requires the case to be treated for all purposes as an appeal against conviction “whether or not he pleaded guilty”: see s. 11(2) of the Criminal Appeal Act 1995. Thus, the intervention of the CCRC is essential. 43. That is not, however, the case in the Court of Appeal. In the circumstances, we would encourage the CCRC to review the criteria which are used to justify exceptional reasons for investigating and referring when there has been no prior appeal. It may be that when apprised of these cases (whether as a result of campaigns to reduce miscarriages of justice or otherwise), a triage system can be adopted which investigates only those cases that have been to the Court of Appeal or are appeals from the magistrates court. Those cases which have not exhausted rights of appeal to the Court of Appeal can be passed on to the Criminal Appeal Office for examination and, if appropriate, referral. 44. None of this is to be taken as a criticism of the CCRC. Rather, it is an attempt to ensure that those cases in which there is no available means of redress other than through the CCRC are investigated and dealt with as expeditiously as possible. That may not be possible (or could be less possible) if other cases which could have been passed directly to the Criminal Appeal Office are themselves taking time and effort to investigate and process. 45. Needless to say, this point of principle has not affected the court’s consideration of these particular appeals although in the circumstances which we have outlined, both are dismissed.

2016_02_26-3714.xml

conviction

https://caselaw.nationalarchives.gov.uk/ewca/crim/2016/18/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2016/18

6c1ee27fab4b29a3d14417680e1b8eb9f6840d6e3703b1af003b0d4e673d5cc7

[2008] EWCA Crim 1434

EWCA_Crim_1434

crown_court

Case No: 200801199 A8 Neutral Citation Number: [2008] EWCA Crim 1434 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 13th June 2008 B e f o r e : LORD JUSTICE HUGHES MR JUSTICE ANDREW SMITH HIS HONOUR JUDGE LORAINE-SMITH Sitting as a Judge in the Court of Appeal Criminal Division - - - - - - - - - - - - - - - - - - - - - R E G I N A v BALJINDER SINGH BAL - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph No

Case No: 200801199 A8 Neutral Citation Number: [2008] EWCA Crim 1434 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 13th June 2008 B e f o r e : LORD JUSTICE HUGHES MR JUSTICE ANDREW SMITH HIS HONOUR JUDGE LORAINE-SMITH Sitting as a Judge in the Court of Appeal Criminal Division - - - - - - - - - - - - - - - - - - - - - R E G I N A v BALJINDER SINGH BAL - - - - - - - - - - - - - - - - - - - - - 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 J Sarginson appeared on behalf of the Appellant Miss L Pierpoint appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. JUDGE LORAINE-SMITH: On 11th January 2008 at the Crown Court at Warwick this appellant pleaded guilty to a single count of arson being reckless as to whether life is endangered, and to an offence of failing to provide a specimen for analysis committed under section 51 of the Crime and Disorder Act 1998 . He was remanded in custody and on 8th February 2008 he was sentenced by His Honour Judge Harris to 4 years' imprisonment for the arson and 3 months' imprisonment concurrent for the offence of failing to provide a specimen. He was disqualified from driving for 18 months and the time he had spent in custody was ordered to count towards sentence. He appeals against his 4-year sentence by leave of the single judge. 2. The facts were as follows. The appellant lived with his wife, Balbinder, and their two children -- a daughter aged 13 and son aged 17 -- in a three bedroomed, terraced house in Nuneaton. It was part of his routine to go out drinking on Sundays with a friend, and that is what happened on 30th December 2007. He returned home at about 10 pm. He was very drunk and was to tell the police in interview that he had drunk nine pints of lager and a double whiskey. An argument began between the appellant and his son, in which Mrs Bal intervened. The appellant, who by now was very angry, said he was going to throw his son out of the house. His son ran out. 3. The appellant then called the police. He told the Probation Officer that he had done that so that they would tell his wife off. The police arrived and Mrs Bal agreed that it might be better if they left the house for a while to let things calm down. Accordingly, she went to a relative's address nearby. 4. The appellant, left alone at home, was angry about what had happened and decided to set alight to some of his wife's property. He found some of her clothing in the front bedroom in a cupboard and set it alight with a cigarette lighter. He also lit a second fire in a rear bedroom wardrobe but it did not take. At 11.45 he sent a text message to his wife which in fact she did not receive. It read "I have set the house on fire". He then left the house and drove to the address where his wife was temporarily staying. He parked diagonally across the drive, threw away his keys and banged on the door. The police were called and arrived at midnight. They found the appellant to be drunk and aggressive. When arrested he said "I set the house on fire". In the police car he said "I lit it. I do not deny it. I started it in the bedroom" In the police station he asked if he could go to his house because he wanted to see it burn. 5. In interview he said he had set fire to his wife's clothing in anger and that he expected the wardrobe and the rest of the house to burn down. Knowing that he had driven from his home the police requested two specimens of breath which he refused. 6. When Mrs Bal returned to their home she found the upstairs windows were black. There was burnt clothing on the driveway and the curtains in their daughter's bedroom were blackened. In the main bedroom all of her personal property and that of her children seemed to be missing or destroyed and there were holes in the wall and ceiling. The fires had extinguished themselves naturally and had not spread to the neighbouring properties. 7. Mrs Bal said in a victim impact statement that she felt very upset, vulnerable and scared as a result of what happened. A statement from her was presented to the court which was far more sympathetic to her husband. 8. When interviewed by the Probation Service, the appellant said that he had started the fires because he felt very frustrated and angry at his wife's behaviour, particularly her refusal to speak to him. He apportioned much of the blame for what he had done to her and it would seem from a report prepared for this hearing that his attitude has not changed. 9. The appellant is 42 with a burglary conviction when he was 16, and so he was treated by the sentencing judge as being of good character. He pleaded guilty to these offences at the first available opportunity. 10. Miss Sarginson submits that the proper sentence in this case is one of 3 years' imprisonment, not 4. She relies on two authorities in particular. The first is Attorney General's Reference No.5 of 1993, R v Hartland [1994] Cr.App.R(S) 201, where the offender and his girlfriend were involved in a dispute over a taxi with a group of men, in the course of which the offender's girlfriend was knocked to the ground. The offender went in the early hours of the morning to a house where the other group lived and threw a brick through the window followed by a petrol bomb. The court noted that the relevant sentencing in other cases of this kind was something in the order of 3 years' imprisonment. 11. In Attorney General's Reference No.35 of 1996, R v Hoyle [1997] 1 Cr.App.R(S) 350, the offender was the tenant of a flat and fell into arrears in the rent. Following a number of letters to the landlord, he returned late at night to the flat and started a fire by placing matches against an electric fire. Although the fire was quickly discovered, about £2,000 worth of damage was caused. The court held that a sentence in the order of 3 years would have been appropriate. 12. Miss Pierpoint for the respondent has drawn our attention to R v Harding [2000] 1 Cr.App.R(S) 327. The appellant in that case had also, when drunk, had an argument with his wife who was taken away from the family home by her brother, leaving the appellant alone. He then lit fires in several rooms, causing £17,000 worth of damage to that house and also £3,000 worth of damage to the property of a neighbour, an 85-year old lady who must have been terrified. A sentence of 4 years was upheld. 13. There was no evidence as to the cost of the damage in the present case, but it was limited to the appellant's home. His neighbours, far from being terrified, wrote a letter in his support to the court. With those authorities in mind, we agree with Miss Sarginson's submission that the appropriate sentence is one of 3 years' imprisonment and we allow the appeal to that extent.

2008_06_13-1541.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/1434/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/1434

4f9d3a1201b4b9b583170d277413ca0ff948b7da8ba2dfbc4f9bbec8e9a8a6a4

[2023] EWCA Crim 1086

EWCA_Crim_1086

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 1086 IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202302117/A5 Royal Courts of Justice Strand London WC2A 2LL Friday 4 August 2023 Before: LORD JUSTICE DINGEMANS MR JUSTICE GOOSE MRS JUSTICE FARBEY REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 REX V GEORGIA NICHOLSON 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 S GATES appeared on behalf of the Attorney General. MR P BEARDWELL appeared on behalf of the Offender. ______ J U D G M E N T LORD JUSTICE DINGEMANS: Introduction 1. This is the hearing of an application by His Majesty's Solicitor General, for leave to refer a sentence to this Court which the Solicitor General considers to be unduly lenient. We grant leave. 2. The respondent, Georgia Nicholson, who was born on 7 December 2000, and is now aged 22, was of previous good character. On 13 February 2023, in the Crown Court at Birmingham, after a Goodyear indication had been given, Ms Nicholson pleaded guilty to an offence of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861. The offence had occurred on 15 December 2018, at a time when Ms Nicholson was aged 18 years and 8 days. On 30 May 2023, in the Crown Court at Warwick, Ms Nicholson was sentenced to 24 months' custody suspended for 2 years, with 10 days rehabilitation activity requirement. She was also ordered to pay compensation to the victim of the offending of £4,000. 3. It is submitted on behalf of the Solicitor General that the judge passed a sentence so far outside the Sentencing Guidelines as to be unjustifiable. This was part evidenced by the fact that the judge had indicated that she wanted to pass a 6-year suspended sentence, when it is well known that a sentence of only 2 years can be suspended, and that the judge had failed to give proper weight to the effect that the attack had on the victim, Mr Afaq Iftikhar, which had left him blinded in one eye. The judge awarded credit of 25 per cent for a guilty plea when the plea was only given on the day of trial, after the witnesses had attended. 4. It is submitted on Ms Nicholson’s behalf that the sentence was lenient, but it was not unduly lenient. Substantial reductions needed to be made for Ms Nicholson's age, immaturity and previous good character. The judge had proper regard to Ms Nicholson's pregnancy and the sentence was passed after a Goodyear indication that any sentence would be suspended. We are very grateful to Ms Gates and Mr Beardwell for their helpful written and oral submissions. The Factual Background 5. At about 4.00 am on Saturday 15 December 2018 Mr Iftikhar, a taxi-driver, had received a job to pick up in the Birmingham city centre area. He was driving a black Volkswagen Touran people carrier. He arrived at the location for the pickup and picked up a number of passengers, including Ms Nicholson and one male passenger, Luke Burley-Fenton. Ms Nicholson sat in the front passenger seat with the remaining passengers in the middle and rear seats. During the journey Mr Iftikhar noticed that one of the passengers had begun to vomit, so he stopped the car and got out of the car. Mr Iftikhar then asked the group to leave the vehicle. At this point he noticed what he thought was someone trying to steal money from the cupholder area of his car. Mr Iftikhar asked Ms Nicholson what she was doing and told her he had CCTV in his vehicle. It is right to record that there was no conviction for theft or attempted theft of money. 6. At this point, another of the group, Mr Burley-Fenton, came from behind the vehicle and said: “What are you doing, you Paki bastard?”. Mr Iftikhar then went to retrieve his mobile phone in order to contact the police. By now he was standing by the driver's side bonnet. Erin Cook approached Mr Iftikhar and an altercation occurred. Mr Burley-Fenton and Ms Nicholson also came over and joined in, causing Mr Iftikhar to punch Mr Burley-Fenton. Ms Nicholson then attempted to hit Mr Iftikhar with a pair of heels she was holding in her hand but missed. The suspects then ran at Mr Iftikhar and Ms Nicholson and Mr Burley-Fenton began to assault him. Mr Burley-Fenton punched him several times to the head. Ms Nicholson then attempted to hit Mr Iftikhar around the head with her high heels, which were at that stage being brandished as a weapon. The heels are what are known as “block” heels. The overall assault lasted for about 2 minutes. A witness arrived and saw Mr Iftikhar bleeding from his head saying: “Please help me, they're going to kill me”. At that point Mr Burley-Fenton and Ms Nicholson appeared again, Ms Nicholson then again went to hit Mr Iftikhar to the back of the head with the pair of heels, the heel facing the driver's head. As Mr Iftikhar turned round, he describes the long-heel part of the shoe hitting Mr Iftikhar directly in the eye. An independent witness, Mr Josko, also described the heel part of what he wrongly called “the stiletto” hitting the driver in the right eye. 7. Mr Iftikhar was shouting: “Please let me go, please don't hurt me”. He shouted for assistance from other members of the public and made his way to the opposite side of the road outside the Spar. All the passengers from the vehicle continued to follow him. At this point members of the public intervened. Shortly afterwards the police arrived and detained all five passengers. CCTV footage does cover the incident but from a distance and it does not really assist in working out exactly what occurred. In relation to the injury, the heel of the shoe resulted in a severe blunt force trauma to Mr Iftikhar's right eyeball, causing extensive and irreparable damage. Mr Iftikhar underwent a number of procedures to attempt to save his vision but without success. No improvement to his vision is anticipated. 8. In interview, Mr Burley-Fenton stated that the driver punched him first. He admitted he punched the driver a number of times. Ms Nicholson in interview denied causing the injuries to Mr Iftikhar, claiming that Mr Iftikhar was the aggressor, claimed he had taken her phone and she had only defended herself at the time. Mr Iftikhar provided a further statement, confirming that he had not taken Ms Nicholson's phone. Criminal Proceedings 9. Ms Nicholson was arrested on the day after the incident, on 15 December 2018. Material was submitted to the Crown Prosecution Service by the police in January 2019, with further discs of CCTV footage being submitted in March 2019. First pre-charge advice was provided in May 2019 but there is no explanation for the delay between March and May 2019. There then followed a series of pre-charge advices, and Ms Nicholson was finally charged on 5 October 2019, which was nearly 10 months after the incident on 15 December 2018. 10. Ms Nicholson first appeared before the Birmingham and Solihull Magistrates' Court on 4 November 2019, when no indication as to plea was recorded. The case was sent to Birmingham Crown Court and there was a pre-trial preparation hearing on 2 December 2019. At that hearing Ms Nicholson entered a not guilty plea to the section 18 charge on the indictment, but a Defence Statement was submitted which first indicated that she was prepared to offer a plea to the section 20 offence and a trial date was set for 1 June 2020 and Ms Nicholson was granted unconditional bail. The trial date was vacated and inferentially that was probably because of the Covid-19 pandemic which, of course, started in March 2020. The next hearing did not take place in these proceedings until 23 August 2021. A pre-trial review was listed on that date, and the court said it was hoped to try the case in September 2021, but that then did not prove possible. The next earliest date was February 2022, and a further hearing took place on 31 January 2022, when Ms Nicholson entered a plea to the section 20 wounding offence and the Crown were ordered to confirm by 7 February whether this was acceptable. This was not acceptable to the Crown because the Crown identified that this was a repeated attack with a weapon to the head of Mr Iftikhar. The Goodyear indication on 13 February 2023 11. A further year passed, and the trial was listed on 13 February 2023, although it seems even on that date, it was unlikely to go ahead. There was a suggestion that it might go ahead later that week due to listing difficulties. The witnesses had attended for trial. Prosecution counsel, who had only been instructed shortly before, was attempting to access the case papers. There was a joint application to adjourn the trial, although the prosecution agreed that the trial could take place the following day. It was at that stage that the defence raised the subject of a potential Goodyear application and stated that “if” that Goodyear indication ended with an indication of a non-immediate custodial sentence, there would be no trial required for Ms Nicholson. It was, to be fair to Mr Beardwell who had made the application, noted immediately that the court would need to depart from Sentencing Guidelines and that the decision would be a bold decision. 12. Following further discussion, the defence agreed to upload the application for a Goodyear later that day. The two-page application for a Goodyear was then uploaded. The basis of plea admitted that Ms Nicholson had swung her shoes towards the back of Mr Iftikhar's head, and he turned and a shoe hit him in the eye, as corroborated by the independent account of Mr Josko. It was suggested that all previous attempts to hit Mr Iftikhar with the shoes had missed and it was further submitted that the blow was not premeditated and not deliberately aimed at Mr Iftikhar's face. It stated that the shoes had not been deliberately carried as a weapon. The application also dealt with Ms Nicholson's age at the time of the offence, and the application also addressed the issue of significant delay (4 years and 2 months by February 2023). It referred to Ms Nicholson being dyslexic and having been diagnosed with epilepsy. It also referred to the fact that Ms Nicholson was in steady employment and pregnant, and the birth was due in July 2023. It was suggested that 10 per cent credit on account of any guilty plea should be applied. 13. There were some authorities referred to in the application. These included Attorney-General's Reference No 26 of 2015 [2015] EWCA Crim 1119; [2015] 2 Cr App R(S) 53, that related to a female intoxicated defendant, glassing a victim in the face in a pub, after a minor altercation, who had received a 2-year suspended sentence. It might be noted that the injuries in that case were only minor cuts, the defendant had a pre-existing mental health condition, and that mental health condition and the medication taken for it had reacted with the alcohol. R v Beattie-Milligan [2019] EWCA Crim 2357; [2020] Cr App R(S) 10, dealt with an unjustified 11-month delay between arrest and notification of prosecution as a proper reason to mitigate the sentence, justifying a reduction of 6 months. There was also reference to R v Wright [2021] EWCA Crim 1445; [2022] 1 Cr App R(S) 42, where there was a 25-year-old defendant who was 4 months’ pregnant at the time of sentencing. The case had taken 3 years to conclude and delay in pregnancy were taken into consideration when a suspended sentence was imposed. The sentence however was only one of 8 months which had been also reduced to 6 months. 14. When the judge asked at the Goodyear hearing the factual basis for the plea, namely whether it was the same facts as for the section 20 offence previously offered and rejected, the Crown clarified that the prosecution case remained intentional wounding and therefore section 18 and not section 20. The assault had taken place with a weapon, namely the heels, and that the assault was directed at Mr Iftikhar's head. It was accepted that Mr Iftikhar had turned around at the last minute, such that particular harm to the eye could not be foreseen, but that did not detract from an intentional attack with a weapon to the head. 15. The judge when ruling on the Goodyear application indicated that she found that the violence was not premeditated and was instantaneous, albeit intent must be accepted by virtue of the plea. The judge also found that the court could take into account unjustified delay and that the court can depart from Guidelines in exceptional circumstances before the judge went on to indicate that any plea to the section 18 offence would result in a suspended sentence. 16. It might be noted that it seems from what was said by the judge during the sentencing remarks which followed on a later date, that at the time the judge was labouring under the misapprehension that a sentence of 6 years could be suspended and that the period for which that sentence could be suspended could be for 3 years. Following that indication Ms Nicholson then pleaded guilty to count 1. The prosecution requested that the separate offence with which Ms Nicholson had been charged, namely affray, lie on the file and a pre-sentence report was ordered for Ms Nicholson. The sentencing hearing 17. A pre-sentence report was obtained. Ms Nicholson was sentenced by the judge (then sitting at the Warwick Crown Court) on 30 May 2023 to a total of 24 months' custody suspended for 2 years, with the additional requirements already indicated. The pre-sentence report reported that Ms Nicholson stated that Mr Iftikhar had snatched her phone from her hands and her sole intention was to calm the situation down. The report noted that Ms Nicholson was somewhat dismissive of the gravity of Mr Iftikhar's injuries and Ms Nicholson also focused on the ramifications of the incident for her rather than Mr Iftikhar. Ms Nicholson accepted she had drunk copious amounts of alcohol on the night of the incident. She had completed her formal education and had been in employment for 5 to 6 years. 18. The pre-sentence report confirmed that Ms Nicholson was 23 weeks' pregnant, due to give birth in July 2023 and had recently been diagnosed with epilepsy. Her risk of re-offending was assessed and she was assessed as being unsuitable for unpaid work. Five character references were provided and those showed that Ms Nicholson worked hard, was a useful member of society and was very sorry and regretful about the incident. 19. The victim personal statement for Mr Iftikhar explained the extensive difficulty that he had faced as a result of the incident. He can no longer drive, and he has therefore lost his job with significant financial implications. He struggles to go out in daylight as his other eye is irritated too and he has reduced vision due to pressure on it. He has repeatedly had to use a range of ointments to manage his eyes and he has to have the help of a carer for some tasks. He bumps into objects and sometimes falls as a result of his reduced vision. His depth perception has also changed so it is harder to pick up everyday objects. He is now suffering depression and anxiety and fears being attacked again, and he is taking antidepressant medication. He said the consequences of his injuries had destroyed his family life and his deteriorating mental health had resulted in his marriage breaking down in 2021. He had become homeless as he was not entitled to financial support as he was not a British National and he was in debt and owed thousands of pounds. He referred to some of the earliest words of his son being: “I can't see anything”, as he mimicked his father, something Mr Iftikhar found extremely distressing. Mr Iftikhar had also spoken about losing faith in the court and justice system after the incident. There are medical statements about Mr Iftikhar's injuries. The Sentence 20. The prosecution Sentencing Note for the hearing on 30 May 2023 was uploaded. Counsel, who appeared on the day, was covering for trial counsel who had fallen ill. The note did not deal with the Sentencing Guidelines for a section 18 offence due to the earlier Goodyear indication having been given. At the hearing on 30 May 2023, prosecution counsel opened the facts and Mr Iftikhar's impact statement was read. In mitigation, the defence relied on the substance of the Goodyear application and set out Ms Nicholson had been out celebrating her birthday at the time of the offence and she had been suffering from stress as a result of the proceedings. She was due to give birth 7 weeks after the sentencing hearing and was by then on Universal Credit, awaiting a move onto maternity pay whilst living with her parents. She was also living with her partner at the same location. Ms Nicholson had saved £4,000 to make as a compensation payment to Mr Iftikhar. 21. During sentencing the judge queried whether it was agreed that the shoe was not raised as a weapon. Defence counsel stated that the shoes were carried for a lawful purpose (a change from one pair of footwear to another) and carried in Ms Nicholson's hands, so used as a weapon, although not originally intended to be used as a weapon. The judge went on to find that the offence fell within medium culpability B and category 1 harm due to the significant effect of the injury on Mr Iftikhar. That gave a starting point for sentence of 7 years' imprisonment, with a range of 6 to 10 years' imprisonment. There were aggravating features that the offence was committed under the influence of alcohol and mitigating features were Ms Nicholson's previous good character and her age at the time of the offence. The judge went on to indicate that the sentence she would have passed following trial would have been one of 6 years' custody. She then afforded Ms Nicholson a 25 per cent credit for plea, reducing the sentence to 54 months (4 years 6 months). The judge then went on the refer to the Goodyear indication previously given and repeated her findings that the violence was not planned or premeditated, and the shoe was not originally carried as a weapon and there was an unacceptable delay in bringing the matter to trial and because of personal circumstances, namely that Ms Nicholson was pregnant. The judge indicated that she was going to suspend the sentence for 3 years. The judge asked: “I can suspend, can I, or is 2 the maximum?” 22. The judge was told 2 years was the maximum. The judge then said that she would suspend for 2 years with a number of conditions including 10 days’ rehabilitation activity requirements and payment of compensation. Mr Beardwell, for Ms Nicholson, then said: “... your Honour has suspended for two years; of course, your Honour will have to determine the length of the sentence to be suspended. [THE RECORDER]: I thought I said it. [COUNSEL]: Your Honour didn't, but I imagine your Honour intended twenty -- [before the judge interrupted and said] Sorry I thought I said six years.” 23. We interpose to say that the judge had said 6 years but had then given credit for plea, giving a sentence of 4 years 6 months. Counsel replied: “Your Honour can't suspend six years.” 24. The judge stated that was the issue at the Goodyear operating outside the Guideline. Counsel accurately confirmed that a sentence of imprisonment of 2 years could be suspended but no longer. The judge then sentenced Ms Nicholson to a total of 2 years' custody suspended for 2 years, with a 10-day rehabilitation activity requirement and payment of compensation. Events after sentence 25. We have an updated pre-sentence report from Probation dated 10 July 2023. This shows that Ms Nicholson has attended her supervision sessions, is open and honest and is very emotional when the offence is addressed. It was said that going into custody would have a detrimental effect on her and her baby and the baby would then be cared for by her partner and parents. In fact, we were told this morning that the child was born on 12 July 2023 and is now 23 days’ old. We are also told that the child is being breast fed about every other hour. We had an updated report from the offender manager, dated 28 July 2023, in which it was reported that Ms Nicholson had formed a strong bond with her baby. Relevant provisions of law 26. The offence specific guideline is Sentencing Guidelines for Causing Grievous Bodily Harm with Intent. “Medium culpability” is defined to include cases involving the use of a weapon or weapon equivalent that does not fall in the higher culpability bracket and lesser role in group activity and other cases falling below high and low culpability. It is common ground that the heel in this case was a weapon equivalent. “Harm” is classified on the basis of severity and permanence of the injury suffered, with category 1 harm reserved for the most serious of injuries that are particularly grave or life threatening and result in permanent, irreversible injury, which has a substantial impact on the victim's day-to-day activities. Category 2 harm includes grave injury and permanent irreversible injury not falling within category 1. 27. In relation to the approach to be adopted when sentencing defendants that are over 18 but under 25, guidance was given in R v Clarke [2018] EWCA Crim 185; [2018] 1 Cr App R(S) 52. The Court made it clear that turning 18 years is not a cliff edge, and that the youth and immaturity of someone in Ms Nicholson's position is still an important and relevant consideration for the purpose of sentencing. The Guideline on Sentencing Children and Young People can have weight when considering sentencing involving young adults. Section 6.46 of that Guideline sets out the deductions that the court might find it appropriate to apply as being broadly within the range of a-half to two-thirds of the adult sentence for those aged 15 to 17. The emotional and development age of an offender is of at least equal importance to their chronological age. 28. In R v Petherick [2012] EWCA Crim 2214; [2013] 1 WLR 1102, the Court of Appeal set out at paragraphs 17 - 20 that the sentencing of a defendant inevitably engages not only the defendant's right to family life but also potentially that of dependent children and it set out the approach to be taken in that case. 29. In R v Cheeseman [2020] EWCA Crim 794, the Court recognised the weight to be given to the interests of an unborn child in reducing a custodial sentence of 6 years to 4 years, in order to make that offender eligible for release at the same time as the child would leave the Mother & Baby Unit. We were informed today that a Mother & Baby Unit can accommodate a child up to the age of 18 months. 30. So far as this case is concerned, guilty pleas were entered following a Goodyear indication. In that case the Court of Appeal had provided guidance on the steps to be followed when an indication was sought ahead of any plea being entered. The court might ask for assistance from counsel as to facts and, if necessary, a written basis of plea and submissions and the decision in that case is now reflected in the practice set out in the Criminal Practice Direction at CPD VII Sentencing (see Indications of Sentence). 31. In terms of the Solicitor-General referring a case in which a sentence was passed further to a Goodyear indication, paragraph 71 of Goodyear made it clear that, if counsel for the prosecution had addressed his responsibilities in accordance with the previous paragraph, the discretion of the Attorney General to refer a sentence would be wholly unaffected by the advanced sentence indication process. Of course, if a sentence indication has been given in accordance with these Guidelines before referring the eventual sentencing to this Court, the Attorney General's decision would no doubt reflect that the defendant had pleaded guilty in response to the sentence indication, properly sought and given by the judge. Different considerations may arise where Goodyear indications are initiated by the judge. 32. Finally, when considering whether to suspend a custodial sentence, the first step is the consideration of the Sentencing Council Guidelines for Imposition of Community and Custodial Sentences. The Guidelines emphasise that a suspended sentence is a custodial sentence, and that the impact of a custodial sentence is both punishment and deterrent. The Guideline set out factors to be weighed when considering whether to suspend the sentence. This Court has indicated that it will not readily interfere with the assessment of a sentencing judge engaged in the exercise of whether a sentence should be suspended or not. The Court will only interfere when the decision as to whether to suspend a sentence is plainly wrong in principle, see R v Forest Jameson [2017] EWCA Crim 93; [2018] 1 Cr App R(S) 1. The Appropriate Sentence 33. In our judgment, the sentencing exercise went wrong because the judge was persuaded to give a Goodyear indication and was not given any assistance with the relevant sentencing offence specific guidelines, and because the judge appeared to believe a sentence of 6 years' imprisonment could be suspended and could be suspended for a period of 3 years. As it is, this Court is left in the unfortunate situation of having to revisit a sentence on a young woman, aged 22, who was 18 at the relevant time of the offence, of previous good character, who has just given birth and who has paid £4,000 in compensation, but who caused grievous bodily harm with intent where the harm was in the form of a permanent injury to Mr Iftikhar, being the loss of his eye and, as it turns out, the loss of his job as a taxi-driver. 34. In these circumstances, we can only do our best, having regard to the relevant legal principles. First, we can discern no basis on which it can be said that it is in the interests of justice to sentence outside the Guidelines. Secondly, the index offence was classified as category 1 harm, culpability B. The starting point for a category 1B offence is, as already indicated, 7 years, with a range of 6 to 10 years' imprisonment. Statutory aggravating factors in this offence include that the offence was committed against a person providing services to the public as a taxi-driver. The other aggravating factor was that the offence was committed under the influence of alcohol and, it might also be noted, that it was part of a group attack. The fact that Mr Iftikhar was a taxi-driver was important, a sentence of 8 years, before mitigation might be expected having started with a starting point of 7 years, before turning to mitigating factors. 35. We then consider the mitigating factors. A very important mitigating factor was age and lack of maturity. Having read all that we have, we consider that a discount of 25 per cent for age is reasonable. This gives a sentence of 6 years' imprisonment. We then turn to the other mitigation. There are no previous convictions and there is positive good character, as appears from the character references and indeed the information that we have from the offender manager. There was also a delay in the proceedings which has caused understandable difficulties both to Mr Iftikhar and Ms Nicholson, although it is right to report that Ms Nicholson did not admit the section 18 offence until the day of trial. There is also the feature that Ms Nicholson has paid £4,000 by way of compensation, and it is apparent that this represents all that she had managed to save from her work. Finally, we note that Ms Nicholson has given birth, although there are arrangements that can be made according to the offender manager, for care to be provided by her parents and partner in her absence. 36. Doing the best that we can, we would reduce the sentence of 6 years to reflect those mitigating factors, to one of 4 years 6 months but there is also a discount for plea. It is right to note that Ms Nicholson did admit the section 20 offence and at the time a discount for plea of about 20 per cent would have been justified. However, Ms Nicholson only admitted the section 18 offence on the day of the trial, and it is apparent that a discount of 10 per cent is justified but no more. This would give an overall sentence of 48 months, or 4 years. We note that this is lower than the judge's proposed sentence of 54 months (or 4 years 6 months) which the judge intended to suspend but had no lawful power to do so. 37. We turn then to address the final issue which has been raised this morning, which is the amount of time that a child can spend in a Mother & Baby Unit. As an act of mercy, we will reduce the 4-year sentence to one of 3 years, to take account of that fact. Whether the child is admitted with Ms Nicholson and whether the child and Ms Nicholson are placed in a Mother & Baby Unit are matters which are not within our control, but the effect of reducing the sentence that should have been imposed of 4 years to one of 3 years, means that becomes a possibility. 38. In all those circumstances, we hope we have reflected, as fairly as we can, the immense damage caused to Mr Iftikhar and all those points of mitigation properly available to Ms Nicholson. We therefore allow the Reference and impose a sentence of 3 years' imprisonment on Ms Nicholson. 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_08_04-5787.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1086/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1086

dd348090badb18581bc1123c45cd2a2ed977a228d5253f9eda90d6ac9304e93c

[2008] EWCA Crim 1752

EWCA_Crim_1752

crown_court

No: 200701626/D4-200701629/D4 Neutral Citation Number: [2008] EWCA Crim 1752 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 15th July 2008 B e f o r e : LORD JUSTICE GAGE MR JUSTICE SILBER HIS HONOUR JUDGE RADFORD (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - R E G I N A v YVETTE MICHELLE LUFFMAN WAYNE BRISCOE - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill

No: 200701626/D4-200701629/D4 Neutral Citation Number: [2008] EWCA Crim 1752 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 15th July 2008 B e f o r e : LORD JUSTICE GAGE MR JUSTICE SILBER HIS HONOUR JUDGE RADFORD (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - R E G I N A v YVETTE MICHELLE LUFFMAN WAYNE BRISCOE - - - - - - - - - - - - - - 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 R Swift QC appeared on behalf of the Appellant Mr G Dickinson QC appeared on behalf of the Crown - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE GAGE: Mr Swift, first of all I apologise for calling you on occasions Mr Voss, for reasons which I have no idea. Secondly, if there is nothing else you want to submit to us we will tell you our decision today but give reasons for it in writing. Very well. 2. Having given the matter careful consideration, for reasons which we give in writing in due course, these appeals will be dismissed. Our decision in writing will reach you before the end of the term, hopefully within a comparatively short space of time. I will hand it down myself unless there are ancillary matters either of you want to raise at that time. 3. Thank you both very much for the submissions, particularly those in writing which have been of great help to us, Mr Swift and Mr Dickinson. As I say, we will deliver our reasons in writing as soon as we can. 4. MR DICKINSON: May I ask whether your Lordship anticipates that it will be necessary for counsel to attend? 5. LORD JUSTICE GAGE: That to some extent depends if there are any other matters to deal with. If there is nothing else, then we will not expect counsel to be here.

2008_07_15-1584.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/1752/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/1752

dcc4141f61808675383053cef7bf1c46207acfe8f3d97e2b7793d851a074a1cb

[2007] EWCA Crim 942

EWCA_Crim_942

supreme_court

Neutral Citation Number: [2007] EWCA Crim 942 Case No: 2005/06283 C3 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LEWES CROWN COURT HIS HONOUR JUDGE RENNIE Royal Courts of Justice Strand, London, WC2A 2LL 26 th April 2007 Before : LORD JUSTICE HOOPER MR JUSTICE GIBBS and MR JUSTICE RODERICK EVANS - - - - - - - - - - - - - - - - - - - - - Between : Malcolm Boulton Appellant - and - The Crown Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript

Neutral Citation Number: [2007] EWCA Crim 942 Case No: 2005/06283 C3 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LEWES CROWN COURT HIS HONOUR JUDGE RENNIE Royal Courts of Justice Strand, London, WC2A 2LL 26 th April 2007 Before : LORD JUSTICE HOOPER MR JUSTICE GIBBS and MR JUSTICE RODERICK EVANS - - - - - - - - - - - - - - - - - - - - - Between : Malcolm Boulton Appellant - and - The Crown Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of WordWave International Ltd A Merrill Communications Company 190 Fleet Street, London EC4A 2AG Tel No: 020 7421 4040 Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Miss J Greenberg (instructed by Swain & Co) for the Appellant Mr J Price for the Respondent Hearing date : 23 April 2007 - - - - - - - - - - - - - - - - - - - - - Judgment LORD JUSTICE HOOPER: 1. On the 30 September 2005 in the Crown Court at Lewes before His Honour Judge Rennie and a jury the appellant was convicted of rape (counts 1-3); false imprisonment (count 4); putting people in fear of violence contrary to Section 4 of the Protection from Harassment Act 1997 (count 5) and conspiracy to intimidate witnesses (count 6). There were two co-defendants on count 6 only. Both were convicted. The appellant appeals his conviction on counts 1-5 by leave of the full court, presided over by Rose LJ (VP). 2. There are two grounds of appeal. The first relates to the trial judge’s ruling that the evidence of the complainant could be read to the jury. The judge found, in accordance with section 116 of the Criminal Justice Act 2003 that she was not giving oral evidence through fear. 3. The second ground relates to the judge’s decision to permit two witnesses to give oral evidence about the defendant’s bad character. We shall call the two witnesses D and S. 4. Shortly before the start of the appeal the respondent served on the appellant a transcript of a further video recording of the complaint’s interview with the police at the time that the complaints were made. Miss Greenberg, Queen’s Counsel who appeared for the appellant but had not done so at the trial said that the failure to disclose did not give rise to a fresh ground of appeal. 5. We turn to ground 1. The challenged ruling was given by the judge on 9 September 2005. To assist the judge in reaching his decision the respondent called an officer, DS Horner, who gave a detailed oral and written account of his dealings with the complainant in the period leading up to the ruling. We were also provided with material from DS Horner relating to his dealings with her after the conviction of the appellant. There is nothing that happened post-conviction which could undermine the correctness of the ruling reached by HHJ Rennie or provide fresh relevant evidence to be taken into account on the appeal. HHJ Rennie also had a transcript of a hearing before HHJ Kemp on the 29 July 2005. The appellant called a witness on the voir-dire but her evidence is not relied upon by the appellant as a ground for attacking the ruling. 6. It is necessary to say something briefly about the chronology of the events. Count 1, rape, was alleged to have occurred on 30 June 2004 and counts 2 and 3 (both rape) were alleged to have taken place on 3 July 2004. The offence of false imprisonment was alleged to have taken place on 5 July 2004 and it was on that date that the appellant was arrested. He has been in custody ever since. He was interviewed and denied the offences. The event alleged to constitute count 6 of the indictment, conspiracy to intimidate witnesses took place on 8 July 2004 and thereafter there were further telephone calls to the complainant from the appellant in custody. The trial was due to start in February 2005 but, most unfortunately, was taken out with the consent of all parties. Subsequently the trial was fixed for 5 September 2005 and adjourned for two days because of the non-attendance of the complainant. 7. In his challenged conclusion HHJ Rennie said: “I am completely satisfied, having considered all of counsels’ submissions and bearing in mind the relevant law, section 116(2) (d) has been satisfied and that [the complainant] is absent from court through fear. I am further satisfied that she is frightened of Mr Boulton and what might happen to her, her family or friends if she were to testify, and this is the very mischief which this piece of legislation is designed to protect against.” Having reached that conclusion the judge went on to consider whether, taking into account, amongst other things, the appellant’s rights under Article 6 to a fair trial, he should give leave to the prosecution to read the statements. He gave that leave. The statements in an edited form were read to the jury who were also shown passages from the video recordings, being passages chosen by both counsel. 8. It is unfortunate that the judge did not set out the reasons for reaching his conclusion other than by what appears to be an acceptance of (or at least some of) the submissions made by the respondent. This kind of decision is a particularly difficult one and may well lead to an appeal. The fuller the reasons which a trial judge can give for reaching the conclusions, the easier it is for this court to re-examine the issue both at the leave stage and at any full hearing. 9. There is no dispute that this court must now examine the conclusion of the trial judge and decide whether that conclusion is one which he could properly have reached. 10. Miss Greenberg accepted that in the passage which we have read out, the judge was finding not only that the complainant was absent from court through fear but also that that fear had been caused by the appellant either directly or indirectly. Miss Greenberg submitted that both conclusions were conclusions which the trial judge could not properly reach. She accepted that if the trial judge was entitled to reach those two conclusions then the appeal was not likely to succeed. She did list for us a number of matters about which the appellant might have wished to cross-examine the complainant if she had given evidence. The judge took the view that the appellant had denied the allegations in interview, that he could give evidence if he chose to do so and challenge the various allegations made against him by her. In fact he did give evidence at the trial and did deny all her allegations. 11. At the conclusion of the appeal hearing we announced our decision that the appeal would be dismissed. In our judgment the judge was quite entitled to reach both of the challenged conclusions; on the basis of those conclusions it follows, as Miss Greenberg effectively conceded, that the judge was right to permit the complainant’s evidence to be read to the jury. 12. We turn therefore to the first conclusion that the complainant was absent from the court through fear. There was no doubt before the trial judge and it was not disputed before us that the complainant had deliberately put herself in a position whereby DS Horner was unable to find her and bring her to court to give evidence in September 2005. The evidence showed that she had taken elaborate steps to conceal her whereabouts from him. 13. Miss Greenberg submitted that the complainant had done this not because of fear but because of an unwillingness on her part to submit to the trauma of giving evidence against the appellant. Mr Price upon whom we did not call in relation to this ground, submitted both to the judge and to us that the judge was entitled to reach the conclusion which he did. In his helpful skeleton argument he took us through the history of the proceedings. It may well be that the complainant had the additional reason for not giving evidence to which Miss Greenberg refers. That, however, does not in our view resolve the issue, namely whether the judge was right to find that the complainant was absent from the court through fear. 14. Miss Greenberg rightly conceded that if the question was one that had to be answered by reference to the period ending in about September 2004 then the judge’s conclusion that she was absent through fear and that the fear had been induced directly or indirectly by the appellant, could not properly be challenged. 15. That is an important concession and we summarise briefly why Miss Greenberg was right to make that concession. We first give a brief account of the facts as alleged by the complainant herself. 16. According to the complainant she had first met the appellant in April 2004 and having entered into a relationship fell pregnant by him. Although he had previously been kind to her, his behaviour towards her changed and he frequently became violent. Her account, assuming it to be true as the jury found it was, gave what can be described as a typical account of domestic abuse at the hands of the male partner coupled with three rapes. 17. On 5 July police officers responded to a call from the complainant. They found her in a distressed state within a caravan that was being towed by the appellant driving a van. On later medical examination she was found to have bruising and cuts to her face and shins but no physical injuries to her genitalia save for some tenderness. It was the prosecution’s case, based upon the evidence of the complainant, that the appellant had kidnapped her from a travellers’ site two days earlier. She had been raped within the previous forty eight hours and on her account subjected to multiple assaults in the previous four weeks. 18. On 30 June 2004 the complainant was due to attend a clinic to have an abortion but, as she was leaving the travellers’ site, the appellant threatened that if she did so, he would stab her. She cancelled her appointment. Later that night, according to her, he became violent and punched her repeatedly until she blacked out. Whilst she was on the ground he raped her (count 1), she tried to escape but failed and he took her back to his caravan where she passed out. On 3 July having moved to a different travellers’ site with the appellant he was again violent towards her and dragged her to an overgrown area by some railings where he subjected her to verbal abuse and then raped her (count 2). He then dragged her to his van, drove her to a wooded area where he again raped her (count 3). 19. The following day the appellant used an axe to smash the windows of her caravan whilst she was inside. She armed herself with a bread knife to prevent him from raping her. On 8 July 2004 according to her the appellant removed the knife from her, hitched her caravan to his caravan and drove away with her inside. In the journey she made calls to the police for help. The defendant claimed an alibi in respect of what had happened on the 30 June. S was called to disprove that alibi and she also gave evidence, to which we return later, that the appellant had sent her threatening text messages. 20. Miss Greenberg rightly submits that the facts as alleged by the complainant were by themselves insufficient to permit the judge to make the ruling he did. Otherwise, as she submits, in any case of domestic abuse of this kind, the prosecution would be entitled to read the complainant’s statements. On the other hand when coming to examine the issue of fear, the facts as recounted by the complainant of the various offences with which the defendant is charged are a relevant backdrop. These, on the jury’s verdict, were terrible offences demonstrating the worst kind of abuse by a male towards his partner. In addition to the evidence of the rapes and kidnapping the complainant gave evidence of a number of incidents which formed the subject matter of count 5. In early June of 2004 on two occasions the appellant, according to the complainant, slapped her with force. The complainant attended a doctor’s surgery. According to his note she told him on that day that her boyfriend had hit her on the face. He noticed that she was tender to the left side of the face. On Tuesday 8 June she was seen at an ENT clinic and she complained of having been assaulted on 7 June. She said that both ears were painful and her hearing had deteriorated. Dry blood was observed close to the right eardrum the left eardrum had suffered a “dry perforation”. That assault had occurred the day before. The complainant had walked from the site to a public call box and rung for an ambulance. A police officer had attended. The complainant had refused to tell the officer who had assaulted her and gave an inaccurate account of what had happened. She told the police that she did not want the appellant to be arrested. 21. The third incident upon which the prosecution relied had taken place in mid June of 2004. Apparently angered at the complainant being out with another man the appellant had threatened the other man with a baseball bat. He told her not to call the police, not to associate with other men. He said: “it is the way of the gypsy”. 22. The fourth incident related to the threat to stab her when she told him she was going for an abortion. 23. A fifth incident occurred, so she said, when they were travelling in his van. They argued and he punched her to the side of her head with a clenched fist. She ran out from the van into the road and flagged down a car. He caught her. Calling her a slag and a whore, he kicked her hard in the backside and again punched her to the head. She was not rendered unconscious but she did feel dizzy. There was independent evidence supporting the fact that she had tried to flag down a car. The driver of that car described her as “distressed, panicky and in a confused state and crying.” Thereafter, as is not unknown in cases of domestic violence, the complainant refused to name her assailant and declined properly to be examined by the paramedic. The witness described driving the complainant back to the site and the complainant’s reaction when she saw the appellant and his reaction to her. According to the witness the appellant said to the complainant “get out of the car, get the fuck out of the car”. To the witness the appellant said: “if you come back here again I’ll break your fucking legs”. We should add that the appellant denied any of this. 24. The sixth incident took place in the early hours of Saturday 26 June 2004. Police attended the site and spoke to the complainant. She said that the appellant had become angry when she refused to let him in the caravan and that he had threatened to set it on fire. The police apparently searched for him without success. On the 30 June there were two 999 calls from the complainant telling the police that the appellant was threatening to kill her. She was asking for police to come to the site. In addition to the evidence from her there was evidence of her confiding in other residents on the site. In particular she told a witness U that the appellant had hit her and that she was too scared to get away from him. 25. In the words of the prosecution opening, the appellant, having been remanded in custody, thereafter did his best from within the prison to scupper the prosecution including recruiting his co-defendants to intimidate witnesses (count 6). U described one of the co-defendants coming to his caravan and saying “Malcolm knows that you have made a statement to the police you should do him a favour and tell the police he is an all-right guy and that she is a stupid cow and you should reverse your statement. You can’t rape your wife anyway. He is a good man, if he gets sent down for this then there will be trouble. He would do anything for anyone and if he does get sent down he will be out in a few years and he will come looking for you and burn your caravan down. We look after each other.” U’s partner heard words to a similar effect. One of the co-defendants in interview admitted threats to burn the caravan. Within less than 24 hours of this visit U, his partner and their children had left the site. 26. In early July the complainant received a message on her mobile phone made by the co-defendant telling her to drop the charges. On 19 July U paid a return visit to the site and was shown a letter from the appellant in which the appellant had written “I have now read the statements and I know that [you] has grassed on me”. The appellant was telling the reader that he was offering £5,000 to anyone who could tell him of the whereabouts of the complainant. He also wrote to the complainant from prison on about 12 July 2004 saying that he had “been a cunt” to her and that he was sorry about it. He referred to having £7,000 in the bank. Police officers found a letter from the appellant to the two co-defendants expressing his frustration and saying that he hoped that both of them could sort things out. Another letter made reference to her dropping her statement and stated that U was lying. 27. The police obtained recordings of seven calls made by the appellant. On 7 July he telephoned the complainant saying “talk to me please”. There is reference to him wanting her to withdraw the charges, reference to the statement made by U and discussion of the fact that the complainant could not be located. 28. Such were the nature of the threats being made against the complainant, either directly or indirectly by the appellant that on 22 July it was arranged that she should have full witness protection. In October the complainant left witness protection. She was to give a full explanation as to why she left witness protection when she appeared before His Honour Judge Kemp in July 2005. 29. It is quite clear that during this period the appellant was taking steps to find out where she was. He was using threats and his financial resources to try to stop her giving evidence. He tried to stop U from giving evidence. Much of this evidence was supported by independent testimony. We should add that as the judge knew the appellant had a number of previous convictions. In particular for threats to kill, he had been sentenced to imprisonment for 30 months. That related, as the judge said, to making threats to kill the mother of a woman with whom he was having a relationship. 30. The judge referred to Mr Price’s argument that it is a logical possibility that something did happen between November 2004 and July 2005 to make her move from not wanting to give evidence to an absolute refusal to give evidence. Miss Greenberg attacked that part of the judge’s ruling, arguing that a logical possibility was insufficient. But in context we are satisfied that the judge was merely repeating what Mr Price was saying without actually reaching a conclusion about it. 31. On 12 November she made a statement expressing an unwillingness to attend court. At no time has she said that her allegations were untrue. 32. In the statement on 12 November she said that she had been told that the trial was due to start at the end of February 2005, that she was experiencing a lot of emotional stress and pressure by having to recover from the offences, change her whole life. She faced the prospect of having to relive it all at court. She said this was the main reason why she did not want to give evidence. The complainant said that she had not been put under any outside pressure to come to this decision which she had made of her own free will. She accepted that she might be called to give evidence. If that were to happen she said that she would like to have a screen “because I do not want to be visually intimidated by him while I give my evidence”. She said that the appellant “is a large man who has beaten me in the past and he would try to intimidate me.” She also referred to wanting a live link. Miss Greenberg placed much reliance on the statement. 33. Thereafter, in early 2005 the complainant took steps to conceal her whereabouts from DS Horner. It appears that she may well have gone to India at some point. In June 2005 however, she returned to this country and signed on with the Department of Social Security. DS Horner was able to track her down and she was issued with a summons to attend before His Honour Judge Kemp on 29 July. She attended. That was the last direct contact of any type between her and Detective Sergeant Horner until after the trial. Miss Greenberg points out that the complainant appears to have thought that she was attending to give evidence at that time although the complainant must have realised when she did attend that that was not the purpose. Miss Greenberg submits that the fact of her attendance shows that, at this time, her reluctance to give evidence was not because of fear. As Miss Greenberg points out, the purpose of that hearing was to seek to persuade the complainant to give evidence and there was no significant examination of the veracity of the fears which she was expressing. 34. During the hearing of 29 July she was asked by the judge whether she would attend the trial due to start on 5 September. To this she replied “that is what she was here to discuss”. The judge asked for her current feeling. The complainant said “I’m under threat if I testify”. When asked from whom, she said: “from the people that I will be testifying against, I’ve been told through various sources that if I testify, friends of mine will be… I suppose killed you could say. … Also these people know where my parents – where my mother lives, they have my dad’s telephone number, and I have been told that if I go ahead and testify then, um, the repercussions for me personally and for my family will be very serious.” Those threats, she said, did not come directly from any of the three defendants but indirectly. She said that she did not have sufficient faith in the police and she was very unhappy about the circumstances of the witness protection scheme. When the judge offered her protection she said that the judge was asking her to put her family and her friends and her own personal safety at very severe risk. She said that it was ridiculous to expect that her whole life should be destroyed. She understood that the alternative was that the defendants might get away with it. The judge pointed out to her that it was a very serious case and that the prosecution could only do it with her co-operation. To this she replied that she understood that “I am not averse to duty, your Honour I am just averse to martyrdom.” She declined to say who it was that was making threats. 35. Miss Greenberg relies heavily on her unwillingness to name the people who were threatening her, her unwillingness to co-operate with the police in making inquiries into those threats and critical also of the police decision not to investigate the matter independently. She said that they could have made inquiries of her family to find out what threats if any had been made. In our view, contrary to the submissions of Miss Greenberg, there was ample evidence of her continuing fear of what might well happen to her if she gave evidence either orally in court, behind a screen or through a video link. We do not accept the argument that her failure to give further details or the failure of the police to investigate the matter should have led the judge to reach the conclusion that she was not in fear. We accept that her unwillingness too give details is a factor to be taken into account, but her reference to “martyrdom” shows clearly her state of mind as at July. 36. Thereafter she made herself scarce and, notwithstanding the best efforts of D S Horner, she could not be traced in time for the start of the trial. 37. In our judgment the judge given the matters to which we have referred, was entitled to come to the conclusion which he did, indeed we doubt whether any other conclusion was possible. We also take the view that he was right to conclude that the threats of retaliation were coming directly or indirectly from the appellant himself. Although we accept that there is no evidence of any threats made by him after she left witness protection nonetheless her state of mind as at the time in July and September 2005 has to be assessed against the history which we have set out in some detail. 38. In the light of these conclusions ground 1 must fail. We turn briefly to ground 2. Miss Greenberg particularly criticised the ruling of the trial judge that D should be allowed to give evidence of the appellant raping her. The judge gave his ruling on 12 September 2005. He said that D’s evidence was that she and the appellant were in a sexual relationship in December 2003 only six months before the present allegations were made and she was pregnant with his child. Having told him of her decision to end the relationship, he kidnapped and falsely imprisoned her and also raped her. Miss Greenberg accepted that under section 101 of the Criminal Justice Act 2003 that evidence was clearly admissible. In fact the appellant had been acquitted of all charges arising out of D’s allegations. Miss Greenberg accepted that in the light of Z [2000] 2 AC 483 that did not prevent the evidence from being admissible. In our view there were sufficiently similar features between the allegations made by D and the allegations made by the complainant that the acquittal did not prevent D’s allegations from being admissible on the trial of the appellant. 39. The judge rightly, in our view, accepted the submission that there was no evidence of collusion. Miss Greenberg submitted that had the complainant given evidence then she could have been questioned about whether she knew about the D incident. Even if she had known, that would have been a long way from collusion on the facts of this case. 40. The central thrust of Miss Greenberg’s argument is that it was the cumulative effect of allowing the complainant’s evidence to be read and allowing the prosecution to call the evidence of D was such that a fair trial was not possible. We do not accept this argument. Given the judge’s findings in regard to the reading of the complainant’s evidence, we see no reason why the prosecution’s hands should somehow be tied when it came to the evidence of D. D gave evidence, she was cross-examined and the defendant gave evidence denying her allegations. 41. Miss Greenberg also complains that the judge did not make it clear to the jury that the bad character evidence given by S relating to text messages could not be used by the jury when considering counts one through to four. We have looked at the summing up and in our view the judge made this clear to the jury. 42. Finally we turn to a point made by Miss Greenberg which we find does have some merit. The jury were told that the appellant had been acquitted of the allegations made by D. The judge properly explained why a jury might acquit and then told the jury that the fact that the appellant had been acquitted by another jury could not assist them in resolving the issues raised by D’s evidence. Mr Price has accepted that the judge went too far in saying that the acquittal was completely irrelevant. He submits, and we agree, that the better course would have been to have told the jury that the acquittal meant no more than that the jury were unsure of the evidence given by D. That said, if there was an error, it could not possibly affect the safety of the conviction. 43. For these reasons ground 2 also fails and we dismiss the appeal against conviction.

2007_04_26-1087.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/942/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/942

5a2898b78cb98bb26cdd1a4f9e7b4fc41ddcbb5efd9f0eafd4889fe7e438611b

[2005] EWCA Crim 1728

EWCA_Crim_1728

supreme_court

Case No: 2004/03401/C1 Neutral Citation Number: [2005] EWCA Crim 1728 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT HIS HONOUR JUDGE FORRESTER T20037393 Royal Courts of Justice Strand, London, WC2A 2LL Tuesday, 5 July 2005 Before : THE RT HON LORD JUSTICE MAY THE HON MR JUSTICE PITCHERS and THE HON MRS JUSTICE COX DBE - - - - - - - - - - - - - - - - - - - - - Between : R Appellant - and - (1) Anthony Gerrard van Dongen (2) Mitche

Case No: 2004/03401/C1 Neutral Citation Number: [2005] EWCA Crim 1728 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT HIS HONOUR JUDGE FORRESTER T20037393 Royal Courts of Justice Strand, London, WC2A 2LL Tuesday, 5 July 2005 Before : THE RT HON LORD JUSTICE MAY THE HON MR JUSTICE PITCHERS and THE HON MRS JUSTICE COX DBE - - - - - - - - - - - - - - - - - - - - - Between : R Appellant - and - (1) Anthony Gerrard van Dongen (2) Mitchell van Dongen Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr S Hadley and Mr T Clarke appeared for the appellant Anthony Gerrard van Dongen Mr J Dein QC and Mr B Maguire appeared for the the appellant Mitchell van Dongen Mr D E Waters QC and Miss B Cheema were instructed by the Crown - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice May: Introduction 1. The appellants, Anthony and Mitchell van Dongen, are brothers. Anthony van Dongen is 31. Mitchell van Dongen is 24. They each appeal against their conviction of murder by a unanimous jury at the Central Criminal Court on 14th May 2004 before HHJ Forrester. They were each sentenced to life imprisonment with a recommended minimum term of 12 years 11 months. Contingently upon the outcome of their appeals against conviction, there are appeals against the length of their recommended minimum terms of imprisonment. This judgment deals with the conviction appeals. 2. The trial was a retrial, necessary because the judge at the first trial became indisposed. 3. The person who died was a 26 year old engineering student, Myo Thaung. Mitchell van Dongen admitted causing his death by kicking his head. His defences were self-defence, a lack of the necessary intent for murder and accident. Anthony van Dongen’s case was that he was unconscious for most of the incident. He regained consciousness towards the end of the incident and may in self-defence have struck Alan Knapp, a friend of the man who died. But he had nothing to do with the injuries from which the victim died. 4. A defence of provocation was not advanced in evidence or forensically for either defendant. Whether or not to rely on a defence of provocation is a dilemma which often faces those representing defendants in murder trials whose main defence is self-defence or lack of intent. A defence of provocation may be intrinsically inconsistent with, or may otherwise weaken, other defences. But it is well established that the judge should direct the jury to consider a defence of provocation, even if it is not the defendant’s overt case, if there is some evidence from whatever source from which the jury could find that there was provoking conduct which resulted in the defendant losing his self-control – see for instance R v Acott [1997] 2 Cr. App. R 94. 5. In the present case, Mr Dein QC, on behalf of Mitchell van Dongen, invited the judge to direct the jury as to provocation. Mr Waters QC for the Crown resisted this. The judge decided not to leave provocation to the jury. Mitchell van Dongen’s main ground of appeal is that the judge was wrong here and that the conviction for murder is in consequence unsafe. 6. Mr Hadley, on behalf of Anthony van Dongen, adopts this ground of appeal, although he recognises that the nature of Anthony van Dongen’s case, that is that he did not participate in the fatal attack, weakens the ground of appeal in his case. He submits, however, that, if Mitchell van Dongen’s appeal succeeds on this ground, justice requires that Anthony van Dongen’s appeal should also succeed. We are inclined to agree. 7. There is a second insubstantial ground of appeal which Mr Dein advanced without enthusiasm. Facts 8. At about 1.30 am on 6th April 2003, police were called to Westferry Road, Isle of Dogs. They there found Myo Thaung unconscious in the road with severe head and internal injuries. After being treated at the scene, he was taken to hospital where he received surgery. But he died two days later. 9. The prosecution case was that the appellants jointly and deliberately attacked and beat the victim intending either to kill him or to cause him really serious bodily injury. The appellants denied that they had participated in a joint enterprise to attack the victim. 10. Mitchell van Dongen’s case was that, although he admitted that he had inflicted with his foot the head injuries which caused the victim’s death, he did so accidentally in reasonable defence of himself and his brother. He did not intend to kill the victim, nor to cause him really serious injury. Anthony van Dongen’s case was that he was unconscious for most of the time. He had not intended to kill the victim nor cause him really serious injury. Indeed he had not inflicted any injury to him, although he may in self-defence have struck Alan Knapp. 11. Alan Knapp gave evidence that he and the victim were flat mates. They had been out that night celebrating his own birthday. They had been for a meal and then went to a bar with two other friends. He admitted that he became drunk. His memory was fragmented and he did not remember earlier parts of what had happened. The victim had drunk less than he had. He appeared in a relaxed and good mood. He became a larger and livelier person in drink, but was not aggressive. They walked home along Westferry Road. He was on the right hand side of the road and the victim was on the left. He became aware that the victim was in a scuffle with two white men. By the time he himself got to the other side of the road, the victim was on the ground and the two white men were both kicking him. The kicks were hard and aggressive, more than one kick from each man. One of the men stopped kicking the victim and came towards him aggressively. He put out his hand in peaceful gesture to try to diffuse the situation. The advancing man hit him on the back of his head with his fist causing him to drop the telephone he had in his right hand. He had already called the emergency services. Both men ran off down the street. He did not recall anyone holding or throwing anything. 12. The two other people, with whom the victim and Alan Knapp had been out that night, each gave evidence of the victim’s condition and of how in general drink would affect him. 13. There was further eye witness evidence from five people who were driving past the incident. Four of these were in one car and the fifth in another car which was following the first car. They each gave detailed evidence and were cross-examined. These witnesses were Sarah Darwood, the driver of the first car, a BMW; Louise Everingham, her front seat passenger; Richard King, who was in the back seat behind the front passenger; and Tina Stephens, who was in the back seat behind the driver. Samantha Taylor was in a following BMW. 14. A fairly short summary of their combined evidence will suffice. There were some differences between their accounts, and some inconsistencies between their evidence in this trial and in the first trial. 15. The combined effect of their evidence, if the jury were to accept it, was that they saw two white men attacking a Chinese man who was on the ground by repeatedly kicking or stamping on him. Both the white men were attacking him. One was at the head of the man on the ground, the other towards his feet. The man at the head end stamped on or kicked the Chinese man’s head. Some of these witnesses saw one of the white men with or wielding a road sign. Sarah Darwood said that the Chinese man had not been holding the road sign. On the ground, the Chinese man had his arms up trying to defend himself and offering no violence. The force used by the white men was hard and violent. Another man, who must have been Alan Knapp, shouted at the white men to stop. Samantha Taylor said that both white men were involved in the fighting. The Chinese man was on the floor scrunched up in a foetal position. One of the white men was kicking him. The other was just standing there about a foot away doing nothing to stop it. 16. One reason why it is not necessary to give a fuller account of this evidence lies in the post mortem and biological evidence, to which we will come in a moment. But this body of eye witness evidence was in our judgment amply sufficient, if the jury accepted it, for them to reject Anthony van Dongen’s evidence and case that he was unconscious and did not take any significant part in the attack. It was also broadly inconsistent with a defence of self-defence. 17. Post mortem examination of the victim found a total of about 30 injuries. There were fifteen separate head injuries which, in the opinion of Dr Heath, the pathologist, would have needed a minimum of fifteen separate blows. The head injuries included bruising and abrasions. Two bruising patterns were likely to have been caused by stamping rather than kicking. The brain was soft, congested and swollen with haemorrhage between the brain and skull. The head injuries had caused the brain damage which had caused the victim’s death. Injuries to his hands taken as a whole were defensive injuries, although it was possible that some of the injury resulted from him delivering a punch. 18. Generally one or two of the injuries could have been caused by falling, but not most of them. There was bruising to his chest and abdomen which could not have resulted from him falling to the ground. Bruises below the knee could have been so caused, but not one higher up on the knee. There were however 10 such injuries which, in Dr Heath’s opinion, were consistent with the victim being curled up in a defensive position. The injuries below the waist were not the cause of death. 19. Dr Heath agreed in cross-examination that one injury to Mitchell van Dongen’s back shown on photographs, which he had not seen before, could have been caused by a blow from a quite heavy road sign, which he was shown. The photographs showed another back injury which was not, in his opinion, an impact injury. 20. Bridget March, a biologist, had examined the scene and found bloodstains from the victim. There was blood on a drainpipe 46 cm above the ground. This, in her opinion, was blood spatter resulting from impact at low level into wet blood. There was blood on the middle panel of a window 102 cm above the ground. She again considered that this was airborne blood resulting from impact into wet blood while the bleeding person was upright at the time. These findings required at least three blows – one to cause the bleeding and the other two to cause the spatter. The victim’s blood was found on both sides of the road sign, and in her opinion he had been struck with both sides of the sign. There were no recoverable fingerprints from the sign. 21. Both appellants were arrested on 12th April 2003. They were cautioned. There was police evidence that Anthony van Dongen said: “I don’t believe this. I am a member of the constabulary.” He was indeed a Special Constable. Mitchell van Dongen said: “I know what this is about. He came at me with a sign and so I knocked him to the floor”. He then became emotional and said: “I knocked him to the floor and then I kicked him in the head to stop him getting up.” He was warned to say nothing further until he had spoken to his solicitor. He then said: “I didn’t know he had died”. When he was later asked to read and confirm a written account of this conversation, he said that he had meant that his brother had fallen to the ground when the man tried to hit him with the sign, because they had their arms around each other. 22. Mitchell van Dongen was medically examined for injuries to his back, which he said had been caused during the incident when the victim had hit him with a metal sign, causing him to fall to the ground. The doctor reported scabs which were old and dry and consistent with the incident, rather than being fresh. 23. The appellants each gave accounts in police interviews which were consistent with their evidence at their trial. The day after the interviews, Mitchell van Dongen made a unsolicited remark that he prayed that it was all recorded on CCTV because that, he said, would clear him and his brother. 24. Both appellants gave evidence. Mitchell van Dongen said that he had had four drinks that night. He was merry, but not drunk. The drink had not affected his temperament or his memory. His brother was quite drunk, unsteady and slurring his words. But he was not aggressive when he had been drinking. 25. After leaving the bar, they walked along the street with arms around each other. He became aware of someone behind them. He heard a scraping noise, looked behind and saw a man with a road sign in both hands raised above his head. He asked the man whether he was coming at him with it. The man did not reply, but struck him with the sign on his left shoulder. His brother went to the floor and the man struck him with the sign directly onto his back. He himself fell causing his knee to make contact with the ground. He turned, his only thought being for the well being of his brother, who was vulnerable on the ground. He stood up. The man with the sign came at him again. He managed to get the sign off him and pulled it away. In the struggle, he knocked the man in the face with his elbow and he fell flat onto his back. The man then got up and came charging at him with his head down and clenched fists. He himself moved to the left of the man and clipped him on the back of his head to stop him. The man fell down in the alleyway. He went to get up again and so he kicked him to keep him on the floor so that he would not attack any more. At that stage his foot had perhaps made contact with the man’s ribs and arm and the right side of his face banged on the cobbles. The man tried to get up again, so he kicked his arm to stop him. He tried to stamp on his hands to stop him and his foot glanced off his hand and caught the left side of his face. The man grabbed his right leg. He shook it to try to release the grasp and perhaps in doing so made contact with the man’s body. He may have kicked the man as he lay on the ground and stamped on him, but he did not intend to hurt him. He was just trying to get away. He was not aiming at anywhere in particular. He just wanted him to let go of his leg, which he had in a tight grip and he was pulling it towards his head. He kicked the man in the side and pressed his leg back to pin him down. 26. He then saw the man’s mate coming over. He was on the telephone. He himself swore at the friend and told him to put the phone down. He thought he was calling other people as reinforcements. The friend dropped the phone and approached his brother. He did not see what happened between them. He and his brother then left. He thought he had just been involved in a fight. He did not believe that the man was seriously hurt. If he had known afterwards that the man had died, he would have gone to the police. He had no reason to attack anyone or to hurt the man. His only intention was to make sure his brother was all right. His brother was not involved in the incident at any stage. He had not seen him make any physical contact with the man. He said in cross-examination that he did not know if the man had hit his brother with the road sign. He did not say to the officers who later arrested him that he had deliberately kicked the man in the head to stop him from getting up. 27. He accepted in cross-examination that he had caused a minimum of fifteen injuries to the victim’s head, although he could not say how many times his foot had been in contact with his head. He was shaking his leg to get away and the contact was accidental. The prosecution witnesses were mistaken. The broken ribs must have been caused when he stood on the man’s back: the leg injuries when the man fell to the floor. 28. Anthony van Dongen said that, when he and his brother left the bar that night, he was probably unstable, but not falling about. He remembered walking down Westferry Road arm in arm with his brother. The fresh air made him feel worse. He suddenly became unconscious in a way he had not experienced before. This was before he became aware of any part of the incident. The next thing he remembered was coming round on the pavement and seeing his brother struggling with someone he had never seen before. He thought his brother was being attacked, so he got up to help him. The man was lying by a gate and his brother was standing at his top end. Another man then appeared, so he went towards him as he thought he was going to attack him. It all happened quickly. He did not deny that he may have punched Alan Knapp on the back of his neck because he thought he was about to be attacked. His brother then called him and they left. He did not pay any attention to the man on the ground and did not see his condition. He had no idea at the time that he was injured. He did not know what had caused his injuries, but it was certainly not he. He himself was not injured. He agreed that his loss of consciousness was not caused by any injury. 29. Thus it was that Mitchell van Dongen’s main defences were accident and self-defence. He also said that he did not have the necessary intent for murder. These were unpromising defences in the light of the prosecution evidence, not least the medical evidence, which securely established the savagery of what must have been a sustained attack. There was no countervailing medical or scientific evidence. 30. Anthony van Dongen’s main defence was that he did not participate, being unconscious at the time – again an unpromising defence in the light of the clear evidence of the eye witnesses. The verdicts 31. Subject to consideration of the two matters raised in the grounds of appeal, the jury were properly and fully directed by the judge in his summing up. They unanimously convicted the appellants of murder. They must therefore have accepted the main lines of the evidence of the eye witnesses and surely rejected the defences on which the appellants relied. In particular, they must have rejected the main parts of Mitchell van Dongen’s exculpatory evidence. They must have been sure that the injuries he inflicted were not accidental; sure that he did not inflict those injuries in reasonable self-defence; and sure that he intended to cause the victim at least really serious injury. As to Anthony van Dongen, they must have rejected his account that he was unconscious and played no part in the attack at least to the extent of accepting the evidence of the eye witnesses that both white men, of whom he must have been one, participated in the kicking and stamping attack on the man on the ground. 32. The jury’s verdicts do not imply whether or not they surely rejected Mitchell van Dongen’s evidence that the victim came at them wielding the road sign. As we understand it, the eye witnesses’ evidence did not exclude that possibility. Although Sarah Darwood said that the Chinese man had not been holding the road sign, and Louise Everingham said that a white man picked up a road sign and hit the Chinese man over the head with it, the Chinese man may have had the road sign before the cars drove by. Louise Everingham had said that she saw the Chinese man and one of the white men struggling with the road sign. Richard King first saw a man on the alleyway side of the pavement holding a road sign above his head. He could not say which man this was and agreed that the man on the ground could have had the road sign first. Tina Stephens saw a white man holding what looked like a road sign in both hands. She saw no scuffle holding the road sign. The jury’s verdict is consistent with a decision that, even if the victim did come at the appellants with a road sign, their responding violence quickly moved from defence to unnecessary and utterly disproportionate intentional attack, and thus was not reasonable self-defence. No provocation direction 33. Before he summed the case up, the judge was asked by defence counsel to include a direction to the jury on provocation. The prosecution opposed this request. The judge declined to give a provocation direction. The first ground of appeal is that he was wrong not to do so. 34. The judge’s attention was drawn to R v Miao [2003] EWCA Crim 3486 , an appeal to this court in which the trial judge had also been invited to leave provocation to the jury, but had declined to do so. In the present case, the judge accepted Mr Waters’ submission that, if it were necessary in this case to give a provocation direction, such a direction would be necessary in every case in which the real issue was self-defence. He noted (at page 23B of the transcript) that the two appellants and the victim had never come across each other before. It was an incident which had happened in the street. The appellant’s account was that they were acting in self-defence. It was not an appropriate case for provocation to be left. They were “in the realms of what has been called a speculative possibility”. Provocation – the law 35. Section 3 of the Homicide Act 1957 provides: “Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control the question whether the provocation was enough to make a reasonable man do as he did should be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.” There are thus three elements: (1) there has to be evidence on which the jury could find that the person charged was provoked. (2) there has to be evidence on which the jury could find that he lost his self control. (3) the provocation has to be enough to make a reasonable man do as he did. The last of these three elements is by statute left for the jury. The first two are usually in the authorities combined as a single composite. 36. If there is evidence on which a jury could find that the accused was provoked to lose his self-control, the issue of provocation must be left to the jury even if, in the opinion of the trial judge, no reasonable jury could possibly conclude on the evidence that a reasonable person would have done as the defendant did and thus that on the evidence a verdict of manslaughter would be perverse – see R v Gilbert [1978] 66 Crim. App. R. 237. This is the plain meaning of the statutory provision 37. In R v Miao , the Vice-President, Rose L.J., quoted from the opinion of Lord Steyn in Acott at page 100E as follows: “It remained the duty of the judge to decide whether there was evidence of provoking conduct, which resulted in the defendant losing his self-control. If in the opinion of the judge, even on a view most favourable to the accused, there is insufficient material for a jury to find that it is a reasonable possibility that there was specific provoking conduct resulting in a loss of self-control, there is simply no issue of provocation to be considered by the jury.” At page 102E Lord Steyn said: “If there is such evidence, the judge must leave the issue to the jury. If there is no such evidence, but merely the speculative possibility that there had been an act of provocation, it is wrong for the judge to direct the jury to consider provocation. In such a case there is simply no triable issue of provocation.” The Vice-President said that those observations were equally apt when considering whether there is sufficient evidence that a defendant was provoked, as they are when considering whether there was evidence of provoking conduct. He then quoted from the judgment of Roch LJ in R v Jones (22nd October 1999, unreported) at page 7 of the transcript: “Trial judges are inevitably aware that the giving of a provocation direction must tend to undermine lines of defence such as those which were advanced on behalf of the appellant in this case. It is unlikely that a person who has lost control of himself is acting in defence of another. It is more likely that such a person will have intended to kill or to cause really serious physical harm. For that reason a judge should not give a direction on provocation where evidence of provoking conduct by the deceased, or evidence that such conduct caused a loss of self-control by a defendant, is minimal or fanciful. To repeat the words of Lord Steyn, there has to be evidence of 'specific provoking conduct resulting in a loss of control’.” 38. The Vice-President then said in paragraph 19 of Miao : “The law is clear in the light of the authorities to which we have briefly referred. It is for the judge to decide if there is evidence of provoking conduct and loss of self-control. If there is sufficient evidence, it is a matter for the jury. If there is insufficient material to find as a reasonable, rather than merely speculative, possibility that there was provoking conduct and loss of self-control, there is no issue and the judge should not leave provocation to the jury. A trial judge is, in many cases, better placed than this Court to assess the quality and effect of the evidence which has been placed before the jury.” 39. In Miao , the Court said that there was evidence of potentially provoking conduct sufficient to be left to the jury, but that there was only a speculative possibility that the defendant may have lost his self-control. There was no evidence of a frenzied attack. Applying Lord Steyn’s yardstick in Acott , the Court held that the trial judge’s decision not to leave provocation was courageous, but also correct. 40. In the present case there was evidence of a frenzied attack, if only by deduction from the post mortem and biological evidence. There was thus evidence of loss of self-control by Mitchell van Dongen fit to go to the jury. Mr Waters accepted this. He submits that the judge was entitled to conclude that there was no sufficient evidence of provoking conduct. He accepts that Mitchell van Dongen’s evidence was that the victim came at him with a road sign. But he points to the evidence of Alan Knapp and the five other eye witnesses whose effect the judge summarised as being that, with one exception, who was neutral, they all said that the man with the road sign was not the victim. Mr Dein had agreed with that summary. Mr Waters submits in effect that the judge was entitled to make an evaluative judgment of the evidence as a whole and thereby to reach the conclusion that he did. Mr Dein says that, in the context of the possible defence of provocation, it was for the jury to determine whether Mitchell van Dongen’s account of the victim coming at him with the road sign was or may have been true. We think that, in the present case, Mr Dein is correct. The terms of section 3 of the 1957 Act , Acott and Miao all predicate a degree of judicial evaluation of the evidence bearing on the first two of the elements of a possible defence of provocation. But Mitchell van Dongen’s evidence that the victim came at him with a road sign was neither speculative nor minimal – nor indeed, we think, of entirely doubtful credibility. A speculative possibility will normally arise when there is no, or very little, direct evidence. Here there was direct evidence. 41. This constitution of this Court is less troubled than earlier constitutions appear to have been by the possibility that a judicial direction on provocation which the defence does not overtly rely on may appear to undermine other defences on which the defendant does rely. We acknowledge the forensic dilemma, but consider that a skilfully constructed summing up should be able to avoid the problem in most, if not all, cases. However that may be, in the present case the defence asked for a provocation direction, and Mr Waters acknowledges before us that, if a provocation direction was required, it should have been given. 42. We are more troubled by the difficulty for judges in deciding in borderline cases whether particular conduct is to be regarded as provoking conduct. The difficulty derives from the fact that section 3 of the 1957 Act requires the objective element of provocation to be left to the jury. Yet provocation or provocative conduct should, it is to be supposed, have some attribute which makes the conduct provocative. We are concerned with provocative conduct, not mere causative conduct. Yet a judgment, that particular specific conduct was causative but cannot properly be called provocation, risks straying into an evaluation of the objective element which statute has left to the jury. To decline to make the judgment would mean, as the judge in the present case thought, that judges would be obliged to give a provocation direction in all, or nearly all, murder cases in which there is a defence of self-defence and more than speculative evidence that the defendant may have lost his self-control because of things done or said or both. 43. It looks as if this difficulty, or a variant of it, arose for debate in Acott , where Lord Steyn said at page 102F: “Counsel for the appellant invited your Lordships to go further and state what would be sufficient evidence of provocation to justify a trial judge in leaving the issue of provocation for the jury to consider. The invitation was attractively put. But it must be rejected. What is sufficient evidence in this particular context is not a question of law. Where the line is to be drawn depends on a judgment involving logic and common sense, the assessment of matters of degree and an intense focus on the circumstances of a particular case. It is unwise to generalise on such matters: it is a subject best left to the good sense of trial judges. For the same reason it is not useful to compare the facts of decided cases on provocation with one another.” 44. In the present appeal, Mr Waters asks us to say that this was a borderline case and that the good sense of the trial judge should not be disturbed. With some hesitation, we disagree. There was evidence that Mitchell van Dongen lost his self-control. There was specific evidence – that of Mitchell van Dongen himself – that the victim came at him with the road sign. That was capable of being causative conduct. We are not confident that it was not capable, apart from the objective element, of being provocative conduct. We conclude that the judge should have directed the jury on provocation. In borderline cases such as this, it is the prudent course for judges to take, especially if the defence ask for a provocation direction to be given. Are the convictions safe? 45. There was, therefore, a misdirection. Mr Dein submits that in these circumstances the appeal should be allowed and a manslaughter verdict substituted. Mr Waters accepted initially that this should follow – the prosecution would not seek a second retrial. At one stage in argument we had the quixotic forensic situation where Mr Dein conceded that it was open to the Court to conclude that the verdicts of murder were safe: but Mr Waters conceded with reference to his then understanding of the Privy Council decision of The Queen v Franco (P.C. Appeal No. 70 of 2000, 14th August 2001) that it was not open to this Court so to conclude. His then understanding was based on the Times Law Report summary version of the Privy Council decision. We adjourned the hearing of this appeal to enable counsel to make further written submissions about Franco , when they had considered the full report. We shall consider Franco later in this judgment. 46. The burden is on the prosecution to disprove provocation to the criminal standard. In many cases where provocation has not been left to the jury when it should have been, it would be no more than speculation to ask what the jury’s decision would have been, if had been left to them. Logically, if there is, as we have concluded in this case, evidence on which the jury could have concluded that Mitchell van Dongen was provoked to lose his self-control, we could not safely conclude that the jury would surely have decided that he was not so provoked, unless this can be safely deduced from the verdicts which they gave on the issues which they were directed to decide. There was clear evidence that Mitchell van Dongen may have lost his self-control. The jury would have had to consider whether he was provoked. That would depend on whether they accepted that the victim initially came at the brothers with the road sign or that he may have done. Given that the jury convicted both appellants and that they must have surely rejected the main significant parts of their evidence, they may well also have rejected Mitchell van Dongen’s account of the victim having the road sign. But we cannot be sure about this, since the defence of self-defence at least was scarcely viable on the medical and scientific evidence alone even if the victim initially had and used the road sign. 47. It remains to consider whether the jury could conceivably have concluded that any provocation which they might conceivably have found was enough to make a reasonable man do as Mitchell van Dongen did. Since this is the element of the defence of provocation which statute reserves exclusively for the jury, the first issue is whether it is open to this Court to conclude that the appellants’ convictions for murder are safe, even though the jury were never given the opportunity of performing this element of their statutory function. Mr Waters has remained coy about this. But we have a statutory duty to dismiss the appeals, if we do not think that the murder convictions are unsafe – section 2(1)(b) of the Criminal Appeal Act 1968 , subject of course to relevant matters of law or statute. 48. In R v Cox [1995] 2 Cr. App. R. 513, this Court was clearly of the opinion that, as a matter of law, the court in an appropriate case might apply the proviso to the then section 2(1) of the Criminal Appeal Act 1968 , where there had been a misdirection by a failure of the judge to leave the issue of provocation to the jury. [ Section 2(1) ] has of course since been amended, but not so as to alter the intrinsic nature of the question now under consideration.] The court considered R v Whitfield (1976) 63 Crim. App. R. 39 at 43, in which Lord Widgery CJ, giving the judgment of the court, had said that, if the court applied the proviso, they would be determining the issue otherwise than by verdict of the jury – see also R v Burgess and McLean [1995] Crim. LR 425 cited in Cox at 520E. Glidewell LJ, giving the judgment of the court said that, with all due respect of how the court in Whitfield dealt with the matter, section 3 of the 1957 Act spells out the function of the judge and jury at the trial. The section is dealing with the trial, not the appeal. 49. We were also referred in this context to R v Rossiter (1992) 95 Cr. App. R. 326 at 333 and to the passage there cited in the speech of Lord Tucker in Bullard v R. [1957] A.C. 635 at 642 where he said that every man on trial for murder has the right to have the issue of manslaughter left to the jury if there is any evidence upon which such a verdict can be given: and that to deprive him of this right must of necessity constitute a grave miscarriage of justice and it is idle to speculate what verdict of the jury would have reached. 50. In R v Dhillon [1997] 2 Cr. App. R. 104, the trial judge had thought that there should be a provocation direction, but neither prosecuting nor defence counsel thought it was necessary. So the judge did not give the direction. This court on appeal acknowledged that the judge was anxious to be fair, and had done what both experienced counsel had agreed that he should do. Nevertheless, the law was clear and on the facts the judge should have given a provocation direction. The question then was whether the omission made the conviction unsafe. Ward LJ, giving the judgment of the Court, said at page 114F: “There is now only one test: does the court think that the conviction is safe or unsafe? In deciding that we must pay particular respect to the almost unique statutory requirement imposed by section 3 of the Homicide Act that the question whether the provocation was enough to make a reasonable man do as this accused did must be left to the jury. That does not mean that the loss of the right to a trial of this issue by a jury must include the loss of a chance that a jury might return a perverse verdict. It means only that we must be astute to acknowledge that the judgment of human frailty – for it is that which lies at the heart of provocation – is a relative not an absolute judgment in respect of which a jury is well-placed to accommodate a permissible difference of emphasis. Thus the question is not whether we, on due and proper consideration of all the relevant evidence, are sure of guilt, but whether we are sure that at least ten members of the jury would be drawn inevitably to that conclusion.” On the facts of that case, since the Court could not answer that question with certainty, the conviction for murder was quashed as being unsafe. For the notion whether or not the jury should be deprived of the opportunity to return a perverse verdict, see also Lord Steyn in Acott at page 102E, where however the emphasis is on what we have referred to as the first two elements of provocation. 51. The Queen v Franco was an appeal to the Privy Council from the Court of Appeal of Antigua and Barbuda. The appellant was convicted of murder and sentenced to death. His defence was self-defence. No defence of provocation was advanced at trial and the trial judge gave no direction to the jury on provocation. On appeal to the Eastern Caribbean Court of Appeal, the prosecution accepted that, on the evidence of the appellant, an issue of provocation had been raised and ought to have been left for the jury’s consideration. But the Court of Appeal concluded that, if the jury had been properly directed on provocation, they would inevitably have convicted the appellant. They accordingly applied the proviso to section 39(1) of the West Indies Associated States Supreme Court Act 1969 and dismissed the appeal because they considered that no miscarriage of justice had actually occurred. [The proviso in section 39(1) is equivalent to that in the unamended version of section 2(1) of the 1968 Act .] The central issue in the appeal to the Privy Council was whether the proviso was properly applied in the circumstances of the case. Section 9C of the Offences against the Person Act (Cap. 58) of Antigua, as amended in 1986, follows section 3 of the 1957 Act . This issue before the Privy Council in Franco was essentially the same as the issue we are now considering. 52. Lord Bingham of Cornhill delivered the judgment of the Judicial Committee. He said at paragraph 14 that the clear effect of section 9C was to deny to trial judges the power previously exercisable to withdraw the issue of provocation from the jury where there is evidence potentially capable of satisfying the subjective condition, even if the judge considers that there is no evidence which could lead a reasonable jury to conclude that the provocation was enough to make a reasonable man do as the particular defendant did. 53. The submission on behalf of the appellant was, not that section 9C of the Antigua statute absolutely precluded the Court of Appeal from applying the proviso when the trial judge had wrongly failed to leave the objective issue for determination by the jury, but that it would rarely be proper to do so. By applying the proviso, the appellate court was doing exactly what the statute forbade, by substituting the decision of judges for the decision of the jury on the question which the statute required to be decided by the jury. Counsel particularly relied on Whitfield . Lord Bingham cited at length from the judgment of the court, given by Lord Widgery CJ, at page 42, to which we have referred earlier in this judgment. Counsel accepted that there could be cases in which the proviso could be applied even where section 3 or its equivalent had not been observed, but the case of Franco was not such a case. 54. Counsel for the Crown submitted that it was appropriate to apply the proviso, if the court could be satisfied that the jury would inevitably have come to the same conclusion and returned the same verdict, even if the error or irregularity complained of had not occurred. Counsel relied in particular on Cox , and Lord Bingham cited from the judgment of Cox , to which again we have referred earlier in this judgment. 55. Lord Bingham then said at paragraph 17: “The Board would accept that there will be cases where the proviso may properly be applied even where the objective issue should have been but was not left to the jury.” Such a case, he said, was Williams (Cardinal) v R (1998) 53 WIR 162 , in which the objective issue should have been left to the jury, but the appeal failed because the jury by their verdict had clearly rejected as untrue the provoking conduct which the appellant relied on. In Campbell (Adolphus) v The State (1999) 55 WIR 439, the Board had found it inevitable that the jury would find against the appellant on the objective issue, but the present issue was not the subject of argument. 56. Lord Bingham then said: “18. In the opinion of the Board, the reasoning of the Court of Appeal in R v Cox , above, does not give adequate weight to the intention of Parliament expressed in section 3 of the 1957 Act and its overseas equivalents. The starting point must always be that in a trial on indictment the jury is the body to which the all-important decisions on the guilt of the accused are entrusted. This does not mean that every deviation from procedural regularity and legal correctness vitiates a jury’s verdict of guilty. That would impose an unattainable standard of perfection and frustrate to an unacceptable extent the effective administration of criminal justice. But it does mean that an appellate court, which is not the trial tribunal, should be very cautious in drawing inferences or making findings about how the jury would have resolved issues which, for whatever reason, were never before it. This is particularly so in the context of section 3 , since Parliament has gone out of its way, unusually, to stipulate that resolution of the objective issue, where it properly arises, should be exclusively reserved to the jury. To the extent that an appellate court takes it upon itself to decide that issue it is doing what Parliament has said the jury should do, and section 3 cannot be read as applying only to the trial court. 19. Like Lord Widgery in R v Whitfield , above, the Board would not go to the length of saying that the proviso is never appropriate in this kind of case. The facts of a given case or the necessary logic of a jury’s verdict may rule out any possibility of a miscarriage of justice. But the caution with which that conclusion should be reached is made clear by Lord Tucker, giving the advice of the Board, in Bullard v The Queen [1957] AC 635 at 644 when he said: “Every man on trial for murder has the right to have the issue of manslaughter left to the jury if there is any evidence upon which such a verdict can be given. To deprive him of this right must of necessity constitute a grave miscarriage of justice and it is idle to speculate what verdict the jury would have reached.” The potential danger of delving into the minds of the jury was recognised in Bullard v The Queen , quoting Humphreys J in R v Roberts [1942] 1 All ER 187 , and again in Edwards v The Queen [1973] AC 648 at 659. 20. It may very well be that the jury in the present case would still have convicted the appellant of murder even if fully directed on provocation. The verdict makes plain that they rejected his evidence that he killed the deceased in the course of defending himself. But it does not follow that they would have rejected a defence of provocation. There was clear evidence that the deceased had acted in a violent and aggressive manner towards the appellant very recently; there was evidence of provocative conduct on the evening in question; there was evidence possibly suggesting a loss of self-control. It cannot now be known how the jury would have resolved this issue had it been left to them, as it should. This is not a case in which it would be proper to apply the proviso. ” 57. The question for this court, as Mr Waters emphasises, is whether, notwithstanding the misdirection, the appellants’ convictions are safe. It is not suggested that for present purposes there is any material difference of substance between this question and the question arising under the former proviso. The unamended version of section 2(1) of the 1968 Act had as a ground for allowing an appeal, subject to the proviso, that the conviction was unsafe. 58. The judgment in Franco leaves open the possibility of this court deciding that a murder conviction is safe, where provocation, including the objective issue, should have been left to the jury but was not. The Board did not go to the length of saying that this would never be appropriate. We have to be very cautious in drawing inferences or making findings about how the jury would have resolved issues which were never before them. There is a danger of delving into the minds of the jury. We do not propose in this appeal to do this. 59. We take the evidence in support of a possible defence of provocation at the highest that it could reasonably be put. We suppose, therefore, for these purposes, that the victim quite suddenly came at Mitchell van Dongen from behind in an inebriated state at night in the street, aggressively wielding a quite heavy road sign, and that he struck Mitchell van Dongen in the way that he described. We proceed on the basis that Mitchell van Dongen’s evidence was or may have been true up to the point when the victim went to the ground. Thereafter, the logic of the jury’s verdict rejects the main lines of the appellants’ evidence and accepts that of the eye-witnesses. This is the logic of their verdicts, not speculation. We discount entirely as militating against the appellants the fact that the victim’s blood was found on both sides of the road sign. It would be somewhat speculative to ask how it got there. There is clear evidence that Mitchell van Dongen lost his self-control. In such a state, he at least intended to cause the victim really serious harm – so the jury must have found and so a defence of provocation has to suppose. The question then is, we think, are we sure that at least 10 members of a jury, not being perverse, would inevitably and surely have concluded that the provocative conduct was not enough to make a reasonable man do as Mitchell van Dongen did, taking into account everything done or said according to the effect which it would have on a reasonable man? 60. In addressing this question, we suppose that the jury would have been directed in accordance with the majority opinion of the Privy Council in Attorney General for Jersey v Holley [2005] UKPC 23 (15 th June 2005) as to the objective standard of self-control to be applied. We take this shortly since no submissions were addressed to us on this part of the topic and the facts do not in this respect raise issues of detail which might be controversial. There is no evidence that anything was said which might have been provocative. Mitchell van Dongen may have been to an extent intoxicated, but self-induced intoxication is not a matter to be taken into account when considering whether he exercised ordinary self-control – see Holley at paragraphs 24, 68 and 76, these representing, we think, virtual unaniminity for the purposes of the present appeal. We note that Lord Steyn said in Acott at page 102 that: “… although there is no longer a rule of proportionality as between provocation and retaliation, the concept of proportionality is still an important factual element of the objective inquiry.” 61. The Privy Council decision in Holley was published after the conclusion of oral submissions in this appeal and after we had received the parties’ written submissions in relation to Franco . An earlier draft of paragraph 60 of this judgment, written before Holley was published, referred to the decision of the majority of the House of Lords in R v Smith (Morgan) [2001] 1 AC 146 , which the majority of the 9 member Board in Holley decided was erroneous. We assume, but do not decide, because it is not necessary to do so, that Holley , a decision of the Privy Council, would be taken as binding in England and Wales. Insofar as a Holley direction might academically be thought to be less favourable to Mitchell van Dongen’s case than a Smith (Morgan) direction would have been, we should say, first, that in our view a Holley problem does not arise on the facts of the present appeal; and, second, that, subject only to minor adjustments of detail only, succeeding paragraphs of the earlier draft of this judgment are unchanged in substance following the publication of Holley . Thus, the publication of Holley has had no effect on the outcome of this appeal. 62. Mr Dein has drawn attention to a number of matters which he submits should lead the court to be less than sure that the jury would have convicted the appellants of murder, if they had been directed as to provocation. He acknowledges that some of these have more bearing on the subjective elements, which we are assuming in the appellants’ favour. He identifies the glowing testimonials of Mitchell van Dongen’s good character; the fact that the victim would lose his inhibitions when he was drunk; the fact, as we accept, that no prosecution witness saw the beginning of the incident; the fact, as Mr Dein submits, that Mitchell van Dongen only kicked or stamped on the victim 8 times and that he was very angry; and the fact that he himself received injury to his back. Mr Dein submits that this court should follow the course taken in Dhillon and conclude that it is not possible to say that the outcome before the jury would still have been guilty of murder. 63. We have given these submissions the most anxious consideration, having the extreme caution required by Franco at all times in mind. We also bear well in mind Mr Waters’ less than whole-hearted support on this point for a conclusion that the murder convictions are safe. We think, however, that his standpoint derives from agnosticism on the law rather than from factual considerations. 64. As to the facts, the provoking conduct which we assume in the appellants’ favour is not in doubt, nor a matter of speculative inference. Neither is the fact that in consequence Mitchell van Dongen lost his self control. The assumed attack was by a drunken man with a heavy implement capable, we assume, of causing serious injury and in fact causing Mitchell van Dongen some injury. There is little room for a difference of view as to the gravity of this provocative conduct not least because things said are not part of it. The victim was soon disarmed and shortly afterwards on the ground. At about this stage, the evidence of the eye-witnesses and the logic of the jury’s verdict take over. Any submissions as to the number of kickings or stampings to the head has to accommodate the pathologist’s evidence and Mitchell van Dongen’s admission that he was responsible for no less than 15 head injuries, the seriousness of which was described by the pathologist and which resulted in the victim’s death. We are sure that the jury must have concluded that the injuries, or most of them, were inflicted while the victim was defenceless on the ground. You cannot otherwise kick or stamp on a person’s head. Provocative conduct, yes for present purposes. Loss of self control, yes. But no reasonable man could possible have been provoked by the assumed acts to do what Mitchell van Dongen surely did. Of that we are certain. Any other jury decision would have been perverse. The jury’s rejection of the defence of self-defence predicates as a minimum a decision that Mitchell van Dongen’s retaliation was disproportionate. The issue for provocation is not the same, but it is related. 65. Justice in a criminal trial rightly and necessarily concentrates on justice for the appellant. But the court must not overlook the matter of justice for those concerned with the victim also, nor the requirements of a proportionate criminal appellate system, which include that those who are surely and fairly shown to be guilty of murder, and have been so found by a jury, should not escape that consequence on gossamer grounds. In our judgment, the unavoidable facts of this case and the necessary logic of the jury’s verdict rule out any possibility of a miscarriage of justice – see Franco , paragraph 19. 66. We conclude, therefore, that, even though a provocation direction should have been given, the murder convictions are in this respect safe. It is unnecessary to distinguish between the two appellants, although quixotically a defence of provocation was theoretically stronger for Mitchell than for Anthony, even though Mitchell was on the evidence and his own admission the lead assailant. The second ground of appeal 67. The second ground of appeal is insubstantial. No complaint is made, except as to provocation, of the directions of law given by the judge in his main summing up. After the jury had retired, they asked a question as follows: “If a person forms no mental intention to kill or cause GBH but as a consequence of his actions either occur, has he committed the offence?” It is suggested that the judge should simply have answered this question No without complication. The judge actually gave a more extended answer. It covered about one and a half pages of transcript, repeating and commenting on parts of his previous written directions as to murder and manslaughter. No particular criticism is made of the content of this, except that it was too complicated. At the end of his answer, the judge did say: “To answer your point in a word or two, the answer to your question is, he has not committed the offence of murder unless the prosecution proves one or other of those intents, but for the offence of manslaughter it is sufficient if the Crown prove an intention to cause some injury.” Taken as a whole, the judge’s answer to the jury question is said to have been over-complicated and confusing. We disagree. Certainly it was not a one word answer, as it might possibly have been. But the direction did answer the question. It was accurate in law and not, we think, unduly complicated. This ground of appeal also fails. Conclusion 68. For these reasons, we conclude that the appellants’ convictions of murder are safe. Their appeals against conviction are dismissed. It remains to consider questions of sentence.

2005_07_05-543.xml

conviction

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/1728/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/1728

e6c81657c574966bfcd7c395c4447e818f4e858896262b01c388841cc782d2df

[2023] EWCA Crim 384

EWCA_Crim_384

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 202202211/A2 [2023] EWCA Crim 384 Royal Courts of Justice Strand London WC2A 2LL Tuesday 21 March 2023 Before: THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION (LORD JUSTICE HOLROYDE) MR JUSTICE KERR HIS HONOUR JUDGE TIMOTHY SPENCER KC (Sitting as a Judge of the CACD) REX v COLIN REEVES __________ 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 J MARTIN KC appeared on behalf of the Appellant. MS K LUMSDON KC appeared on behalf of the Crown. _________ J U D G M E N T (Approved) 1. THE VICE-PRESIDENT: On 17 June 2022, after a trial in the Crown Court at Bristol before Garnham J and a jury, this appellant was convicted of the murders of Jennifer Chapple and Stephen Chapple. He was subsequently sentenced for each of those offences to life imprisonment with a minimum term of 38 years less the days he had spent remanded in custody. He now appeals against his sentence by leave of the full court. 2. The victims of the murders were husband and wife. They and their two young children lived next door to the appellant. For some months they and the appellant had been in dispute about parking outside their properties, which appears to have become a cause of stress for all concerned. There had been an incident on 11 November 2021, when the appellant had been abusive to Mrs Chapple in a manner which caused her significant concern. 3. The appellant, now aged 35 and of previous good character, is himself the father of two young children. He is a former soldier, whose 10 years of service included a tour of duty in Afghanistan. When he left the Army he was presented with a dagger, which he kept in a display case. 4. It appears that he and his wife were experiencing difficulties in their marriage. On the evening of 21 November 2021 his wife told him that she wanted a trial separation. A short time after she had done so the appellant armed himself with the dagger. He climbed over the fence into the Chapples' back garden, crept to their back door and entered their house. They were together in the living room. Their children were asleep upstairs. 5. The appellant immediately attacked Mr and Mrs Chapple, striking with such speed and force that neither had any chance of resisting or escaping. Mrs Chapple was not even able to rise from the sofa. He stabbed each of them repeatedly, inflicting severe injuries from which both his victims quickly died. His own wife, next door, heard screaming. Audio recordings available at trial and to this court captured the appellant shouting: "Die you bastards, die" as he stabbed Mr and Mrs Chapple. 6. The appellant left his victims where they lay and climbed back over the fence to his own home. A short time later he telephoned the police and reported that he had stabbed his neighbours. 7. When interviewed under caution the appellant made no reply. He entered guilty pleas to offences of manslaughter on the basis of diminished responsibility. Those pleas were not accepted by the prosecution and the trial proceeded. Expert medical evidence was adduced about the appellant's mental condition. The jury convicted the appellant of both offences of murder. 8. The judge did not think it necessary to obtain a pre-sentence report and none is necessary now. The victim personal statements provided by members of the Chapples' family were available to the judge. They made clear the "insurmountable grief" which has been caused to the bereaved by these murders. Members of the family not only had to identify the bodies of the deceased but also, some days later, to explain what had happened to the Chapples' children. Each member of this court has read those statements. We offer the bereaved our condolences. 9. The judge accepted the evidence that the appellant was suffering from depression but was satisfied that the appellant bore full responsibility for his actions. Having considered the provisions of schedule 21 to the Sentencing Code, he took a starting point for the minimum term of 30 years. He found three aggravating factors: the fact that the appellant had brought the dagger from his own home to the scene; the commission of the offence at night and in the victims' own home where they were entitled to feel safe; and the fact that the Chapples' children were asleep upstairs at the time of the murders. He also noted that although the murders were not long planned or premeditated, they were not entirely spontaneous either. 10. As to the first of those features, the judge observed that Parliament has decided that the fact that a weapon was brought to the scene will usually justify an increase of 10 years in the starting point for a single murder. He continued: "There is no equivalent provision where a knife is brought to the scene to carry out two murders but, plainly, that fact constitutes a grave aggravating factor which I must bear in mind when fixing on the minimum term here." 11. The judge then listed six mitigating factors. First, the appellant's remorse, which he accepted as genuine. Secondly, some allowance was to be made for the fact that the appellant was suffering from moderate depression at the time, though that did not satisfy the test for diminished responsibility and did not explain the appellant's decision to attack his neighbours. Thirdly, the appellant's action in calling the police immediately after the killings and waiting at the scene for them to arrive. Fourthly, his admission of the killings in his initial phonecall to the police. Fifthly, his military service. Lastly, the fact that the appellant would, on any view, be an old man before he will be eligible to apply for release on licence. The judge concluded that the aggravating factors far outweighed the mitigating features and that the appropriate minimum term was 38 years before deducting the period spent remanded in custody. 12. In her written and oral submissions Ms Martin KC, who represents the appellant in this court as she did at trial, argues that the judge took a wrong approach in sentencing, and that the minimum term was manifestly excessive in length. She submits that the judge appears to have treated the 25-year starting point, in a case where a weapon is taken to the scene and used to commit a single murder, as indicating a "standard uplift" of 10 years in the starting point for two murders. Having done so, she submits, the judge then fell into the error of double counting by treating the location of the offence to which the dagger had been taken as a further aggravating factor. She also submits that the judge gave insufficient weight to the mitigating factors. She suggests that, before considering those mitigating factors, the judge must have reached a provisional minimum term in excess of 40 years. In support of her submissions Ms Martin points to case law supporting the well-established need for judges to avoid applying Schedule 21 inflexibly or mechanistically. 13. For the respondent, Ms Lumsdon KC submits that the judge did not fall into the suggested errors and that a provisional starting point of 40 years before consideration of mitigating factors was justified in the circumstances of this case. She further submits that the judge gave due weight to the mitigating factors, and that the minimum term of 38 years, before deducting the period spent remanded in custody, was neither wrong in principle nor manifestly excessive. 14. We are grateful to both counsel for their very clear submissions. 15. The imposition of life sentences for these murders was, of course, required by law. In determining the appropriate minimum term to be served, before the appellant could even be considered for release on licence, the judge was required by section 322 of the Sentencing Code to consider the seriousness of the offending. In doing so, he was required by subsection (3)(a) to "have regard to the general principles set out in Schedule 21". As is well-known, that schedule sets out different starting points for the minimum term in different categories of murder. Paragraph 2 of the Schedule indicates that a whole life order is the appropriate starting point where the seriousness of the case is exceptionally high. The judge rightly decided that these murders did not fall into that category. Paragraph 3 indicates a starting point of 30 years where the seriousness of the case is particularly high; and by subparagraph (2)(f), the murder of two or more persons would normally fall within that paragraph. By paragraph 4, if a case does not fall within paragraphs 2 or 3, a starting point of 25 years will normally be appropriate where an offender took a knife or other weapon to the scene intending to commit any offence or to have it available to use as a weapon, and used it in committing the murder. In other cases the starting point will normally be 15 years. 16. The judge found, correctly, that this case fell within paragraph 3. It follows that paragraph 4 did not apply. However, the judge did not purport to apply it. He would have been in error if he had treated paragraph 4 as establishing or requiring a "standard uplift" in every case of murder using a knife or other weapon taken to the scene with the requisite intent, even if falling outside paragraph 4. We do not, however, accept the suggestion that that is what the judge did. In our view, the judge, in the words that we have quoted, made plain that he was not falling into that error, but rather was treating the use of a knife taken to the scene as an aggravating factor. The use of a weapon will usually be an aggravating feature of any murder, whether it is taken to the scene or not. In a case which falls within paragraphs 2 or 3 of the Schedule, the fact that the weapon was taken to the scene will generally be a further aggravating factor. However, the weight to be given to those aggravating factors will vary according to the circumstances of a specific case, and will be a matter for the judgement of the sentencer, with whose evaluation this Court will be slow to interfere. 17. The real issue in this case, as we see it, is whether the judge erred in his overall balancing of the aggravating and mitigating factors. He was faced with a difficult task in determining the appropriate minimum term for these dreadful murders, and we recognise that he had the advantage, which we do not, of having presided over the trial and heard all the evidence. He correctly identified the aggravating factors. The appellant plainly armed himself with the dagger, a highly dangerous weapon, because he had decided to kill his victims. In order to carry out that intention, he went armed into their home, the place in which the judge rightly said they were entitled to feel safe. He had the advantage of taking the Chapples by surprise, and they were effectively defenceless against his ruthless attack. He must have known that the children would be asleep upstairs and that his actions would render them orphans at a young age. We agree with Ms Martin that there is some degree of overlap between some of those factors; but even being careful to avoid any risk of double counting, those features of the case plainly necessitated a substantial upwards adjustment of the starting point. We cannot however accept Ms Lumsdon's submission that they justified an uplift of the starting point to 40 years or more. 18. In addition, we see force in Ms Martin's submission that more weight should have been given to the mitigating factors. Even in a case as serious as this, and even though outweighed by the aggravating factors, the mitigating factors correctly identified by the judge collectively carried significant weight. 19. We have hesitated to differ from the overall evaluation of these factors made by the judge. We are, however, persuaded that the balance which he struck went outside the range properly open to him, with the result that the minimum term was manifestly excessive. 20. For those reasons we allow this appeal. We quash the minimum term of 38 years less the days remanded in custody. We substitute for it a minimum term of 35 years, less the 209 days which we are told is the correct figure for the time spent remanded in custody. That reduced minimum term takes effect from the day when the judge pronounced sentence. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk

2023_03_21-5614.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/384/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/384

ac0abdf26ecaa38dfccfedd123cd04160f995a4f225bf137250c1926683aed38

[2008] EWCA Crim 2953

EWCA_Crim_2953

supreme_court

Neutral Citation Number: [2008] EWCA Crim 2953 Case No: 2008/03333 D3 Attorney General Ref: 2-2008 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Reference by the Attorney General and appeal from the Crown Court at Winchester HHJ Hooton T20037191 Royal Courts of Justice Strand, London, WC2A 2LL Date: 10/12/2008 Before: LORD JUSTICE HOOPER MR JUSTICE DAVIES and DAME HEATHER STEEL DBE - - - - - - - - - - - - - - - - - - - - - Attorney General’s Reference No. 2 of 2008 (Andr

Neutral Citation Number: [2008] EWCA Crim 2953 Case No: 2008/03333 D3 Attorney General Ref: 2-2008 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Reference by the Attorney General and appeal from the Crown Court at Winchester HHJ Hooton T20037191 Royal Courts of Justice Strand, London, WC2A 2LL Date: 10/12/2008 Before: LORD JUSTICE HOOPER MR JUSTICE DAVIES and DAME HEATHER STEEL DBE - - - - - - - - - - - - - - - - - - - - - Attorney General’s Reference No. 2 of 2008 (Andrew James Winter) Between: Andrew James Winters Appellant - and - Regina Respondent (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 190 Fleet Street, London EC4A 2AG Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) S Munro and T Forte for the Appellant S Whitehouse and S Donnelly for the Respondent Hearing date: 18 November 2008 - - - - - - - - - - - - - - - - - - - - - Judgment LORD JUSTICE HOOPER: 1. On 12 December 2007 HHJ Hooton made a finding, pursuant to the Drug Trafficking Act 1994 , that Andrew Winters had benefitted from his criminal conduct in the sum of £317,000. Andrew Winters, with the leave of this Court, appeals against that finding. 2. The judge ruled that he had no realisable assets and made a nominal confiscation order in the sum of £1. The Attorney General, with the leave of another division of this Court, refers the finding of no realisable assets to this Court as “unduly lenient”. 3. According to the final reference, the total of the benefit should in fact be £312,560.93 according to the judge’s findings, rather than £317,000. 4. Both the reference and the appeal concern two properties, 2 Stavordale Road, Carlshalton, Surrey and 64 Westmead, Sutton, Surrey. Andrew Winters, the appellant (as we shall call him), is the sole legal owner of 2 Stavordale Road and with his ex-wife shares equally the legal ownership of 64 Westmead. It is the appellant’s case that the whole beneficial interest in 2 Stavordale Road belongs to his 87 year old father, William Winters, who has lived there for over 50 years. For most of that time he lived there with his wife, the appellant’s mother, who died in 2005 (we assume that the appellant’s father obtained his wife’s half share on her death). The appellant was brought up in the house. It is also the appellant’s case that the whole beneficial interest in 64 Westmead belongs to his ex-wife, who had been divorced from him over 20 years. The judge agreed with the appellant, although his reasoning for so doing was very limited. He said only that he accepted “what [the appellant] said in evidence about the transfer to him from his parents and the reality of the situation insofar as the property originally owned between him and his wife.” 5. The issue on the reference is whether the judge was wrong to decide that no part of the beneficial interest in the two houses was held by the appellant. The issue on the appeal relates to the finding by the judge that certain mortgage payments made in respect of 2 Stavordale Road were met out of the appellant’s proceeds of drug trafficking and thus formed part of his benefit from that drug trafficking. 6. The appellant was convicted of two serious conspiracies to contravene section 170 of the Customs and Excise Management Act and received a total sentence of 15 years’ imprisonment. It is not necessary to set out the facts of the convictions other than to say that they involved plans to import substantial quantities of cocaine into the UK from Colombia. Covert tapes of various telephone conversations formed part of the evidence. No cocaine was actually imported into the UK although a planned import of 1.72 kilos was intercepted and seized in Ecuador. The judge found that neither of the houses formed part of the benefit of any drug trafficking. 7. Ms Whitehouse, who appears for the Attorney General on the reference, and instructed by the Crown Prosecution Service on the appeal, has drawn to our attention and to the attention of counsel for the appellant an error in the calculation of the benefit in so far as the mortgage payments on 64 Westmead Road are concerned. The error was made by the Financial Investigator and was unnoticed by all concerned in the Crown Court confiscation proceedings. The investigator wrongly calculated the payments on the mortgage as being £70,496.20 during the period between 1 January 2000 and 22 June 2006. In fact they were just over £8000. Ms Whitehouse also rightly concedes that there was no evidence that the appellant had made or funded the mortgage payments on 64 Westmead during the relevant period. Thus the appeal must succeed at least to reduce the benefit by £70,496.20. We express our concern that these errors went unnoticed by those concerned in the Crown Court proceedings and would not have been revealed but for the Attorney General’s reference. We express our thanks to Ms Whitehouse for spotting the error. 8. The appeal now concerns only the payments on the mortgage on 2 Stavordale Road in the same period. The sum of the payments on the mortgage identified by the judge as having been met out of the proceeds of drug trafficking in respect of this property for a period between 2000 and 2004 was £18,193.52 (a sum which included insurance premiums). This finding was unreasoned and inconsistent (at least in the absence of any explanation) with the finding that the appellant had no beneficial interest in 2 Stavordale Road and was inconsistent with the written evidence of the appellant and his father and the oral evidence of the appellant. 9. It is common ground that the necessary payments were actually made by the appellant’s father in cash on a monthly basis. It is common ground that if the appellant funded them then the assumptions applied and the judge was entitled to find that they were met out of the proceeds of drug trafficking. 10. The amount on the mortgage was some £42,000 and monthly payments varied throughout most of the period from about £260 to about £330, dropping after December 2002 to an average figure of about £180. 11. It is the prosecution’s contention that the appellant funded those payments by, in part, transferring funds into his father’s account. Having heard argument on both the appeal and the reference, we granted a short adjournment to enable more information to be provided to us about those transfers. We were then told that cash payments were made into the father’s account during the period 19 October 2000 to 2 July 2002 in a total sum of £1,704, the sums ranging from £40 to £450. During that period the appellant was in prison in Switzerland on drugs related charges and could not have deposited the cash himself. In the period 16 September 2002 to 18 June 2003 five cash payments were received into the account, totalling £1,215. Three of those payments could not have been made by the appellant who was in Colombia at the time of the payments. It does not appear that the judge had this detailed information, at least in this form, during the confiscation proceedings. There were no other payments into the father’s account which could be directly attributed to the appellant. On the 18 June 2003 £110 in cash was paid into the father’s account and no more cash was paid in during the next two years. The appellant was arrested in August 2003. The account was always in credit sometimes to as much as £5,000. 12. The total of cash payments into the account was £2,919, a figure far short of the total of £18,193.52. 13. The appellant’s father made a statement saying that he had paid the mortgage payments in cash and that his son had never given him the money to pay the mortgage. The father’s evidence was read given his age and state of health. He wrote that he could not remember who had made the cash payments into his account but that he could say definitely that his son had not paid any cash into the account. The appellant’s written statement was to a similar effect. 14. The appellant agreed in evidence that his mother had not worked outside the house and he said that he did not know whether or not she had any savings. Counsel for the prosecution did not put to the appellant in cross-examination during the confiscation proceedings that he had funded the mortgage payments. Counsel did suggest that the appellant’s father was living off a meagre income in 2003. The appellant replied: “What, he was living off the income that you’ve seen, along with my mum, along with her pension, along with whatever she was getting for her disability, whatever that was, whenever that came about. My dad was getting a carer’s allowance as well. He was getting help from the council regarding various things about the property and disability.” 15. That answer was not challenged nor were any further details asked of the appellant. 16. The evidence of “meagre income” to which counsel was referring came from the last tax return apparently made by the appellant’s father for the tax year 1998/1999. That showed a state pension of £3,961 and another pension of £2,082. Both pensions are paid into his Abbey National account, a copy of which the prosecution had for the period October 2000 to June 2005. 17. It was then put to the appellant that his father was not in a position to pay £5,000 which was a deposit on another house in Apers Avenue (to which we return below). The appellant said that he was. He said that the money came out of his father’s savings account and that the covert tapes supported that (see pages 38-39 of the transcript, which are in the wrong order in the bundle). 18. His father also said that he had paid it out of a savings account with Abbey National (of which we have not seen any record). The judge seems to have accepted this because he subsequently ruled that the £5,000 was not a benefit. In other words he ruled that it had not come from the appellant (if it had come from the appellant, the assumptions would have applied). If it had not come from the appellant, it must, so it seems on the evidence, have come from the father. It follows that the judge cannot have rejected the father’s statement in this respect (although the judge in fact expressed no view at all on the weight to be given to the father’s statement. 19. The burden of proving benefit is on the prosecution and the standard is the civil one: see section 2(8) of the Drug Trafficking Act 1994 . (We were told in argument that the criminal standard applied and we were referred to Dickens [1990] 2 QB 102 . However the law was changed in the 1994 Act ). However, as explained in Dickens , the burden (then to the criminal standard) is “considerably lightened” by the assumptions that a judge is required to make. Section 4(2) provides that: “Subject to sub-sections (4) and (5) below, the Crown Court, for the purpose- (a) of determining whether the defendant has benefitted from drug trafficking, and (b) if he has, of assessing the value of his proceeds of drug trafficking, make the required assumptions.” 20. By virtue of sub-section (3): “The required assumptions are: (a) that any property appearing to the court- (i) to have been held by the defendant at any time since his conviction, or (ii) to have been transferred to him at any time since the beginning of the period of six years ending when the proceedings were instituted against him, was received by him … as a payment … in connection with drug trafficking carried on by him ; (b) that any expenditure of his since the beginning of that period was met out of payments received by him in connection with drug trafficking carried on by him; (c) … 21. Ms Whitehouse drew our attention to Dickens in which it was said that the phrase “appearing to the court” meant “prima facie evidence”. In Dickens at page 107, the court said: “The words “appearing to the court” [in the similarly worded section 2 of the Drug Trafficking Offences Act 1986] in our judgment mean that if there is prima facie evidence that any property has been held by the defendant since his conviction or was transferred to him since the beginning of the relevant period, the judge may make the assumption that it was a payment or reward in connection with his drug trafficking. Likewise with expenditure, once there is prima facie evidence of expenditure by the defendant since the beginning of the relevant period, the judge can assume that it was met out of payments received by him from drug trafficking.” 22. We have difficulty with this second paragraph, which was, in any event, an obiter dictum. Sub-section (3) (b) makes no reference to “appearing to the court” and, in our view, the legislature has drawn a distinction between “property” and “expenditure”. In the case of expenditure the prosecution must prove, now to the civil standard, that he expenditure was incurred by the defendant. 23. In our view on the evidence the prosecution has not discharged the burden on it. The evidence given did not establish that the appellant paid these sums in discharge of the mortgage. Our conclusion on this aspect of the case is further supported by the conclusion which we reach later in this judgment, namely that the parents retained the beneficial interest in the house upon the transfer of the legal title to the appellant. 24. The appeal against sentence is successful to the extent that the benefit is reduced by a further £18,193.52. 25. We now turn to the reference. 26. We start with 64 Westmead. The appellant married his wife Carmen in 1973. In 1980 they purchased the house for £22,000 in joint names with a deposit of £2000. It was valued at the time of the confiscation hearing at £290,000. There is an outstanding interest only mortgage in the sum of about £31,000. The appellant moved out of the house in 1984 and never returned, leaving his wife and then 4 year old daughter who both continue to live there. Carmen, so it appears, suffers from a psychiatric illness. 27. Apart from a few payments on the mortgage in 1982-1983, the appellant has not paid towards the mortgage. In 1992, as part of the divorce settlement, the appellant was ordered to pay Carmen £87,500 to enable her to purchase a house for herself and her child and to pay interest on any unpaid balance. The appellant has, on the evidence before us, not paid that sum or any part of it. He was also ordered to pay £5,000 per annum to Carmen for their joint lives until remarriage (she has not remarried) or the payment of the £87,500. He has not done that. Nor, according to his statement, has he paid to Carmen £3,000 a year for the benefit of their daughter (a payment due to be made until she was 17 or ceased full time education). Carmen has registered a charge against 2 Stavordale Road. Both the appellant and Carmen say that the appellant has agreed – it is not said when- to surrender his interest in the house to meet the debts owed to his wife. However he has not done that. The appellant in evidence said that he had tried to, but the existence of the outstanding mortgage prevented him from assigning his half to her. 28. We have no doubt that the judge should have found, whatever the state of the contractual indebtedness of the appellant under the 1982 order, that the appellant owns both a legal and beneficial half share in 64 Westmead. A planned intention to surrender is not the same as an actual surrender. 29. However it may well be that Carmen would have the right now to seek a property adjustment order from the family court, a right preserved for her in clause 6 of the settlement order, and, in any event, has the right to seek to establish her beneficial interest in the whole property if a receiver is minded to realise the value of the house (see In Re Norris [2001] UKHL 34 ; [2001] 1 WLR 1388 ) Given the position in which Carmen now finds herself, we would hope that the prosecuting authority will do all that it can to ensure that any interests of hers are protected (see Customs and Excise Commissioners v. A and another [2002] EWCA Civ 1039 ; [2003] FAM 55 ). 30. We turn to 2 Stavordale Road, reminding ourselves that the burden of proof is on the appellant to show to the civil standard that the amount that might be realised at the time the confiscation order is made is less than the assessed benefit (see section 5 of the Act). 31. Given that he is the sole legal owner of the house and given the initial presumption that he is therefore the sole beneficial owner, he must be able to show on the balance of probabilities that he has no beneficial interest in the house. If he fails to do so the value of the house forms part of his realisable assets. 32. Historically courts have applied a further presumption. In the words of Halsbury’s Laws of England, volume 16 (re-issue), para. 853: “A resulting trust may arise solely by operation of law, as where, upon a purchase of land, one person provides the purchase money and the conveyance is taken in the name of another; there is then a presumption of a resulting trust in favour of the person providing the money, unless from the relation between the two, or from other circumstances, it appears that a gift was intended.” 33. However, equity may presume a gift where the property is transferred to a child. 34. In Stack v. Dowden [2007] UKHL 17 ; [2007] 2 AC 432 there is discussion, albeit in the context of cohabiting unmarried couples, of resulting and constructive trusts. Baroness Hale described the modern approach in these words: 60. ... The search is to ascertain the parties' shared intentions, actual, inferred or imputed, with respect to the property in the light of their whole course of conduct in relation to it. 35. Baroness Hale went on to say that: “the search is still for the result which reflects what the parties must, in the light of their conduct, be taken to have intended” (para. 61). Lord Neuberger said in a speech in which he disagreed with the reasons of the majority: “114. ... Where there is evidence of the parties' respective contributions to the purchase price (and no other relevant evidence) and one of the parties has contributed X%, the fact that the purchase is in the sole name of the other does not prevent the former owning X% of the beneficial interest on a resulting trust basis. Indeed, it is because of the resulting trust presumption that such ownership arises. It seems to me that consistency suggests that the party who contributed X% of the purchase price should be entitled to X% (no more and no less) of the beneficial interest in the same way if he is a co-purchaser. The resulting trust presumption arises because it is assumed that neither party intended a gift of any part of his own contribution to the other party.” 36. On the facts of this case it does not seem to us to matter whether or not the appellant can pray in aid a resulting trust presumption. Counsel agreed during the course of the hearing of the appeal that the issue which we have to resolve may be stated in the following way: “Has the appellant shown on the balance of probabilities that his parents did not intend to make a gift of the beneficial interest when transferring the legal interest?” 37. By the time of the confiscation hearing the value of the house was £245,000. 38. The appellant’s father and mother moved into the house in 1958. It was then a council house. In 1980 they bought the house under the right to buy legislation for £10,000, doing so with a mortgage from the Abbey National. There are no records available to us about that mortgage. The evidence was that in 1987 the appellant was in debt owing some £17,000 to HM Customs and Excise in respect of VAT and legal fees and having incurred substantial legal fees to solicitors assisting him with custody proceedings concerning his daughter. He asked his parents to mortgage their house so as to enable him to pay off his debts. His parents could not do that because they were near retirement and so, at the suggestion of the Woolwich Building Society according to the appellant’s father, the legal ownership of the house was transferred by the parents to the appellant in 1987. 39. The document transferring the title (page 11 of the bundle) states that “in consideration of £55,000 the receipt whereof is acknowledged,” William Frederick Winters and Dorothy Amelia Winters of 2 Stavordale Road, Mitcham, the transferor, as “beneficial owners hereby transfer” the land to Andrew Winters of 52 Meopham Road, Mitcham (a house which the appellant was renting). Ms Whitehouse fairly and correctly concedes that the sum of £55,000 was not paid over (this was confirmed by the appellant in evidence). The appellant had no funds to make such a payment. It seems likely, as the appellant said in evidence, that the stated figure of £55,000 simply reflected the value of the house. The Woolwich provided a mortgage to the appellant in the sum of £42,000. Given the absence of any documentation from the Abbey and the absence of any reference to Abbey on the title after the transfer, it can safely be assumed that any outstanding mortgage in favour of the Abbey was paid off at this time. 40. Notwithstanding the help from his parents, the appellant was made bankrupt in March 1988. He was discharged from bankruptcy in 1992. The trustee in bankruptcy registered a caution against 2 Stavordale Road, which we understand subsists to this day. 41. The appellant’s father in his first statement said of the 1987 transaction: “It was understood that we would continue to pay the mortgage and my wife and I would continue to live in the house which would remain our property.” 42. A little later he wrote in his statement: “We continued paying the mortgage and we had an expectation that when the business got on its feet Andrew would repay money (sic). However the business went bust and we were never repaid.” 43. The money to which the father was referring must have been the mortgage payments. The parents would have “continued” to pay the mortgage because they had previously been paying the mortgage, albeit in a significantly smaller amount and to the Abbey. 44. In his second statement the father said: “By [1987] our son Andrew, had got into financial difficulties and needed to raise cash. We wanted to help him and we decided to re-mortgage the property. We approached the Woolwich for this purpose. However, my wife and I were considered too old to take on the re-mortgage. By then I had retired from my occupation as a toolmaker. The company suggested that if the title in the property was transferred to our son, Andrew, then they could offer the mortgage. We agree to this because we wanted to help our son but all of us regarded the transfer of ownership as a device to allow the re-mortgage. My wife and I remained the owners of the house. No payment from Andrew or ourselves was required for the re-mortgage. All of the money received from it went to Andrew to allow him to pay his debts. I believe he received about £20,000 for this purpose.” 45. He then goes on to repeat what he had said earlier about paying off the mortgage and receiving no help from his son. 46. The appellant said in his witness statement (written in prison) that he had received “approximately £20,000 to the best of my recollection and used it to pay VAT and legal fees”. 47. The sum received was in fact £42,000, as the appellant accepted in evidence, out of which, we can assume, any outstanding Abbey mortgage must have been paid. 48. In evidence the appellant said that the transaction was never done as a purchase of the property from his parents. “The idea was that it was always their property. It was just literally, the money was what I was after for the obvious reason.” It was, he said, “absolutely clear” that the intention was that the house remained his parents’ house, before, during and after the re-mortgage. 49. Cross-examination on this issue was very brief, if not far too brief (see page 37 of the transcript). 50. Mr Munro relies heavily on the judge’s acceptance of the appellant’s evidence about the transfer of the property to him. That evidence related to his intention and that of his parents that they were not making a gift to him of the house. That, in our view, was a finding open to the judge. Indeed, it would have been surprising if the parents had intended to give the appellant the house, valued at some £55,000, being a house in which they had lived since 1958 and which they intended to, and did continue to, live in after the transfer. They do not appear to have had any assets to buy themselves another property. As the father said, the transfer was a device to help their son to raise money. 51. As far as the mortgage payments are concerned Ms Whitehouse relies on the “meagre income” point, which, in our view, was answered by the appellant. 52. Ms Whitehouse points to a number of facts which suggest that the appellant treated the property as if the beneficial interest was vested in him and not in his parents and she submits that supports her argument that the sole beneficial interest is in the appellant. To put it another way, these facts undermine his evidence about the transfer. In her skeleton argument of 5 October 2008 she wrote: The following facts support the presumption [that with the appellant‘s legal ownership went the beneficial ownership]: (i) The offender declared himself to be the owner when he borrowed £42,000 from the Woolwich Building Society in June 1987. On the basis of this assertion the building society extended loan facilities to him and took a charge over the property to secure his borrowings. If he was not the legal and beneficial owner then the loan was obtained fraudulently. (ii) If the offender had defaulted on his mortgage repayments the Building Society would have been entitled to seek repossession of 2 Stavordale Road to recover the funds. There would have been no question of beneficial ownership being vested in Mr. and Mrs. William Winters. (iii) At the end of 2002 the offender applied for a mortgage to buy a property at 6 Apers Avenue. The offender’s evidence at the confiscation hearing was that this property was for his ailing parents. The fact that the offender required a mortgage to buy this property suggests that 2 Stavordale Road was not to be sold to fund the purchase but, rather, retained for the offender’s use as the owner while his parents moved into 6 Apers Avenue. In the mortgage application form the offender confirmed that he would not be selling 2 Stavordale Road (see Document bundle p. 84). It appears that contracts were exchanged in relation to this property but the transaction was never completed. (iv) The offender also sought a re-mortgage of £135,000 at the end of 2002 (Document bundle p. 49). The application was granted by Halifax Bank of Scotland PLC. The offender requested that the surplus funds of £67,000 arising from the re-mortgage be paid into his own current account (Document bundle p. 65). These funds do not appear to have been paid to the offender’s father. (v) Extracts from intercepted telephone conversations between the offender and a co-offender, Paul Murphy, in April 2003 include references by the offender to “his” mortgage with the Woolwich. The offender spoke of re-mortgaging Stavordale Road for an additional £60,000 in order to raise funds for a deposit on another property. The inference to be drawn is that this was Apers Avenue. (vi) In another intercepted conversation in April 2003 the offender spoke of his mortgage being “bang up to date” and said that he had recently re-negotiated his mortgage to reduce the payments still further. The implication is that the offender viewed 2 Stavordale Road as his property to use as he thought fit. (vii) Cautions were registered on 2 Stavordale Road by Maria Winters and by the trustee in bankruptcy. No protest was made at the time that the property was owned by Mr. and Mrs. William Winters rather than the offender. (viii) William Winters and his wife made a declaration to The Land Registry that 2 Stavordale Road was transferred to the offender for consideration of £55,000. It appears that that was a lie and that there was no consideration. The house was transferred as a gift. (Document bundle p. 11). (ix) The offender stayed at 2 Stavordale Road whenever he was in the United Kingdom and was at that address when he was arrested. He declared on his mortgage application forms that it had been his home for 25 years. (Document bundle pp. 38, 79). (x) The Judge found that the offender was making the mortgage repayments on the property between 1 st January 2000 and 1 st April 2004.” 53. As to (i), it appears that the Woolwich had suggested the scheme. In any event, the father could not argue (and has not argued), given his knowledge of the purpose of the transaction, that the Woolwich did not have a valid legal mortgage. 54. As to (ii), if the Woolwich had foreclosed on the house, the parents would have lost the house but, if no gift of the beneficial interest was intended, they would have been entitled as against the appellant to any money left over after the discharge of the mortgage. 55. The facts in (iii), (iv) (v) and (vi) show that he was treating the property as his own by 2002, long after the transfer. That could undermine the appellant’s evidence as to what happened in 1987, but his father’s evidence on what happened at that time is compelling. As we have said it would be surprising indeed if the parents had intended to give him the house, valued at some £55,000, being a house in which they had lived since 1958 and which they intended to, and did continue to, live in after the transfer and in respect of which they had paid the mortgage. There was no evidence to show that the parents realised that the appellant was on occasion purporting to treat the property as his own. 56. As to (vii), as Ms Whitehouse accepted in argument, the fact that the appellant’s parents did not object to the caution does not really help. They may not have known anything about it and, even if they did, they might well have been reluctant to take any legal steps to do anything about it. 57. As to (viii) the reference to the £55,000 must have been incorrect. It does not in our view help in deciding whether the parents made a gift of the entire beneficial interest in the property. 58. As to (ix), there were long periods when he did not reside there and he was not residing there at the time of the transfer, 59. As to (x), we have already reached a different conclusion from that of the judge on this issue. 60. Accordingly, we have reached the conclusion that the judge was entitled to find on the evidence that 2 Stavordale did not form part of the realisable assets of the appellant. 61. In conclusion, subject to what we say in the next paragraph, the benefit will now, we believe, be: £214,817.21 (£312,560.93-£70,496.20-£18,193.52) and the realisable assets will be £147,500 (1/2 of the value of 64 Westmead). We ask counsel to address us in writing as to the time for payment and the period of default (which hopefully can be agreed) and to draft the order. 62. We also invite counsel to consider whether the order of the court should not come into effect until such time as the appellant has entered into an irrevocable and unconditional deed, the effect of which is to confirm that his father owns the whole beneficial interest in 2 Stavordale, subject to the mortgage.

2008_12_10-1751.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/2953/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/2953

6ea7ee40d42695db1c4c1533387521ce9585878df4fdd56f6a63154756d5e5b0

[2005] EWCA Crim 537

EWCA_Crim_537

crown_court

No: 04/7262/A6 Neutral Citation Number: [2005] EWCA Crim 537 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 4 March 2005 B E F O R E: LORD JUSTICE LATHAM MR JUSTICE NEWMAN HIS HONOUR JUDGE TILLING - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 157 OF 2004 (RYAN KEITH GREEN) - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Str

No: 04/7262/A6 Neutral Citation Number: [2005] EWCA Crim 537 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 4 March 2005 B E F O R E: LORD JUSTICE LATHAM MR JUSTICE NEWMAN HIS HONOUR JUDGE TILLING - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 157 OF 2004 (RYAN KEITH GREEN) - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR MARK ELLISON appeared on behalf of the ATTORNEY GENERAL MR THOMAS BRADNOCK appeared on behalf of the OFFENDER - - - - - - - J U D G M E N T 1. LORD JUSTICE LATHAM: In this case the Attorney General asks leave to refer to this court under section 36 of the Criminal Justice Act 1988 a sentence of a community punishment order of 240 hours together with a curfew order imposed on this offender for the offence of causing death by careless driving. The sentence was imposed on 29th November 2004. 2. The offender, who is 22 years of age, had pleaded guilty at a significantly earlier stage to causing death by careless driving, albeit that had not been his stance when he was first interviewed after the accident by the police. 3. The circumstances of the offence were that the offender, who comes from St Hélèna, went drinking with the victim, who was his best friend, Robert Cowie, also from St Hélèna, during the evening of 12th February 2004. They had both consumed several pints of lager. They walked to the offender's home, where his friend suggested that the offender should take them both for a drive whilst they discussed certain personal problems which the friend had. The offender was ultimately persuaded to take the car and drive, albeit he must have appreciated that he was significantly affected by alcohol. 4. In the course of the drive the offender was driving along the A30 at a speed which was estimated by the driver of one oncoming vehicle of about 60 mph and for whatever reason swerved to the offside of the road where, as a result, there was a nearside-to-nearside collision with an oncoming car. The friend was killed. The driver of the oncoming car was fortunately only injured. 5. When the appellant gave a sample of blood it proved, on analysis, to contain approximately two-and-a-half times the permitted level of alcohol. 6. In the first instance he gave no explanation for what had happened, but he later indicated that he believed that the other car had come on to his side of the road. However ultimately, as is apparent from his plea, he accepted full responsibility for the death of his friend and has undoubtedly been devastated by that fact and has shown very real remorse. 7. In those circumstances the Attorney General has submitted to this court that the community penalty sentence was unduly lenient. 8. We have been taken to the aggravating and mitigating features as submitted by Mr Ellison on the Attorney's behalf. As he points out, this was an unnecessary journey, at a time when the appellant must have known that he was affected by drink. He was more than twice the limit and he at the time was driving uninsured. The mitigating features are that he pleaded guilty at an early stage; he has shown real remorse; he is relatively young and is of good character. 9. We have also, in considering the appropriateness of the sentence, taken into account the fact that the family of the deceased have not indicated any desire for any form of revenge. The position is that his mother is finding it hard to cope with the death of her son but believes that it was an accident and apportions no blame on to the offender. She says that she has no hard feelings towards him and there would be no problem between them if he returned to the island. 10. Mr Ellison has taken us to the judgment of the Lord Chief Justice in R v Cooksley and others [2004] 1 Cr App R (S) 1 at page 1 and submits to us, this being a case where the maximum sentence available at the time was one of ten years' imprisonment, that the facts in the present case put it into what was described in Cooksley as the intermediate category: that is one in respect of which the appropriate sentence should be one of two to three years. Accordingly he submits that this is not a case where a community penalty was appropriate. In particular he submits that the case of Stephen Scotney , that is Attorney-General's Reference No 77 of 2002 [2003] 1 Cr App R (S) 111 at page 564, is not on all fours with this case. That was the case which the sentencing judge in the present case considered provided him with appropriate guidance in determining how to approach the difficult sentencing exercise. In Scotney it was again a case where a young man had taken a car out under persuasion when he was unfit through drink. It was also a case where there was no insurance and the trial judge imposed a non-custodial sentence. This court in its judgment concluded, having in particular regard to the fact that the evidence from the deceased's family was to the effect that to send the appellant to prison would be devastating to them, said as follows at page 572: "The sentence here was a lenient sentence. It was a merciful sentence. It was a case, in our judgment, in which a degree of mercy and leniency was well justified. It was not unduly lenient. We shall not interfere with what, in our view, was a properly exercised sentencing judgment." 11. Having considered with care the submissions of counsel and the judgments of this court in both those cases the first thing that we would seek to say is that we do not accept that this case clearly falls into the intermediate category which would justify a sentence of two to three years' imprisonment. However, we do consider that the proper sentence in this case would have been one of eighteen months' imprisonment. The case of Scotney , where the amount of alcohol in question was only one-and-a-half times the limit, coupled with the very special mitigating circumstances in relation to the deceased's family, in not precisely analogous of this case. It follows that we consider that the sentence was indeed not only lenient, as in Scotney , but unduly lenient, and accordingly we give leave to the Attorney General to refer the sentence. 12. There are, however, factors in this case which make it difficult for us, it seems to us, to consider that it would in any way be appropriate to substitute a sentence of imprisonment on this offender today. The position is that he has completed 178 hours of his community penalty. In other words, he is well over two-thirds of the way through. We would in any event have had to consider with care the extent to which the sentence should be discounted for double jeopardy bearing in mind that this is a case where the offender had been given a non-custodial sentence in the first instance. 13. Bearing in mind all those matters, we do not consider that it would be appropriate, despite our conclusion in principle as to the sentence, to interfere with it. Accordingly, as we have said, although we give leave to refer, we do not intend to make any change to the sentence that was imposed.

2005_03_04-462.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/537/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/537

daa671c64118eeb60c1e8fec82ef43f33238d5d15f01b66f55222c2f2bfd3f41

[2016] EWCA Crim 1876

EWCA_Crim_1876

crown_court

Neutral Citation Number: [2016] EWCA Crim 1876 No. 201601322 B5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday 15 November 2016 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Thomas of Cwmgiedd ) MR JUSTICE GOSS and MRS JUSTICE JEFFORD DBE R E G I N A v GENESIS CHRISTOPHER SAMUELS Computer Aided Transcription by Wordwave International Ltd trading as DTI 165 Fleet Street, London EC4A 2DY Telephone No: 020 7404 1400;

Neutral Citation Number: [2016] EWCA Crim 1876 No. 201601322 B5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday 15 November 2016 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Thomas of Cwmgiedd ) MR JUSTICE GOSS and MRS JUSTICE JEFFORD DBE R E G I N A v GENESIS CHRISTOPHER SAMUELS Computer Aided Transcription by Wordwave International Ltd trading as DTI 165 Fleet Street, London EC4A 2DY Telephone No: 020 7404 1400; Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) Miss S Harris appeared on behalf of the Appellant Mr O Gibbons appeared on behalf of the Crown J U D G M E N T ( As Approved by the Court ) Copyright© Tuesday 15 th November 2016 THE LORD CHIEF JUSTICE: 1. On 7 December 2015 in the Crown Court at Snaresbrook the appellant was convicted of having an offensive weapon and having a bladed article in a public place. The jury were unable to reach a verdict on the first count in the indictment (assault by beating). The appellant was sentenced to concurrent terms of six weeks' imprisonment, suspended for twelve months. He appeals against conviction on the count relating to the offensive weapon with the limited leave of the single judge. He also renews his application in respect of a ground based on the alleged misjoinder of all three counts on the one indictment. 2. We will deal first with the issue upon which leave to appeal was granted. 3. The facts may be briefly set out. The appellant and the complainant had been in a relationship, in the course of which a baby daughter was born. As long ago as 19 August 2014 the appellant visited the complainant to see his baby. The appellant saw the baby on his own. When the complainant went to tell him that it was time to leave, there was an argument. The complainant said that he assaulted her. The appellant denied that. The police were called and statements were taken. 4. At about 8pm that same evening the appellant returned. He pushed roses through the door. The complainant called the police. 5. On arrival, the police found the appellant in the hallway. He was arrested in respect of the alleged earlier assault. He was searched and two articles were found in his rucksack. The first item was a pair of wooden “nunchucks”. Although we have not seen a photograph of the nunchucks, they were before the jury. They were described by the judge as follows: "They are two rather innocuous pieces of wood. They are linked together by a form of rope or chain. In this case I think it is a bit of cord. We know that they are primarily used – and we know that because the [appellant] has explained how they are used – in martial arts training". 6. The second article was a camping-style hatchet. The explanation given by the appellant for the possession of these articles at the time and in the course of his evidence was as follows. As to the nunchucks (or two pieces of wood), he said that he had those in his rucksack as he practised Wing Chun, a form of martial art, and he had taken them for training in the morning. As to the hatchet, he said that he was making a dummy for training. He needed the hatchet for cutting branches from a tree and sharpening them. He then tried to put those sharpened sticks into the tree, but it had not been a successful attempt. 7. The matter was contested on two bases. First, it was said in relation to the offensive weapon that the nunchucks were not an offensive weapon. Two points were taken. First of all, they were not offensive per se; they were not adapted for such use; and they were not in his possession for the purposes of causing injury. In the case of both the hatchet and the nunchucks, essentially he said that he had a reasonable excuse or he had good reason for having them. Nothing arises in relation to the bladed article (hatchet) count. We are concerned solely with the offensive weapon. 8. The issue has arisen because, having set out a description of the item, the judge continued: "So in a sense they are not offensive per se. They are not weapons which have been designed to hurt or cause serious injury. Of course you have to consider whether they were in fact offensive at the time and the test is whether they are capable of causing injury. Are those items that you see, and I say 'those' but it is actually one item linked together, is it capable of causing injury because if you are sure that it is capable of causing injury then it is an offensive weapon. The decision, however, has to be yours. You heard [counsel for the prosecution] make the point that if these were just rubber versions of the same thing then probably you would have no difficulty in finding that they were not offensive because rubbery items are probably unlikely to cause serious injury. But the test here is whether they were capable of causing injury and if you find that they were capable of causing injury then it is an offensive weapon so that element has been proved by the prosecution." 9. It is unfortunate in this day and age, where an issue arises in relation to the ingredients of an offence and an explanation of the law has to be given to the jury, that the modern practice of putting directions in writing through a route to verdict was not followed. We are sure that if it had been, this matter would not be before this court. 10. The definition of an offensive weapon is set out in section 1(4) of the Prevention of Crime Act 1953. It is straightforward and simple. It provides: "In this section 'offensive weapon' means any article made or adapted for use for causing injury to the person or intended by the person having it with him for such use by him or by some other person." 11. If and insofar as any further elucidation is required, there is the helpful judgment of this court given in 1983 in R v Simpson [1983] 1 WLR 1494, 78 Cr App R 115. It would have been easy for the judge to have fashioned a direction using those words and making it clear that if the jury did not find that the article was made for use for causing injury to the person, then they had to consider whether the article which was being carried was intended to be used for the purpose of causing injury to another person. The judge should not have said that the test was: "Is it capable of causing injury?" That was simply wrong. It is a matter of regret that that error occurred. 12. It seems to us that there was a material misdirection. As this was a central issue in the case it is impossible for us to say that the conviction is safe. We therefore quash the verdict in relation to the offensive weapon. 13. However, the count in respect of the bladed article stands, unless the appellant is able to persuade us that the single judge was wrong in the view that he took and that leave to appeal should be granted. 14. It is clear from the history of the matter that has been placed before us that at the trial that took place before the judge, in which he gave the summing-up to which we have referred, no question whatsoever arose about joinder. It was accepted by counsel then appearing for the appellant that the counts had been properly joined. Unfortunately, what seems to have happened is that after the verdict the question arose as to whether there should be a retrial on the count of assault by beating. 15. The trial date was fixed for 6 January 2016. When the case was called on that day, unfortunately, Mr Gibbons, who had been the original trial counsel for the prosecution, was not present, and there was new counsel for the appellant. Counsel for the appellant took the view, and argued before the judge, that there had been an improper joinder. It is unfortunate that no one spoke to Mr Gibbons, and even more unfortunate that counsel for the Crown seems to have conceded the point, some might say in a rather pusillanimous manner – certainly without consulting trial counsel as to what had happened before. As a result of counsel taking that position, the judge decided that the counts had been misjoined. There was no proper argument – certainly no ruling – and he therefore quashed the count charging assault by beating. 16. We in this court could re-examine the question as to whether or not there was proper joinder. We consider that it is unnecessary to do so, because it is well-established that if there has been a misjoinder, this can in no way render unsafe the conviction on the two counts unless there was prejudice. 17. We are in entire agreement with the single judge that this case comes nowhere near establishing any such prejudice. In the first place, it is clear that on several occasions the judge directed the jury that they must consider each of the counts separately. Secondly, the jury disagreed on the assault by beating count. It is evident, therefore, that they must have carefully followed the judge's directions. The single judge was plainly right: there was no prejudice in this case. 18. For that reason, although we allow the appeal on the offensive weapon count, we refuse the renewed application on the remaining count. 19. There is, rightly, no application in respect of sentence. The sentence passed by the judge for having a bladed article in a public place, which was by far the more serious count, must stand. 20. We would like to thank counsel for their short and eloquent arguments.

2016_11_15-3860.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2016/1876/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2016/1876

956e6be66d2d853fc3f0949bcca0b19865d680ae65cb9677dc2d6e3f2daac135

[2010] EWCA Crim 1326

EWCA_Crim_1326

crown_court

Case No: 2007/00426D4 2007/00430/D4 Neutral Citation Number: [2010] EWCA Crim 1326 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CHELMSFORD CROWN COURT HIS HONOUR JUDGE BALL QC T20057216/231 Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/06/2010 Before : LORD JUSTICE RIX MR JUSTICE OUSELEY and MR JUSTICE OPENSHAW - - - - - - - - - - - - - - - - - - - - - Between : REGINA Respondent - and - RICKY JOHN PERCIVAL & KEVIN NIGEL WALSH First Appellant Second

Case No: 2007/00426D4 2007/00430/D4 Neutral Citation Number: [2010] EWCA Crim 1326 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CHELMSFORD CROWN COURT HIS HONOUR JUDGE BALL QC T20057216/231 Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/06/2010 Before : LORD JUSTICE RIX MR JUSTICE OUSELEY and MR JUSTICE OPENSHAW - - - - - - - - - - - - - - - - - - - - - Between : REGINA Respondent - and - RICKY JOHN PERCIVAL & KEVIN NIGEL WALSH First Appellant Second Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr T Owen QC (instructed by Hughmans Solicitors ) for the First Appellant Ms A Johnston (instructed by Janes Solicitors ) for the Second Appellant Mr David Jeremy QC & Mr Mark Aldred (instructed by London Special Criminal Division, Ludgate Hill ) for the Respondent Hearing dates : Friday 23 April 2010 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Rix : 1. On 28 February 2001 at shortly before 0900 the body of 24 year old Dean Boshell was discovered in some allotments in Leigh-on-Sea, near Southend. He had died from three gunshot wounds to the head, all fired from the same gun, which was probably a Colt revolver. Rigor mortis had set in, so he had been dead for some time. One shot was to the back of the head. Two of the wounds, to the left side of the head, had been inflicted when the gun was very close to or in contact with the skin, presumably fired when Boshell was already on the ground. Other injuries included a laceration to the back of the scalp, caused by a blunt instrument such as the gun (or by him hitting his head when he fell), and a skin rash on the left side of his neck and face, consistent with contact with bleach or ammonia. Three bullets were recovered from the scene of the shooting (two from Boshell’s head), but the gun was not found. Neighbours living near the allotments had heard disturbances at various times of the previous night. 2. These appeals are against the convictions of Ricky Percival for the murder of Dean Boshell and other serious crimes, and against the conviction of Percival’s friend, Kevin Walsh, for conspiracy (with Percival and others) to pervert the course of public justice by providing Percival with a false alibi for the previous evening of 27 February 2001. There is also an appeal by Percival against sentence. 3. The trial at which Percival and Walsh were convicted took place at the Crown Court at Chelmsford before HHJ Ball QC and a jury between 28 September and 14 December 2006. Percival was sentenced on 14 December 2006 to life imprisonment with a minimum term of 26 years to serve. 4. The critical evidence against Percival and Walsh was given by Damon Alvin, a criminal associate of theirs. Alvin had faced trial the previous year, in September 2005, for the murder of Boshell (the “first trial”). Percival and Walsh, as well as Walsh’s girlfriend, Katy Griffiths, were co-defendants, charged along with Alvin with conspiracy to pervert the course of justice by reason of their participation in Alvin’s false alibi. At that trial, however, there was no charge of murder against Percival. 10 days after the commencement of that trial, Alvin changed his defence statement, and his solicitor, and pleaded guilty to the charge regarding perverting the course of justice. The trial was adjourned and the jury discharged. At his own invitation, he was re-interviewed by the police in relation to the murder of Boshell on 25 and 27 September 2005. 5. By his changed account, Alvin accepted that he had lied about his whereabouts on the night of Boshell’s murder. He said that he had been present at the allotments, just in time to see Percival murder Boshell, but that he had not anticipated Percival’s attack and had not been complicit with it. The prosecution considered Alvin’s explanation to be credible and decided to offer no evidence against him. That decision was communicated to him by letter dated 30 September 2005. On 7 October in court that decision was put into effect and he was acquitted of the murder, and sentenced to two years imprisonment on the count of conspiracy to pervert the course of justice. It is common ground, however, that Alvin was relieved of the burden of facing the charge of murdering Boshell as from the letter of 30 September 2005. 6. Alvin was debriefed as a “supergrass” as part of his entry into the witness protection programme. The debriefing continued over 204 days. The first debriefing interview took place on 6 October, on the eve of Alvin’s formal acquittal, and the last took place on 8 July 2006. The interviews ran to more than 94 hours and occupy more than 10 lever arch files. 7. In the course of the debriefing Alvin professed to make a complete revelation of his criminal activities and his knowledge of the complicity of other criminals. Among the matters which he revealed were his and Percival’s roles in a shooting of the Tretton family on 12 June 1999. Alvin’s role in the Tretton shooting was first revealed in the first debriefing interview of 6 October 2005. 8. In due course Alvin’s confessions and the information he gave against Percival led to the trial with which these appeals are concerned (the “second trial”). Percival was arrested for the murder of Boshell on 2 November 2005 and charged the following day. Walsh (and Griffiths) were arrested on the conspiracy count on 23 (and 24) November 2005. 9. On 16 December 2005 Alvin pleaded guilty to ten further offences (in addition to his plea to the conspiracy to pervert the course of justice count), with a further sixteen offences taken into consideration. On 11 January 2007 he was sentenced to a total of 5 years imprisonment, concurrent to the two year sentence on the conspiracy count. 10. Although, as will appear below, there are other grounds, the critical ground of appeal is whether the judge gave an adequate warning to the jury about the difficulties and dangers of accepting Alvin’s evidence against Percival, with its attendant undermining of the alibi provided by Walsh. The circumstances leading up to the conclusion of the first trial 11. Boshell was known to the police as an offender and an informant. Following his murder, the police spoke to his known associates who included Percival and Alvin. Boshell was considered by the police to be a weak individual, a friend of and gofer for Alvin and an associate of Percival. He appears to have looked up to both of them, calling Percival his “mate” and Alvin his “brother”. On 3 and 4 March 2001, Percival, Alvin, Walsh and Griffiths, made witness statements saying that they had been together in Walsh’s home on 27 February from about 2245 until, in the case of Percival about 2330 or just after midnight, and in the case of Alvin, about 0030. Percival said he then returned home alone, and Alvin said he was picked up by his wife and returned home with her. Walsh’s home was close to the allotments. Percival and Alvin also said that they had started the evening drinking together in the Woodcutters Arms, and that when they had left there, they had each temporally returned home. Percival said he had picked up Alvin from the latter’s home at about 2230 and driven him to Walsh’s. Alvin said the same, saying they had left the pub at about 2130 and arrived at Walsh’s home at about 2245. Percival said that he had not seen Boshell for some weeks before his death and Alvin said he had not seen Boshell for some days before his death. 12. The police also spoke in the week after the murder to Jason Spendiff-Smith, with whom Boshell had been spending his time in the months before his death. From Spendiff-Smith the police learned that Boshell had planned to meet his “brother” (Alvin) and his “mate” (Percival) on the evening of 27 February to carry out a raid to steal cannabis plants from a “skunk farm” in a village outside Chelmsford. On 25 February 2001 Boshell took Spendiff-Smith to Boshell’s home to show him a hand-gun and three bullets which Boshell had previously told him he was going to get from Percival for £250 to take on the job. 13. Suspicion for the murder of Boshell accordingly fell on Alvin and Percival, but the police had little to go on, and they had their reservations about relying on Spendiff-Smith. It was some time before the police acted on their suspicions, but on 1 April 2003 Alvin was arrested in possession of a kilo of cocaine. On 2 April 2003 an “intelligence interview” was conducted with a view to seeing if Alvin would assist the police by providing information which might go in mitigation of any sentence that he might receive for his drug crime. He was prepared, inter alia, to implicate Percival in the supply of a consignment of 60 kilos of cannabis. The carrot of becoming a “supergrass” was put to him, but at that time he declined. 14. On 16 April 2003, while still in custody, he was arrested for the murder of Boshell and interviewed as a suspect. The police suggested that Percival had been the instigator of the murder, but that Alvin was also present and complicit, since, as a friend of Boshell, he could have stopped Percival if he had wanted to. Alvin made no comment. However, police witnesses gave evidence that there were conversations about what could be done, by way of the witness protection programme, to ensure the safety of Alvin’s family were he willing to speak frankly. His wife, Claire, visited him, but she was unwilling to countenance being uprooted from her family. She was pregnant. On the subject of Boshell’s murder, Alvin remained silent at that time. Percival was then in Spain. Percival himself gave evidence that he had been tipped off by a corrupt detective who had offered him the friendly advice to go on holiday. Percival thought that was in connection with the risk of being arrested for the supply of 60 kilos of cannabis. 15. Nothing further happened concerning the murder of Boshell at that time. Alvin pleaded guilty in the Basildon Crown Court to the charge of possessing the cocaine with intent to supply and in August 2003 was sentenced to 30 months imprisonment. He accepted at the second trial that his light sentence had been obtained by deceit in the matter of his mitigation. He had constructed an elaborate and entirely false account of duress. To support his story he arranged for his wife, Claire, and his mother-in-law to cut out letters from newspapers to construct threatening notes. His brother arranged for a wreath to be sent to Claire to imply that Alvin was under sentence of death. He also gave intelligence to the police about Percival (but said nothing about the offences which he was to allege against him in due course). He was released in February 2004. On 30 June 2004 Alvin was arrested a second time for the murder of Boshell. He declined to answer any questions in interview and was bailed. Walsh and Griffiths were also arrested on the conspiracy count, as on 17 July 2004 was Percival, who had come back from Spain. In October 2004 Alvin was charged with the murder and the other three with the count of conspiracy to pervert the course of justice. Alvin and Percival went into custody on remand, and were to spend some time together in the same cell or were otherwise able to meet. 16. Alvin waived privilege in relation to his first trial. He shared a solicitor with Percival, on the recommendation of Percival, by the name of Anne Blyth-Cook. The papers from her files gave an insight into the lengths he went to understand and attempt to meet the evidence against him, but also meshed with his subsequent evidence as to how he was to come to the conclusion that the risks of sticking by his alibi could lead him to take the blame for a murder which he ended up saying had been carried out by Percival. At his second trial he was to say that Mrs Blyth-Cook had advised him that the case against him was weak and nothing more than a tactic “to make him come clean, to make him panic and spill the beans”. He was subsequently to conclude that she was more interested in protecting Percival. 17. At the end of March 2005, contrary to Mrs Blyth-Cook’s prediction, the prosecution survived a dismissal application. The first trial began on 12 September 2005 with nearly two weeks of legal argument. The prosecution opening note presented the case as depending on Alvin’s known association with Boshell, some evidence of his meeting with Boshell on the night of the murder, a possible motive arising from Boshell’s activities as an informer, but most of all, against that background, on the destruction of his alibi through cell-site evidence. By use of such evidence and with the assistance of CCTV, the prosecution was able to show: that Alvin and Percival (and Walsh and Griffiths) were in the Woodcutters Arms until about 2115 (so far in accordance with the alibi); that at 2032 Alvin was seen taking a call on his phone which could be attributed, on the evidence of a witness Cliff McLaughlin, as having been made by Boshell from McLaughlin’s phone; that Alvin and Percival left the pub together in a car (the alibi said separately); but that at 2145, at a time when on Alvin’s alibi, as supported by Percival, he had gone home to Rochford (he said for a bath), to the north-east of the Woodcutters Arms, to be joined there sometime later by Percival, he was in fact to the south-east, in the centre of Southend, in an area known as the Kursaal, close to where Boshell lived; that his phone was then switched to divert until sometime after 0037 (so that it could not be traced through cell-site information); that during this period of diversion Alvin’s wife, Claire, had made numerous unsuccessful attempts to call him; and that at 2348 a call was made to Claire’s mobile from a telephone kiosk on Elmsleigh Drive, a short distance from the allotments, which the prosecution suggested was from Alvin. (At the second trial, both Alvin and Claire were to say that that call was made by Alvin, and was to ask her to pick him up from Kevin Walsh’s home). In the meantime, the prosecution suggested, the murder of Boshell had occurred sometime in the bracket between 2145 and 2348, which would fit with evidence from neighbours of the allotments who had heard disturbances around 2300 to 2330. 18. The prosecution therefore suggested that Alvin had lied about his alibi, and had done so to cover up his complicity in the murder of Boshell. The prosecution did not, however, suggest that he had carried out that murder alone. On the contrary, the Crown opening said: “You will see that Alvin alone is charged with murder. That does not mean that he committed the murder alone or even that he was the one who pulled the trigger. It is most likely that he would not have been alone…Count 2 charges all of the defendants (including Alvin) of lying about [Alvin’s] whereabouts. Whether the excuse is loyalty or fear, lying to police investigating a murder can only be intended to mislead…” 19. As we have stated above, Alvin changed his defence statement, to implicate Percival, and pleaded guilty to the conspiracy to pervert count, on 22 and 23 September 2005. The catalyst of that change, as he subsequently explained, was the loss of his opposition to an application by the prosecution to admit the hearsay evidence of Boshell’s contact sheets as an informer. These showed that Boshell had informed against Alvin (and Percival). At the second trial the judge was to warn the jury that they had to treat such contact sheets with great caution, but he also said: “If only a fraction of that material is true you might conclude that it reveals the existence of a self-confident, active, threatening group of criminals at the heart of which appear to be Damon Alvin and Ricky Percival…” 20. The skeleton argument served on behalf of Percival at this appeal described the failure of Alvin’s opposition to the admission of Boshell’s contact sheets as “potentially devastating” for his defence. 21. Alvin’s evidence at the second trial was that initially he had accepted Mrs Blyth-Cook’s advice that the case against him was weak, but that as time went on he had increasing doubts about the soundness of that advice and, indeed, as to whether Mrs Blyth-Cook was sacrificing his interests to those of Percival. He began to feel that he might be convicted for a murder which he had witnessed, but not committed. He was concerned about the cell-site evidence, including evidence of two brief calls from Kevin Walsh’s phone to his phone at 2317 and 2347 (when his phone was switched to divert), at a time when, according to the alibi, they should have been in each other’s company at Walsh’s home. He and Mrs Blyth-Cook discussed the possibilities of others who might be suspected of the murder, such as Turkish drug gangs, or a criminal who had been in prison with Boshell but had himself died since Boshell’s death. “All this gives an insight into the way Alvin was plotting, wriggling, squirming ahead of his trial”, commented the judge. 22. Alvin was also concerned at Percival’s reaction to McLaughlin’s witness statement that he had lent his phone to Boshell to make the call to Alvin at 2032, when Alvin was in the Woodcutters Arms with Percival. That call linked them with Boshell that night. Alvin was to say at the second trial that Percival had sent his brother to get a mutual friend to approach McLaughlin not to give evidence, but the friend would not cooperate; and that during the first trial itself Percival sent his brother to McLaughlin’s father to offer £4000 to get McLaughlin out of the way for the duration of the trial, a plan hatched when Percival and he were on remand together, but which also failed when McLaughlin’s mother vetoed it. That evidence led to a second charge of conspiracy to pervert the course of justice which Percival faced at the second trial, and of which he was convicted. This was despite the fact that McLaughlin’s mother, Tracey McLaughlin, gave evidence for Percival’s defence to the effect that she was unaware of any such plot to get her son out of the way. 23. Alvin was also concerned that Percival had offered him £100,000 to go through with the trial. He wondered why such an offer might be necessary, if the case was as weak as Mrs Blyth-Cook was advising. 24. He was still further concerned of a plan by Percival’s brother to nobble the jury, about which he said that Percival spoke to him during the first week of the trial. 25. Meanwhile, Alvin’s counsel, Mr John Black QC, who gave evidence for the Crown at the second trial to this effect, was trying to get Alvin to explain himself so as to provide ammunition for an alternative defence, in case the alibi was disbelieved. He wanted to be able to run the defence, which seemed to him to be suggested by the Crown’s evidence, to the effect that Alvin and Percival had been together with Boshell that evening: in which case how could the jury be sure who had used the gun? But if that scenario was to be presented, then Mrs Blyth-Cook could no longer represent both Alvin and Percival, because there would have been a conflict of interest. As it turned out, she withdrew from representing Percival on 15 September 2005. 26. Mr Black gave evidence of what the judge described as “a firsthand and unquestioned account of how [Alvin’s] change of position developed”. Mr Black advised Alvin that the case against him was a strong one, but that if Alvin was not the murderer, but had been present, he should tell the truth, although it was a matter for him, and he could not predict how the Crown would respond. Over a weekend, Alvin considered his position and that led to his change of account. As preparations began for the drafting of a new defence statement, Mr Black became increasingly concerned about Mrs Blyth-Cook’s negative attitude and sought to exclude her from the drafting. Ultimately he told her that she must withdraw, which she did. He considered that her concern was for Percival rather than her client Alvin. 27. In his amended defence statement, Alvin gave an account of the murder of Boshell which he was to give at the second trial. The judge remarked on the consistency of Alvin’s evidence, and that he did so has been among the criticisms of the judge’s summing up made on behalf of Percival by his new counsel on this appeal, Mr Tim Owen QC. We will return to that criticism. The account that Alvin now gave, and was to give at the second trial, was as follows. Its details, with much else besides, were explored in interviews on 25 and 27 September 2005 and during the lengthy debriefing period which followed the end of the first trial. 28. Alvin and Percival had planned to rob the skunk farm on the night of the murder, and had involved Boshell as their driver. Percival was not keen to include Boshell, but had been persuaded by Alvin. The evening had started off with Alvin and Percival in the Woodcutters Arms, but they left at about 2115. This is where Alvin’s account began to diverge from the alibi. We omit some detail but the essence of Alvin’s account is that he went to collect Boshell from the centre of Southend (where the cell-site evidence showed him going) and they met up with Percival at the allotments. There Percival started questioning Boshell about the whereabouts of a gun which he had been looking for in the allotments. He accused him of taking it. He was angry. Alvin went back to his car to get a torch. As he returned to the allotments, he could see the two figures of Percival and Boshell ahead of him, with Boshell’s hands to his face. He heard the bang and saw the flash of a gunshot and Boshell fell. He ran away, hearing two further shots. He hid for a while, then made his way to the telephone kiosk where he made the call to his wife’s mobile recorded at 2348, to ask her to collect him from Walsh’s home. As he walked from the kiosk, Percival drew up in his car. He said that Boshell was dead, having pulled a gun on him, and that they needed to talk. He said that he would sort it out, and that Alvin was to say nothing, to which he agreed. They arrived at Walsh’s home at about midnight. Alvin’s wife, Claire, arrived to take him home. He told her nothing. 29. Subsequently, Percival and Alvin had built an alibi. Percival told him that Walsh would say they had been with Walsh at his home from about 2300. Percival also told him that he had returned to the allotments to fetch Boshell’s phone. He advised Percival to get rid of his. He had his car crushed and disposed of the gun. 30. As we have stated above, the police were disposed to believe Alvin’s new account, and the Crown offered no evidence on the murder charge. Also as stated above, Alvin’s peril on the murder charge ended with the CPS letter recording the decision to offer no evidence dated 30 September 2005. The formal acquittal and sentence on the conspiracy to pervert the course of justice charge was on 7 October. On 6 October Alvin began his debriefing in a session in which he implicated Percival and himself in a shooting of the Tretton family in 1999. 31. Percival was arrested for the murder of Boshell on 2 November 2005. The debriefing 32. Alvin’s lengthy debriefing was carried out by police officers who were entirely independent of the murder enquiry leading to the first trial. The purpose of the debriefing was to ascertain whether Alvin could really be relied upon as a witness for the prosecution. Such a debriefing is a necessary part of the process of a witness turning Queen’s evidence and entering the witness protection programme. As part of this debriefing, Alvin was required to speak frankly about the whole of his criminal activities, knowing that once he had confessed to these crimes he would be charged and prosecuted for them. 33. Among the crimes about which Alvin told the police and which concerned Percival were the Tretton family shooting and the Wickford robbery, both of which occurred in 1999 (see below). 34. What emerged from Alvin’s account of Percival was the image of a young man with a capacity for extreme violence when he was roused to anger, a readiness to use weapons, and a volatility which meant that his violence could be triggered by relatively minor slights or perceived wrongs. Alvin gave general evidence of Percival’s bad character, including his involvement in episodes and threats of violence, drug dealing, robberies, revenge assaults and access to guns, and occasions when he showed aggression and lack of control. The Tretton shooting 35. The Tretton shooting was the first crime that Alvin and Percival had committed together. What emerged from Alvin’s debriefing and his evidence at the second trial, including the evidence of other witnesses was as follows. The target was the Tretton family who lived in Southend. Percival had been dealing drugs to Stephen Tretton, who owed him a small debt. Percival, who was in prison at the time, asked Malcolm Walsh (Kevin’s brother) to collect the debt. This led to a feud developing between Malcolm Walsh and the Trettons, and to Stephen Tretton’s stepfather, Terry Watkins, stabbing Malcolm Walsh to death on 10 June 1998. In March 1999 Watkins was convicted of his manslaughter. Percival sought revenge on behalf of Malcolm Walsh. Moreover, Stephen Tretton had had a relationship with Percival’s girlfriend when Percival had been in prison. On the night of 11/12 June 1999 Alvin and Percival drove to the Trettons’ home. The plan, as Alvin understood it, was to harm or knee-cap one of the family, and Percival was armed with a shotgun. Alvin was his driver. Boshell had backed out as driver at the last moment, and Percival had persuaded Alvin to take his place. Alvin went with Percival to the front door of the house next to the Trettons’ home, where Percival had discovered that the Trettons were being entertained by their neighbour (Carla Evans). Percival kicked in the front door, Alvin heard the firing and returned to the car. 36. The man with the gun, whom Alvin said was Percival, wearing a balaclava, kicked the front door in and burst into the living room, firing three shots. Only the jamming of his shotgun brought an end to his firing. In the room were Carla Evans, Raymond, Stuart and Christine Tretton, another neighbour Jenny Dickinson, a baby and a small child. He fired at the chest and face of Raymond Tretton, shooting away the hand that he raised to protect himself. He fired at Stuart Tretton, shooting off his hand too. He fired at the sofa, hitting Jenny Dickinson (who had pulled Christine Tretton down) and she lost one finger and the use of two others. These matters resulted in three counts of attempted murder, of which Percival was also convicted. Percival was 19 at the time of these offences. 37. Two, but not all, of the eye-witnesses said that there were two men in the house, and the judge cautioned the jury that they may wish to consider whether Alvin was trying to play down his role. Christine Tretton said that she recognised the gunman from his eyes as Percival. She was an alcoholic and even had to have a drink before giving evidence. She had never previously said in her witness statement that she had recognised the gunman, but DC Brochen said that one of the women he had spoken to at the scene had told him that she had recognised the gunman from his mannerisms and physical appearance. He did not have a notebook to confirm that evidence, but there was a police policy document dated May 1999 which stated: “Witness Christine Tretton has stated to DC Brochen the build and posture of one of the attackers similar to Ricky Percival.” However, the judge told the jury that they must not convict Percival of the Tretton shooting on the basis of Christine Tretton’s purported recognition of him, adding: “If you are to convict him of the Tretton shootings it must be because you are satisfied so that you are sure that Alvin has told you the truth about his involvement.” 38. Carla Evans, on the other hand, volunteered in examination in chief that the gunman had blue eyes. She said she had seen them “staring right at me”. Percival had brown eyes, but Alvin had blue eyes. (It was Percival’s case at trial that Alvin was the gunman, and that he, Percival, had not been involved at all. He relied on an alibi.) There was nothing in her three witness statements, the first two of which had been made on the day of the shooting itself, about the colour of the gunman’s eyes. The prosecution successfully applied to treat her as a hostile witness. Her evidence had, however, been anticipated by the defence, because some two weeks before she was called, during the cross-examination of Alvin, Mr Andrew Bright QC, then leading counsel representing Percival, had asked him about the colour of his eyes, namely blue, and contrasted them with the colour of Percival’s brown eyes. Mr Bright had commented that perhaps eye colour was something that women were better at noticing than men. This was despite the fact that in all of the used and unused material generated by the Tretton shooting there was nothing which referred to the colour of the gunman’s eyes. 39. Carla Evans’ evidence led to the recall of Christine Tretton. She gave evidence of having received a visit, shortly before the start of the trial, from Trisha Madden, a friend of Percival. Trisha had suggested to her that Raymond Tretton, before he died, used to say that the gunman had blue eyes and that he must have been Alvin rather than Percival. This had upset Christine because she had taken it as an attempt to put things into her head. The prosecution therefore argued that Percival must have exploited Carla Evans’ fear of him (her witness statement alleged that he had threatened her prior to the Tretton shooting) in order to feed into the prosecution case the suggestion that the gunman had blue eyes. By their verdicts, the jury showed that they rejected Carla Evans’ evidence about the gunman’s blue eyes. 40. After the shooting, Percival (said Alvin) rejoined Alvin in the car and told him what he had done. They hid the gun in a drain and went to Pam Walsh’s house. Percival was planning an alibi with Pam Walsh. 41. Later that morning the police arrested Percival for attempted murder. He instructed Mrs Blyth-Cook to assist him. He was interviewed, and, as he was to admit at trial, told a lot of lies in interview. He admitted in cross-examination that his interviews were “drivel”. The judge gave a lies direction. Despite admitting that among his lies was a gross exaggeration of his closeness to Pam Walsh, he stood by his alibi that he had been with her that night. He also named a man called Peter Edwards as able to support his alibi. In his third interview there was a violent outburst when the police informed him that neither Pam Walsh nor Peter Edwards were supporting his alibi. They did not come to do so at trial. 42. The shotgun was recovered from a drain a few days later. It had a live cartridge jammed in the breach, and a spent cartridge still in the barrel, which matched one of the cartridges recovered from Carla Evans’ lounge, although of a different weight of pellet. Boshell’s contact sheets showed that he had informed the police that Percival had been the Tretton gunman. He also named a second man as “Dave”, which may have been him covering up for Alvin. 43. When arrested in 2005 for the Tretton shooting, Percival refused to answer any questions in interview. The Wickford snooker club robbery 44. Alvin said that later in 1999 he and Percival had shared another enterprise, a robbery of a snooker club at Wickford. This occurred in the early hours of 20 August 1999. Boshell had introduced the job to the other two, because he had a relationship with a girl who worked at the club, Carla Shipton. She met Alvin and told him about the club routine and the alarm system. There were expectations of a haul of £15,000, although in the event there was less than a thousand on hand, the rest had already been banked. On the night of the robbery, Carla Shipton left the door ajar for Alvin and Percival to get in. The manager, Alan Ashley, who gave evidence at trial, was set upon. He was faced by two men in balaclavas. One squirted him in the face with ammonia, the other punched him. Later he was threatened with a small handgun. Alvin said that the gunman, and the user of the ammonia, was Percival. Later, he said, the gun was hidden by Percival in a wood. 45. When arrested in 2005 for this robbery as well as the Tretton shooting, Percival refused to answer any questions in interview about it. The telephone evidence 46. We have already mentioned the salient matters concerning telephone evidence, but resume them here. It was cell-site evidence that showed plainly that Alvin had lied in his original alibi, shared with Percival, that he had gone home after leaving the Woodcutters Arms at about 2115. In fact he had gone into the centre of Southend (to pick up Boshell). At 2145 an incoming call on Alvin’s home put him in the Kursaal area of the centre of Southend, where he was picking up Boshell. While he and Percival had been in the pub earlier Alvin had been in contact with Boshell by phone at 2032. From 2145 until at least 0037 Alvin’s phone was on divert and thus unable to reveal any cell-site information. During that time his wife, Claire, had made some eighteen unsuccessful calls to his phone, and Kevin Walsh, who on the alibi was supposed to have been at his home in company with Alvin, made two unsuccessful calls at 2317 and 2347 to Alvin’s mobile while it was on divert. (It was suggested on Walsh’s behalf, but he did not give evidence, that these calls were attempts to find Alvin’s misplaced phone.) At 2348 there was a call to Alvin’s wife from a public telephone kiosk close to the allotments, which he said was to her to ask her to collect him from Walsh’s home (and which Percival’s case suggested could have been from Boshell, who on Alvin’s evidence was already dead). There were two further calls from Alvin’s wife to Alvin’s diverted phone after that telephone kiosk call, which on Percival’s case was inconsistent with the idea that Alvin was calling from the kiosk. The timing of Boshell’s murder 47. The timing of Boshell’s murder was an issue at trial, and evidence concerning it has become a ground of appeal because of the discovery that the statement of a witness, Gordon Osborne, which was read at trial, contained lies about his service with the Royal Marines. These lies completely undermined his evidence that he was well placed from his service experience to recognise the sound of the gunfire of a handgun, which he said he had heard, as a neighbour to the allotments, at between 2300/2330. 48. When was Boshell’s murder committed? On Alvin’s evidence sometime around 2315, that is to say some thirty minutes or so before his telephone call to his wife from the kiosk at 2348. On Percival’s case, he and Alvin were together at that time with Walsh and Griffiths. Walsh and Griffiths also said so. Percival’s case was that the murder had happened at about 0200 the following morning, when he was back at home alone, and when Alvin and Boshell had gone to the allotments. Percival produced witnesses from Alvin’s time in prison to that last effect (see below). 49. The independent evidence, such as it was, came from neighbours to the allotments who were questioned in the immediate aftermath to the murder. On 1 March 2001, in the immediate aftermath of the murder, Osborne spoke to DC Mark Hall who was making house-to-house enquiries with the aid of a “House Enquiry Form”. In answer to the question “Did you hear anything that was unusual”, Osborne’s recorded answer was “Half thinks may have heard a bang. Cannot be sure does not know time. Possibly 11.00 to 11.30 pm.” Three months later on 18 June 2001 Osborne made his first witness statement (by which time he would have known the details of the murder) in which he said: “About 11 pm (2300) I was awoken by the sound of 2 or 3 shots coming from the direction of the allotments. My bedroom window is always open and I got up to look out of the window towards the allotments but I could not see anything as it was pitch black.” 50. On 2 September 2005, following Percival’s arrest, Osborne, who had gone to Spain, made a second witness statement. In it he explained the firming up of his evidence from the enquiry form to his first statement as follows: “I will admit that at the time I didn’t really think about the answers I gave the officer and was quite vague about what I said. However by the time the officer called to take a statement from me I had given it more thought.” He then amplified his first statement as follows: “I woke at about 11pm that same evening. I’d heard two or three shots coming from the allotments. I can’t be more specific about the time now but I had a digital alarm clock by the bed which I did look at. I immediately recognised the sounds as coming from a handgun, this type of weapon has a distinctive sound, totally different from a shotgun or rifle. I have had experience of firearms since I was 11 years of age when I shot rifles with the Sea Cadets. I remained in the cadets until the age of sixteen. At the age of 17 I joined the Royal Marines staying with them for 18 months. During training with the Marines I had training with the Browning 9mm semi automatic pistol, SLR rifles, Lee Enfield rifles, American M16 rifles, German Mauser and Luger. Since leaving the Marines I have not had any dealings with firearms, but like riding a bike you never forget what you’ve learnt and the sound each weapon makes.” 51. The statement then went on to explain that Osborne would not return from Spain to give evidence at trial. It was not that he was wanted in relation to an offence (of indecent assault) but that he feared for his safety. 52. It was known that Osborne had a long list of previous offences against his name, including offences of dishonesty. He had been to prison. 53. At trial the prosecution applied to have Osborne’s witness statements read, but the defence opposed the application. There is a dispute about the importance to the prosecution case of Osborne’s evidence. Suffice it to be said that the Crown pressed for the admission of the evidence, on the basis that the jury should have all the relevant evidence “in the round” and “what matters is when the shots were fired”, and the defence strongly opposed it. Mr Bright called it “fundamentally important evidence” and sought to underline “how fundamental the issue of the timing of the hearing of the shots is to this case”. It would be “a travesty of justice” to allow such unreliable evidence to be read to the jury. It was “of crushing importance”. 54. The judge admitted the statements. He accepted the Crown’s submission that the jury should have all potentially relevant evidence for them to consider. He said: “Are they to be denied hearing what those potential witnesses have said?...I stop to ask myself for a moment were this trial to be concluded and they walked away and the following day learned that there were three people who in different ways had asserted that they had heard different things coming from those allotments, never mind what time, I have not the least doubt that the jury would be amazed that they had been stopped from receiving that information and had been prohibited from making their own judgment about its quality and about the weight that they might attach to it. It is for that very reason, I have no doubt at all, that this legislation was introduced: to stop the artificial exercise of withdrawing from the jury material of potential relevance. Whether, and the extent to which, it has any relevance will be a matter for them… However, ultimately the jury are going to have to focus on when did this killing take place?...” 55. Later, in his summing-up, the judge commented on the close scrutiny to which Mr Bright had subjected the evidence of Osborne. He said: “He is the witness who would not come. He is in Spain. He has been charged with some sex offence, so, as is the modern approach, he must be the lowest of the low and he will not come and help. He falls into the category of all those other statements you have heard read; we want these witnesses here but we cannot have them so are you to be denied their statement? Imagine if this case was all over, you went away having delivered your verdicts and then you suddenly heard there was a statement from a man who said that he heard gunshots and you did not learn about it. You would be outraged, would you not, to think that such an important piece of material had been withheld, which is why the law allows you to hear it so you get all the material. What you do with the material is entirely up to you. What weight you attach to it is entirely up to you. If you think this man is worthless and his account is worthless disregard it, do not put it in the scales. If you think there may be a grain of truth in it, well, use the grain if you think it is safe to do so.” Mr Owen relied on that comment, “such an important piece of evidence”. 56. Since the trial, it has come to light that Osborne’s only connection with the Royal Marines was for a five-month period as an acting steward, at the age of seventeen, and that he had been discharged as “unsuitable”. In those circumstances, had they been known at trial, it is well possible that Mr Osborne’s statements would not have been admitted at all. 57. Other witnesses gave various accounts of what they had heard or seen that night. The judge reviewed them all for the benefit of the jury. Mrs Bramzel heard a series of repetitive bangs, between 2 and 6, coming from the direction of the allotments, at some time before she went to bed, later rather than earlier in the evening. The noises had made her look out, but she could not see anything. Mrs Faulkner remembered seeing lights like a torch or bicycle light flashing from the direction of the allotments, at about 2300, her bed time. She sent her husband out to check. Mr Faulkner, having gone to bed about 2230/2300 and while he was dozing off remembers being woken by his wife and sent out to investigate: he saw the lights too, but they went off and he saw and heard no more. Mrs Brown, whose bedroom windows were open, heard a man calling out, a single word or name, in a frantic or stressed way: that was at about 2230/2330. Mrs Andryas remembered a lot of noise from the allotments over a four or five hour period. They were loudest at about 2300, when she went out in the garden to investigate. She could hear sounds of talking and rustling. The noises continued as late as 0030. There were more noises at 0200, when she heard a very loud bang, like a firework, followed by an echo, and then all went quiet. Other statements were read. There was a Mrs Koskas, who recalled seeing a dark-skinned man talking loudly on a telephone at 2255 or thereabouts. Mrs Alsford said she had heard gunshots on four or five occasions, most recently about “three to four weeks ago”, ie one to two weeks before the murder. She said: “If I heard shots around the time the man was killed I would have reported it.” Mr Rowley said that he heard two distinct gunshots at about 0555 on 26 or 27 February, which he ascribed to shooting badgers in the nearby woods. 58. The Crown relied on those who had heard sounds in the period of around 2300, such as Mrs Bramzel, the Faulkners and Mrs Brown, as well of course as on Osborne, who alone spoke of gunshots. The defence relied upon those who had heard sounds later, in particular on Mrs Andryas who mentioned the firework at about 0200. 59. The facts are that Boshell was murdered with three shots, probably from a handgun. If, therefore, Osborne’s evidence is to be regarded as excluded, or, if as admitted, discounted to nothing by reason of all the matters to be placed against the reliability of his evidence, no one heard the three gunshots. 60. We said above that Percival relied on witnesses from Alvin’s time in prison to say that Alvin had confessed to committing the murder at 0200. One was Ian Campbell, a prison officer for 15 years, due to retire 6 months after the trial. He was described as the “impecunious prison officer”, because nearly all his salary went on paying the interest on his debts. He had a couple of disciplinary findings against him. His evidence was that in September 2005, when Alvin was in prison on remand prior to the first trial, he overheard Alvin speaking in the showers, saying: “Fucking hell, mate, at the end of the day I done him. The only thing that keeps me in the clear is Old Bill got the time of death at 11.30 and I done him in the early hours of the morning.” Campbell said that he was shocked, but did not say anything to anyone at the time, even though Alvin was shortly to stand trial. He also knew Percival, who was in the same prison on remand. He described him as a model prisoner, and said he felt sorry for him, because he was not sleeping well. He spoke to his wife about it (who gave evidence of such a conversation in March/April 2006, she thought April). She advised him to get legal advice. There came a time when he raised the matter in Senior Officer Glasscock’s office in the presence of Percival. SO Glasscock advised him to contact the police or Percival’s solicitors. He did the latter. The proper procedure was in fact to pass the information to the police, and there was a system for doing so. In his evidence Percival said that this meeing in SO Glasscock’s office took place in March 2006, ie possibly after Mr Campbell had mentioned it to his wife. 61. Campbell was strenuously cross-examined for the Crown. Because Campbell had not contacted the police, there had been no warning of this line of the defence case until 12 October 2006, when in cross-examination of Alvin Mr Bright had put to him that he had been party to the murder of Boshell; and on 17 October 2006 it was put to him that he had confessed to the murder in the showers in prison in the terms stated above. In his cross-examination, Campbell accepted that he had not made a note of the overheard cross-examination. He accepted that nearly all his salary went on servicing his loans. He could not explain why he had not acted on what he had overheard when Alvin was awaiting trial on the charge of murder. He explained his later act of bringing the matter to light on the ground of feeling sorry for Percival. 62. The judge told the jury that if they thought Campbell might be telling the truth, “it is devastating against the Crown’s case”. However, the jury rejected the evidence of the shower confession. 63. A further witness to a prison confession by Alvin relied on by Percival was Michael Brown. His statement was read because he could not be found to bring to court. The statement was taken on 24 March 2006 when Brown was in prison, albeit he was released four days later. It was only on 23 November 2006, well into the trial, that his statement was revealed to the prosecution and police help was enlisted to secure his presence, to no avail. He was a serial offender. His statement referred to an occasion in 2003 when he was in prison with Alvin, meeting him for the first time, and Alvin told him that he had murdered Boshell in the allotments, by himself, because Boshell had been informing on him. The evidence of Spendiff-Smith 64. Spendiff-Smith, whom we have last mentioned at para 12, was an unreliable witness, but his evidence was nevertheless potentially important in a number of respects. He was a friend of Boshell and could speak to the last few days of his life. His evidence that Boshell had shown him a gun with three bullets, which he said had been given him by his “mate”, ie Percival, was highly significant, if the jury accepted it, and he remained unshaken on that. He also had potentially significant evidence to give about Boshell’s intended role with Alvin and Percival (ie his “brother” and his “mate”) in the raiding of the skunk farm on the night Boshell was murdered. For that purpose, he said he lent Boshell some dark clothing, in which Boshell was found. Boshell’s orange jacket was left behind with him. He also spoke of going down with Boshell to Lidl’s supermarket in the Kursaal to await Boshell being picked up by his “brother” (Alvin) although he did not see the actual pick-up. 65. Much more obviously unreliable was evidence about threatening calls to his phone. In his numerous statements he said: (a) that he had received an anonymous call at 2120 from someone who introduced himself as “Rick” and “Dean’s mate Rick”, and asked him to tell Boshell to meet him at 2130, but no further calls that night; (b) that between 0900/1100 the next morning, 28 February 2001, he received a call (which woke him up) from the same caller, Rick, who told him he would get hurt if he did not keep his mouth shut; (c) that on 1 March, after he had learned about the murder, he received a further threatening call from the same man; (d) that he could not remember the times of the calls exactly, and the caller called himself Ricky; (e) that none of these calls from Rick or Ricky had happened except the first two ( sc that on the evening of 27 February itself and that of 28 February); and (f) that the call on the evening of 27 February did not occur, and that the only threatening call was on the morning of either 28 February or 1 March, and the caller did not identify himself at all. 66. In his evidence at trial, however, he spoke, for the first time, of a threatening call at 2330/2400 on 27 February, whose maker gave the name of Rick or Ricky. He had never referred to such a call before. He said that he had made up all his statements about the phone calls (in order to obtain protection), but there was only this one. He had received it before he had learned of Boshell’s death on the following day. In cross-examination, however, when taken to his last witness statement which had said that he had only received one call, and that was on 28 February or 1 March (see (f) above), he said: “I’ve got confused. Well, no, because literally it was five years ago. I can’t remember everything from five years ago, otherwise I would be a genius…I’m not exactly sure what day it was.” He then also agreed, as he had said in his last statement, that the caller did not identify himself. He said the evidence he had given “just now”, ie in court as distinct from the statement, must have been the mistake. However, he reckoned that the caller was Percival: “Because who else would ring me and threaten me?” He was adamant that he had been threatened. 67. Although the matter was not picked up by any of the counsel in court, it is now common ground that the judge erred in summing up this evidence about the phone calls. The judge said: “Some time later that night, Jason Spendiff-Smith was to tell us, he received a phone call. About 11.30 to 12.00 he put it. It was a strange call. He at that time had not a clue that anything had happened and the caller threatened him by saying something like: “Say nothing, keep your mouth shut or I will cut you and your family.” The caller, he said, gave a name that sounded like Rick but he could not be sure. He was sufficiently upset by the phone call, apparently, to get rid of his phone the next day. If he is telling the truth about that phone call, and remember he admits lying and exaggerating the extent of the calls that he was claiming to have received from Ricky Percival, if he is telling the truth about that one phone call then, if nothing else, it points to the fact that something of significance may have happened prior to or around the time of midnight. Given the nature of the evidence he gave, and its potential influence in the case it was no surprise that he was subjected to an in-depth cross-examination by Mr Bright who explored with him the series of statements that he had made to the police following the shooting in which he readily agreed he had lied and lied again, principally about the extent of the threatening calls from Ricky Percival. He excused those lies by saying he was on heroin and crack cocaine at the time and he suggested at one point he was exaggerating the threats that he was receiving from Percival to get the police to protect him, even though he did not know who Percival was. The suggestion was made that he was deliberately pandering to the police’s desire to have incriminating evidence against Percival and he was deliberately keeping Alvin’s name out of things. To that he responded, you might think, quite robustly. He said that he never met Alvin, he did not know him, did not even know he had been charged with murder and he owed him no allegiance at all. He said: “I haven’t a clue who he is.” As for his lies and exaggerations against Percival he said they were purely made up himself. He did not have any reason to lie about Percival, not even knowing him. Even though he accepted the numerous lies and the statements and, you will remember, that come the first trial the Crown were not even going to rely upon him and call him as a witness, which indicates perhaps the reservations that they plainly had about him at that time, he was adamant when being cross-examined by Mr Bright that Boshell did talk to him about doing a cannabis job, of that he was absolutely sure, and he is absolutely sure that Boshell showed him that gun.” 68. That, we think, was a fair and accurate resume of Spendiff-Smith’s evidence save for this error: the judge overlooked that the evidence about the timing of the threatening call given in examination in chief was withdrawn in cross-examination, albeit only in favour of the last witness statement which had said that the call was either on 28 February or 1 March, and that the caller had given no name. 69. Another error of the trial, not of the judge, was that the prosecution had overlooked the evidence of a disclosed police report dated 26 May 2004 in which PS Michael Ruddock had investigated the billing of Spendiff-Smith’s phone. That showed that on 27 February 2001 Spendiff-Smith received no calls from an unidentified caller; that the same was true of 28 February; but that on 1 March – “ he received telephone calls at 7.37 (0737) 10.12am (1012) and 10.59am (1059). The details of these calls are unknown (No trace from Telephone analyst, Holmes or Intel checks) but the first of these is likely to have woken him.” It is possible therefore that Spendiff-Smith did, as he said in his last witness statement, receive at any rate one threatening call from an anonymous caller on 1 March, which woke him that morning. 70. However, in making his error in overlooking the withdrawal in cross-examination of his evidence about the call at 2330/2400 the judge was also in error in suggesting that “something of significance may have happened prior to or around the time of midnight”. The prosecution and defence cases at trial 71. The prosecution case at trial was unique in that it relied for its essence on the evidence of a witness, Alvin, who had been charged but acquitted on the same murder as that on which Percival was tried. The prosecution case stood or fell on Alvin’s evidence. The case was that Percival was a man of anger and volatility who liked guns and could act with unpredictable violence. He had killed Boshell because he had lost his temper over Boshell’s removal of his gun from where he had secreted it on the allotments (and possibly because he suspected him as an informer). He had shot up the Trettons as revenge for Malcolm Walsh’s death and over the slight to him of Stephen Tretton’s relationship with his girlfriend. Alvin on the other hand had no reason to kill Boshell, whom he had befriended, and had no argument with the Trettons. Although Alvin had lied over his alibi for the evening of 27 February 2001, and had had and taken every opportunity to familiarise himself with every aspect of the papers involved in the first trial, he lacked the same opportunity with respect to the Tretton shooting and Wickford robbery, and demonstrated remarkable consistency over an immense amount of detail on which he was little cross-examined. When questioned about the Boshell murder in April 2003 he had considered entering the witness protection programme, but had then rejected the idea because of his wife’s unwillingness. However, his peril of being convicted for a crime he had not committed led him to accept that fate in September 2005. The entire forensic process by which he came to make that decision was laid bare, including his loss of faith in his solicitor, Mrs Blyth-Cook, who appeared to favour the interests of Percival over his. Having been told that he would be acquitted of the Boshell murder, he had gone on to give a full account of his life and crimes rather than cease his co-operation. In doing so he had put himself in new peril of being held accountable for those crimes. He also gave a detailed account of Percival’s bad and volatile character, some of which was admitted by Percival himself. As for the Tretton shooting, the Crown was also able to rely on the admitted lies which Percival had told in interview, and the failure of Pam Walsh and Peter Edwards to support his alibi. 72. In short, the Crown asked the jury to accept the reliability of Alvin. That was the critical issue in the case. There was little clearly independent of his testimony on the murder charge to corroborate his evidence, because such independent testimony as there might perhaps have been was open to the riposte that he had crafted his evidence around the prosecution material which, on the Boshell charges, was entirely open to him because of his role as defendant in the first trial. 73. The defence case, on the other hand, at any rate as it emerged during the second trial, was not only to deny all participation in the various offences charged against Percival, and put the Crown to the burden of proof, but ultimately to accuse Alvin himself of the Boshell murder and the or a leading role in the Tretton shooting and Wickford robbery. The defence came to be a mirror image of the prosecution. It was Alvin whose character was violent, volatile, and murderous, Alvin who had access to guns and a propensity to use them. He had used the opportunity given him by access to all the forensic material available in the first trial to craft a tale of deceit in which Percival was ensnared – in order to save his own skin. His ability to do so was plain to the jury; whereas Percival called medical evidence to show that his IQ was at the very low level of 77. The grounds of appeal 74. Leave to appeal was granted on limited grounds by the full court. Following that leave, the grounds allowed were reformulated as eight, lettered A to H. At the hearing of the appeal, however, Mr Tim Owen QC, who had not appeared at the trial, concentrated on five grounds, A, C, D, G and H. As will appear, the first three, grounds A, C and D, were in essence part of a single complaint that the judge had not held the scales fairly between his presentation of the evidence of Alvin and Percival. Indeed, Mr Owen introduced the whole of the appeal as a complaint that the judge was not fair, in particular, he said, with respect to the murder charge. 75. Ground A (“Inadequacy of direction on special need for caution”) was that the judge had failed to give an adequate warning or correct direction as to the need for caution in dealing with the evidence of Alvin or as to the identification of evidence capable of corroborating it. Mr Owen submitted that the judge had failed to apply the learning of R v. MB (4 November 1999, unreported) where Henry LJ had said: “As Makanjuola makes clear, under the new regime it is a matter for the judge: “…to decide the strength and the terms of the warning…” and that is a matter for his discretion. There is no complaint on that score. What is complained of is at the conclusion of the summing-up, in the absence of the jury, counsel for the appellant with the support of counsel for the Crown invited the judge to draw the jury’s attention to those matters which were considered to be capable of being supporting evidence. It was the joint view of counsel in the case that there was no supporting evidence. In the event, the judge did not accede to those submissions, and did not add to his summing-up in this regard. The mischief complained of is that the jury were told that it was essential for them to look for and pay attention to supporting evidence, but were given no help at all as to what might or might not be such evidence. Without such help, the risk of a juror wrongly identifying what was not supporting evidence as being supporting evidence would be high… The jury needed careful direction on this point. The right direction would have been that there was no independent supporting evidence. But if the judge thought there was independent supporting evidence, he was bound to identify it, both to guide the jury, and to enable the defendant and his advisors to consider whether that direction was right in law.” 76. Archbold 2007 , as at the time of trial, had referred to R v. MB at para 4-40q in these terms: “Where a judge gives some form of corroboration warning it is incumbent on him to identify what evidence is capable of lending support to the evidence in need of support, and if there is no such evidence, to direct the jury to that effect.” 77. Ground B (“Judge’s adoption of Alvin’s account for his own factual narrative”) was a complaint that the judge had structured his summing-up in such a way as in effect to adopt Alvin’s evidence for his own narrative. However, at the hearing Mr Owen volunteered that this was a difficult argument to sustain. The point was not pursued. The jury could never have been at any misconception that they were hearing Alvin’s account summed up as the prosecution case, as to which their role was to decide whether they were sure or not as to his credibility. The judge turned subsequently to the defence case and reviewed that. 78. Ground C (“Misdirection that lack of cross-examination of Alvin relating to debrief was capable of demonstrating consistency”) was the complaint that the judge had wrongly directed the jury that the fact that the defence had chosen not to cross-examine Alvin on the mass of detail contained in his six months of debriefing could be relied on as demonstrating Alvin’s general consistency and thus his reliability as a witness. Mr Owen did not develop this ground at any length. His essential point, made in his written skeleton argument, was that whereas much of Alvin’s detail, particularly where it concerned himself, was not capable of cross-examination, yet where, however, it concerned Percival, Alvin was attacked “broad-side”: eg by reference to his obvious motive for implicating Percival to extricate himself from a murder charge which he alone had faced; his accomplished preparation for his evidence with the aid of the papers from the first trial; his proven (and successful) deviousness in relation to his false mitigation in connection with his plea to the earlier charge of conspiracy to supply the kilo of cocaine; and his long life of admitted criminality. 79. Ground D (“the Judge wrongly and repeatedly bolstered Alvin’s credit and reliability in a way which was unbalanced and unfair”) was a counterpoint to ground A. Not only had the judge given an inadequate direction on the special need for caution in dealing with Alvin’s evidence and on the significance of the need for its corroboration or the lack of corroboration, but the judge had gone out of his way to boost Alvin’s credibility. This bolstering had encompassed the judge’s warning of the need for care in relation to Alvin’s evidence, overwhelming or at least seriously discounting it. We will deal with these grounds below as part and parcel of one another. 80. Ground E (“Judge’s failure to remind jury of cardinal lines of defence”) was not developed. We do not propose to say anything further about it, save that Percival’s defence of total non-participation, his alibis in respect of both the murder and the Tretton shooting, and his “mirror” accusations against Alvin, as supported by witnesses such as Campbell and Brown concerning Alvin’s alleged prison confessions, were all presented to the jury for their consideration. As the judge remarked with reference, for instance, to Carla Evans and her evidence about the Tretton gunman’s blue eyes: “if it is true or might be true, if you accept that it might be true, it blows a hole in [the prosecution’s] case”. As the judge said with reference to Percival’s evidence as a whole: “Because if you think what he has been saying to you might be true then it would follow that you are not satisfied that Alvin’s account is the truth. If you are not satisfied so that you are sure that Alvin’s account is the truth then the case against Percival collapses.” 81. Moreover, in this connection the judge reminded the jury that there was evidence of bad character on both sides: “…because there are two sides to all of this, you have now heard everything that is known to the detriment of Damon Alvin. It is not one-sided. It has all gone into the pot. All the dirty linen has been washed before you. You have had everything known to the detriment of Alvin in terms of the offences of which he has been convicted, or has not been convicted but has now owned up to, of all those other matters TICed and, indeed, other matters which generally show him to be of a violent and dishonest disposition.” 82. Ground F (“Inadequate direction on appellant’s failure to waive privilege”) was the complaint that the judge had allowed Alvin’s waiver of privilege with respect to the first trial to be contrasted with Percival’s refusal to waive privilege. Mr Owen did not develop that submission orally. It is of no weight. The judge had to explain why they had heard everything about Alvin’s discussions with his lawyers in the first trial, but had heard nothing similar from the defence. He emphasised that “that is his absolute right. He does not have to waive privilege, he does not have to help the prosecution in any way at all”. 83. Ground G (the Osborne point) was, apart from ground A, the main ground of complaint. The submission is that Osborne’s lies about his service with the Royal Marines demonstrate that his evidence should never have been admitted, and that if those lies had been known about, would never have been admitted. He was the only neighbour to have heard the sound of gunfire at around 2300/2330, the time at which Alvin placed the murder. The judge himself had referred to it in his summing-up as “such an important piece of material”. The timing of the murder was a critical issue in the case. Indeed, timing lay at the heart of the case. Without Osborne’s evidence there was no support for Alvin’s account of the timing of the murder. No complaint is made of the admission of Osborne’s evidence on the material available at trial, but, in the light of what is now known, it can be seen that the evidence was crucial, but false, corroboration of Alvin’s account and must have had a critical effect on the jury’s deliberations. The convictions can no longer be regarded as safe. 84. Ground H (the Spendiff-Smith point) raised the complaint that the judge had misdirected the jury regarding Mr Spendiff-Smith’s evidence as to a threatening call he had received at 2330/2400 on 27 February 2001, and that the judge then compounded his error by suggesting that a call at such a time was evidence that “something of significance” may have occurred at about that time. That made the error regarding the Osborne point still more significant. 85. We will develop and analyse the surviving grounds as necessary below, in the light of the material which we have set out above. Grounds A, C and D 86. Mr Owen concentrated on an extensive passage in the judge’s summing-up which formed a passage or bridge between his account of the circumstances in which the first trial ended and his account of Alvin’s evidence concerning the murder and his criminal career. In that passage the judge was directing the jury as to how they should approach Alvin’s evidence. At the centre of that passage was a warning. The judge said: “…but I must give you a direction in law about Alvin and his evidence. Quite simply it is a warning. You must examine Alvin’s evidence with great care. By his own admission he has been a violent, dishonest and devious man.” 87. Mr Owen submitted, however, that on either side of that warning were encouragements to look benignly on Alvin’s evidence, or what Mr Owen described as a bolstering or boosting of it. 88. The judge began by explaining the reasons why he had refused during the trial to accede to a jury request to give them a copy of Alvin’s amended defence statement at the first trial. The fact was, he told the jury, that he had not been cross-examined on it for any inconsistencies with what he had said in court. It was “not the subject of a single challenge”. He had been “incredibly consistent”. His defence case statement was “absolutely spot on with what he has told you in court”. It “did not feature in cross-examination at all”. That “theme of consistency” brought the judge to his next point, which was that all the documents which had been available to Alvin at the time of the first trial had been taken away from him following his pleading of guilty to the conspiracy to pervert the course of justice charge in September 2005. The judge reminded the jury at this point about some police evidence about the nature of the debriefing procedure, a time when Alvin had not had access to the trial papers: “Then they are taken away from him, removed from him and he has not seen them since.” Therefore, in giving his evidence at the second trial, Alvin “plainly has not had the opportunity to study or rehearse from his statements in the way that he did before the trial last year…He had to rely on his memory and memory alone.” And that “exposes him to cross-examination about everything that happened during that debriefing period. Again, you will have noticed a singular lack of cross-examination upon almost anything that happened in that debriefing six months.” 89. The judge then posed the question which was raised on the debate at trial between Alvin’s and Percival’s evidence, and between the submissions of their respective counsel: “He has been consistent from the moment that defence case statement was lodged. Is he consistent, and this is a big question for you to answer, is he consistent because what he is now doing is telling you the truth? If you tell things how they happened then by and large you tell the same story every time. That is the Crown’s contention. Or is he consistent and has he been consistent from the moment the defence case statement was served because he has got this phenomenal memory, because he rehearses his lines, because he approaches things in an anal way, to use Mr Jeremy’s inelegant expression?” Mr David Jeremy QC was Crown counsel at trial, and appears again for the Crown on this appeal. 90. The judge next reminded the jury that when Alvin chose to plead guilty at the first trial to the conspiracy charge, that was the only crime which the Crown at that time could ask the court to punish him for. He could then have “taken his sentence and walked away”. He had chosen instead to go through with the debriefing process in which he had exposed himself to further punishment for the crimes to which he had owned up during that process. In the end that had resulted in an indictment with fourteen charges against him and a further 18 serious offences to be taken into consideration, for which “he will be sentenced at the conclusion of this trial”. In making that point the judge had referred to 7 October 2005 as a watershed day, the day when Alvin had been formally acquitted at the first trial. 91. The judge next reminded the jury of Alvin’s entry into the witness protection programme. On behalf of Percival Mr Bright had suggested to a police witness that this amounted to cosseting. The judge said that the issue at trial was whether Percival represented a threat to people who crossed him. But, “certainly the witness protection programme…is not something lightly undertaken”. 92. It was at this point that the judge gave the jury the warning cited at para 86 above. He lengthened the warning as follows: “He has explained the great lengths he went to in the build-up to the last trial to advance a false defence and to deceive the jury. He prepared himself to lie and lie and lie again. Apart from his track record as a devious man you know that he now awaits sentence from me at the conclusion of this trial so you must be alert to the very obvious temptation that must exist in such circumstances for him to play down his role, to minimise his criminality, to exaggerate the role of others. Remember, we know that he has deceived a court before by presenting that false picture of his involvement with the kilo of cocaine back in 2003.” 93. Having made those severe, but just, criticisms of Alvin the judge then said that it was nevertheless important to bear in mind two counterbalancing facts. One was that Alvin had exposed himself to punishment by his confessions. The judge had made that point before. The second was that if Alvin had deceived the police in his debriefing, he ran the risk first, that he would not be used as a Crown witness, and secondly, that he would be disbelieved by the jury: in either event, his credit would undoubtedly be affected “when in due course he came to be sentenced.” Then, the judge returned by way of counterpoint to the theme of Alvin’s crookedness: “Bear them all in mind but never forget for one moment what a crook he has been and what an adept liar he has been”. 94. Finally, on that note, the judge concluded this passage of his summing-up with a reference to corroboration. He said: “One thing you might care to do when judging his evidence is…be on the look-out for evidence which might support his account in areas where it is capable of being supported. Test his evidence, see if it fits in and chimes with other evidence, either direct or circumstantial. Do not forget, of course, that much of his account about the murder is given at [a] time when he had all those papers in front of him and it would be easy for him, given his wit, to tailor his account to fit in with the evidence that he knew the police had. It is more difficult for him to do so in relation to Wickford and the Trettons, because he did not have that material. It is much more difficult for him to do in other areas and we will touch on some of those as we go through. However, you may find that there are instances where his account is borne out [by] something that is wholly independent of him and that may help judge his reliability.” The judge then turned to Alvin’s evidence. 95. Mr Owen criticised the whole of that passage in the following way. First and foremost, he said that the final passage on corroboration was deficient for the reason stated in MB by Henry LJ. Either the judge should have told the jury that there was no independent evidence capable of corroborating Alvin’s account (and here Mr Owen relied on phrases in Mr Jeremy’s skeleton argument to the effect that Alvin’s evidence was “substantially uncorroborated”, that there was “little if any independent corroborative evidence” and that even the evidence of Mr Osborne and Mr Spendiff-Smith “could not be said to be independent evidence that provided corroboration of Alvin because he knew what they had told the police before he changed his defence”), or he should have clarified for the jury what could or could not have been capable of supporting his evidence. This was a case, submitted Mr Owen, which cried out for a comprehensive direction on the special need to exercise caution before accepting the evidence of Alvin, on the need to look for supporting evidence before convicting, on the need to identify any evidence capable of independently supporting his evidence, and on the need to make it plain that there was none. 96. Secondly, Mr Owen said that in this passage (and elsewhere in the summing-up as well) the judge repeatedly bolstered Alvin’s credibility. Thirdly, Mr Owen submitted that the judge was quite wrong to say that as of 7 October, when Alvin was formally acquitted of the murder charge, he stood in no peril of any other charge and could therefore have walked away. In fact he had incriminated himself in the Tretton shooting in his first debriefing interview on 6 October. Therefore his continued co-operation was necessary if he was to earn himself a reduced sentence for his admitted crime. 97. It is clear that before the judge’s summing-up there had been a discussion between him and counsel as to his directions. We have the transcript of those discussions in our papers. It is plain that there was agreement with the judge that there was no need for a direction that corroboration was required. The judge said: “there will be a broad, a strong and repeated warning to the jury about how they should be on their guard when assessing the evidence of, essentially, all the contentious witnesses. I do not propose giving a direction that any form of corroboration is, in fact, required because plainly in law it is not but, equally, I expect speeches to focus to an extent upon what independent material there may be which, in particular, supports the account of Alvin.” That was acceptable to the parties, subject only to Mr Bright’s submission that the judge should make it clear that Alvin was a witness tainted not only by his crookedness, but also by improper motives and self-interest. The judge said that there would be “special provision, you can rest assured”. 98. In our judgment, it was not entirely happy, although it was done by agreement, that the direction about supporting evidence was left somewhat up in the air dependent on closing speeches. Moreoever, MB is clear guidance, at any rate in a case of that kind, as to what is required. We would observe, however, that this case was quite unlike MB . There it was common ground that there was no independent supporting evidence. Nevertheless, the judge there left the jury to find it where it might, without any guidance. In this case, however, the matter was equivocal and complex. It was appreciated that there was little that was independent of Alvin’s ability to construct a story which took the evidence of the murder into account (however, that did not apply to the Tretton shooting). That is not to say, however, that there was no evidence capable of supporting his account. Osborne gave evidence of gunshots at 2300/2330 and other witnesses gave evidence of sounds and lights and disturbances at about that time too (as well as later). That evidence was, in its origins, quite independent of Alvin. It was simply evidence, good or bad, of what neighbours to the allotments heard and saw that night. If that evidence carried any weight with the jury, and that is a big if, it could support an account of a meeting in the allotments at that time, for all that Alvin was capable of weaving it into his account and thereby able to render it, in that sense, capable of being used for his own purposes. The same point can be made of the evidence of Spendiff-Smith about Boshell showing him a gun and three bullets which he said came from Percival, and about the plans for the skunk farm robbery, and about Boshell’s meeting with Alvin in the centre of Southend. The same point, perhaps above all, could be made about the cell-site evidence which had been inconsistent with Alvin’s earlier alibi, consistent with his revised account, and of course wholly inconsistent with Percival’s retained alibi, which put him and Alvin together at Alvin’s home when Alvin was in the centre of Southend and put him, Walsh and Griffiths and Alvin altogether at a time when Alvin was giving a different account. After all, Percival’s case, which had to be contrasted with Alvin’s, was that there was no meeting in the allotments, no plan for a robbery involving the three protagonists, and that he and Alvin were together with Walsh and Griffiths at the time highlighted in the disputed alibi. If therefore the judge was to give a comprehensive direction on what was independently capable of supporting Alvin’s evidence on the murder, it would have been a complex direction to have given, and was quite capable of going awry. 99. As it was, despite the judge’s agreed proposal at the time of his discussion with counsel, in the end, possibly because of what emerged from final speeches, but we cannot be sure about that, the judge, while remaining with his decision that no corroboration was required (see R v. Makanjuola [1995] 2 Cr App R 469 , and there is no complaint about that) did after all tell the jury to be on the look-out for supporting material. But equally, he did (contrary to Mr Owen’s broad negative submission) direct the jury’s attention to those aspects of the evidence which could provide independent support to Alvin’s account. 100. Thus, he referred to the evidence of the neighbours (“things that go bump in the night”). In that context he referred to Osborne’s evidence, by way of example, as “such an important piece of evidence” that the jury should consider it: but he made it clear that “what weight you attach to it is entirely up to you” and that part of its importance was that the jury should “get all the material. What you do with the material is entirely up to you.” He also referred to the potential significance of Spendiff-Smith’s evidence about the gun and skunk farm robbery, in these terms: “This evidence, if it is true and if you are able to place reliance on it, is potentially highly significant although this is precisely what you are here to do, to make assessments about evidence such as this because if Dean Boshell had possession of that revolver and took it out with him on the night of the job to rob the skunk farm with its three rounds of ammunition, but such a gun was never recovered from the scene, although three rounds of ammunition were, it does…fit with Alvin’s account, or may fit with Alvin’s account, of how a gun of this type used to kill Boshell, the expert speaks of a Colt revolver being used, might have been present at the scene. Also, if Boshell had in fact taken it from its hiding place on the allotments earlier it might explain why Ricky Percival might have been in a rage, but all that depends upon whether you believe the evidence or not, whether you think it is sufficiently reliable for you to act upon it.” That is, in our view, an impeccable direction. 101. Another example is the evidence of Alvin’s wife, Claire, albeit it could be said that a wife’s evidence is not entirely independent. The judge said: “She gives evidence in a number of what may be significant areas, if you believe her, supporting her husband’s version. She told you how close Dean and Damon were…The account you get is he is almost, but not quite, part of the family… She also supports her husband’s account with regard to his movements on the night of the killing…” The judge then spoke of the call from Alvin to her from the telephone kiosk at 2348, and her collecting him, as asked, from Walsh’s house, and his remaining the rest of the night with her (all matters on which she was strongly cross-examined but remained firm). The judge also reminded the jury of her detailed evidence about what she knew about the circumstances of the first trial and the role of Mrs Blyth-Cook, eg that the latter would not say anything against the advice of Alvin’s counsel in their presence, but “telling her privately that Damon should carry on with trial because he would get off on appeal”. 102. But the judge was also conscious of her role as, in Mr Bright’s words, “a career gangster’s moll”. “She seemed to turn a blind eye to their activities so that she could enjoy the fruits of their criminal labours. This is worth bearing in mind because you have to judge her credibility.” So again, her value as a potentially independent supportive witness rested on the jury’s evaluation of her and her evidence. The summation was again carefully nuanced. 103. There was also the cell-site evidence, which was clearly independent evidence, and was presented as evidence which supported Alvin’s new account, for all that it could also be said that his account was wound about it. Moroever, Alvin’s new account of his whereabouts could not be divorced from Percival’s inconsistent account, for Percival’s alibi depended in part on him and Alvin being together . 104. There were also minor prosecution witnesses who were able to throw some helpful light on Alvin’s allegations that Percival had tried to nobble the jury at the first trial. The judge referred to their evidence as “significant”. Perhaps more important was the light that Alvin’s leading counsel at his first trial, Mr Black, was able to throw on the circumstances in which Alvin accepted his guilt on the conspiracy charge but came to throw new light on the murder of Boshell. The judge described that as “a firsthand and unquestioned account of how his change of position developed”. Mr Black’s evidence also covered aspects of the jury tampering attempts. The judge did not perhaps use the expression of saying that Mr Black’s evidence was capable of being independent supporting material, but the jury could not have understood it in any other way. 105. There was also the important evidence relating to the Tretton shooting. In that respect, Alvin’s account could not be attacked as being dependent on access to all the prosecution documents. The judge therefore directed the jury that they might want to start with the Tretton shooting, which in any event had occurred earlier. He said this, towards the end of his summing-up: “You may find it helpful to approach the evidence in this way; you have the huge conflict between Alvin’s evidence and the rest that is raised against him, with some supporting evidence in the middle. You may feel that a sensible approach would be to start chronologically, start in fact with the Tretton shooting, because that is an area in the case where there is significant evidence not just from Alvin, not just from civilian witnesses, but also from the police in relation to their interviews with Ricky Percival and the interviews that he gave when he was initially arrested and there is material in the Boshell contact sheets as well. It is an area in the case where you have perhaps the greatest volume of material to resolve an issue. So perhaps start there. Then work away from there, if you have resolved that, because if you make decisions in relation to Tretton you can carry those decisions or the impact of those decisions forward. That means quite simply this: if you have found, for example Alvin to be credible and reliable in what he has told you about the Trettons, then when you go on to consider the next matter, Wickford, if that is the route you take, or wherever you next go, you carry him forward as a witness with credibility intact. On the other hand, if, when you consider Trettons, your judgment is his credibility is shot to pieces, you are not going to hang a cat on his word, then you carry forward to the next case the fact that you have discredited him.” But the judge also went on immediately to warn the jury that they should not assume that an adverse finding in one area meant the same in another area with its own evidence. 106. In sum, we do not accept Mr Owen’s first major criticism of the judge’s summing-up in relation to the possibility of corroborative evidence. We find that the judge did properly present to the jury those aspects of the evidence which could be called (to a greater or lesser degree) independent supportive material, while constantly reminding them also that, particularly where the Boshell murder was concerned (and less so in the case of the Tretton shooting), so much depended on their evaluation of Alvin’s credibility. 107. As for Alvin’s credibility, we do not accept the criticism that it was improperly bolstered or boosted. We have set out in detail the significant passage from the judge’s summing-up of which complaint is made by Mr Owen: although there is some repetitive comment engendered by the judge’s concern always to balance one side with the other, we find that what was said in Alvin’s favour could properly be said, and that it was matched by the judge’s forthright remarks about his lifetime of crime, his deviousness and the dangers of plausibility. Moreover, even outside the passage on which attention is focussed, the judge maintained a constant refrain in which he kept before the jury the critical issue of whether the jury could trust a man like Alvin whose past was as it was and who had also shown himself to be adept in deceit. 108. The judge was also fair in what he said about Alvin’s decision to assist the prosecution, the consequences of it, and the self-interest and dangers of it. Although the judge mistakenly focussed on 7 October 2005, but naturally enough as the date of Alvin’s formal acquittal and perhaps forgetting that his debrief had started on 6 October, nevertheless what the judge said was fair and, in the overall scheme of things, accurate. As from the CPS letter to Alvin of 30 September, he was no longer at peril on the murder charge. Therefore, when he started his debrief on 6 October and on that day confessed to his role in the Tretton shooting, he was putting himself in new peril of punishment. Moreover, the judge made plain that his punishment would be likely to be mitigated by his evidence against Percival, and the jury were wholly alive to that. In that connection the judge was right to counterbalance the value of such mitigation with the credibility of Alvin’s evidence. The jury knew, but were anyway entitled to be reminded of what would happen if Alvin did not co-operate or was not believed. They knew, and were entitled to be told, that the incentive to tell the truth and be believed was balanced by any incentive to lie. If, as was the case, Alvin was not cross-examined on much of his detail, that was the fact. If, as was also the case, there was a wholesale (Mr Owen’s “broad-side”) attack on his credibility and criminality, including the charges that his account of Percival’s character merely held up a mirror to his own and that he was himself guilty of Boshell’s murder, the jury were well apprised of that. 109. We refer in passing to merely some of the numerous references throughout his summing-up which show that the judge kept before the jury the essential question-mark which hung over Alvin’s evidence. For instance, commenting on the jigsaw aspect of the murder case, the judge said: “It is wholly dependent, of course, upon Alvin telling the truth. If Alvin is having you over then there is not a case against Percival on the murder.” We have already referred above to the judge’s comment in introducing Percival’s case that “If you are not satisfied so that you are sure that Alvin’s account is the truth then the case against Percival collapses.” As for the Tretton shooting, the judge said: “If you are to convict him of the Tretton shootings it must be because you are satisfied so that you are sure that Alvin has told you the truth about his involvement.” He commented to similar effect about the conspiracy to pervert the course of justice charge – “it rests entirely upon the evidence of Alvin”. As for Alvin’s character, the judge was equally persistent in reminding the jury of it. He said “the two central characters are, on all the evidence we have, living in the centre of this world of reprehensible conduct”. As for the Tretton shooting, he commented: “Although there was no discussion of guns, Alvin knew that Percival would carry them on work and that did not put Alvin off joining in”. We have referred to the judge’s comment that the jury had heard of the matters “which generally show him to be of a violent and dishonest disposition”. 110. We therefore reject these grounds of appeal. Ground G: The Osborne point 111. We accept for the sake of argument that if the judge had known of Mr Osborne’s lies about his service in the Royal Marines, he would not have admitted his hearsay statement. We also accept that the judge would have been understood as telling the jury that they might have regarded Mr Osborne’s evidence, had they heard of it only after the trial, as important. 112. However, its limitations and its context must be understood. The judge presented Mr Osborne’s evidence, as it was then known, with all its flaws. He would not come from Spain to assist in the trial. He was wanted here on a sex offence. His immediate house to house enquiry report said only that he “half thinks he may have heard a bang” at 2300 to 2330. His reference to two to three shots, and his ascribing his knowledge of gunfire to his time with the marines, came only in his subsequent statements. Each subsequent statement became more positive and embroidered the matter more. These discrepancies would have been well drawn to the attention of the jury. It was for these reasons that the judge went so far as to tell the jury: “If you think this man is worthless and his account is worthless disregard it, do not put it in the scales.” At its highest, there might have been “a grain of truth in it”. Even after all we now know, that remains the position. 113. So much for the limitations of that evidence. However, there was also its context. For the main part, the other neighbour witnesses spoke of sounds or lights at about the same period, in particular Mrs Bramzel and Mr and Mrs Faulkner (see para 57 above). None of the other oral witnesses spoke of the sound of gunfire that night. Even Mrs Andryas, who spoke of a single very loud bang like a firework at about 0200, spoke also of noises at about 2300. 114. There was also support for the evidence of witnesses as to goings on in the allotments before midnight in the general evidence of the telephone timings, in the evidence about the skunk farm plan, in Alvin’s presence in central Southend to pick up Boshell, and in the alibi which had been planned for the time up to midnight in the early days of the investigation, almost immediately after the murder, and long before the protagonists knew the shape of the case available to the prosecution. It is suggested that it is mere happenstance that Alvin and Percival and the others gave alibi evidence in their early witness statements for the evening up to midnight of 27 February 2001. However, it is not. Percival’s witness statement dated 3 March 2001 reads: “I have been asked what I have done this week…The only night this week I remember is Tuesday night 27 [February] 2001…I can say that the only reason I recall Tuesday night is because when I spoke to Damon he said the police had spoken to him about Dean’s murder and he had said that, otherwise I would not recall it.” Percival here was not responding to a specific allegation about a particular day or time; he was creating a (false) alibi for a particular day and time. 115. Plainly, the jury did not know everything there was to be known against Osborne and his evidence. Nevertheless, the importance of his evidence can be greatly exaggerated. It would have been more serious had the Crown been presenting its case on the basis that timing at 2300/2330 showed Alvin to be truthful, rather than that Alvin was truthful and therefore the murder occurred when he said he did, which other evidence to a modest degree supported. We will consider the safety of the convictions below. Ground H: The Spendiff-Smith point 116. It is acknowledged that the judge misstated the total effect of Spendiff-Smith’s evidence concerning the threatening phone-call at 2330/2400 on 27 February 2001; and that the judge’s comment that “something of significance may have happened prior to or around the time of midnight” was therefore uncalled for. In the circumstances, the possible over-emphasis on Osborne’s evidence and its timing also has to be borne in mind as not unconnected. 117. Nevertheless, we do not think that this error is a serious one in the context of the case as a whole. We have already made the point that the prosecution case was that Alvin was a credible witness, rather than that the murder was timed at before midnight and therefore Alvin was to be believed. The credibility of Spendiff-Smith on the matter of the phone-calls was in any event in tatters, given his tergiversations on the subject. However, the telephone evidence which lay in the background, unused (see at para 69 above), shows that his final evidence that there was at any rate one threatening call, from an anonymous caller, on either 28 February or 1 March 2001, was probably sound. Moreover, his evidence about Boshell and the gun and the planned raid on the skunk farm and Boshell going to meet his “brother” (Alvin) in the centre of Southend was important evidence, and he was firm about that. 118. We do not therefore think that this was a significant error. The safety of the convictions 119. In summary, it can be shown that there were three errors in the summing-up: subsequent evidence has shown that Osborne’s evidence might well not have been admitted and that he lied in his exaggerations about his career in the Royal Marines; the judge therefore probably over-emphasised the importance of his evidence; and the judge misstated Spendiff-Smith’s evidence about the phone-call and the significance of its timing. 120. Nevertheless, we are entirely satisfied that these errors, as far as they went, in no way affect the safety of Percival’s convictions. The essential issue for the jury was as to the credibility of Alvin’s evidence. There is no doubt that the prosecution presented the case in that way, that the defence attacked the Crown case by attacking Alvin’s credibility, and that the judge summed up to the jury by making it crystal clear that that was the issue on which the whole case turned. There was significant support for Alvin’s evidence with respect to the Tretton shooting: not only in Percival’s lies at interview, and in his false alibi which his two would-be alibi witnesses did not support, but also in the highly significant evidence about the alleged “blue eyes” of the gunman, which, if rejected, as it was, was very destructive to Percival’s case. If the jury rejected his account of having no complicity in the Tretton shooting, his attempt to throw the blame of the Boshell murder on Alvin would have started very much one down. Although there was less obvious evidence to support Alvin’s account on the murder charge, nevertheless the case as a whole had a richness which made that account highly believable: such as his closeness to Boshell, the plan for the three protagonists to raid the skunk farm that night, the gun and three bullets which Boshell showed to Mr Spendiff-Smith and claimed to have been acquired from Percival, and the fact that Percival and Alvin had from the very beginning chosen to provide an alibi for what one would suppose to be the critical part of the night. That alibi was exploded so far as Alvin was concerned by the cell-site evidence: but that evidence was in its way equally damaging to Percival, in the light of Alvin’s account, in circumstances where Percival maintained a false account of an alibi in the presence of Alvin. The rejection of the defence’s reliance on Campbell and Brown was also destructive. 121. It is said that Alvin is a clever man and that Percival with his IQ of 77 was no match for him. It is said that the judge had to be reminded to remind the jury as to the medical evidence about Percival’s low intellectual attainments. However, the jury could make up their own minds about that. We have been provided on this appeal with Percival’s personal lengthy and detailed notes in manuscript in which he raises issues in his own defence and in attack upon Alvin. We have considered those notes, and they display no lack of sophisticated awareness about the ramifications of his trial and appeal. 122. Alvin was eleven days in the witness-box, and Percival five days. Where the issue of Alvin’s credibility was so well drawn to the jury’s attention, and so obvious in itself, where Percival’s case was the mirror image of Alvin’s, and where the issue was so much within the province of the jury, it would not be right for this court to interfere with the jury’s convictions on the ground that they were unsafe because of the comparatively insignificant errors which this appeal has brought to light. On the contrary, we consider that the convictions are entirely safe. We therefore dismiss Percival’s appeal against conviction. Walsh’s appeal against conviction 123. Kevin Walsh has an appeal from his conviction with Percival and Griffiths (and Alvin) on the charge of conspiracy to pervert the course of justice. The submissions track those of Percival’s above. Walsh did not give evidence. In our judgment, and for the same reasons, we dismiss Walsh’s appeal against conviction. Percival’s appeal against sentence 124. Percival was sentenced on the murder charge to a mandatory term of life imprisonment, with a minimum term of 26 years. He fell to be sentenced with regard to the principles set out in schedules 21 and 22 of the Criminal Justice Act 2003 but subject to the practice in existence at the time of the murder in February 2001: see R v. Sullivan [2004] EWCA 1762, [2005] 1 Cr App R 3 . He also received concurrent determinate sentences of 22 years (ie 11 years to serve) for the three attempted murders and 5 years for the conspiracy charge. 125. Percival had already served two years in custody at the time of sentence. Therefore when the judge fixed on a minimum term of 26 years in respect of the life sentence, he was thinking of 28 years, having taken into account all matters of aggravation and mitigation. Mr Owen submits that this was just too high a starting-point, and suggested that the judge was too much influenced by the 30 year starting point under the 2003 Act for murders committed with the use of firearms. Mr Owen submitted that the proper sentence should have been in the region of 22/24 years, say 23 years, not 26 (although whether that was before or after the two year reduction for the period on remand is not quite clear to us). He referred to R v. Vincent and Smith [2007] EWCA Crim 3 (26 January 2007) as a worse case in which this court had reduced minimum term sentences of 30 and 25 years to 25 and 22 years (less time on remand). That case concerned a drive-by shooting, a planned execution. Mr Owen contrasted that with the much more spontaneous killing which appears to have occurred in the present case. Hughes LJ said that it was likely that the judge there was influenced, however much he sought not to be, by the new and significantly increased starting points created by the 2003 Act (at para 49). 126. However, we are satisfied that the minimum term of 26 years, or 28 years before the remand period was taken into account, was entirely justified. There was no mitigation. The killing was aggravated by the use of ammonia and the execution of the victim at close range, albeit, as we would accept, in anger rather than planned calculation. If the murder had stood by itself, we could acknowledge that the judge’s sentence was probably somewhat high. However, the murder did not stand by itself. There was, inter alia, the Tretton shooting with its three attempted murders, only brought to an end by the jamming of the shotgun, pre-planned as a matter of revenge. Mr Owen submitted that the murder and the attempted murders should be sentenced entirely separately, so that the judge’s 22 years determinate for the attempted murders could simply stand by themselves. We reject that submission, however. We consider that the murder charge, as the single most serious offence, needed to bear the totality of Percival’s crimes, and that the three attempted murders seriously aggravated the criminality involved. In such circumstances, Percival cannot complain about his sentence. His appeal against sentence is therefore dismissed. Conclusion 127. In conclusion, the appeals against conviction of Percival and Walsh are dismissed, as is Percival’s appeal against sentence.

2010_06_18-2421.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/1326/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/1326

e6b3e38f0a13c235e52deebabf50aa16db857d411d3eee5025feb9179cc2f681

[2013] EWCA Crim 40

EWCA_Crim_40

crown_court

Neutral Citation Number: [2013] EWCA Crim 40 Case No: 201201935 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SOUTHWARK HIS HONOUR JUDGE ROBBINS T20090295 Royal Courts of Justice Strand, London, WC2A 2LL Date: 31 January 2013 Before : LORD JUSTICE DAVIS MR JUSTICE EADY and MR JUSTICE POPPLEWELL - - - - - - - - - - - - - - - - - - - - - Between : LAWRENCE DRUCE Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2013] EWCA Crim 40 Case No: 201201935 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SOUTHWARK HIS HONOUR JUDGE ROBBINS T20090295 Royal Courts of Justice Strand, London, WC2A 2LL Date: 31 January 2013 Before : LORD JUSTICE DAVIS MR JUSTICE EADY and MR JUSTICE POPPLEWELL - - - - - - - - - - - - - - - - - - - - - Between : LAWRENCE DRUCE Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Jonathan Ashley-Norman (instructed by Kaim Todner Solicitors ) for the Appellant Michael Logsdon (instructed by Crown Prosecution Service ) for the Respondent Hearing date: 20 December 2012 - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice Eady : 1. On 28 April 2009 in the Crown Court at Southwark, before His Honour Judge Gledhill QC, this Appellant, who is now aged 73, pleaded guilty to entering into or being concerned in a money laundering arrangement contrary to s.328(1) of the Proceeds of Crime Act 2002 (Count 1 on the indictment) and to possessing criminal property contrary to s.329(1)(a) of the same statute (Count 2). 2. On 2 June 2009 he was sentenced by His Honour Judge Goymer to 18 months’ imprisonment on each count concurrent. After considerable delay, on 25 October 2010, a confiscation order was made in the sum of £326,906.74 by His Honour Judge Robbins. A period of three years’ imprisonment was to be served consecutively in default. The Appellant was given six months to pay, although that period was subsequently extended to 25 August 2011. He now appeals in respect of the confiscation order by leave of Nicola Davies J, who also granted the necessary extension of time. 3. The background may briefly be summarised on the basis of the prosecution “note for sentence” prepared for the hearing before Judge Goymer. The Appellant had been involved in laundering part of the proceeds of an international “boiler room” fraud. The value of his services in this context was in large measure attributable to his lack of any previous convictions. 4. The scheme worked on the basis that shares were purportedly sold to gullible investors which were said to have a restriction attached preventing them being traded on the market for a specified period. Once the shares had been purchased, the unfortunate investor would then be contacted by someone offering to purchase them at an attractive price. This could only be achieved, however, on the basis that the investor would pay to the “trader” a fee per share to achieve the removal of the supposed restriction. The proposal was attractive to the relevant victims because they would appear to have the opportunity of making a substantial profit. 5. The fraud involved creating the impression that the relevant “trader” was operating from a respectable address, in the United States, and had apparently genuine letterheads and a website. They were in fact offshore front companies which existed only for the fraudulent purposes. Once the relevant fee had been paid, supposedly to achieve the necessary de-restriction, the trader would disappear from the scene and the payment would actually achieve nothing. 6. Some of the proceeds had been paid into various bank accounts set up by this Appellant. He had 16 accounts with the Borehamwood branch of HSBC and one account at the Edgware branch of the NatWest Bank. Enquiries revealed that eight of the accounts, at least, had received some of the proceeds. It appeared that a total of £1,096,818.90 had been transferred to those accounts, much of it thereafter being passed on to others. This was the criminality to which Count 1 on the indictment related. 7. Following his arrest, £1,080 was found in the glove compartment of the Appellant’s car and a further £90,130 discovered in a safe deposit box. Count 2 related to this last item. 8. When originally interviewed, the Appellant claimed that he had been approached by two Romanians in 2007, while he was on a cruise, and they asked him to set up a business account to assist them in running a property business. He was to receive the difference in the currency exchange rates. He was unable to say how much he had received in the course of the fraudulent activity. In a subsequent interview, he made no comment. In due course, however, a basis of plea was offered to the effect that (on Count 1) his personal gain was “significantly less” than the total of the sums entering his accounts and (on Count 2) that £20,000 represented “his own money from a legitimate source(s)”. But these proposals were not acceptable to the Crown. 9. When granting permission to appeal, the single judge observed that it was “unfortunate that the sentencing judge did not conduct the confiscation hearing”, although Judge Robbins does not appear to have been at any significant disadvantage in this respect, since he heard evidence from the investigating officer and from the Appellant himself. He had fuller information than that available to Judge Goymer, who had to sentence on the basis of certain assumptions. It is to be noted that at the hearing a concession was made on the Appellant’s behalf as to the benefit obtained. Subject to one point of double counting, there was no reason for the judge or for this court to go behind that concession. 10. Judge Robbins arrived at a benefit figure of £1,257,275.14 consisting of three amounts. It was accepted that a figure of £1,096,819.20 had been received into the eight tainted accounts. Secondly, there was the £90,130 recovered from the security box. Thirdly, there was a sum of £70,325.94 representing unexplained deposits into untainted accounts (but in respect of which the Appellant was unable to rebut the presumptions raised pursuant to the statutory criminal lifestyle provisions). As it happens, one of the grounds raised on appeal before this court is that there had been double counting of the sum recovered from the security box and that is conceded by the Crown. It is thus accepted by the Crown, for the purposes of this appeal, that the benefit figure as found by the Judge should be correspondingly reduced to £1,167,145.14. Accordingly, as it soon emerged, the substantive point raised on the appeal was in relation to the Judge’s assessment of the available funds rather than the benefit received. As we have noted above, the Judge had ruled that the available amount was £326,906.74 and it was in respect of this sum that the confiscation order was made. The amount currently outstanding is £157,605.99. 11. There were four grounds of appeal in respect of which the single judge gave permission. The first, however, related to benefit. It is now claimed that the Judge erred in finding that the Appellant had obtained, for statutory purposes, the entirety of the sums paid into the laundering accounts. Since a concession was made at the hearing before Judge Robbins, however, it is not appropriate for this court to go behind it. 12. The second ground related to the double counting of the sum of £90,130 which is conceded by the Crown. The corrected benefit figure is set out above. 13. The third ground is based on the proposition that the Judge erred in finding that the available amount included hidden assets in the sum of £141,119.91. The essential complaint is that the sums in question had passed out of the Appellant’s control and been forwarded to others engaged in the fraudulent activity, at whose behest the Appellant had been holding the relevant funds, and that the Judge should have therefore found them to be irrecoverable. The burden lay upon the Appellant: see s.7 of the 2002 Act and generally Archbold at 5-1057. 14. The fourth ground is that the Judge is said to have erred in finding that the available amount included sums allegedly expended on gifts to a former girlfriend equivalent to £14,550. 15. The Crown’s opposition to the third and fourth grounds is simply that there is no basis for challenging the Judge’s findings on the evidence as being either unjust or disproportionate. It is upon these arguments that we now briefly focus. 16. The transcript of the ruling makes clear what the Judge found, as to the funds available, in the light of the documents before him and the oral evidence of the Appellant himself. 17. The tone was set by the following general observation: “I cannot accept Mr Druce’s evidence as reliable. It is grossly inadequate as far as any explanation is concerned about expenditure. I therefore plan to reject his evidence and I do.” 18. The Judge went on to accept that the “hidden assets” stood at £141,119.91. He also accepted the evidence relating to the “tainted gifts” in the sum of £14,500.50. It is not clear to this court upon what basis it is suggested that these were impermissible conclusions. 19. It is necessary to consider how the supposedly hidden assets were addressed by the Appellant in the course of his evidence: “Q. However, there is £141,000 in cash which the prosecutor cannot explain. Can you explain where the £141,000 in cash has gone? A. I can’t explain. That I cannot explain. … ” It was suggested by the Appellant, when asked about the modus operandi of the offence, that he sometimes passed money to unidentified people he met in car parks. He suggested, in rather vague and general terms, that from time to time he would take money out of one or other of the accounts in cash and hand over (say) £5,000 in an envelope. There would usually be “two guys there”. One of them would count the money and the other would give him £500 (i.e. the suggestion was that he was receiving 10%). He was then asked: “Q. … Given what you have just told the court, are you able to suggest where some of this £141,000 may have gone? A. No, I can’t. Q. Is it possible that some of the £141,000 was the money that was given to these gentlemen in the car parks? A. I should imagine so. I never really checked it out. I wasn’t so involved. I was just the pawn in a small, small game. Q. Mr Druce, how much money did you receive into your accounts that you took out in cash, do you think, you kept or spent on yourself? A. Well, the fee was given between £40,000 and £50,000 altogether. That’s what I remember from the court case which my lawyer said would be between 40 and 50. That was at the time and a lot of water has flowed under the bridge since then.” Despite being led by his counsel, on a number of occasions, the Appellant gave no positive evidence as to how much, if any, of the £141,000 in hidden assets had been disposed of – either by way of personal expenditure or by being passed to those involved in the fraudulent conspiracy. As to the amount of his own receipts, he agreed in cross-examination that his estimate of £40,000 to £50,000 by way of personal receipts was simply based on something he was told to put down by his lawyer (“ … so I agreed to that and of course signed it”). 20. In re-examination, his then counsel made another attempt to extract an explanation about the hidden assets by a series of leading questions. With reference to the figure of £141,00, counsel asked: “Q. … Is it likely that the remaining money can be explained as money that was given to the men in the car park? A. A possibility.” 21. In view of the quality of the evidence before him, it is difficult to see how the Judge could have come to any other conclusion. No attempt was made to explain what happened to the £141,000. Subsequently, the Appellant has applied through counsel to admit a fresh affidavit, in which he seeks to explain to some extent why his earlier evidence was (in the words of his own counsel) “woeful”. This court, however, rejected the application. There is no rational basis upon which to admit a witness’s statement for the purposes of trying to explain away the inadequacies of his earlier evidence. We had read the evidence before the ruling was given, but we have ignored it in coming to our own conclusion. 22. Accordingly, we (like the Judge) must make our assessment on what the Appellant said in the course of his oral evidence in October 2010. 23. As to the gifts to the former girlfriend, there is no doubt that it would have been proper for the Judge to take into account any evidence of irrecoverability and to make a finding accordingly. In the event, nothing was put forward and he did not do so. We can see no reason, in all the circumstances, why this court should conclude that the Judge was in error in this respect either. His determination was neither unjust nor disproportionate. 24. Accordingly, this appeal will be allowed to the limited extent that the benefit figure will be reduced in accordance with the concession. In all other respects the appeal is dismissed. We were invited in written submissions to consider an adjustment to the default period, but we see no reason to vary it.

2013_01_31-3111.xml

dismissed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/40/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2013/40

e8e52d567cf197e63d6dd9410ca2d7006441bff54c07c4637691f1c349b073f8

[2008] EWCA Crim 2751

EWCA_Crim_2751

crown_court

Case No: 200805483/D5 Neutral Citation Number: [2008] EWCA Crim 2751 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 4 November 2008 B e f o r e : MR JUSTICE RICHARDS MR JUSTICE FOSKETT HIS HONOUR JUDGE JACOBS (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - R E G I N A v M - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave Internatio

Case No: 200805483/D5 Neutral Citation Number: [2008] EWCA Crim 2751 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 4 November 2008 B e f o r e : MR JUSTICE RICHARDS MR JUSTICE FOSKETT HIS HONOUR JUDGE JACOBS (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - R E G I N A v M - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr C Row appeared on behalf of the Appellant Mrs L Matthews appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE RICHARDS: The prosecution appeals with leave granted by this court under section 58 of the Criminal Justice Act 2003 against a terminating ruling by His Honour Judge Darwall-Smith sitting at Bristol Crown Court. The defendant faced trial on an indictment containing four counts alleging unlawful sexual behaviour with child complainants. The two relevant counts for present purposes are count 3, engaging in sexual activity in the presence of a child contrary to section 11(1) of the Sexual Offences Act 2003 , and count 4, causing or inciting a child under 13 to engage in sexual activity contrary to section 8(1) and (3) of the Sexual Offences Act 2003 . The complainant in those counts is a nine year old boy, KW, who has learning difficulties. At the beginning of the trial, before the jury were sworn, the judge ruled that KW was not a competent witness. That is the ruling against which the prosecution appeals. 2. The charges relate to an evening in November 2007 when KW's father and stepmother held an evening reception to which the defendant was invited to celebrate their marriage. The defendant is an openly gay man, who lived close to KW's home, had been befriended by KW's stepmother and often visited the home. 3. On the evening of the reception he was seen to buy KW soft drinks regularly. The next morning KW told his father that during the reception the defendant had asked him to show him his "willy". KW repeated the allegation to his stepmother and step-brother and the police were contacted. 4. An ABE interview of KW was conducted by the police without the presence of an intermediary. His learning difficulties are apparent in the interview but the essence of the account he gave was that he went to the toilet three times during the evening. During one of those visits the defendant showed him his penis and told KW to show the defendant his own penis. When KW did so the defendant told him it was gorgeous. During another visit the defendant tried to pull down KW's trousers but was pushed away by KW who then ran out of the toilets. 5. When the defendant was interviewed by the police he denied the allegations. He said he had followed KW into the toilets and had watched him urinate. KW had shown him his penis and had played with it. The defendant believed that KW had been making sexual advances towards him. He denied having purchased drinks for KW in order to make him go frequently to the toilet. He gave answers indicating that he fancied KW but denying any impropriety. 6. KW is subject to a statement of special educational needs in which he was described as presenting with a severe receptive language delay and a severe delay to his attention development. He had a very limited understanding of oral language and interpreting simple instructions. He had difficulties with classroom relationship skills and communication. According to the statement, he was unable to sustain concentration for longer than two to three minutes on any classroom task. 7. With a view to assisting the Crown Court a report on him was prepared by Miss Cheryl Berriman, a registered intermediary and speech and language therapist. In a summary of her conclusions she said in the report that KW was a young man with moderate learning difficulties, including delayed and disordered language comprehension and expression. He was under investigation for the possibility of having Torette's Syndrome and/or Attention Deficit Hyper-activity Disorder. He had a fluctuating hearing loss. In her view he could give evidence at court but she recommended that an intermediary, namely herself, be used during the trial to enable effective communication and to improve the quality of the evidence given. 8. The report referred to the statement of special educational needs and to KW's medical condition. It said that the results of a test of abstract language comprehension indicated that he had language understanding at around a five year level. He had difficulty understanding and answering why questions and how questions, in understanding some words fully, in predicting, in inference and reasoning, in problem solving, in sequencing and in memory, but he was able to understand and remember when the information was requested in context. The report also stated that he had difficulties in constructing sentences. It said too that during the assessment he maintained concentration for more than an hour, though this was a one-to-one situation and in a different situation he could find concentration a problem. He did not always answer a question directly, but gave information relating to the topic. He tended to jump in with an answer before taking time to work out what was actually being asked or before the questioner had finished speaking. He watched people's faces to guess the answer they wanted and would say what he thought they wanted to hear. He always attempted an answer rather than say he did not know or did not understand. He very much wanted to please and was easily led by questions that implied the questioner wanted a certain answer. 9. All this led to the conclusion that he could give evidence in a trial but subject to a number of recommendations. In addition to recommendations about the use of an intermediary, allowing him to refresh his memory by watching his video the day before and so forth there were specific recommendations that questions were simple, asking one piece of information, that he was questioned in chronological order of events, that how and why questions be avoided, that leading questions be avoided and that the questioner should be prepared to ask the question again if it was possible, if he had jumped in too soon with an answer, should check he knew the answer and was not just guessing, should refocus him on the question if he was going away from the issue and should be prepared to ask questions again as an odd answer might indicate he had not heard correctly or not had processed exactly what was wanted. 10. In an appendix to the report, after watching the ABE interview, Miss Berriman said that it was evident that KW did not understand the words truth and lies but was guessing. He did, however, understand right and wrong. He had the concepts not the vocabulary. The interview also confirmed to her that he had difficulty with sequencing events. He understood first, second and third, but had difficulty processing the information to put into those categories when going over events with no visual support. He would have difficulty clarifying any ambiguity around the significance of events. Questions involving sequencing of events should be avoided. 11. The judge had that report before him and also heard oral evidence from Miss Berriman. He said he had read the transcript of KW's evidence but had not seen the DVD. We ourselves are in the same position. He also asked some questions of KW himself over the live link with a few interventions from Miss Berriman. That took some ten minutes in total. After this the judge ruled as follows: "I am aware, and both parties agree, that competence is really the witness understanding what is being asked and whether the jury would understand the answers that would be given in answer to those questions. I have to say that the questioning in relation to the police interview was faultless; there is no blame whatsoever attached the to questioner in this case. She did not have the benefit of the report by what would have been, and what is, the intermediary in this case but without it the officer did extremely well and brought out what was brought out in that case. However, there are substantial difficulties in that interview and there are substantial difficulties, it seems to me, in the trial of a case in which KW would be a witness. I have to have in mind that there must be a situation where the defendant must be able to put his case. He has to put it in a way which is not just simply repeating the expressions that are given by the witness. There must be a real ability to challenge in a case such as this, and I am afraid I have come to the conclusion that the understanding and language difficulties of KW are not such that he could be a competent witness in a court of law, and, although indeed the special measures are designed to assist those in his unfortunate position, I am afraid he is in a situation where even that help is not going to deal with the difficulties that I foresee during the course of a trial with a jury who have to unravel, really, the difficulty that he has, this witness, of getting over the points and of dealing with the questions that are put to him. Regrettably, I have come to the conclusion that he is not a competent witness." 12. After further discussion the judge made a separate ruling that the DVD of KW's police interview should be excluded from evidence even if he were to be treated as a competent witness. The judge did not feel it safe for the interview to be placed before the jury. It was, however, somewhat artificial to ask the judge to rule on this as a separate issue because it is clear that his concerns about the interview were closely bound up with his views on the issue of competence. 13. The correct approach to competence in a case of this kind is set out in MacPherson [2005] EWCA Crim 3605 which upheld a trial judge's ruling that a six and a half year girl complainant was competent to give evidence in relation to an allegation of indecent assault. In its judgment the court referred to the relevant provisions of the Youth Justice and Criminal Evidence Act 1999 . In particular section 53(3) provides that a person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person who is able (a) to understand questions put to him as a witness And (b) give answers to them which can be understood. Section 54(2) provides that it is for the party calling the witness to satisfy the court that on a balance of probabilities the witness is competent to give evidence. 14. Paragraphs 25 to 27 of the judgment in MacPherson are in these terms: "In the ordinary way that issue [of competence] should be determined before the witness is sworn, usually as a preliminary issue at the start of the trial. In cases such as this, the judge should watch the videotaped interview of the child witness and/or ask the child appropriate questions. The test of competence is clearly set out in the Act and it is as follows: '(a) Can the witness understand questions put to him or her as a witness? And (b) give answers which can be understood?' Those are the plain words of section 53(1)(a) and (b) of the 1999 Act . We agree with the submission put forward on behalf of the Crown by Mr Ward-Jackson in paragraph 7 of his written skeleton that the issue raised by paragraphs (a) and (b) of section 53(1) is one of understanding, that is to say: can the witness understand what is being asked and can the jury understand that witness's answers? That is precisely the test which the judge set himself i this case, and to which we have referred in the passage quoted from his ruling. We also agree with Mr Ward-Jackson's submission that the words 'put to him as a witness' mean the equivalent of being 'asked of him in court.' So, it would be the case that an infant who can only communicate in baby language with its mother would not ordinarily be competent. But a young child like the witness in this case, who can speak and understand basic English with strangers would be competent." 15. Paragraph 29 states that questions of credibility and reliability go to the weight of the evidence and are not relevant to competence. Paragraph 31 states that the question of competence can be kept under review, and the judge in that case had made it clear that he was going to keep it under review during the course of the complainant's evidence. 16. Before the judge in the present case it is accepted by both sides that the relevant law is as set out in MacPherson and the judge was referred to that case. It is evident from the terms of his ruling that he had the principles in MacPherson well in mind. 17. We should also mention Powell [2006] EWCA Crim 3 , another case on the competence of a young victim in relation to a charge of indecent assault. The court in Powell cited MacPherson and considered the application of the relevant principles in a different factual context but we do not think that it adds materially to MacPherson for present purposes. 18. The prosecution case before us is not that the judge's ruling was wrong in law, or involved an error of law or of principle, but that it was a ruling that it was not reasonable for the judge to have made on the particular facts. Thus the case is put under section 67(c) of the Criminal Justice Act 2003 rather than under paragraphs (a) or (b) of that section. 19. The submission made by Mrs Matthews on behalf of the prosecution is that KW should have been given the opportunity to give evidence and to cope with questioning and to try to sequence events. Miss Berriman had provided evidence he might be able to sequence events with a visual aid. She had in mind three pieces of paper on which were written first, second and third. This, it is submitted, might have been an effective way of dealing with KW's difficulty in that respect. As to the judge's concerns about the defence being unable to put their case, it is submitted that defence counsel can challenge a witness even if leading questions are to be avoided, just as prosecuting counsel have to challenge in the course of evidence in reply concessions made by child witnesses in cross-examination. The competence of a witness is to be considered in the light of all the special measures available. The use of an intermediary was not opposed in this case. It is further said that whilst credibility and reliability are separate from competence it cannot be irrelevant that the witness is able to make an understandable unprompted complaint as to an unusual type of behaviour by a defendant, who, as it turns out, happens to want to engage in that type of behaviour with the witness. It is submitted that the special measures regime is designed to help vulnerable witness improve the quality of their evidence and that the ruling in this case effectively denied a vulnerable child complainant access to justice. 20. In summary the grounds contend that the ruling was unreasonable and wrong, that it was premature and that insufficient consideration was given to the aid to communication available from the intermediary. 21. There is a separate contention that the judge's ruling that the interview was inadmissible was itself unreasonable and wrong. 22. As we have already made clear, it seems to us that the judge directed himself correctly in this case by reference to the principles set out in MacPherson . We are concerned here not with an issue of law or principle, but with the application of settled law to a particular factual situation. The question we have to decide is simply whether the judge's ruling was one that it was reasonably open for him to have made. 23. We should stress that on the basis of the material we have seen the members of this court think it very likely that if they have been dealing with the matter at first instance they would have allowed KW to give evidence so as to see how things worked out in the course of cross-examination before making a final ruling on the issue of competence. It does not follow, however, that the judge acted unreasonably in taking a different approach. Our task in an appeal of this nature is to review the judge's decision by reference to the criterion of reasonableness, not to substitute our own view of how we would ourselves have proceeded. 24. We have to bear in mind that the judge had the benefit of not only reading the transcript of KW's interview and the report of Miss Berriman, but also of hearing oral evidence from Miss Berriman and of speaking directly to KW over the video link. It is plain, as it seems to us, that he examined the matter with care. He was in a very good position to form the necessary judgment on KW's competence. This court will be slow to interfere with an assessment made by a judge in such circumstances. The interview did certainly give rise to some concerns about KW's ability to understand and answer what he was being asked, but, in our view, it would not have been enough in itself to justify a finding that he was not competent. 25. However the judge also had to take account of the various reservations expressed in Miss Berriman's report and explored in the course of her oral evidence. She took the view that KW would be able to give evidence at the trial but subject to a substantial number of provisos embodied in the various recommendations to which we have referred. The judge plainly and understandably had concerns about those provisos. He was concerned, in particular, that if KW gave evidence it would not be possible to give effect to all the provisos if the rights of the defence were to be respected and if the defence were to have a fair opportunity to challenge the evidence. It was his considered view that the difficulties KW would have in getting over the points and dealing with the questions put to him would be simply too great. In reaching this view he had, of course, the additional benefit of having talked to KW himself. 26. Even though we ourselves might have reached a different conclusion, it seems to us impossible to say that the conclusion reached by the judge was one not reasonably open to him on the evidence before him. He reached it, moreover, with proper regard to the special measures that would be available if KW were to give evidence, and having reached that conclusion he was entitled, as it seems to us, to make a ruling immediately rather than adopt the wait and see approach adopted by the prosecution. If a judge concludes that a witness is or may be competent then certainly the right course is to allow the witness to give evidence whilst the question of competence is kept under review as indicated in MacPherson , but if, as in this case, the judge concludes that a witness is not competent it is not unreasonable for him to rule accordingly at the outset rather than to allow the witness to give evidence, which, on this hypothesis, the judge will have already decided the witness not to be competent to give. If, as we have held, the judge was entitled to conclude that KW was not a competent witness the challenge to his further ruling that the DVD of KW's interview should be excluded falls away. In any event, his ruling would be entirely sustainable. 27. For those reasons we dismiss the prosecution's appeal against the terminating ruling. It follows, subject to anything that counsel may wish to say to us, that pursuant to section 61(3) of the Criminal Justice Act 2003 we must order that the defendant be acquitted of the offences which are the subject of the appeal, namely counts 3 and 4 on the indictment. 28. MRS MATTHEWS: Yes, my Lord, I give that understanding. 29. LORD JUSTICE RICHARDS: As to the trial on counts 1 and 2 that is a matter for the Crown and the Crown Court to deal with. 30. MRS MATTHEWS: We will review the situation. 31. LORD JUSTICE RICHARDS: There is nothing that we need say on any of that? 32. MRS MATTHEWS: No, thank you, my Lord.

2008_11_04-1705.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/2751/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/2751

286fffb93d97800deeecc167fe90961df6f566121e6aa915d5f120ef85c7e3c9

[2015] EWCA Crim 1886

EWCA_Crim_1886

crown_court

Case No: 201405953 A7 & 201405956 A7 Neutral Citation Number: [2015] EWCA Crim 1886 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM WOOLWICH CROWN COURT His Honour Judge Topolski QC T20147072 & T20147073 Royal Courts of Justice Strand, London, WC2A 2LL Date: 09/12/2015 Before : LORD JUSTICE TREACY MRS JUSTICE ELISABETH LAING DBE and SIR DAVID MADDISON - - - - - - - - - - - - - - - - - - - - - Between : YUSUF SARWAR MOHAMMED AHMED Appellants - and - REGINA Respondent - - - - - - - - - -

Case No: 201405953 A7 & 201405956 A7 Neutral Citation Number: [2015] EWCA Crim 1886 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM WOOLWICH CROWN COURT His Honour Judge Topolski QC T20147072 & T20147073 Royal Courts of Justice Strand, London, WC2A 2LL Date: 09/12/2015 Before : LORD JUSTICE TREACY MRS JUSTICE ELISABETH LAING DBE and SIR DAVID MADDISON - - - - - - - - - - - - - - - - - - - - - Between : YUSUF SARWAR MOHAMMED AHMED Appellants - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - A Bajwa QC & R Thomas (instructed by the Registrar of Criminal Appeals ) for Yusuf Sarwar J Bennathan QC & R Thomas (instructed by the Registrar of Criminal Appeals ) for Mohammed Ahmed B Altman QC (instructed by the Crown Prosecution Service ) for the Respondent Hearing date : 18 November 2015 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Treacy : 1. Both appellants appeal against extended sentences of 17 years and 8 months imposed in the Crown Court at Woolwich on 5 December 2014 for an offence of preparation of terrorist acts contrary to section 5(1) of the Terrorism Act 2006 . The extended sentence comprised a custodial term of 12 years 8 months and an extension period of 5 years. In addition, the appellants were made subject to notification orders under the Counter Terrorism Act 2008 for a period of 30 years. 2. The appellants had entered guilty pleas on the second day of their trial, but prior to the swearing in of a jury. In passing sentence the judge granted 20 percent credit for the guilty pleas and no complaint is made about that. It follows that the custodial term after a trial would have been one of 16 years. 3. The facts show that on 15 May 2013 the appellants travelled from the UK to Turkey and then on to Syria where they were involved with Islamist forces fighting against the regime of President Assad. The pair returned to the UK on 13 January 2014 and were arrested. Before they went each of them had misled his family as to the purpose of the trip. Sarwar had booked and paid for one-way flights and coach tickets and a hotel room had also been booked well in advance of travel. There had been a similarly well planned but aborted trip in March 2013. The significant planning which had gone on for several months prior to departure was identified by the Crown as supporting its case that the arrangements were not a spontaneous response to a developing humanitarian crisis in Syria but instead a well planned operation put into action for different and more sinister reasons. 4. About four days after their departure the appellants’ respective families met and discovered that they had been deceived. Sarwar’s mother found a letter left for her stating that he was travelling to Syria intent on jihad, that he did not intend to return and wished to be martyred on the battlefield in Syria. He referred to joining an organisation we shall refer to as KAM, said to be part of Al-Nusra, an organisation which was proscribed in June 2013. Sarwar’s parents went promptly to the police. The appellants’ homes were searched and computers when examined provided a wealth of material showing a very high level of commitment to violent Islamist extremism. 5. Both appellants had large quantities of jihadist literature and other material. There were social media conversations referring to going to jihad and the creation of cover stories. More than a year before their departure Ahmed was describing Al-Quaeda as “the best” and America and NATO as the clear enemy. He regarded Shia Muslims as not being Muslims. Sarwar’s computer showed that Ahmed had been in contact with someone in Denmark in March 2012 about the possibility of going to the Yemen. Ahmed was told he could be a Mujahid anywhere in the world. His contact spoke about mujahideen being sent back to the EU with a task and said that he would be accepted in the Yemen. Ahmed replied by saying he found this to be “very inspiring”. Sarwar’s computer contained extreme Islamist material showing combat activity in Syria and sectarian anti-Shia material. Similar material was found on Ahmed’s laptop. It included a video called “Syria training” featuring fighters and weapon firing. Before they left Sarwar bought items to improve fitness together with a camera and memory card, balaclavas, heavy duty combat gloves, a water-proof head lamp and a walkie-talkie. 6. Examination of social networking activity provided more evidence that the true purpose of the journey was to go to Syria to commit acts of terrorism in furtherance of their extreme Islamist views. For example, between January and May 2013 Ahmed had a number of Skyped chats with a man who appears to have been a Syrian fighter. A recent fatal bombing was referred to as “the spoils of war” and there was talk about the group Al-Nusra. There were also exchanges with a young woman about martyrdom. Ahmed spoke of the addictive nature of battles and referred to the training of a friend. He was advised to do a first aid course which would result in a certificate which he could use at a border to show that he was entering the country purely to help people. 7. Conversations with another woman provided significant evidence of the pair’s movements after they left the UK. In June Ahmed told her that he had finished training prior to their crossing into Syria. In an August message he spoke of doing 10 days of guarding very close to the “kafir”. He attached a picture of himself sitting by sandbags flanked by two machine guns and asked her to crop or blacken out his face. In September he sent a long message about the death of a fighter who had taken the appellant with him to shoot the “kafir” two days before he himself was shot and killed. In conversations with another woman he told her that he had gone into battle and prayed that he would be martyred at the next one. 8. When the pair returned to the UK they only had hand luggage but a digital camera was found in Sarwar’s holdall. Two memory cards contained over 1600 deleted images. Those images were taken in Syria. Analysis showed that many had been taken very close to places of combat and depicted the preparation of weapons and ordnance. There was an image of Sarwar in a full-face balaclava, carrying a weapon. One image depicted a photograph of a flag with the legend “Al-Nusra Front” in Arabic. Other images enabled an expert to say that both men must have undergone at least basic weapons training. On one of the memory cards there were video clips of a terrorist bombing in Moscow and footage of a detailed step-by-step demonstration of how to construct an improvised explosive device. 9. The appellants’ holdalls and clothing were examined. Traces of high explosive components were found on items attributable to each of them. These findings were said to be more than would be expected from travel to a conflict zone and supported the suggestion that both had been in very close proximity to combat. 10. When interviewed Sarwar denied ever going to Syria or engaging in any type of jihad. He did not answer questions but supplied a prepared statement. Ahmed claimed to have spent the previous 8 months in Turkey with Sarwar. The appellants put forward bases of plea. Sarwar’s indicated: i) that his intended act of terrorism, once in Syria, was to assist Al-Nusra, a group not proscribed at the time he left this country, but which was involved in the armed conflict with President Assad’s regime; ii) that he had another intention, namely to assist people non-violently in their humanitarian crisis and that he did not intend to commit acts of violence involving the targeting of civilians; iii) that his training was limited to being shown the use of a firearm in the event of requiring it defensively. He had not received any other kind of combat training; iv) that whilst in Syria he dissociated himself from Al-Nusra once he realised the true extent of its terrorist activities; v) that for three to four months whilst not engaging in combat he assisted the Free Syrian Army which involved itself in a defensive action against the Assad regime and in providing humanitarian assistance; vi) that he engaged in no combat in Syria. His activities were limited to: a) patrol duties on a shift basis at a house in which he and other volunteers were based; and b) following an attack by the Assad regime, attending the site of the attack to provide humanitarian assistance; vii) that the explosive traces found in his property were attributable only to his humanitarian work at the scenes of explosions and not to combat; viii) that the memory card was given to him by another volunteer and he was unaware of its previously deleted content. Ahmed’s basis of plea mirrored that of Sarwar save that he made no mention of the memory card which had been found in Sarwar’s possession. We assume that the reference to the memory card is to that which contained instruction as to constructing an explosive device. 11. The bases of plea were not accepted by the Crown. The Crown submitted that many of the matters asserted were outside its knowledge. The Crown put its case forward not on the basis of involvement in combat in the sense of fighting but on the basis that the appellants had been involved in armed activity in combat areas. In particular, the Crown pointed to the photographs with weaponry, the finding of explosive traces and the evidence in relation to Ahmed from his social media conversations. 12. The judge’s sentencing remarks set out the facts, the rival submissions of the Crown and the appellants, considered the relevant legislation and the decision in Dart and others [2014] EWCA Crim 2158 . Having considered those matters the judge held that both appellants were fundamentalists who had become deeply committed to violent extremism. He said that the acts of terrorism which they intended to commit involved attacking President Assad’s forces in Syria with the obvious risks that those acts could result in both military and civilian losses. In order to give effect to that intention they had taken a number of preparatory steps in this country. As the decision in Dart showed it made no difference to the gravity of the offence that the intention was to be achieved abroad rather than the UK. Had their intention been achieved, the notional sentence would have been one of life imprisonment. He noted that the appellants had accepted by their guilty pleas that their intention was to commit acts of terrorism. 13. Having observed that the appellants had not put before the court any evidence or material of their own to displace the clear inference to be drawn from all the material before him that the pair had been engaged in active combat he found that both appellants had fulfilled their intention. He went on to say that he could not be sure that either appellant had formed any specific intent to commit acts of terrorism in the UK although the retention of the memory card with detailed instructions as to how to make an improvised explosive device was deeply disturbing. 14. He stated that the purpose in sentencing cases like this was to punish, deter and incapacitate whilst at the same time noting his duty to pass sentences that were not disproportionate to the facts. He was satisfied that notwithstanding the absence of evidence of a contemplation of an attack in this country, it was still open to him to make a finding of dangerousness. He went on to make such a finding and to conclude that an extended sentence was appropriate given a persistent commitment to terrorist activity demonstrated over time and in a variety of ways, taken together with their willingness to travel abroad, receive terrorist training and then cross over into Syria to fight. This was not displaced by their voluntary return to this country. 15. One particular submission made to the judge was that the case should be regarded as less serious because the appellants were going to fight the forces of a regime in Syria against which there was a tide of opposition both internally and internationally. The judge paraphrased this as “intended acts of terrorism in a good cause”. The judge rejected this as a mitigating feature stating that at the very heart of an act of terrorism there is serious violence, serious damage to property and/or serious risk to public safety or health. The penalty for an intended or indeed an actual act of terrorism could not be mitigated by having regard to the identity, position or conduct of its intended victims. Finally, the judge concluded that on the evidence before him the two appellants were equally responsible. 16. The grounds of appeal for each appellant are in similar terms. We can take them together save that we record that in Sarwar’s case a written submission was made that he was the lesser partner of two. The appellants’ arguments both go to the length of the custodial term imposed as well as to the passing of an extended sentence. It is submitted that offences contrary to section 5 can vary from a case involving preparing to commit a terrorist act of mass murder in this country to an intended use or threat of force abroad in the belief that it would assist the people in that foreign country against a tyrannical regime which is condemned as such by Her Majesty’s Government. It was argued that this case fell into the latter category and that it was thus less blameworthy. The appellants’ intention was to fight against President Assad’s forces so as to defend or protect those being attacked or repressed by him. There was no intention to commit acts of violence against Syrian civilians. Whilst it is acknowledged that the reach of a section 5 terrorist offence is very broad (see R v Gul [2013] 3 WLR 1207 ) the court should in this case recognise the position of President Assad’s regime as it is generally perceived to be in this country. 17. Moreover, it is submitted that when the relevant preparatory acts were carried out there was no prospect that the appellants would end up fighting against Western forces. This is a further factor which should tell in their favour. As to the actions which the appellants did take once they reached Syria, they ended up with a group who were part of the Free Syrian Army, a coalition which has been supported and supplied by Western countries, and their actions had been limited to patrolling and humanitarian assistance. Thus what transpired fell well short of very aggravating conduct. 18. Both appellants were men of previous good character. Each was a month or so short of his 21 st birthday when he travelled abroad. They should be regarded as unsophisticated youths who were naive and perhaps conditioned by others with whom they engaged through the internet. Insofar as the evidence against Ahmed consisted of social media conversations care should be taken in taking them at face value since they may have involved an element of invention or exaggeration to impress the women with whom he was communicating. Reliance was also placed on the fact of guilty pleas, the appellants’ voluntary return to this country (which was attributed to a combination of their growing weary and frightened by the conditions in Syria), and a lack of animosity towards the West. 19. Some emphasis was laid on the beneficial influence of the appellants’ law-abiding families and their actions in this matter as being relevant to the question of dangerousness. In this context, too, the absence of an intention to use or threaten violence in the United Kingdom was said to be material since containing and controlling the appellants’ future conduct would be easier in these circumstances. 20. Both appellants provided references to the sentencing judge, sixteen in Sarwar’s case and three in the case of Ahmed. 21. Sarwar has invited the court to receive fresh evidence pursuant to section 23 of the Criminal Appeal Act 1968 . We have read statements from three witnesses. The first is Sarwar’s mother. She gives evidence of her son’s personality and capabilities and of the impact of the sentence. There is a statement from Jahan Mahmood who describes himself as an historian. His statement is a statement of personal opinion about the case, reflections on the social problems surrounding radicalisation and the best way of dealing with such problems. He also speaks of the naivety of the appellants. There is also a statement from a Dr Michael Korzinski, a psychologist who has met the appellants since sentencing. He concludes that they are suffering from profound disillusionment and grief and that they were ill-equipped to deal with hyperbolic religious rhetoric on the internet. He describes them as having been isolated, socially inexperienced and emotionally immature. There is no clinical diagnosis of, for example Post Traumatic Stress Disorder; nor is there any report showing any mental condition which could reduce culpability. Dr Korzinski’s report indicates that there is no developed understanding of the effects of social media in this sort of case. 22. We do not think any significant weight attaches to any of these statements. Mrs Sarwar’s statement merely adds to a reference she provided to the judge without contributing new insight. Mr Mahmood’s statement is very general in nature and is largely social commentary. The time for advancing mitigation is at the original sentencing hearing. Moreover, there is nothing which has emerged from these two statements which in our view carries any weight, reveals any new facts, or which would have made any difference to the sentencing exercise. We therefore decline to receive them. 23. Turning to Dr Korzinski’s report, it reveals a picture of two young men who became radicalised by spending a lot of time online. The portrayal of their asserted isolation is somewhat at odds with the picture painted by a significant number of the references which were put before the judge. We do not think there is anything stated by Dr Korzinski which would not have been apparent to the judge below from the facts of the case. We therefore decline to admit his statement. Moreover, submissions had already been made to the judge below relating to the asserted naivety and immaturity of the appellants, and arguments had been made on the question of dangerousness by reference to the law-abiding nature of the appellants’ families which would serve as a suitable control once the appellants were released from custody. 24. We begin our observations in this case by stating that we do not see any basis for criticising the judge’s conclusion that this pair were equally involved. Accordingly, we do not see that there was any legitimate basis for distinguishing between them. The question which we, therefore, have to resolve is whether the common complaints as to the severity of the outcome are in any way justified. 25. There are no sentencing guidelines for this sort of offence, and on more than one occasion this court has declined to lay down guidelines, observing that the facts of individual cases are likely to be very different from one another. The offence under section 5 is committed when a person engages in acts in this country for the purpose of giving effect to an intention to commit acts of terrorism. Those acts of terrorism may take place in this country or abroad. In Dart , this court held that it made no difference to the gravity of the offence whether the intended act or acts were to take place here or abroad. 26. Section 1 of the Terrorism Act 2000 defines terrorism. Its effect was summarised in Gul at [27] of the Supreme Court’s judgment as follows: “The effect of s.1(1) of the 2000 Act is to identify terrorism as consisting of three components. The first is “the use or threat of action”, inside or outside the United Kingdom, where that action consists of, inter alia, “serious violence”, “serious damage to property”, or creating a serious risk to public safety or health – s.1(1) (a), (2) and (4). The second component is that the use or threat must be “designed to influence the government [of the United Kingdom or any other country] or an [IGO] or to intimidate the public” – s.1(1) (b) and (4). The third component is that the use or threat is “made for the purpose of advancing a political, religious, racial or ideological cause” – s.1(1) (c).” 27. The judgment continued at [28]: “As a matter of ordinary language, the definition would seem to cover any violence or damage to property if it is carried out with a view to influencing a government or IGO in order to advance a very wide range of causes. Thus it would appear to extend to military or quasi-military activity aimed at bringing down a foreign government, even where that activity is approved (officially or unofficially) by the UK government.” 28. By their guilty pleas the appellants acknowledged that their conduct met this definition of terrorism. As the decisions in Dart and in Khan and others [2013] EWCA Crim 468 at [75] show, the starting point for sentence is the sentence that would have been imposed if the objective had been achieved, in other words if the intended acts of terrorism had actually been carried out. However, as both Dart and Attorney General’s Reference No 7 of 2008 [2008] EWCA Crim 1045 show, the ultimate sentence would in large part be determined by the factual nexus between the offender’s conduct in the UK in preparation for acts of terrorism and the potential acts of terrorism. Both Dart and Khan and others support the propositions that in most terrorist cases culpability will be extremely high and that the purpose of sentencing for the most serious terrorist offences will be to punish, deter and incapacitate. There is no suggestion that the judge did not fully have in mind these sentencing principles. 29. These offences were undoubtedly characterised by a significant degree of planning and persistence. Those steps were ultimately put into effect by travelling from this country and engaging abroad with like-minded people. Notwithstanding the appellants’ assertions of respect and regard for this country’s way of life, it is perfectly clear to us that these two young men had become heavily radicalised in a dangerous way and that their commitment to such a cause cannot simply be disregarded by reason of untested and asserted good intentions for the future. 30. We do not regard the fact that the target of their intentions was on this occasion not within this country as something which means that the criteria for a consideration of dangerousness do not apply. The combination of extensive planning and premeditation coupled with repeated expressions of alignment with radical Muslim fundamentalism, followed by the appellants acting upon such views, satisfies us that the judge was correct in making a finding of dangerousness and passing an extended sentence (assuming that the necessary pre-conditions in terms of sentence length are met). 31. Insofar as reliance was placed upon the law-abiding nature of the appellants’ families as a factor operating against a finding of dangerousness, we have to say that we are not impressed. The fact is that both these young men over many months were able to conceal from their families the nature of their criminal activities. They were able to deceive them as to the purpose of their departure from this country, one of them setting up an email account in an English name for the purposes of continuing that deception whilst they were abroad. Whilst we recognise the responsible nature of the families’ behaviour in alerting the authorities and have no doubt as to their good intentions for the future, we regret that that is not in our judgment sufficient to provide the sort of guarantee or reassurance which would be needed to displace the obvious need for an extended period of licence after release in order to ensure public protection. 32. We therefore turn to the question of the custodial term. There has been argument before us that we should regard as more serious than the present matter the case of Dart in which a sentence of 8 years after a trial (6 years to reflect the guilty plea) was held not to have been manifestly excessive. We note that in Dart’s case this court commented that a significantly longer term than 8 years after a trial could have been imposed. Dart was a case when the appellant had gone to Pakistan for a period of about three weeks for training at a camp, had returned to this country and was making further preparations to return to Pakistan. One feature upon which reliance has been placed is that it is said that Dart contemplated action in this country as a result of his acts of preparation. It seems to us that this overstates the position. At [60] this court stated: “[The trial judge] then underlined that he did not sentence Dart on the basis that he had intended to carry out terrorist activities in this country, but rather upon the basis that his immediate objective had been to go out to Pakistan for training, with a view to carrying out subsequent (albeit as not yet crystallised) terrorist operations there.” 33. At [62] the court went on to note that a factor in the trial judge’s finding of dangerousness in Dart’s case was that although no target (whether at home or abroad) had been identified, he was sure that an attack of some sort in the United Kingdom had not been ruled out. However, we note that the indictment against Dart related to preparation for acts of terrorism to be carried out in Pakistan, and that Dart’s basis of plea, which was not challenged expressly, denied an intention to commit any act of terrorism in the UK. 34. We note also that Dart’s activities abroad were for a period of three weeks, and thus considerably shorter than the six months or so that these appellants were in Syria. His activity abroad had involved obtaining terrorist training with a view subsequently to fighting coalition forces in Afghanistan. We accept that an aggravating feature of this type of offence can arise where intended actions abroad involve or include a real possibility of armed action against UK or allied forces. However, in Dart’s case although he went abroad and obtained training, he returned to the UK and never in fact succeeded in going back and taking up arms. During Dart’s time abroad which was considerably shorter than that spent by these appellants, he does not seem to have been involved in armed activity close to combat action in the way in which these appellants were. 35. Dart is one of those cases where this court has expressly declined to lay down guidelines for this sort of offence. As we have already noted the court considered that the sentence of 8 years after a trial in that case could have been significantly longer. Its conclusion on the facts of that case was simply that the 6 years imposed after discount for guilty plea was not manifestly excessive. It is our task to consider the appropriate level of sentence based on the facts of this case and we are not significantly assisted by a consideration of Dart . We were also asked to consider Iqbal whose case is considered within the judgment in Dart. Similar considerations apply. 36. Counsel put before us five other sentencing decisions, some of them sparsely reported. Three of the five are first instance cases from which we do not think any particular assistance can be derived. The only authority mentioned at Court of Appeal level is Attorney General’s Reference No 7 of 2008 whose facts were somewhat unusual and significantly different from this case in a number of respects. We do not consider that it provides any material assistance as to an appropriate level of sentence. We have additionally considered the decision of this court in Khan and others [2013] EWCA Crim 468 . We note a wide variation in sentences passed depending on individual circumstances which reflect the variety of ways in which this offence can be committed. Again, we do not consider that the disposals in that case provide significant assistance. 37. Returning for a moment to the five decisions relied on by the appellants, one of them is the case of Imran Khawaja . Khawaja was sentenced by Jeremy Baker J at Woolwich Crown Court on 6 February 2015. Khawaja had travelled to Syria, remained there for 2 ½ months and received terrorist training. Whilst there he took part in the production of images and films designed to promote the Islamic State’s cause and to encourage UK Muslims to join jihad. In one film he was depicted holding up two severed human heads whilst speaking in a manner contemptuous of the deceased. The judge found that he had been close to a combat zone but that he had not actually taken part in the fighting itself. The judge passed an extended sentence whose custodial element prior to credit for a guilty plea would have been 16 years. Some emphasis was laid on this case as demonstrating that the level of sentence in this case was too high. 38. We remind ourselves that Khawaja is a first instance decision and that the sentence imposed by the judge will be at a point within a range, so that a higher sentence might well have been open to him. Nonetheless, we consider that there is some force in the point that the present case can be viewed as less serious than Khawaja . 39. It is axiomatic to say that each case must depend on its own particular circumstances. In Gul the Supreme Court recognised the breadth of conduct covered by the definition of terrorism in the 2000 Act . It must follow from that that when dealing with a section 5 offence it will be necessary to examine where the particular offending lies in the spectrum of offences of this type. We have already observed that both Dart and Attorney General’s Reference No 7 of 2008 refer to a consideration of the factual nexus between preparatory acts and the potential acts of terrorism. No party before us sought to submit that we should disregard what actually happened once these offenders left the jurisdiction and went abroad. Indeed, much of the hearing before us and that of the hearing in front of the judge below was taken up with an examination of what did not happen abroad. That was the whole rationale behind the bases of plea on behalf of the appellants. It was not disputed that the appellants’ preparations and ultimate travel abroad took place with the clear intention that they should be involved in armed combat against the forces of President Assad in Syria. This is clearly important. The thrust, however, of the basis of plea was that that had not in fact occurred, albeit that there was an acceptance that the appellants had been involved in armed activity close to combat zones, but falling short of actual combat. 40. The appellants submitted that involvement against Assad’s forces represented a less blameworthy form of the offence since pronouncements by the then Home Secretary had on more than one occasion condemned the Assad regime and indicated that Her Majesty’s Government as at 20 November 2012 had decided to recognise the National Coalition of Syrian Revolutionary and Opposition Forces as the sole legitimate representative of the Syrian people. We note that in May 2013 the Foreign Secretary announced the provision of £12 million pounds in non-lethal assistance to the Coalition. The appellants’ basis of plea asserts that they acted with the Free Syrian Army. It is not clear to us that this organisation is part of the Coalition, but we shall assume for the purposes of this argument that it was. The appellants’ intention on and prior to leaving the UK, however, had clearly been to fight alongside the forces of Al-Nusra which was proscribed in this country shortly after their arrival undoubtedly on the basis of its previous activities. As we have recorded there was photographic evidence of the Al-Nusra flag photographed on the camera taken by the appellants. 41. We were urged to accept that based on the political considerations, the appellants’ admitted involvement with the Free Syria Army could be regarded as some form of noble cause terrorism. It seems to us that it would be wrong for this court to endorse such an argument. It would involve a consideration of the policies of Her Majesty’s Government, an area which courts have hitherto been very wary of entering into. To adopt such an approach would necessitate the court having to consider fine political arguments in a situation which is inherently fluid and uncertain, and where loyalties are not fixed or clear-cut. It was acknowledged that the situation in Syria is one which has been constantly changing. What is clear to us is that the appellants’ conduct clearly came within the ambit of terrorism as defined in section 1 of the 2000 Act . 42. We note that in R v F [2007] 2 Cr App R 3 Sir Igor Judge, as he then was, in a case brought under section 58 of the 2000 Act (possession of documents containing information likely to be useful in committing or preparing an act of terrorism), dismissed a submission that the fact that the documents planned the removal of an allegedly tyrannical regime could constitute a reasonable excuse under section 58(3) . He said at [27]: “…Finally, the legislation does not exempt, nor make an exception, nor create a defence for, nor exculpate what some would describe as terrorism in a just cause. Such a concept is foreign to the 2000 Act . Terrorism is terrorism, whatever the motives of the perpetrators.” At [32] he said: “…the terrorist legislation applies to countries which are governed by tyrants and dictators. There is no exemption from criminal liability for terrorist activities which are motivated by, or said to be morally justified by, the alleged nobility of the terrorist cause.” 43. Whilst we recognise that F was concerned with whether there was criminal liability under section 58 , those observations are persuasive in the present context. Accordingly, we are not prepared to regard so-called noble cause terrorism as mitigating sentence. 44. We next turn to the point that there was no prospect that the appellants would end up fighting against Western forces. As we have stated earlier, if the preparatory activity was carried out with a view to fighting UK forces, that would be an aggravating feature of the offence. Depending on the circumstances, the same might hold good in relation to forces closely allied to UK forces in a particular situation. We accept that such a feature was not present in this case where the intended and likely adversary was President Assad’s forces. Whilst we bear in mind that this aggravating feature is not present, it should also be borne in mind that the absence of aggravation does not constitute positive mitigation. 45. Insofar as a similar point is taken on the basis that there was an intention to engage with Assad’s armed troops rather than to direct activity against civilians the position is not that clear-cut. Whilst the Crown accepts that these appellants had no specific intention of attacking civilians it submits that the nature of war and terrorism should be recognised. If the appellants had fulfilled their intention of fighting whilst in Syria it would be unrealistic to conclude that there would be no harm caused to civilians. We can take judicial notice of the general nature of the conflict in Syria and the fact that there have been appalling consequences for the civilians of that country arising from the fighting. In our view the Crown is right. The likelihood of significant collateral damage being caused to civilians arising from armed engagement with Assad’s forces would be great. 46. In relation to the submissions that the appellants can claim benefit from the fact that they had no plans for terrorist action within the United Kingdom, we note that in Gul it was held that section 5 applies whether or not the intended activity was to take place within the UK. That being so, we are unconvinced that the fact that preparations were being made for terrorist activity abroad should mitigate the offence. This country has set its face against terrorism and in section 5 Parliament has provided that preparation in the UK is an offence wherever the terrorist activity is to take place. As the submission was developed before us, it appeared that this particular point was aimed more at the finding of dangerousness than the length of the custodial period. Insofar as it related to dangerousness we have already made clear that we do not consider it carries any real weight in the circumstances of this case. 47. The overall submission in relation to the points we have dealt with so far is that taken together they diminish the gravity of the offending in this case and should have resulted in a shorter sentence. As will be apparent from our analysis, we are not persuaded to attach any or any significant weight to them individually or cumulatively, with the exception of the point arising from the case of Khawaja . 48. A further point arises as to the basis upon which the judge passed sentence. It will be recalled that the appellants put forward bases of plea which made plain that they did not engage in combat activity whilst in Syria and that neither the Crown nor the court triggered a Newton hearing despite the fact that the Crown did not accept those bases of plea. Instead the Crown put the case forward on the basis that the appellants had been involved in armed activity close to the combat zone. In this way the Crown was not asserting that the appellants had taken part in fighting but was relying on the photographs, some of the social media material, and expert evidence as to firearms and explosives. From this the inference could properly be drawn that the appellants had received weapons training and had handled them, for example, on patrol activity close to the combat zone. The appellants do not demur from such an analysis (although there is debate as to the significance to be attached to it). What they say is that it was not legitimate for the judge when he came to pass sentence to pass sentence on a different basis. 49. At page 30 of the sentencing transcript the judge said: “Neither defendant has put before the court any evidence of their own that displaces the clear inference to be drawn from all that is before me that they were engaged in active combat…I am driven to the safe conclusion that I have accurately summarised the position, it comes to this: I find that both of these defendants fulfilled their intention and have accepted by their pleas of guilty that their intention was to commit acts of terrorism.” 50. It seems plain to us that the judge did indeed go beyond the basis upon which the case had been advanced by the Crown and formed conclusions adverse to the appellants which ran contrary to their bases of plea. As is well known, and as the Criminal Practice Direction (Sentencing) B, paras B.6-10 [2013] 1 WLR 1364 reiterates, a judge is not entitled to reject a defendant’s basis of plea without a Newton hearing unless the basis is manifestly false. Given the way the Crown put the case there was no basis for the judge to have rejected the bases of plea as manifestly false and indeed, earlier in his sentencing remarks, the judge had said in terms that it had not been considered necessary to determine any of the points in issue by the calling of evidence. 51. It seems to us in those circumstances that the judge fell into error in not proceeding on the basis put forward by the Crown, (and not disputed by the defence), and that he was wrong to form the conclusion which he did without hearing evidence, as well as putting a burden on the appellants to give evidence or put material before the court. Mr Altman for the Crown confirmed to us how the Crown had put its case in drawing a distinction between involvement in armed activity close to the combat zone and involvement in combat itself. He confirmed that the Crown had never sought to persuade the judge to make the finding that he did. We are satisfied that this was an irregularity which will have led the judge to aggravate the sentence. 52. Whilst the section 5 offence is concerned with preparation for acts of terrorism in this country, it is settled that for sentencing purposes the court may look at the link or connection between that activity and the proposed acts of terrorism even if those acts are to be committed abroad. It is clear that the preparations made by these offenders were with a view to becoming involved in combat activity with forces of President Assad. To that end the appellants made significant preparations over a long period of time (including contacts with other extremists), which achieved their aims of travelling to Syria, meeting up with like-minded others and receiving firearms training. Such activities, as the evidence showed, brought them into close proximity with the combat zone or zones and whilst there they engaged in armed patrol duties. True it is that ultimately they did not engage in armed combat but they had travelled very far along the road towards that. It might also be said that the activities in which they engaged had the ability to provide support and encouragement to those who were in fact involved in armed combat. We have not seen anything upon which a claim that their preparations were in part motivated by humanitarian concerns can be sustained. 53. In our judgment therefore there is a substantial nexus between the preparatory activity and what transpired once the appellants went abroad. Nonetheless we are satisfied that the finding of involvement in combat activity improperly made by the judge made some difference to the sentences which were imposed. 54. Whilst according to the authorities cited, the court should look at the preparatory acts and their nexus to the potential intended acts of terrorism, there was some discussion at the hearing as to the legitimacy of looking at what in fact transpired if terrorist activities took place abroad. What, for example, would be the situation as to sentence if what was done abroad considerably exceeded in gravity any preparatory acts done in the United Kingdom? Such a question does not arise for answer in this appeal. Here the appellants were relying on the fact that what they had in fact done was less serious than that which their preparatory acts indicated they intended to do. Since the Crown was prepared to proceed on such a basis and since it would not operate in a way unfairly towards these appellants we will adopt that approach in this case. It may be that in the future, in an appropriate case, this point will need to be revisited. However, in the present case the common approach of examining what occurred abroad has the merit of consistency with the observations of Lord Phillips CJ in Rahman and Mohammed [2009] 1 Cr App R (S) 70 . At [8] he spoke of the “care to be taken that sentences [under this legislation] are not disproportionate to the facts of the particular offence”, whilst acknowledging gravity and the need for deterrence. 55. Insofar as reliance is placed on age and naivety, we of course recognise that these are young men upon whom a lengthy sentence will bear hard but we are not persuaded that there was any particular naivety or immaturity which should attract further weight. In our judgment the appellants showed a deep commitment to the jihadist cause maintained over a substantial period and resorted to subterfuge in order to achieve their aim of going to support jihad. Both of them were nearly 21 when they left the country. It is true that neither has any previous conviction but these are grave offences and the mitigation of good character carries correspondingly less weight in those circumstances. 56. Stepping back and looking at the matter in the round we are persuaded that the judge took too high a starting point for the custodial term in setting it at 16 years. We are principally influenced by our finding in relation to the basis of plea and the combat activity issue, but bear in mind that what they did went a long way towards fulfilling their intentions. Our conclusion is that in all the circumstances there should be a reduction in sentence based on a starting point of 13 years. Giving 20 percent credit for the guilty pleas (as the judge did) results in a custodial term of 10 years and 3 months. We consider that the 5-year extension period was appropriate in the circumstances in this case. 57. Accordingly, for the reasons given, the appeals are allowed and the sentences are reduced in each case by the substitution of an extended sentence of 15 years and 3 months for the 17 year 8 month term imposed below. That extended sentence will comprise a custodial term of 10 years and 3 months and an extension period of 5 years. This alteration does not affect the application of section 246 A of the Criminal Justice Act 2003 (special provisions relating to the release on licence of prisoners serving extended sentences where the custodial term is of 10 years or more).

2015_12_09-3687.xml

sentence

https://caselaw.nationalarchives.gov.uk/ewca/crim/2015/1886/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2015/1886

51078d46681d5ddbff19f75f87a72781e39efcb4a41ed1d13b2cd822b5221355

[2016] EWCA Crim 1969

EWCA_Crim_1969

crown_court

Neutral Citation Number: [2016] EWCA Crim 1969 Case No: 201602842 A3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CENTRAL CRIMINAL COURT HIS HONOUR JUDGE HONE QC T20157241 Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/12/2016 Before : LADY JUSTICE SHARP DBE MR JUSTICE SWEENEY and HIS HONOUR JUDGE DEAN QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between : BLAISE LEWINSON Appellant - and - R E G I N A Responden

Neutral Citation Number: [2016] EWCA Crim 1969 Case No: 201602842 A3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CENTRAL CRIMINAL COURT HIS HONOUR JUDGE HONE QC T20157241 Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/12/2016 Before : LADY JUSTICE SHARP DBE MR JUSTICE SWEENEY and HIS HONOUR JUDGE DEAN QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between : BLAISE LEWINSON Appellant - and - R E G I N A Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Sallie Bennett-Jenkins QC (instructed by Guney Clark & Ryan ) for the Appellant Simon Denison QC (instructed by the Crown Prosecution Service ) for the Crown Hearing date : 16 /12/2016 - - - - - - - - - - - - - - - - - - - - - Judgment Approved His Honour Judge Dean QC: 1. On 1 April 2016 in the Central Criminal Court (H.H.J. Hone QC) the appellant was convicted of manslaughter. He had been indicted for murder, and so the jury’s verdict meant they had concluded they could not be sure he had had the requisite intent for that offence. 2. On 13 May 2016 H.H.J. Hone QC sentenced the appellant to detention for life and 9 years’ detention was specified as the minimum term under s.82 A Powers of Criminal Courts (Sentencing) Act 2000 . That minimum term reflected a notional determinate sentence of 18 years’ detention. 3. He appeals against sentence by leave of the single judge. Facts 4. Shortly before 6 p.m. on 10 June 2015, the victim Stefan Appleton, who was 17 years old, was with a group of friends next to Nightingale Park in Islington. It was a bright sunny day and families with children were in and around the park. 5. The appellant and a friend arrived near the park on a stolen moped. The friend drove, wearing a helmet, and the appellant rode pillion. He was not wearing a helmet but wore a balaclava and had his hood pulled up covering his head. The appellant jumped off the moped and pulled out a knife. He removed the knife from its sheath which he discarded. He ran towards Stefan Appleton and his friends. They ran away and the appellant chased Stefan who tripped over a low fence and fell over. The appellant was right behind him. As Stefan lay on the ground the appellant stabbed him. One of the blows cut Stefan Appleton’s right shin, probably as he kicked out to defend himself. One blow penetrated the left side of his chest, passing through a lung and into his heart. 6. Stefan was able to get up and run away. The appellant started to chase after him but then turned and ran out of the park back to where his accomplice was waiting on the moped. He got back on and they rode away. 7. Stefan collapsed and friends and members of the public went to help. Paramedics attended and he was taken by ambulance to hospital. Stefan Appleton was pronounced dead at 7.45 p.m. 8. The weapon used by the appellant was known as a Zombie Killer. It was a large knife, similar to a machete, about 60 centimetres long with a serration along the top of the blade. The knife was never recovered. We have seen photographs of the type of knife in question. It was rightly described as a fearsome weapon. 9. The appellant and his accomplice tried to avoid arrest and to destroy evidence. They left the moped in a quiet road and arranged for others to burn it. They burnt the clothes they had been wearing and left the helmet used by the accomplice, which would not burn, with a friend. They left London that evening and travelled to Bristol where the accomplice had relatives. They later tried to book flights to Malaga in Spain but were unable to. They returned to London, although not to their own homes. The police arrested them a few days later, each hiding at addresses where they had hoped they would not be found. The appellant made no comment when interviewed. 10. The moped used by the appellant and his accomplice on 10 June had been stolen from a Mr Rabah in a robbery the evening before the attack on Stefan Appleton – some evidence linked the appellant to that robbery and although it couldn’t be said he had been directly involved in the robbery, Mr Rabah’s moped was being offered to the appellant very soon after it had been stolen. The Appellant 11. Lewinson is now 18 years old (b. 12 November 1998). He was 17 at the date of conviction and 16 at the time of the offence. The grounds of appeal describe the appellant as having a “minimal history of engagement in offending behaviour” and similar submissions were made before the Court on 16 December. We do not think that phrase properly describes this appellant’s earlier offending. As a 14 year old he was dealt with for an offence of battery. He breached the order made on that finding of guilt. When he was 15 he pleaded guilty to possession of an offensive weapon, a lock knife. Part of the order made on that occasion was that the appellant was to participate in a knife crime prevention course. He had completed that course before the events of 9/10 June 2015. In March 2016, in fact during his trial at the Central Criminal Court, and then again in April 2016 whilst awaiting sentence, he was in possession of prohibited articles in prison – on 1 June 2016 Detention and Training Orders were imposed for these matters. In other respects, although to some extent these matters are disputed, his prison disciplinary record has been poor. He is said to have been involved in fights and to have been found with makeshift weapons. The Grounds of Appeal 12. In succinct written and oral submissions, it is said that the learned judge was wrong to find that the appellant was a dangerous offender and wrong to determine that detention for life was required. In any event, it is argued that the notional determinate sentence was set too high (at 18 years). It is acknowledged that a lengthy term of detention was required. Sentencing remarks 13. As appropriate, particularly given the age of the appellant, the learned judge’s sentencing remarks were detailed, both in terms of describing the factual basis for sentence and in explaining why he had reached the conclusions he did. We will return to the sentencing remarks in due course. Discussion 14. Significant weight has been attached in this appeal to what are said to be errors in the pre-sentence report. Some matters complained of can only be of peripheral relevance. 15. It is claimed that the author of the PSR had presented Lewinson’s behaviour towards staff in the detention centre as poor. In fact, the author describes his behaviour as “mixed”, and positive as well as negative aspects of his behaviour are noted. 16. The report’s reference to the appellant being a gang member ought not to have been included in the report, but that reference was of no significance at all; HHJ Hone Q.C. knew during the trial about suggestions that this was gang related violence and that the appellant was a gang member, he ruled that evidence inadmissible/irrelevant during the trial and he said specifically in his sentencing remarks that he put out of his mind suggestions of gang involvement. 17. Lewinson had repeated to the author of the PSR his untruthful account of the events of 10 June, he minimised and sought to justify his actions. The author of the PSR assessed Lewinson as posing a high risk of re-offending both in the community and in custody, he was said to represent “ a high risk of violent and psychological harm to his peers, including death”. 18. In submissions before the Court on 16 December, it was suggested that the assessment of the author of the PSR was based upon only the briefest of interviews with the appellant and was inadequate. We do not agree with that characterisation of the report. 19. In any event, it is clear that the learned judge, having had the dual advantage of seeing the appellant over the course of a lengthy trial and of hearing the evidence concerning the events of 9/10 June, attached no great weight to the conclusions of the author of the PSR. He made it very clear that his views, that a sentence of detention for life was justified and that the appellant was a dangerous offender, were based upon his own assessment of the appellant’s offence and the appellant’s character. We consider he was entitled to reach these conclusions on the facts. 20. Paragraph 20 of the written Grounds of Appeal implies that the learned judge in identifying a notional determinate term of detention had used or had been influenced by schedule 21 to the Criminal Justice Act 2003 . The learned judge had said in his sentencing remarks that the notional determinate term for an adult would have been 24 years, and so for a youth of the appellant’s age would be 18 years. Whilst these figures bear resemblance to figures in schedule 21, such is inevitable in this type of situation where a notional determinate term is bound to be very long. The figures though in schedule 21 are the figures representing the earliest time for consideration for release on licence so that they in fact represent half the value of the notional determinate term. This criticism, if it is intended as a criticism, is unfounded. R v Huggins, Clarke and Gordon [2016] EWCA Crim. 1715 21. Huggins, Clarke and Gordon, in which judgment was given in this Court as recently as 15 November 2016 provides guidance in sentencing in certain types of manslaughter cases. As it happens the facts of Huggins bear more than passing similarity to the appellant’s case, but we refer to Huggins only to emphasise the principles involved in cases such as this. 22. As was observed in Huggins, manslaughter is a common law offence with a maximum sentence of life imprisonment. There are no sentencing guidelines for involuntary manslaughter, but the court is required to pass a sentence that is commensurate with the seriousness of the offence. Section 143(1) of the 2003 Criminal Justice Act provides that: "In considering the seriousness of any offence, the court must consider the offender's culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused." 23. Seriousness is accordingly determined by two main matters: the culpability of the offender and the harm caused, or risked being caused, by the offence. The extent or level of an offender's culpability for an offence therefore depends not only on the harm he intended, but the extent to which the harm actually caused could have been foreseen. This approach to culpability assumes particular importance in offences where there is a significant difference between intended and actual harm, a point made clear in the Sentencing Guidelines Council's Overarching Guidelines on Seriousness. These state, in terms, that in cases where unusually serious harm results and was unintended, culpability will be significantly influenced by the extent to which the harm could have been foreseen. 24. Self-evidently, actual harm is at the highest level where the victim has died as a result of unlawful violence, and this is a factor which must be given greater weight in sentencing in involuntary or unlawful act manslaughter cases, to accord with the legislative intention of section 143(1) of the 2003 Act . (see Huggins, paras. 38 - 40) 25. In some cases of involuntary manslaughter the level of culpability will not be great because serious harm will neither have been intended nor been foreseen nor been foreseeable – but this appellant’s offence was offending where culpability was at or approaching the highest level for involuntary manslaughter. Violence was intended and planned. A “fearsome” weapon was acquired and carried to the scene. The victim was attacked, not with intent to kill or intent to cause really serious harm, but nevertheless with intent to harm and in circumstances in which unintended consequences – indeed fatal consequences – were always a very real and entirely foreseeable possibility. The appellant made cunning and determined efforts to conceal his involvement and to escape its consequences. Sentence 26. HHJ Hone’s sentencing remarks very much presage Huggins in the approach he adopted. Recognising that Lewinson fell to be sentenced for manslaughter and therefore on the basis that some harm rather than really serious harm had been intended, the learned judge observed that: “...in terms of culpability and harm this case must be placed at the very top of the range of manslaughter cases”. In terms of culpability the learned judge placed the appellant’s case “very close to murder” and he gave cogent and clear reasons why that was so. We agree both with HHJ Hone QC’s approach and with his conclusion in placing the appellant’s case very close to murder in terms of culpability and harm. 27. The learned judge carefully analysed the nature of the offence, its planning and the steps taken by the appellant to evade detection. He considered Lewinson’s previous offending and he gave appropriate weight to the conclusions reached in the PSR – they matched the conclusions he had reached having seen and heard the appellant during his trial. The learned judge took fully in to account the Sentencing Council’s guidelines on youth offenders and considered the appellant’s age, his maturity and his capacity to change. 28. HHJ Hone QC concluded that the seriousness of this offence of manslaughter justified a sentence of detention for life. He went on to consider in detail and with care the question of dangerousness and the applicability of s.226 Criminal Justice Act 2003 . Finding, as he did, that the appellant was a dangerous offender and given his conclusion that by reason of the seriousness of the offence a sentence of detention for life was fully justified, HHJ Hone was required by the terms of s.226 Criminal Justice Act 2003 to pass a sentence of detention for life. 29. As we have already indicated, HHJ Hone QC’s conclusion that detention for life was required in this case was, in our view, correct. 30. In fixing the notional determinate term at 18 years the learned judge had taken as his starting point a term of 24 years that he considered would have been appropriate for this manslaughter in the case of an adult. Given his conclusion that this case fell at the “ very top” of the range for manslaughter and was “ very close” to murder, the notional terms the learned judge was bound to consider had to be lengthy. 31. Before us, Mr Denison Q.C. for the Crown described the notional determinate sentence of 24 years as “exceptionally severe”. Contrary to what is suggested in paragraph 20 of the written grounds of appeal, it does not seem to us that in taking a starting point of 24 years for an adult offender the learned judge was in any way influenced by the provisions of schedule 21, Criminal Justice Act 2003 as they would apply for the offence of murder. Rather, the learned judge assessed the gravity of the offence in terms of culpability and harm and he reached the conclusion he did. 32. Having concluded that the appropriate notional determinate term for an adult was 24 years, the learned judge reduced the term relevant to the appellant in accordance with the Sentencing Council’s guidelines for youth offenders by a factor of 25%. Accordingly, we must consider both whether a starting a starting point of 24 years was manifestly excessive and, whether it was or was not, whether the reduction by 25% was appropriate or whether there ought to have been a greater deduction. 33. Mr Denison’s acceptance of the “exceptionally severe” length of the notional term, is the starting point of our consideration. Whilst we acknowledge the difficulty there always is in making comparison with other cases, cases such as Attorney General’s Reference No. 36 of 2015; R v Nicholles [2015] EWCA Crim. 1174 and R v Odegbune and others [2013] EWCA Crim. 711 have assisted us to some extent, as to length. 34. The learned judge’s conclusion that the appropriate notional determinate sentence for an adult was 24 years was consistent with his assessment that the appellant’s case fell “at the very top” of the range for manslaughter and was “very close” to murder. Clearly a severe sentence was required and, having considered the learned judge’s reasoning as well as the submissions made to us, we do not conclude that 24 years was a manifestly excessive starting point. 35. Was the term appropriate for an adult sufficiently reduced so to reflect the age and maturity of this appellant as well as his capacity for change? In this regard the learned judge considered the factors the Sentencing Council’s guidelines refer to with evident care. The learned judge rejected the notion that the appellant was immature and he assessed the appropriate reduction by reference to the correct criteria. However, the Sentencing Council guidelines indicate that: “…where the offender is aged 15, 16 or 17, the court will need to consider the maturity of the offender as well as chronological age. Where there is no offence specific guideline, it may be appropriate, depending on maturity, to consider a starting point from half to three quarters of that which would have been identified for an adult offender”. Although the learned judge did not depart from the guideline, in reducing the notional determinate sentence to 18 years he allowed only the minimum deduction (25%) the guidelines recommend. We do not consider this reduction was sufficient. The appellant was only 16 at the time of the offence. It was not suggested he was particularly mature or sophisticated for his age and in our judgement the appropriate reduction should have been to two thirds of the determinate term for an adult. 36. A one third reduction of the 24 year term leads to a notional determinate sentence for this appellant of 16 years, rather than 18 years. In turn, that means that the period to be specified as the minimum term under s.82 A Powers of Criminal Courts (Sentencing) Act 2000 should have been 8 years (less 333 days spent on remand in custody) not 9 years. 37. To that extent, this appeal is allowed. 38. For the avoidance of doubt the sentence is detention for life under s.226 Criminal Justice Act 2003 . The specified minimum term (as from 13 May 2016) is 7 years 32 days (that is 8 years minus 333 days).

2016_12_21-3891.xml

allowed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2016/1969/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2016/1969

31af293727344d8698d56d3c8516cd7afe907bcb56bfe29e161110c30729d202

[2019] EWCA Crim 2460

EWCA_Crim_2460

crown_court

No: 201904588/B3-201903463/B3 IN THE COURT OF APPEAL CRIMINAL DIVISION [2019] EWCA Crim 2460 Royal Courts of Justice Strand London, WC2A 2LL Friday, 20 December 2019 B e f o r e : LORD JUSTICE DAVIS MR JUSTICE JOHNSON HIS HONOUR JUDGE PICTON QC (Sitting as a Judge of the CACD) R E G I N A v BENJAMIN YEO 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 W

No: 201904588/B3-201903463/B3 IN THE COURT OF APPEAL CRIMINAL DIVISION [2019] EWCA Crim 2460 Royal Courts of Justice Strand London, WC2A 2LL Friday, 20 December 2019 B e f o r e : LORD JUSTICE DAVIS MR JUSTICE JOHNSON HIS HONOUR JUDGE PICTON QC (Sitting as a Judge of the CACD) R E G I N A v BENJAMIN YEO 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 W Parkhill (Solicitor Advocate) appeared on behalf of the Applicant Mr S Heptonstall & Ms H Hope appeared on behalf of the Crown J U D G M E N T (Draft for approval) LORD JUSTICE DAVIS: We think the least unsatisfactory way of proceedings is as follows - we will give our reasons later this morning. In the case of Mr Yeo, we will quash the convictions on those particular counts of theft and of course quash the sentence. My Lord, Judge Picton, will then constitute himself as a judge of the Crown Court and will put those particular counts to him and it may well be and we gather he will then plead guilty to those and then Judge Picton can give him appropriate sentence, which I anticipate will be no separate penalty. In the case of Mr Lowther, given the circumstances, we simply quash on the same basis and do more than that. MR HEPTONSTALL: I am grateful my Lord. LORD JUSTICE DAVIS: Judge Picton is now constituted as a judge of the Crown Court. HIS HONOUR JUDGE PICTON: Mr Yeo, can you hear me? THE DEFENDANT: Yes, sir. HIS HONOUR JUDGE PICTON: You have been sent to the Crown Court in respect of some charges of theft. There is a charge of theft on 2 March 2019, meat from the Co-op in Whitleigh, Plymouth, theft on 3 March, ice cream from the same shop; 9 March, meat from the same shop; 10 March, theft of confectionary sweets from Tamerton Post Office in Plymouth and theft on 19 March, some meat again from the Co-op in Whitleigh and some more meat on 20 March from the Co-op in Whitleigh. Do you plead guilty to each of those charges? THE DEFENDANT: Yes. HIS HONOUR JUDGE PICTON: Or not guilty? LORD JUSTICE DAVIS: Do you plead guilty? THE DEFENDANT: Yes, sir. HIS HONOUR JUDGE PICTON: Thank you. In relation to those there will be no separate penalty as you have already been sentenced for the other matter that came to the Crown Court legitimately on the indictment. Thank you very much. (Submissions re: sentence) LORD JUSTICE DAVIS: The appellant in this case is a man now aged 26. His appeal started out as an appeal against sentence and the single judge had granted leave in that regard. However, it was subsequently noted within the Criminal Appeal Office, on behalf of the Registrar, that a technical issue arose relating to the validity of the convictions on his plea, and accordingly on sentence, on certain counts of theft. In consequence of that being drawn to the parties' attention an application for an extension of time and for leave to appeal against conviction has since been lodged in respect of those counts of theft which are counts 1, 2, 3, 4, 5 and 6 on the particular indictment in question. We have earlier this morning indicated that we grant the extension of time sought and we grant leave to appeal against conviction in respect of those matters. The factual background is this. The appellant pleaded guilty to the offences contained in indictment 7031 and in due course was committed to sentence to the Crown Court by the Plymouth District Magistrates' Court. On 21 August 2019, in the Crown Court at Plymouth, he was sentenced by the Recorder as follows: on the six counts of theft (counts 1, 2, 3, 4, 5 and 6) he was sentenced to 4 months' imprisonment to run concurrently inter se; on a count of robbery (count 7) he was sentenced to 56 months' imprisonment and on a further count of having an article with a blade or point he was sentenced to 12 months' imprisonment concurrent. He was also sentenced to 4 months' imprisonment concurrent on other matters of theft which were before the court and as to which no technical objection arises. The facts, shortly put, are these. So far as counts 1, 2, 3, 4, 5 and 6 are concerned, on various occasions between 2 March 2019 and 20 March 2019, the appellant had stolen various low value products from various stores in the Plymouth area. He had been caught on CCTV committing the offences. The altogether more serious matters were counts 7 and 8 on the indictment. The position was this. On 11 April 2019 a young woman called Chelsea Tucker was working in a store in Southway in Plymouth. This was a family run shop. She was on her own on that particular occasion. At around 11.55 am the appellant entered the shop and enquired about the cost of tobacco. He subsequently left. A short time later she was aware of him being back in the store but he now had some kind of mask or disguise across his face. He also had a large kitchen knife (around 6-inches long) in his right hand and said something about the till money. She told him to get out but he walked towards her. He tried to grab the till but she valiantly resisted. He then started to jab towards her with the knife and then grabbed several packets of tobacco before walking out of the store. She immediately called the police. CCTV images of the appellant from some of the offences were analysed and he was subsequently arrested. He answered "no comment" to questions asked in interview. Two victim personal statements from Chelsea Tucker were before the Crown Court at sentence. It is plain that the incident has had a profound impact on her and, amongst other things, she had been unable to complete her degree course at university that year in terms of doing the exams required. Regrettably the appellant has a poor antecedent history, having convictions for a number of matters over the years. It is fair to say that in most instances those offences have been of much lesser order than the offences constituted by counts 7 and 8 on the indictment. He has not received any substantial custodial sentence before at all. At the same time it is demonstrable that various community orders and the like imposed in the past have not worked. Nevertheless there were undoubted psychological and psychiatric issues relating to this appellant which needed careful consideration. It is right to say that he has had a somewhat troubled background. A confidential psychological report, prepared by Dr Anderson for the purposes of the sentencing hearing, reviewed his history in great detail. He has significant learning difficulties and, as it is put, "has suffered from pervasive development disorders and a learning disability for many years". He has a combination of low IQ, autism and ADHD which has impacted upon his "consequential thinking skills". He is expressly described as being, by reason of his ADHD and mild autism, a "vulnerable young adult". A psychiatric report, obtained for the purpose of the sentencing hearing, is of similar tenor. In that the appellant is, amongst other things, described as "very vulnerable. He is suggestible and has limited coping skills". It was recommended that he needed treatment for his vulnerability to exploitation and other matters although no recommendation of a hospital order was made. In addition, a pre-sentence report commented on the appellant in corresponding terms. For the purpose of the robbery count, which plainly appropriately fell to be taken as the lead count for sentencing purposes, there was some debate before the Recorder. Clearly this was high culpability category A because of the production of the knife. In terms of harm, there was further discussion. The Recorder decided that this was properly to be categorised as category 2A offending and there can, in our judgment, be no criticism of that conclusion, given the circumstances. Furthermore, there were a number of aggravating factors to be taken into account here including, amongst other things, that he had worn a mask and that the bladed article in question was a large knife. Further, there clearly had been some element of targeting because he had initially gone into the shop, clearly observed there was a lone female shop assistant in charge and then returned. The mitigation principally lay first, in his early plea for which he was entitled to one-third credit and then of course in his various psychiatric and psychological issues. In passing sentence the Recorder dealt with the matter concisely. He referred to the background facts. He understandably referred to the effect on Ms Tucker of what had happened. Having referred to those matters the Recorder then said this: "I have, on the other hand, to take into account the fact that you are 25 years of age and undoubtedly do have difficulties, both psychological and other difficulties. But there is no doubt in my mind that this is an extremely grave offence." The Recorder then proceeded to categorise the matter as we have indicated. He rightly noted that so far as the count of the bladed article was concerned, that in effect was subsumed by the robbery. He then proceeded to pass the sentences that we have indicated, stating that had there not been a plea of guilty, he would have imposed a sentence of 7 years' imprisonment on the robbery count. But with the deduction of one-third by way of credit for plea the ultimate sentence was one of 4 years 8 months' imprisonment. The first point with which this court has had to deal relates to the convictions on the appellant's plea to the counts of theft being counts 1, 2, 3, 4, 5 and 6 on the indictment. These all related to the shoplifting offences and it is expressly agreed that these offences were low value shoplifting offences for the purposes of section 22 of the Magistrates' Court Act 1980. As such, they were triable as summary offences only unless the appellant had elected for a Crown Court trial in this regard; and this never happened. Nevertheless, those matters could still properly be sent up to the Crown Court along with the robbery count and the possession of a bladed article count, if those shoplifting offences could be treated as "related" - see section 51(3) of the Crime and Disorder Act 1998. Given that it was accepted that all these offences in effect involved a pattern of offending by way of a campaign, in our judgment, they could properly be described as "related". Nevertheless as summary offences sent up to the Crown Court, they could only be added to the indictment if they met the requirements of section 40 of the Criminal Justice Act 1988. Low value shoplifting cases are not within such provisions. Consequently, they could not lawfully be added as counts of theft to the indictment in this case; there simply was no legal power to do so. The only way they could properly have been dealt with in the Crown Court was by following the procedure set out in paragraph 6 of schedule 3 to the Crime and Disorder Act 1998; but that did not happen either. In those circumstances, this court has no option but to quash the convictions, albeit convictions following a plea, and quash the sentences on those particular counts of theft. It may be noted that they were concurrent with each other and with the other sentence and that has no immediate impact upon the overall sentence. But clearly it is right that the matter be corrected. There was some discussion between this court and counsel as to what procedure should then be followed. The appellant has attended today over the video link and in the circumstances and with the effective agreement of all concerned, what happened was that one member of this court (Judge Picton) was constituted as a judge of the Crown Court today. He then put those charges of theft to the appellant, who has pleaded guilty to them, and a sentence of no separate penalty on those counts was then indicated; and that is endorsed. Accordingly, that should be the end of that particular technical hitch. Nevertheless, we must stress that it is most unfortunate that such an issue has arisen in this particular matter. It has necessarily occupied court time, it has meant that counsel has had to prepare and be paid for attending on an application for leave to appeal against conviction out of time and, generally speaking, resources have had to be devoted to sorting out a matter which should never have been allowed to arise. One of course understands that mishaps and oversights do occur. It must be pointed out, however, that in recent years there have been a number of decisions, some of which have been reported, in which precisely this issue has arisen - see for example R v Maxwell [2017] EWCA Crim 1233 ; [2018] 1 Cr App R 5 ; R v McDermott-Mullane [2016] EWCA Crim 2239 ; [2017] 4 WLR 127 and most recently R v Burrows [2019] EWCA Crim 889 . In fact, it is just because those various decisions have dealt with the position by reference to the statutory provisions so fully and extensively that it has not been necessary for this court to set out yet again the full statutory provisions in this particular judgment. Nevertheless in R v Maxwell , at paragraph 47, Treacy LJ, giving the judgment of the court, did stress the inconvenience, delay and expense occasioned by such oversights: oversights which occurred both in the Magistrates' Court and then in the Crown Court and "greater vigilance" on the part of all those involved was urged. It is regrettable that this message with regard to low value shoplifting offences still does not seem to have entirely penetrated into the lower courts. We can only endorse and repeat Treacy LJ's remarks. We should also add that due apologies have been tendered to this court and we do, of course, accept them. That being the position with regard to conviction, we now turn to what, in reality, is the substantive matter before this court which relates to sentence. Mr Parkhill, on behalf of the appellant, argues that a sentence of 4 years and 8 months' imprisonment, with full credit for plea, is excessive. He accepts that the Recorder was entitled to treat this as a category 2A case. For category 2A robbery cases the starting point is 5 years' custody with a range of 4 to 8 years' custody. Mr Parkhill's essential submission is that the Recorder was not justified in indicating a figure of 7 years, towards the top of the range, before giving credit for plea. Mr Parkhill suggests that the Recorder had given rather too much weight to the impact upon the unfortunate shop assistant, even though, of course, he does not seek to minimise the effect of the offending upon her. But Mr Parkhill's particular point is that the Recorder failed to have sufficient regard to the various reports relating to this offender, which stress his significant psychological and psychiatric issues and which, Mr Parkhill submits, greatly reduce his culpability. Mr Parkhill submits that overall the Recorder was not justified in going so significantly up from the starting point of 5 years set out in the guideline. This clearly was a bad offence of robbery of its type. The victim was a lone female and there had been a degree of targeting. As we have said, the offender wore some kind of disguise. There has indeed been a significant impact upon her. Moreover, the bladed article in question was a large kitchen knife. Furthermore, it is an aggravating factor that the appellant has a poor record, even if containing nothing of this kind of severity of offending. Nevertheless, it was an important feature of this case that there were these psychological and psychiatric reports which undoubtedly do go to the overall culpability of the appellant. Mr Parkhill of course accepted that a significant immediate term of custody was inevitable. But we do think with all respect that the Recorder failed to have sufficient regard to these reports and erred in setting himself a figure of 7 years before giving full credit for the plea. In all the circumstances of this particular case, having regard both to the circumstances of the offending and to the circumstances of the offender, this court takes the view that an appropriate figure, before giving credit for plea, would have been in the region of five-and-a-half years' imprisonment. Giving then full one-third credit for the plea, as the Recorder did, that gives rise to a sentence of 3 years and 8 months' imprisonment. In our view, that is the appropriate sentence in this particular case. Accordingly, we will quash the sentence on count 7 and substitute for that sentence a sentence of 3 years and 8 months' imprisonment. The other sentences will stand save of course with regard to those relating to theft, where the outcome is as we have already indicated. 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_20-4801.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/2460/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/2460

84995e5f1e4ff153f898061dc1d140c2d7035cb26799bc355c23faf5bf7c6f1b

[2004] EWCA Crim 597

EWCA_Crim_597

crown_court

Case No. 2002/04095/B4 Neutral Citation Number: [2004] EWCA Crim 597 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Thursday 26 February 2004 B e f o r e: LORD JUSTICE BUXTON MR JUSTICE SIMON and HIS HONOUR JUDGE TILLING ( Acting as a Judge of the Court of Appeal Criminal Division ) -------------- R E G I N A - v - JOHN JOSEPH FARRELL -------------- Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone

Case No. 2002/04095/B4 Neutral Citation Number: [2004] EWCA Crim 597 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Thursday 26 February 2004 B e f o r e: LORD JUSTICE BUXTON MR JUSTICE SIMON and HIS HONOUR JUDGE TILLING ( Acting as a Judge of the Court of Appeal Criminal Division ) -------------- R E G I N A - v - JOHN JOSEPH FARRELL -------------- Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) -------------- MR R SPENCER QC appeared on behalf of THE APPELLANT MR N P MOORE appeared on behalf of THE CROWN -------------- J U D G M E N T LORD JUSTICE BUXTON: 1. This is an appeal brought by leave of the full court arising out of the conviction of the appellant, Mr John Joseph Farrell, on two counts, one of robbery and one of attempted robbery, in respect of which he was sentenced to concurrent terms of ten years' imprisonment. 2. The appellant complains of a particular matter that arose in the course of the trial which related to the admissibility of an interview conducted with him by police officers. That matter was explored in detail on a voire dire before the trial judge who had the benefit, as we have had, of detailed and helpful submissions from Mr Robin Spencer QC. 3. The appellant originally faced three counts. Count 2 was withdrawn from the jury at the close of the prosecution case. Count 1 concerned the robbery of a sub-post office in Bracknell by two men in disguise who threatened counter staff in a violent way. It occurred on 24 April 2001. It was alleged that the appellant was one of the two robbers. They went off in a gold Montego motor car. Such a motor car was found abandoned two days after the robbery. Inside the vehicle was a newspaper which, it was alleged, one of the robbers had used to try to conceal the knife that he carried at the time of the offence. That newspaper had the appellant's fingerprints on it, and also the fingerprints of his alleged associate, Gary Dunne. Dunne has never been brought to trial. He has never been located by the police. Keys to the vehicle were handed in to the police by a lady who was the appellant's girlfriend at the time of the offence. She claimed to have found the keys at her flat. 4. Count 3 concerned the evening of 13 June 2001 when there was an attempt to rob a filling station at Iver Heath. Threats were made to the employees, but the offence was interrupted by a member of the public. The robbers fled empty-handed, abandoning as they did a blue Ford Focus motor car. That motor car was eventually discovered to be on false registration plates. “V” plates were on it rather than the “X” plates which legally related to that vehicle. That matter will be of some importance in connection with the complaint made on appeal. The car had been hired by the appellant in March 2001. He had paid a hire firm a substantial sum in respect of it. He was the only person insured to drive it. Inside the vehicle the police discovered a sledgehammer in which pieces of glass were embedded, the appellant's mobile telephone, a set of keys for his flat in London, a pair of his spectacles and a bottle on which was found his DNA. Fingerprints and DNA in respect of other persons were also found in the car. 5. It will be seen that the case against the appellant did not depend on identification, but was circumstantial. The prosecution's allegation at trial was that he had committed the robberies in association with Dunne. In particular the prosecution relied on the connection between the appellant and the getaway vehicles, and on certain lies that he had told during his police interview -- a matter again to which we shall have to return. 6. The broad thrust of the defence was that other persons, allegedly prolific robbers in the area, had committed these offences, as it was admitted they had committed other similar offences, and that in respect of count 1 two of these persons had had access to the car; and in respect of count 3, that it was Dunne to whom the appellant had lent the car in the course of that evening. The defence on count 3 was alibi. 7. We should briefly mention a matter that was originally before the court. Complaint was made of the judge's failure to withdraw the counts from the jury at the end of the prosecution case, more particularly in relation to count 1, because of the possibility that the facts pointed to a person other than the appellant. The judge did not make such a ruling, but he was pressed in the course of submissions by Mr Spencer with R v Moore (CA, unreported, 20.8.92). It is not necessary to go into the detail of that case or the point that arose in it, because the implications of Moore have been reconsidered (on the initiative of Mr Spencer) in R v Jamieson and McDonagh [2003] EWCA Crim 3755 , where the Vice-President, Rose LJ, made it clear that the guidance that was at one time thought to be available from Moore should not in future be followed. Mr Spencer very properly drew our attention to that authority and thereupon withdrew his complaint about the judge's failure to withdraw the case from the jury. We mention this point only because we consider it valuable to re-emphasise in another judgment of this court that in this area it is Jamieson and McDonagh that must now be followed. Moore should not be further cited. 8. We turn to the matter in issue. The complaint made before us, as it was made before the trial judge, was as to the admission before the jury of an interview conducted by the police with the appellant in the company of his solicitor, a Miss Glover. The interview complained of was conducted by Detective Constable Bradford. In the interview that was sought to be excluded, the appellant made no admission of any of the offences, but he said a number of things which it is now accepted were lies. In particular he claimed in interview to have lent the car to some people called Whitlock and not to Gary Dunne. The prosecution were able to establish that that was not correct; it was not the Whitlocks to whom the car had been lent. 9. Those lies were relied on as part of the prosecution case at trial. In due course the judge gave a Lucas direction in respect of them. We cannot know what effect those lies had on the jury's deliberations, but Mr Spencer perfectly fairly says that in a case where circumstantial evidence was all that the prosecution had to go on, which was met by a detailed and circumstantial denial, the appellant's credibility must have weighed importantly with the jury. In those circumstances the fact that he had told lies that merited a Lucas direction might have had more effect than otherwise. 10. The complaint is that the record of the interview should not have been admitted and therefore, had that complaint prevailed, the lies would not have been told. The complaint arises in this way. It has become the practice, more particularly since the decision of this court in R v Roble [1997] Crim LR 449, for the police authorities to give, voluntarily and non-statutorily, written disclosure before they interview a suspect, especially a suspect who has the advantage of representation by a solicitor. This practice has developed in response to the judgment in R v Roble , when this court addressed the questions that arise under section 34 when a “no comment” interview is given on the advice of a solicitor. In that case Rose LJ pointed out that, although there may be many cases where the basis for advice to give a “no comment” interview remains unclear, there may be circumstances where “The interviewing officer has disclosed to a solicitor little or nothing of the nature of the case against the defendant so that the solicitor cannot usefully advise his client.” It is in order to meet that difficulty, as we understand it, that pre-interview disclosure is given. However, granted that that practice has grown up, by the same token those advising defendants understandably tend to rely on, or be influenced by, that which is said to them. 11. In the present case the interviewing officer indicated to the appellant and to his solicitor that he wished to interview the appellant in respect of the attempt to rob the filling station at Iver Heath (count 3). He did not tell the appellant or the solicitor, as was the case, that in addition the police were interested in questioning the appellant in respect not only of what became counts 1 and 2 on the indictment, but also in respect of a range of other incidents (eleven in all), for most of which the appellant was not prosecuted, and some of which, we are told, have resulted in convictions of other persons. 12. Before the interview started, the interviewing officer gave a typed document to the appellant and his solicitor. It first, it set out the circumstances of the offence and continued: “(2) The offenders left behind their vehicle a blue Ford Focus registration X96 HTF. (3) The vehicle X96 HTF was hired from BTC in Wokingham by John Farrell on the 13th March 2001. No other person has been arrested in connection with this offence.” The officer then added in manuscript, before handing the document to Miss Glover: “(4) John Farrell's fingerprints found on X96 HTF. (5) John Farrell's DNA found in H96 HTF. (6) Fingerprints plus DNA from another person found in X96 HTF.” There was then discussion between the officer and Miss Glover, one aspect of which we shall have to return to later, but which so far as the disclosure document was concerned, ended with the officer adding two matters to the list: “(7) Money owed for the hire car. (8) House search completed; shared flat; stun gun found and a drugs wrap in flat.” 13. The interview proceeded. Miss Glover did not give advice that the appellant should not answer the questions. In the course of the interview the appellant gave certain answers that are now accepted to have been untrue. Towards the end of the interview, having pressed the appellant with matters such as his fingerprints and DNA being in the car, the officer then revealed, but only then, that there were false numberplates on the car. Exchanges took place in respect of that, in the course of which there was some discussion, unrecorded, with the solicitor. The appellant denied that he had put false plates on the car. It was suggested to him that his fingerprints might have been on those numberplates. There is no suggestion that the officers in that respect sought to mislead the appellant, who continued to deny that he had anything to do with the plates. When pressed, the appellant perfectly properly said that he wished to consult his solicitor, which he did. It was at that stage, and that stage only, that, in the interview, the interviewing officer announced that he was going to arrest the appellant for an offence of armed robbery in which the Ford Focus car with the false numberplates had been used. That was the robbery that formed the subject of count 2, which the judge withdrew from the jury at half time. 14. Limited disclosure was given in respect of that alleged offence. It related merely to the acts that took place. Miss Glover then advised the appellant that he should not say anything else until they had had a consultation, which they did. In due course, after further information had been given to the solicitor and to the appellant about the range of matters about which the police wanted to speak to the appellant, he was advised by the solicitor to make no further comment about any of the matters. He did not do so. 15. The complaint that is made in respect of these events is twofold. First, that the police misled the appellant and his solicitor by not revealing before the interview began that there had been false numberplates on the Ford Focus car. Secondly, they were further misled by not being told that further matters were to be investigated. It is said that it was unfair, first of all, to give the limited disclosure in respect of the car; and secondly, unfair for the police not to put all their cards on the table at the beginning so that the solicitor knew the full range of that of which the appellant was to be accused. 16. The solicitor's evidence in a voire dire was not that she would necessarily have been influenced in the advice that she gave by the number of charges that the appellant faced, but that if at the start of the process she had been given, as she said she should have been, all the disclosure about all the offences that she was eventually given, she would have advised the appellant from the start to give a “no comment” interview. What she would have said in respect of the numberplates is not clear, but it should be noted, as we have seen, that once the matter of the false plates was raised in the first interview the appellant and/or his solicitor decided not to co-operate further. 17. It was argued that the unfairness involved should cause the trial judge to exclude the interviews, exercising his discretion under section 78 of the Police and Criminal Evidence Act 1984 . Evidence was called from the interviewing officer. So far as the decision not to reveal the full range of offences was concerned, his evidence was clear in an exchange with the judge at page 25 of the transcript. The judge said: “You were obviously concerned that if you disclosed all the offences that you understood you could question him about, you thought he was involved with, if you disclosed all that right at the start, you might get a no comment interview from the start? A. Yes, your Honour. Q. That is what you thought, is it not? A. It did go through my mind, yes. Q. Yes, so that is why you only disclosed the one for which he had been arrested? A. Yes.” The officer explained that that is how he had planned his interview. He said that that was effectively his tactic not to reveal that there were further matters. He said that he feared that if he did so, the appellant would answer “no comment” in relation to the robbery at Slough. 18. There was a dispute between the officer and the solicitor as to what had been said with regard to further matters. The solicitor's note appeared positively to record that no further questions were going to be asked. The judge found that neither of them could recall the exact words that passed between them. The solicitor understood that the officer had said something like “Nothing more”, when asked by her whether there would be questions about other offences. Mr Bradford's response was more in terms of, “That is all I want to interview him about at this point.” The judge was however satisfied that the appellant and his solicitor thought that there were going to be no questions about further offences. 19. Mr Spencer argues before us, as he argued before the judge, that this case, although plainly not as serious as the earlier case, falls within the ambit of the decision of this court in R v Mason 86 Cr App R 349. That was a case where there was deliberate deceit by the police of a solicitor, in that they wrongly and mendaciously told him that there was evidence in the form of fingerprints against his client. That caused his client to make admissions in the interview. This court said that it would not countenance that form of deceit or trickery, and that that was enough to render the admissions inadmissible. 20. The question for us, which we understand has not been addressed in detail in any authority that we have been shown, is how far that principle goes. These questions are decided under section 78 of the Police and Criminal Evidence Act. It is very much a matter, in our view, for the trial judge who hears these applications both to form his impression of the seriousness of what has occurred in the light of the explanations and account given of it and, secondly, to form a view of whether that seriousness requires him to act under section 78 . It is also important to make clear that in our view it is not this court's function, and we do not intend to do so, to lay down what should and what should not be disclosed in detail before an interview starts. But we find it necessary to make some comments on what occurred in this case. 21. The trial judge was clear that different issues arose in respect of, first of all, the non-disclosure of the false plates, and, secondly, the non-disclosure of the intention to question about other matters. So far as the false plates were concerned, the judge said this at page 4 of his ruling: “I find that he [the interviewing officer] did not mention that deliberately but that there was no deception in a pejorative sense so far as that matter is concerned. There is no duty, I find, upon an officer to disclose every fact known to the police before interview. Miss Glover frankly said that she could not say if she had known by disclosure that there was a false plate involved whether she would advise the defendant to make no comment; but, on the other hand, had she known of all the other allegations and further disclosure she would have so advised him. There is no duty on an investigating officer on the one hand to disclose every fact that he knows from the police enquiries. I find that in respect of the first interview he had disclosed the salient features about the allegations under count 3 to Miss Glover. That was a fair and reasonable disclosure in my judgment. Shortly after the false plates had been mentioned, indeed the interview was suspended for the defendant to consult with his solicitor. I do not find there is any prejudice to the defendant, and nothing unfair as a result of holding that information about the false plates back.” 22. We will return at the end of this judgment to the question of prejudice. We address ourselves at the moment to the question of unfairness and the implications of it. In our view the account of the offence that was set out in the pre-interview disclosure document made it plain beyond peradventure to the appellant and those advising him that he had a serious case to answer so far as the robbery at Iver Heath was concerned. We do not say that the information concerning the false plates in the context of that robbery added nothing -- of course it added a good deal -- but it certainly was not necessary to focus the minds of the appellant and his solicitor on the predicament in which he found himself. Were it to be otherwise it seems to us that judges would be placed in an impossible position of assessing how much pre-interview disclosure in respect of the offence the police must give. There are two aspects of that. First of all, it is a matter of judgement as to what should be disclosed and what should not; and secondly, we are not prepared to accept that it is necessarily wrong or misleading for the police to hold back some part of their case before they interview a suspect. Taken to its logical conclusion, the suggestion (which was not made by Mr Spencer, but might be the logical conclusion of his argument) that everything the police know has to be disclosed would, in our view, threaten seriously to handicap legitimate police enquiries. We therefore do not accept that it was wrong or unfair for the police to give the information that they gave in respect of the service station, or alternatively not to give the information about the false plates. We respectfully agree with the view the judge took of it, which we have set out. 23. The judge then turned to the question, which he accepted was the more serious issue of the further offences. He accepted that it was a tactic not to disclose the other allegations. At page 7 of his ruling, having said that he did not consider that the case was anything like Mason , the judge said: “The decision not to disclose the other allegations or offences was a tactic. I am satisfied that there was no deliberate misleading of Miss Glover either. He was no doubt content for her to think that there were no other offences. That was part of his tactic.” More generally with regard to that it is perhaps right to set out the judge's further ruling which is criticised before us by Mr Spencer. He said: “I am not satisfied on the evidence I have heard that there was a deliberate deception by the officer, but I am satisfied that the defendant and his solicitor were clearly not aware that there were no other offences to be the subject of questions. The officer, it seems to me, because of his knowledge of the case did not want the defendant or his legal representative to know of these further allegations. I am not satisfied, as I say, that he acted with impropriety. I am not satisfied that it would be right to label his behaviour as trickery. I find there may have been a misunderstanding. I accept that the solicitor wrote down nothing more. That suggests clearly her belief was that there was nothing more to be asked about further offences. That must have come from what conversation she had with the officer. Quite as to why she came to that conclusion, I am not satisfied it was by a deliberate deception, but I have to consider at the same time whether or not as a result of what happened there has been prejudice or a breach of the defendant's rights. So far as the officer not mentioning more than one offence at the first interview, I do not find there is any prejudice caused to him as a result of answering questions about that one allegation. It may be that he would not have said anything, but had he not said anything, then at his trial there would have to be a direction as to adverse inferences unless there was some other evidence to avoid such a direction being given.” 24. Although he does not expressly say so, the judge made a distinction between active lying intending to induce a confession on the one hand, which was what happened in Mason , and omission or failure to state the whole case in advance, which is what happened in this case. Although we would not wish to lay down any binding rule, that seems to us to be a useful guide. Mason is a very strong case in which this court said that the trial judge had only one option open to him in assessing the circumstances. This is not that sort of case. In our judgement, it was here for the trial judge to decide whether the conduct of the officer went beyond that permissible to the extent that he should exercise his discretion under section 78 . 25. Mr Spencer asks us to disagree with the judge's finding that “I am not satisfied, as I say, that he acted with impropriety. I am not satisfied it would be right to label his behaviour as trickery.” Two criticisms are made of that. The first is that the judge placed the burden of proof upon the defendant rather than upon the officer. We do not think he made any such decision. We think that he rightly approached it looking at the facts as a whole and deciding whether he could find (although he used the word “satisfied”) that there had been impropriety -- a matter that is as much a matter of judgement as it is a matter of fact. We do not consider that it was right to say that the officer acted with impropriety in this case. Other people might have dealt with the matter differently, but he explained that he was anxious to avoid a “no comment” interview and it was not necessary, in our judgement, in the context of interviewing the appellant about the offence at Iver Heath (which was what he was doing) to set out the whole of the further allegations that might be made. Secondly, we agree with the judge that it would not be right to label the officer's behaviour as “trickery”. He kept his counsel, but we do not think that he tricked the solicitor in the sense that appropriately causes that word to be used. But in any event it is not our judgement that matters, but whether the judge fell within the ambit of his discretion and judgement in forming the view that he did of the constable's behaviour. We are not satisfied that he exceeded the proper ambit of his discretion. 26. Further complaint is made about what the judge said about the problem of drawing adverse inferences under section 34, should Miss Glover's advice have been that there should be no comment. Mr Spencer suggested to us, as he suggested to the judge, that the introduction of that consideration forced the judge to a difficult or impossible balance between the two sorts of prejudice; prejudice arising from the content of the interview; and prejudice arising from not having given an interview at all. We do not consider that the judge approached the matter in so technical a way. What he said, and in our judgement he was entitled to say, was that it is not possible simply to say, as the argument before him might have been thought to be, that it is necessarily prejudicial to a defendant to be deprived, as the appellant claimed he had been deprived, of the opportunity to give a “no comment” interview. That was no doubt the case before section 34 came into operation; but it certainly does not follow that it is necessarily prejudicial that a person has been deprived of the opportunity of being advised by a solicitor to say nothing. We consider that that is all that the judge was saying. 27. As to whether there was prejudice in this case, that point does not in our judgement arise in view of the judge's ruling on the matters with which we have so far dealt. However, the prejudice in this case is not that the appellant made admissions that he would otherwise not have done, much less that he was led into making those admissions, as Mr Mason was, by being untruthfully told that the police had cast-iron evidence against him. What the appellant in this case did in the course of the interview was to tell certain lies -- lies that were not in any way adduced from him by reason of the matter of non-disclosure of which complaint is now made. The appellant obviously realised on the disclosure given that he faced a very serious case. It may have been that that caused him to lie. Although Mr Spencer rightly said that prejudice is not necessarily to be limited to making admissions, had we formed a view other than that which we do on the matters already dealt with in this judgment, we would at the very least have had a good deal of difficulty in accepting that it was relevant prejudice simply that a person had given an interview when otherwise he might not have, irrespective of what he said; and secondly, in the interview he did not make admissions but told lies -- admittedly lies used against him in the trial -- but not lies that had any logical connection with the non-disclosure of which complaint is made. 28. We have gone into this matter in some detail, not only out of deference to Mr Spencer's extremely helpful submissions, but also because it is an area which we understand this court has not previously entered. But we end by saying again that we do not seek to lay down rules for pre-interview disclosure. It is very much a matter for the judge to decide whether there has been relevant misleading of a defendant; but judges may wish to consider whether it is appropriate to make such findings in cases which, like this case, do not contain any suggestion by the police made to a solicitor or his client that the case against the defendant is significantly stronger than in fact it is. 29. For those reasons, therefore, we dismiss this appeal.

2004_02_26-194.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/597/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/597

087225542568022ea81feca6a2f86fd51a41a2e8f73a8523a8be5927eafae1fc

[2018] EWCA Crim 1867

EWCA_Crim_1867

crown_court

Neutral Citation No. [2018] EWCA Crim 1867 No: 201705297/C4 ‑ 201705326/C4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 19 July 2018 B e f o r e : MRS JUSTICE McCOWAN DBE SIR BRIAN KEITH R E G I N A v STEVEN LEE GORRY ROBERT MICHAEL COULSON 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 trans

Neutral Citation No. [2018] EWCA Crim 1867 No: 201705297/C4 ‑ 201705326/C4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 19 July 2018 B e f o r e : MRS JUSTICE McCOWAN DBE SIR BRIAN KEITH R E G I N A v STEVEN LEE GORRY ROBERT MICHAEL COULSON 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 K Seal appeared on behalf of the Appellant Gorry Mr N Jones appeared on behalf of the Appellant Coulson J U D G M E N T (As Approved) 1. SIR BRIAN KEITH: The conspiracies to which these appeals relate were highly sophisticated ones. They targeted people with cars at the high end of the market. Their homes were broken into and their car keys were taken. The keys were then used to steal their cars. In R v Bham [2013] EWCA Crim 10 , it was noted that burglaries of this kind had become sufficiently common for a name to be given to them. They are called "Hanoi" burglaries. But unlike the appellant in Bham , some of the burglaries in the present case had an additional feature. The burglars took other things as well, including in one case items of considerable sentimental value which were never recovered. 2. The appellants are Robert Coulson and Steven Gorry. We trust that we shall be forgiven for referring to them by their surnames from now on for convenience. They were tried at Cardiff Crown Court on an indictment which charged them with conspiracy to burgle dwelling ‑ houses and conspiracy to steal cars. They pleaded not guilty. They were convicted on both counts. Coulson was sentenced by Judge Lloyd ‑ Clarke to 9 years' imprisonment on each count, to be served concurrently with each other, and he was disqualified from driving for six ‑ and ‑ a ‑ half years. Gorry was sentenced to 7 years' imprisonment on each count, to be served concurrently with each other, and he was disqualified from driving for five ‑ and ‑ a ‑ half years. They now appeal against their sentences with the leave of the single judge. 3. Subject to one important reservation, three burglaries were committed in furtherance of these conspiracies. In the first, a house was broken into by the door to one of its garages being forced. Access was thereby gained into the house through the other garage. That happened while the occupants of the house were away on holiday. The keys to their Audi worth £10,000 were taken, as was the Audi itself which had been in the drive. Also taken were the spare keys to another Audi which the occupants had taken on holiday with them, £340 and $250 in cash, a handbag and its contents, a necklace and a Fabergé egg which had been a gift from the mother of one of the occupants. 4. In the second burglary, which occurred four days after the discovery of the first burglary, a house occupied by a 78 ‑ year ‑ old woman who lived there alone was broken into through doors at the back of the house. She had not been there at the time. The keys to her Volkswagen Jetta were taken, as well as the Jetta itself which had been in the drive. Also taken were a necklace with the presentation box in which it had been kept, a dish which had been presented to her late brother ‑ in ‑ law, and her late brother ‑ in ‑ law's MBE together with the presentation box in which it had been kept. 5. The third burglary took place during the night a couple of days later. The householder and her children had been in at the time asleep. When she got up the following morning, she discovered that the keys to her Mercedes convertible were missing from the bunch of keys which had been in the lock of the front door but were by then on the floor. The car was no longer in the drive where it had been. The value of the three cars was said to be no more than £50,000. 6. The prosecution’s case was that these three burglaries were evidence of the conspiracies, but not the limit of the acts done in furtherance of them. The judge accepted that. She was satisfied that many more vehicles had been stolen. That conclusion was based on texts sent by Miles Bishop - who was also charged with and convicted of these conspiracies, and who like Gorry was sentenced to 7 years' imprisonment on each, to be served concurrently with each other - to a man to whom he was trying to fence the cars which were stolen. In those texts, Bishop referred to other cars and said that he was getting 10 vehicles a week. On a later occasion, he had sent a text to Coulson telling him to “tell the boys no more until next week". The judge inferred that Bishop was being provided with so many vehicles that he was not able at that time to dispose of them all. Bishop's evidence at the trial had been that he had just been boasting and trying to drum up business, but the judge concluded that that was untrue. 7. The judge noted that the text related only to the theft of vehicles and their disposal. They might therefore have been stolen otherwise than in furtherance of the conspiracy to burgle. As she said, there was simply no way of knowing whether the other vehicles had been acquired as a result of burglary to obtain their keys, or whether only some of them had been or whether none of them had been. However, she was satisfied, given all the circumstances of the case, that at least some of those vehicles would have been acquired in that way. In our view, it was open to the judge to make all those findings, and to the extent that those findings are challenged on these appeals, we reject that contention. Moreover, this was not a case of the appellants being sentenced for burglaries which might have taken place in the future, as was submitted on behalf of Coulson in his counsel's advice. They were sentenced for being parties to conspiracies in which a number of burglaries in furtherance of those conspiracies had already taken place. 8. In her sentencing remarks, the judge said that the evidence was that Coulson would go out late at night in his car and he would collect Gorry. As we read her sentencing remarks, she inferred that they would then commit the burglaries together, that Gorry would then drive the stolen cars away followed by Coulson in his car and that Bishop would then organise their disposal. The judge was satisfied that Coulson was the ringleader, apparently accepting the prosecution’s case that Coulson appeared to have decided when and where to go to carry out the burglaries. As for Gorry, the prosecution did not suggest that he played a leading role in the conspiracies, and he may have been what the prosecution described as a "go ‑ between". The judge described Gorry and Bishop as the next most significant figures in the conspiracies, Gorry's role having been to provide support for Coulson when the burglaries were being committed. To be fair, the roles which the judge attributed to the principal players in the conspiracy has not really been challenged. 9. Both Coulson and Gorry had previous convictions. Coulson was 40 years old at the time of these conspiracies and had many convictions, mostly for offences of dishonesty and offences to do with driving. He had been sentenced to detention in a young offender institution when he was a teenager for non ‑ residential burglaries but since then he had not received a custodial sentence. He had been given community service in 1996 for another non ‑ residential burglary, though he had not had any convictions since 2003. The judge had been under the impression that he had previous convictions for non ‑ residential burglaries in 2008, 2011 and 2014, but we have been told that that was not correct. As for Gorry, he was 29 at the time of these conspiracies and he had convictions for a variety of offences. He had been to prison a number of times, notably for 5 years in 2008 for offences of robbery and having an imitation firearm with intent to commit an indictable offence, and for periods totalling three ‑ and ‑ a ‑ half years in 2012 for offences of aggravated vehicle taking, possessing an air weapon when prohibited from doing so, possessing an offensive weapon and dangerous driving. 10. When the judge came to determine the length of the sentences of imprisonment to be imposed, she bore two things in mind. First, there was the Definitive Guideline on Burglary Offences issued by the Sentencing Council. There were, she said, some factors indicating greater harm - the theft of items of considerable sentimental value and the presence of the householder in her property on one occasion - though against that there was one factor indicating lesser harm: limited damage or disturbance to property. In addition, there were a number of factors indicating higher culpability: a significant degree of planning; the burglars must have taken equipment for the burglaries to the scene; and the burglars were members of a group or gang. All that put the burglaries carried out in furtherance of the conspiracies within category 1, with a starting point of 3 years' imprisonment and a sentencing range of 2 to 6 years' imprisonment. The judge noted that there were present here a number of additional aggravating factors: the appellant's convictions; the burglaries were committed at night; and on one occasion there were children at home. 11. The second matter which the judge had in mind was what the Court of Appeal had said in Bham . That case had involved Hanoi burglaries, eight in all, in which the appellant had been involved in three, in furtherance of a conspiracy to commit burglary which was the charge the appellant faced. The burglaries had been well planned, a high level of expertise had been shown by the removal of tracker devices, the occupants of the properties had been at home at the time, in one case the occupier had confronted the burglar in his bedroom, and the total value of the vehicles which had been stolen in the burglaries in which the appellant was involved came to £170,000. The Court of Appeal thought that the appropriate starting point in that case, before any discount to reflect the appellant's plea of guilty, was 6 years' imprisonment. Judge Lloyd ‑ Clarke recognised that the Court of Appeal discourages the citing of authorities when there is an appropriate sentencing guideline, but she thought that taking Bham into account was appropriate in this case when the circumstances of the case did not neatly fit into the guideline. 12. We deal first with the sentences of imprisonment which the judge passed. It is said that the sentences passed by the judge were too long because they exceed (and in Coulson's case did so by a considerable margin) the top end of the sentencing range in the guideline and what the Court of Appeal had said was the appropriate starting point in Bham . We do not agree. Exceeding the guideline may well be appropriate in a particularly serious case, and the guideline, as the judge pointed out, related to a single offence of burglary. Moreover, Bham was in many respects a very different case. Bham himself had no previous convictions. The judge in that case had not been able to tell which of the various conspirators had been the instigator or ringleader. The judge could only sentence the defendants on the extent of their involvement in the particular burglaries. In any event, there had not been a challenge to the judge's presumed starting point of 7 years' imprisonment, the sole issue having been whether the judge should have made a greater distinction in the sentence between the appellant and the other conspirators. 13. In the circumstances, we do not think that the judge's starting point for Coulson was too long. As the ringleader, with previous convictions, albeit not since 2003, he could expect sentences well in excess of the 6 years thought appropriate in Bham for someone who had no previous convictions and had to be sentenced on the basis of his participation in three burglaries. Nor do we think that the judge's starting point for Gorry was too long. As someone who had served long sentences in the recent past, he could also expect a sentence in excess of the 6 years' imprisonment thought appropriate in Bham for someone with no previous convictions. The difference in the sentences passed on Coulson and Gorry sufficiently reflected the lesser role which Gorry had played. 14. We have not overlooked the point made on Gorry's behalf that his previous convictions did not include convictions for the offence of burglary, and that he was said to have had personal mitigation which the judge did not take into account, namely his partner had recently had a miscarriage, and he would not be around to help with the care of his daughter who lived with his mother. But we do not think that those factors were sufficiently compelling to affect the outcome of the sentencing exercise which the judge had to perform. 15. There is, though, one matter which needs to be mentioned before we turn to the appellants’ disqualification from driving. The maximum sentence which the judge could have passed on both appellants for the offence of conspiracy to steal was 7 years' imprisonment. That is the combined effect of section 7 of the Theft Act 1968 and section 3(3) of the Criminal Law Act 1977 . Moreover, the maximum sentence for an offence is reserved for the most serious examples of that offence, and we do not think that the maximum sentence was called for in this case. Coulson's sentence for the offence of conspiring to steal should, we think, have been 6 years' imprisonment, and Gorry's sentence for that offence should have been 5 years' imprisonment. 16. We turn to the orders disqualifying the appellants from driving. Only Coulson is appealing against that order, but for reasons which will become apparent in a moment, we propose to treat Gorry as appealing against the order as well. The judge did not identify the power she was exercising, but it looks as if she was purporting to disqualify the appellants pursuant to section 147(3) of the Powers of Criminal Courts (Sentencing) Act 2000 on the basis that a motor vehicle had been used for the purpose of facilitating the commission of the offences in question, rather than under the general power of disqualification under section 146. In fact, she had no power to disqualify the appellants under section 147(3) . The appellants could not be disqualified under that provision on their conviction for the types of conspiracy of which they were convicted. The only type of conspiracy which a defendant can be disqualified under section 147(3) on conviction for is one in which the vehicle was used directly in the formation of the conspiracy itself. The mere fact that vehicles were used in acts performed in furtherance of a conspiracy is not sufficient to engage the powers in section 147 : see R v Riley (1984) 5 Cr App R(S) 335, a case dealing with a similarly drafted provision in the statutory predecessor of section 147(3) , namely section 44(2) of the Powers of Criminal Courts (Sentencing) Act 1973. 17. For these reasons, we quash the sentences of 9 years' imprisonment on Coulson and 7 years' imprisonment on Gorry on count 2 of the indictment for the offence of conspiracy to steal, we substitute for those sentences one of 6 years' imprisonment in the case of Coulson and 5 years' imprisonment in the case of Gorry, to be served concurrently with the sentences imposed for the offence of conspiracy to commit burglary, and we quash the orders of disqualification from driving made against each of the appellants. To that limited extent only, these appeals must be allowed. 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

2018_07_19-4360.xml

sentence

https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/1867/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/1867

2896861fc3e89cdb3c09f2e85b6631d4d4acc64323fc04e91e358cf517af670c

[2011] EWCA Crim 1824

EWCA_Crim_1824

crown_court

No. 2010/06084/D4 Neutral Citation Number: [2011] EWCA Crim 1824 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday 28 June 2011 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) MR JUSTICE OWEN and MR JUSTICE WALKER - - - - - - - - - - - - - - - R E G I N A - v - Q - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4 T

No. 2010/06084/D4 Neutral Citation Number: [2011] EWCA Crim 1824 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday 28 June 2011 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) MR JUSTICE OWEN and MR JUSTICE WALKER - - - - - - - - - - - - - - - R E G I N A - v - Q - - - - - - - - - - - - - - - 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) - - - - - - - - - - - - - - - Miss E Goodall appeared on behalf of the Appellant Mr C Stimpson appeared on behalf of the Crown - - - - - - - - - - - - - - - J U D G M E N T Tuesday 28 June 2011 THE LORD CHIEF JUSTICE: I shall ask Mr Justice Owen to give the judgment of the court. MR JUSTICE OWEN: 1. On 14 October 2010, in the Crown Court at Isleworth, before His Honour Judge Johnson and a jury, the appellant (now 28 years of age) was convicted of assault occasioning actual bodily harm. He was sentenced to three years nine months imprisonment. He appeals against both conviction and sentence with the leave of the single judge. 2. The victim is 6 years of age. In consequence, the provisions of section 39 of the Children and Young Persons Act 1933 are engaged. We assume that the appropriate order protecting anonymity was made in the Crown Court, but for the avoidance of doubt we made such an order at the outset of this hearing. It is for that reason that we will refer to the protagonists by their initials. 3. The complainant JE was born on 20 May 2005. He was therefore 4 years of age at the date of the events in issue. He lived at a flat in Shepherds Bush with his mother (RE) and his siblings (AE, then aged 5, and ME, aged 1). The appellant was in a relationship with RE and would regularly spend time with the family. 4. On 22 June 2009 the appellant stayed the night at the address, as did CE (the 16 year old sister of RE). It was the prosecution case that on the morning of 23 June the appellant punished JE for having defecated in his pants by repeatedly slapping and kicking him. That afternoon a neighbour (KY) and her foster sister (IE) visited the flat, saw the injuries to JE and were sufficiently concerned to remove the child whom they took to KY's home. The matter was then reported to Childline, who in turn notified the police. 5. The police went to KY's address and saw the injuries to JE. His older sister AE gave an account of what had occurred. JE was reluctant to speak to the police but said that when the appellant hit him he had fallen to the floor and cut his head. 6. The following morning, 24 June 2009, the boy was examined by a consultant paediatrician, Dr Abrahamson. He recorded extensive bruising and abrasions to both sides of the face, upper neck and both ears. Such injuries were suggestive of slapping as a possible causative mechanism. He also found innumerable pale, circular bruises on the child's back extending from the lower leg to just above the buttock line. 7. The appellant was arrested and interviewed. He submitted a prepared statement in which he described seeing the child in the bathroom where he had "pooed" himself. He had sent him back to bed. He denied hurting him or assaulting him in any way. 8. At trial both the child and his sister AE gave evidence. Their ABE videos were played to the jury and stood as their evidence in chief. Both were then cross-examined via video-link. In his ABE interview JE had stated that the appellant had slapped him. He demonstrated being hit on the face and legs, but was unable to say when or why that had happened. He described being kicked "loads" and being stamped on. Nothing like this had happened to him before. His mummy was asleep downstairs when this had happened and his sister AE was also downstairs. During the interview he asked to see his sister and then had to be coaxed into sitting up and continuing to answer questions. 9. In cross-examination JE maintained his initial account that the appellant had slapped and kicked him. He provided some additional detail in his evidence. 10. In her ABE interview his sister had said that it was when she was watching television with CE downstairs that she had heard the appellant shouting and her brother receiving lots of slaps in the bathroom because he had "pooed" his pants. In cross-examination she said that her brother was quite naughty and sometimes told fibs. 11. The third witness in the flat at the material time was the child's aunt, CE, who was then 16 years of age. It is in relation to her evidence that the appellant's first ground of appeal against conviction arises. She was interviewed by the police on 24 June 2009. The interview was video recorded. However, on 2 February 2010 she made a withdrawal statement indicating that she did not want to give evidence at trial. The statement was in the following terms: "I would like to withdraw my statement that I made to the police on 24 June. Everything in my statement is true. The reason I would like to withdraw my statement is because I felt pressured at the time to make the statement by [IE] and [KY]. The reason being that they told me that [JE] had a lot of injuries on him, which I never saw. I suffer from nervous breakdowns, diabetes, anaemia and cystic fibrosis. This is all very stressful to me. I do not want to attend court and give evidence. I am very close to my sister [RE] and have not been able to see or speak to her, which is very upsetting. I would like to add that [RE] told me that [JE] did not have any injuries to him when he left the flat on 24 June .... I believe my sister." 12. On 21 September 2010 the prosecution applied for a witness summons to compel CE's attendance at trial. She duly attended at court on 5 and 6 October. She was not reached on 5 October, but on that day the prosecution made an oral application for special measures in relation to her evidence. The application was granted on the following day when she was called. 13. In accordance with the special measures direction, her video interview stood as her evidence in chief. In a long answer, which was uninterrupted by the interviewing officer, she said: ".... I could hear screaming from upstairs. I could tell it was [JE]. It was -- I could hear slapping. It weren't a normal slap, probably constant smacking and like non-stop and I hear him say: 'What is this in your pants?' He said: 'It's pooh, [J], it's pooh'. So I was sat there, I said to myself, pooh, [J] don't pooh himself ever since he was born". 14. Shortly after the commencement of cross-examination CE said that she did not want to answer any further questions, that she felt pressurised. She went on to say that she had been told by the officer in the case, Detective Sergeant Lisa Day, that if she did not want to answer any more questions she should say so to the court. It emerged that during the short adjournment she had seen DS Day, and had told her that she did not want to answer questions. According to a witness statement from the officer, she told CE that she could not force her to answer questions. 15. In any event, the learned judge then intervened and asked the jury to retire. He addressed the witness. She repeated that she did not want to answer any more questions. The following exchange then took place: "JUDGE JOHNSON: Miss [E], will you please listen to me. You are a witness and a witness has obligations. That means that you do not have a choice as to whether you answer questions, you do have to. A. Yes, I do have a choice, my choice, my rights, my human rights. JUDGE JOHNSON: Miss [E], you do not have a choice and if you do not answer the questions then I have the power to punish you. Do you understand that? Now, I am not going to force you to do it right now, I am going to give you a little time to think about it. A. I am going to be punished for something I do not want to do. JUDGE JOHNSON: That is the law. A. That isn't the law. JUDGE JOHNSON: And I apply the law. So you can have five minutes now to think about the future, but I want you to be aware that if you fail to answer reasonable questions that Miss Goodall wishes to put to you, you are at risk of punishment and that punishment can be serious. So I am going to turn off the screen now, I am going to ask you to stay with the usher and think about your future for the next five minutes." 16. Miss Goodall, who appeared for the appellant at trial as before this court, then raised the question of whether the witness ought to have legal advice to explain the nature of any punishment to her. The learned judge indicated that he thought that that was premature, saying: "Well, I think this is all a little bit further down the line, Miss Goodall. I simply want her to apply her mind to this knowing that there are sanctions available and if she fails to do this, I am reluctant to start making enquiries of her as to why she is reluctant to do this. I do not know if either of you have any views on that?" Miss Goodall then drew the attention of the learned judge to the withdrawal statement made in February 2010, to which we have already referred. After further discussion he adhered to his view that it was not necessary for the witness to receive legal advice at that stage. He said: "Well, everyone knows that I cannot physically make her answer questions. She is a 17 year old girl. She knows that I cannot force her and what I have said is that she does not have a choice, she has to answer them and there are serious consequences if she does not. I am not going to deal with the consequences before she is represented." 17. The court reconvened and cross-examination continued. The witness answered many questions, "I don't know", but she gave substantive answers to others. The cross-examination was robust. It was put to her in terms that the injuries sustained by JE were inflicted after he left his mother's flat. At one stage in the cross-examination the witness became distressed. At another point Miss Goodall put to her part of the contents of the withdrawal statement that she had made on 2 February. She also put to her that she had not been prepared to come to court voluntarily and had attended in response to a witness summons. In re-examination she answered a number of questions, but when invited to comment as to whether or not passages from her video interview in which she described what she had heard in the flat on the night in question were true, she repeatedly said that she did not know. 18. At a later stage in the trial, CE's father was called by the defence. He gave evidence to the effect that CE had told him that she had been threatened by IE and KY and had lied to the police in her original video interview. He had gone with her to Earls Court Police Station both in July 2009 and on 2 February 2010 when she had made her withdrawal statement. 19. At the conclusion of CE's evidence Miss Goodall applied for its exclusion, pursuant to section 28 of the Police and Criminal Evidence Act 1984 ; alternatively, for the discharge of the jury. The application was refused. It is that refusal that is the subject of the first ground of appeal which is in the following terms: "(i) The learned judge's treatment of the witness [CE] amounted to a material irregularity. (ii) The learned judge erred in law by failing to exclude the evidence of [CE]. (iii) The learned judge erred in law by failing to discharge the jury. (iv) The learned judge erred in law by admitting the withdrawal statement of [CE]." 20. There were a number of strands to the argument advanced by Miss Goodall in support of the submission that the learned judge should have excluded the evidence of CE, or, alternatively, should have discharged the jury, and that his failure to take either course rendered the verdict unsafe. First, it is submitted that, prior to the calling of CE, the prosecution did not disclose to the defence any express reluctance upon her part to answer questions asked of her. Miss Goodall submits that such disclosure would have permitted an application or enquiry to be made prior to the calling of the witness and thereby militating against the prejudice that she asserts ultimately occurred. 21. There are two points to be made. First, it is far from unusual for a witness to be reluctant to give evidence, particularly in a case such as this where there are plainly conflicting loyalties within the family. But in the event, CE appeared in response to the witness summons, both on 5 October and on the following day, the day on which she gave evidence. Secondly, the defence was well aware of her reluctance to attend as they knew about the withdrawal statement, and they called her father to give evidence about it. They also knew that a witness summons had been issued to compel her attendance. In our judgment it was not incumbent on the prosecution to make any further disclosure as to her reluctance to give evidence in advance of her being called. 22. Secondly, Miss Goodall contends that the learned judge's treatment of the witness when she indicated that she was not prepared to answer any further questions amounted to a material irregularity in the trial process. She submits that he gave an erroneous warning to the witness by his reference to "serious punishment" which "would give rise to the spectre of custody" when, in fact, there is no power to impose a sentence of imprisonment for a witness under 18 who is found to be in contempt: see R v Byas (1995) 16 Cr App R(S) 869. She further argued that a witness who is liable to a finding of contempt ought to be afforded the protection of legal representation. 23. In our judgment there was nothing irregular in the manner in which the learned judge dealt with the situation that arose in the course of the cross-examination of CE. He was faced with a situation that arises not infrequently and requires a firm response. It will usually be necessary for the witness to be told that, as a witness in a court of law, he or she is under an obligation to answer questions and does not have a choice in the matter. That is precisely what the learned judge made clear to CE. Furthermore, and having had the opportunity to make an assessment of her from the video interview, in her evidence in cross-examination before the problem arose, and in her feisty response to being told that she had no choice in the matter, he was fully entitled to reinforce his direction to her by pointing out that he had power to punish her if she refused to answer questions. In our judgment the learned judge handled the situation with the requisite blend of sensitivity and fairness. He gave her the opportunity to reflect on what he had said before continuing. His approach cannot be faulted. 24. It is further submitted that the condition and attitude of the witness prohibited the defence from eliciting comprehensive and appropriate responses in cross-examination and that in consequence she was not available for cross-examination in any effective sense. However, it is clear from the transcript that Miss Goodall was able to put the appellant's case forcefully. Furthermore, she elicited a number of answers that provided the basis for submissions to the jury as to the reliance that could be placed upon CE's evidence and that she had been subjected to pressure to fabricate an account to the police. In particular, she accepted in the course of cross-examination that KY and IE had put pressure on her to speak to the police; she accepted that they wanted her to blame the appellant for what had happened and that IE had accompanied her to the police station. She further accepted in cross-examination that she did not want to make the initial complaint or statement, that she did not know if JE's injuries were caused in the flat, and she confirmed that she had not attended court voluntarily and had had to be the subject of a witness summons. In short, the contention that she was not available for cross-examination in any effective sense is, in our judgment, simply not borne out by the transcript of her evidence. 25. Miss Goodall also criticises re-examination by prosecuting counsel. She asserts that it went beyond that permitted by the rules. Her complaint is that it amounted to cross-examination; prosecuting counsel put passages from the video interview to the witness and asked whether or not they were true. 26. Whilst we see some force in the criticism, as it could be argued that prosecuting counsel was simply taking the opportunity to reinforce CE's evidence by repeating what she had said in the video interview, no objection was taken at the time. In our judgment, when her evidence is viewed as a whole, the manner in which the questions were put cannot have caused any real prejudice to the appellant. 27. The final point advanced with regard to the evidence of CE is that the learned judge erred in permitting CE's withdrawal statement to be adduced through the evidence of her father and in the evidence in chief of DC Griffin. 28. However, that submission fails to take account of the fact that it was counsel for the defence who had introduced the evidence as to the withdrawal statement in cross-examination of CE, and then called evidence from her father as to the circumstances in which the retraction statement had come to be made. In cross-examination counsel had been selective in putting the statement to CE. The passage that she put to her did not include the statement that everything in her original evidence was true. The thrust of Miss Goodall's complaint, as it was developed in the course of her submissions, was not so much that evidence as to the full content of the statement went before the jury, but the timing at which it occurred. 29. In our judgment it cannot be argued that the fact that such material went before the jury rendered the verdict unsafe. 30. It follows from that analysis of the specific criticisms made of the manner in which the learned judge handled the evidence of CE, that there is no basis for the submission that he ought to have acceded to the application, either to direct the jury to exclude such evidence from their consideration of the case against the appellant or to have discharged the jury. Furthermore, his direction to the jury as to their approach to her evidence was conspicuously fair and careful. He reminded them of her change of heart, her reluctance to give evidence, and the fact that she had not confirmed her original evidence "with any degree of certainty". He concluded: ".... it follows that as a matter of common sense you should approach her evidence with particular care. If you thought the reason she gave evidence in the way she did was she is not being truthful, for whatever reason, in her taped interview, then clearly the whole of her evidence is suspect and of no value. Likewise, if you accept the evidence of her father, that [CE] had been threatened and had admitted to him that as a result she had given a false statement, not only does this make her statement worthless but it also calls into serious doubt the testimony of [IE]. If you think that it might even be unsafe to rely on her account, taking into account all the evidence you have heard about it, reject her evidence as a whole, ignore it and continue your deliberations by examining the other evidence in the case. If, having given it that careful scrutiny, you are sure that on some or all matters she has been, even at one stage, truthful and accurate, then, bearing in mind the warning that I have given you, you may rely on her evidence." That is a direction that could not be improved upon. It follows that we find no substance in the first ground of appeal. 31. By ground 2 the appellant contends that the learned judge erred in law by admitting evidence of good character of the prosecution witness IE and the non-witness KY; and secondly, that he failed to give an adequate direction in his summing-up upon the evidence of character that had been adduced. 32. The context in which the point arises is that the defence case was conducted upon the explicit basis that the two young women who removed JE from his mother's flat and reported his injuries to Childline, were themselves responsible for the injuries that he sustained. In cross-examination of IE it was put to her that KY had been in care as a result of assaulting her own sister when she (KY) was 14 or 15, and that KY had slapped IE's children when looking after them. They were allegations repeated by the appellant when he gave evidence. It was further put to IE that she was responsible for repeatedly dislocating her own daughter's elbow and had allowed her access to sleeping pills. 33. Against that background the learned judge properly gave leave for evidence to be adduced as to the appellant's criminal record, which included convictions for assaults on police, minor public order offences and offences of dishonesty. The evidence was given by the officer in the case, DS Day, who also gave evidence that neither KY nor IE had any convictions, although KY had been reprimanded for a public order offence when aged 15, and cautioned for criminal damage when she was 17. 34. It is submitted on behalf of the appellant that the learned judge erred in permitting such evidence to be adduced. In this context Miss Goodall invited our attention to R v Hamilton (TLR 25.07.98). That decision was referred to in R v Mazhar Ali [2006] EWCA Crim 1976 , in which, in giving the judgment of the court, Maurice Kay LJ said: "34. We accept that as a matter of general principle and historic doctrine, whereas the good character of a defendant is relevant and admissible, the good character of a prosecution witness is not -- a position described as 'anomalous' as long ago as 1865, in the case of Rowton . That doctrine was more recently referred to by Buxton LJ in R v Errol Hamilton .... Nevertheless there are cases in which the good character of a prosecution witness may become relevant and admissible, not least because it may go to an issue in the case. ...." 35. It had been put to IE not only that she and/or KY were responsible for the injuries to JE, but that they had also committed criminal acts against children in the past. In those circumstances we are entirely satisfied that the evidence that such allegations had not resulted in criminal convictions was both relevant and admissible. It bore on a central issue in the case. 36. The second strand of the argument with regard to ground 2 is that the learned judge failed adequately to sum up the character evidence. In our judgment the argument is unsustainable. The learned judge gave an impeccable direction; if anything it was favourable to the appellant. He explained to the jury why they had heard about the appellant's convictions. He said: ".... let me explain how this evidence is relevant to your consideration in this case. When the case was being advanced for the defence it was suggested that [JE] was actually harmed once he had left .... his mother's address. Those who were with him were [IE] and [KY] and the defence put it in fairly robust terms to [IE] that if she herself had not caused these injuries alone or with another then she was at least complicit in the assault, the other main candidate for the offence being [KY]. In fairness to those women it would be wrong for you to be let in ignorance about the character of the man making these accusations against these women. You are entitled to have regard to the character of this defendant as revealed by his convictions when deciding what the truth is. I have said that you may have regard to his character; whether and to what extent it assists you, you must judge." He went on to emphasise to the jury that bad character evidence was simply part of the evidence in the case and that its importance in the case should not be over-emphasised. He also explained why the jury had heard evidence about the women's records, or lack of them, in the following terms: "The reason you have heard about the women's records or lack of them was so you could know that while these allegations were made they did not result in convictions or any other remedy in the criminal process, save for those matters you heard concerning [KY] -- that is the public order offence and the criminal damage when she was a teenager. You must assess what evidence of bad character against these women you accept. If you do accept some or all of it, it does not prove that one or both was [JE's] assailant but it is there for you to assess when deciding whether it was indeed [the appellant] who was [JE's] assailant." 37. In our judgment this ground of appeal is also without substance. It follows that the appeal against conviction is dismissed. 38. We turn to the appeal against sentence. It is submitted that it is manifestly excessive and that it fell outside the sentencing bracket indicated in the Overarching Principle: Assaults on Children and Cruelty to a Child. 39. Miss Goodall invited our attention to the suggested bracket of 26 weeks to two years custody for assault occasioning actual bodily harm. However, in passing sentence the learned judge identified a number of serious aggravating features. First, the appellant stood in loco parentis to the child. Secondly, he rightly regarded the assault as an abuse of power; JE was particularly vulnerable because of his very young age. Thirdly, he rejected the submission that the injuries sustained by JE were not serious. In the course of his sentencing observations he said: "One just has to look at the photographs of the number of bruises sustained by [JE] to realise that these were serious injuries." He added, not surprisingly in the circumstances: ".... these bruises may clear up, but what harm remains in that child no one will ever know." We, too, have seen the photographs. That is an observation with which we are in full agreement. The learned judge concluded that the assault was "at the very upper end of the scale". Fourth, he was satisfied that the appellant had subjected the child to a sustained beating, evidenced by the large number of bruises and scratches over his face, head and ears, and the injuries to his back. The assault could so easily have resulted in very much more serious injuries. 40. We take account of the relatively young age of the appellant, and of the fact that there were no comparable convictions in his record. But there were no other mitigating features. In the light of the aggravating features to which we have referred, the sentence of three years and nine months imprisonment, although severe, cannot, in our judgment, be said to have been manifestly excessive. 41. Accordingly, the appeal against sentence is also dismissed.

2011_06_28-2774.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/1824/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/1824

6d67a5e6a791b389ca90522e0ea864305c07b99c14c4339cc276bf15f878aa62

[2005] EWCA Crim 1813

EWCA_Crim_1813

crown_court

No: 200501210/B3-200501250/D4-200501977/B4-200501107/B1 Neutral Citation Number: [2005] EWCA Crim 1813 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 29th June 2005 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE HOLLAND MR JUSTICE RICHARDS - - - - - - - R E G I N A -v- KARL ADRIAN EDWARDS STEPHEN JOHN FYSH JAMES EDWARD DUGGAN NAVEED NASIR CHOHAN - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave

No: 200501210/B3-200501250/D4-200501977/B4-200501107/B1 Neutral Citation Number: [2005] EWCA Crim 1813 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 29th June 2005 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE HOLLAND MR JUSTICE RICHARDS - - - - - - - R E G I N A -v- KARL ADRIAN EDWARDS STEPHEN JOHN FYSH JAMES EDWARD DUGGAN NAVEED NASIR CHOHAN - - - - - - - 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 F ARSHAD appeared on behalf of the APPLICANT EDWARDS MR J LYNN appeared on behalf of the APPELLANT FYSH MR J MCCRINDELL appeared on behalf of the APPLICANT DUGGAN MR J SAMUELS appeared on behalf of the APPLICANT CHOHAN MR B HOULDER & MR A BASSANO appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: These four cases have been listed and heard together because they provide further examples to add to those previously considered by this Court in R v Hanson & Ors [2005] EWCA Crim 824 and R v Bovell & Dowds [2005] EWCA Crim 1091 of the admissibility of bad character under sections 98 to 113 of the Criminal Justice Act 2003 . 2. Because of grounds which have been advanced in the cases of Fysh and Duggan in particular, in relation to alleged noncompliance in the respective summings-up with observations made by this Court in paragraph 18 of Hanson , it is convenient, before turning to the individual cases, to make some general observations in relation to that part of that judgment. 3. The guidance proffered in paragraph 18 of Hanson as to what a summing-up should contain was, as is apparent from the last sentence of the paragraph, not intended to provide a blueprint, departure from which will result in the quashing of a conviction. What the summing-up must contain is a clear warning to the jury against placing undue reliance on previous convictions, which cannot, by themselves, prove guilt. It should be explained why the jury has heard the evidence and the ways in which it is relevant to and may help their decision, bearing in mind that relevance will depend primarily, though not always exclusively, on the gateway in section 101(1) of the Criminal Justice Act 2003 , through which the evidence has been admitted. For example, some evidence admitted through gateway (g), because of an attack on another person's character, may be relevant or irrelevant to propensity, so as to require a direction on this aspect. Provided the judge gives such a clear warning, explanation and guidance as to use, the terms in which he or she does so can properly differ. There is no rigid formula to be adhered to. That said, there is, in the case of Chohan, a summing-up by Judge Mort which seems to us to be almost impeccable and which could serve as a model in many cases where evidence of bad character is admitted. We shall rehearse the relevant passage in that summing-up when dealing with Chohan's application. 4. We turn, first, to the case of Edwards. On 24th February 2005, at Manchester Crown Court, following a trial before Mr Recorder Finestein, this applicant was convicted on two counts of common assault, on counts 1 and 2, and of having a bladed article in a public place on count 4. He was acquitted on count 3, of having an offensive weapon. He was sentenced to 2 months' imprisonment on each of the counts of common assault consecutively to each other, and to a further 8 months consecutively for possession of a bladed article. His total sentence was therefore 12 months' imprisonment, and an order was made under section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 for forfeiture of the knife. His applications for leave to appeal against conviction and sentence were referred to the Full Court by the Registrar. 5. The facts were these. On 30th April 2004 two police officers stopped the applicant, who was driving a motor vehicle along Queen's Road, Manchester. They asked to see his licence and searched his car. They discovered a bottle of ammonia, which gave rise to count 3, in relation to which, as we have said, he was acquitted. The officers sought to arrest the applicant. A scuffle ensued. The officers and the applicant sustained minor injuries. The applicant was taken to a police station where he voluntarily handed over a lock-knife, which gave rise to count 4. It was the prosecution case that the applicant had assaulted the officers while they were lawfully seeking to arrest him and that he had no good reason for being in possession of the lock- knife. It was the defence case that the police officers had carried out an unprovoked assault on the applicant. He claimed to have a good reason for being in possession of the lock-knife, namely, he had used it on a fishing trip a couple of days previously, and had then completely forgotten about it. 6. The first of the officers to give evidence, Police Constable Smithwaite, described the applicant swearing at him and being generally obstructive when he, the officer, reached his car. There was a struggle inside the car as the other officer, Constable Bryson, went to get the keys. Then there was a struggle outside the car, during which the officers restrained the applicant by getting him onto the floor. The officer admitted in cross-examination that, during this altercation, he had himself sworn at a passerby. Constable Bryson gave a similar account of the aggressive and unco-operative nature of the applicant's behaviour. A further officer described the knife as being located, not as the applicant claimed on his belt, but down the front of his trousers inside his jeans. 7. In interview, the applicant essentially said nothing in response to questions; he read a prepared statement, denying the offences and saying he had been mistreated by the police. 8. At the outset of the trial, the prosecution sought to adduce evidence of the applicant's previous convictions for robbery and dwelling-house burglary in 1992 in relation to the issue of credibility pursuant to section 101(1)(d) . The Recorder ruled, at that stage, that, due to the age of the offences, it would not be right to allow that material to go before the jury. However, during the course of the prosecution case, the defence mounted a severe attack on the prosecution witnesses. Accordingly, the prosecution case made a further application to introduce evidence of bad character, under gateway (g) because of that attack. 9. On behalf of the defence, Miss Arshad accepted that the defendant had attacked the character of the two prosecution witnesses. But she invited the Recorder to exclude the evidence under section 101(3) on the basis that, by reason of the length of time, it would be unjust for the evidence to be admitted, bearing in mind that the offences were 13 years old; and their prejudicial effect, it was said, would outweigh their probative value. The Recorder ruled that, in view of the sustained attack on the character of the police, the jury was entitled to know about the 1992 conviction and he would direct the jury to give such weight to them as they saw fit. 10. The applicant gave evidence. He said that he was gratuitously and offensively treated by the police, whereas he had not been guilty of any bad conduct towards them. They had assaulted him and had caused him pain in the manner they applied and pulled down the handcuffs. Constable Smithwaite had told a passerby to "fuck off". He said the lock-knife was not his. Two days earlier it had been handed to him by a friend, on a fishing expedition to cut the lines. He had hooked the knife onto his jeans (the ones which he was wearing at the time of his arrest). It had been there for two days, and he had simply forgotten about it. He called his friend to confirm that he was the source of the knife. A young woman also gave evidence of the manner of application of the handcuffs by the police officers. 11. In passing sentence, the Recorder said that the applicant had behaved in a wholly aggressive way in assaulting the police, acting in their duty. Fortunately, the injuries were not serious, but the offences were so serious that only a custodial sentence was appropriate. 12. The appellant, who is 34 years of age, has a large number of previous convictions since 1991, mainly for driving and theft related offences. But, in 1992, as we have indicated, he was convicted of robbery and burglary from a dwelling and also assault occasioning actual bodily harm. 13. The submission which is made to this Court by Miss Arshad, on behalf of the appellant, is confined to a single ground of appeal, namely, that the previous 1992 convictions ought not to have gone before the jury. She submits that, when he ruled against the first application to admit that evidence under gateway (d), the Recorder had expressed the view that to admit that evidence would have so adverse an effect on the fairness of the proceedings that it ought not to be admitted at that stage. It is apparent from the transcript of the first ruling on 21st February, in Volume 1A, that the Recorder, having referred to the offences being committed 13 years ago, said at page 2F: "...to allow that in at this stage would seem to be on balance to have such an adverse effect on the fairness of the proceedings that the court ought not to admit it..." He went on to say: "...I have to balance the type of conviction that would go before the jury as against the allegation that the defendant faces, and in the context of this case, there are offensive weapons, be it CS gas or a knife and incidents of effectively common assault on police officers, and to allow that in for these offences it seems to me would have an adverse effect on the fairness of the proceedings, but more fundamental as I have indicated, I think it is the age of the conviction which plainly must be taken into account, and, having regard to the balancing act that I have to do,... I think it is perfectly clear on the authorities that these should not be allowed in, and so I do not allow them in." That conclusion as to the impact of the 1992 matters on the fairness of the proceedings, Miss Arshad submits, was a finding which bound the Recorder when the later application was made, following the attack upon the prosecution witnesses. 14. As it seems to us, the difficulty with that submission is that the fairness of the proceedings and the impact on it of admitting the evidence, has to be gauged at the time at which the application is made and by reference to the gateway under which admissibility is sought. At the initial stage there had been no attack on the character of the prosecution witnesses. In that regard, when dealing with the matter at the time of the second application, the Recorder, as appears from Volume 1 of the transcript, at page 21F said this: "I have come to the conclusion that there is a difference now between the prosecution arguments, the difference being a sustained attack upon the character of the police, and it seems to me that, even though these convictions are of a serious nature and of some age, the jury are entitled to know about this conviction, that I think they would be misled seriously if they did not know of this matter." In our judgment, that was a conclusion which was not only open to the Recorder, it is one which he was, in the circumstances as we have described them, right to reach. 15. The second submission made by Miss Arshad is that, in admitting the evidence under gateway (g) because of its relevance to credibility and permitting the jury to know of a conviction in relation to the defendant's capacity to tell the truth, the learned Recorder adopted the wrong approach. He ought, Miss Arshad submits, to have admitted, rather than this conviction for a very serious offence of dishonesty, different convictions to be found in the applicant's record in more recent years. 16. The difficulty with that submission, as it seems to us, is that the convictions in more recent years included four convictions for offences of violence. Had the Recorder admitted those, it might well have been said that they had a significantly prejudicial effect against the defendant when he was facing charges of using violence: an impact which far outweighed the probative value of those offences. It is therefore, in our view, an impossible contention that the learned Recorder was wrong to admit an offence of dishonesty, but not to admit offences of violence. In those circumstances, there is, as it seems to us, no arguable ground of appeal in relation to conviction so far as Edward's is concerned. That application is refused. 17. In relation to sentence, Miss Arshad submits, first, that, bearing in mind the improvement in recent years in the defendant's behaviour, compared with more distant features of his criminal past, it was particularly incumbent upon the Recorder, before sentencing, to obtain a pre-sentence report. This he declined to do. Secondly, Miss Arshad submits, by reference to the guideline case of R v Poulton & Celaire [2003] 1 Cr App R(S) 610, a sentence of 8 months' imprisonment, in relation to the bladed article, was significantly too long. Thirdly, she submits that it was wrong in principle to impose consecutive sentences for the assaults on the two police officers which essentially arose out of the same incident. 18. Each of those three points, in our judgment, is well made. Having regard to their combined impact, we indicated that leave to appeal against sentence would be granted, and we now quash the total sentence of 12 months imposed by the learned Recorder, and substitute for it a total sentence of 9 months, made up as follows: for each of the offences of common assault, the sentence will be 3 months, but those sentences will run concurrently with each other. For the offence in relation to the bladed article, the sentence will be 6 months consecutively to the 3 months on the other two counts. The appeal against sentence is therefore allowed as we have indicated. 19. We turn to the case of Fysh. On 9th February 2005 at Norwich Crown Court, following a trial before His Honour Judge Worsley, this appellant was convicted of having an offensive weapon, on count 2, and common assault on count 3. On 23rd March he was sentenced to 9 months on count 2 and 5 month concurrently on count 3. The total sentence was therefore 9 months' imprisonment. He appeals against conviction by leave of the Single Judge. 20. The facts were these. On 18th September 2004 the appellant went to the home in South Lynn of a man called Nicholas Moore. The appellant's friend drove him there in a Rover car, but remained in the car throughout. The appellant knocked on Mr Moore's door. He answered. The appellant accused Mr Moore of assaulting his son. Voices were raised. Mr Moore and his wife said that the appellant struck Mr Moore with some form of cosh, made from a sock containing something hard. Two 999 calls were made during the incident. The first by Mrs Moore, in which she at first described the weapon as a baseball bat, but, later in the conversation, said it was a sock containing, possibly, coins. There was a similar confusion in a second similar call. 21. The woman police constable called to the incident described Mr Moore as having an injury to the right side of his face, by his eye. There was redness, swelling and a small cut but she conceded that she had got the location wrong when she was cross-examined. 22. The appellant was known to the Moore family as, twenty years earlier, he had been engaged to Mr Moore's sister. 23. When the appellant was arrested and interviewed he said nothing. He was, however, picked out on identity parades by four witnesses. It was the prosecution case that the appellant had a cosh of the character which we have described and, when he confronted Mr Moore at his house, he deliberately struck out at him twice, and one of those blows struck Mr Moore's eye causing injury. It was the defence case that the appellant had been at Mr Moore's home on this day, but he had not touched Mr Moore with a weapon or anything else. 24. The judge indicated that, whether the appellant gave evidence or not, he would have to consider whether bad character was admissible, and he contemplated that it might be, under gateways (g) and/or (d) of section 101 . He also indicated that he would not go back beyond 1986, in relation to the appellant's record, in the event that he allowed evidence to be admitted of previous convictions. 25. The evidence for the prosecution came from Mr Moore and Mrs Moore and from Stephen Coe and Spencer Canon who had been sitting in the kitchen of the Moores' house. Mr and Mr Moore and Stephen Coe all described the appellant as using a weapon of the kind which we have described or, so far as Stephen Coe is concerned, he said he saw it raised above the appellant's head, though he did not actually see him strike Mr Moore. Spencer Canon also referred to the appellant holding what he described, initially, as a rounders bat, but later, after discussion with others, he realised was an old sock. 26. The Crown applied to adduce previous conviction of the appellant, not by any means all of them, but those starting with a conviction for common assault in 1999. The application also related to an offence of theft by shoplifting, in May 2002, making a false statement in order to obtain benefit or payment, including three offences taken into consideration, in August 2002, battery, in March 2002 and a further offence of theft by shoplifting in August 2002. 27. The learned judge ruled that these convictions were evidence of bad character, admissible under one of the gateways, in particular, gateways (d) and (g) and he concluded that there was no basis for excluding those convictions from being admitted. 28. The learned judge concluded that propensity to untruthfulness was an issue under gateway (d). 29. The submission which is made by Mr Lynn, on behalf of the appellant is that the judge was wrong to permit this evidence to be adduced. Mr Lynn points out that there was some confusion at the time of trial in February as to the rules applicable. The new Criminal Procedure Rules had not come into force and the old Crown Court rules, in particular rule 23 E3, appeared to govern the position. Those rules have now been replaced since April 2005 by the new Criminal Procedure Rules. 30. In the light of the applicable rules Mr Lynn submits, first, that no notice was given by the prosecution of their intention to rely upon these convictions and there was no reason why appropriate notice could not have been given. By reason of the absence of notice, Mr Lynn submits that there was prejudice to the defence in two respects. First, there was a lack of time for him to prepare an argument against admissibility under the new statutory provisions. He accepts that he did not seek from the judge an adjournment, and that the judge said that, if he needed time further to consider the matter, he could have it. As it seems to us, there can have been no prejudice on this basis. 31. The second basis for prejudice, Mr Lynn submits, is that the facts were not agreed because no notice had been given and no adequate pre-trial enquiries had, in consequence, been made. The defendant was cross-examined about the facts of one of these offences. Mr Lynn submits the defendant was embarrassed in consequence, because the explanation which he had to give in relation to one of the offences was that it did not involve entry into someone else's home, and the victim of the offence was his girlfriend. Clearly, it is unfortunate that there was cross-examination in those circumstances. 32. As this Court has previously pointed out, (see Bovell & Dowds para 2) it is important that provisions in relation to notice are observed so that adequate enquiries can be made on both sides as to the circumstances of offences, in so far as those circumstances may be relevant when the question of the admissibility of previous convictions arises. But, in the circumstances of this case, we are unpersuaded that the unfortunate cross-examination to which we have referred was such as, even arguably, to render the appellant's conviction unsafe. We say this in view of the limitation placed by the learned judge on the number of the appellant's abundant previous convictions which could be placed before the jury and having regard to the nature of the evidence against the appellant which, on any view, was substantial and came from a number of sources. 33. The second ground which was advanced in oral submissions by Mr Lynn was that the learned judge, in admitting previous convictions for offences of dishonesty, failed to consider the question of whether such offences gave rise, in the terms of the statute, to a propensity to be untruthful (see section 103(1)(b)). As this Court has previously pointed out, dishonesty does not necessarily equate with a propensity to be untruthful. It may be that the offences of theft by shoplifting, had the appeal centred on that aspect of the matter alone, could properly be regarded as not showing a propensity to be untruthful, rather than merely dishonesty. That cannot, however, be said in relation to the offences of benefit fraud, committed on four occasions. 34. Mr Lynn accepted that, in any event, if the evidence was properly admissible under gateway (g), as well as under gateway (d), there could not be the same objection to the admissibility of the offences of dishonesty. Mr Lynn submitted that the judge's basic consideration, as he put it, in relation to admissibility was under gateway (d). He submits that if the convictions had not been admitted, there was a real likelihood that the appellant would have been acquitted. It is, at that point, convenient to refer to the observation made by the judge in the course of his ruling as to bad character, which is in the transcript Volume III, at page 4E. He said this: "So far as gateway (g) is concerned, yes, it is an inevitable consequence of the defendant's case that the prosecution witnesses have to be attacked by counsel as having made this up and put their heads together, as was put squarely to them, and rightly to them, by Mr Lynn, cooked up a story, invented a malicious and unpleasant story, a fraud." As it seems to us, once it is accepted, as it was in the court below and is here, that the attack on the prosecution witnesses amounted to an allegation of conspiracy to put their heads together, in order falsely to implicate the appellant, the judge's ruling under gateway (g) was, as he described it himself "inevitable". In our judgment, there is no substance in the grounds of appeal so far as Fysh is concerned. 35. We add this, by reference to one of the written grounds not supported in oral submission before us today by Mr Lynn, that there is no sustainable criticism to be made of the terms in which the learned judge summed up this matter to the jury. It is correct that he did not have the advantage, if such it be, of this Court's judgment in Hanson , in relation to the distinction between a propensity to untruthfulness and dishonesty. In the course of his summing-up he equated the two. But the judge's summing-up followed, closely, the specimen direction given by the Judicial Studies Board, in December 2004, in relation to the admissibility of evidence of bad character and the blemish upon it which we have identified it does not give rise to any reason for regarding the appellant's conviction as unsafe. Fysh's application is therefore refused. 36. We turn to the case of Duggan. On 4th March 2005, at Snaresbrook Crown Court, following a trial before Mr Recorder Marshall, this applicant was convicted of wounding with intent to cause grievous bodily harm and sentenced to 5 years' imprisonment. His application for leave to appeal against conviction and sentence was referred to the Full Court by the Registrar. The incident giving rise to the charge occurred on the evening of 25th April 2004, in the Walkabout Public House on Upper Street, Islington. There was an altercation between the applicant and a woman called Susan Green. She sustained an injury from glass to the outside of her right hand, a deep laceration of her right middle finger, a black eye and a bruised jaw. 37. It was the prosecution case that the applicant had deliberately punched the complainant in the face, whereupon she had raised her hands in protection and the applicant then thrust a glassed object towards her, injuring her hand. The defendant's case was that the complainant had thrust a pint glass towards his face and, as he raised his hand to protect himself, the bottle he was holding had collided with the glass, so that injuries were caused to the complainant's hand. He said that his arm must have inadvertently connected with the complainant's face, causing the bruising. The central issue was self-defence in the context of which of the two was the aggressor. 38. The evidence from Susan Green was that, on her way back from buying a round of drinks, she was bumped into from behind so her drink spilled. She tapped the applicant on the shoulder and spoke to him, but he was offhand. She asked whether he was going to apologise and he effectively spat out the word "no" and threw his drink in her face. She thereupon threw her drink on him. At that stage, he punched her in the face with a clenched fist, straight to the eye. She was shocked. She held up her hands to protect herself; her glass by this stage had gone out of her hands. She could not say what the man had in his hands and she was not able to say precisely what happened after that. She denied in cross-examination that her hand injury was sustained when she was punched in the face. The two incidents were separate and her hand had been injured after she had been punched. She had done nothing violent. Evidence confirmatory of her account was given by Beth Howells, who said that it might have been 10 to 12 seconds after the punch that she saw the attack with the glass. 39. A Policewoman Constable came to the scene. When she arrived, the applicant was being aggressive and shouting at the door staff: "You're a fucking cunt". She warned him about his behaviour and he shouted: "Your mother blows fucking Pakis". She arrested him for a public order offence. Details were taken by another officer, in relation to the assault on Susan Green and the applicant was arrested for that. He continued to be racially abusive. When he was told he was being arrested for a racially aggravated public order offence, he claimed, falsely as he later said, to be a member of the British National Party and proud of it. He continued with similar insults and refused to give his name. He declined the services of a solicitor and did not answer any questions in interview. 40. He gave evidence that he had been drinking and watching football during the day. He had eight beers over three or four hours but was not drunk. The atmosphere in the pub had been "lovely". The complainant had bumped into him rather than the other way round. She had moved her glass to his face and he was afraid she was going to glass him, so he brought up his arm to protect himself. He had a bottle of beer in his hand, which must have broken the complainant's glass. He assumed, although he had not felt it, that his arm must have carried on and must have hit her on the face. He had been asked to leave by a bouncer. 41. He said in relation to his previous convictions, as to the rulings about which we shall in a moment come, that he always pleaded guilty. He was not in fact a member of the BNP but he did not dispute what the police officer said he had said. He claimed that he was upset because he was being arrested for nothing at all. He described himself as a gentleman. Both of the witnesses against him were lying. 42. The learned judge ruled, in relation to the admission of evidence of bad character, that although the Crown's application was out of time, and that no notice in accordance with the rules had been given, it was in the interests of justice that the application should succeed because no prejudice had resulted to the defence from the lack of notice. 43. The Recorder said that the applicant's convictions for assault and theft, in 1998, and for an offence contrary to section 5 of the Public Order Act 2003 were clearly bad character within the meaning of section 98. In addition the applicant had pleaded guilty to a racially aggravated section 5 Public Order Act offence, which arose from the events following his arrest for the wounding of Miss Green. That offence also, in the Recorder's judgment, came within the definition of bad character. He rejected a defence submission that that evidence came within the exception in section 98(b) as being "misconduct in connection with the investigation... of that offence." 44. The Recorder ruled that the applicant's behaviour, after the offence, was admissible as being relevant to his demeanour and state of mind at the time of the offence. It was clearly capable of informing the jury of what was happening so soon after the crucial events. There was no prejudice in admitting the evidence, such as to lead to exclusion under section 78 of the Police and Criminal Evidence Act and therefore the evidence was admissible. 45. The Crown sought to admit the previous convictions under gateway (d), on the basis that the matters in issue between the parties were who attacked whom and whether the applicant was telling the truth in relation to self-defence. The Recorder ruled that the convictions for violence or disorder were relevant to the issue of self-defence. They showed a clear pattern of attacking people, so that the Crown could properly adduce the evidence to establish propensity. The Recorder said he was not satisfied that the applicant's honesty was a substantial issue, so that his conviction for theft ought to be admitted. 46. Having referred to section 101(3) and (4) the Recorder said he was satisfied that the evidence would not have such an adverse effect on the fairness of the proceedings that it ought to be excluded: on the contrary, it was capable of informing the jury of precisely what they needed to know. Although the first assault was committed when the applicant was 16, it could not be said to be one-off in view of his more recent offending in November 2002. Although the offences were not of the same description or category, for the purposes of section 103(2) and (4), that did not preclude admissibility. 47. There was an issue about whether the earlier conviction was for assaulting occasioning actual bodily harm or, as the applicant maintained, for common assault. That is one of the aspects which give rise to this application for leave to appeal. We shall return to it a little later. The learned Recorder ruled that the underlying facts in relation to the conviction in 1998, for which no memorandum of conviction was then available, should not be admitted. 48. In passing sentence, the Recorder described the attack as unprovoked and vicious, on a slightly built young woman who presented absolutely no threat. She had been fun loving and carefree, but was now concerned about going out into rowdy places. The Recorder commented that there was little mitigation. The applicant was young (he is 22) and the Recorder commented that his record could have been worse but it was hardly a commendation. It was, the Recorder said, clear that he had not learned his lesson from previous offending, and it was to be pointed out that he had committed this offence during the period of a conditional discharge, imposed in December 2003, for 12 months, for an offence contrary to section 5 of the Public Order Act. 49. The learned Recorder also referred to the illness of the applicant's mother, who, sadly, has multiple sclerosis and, until his incarceration, the applicant was her main carer. It is apparent from material before this Court that she is finding it difficult to manage without him. 50. On behalf of the applicant, Mr McCrindell advances a number of grounds of appeal in seeking to challenge the applicant's conviction. First, he says, rightly, that it was not until the morning of the trial that antecedents were obtained and there had been no previous notice of an intention to rely on the applicant's previous convictions. Mr McCrindell refers to paragraph 2 in the judgment of this Court in Bovell & Dowds , which stressed the importance of the rules being adhered to, so that, in particular, the defence are in a position to deal with the matters on which the prosecution rely, and both sides can make such enquiries as may be necessary with regard to the circumstances of convictions sought to be relied on. Mr McCrindell points out, rightly, that, if the rules had been complied with, everyone would have been clear as to exactly what evidence was to go before the jury. 51. So far as the admissibility of the convictions is concerned, Mr McCrindell stresses the difficulties arising from the want of notice in investigating the nature of what was said to be an assault occasioning actual bodily harm. It is apparent from the memorandum of conviction, which has been obtained since trial, that the offence of which the applicant was previously convicted, which was the subject of dispute (it is to be noted the only subject of dispute) was common assault, not assault occasioning actual bodily harm. So far as that is concerned, however, the learned judge, at page 9D of the transcript of the summing-up, directed the jury that it was probably best to assume for safety "that it was a conviction of common assault". 52. So far as the applicant's aggressive behaviour after the incident and following the arrival of the police officers is concerned, Mr McCrindell makes no complaint about want of notice in relation to that because statements from prosecution witnesses served on the defence described that conduct on which the prosecution wished to rely. The want of notice in relation to the convictions, as it seems to us, did not give rise to any prejudice so far as the defence were concerned. Clearly, it may well have been prejudicial had the matter proceeded wrongly on the basis that the offence was assault occasioning actual bodily harm, rather than merely common assault. But, by virtue of the direction given by the Recorder in his summing-up, it is apparent that the case did not proceed on that basis. 53. The second ground advanced by Mr McCrindell is that the material before the court, on the basis of which the bad character evidence was admitted, was of poor quality, in that it was derived from the Police National Computer. The difficulty with that submission, as it seems to us, is that there was nothing in dispute by the defence, in relation to the material from the Police National Computer, apart from the nature of the assault to which we have already referred. There is, in consequence, no substance in that ground. 54. The third ground advanced by Mr McCrindell is that the bad character evidence should not have been admitted. In particular, in that regard, he refers to the speech of Lord Phillips of Worth Matravers in the civil, similar fact, case of O'Brien v Chief Constable of South Wales Police [2005] UKHL 26 . At paragraphs 12 and 52 Lord Phillips, observed that the statutory provisions with which this Court is presently concerned "require an enhanced relevance in order to ensure that the ambit of the trial remains manageable." As it seems to us, there was an enhanced relevance in relation to the earlier convictions and the events after these offences, so far as the applicant's behaviour is concerned. In our judgment, such matters were capable of establishing propensity to violence relevant to the crucial issue as to who was the aggressor. 55. There are further grounds, 4, 5 and 6, in relation to the use of unchallenged racist language. But for the reasons which we have already indicated, the learned Recorder was entitled to conclude that they showed a high level of aggression on the applicant's part, immediately following the incident giving rise to the section 18 offence. 56. Ground 7 is a further complaint about reliance on the Police National Computer with which we have sufficiently dealt. 57. Grounds 8 to 12 are critical in various respects of the summing-up. It is said that, in Mr McCrindell's words, "this went a little bit too far", when the learned Recorder said that the prosecution case was that the applicant was an aggressive man who had been aggressive on this night. Something which goes a little bit too far, even if it does -- and we are not persuaded that it does -- is an insubstantial basis on which to suggest that a summing-up is so defective as to render a conviction arguably unsafe. 58. Mr McCrindell relies on the observations made in paragraph 18 of this Court's judgment in Hanson , and submits that further directions in accordance with that judgment ought to have been given. Of course, that judgment was not available at the time of the Recorder's summing-up, and we have already, at the beginning of this judgment, referred to the way in which paragraph 18 in Hanson should be understood. 59. The further criticism is made that, at page 9G of the transcript of the summing-up, the Recorder's use of the phrase "you have been permitted to hear of these convictions...", in the context of an explanation by the Recorder as to why those convictions were before the jury was terminology which might induce in the jury's mind a belief that the Recorder himself had already decided that the convictions were determinative of issues which the jury had to decide. We are wholly unpersuaded that that is a possible interpretation of that passage in the summing-up. In our judgment, without descending into further detail, there is no substance in any of the criticisms of the summing-up. Accordingly, leave to appeal against conviction is refused. 60. So far as sentence is concerned, the submission which is made in the written grounds of appeal and to which the Court indicated it was sympathetic, is that 5 years is somewhat longer than is necessary in this case, having regard, in particular, to the degree of injuries sustained by the victim. The significant injury, as we have indicated, was to the hand rather than to the face. That is a matter to which, in reaching the appropriate sentence, attention should be paid. The Court indicated that it was minded to reduce the sentence to one of 4 years' imprisonment. In a late submission, Mr McCrindell suggested that a figure below that might, in all the circumstances, having regard to the appellant's possible release dates, might be possible. In our judgment, 5 years was somewhat longer than necessary, even following a trial. Accordingly that sentence is quashed. We substitute for it a sentence of 4 years' imprisonment. We see no justification for going below that figure, in the light of all the circumstances in this case. Albeit that the physical injuries were not serious, the offence has had a serious impact upon the victim. 61. The appeal against sentence is therefore allowed in the way and to the extent which we have indicated. 62. We come, finally, to the application of Chohan. On 8th February 2005, at Manchester Crown Court, following a trial before His Honour Judge Mort, this applicant was convicted on count 1 of robbery, on count 2 of possession of an imitation firearm while committing a schedule 1 offence and on count 3 of possession of an imitation firearm with intent to cause fear of violence. He was sentenced to 10 years' imprisonment on count 1 and to 3 years' imprisonment concurrently on each of counts 2 and 3. The total sentence was therefore 10 years' imprisonment. His application for leave to appeal against conviction has been referred to this Court by the Registrar. 63. The facts were these. A couple of days prior to the incident which formed the basis of the three counts, an 89 year old man called Sidney Marsh was visited at home by the applicant, who claimed that his mother had been robbed and he was looking for the culprits. He said he had written their descriptions on a piece of paper which he gave to Mr Marsh. 64. On 19th May 2003 Mr Marsh was again at home, in Solway Close, Oldham. The applicant arrived and shouted through the window: "I've found those lads." He walked into the kitchen, shook the complainant by the shoulders, produced what appeared to be a gun, pointed it at Mr Marsh's chest and said: "I want a fiver". Mr Marsh went to get a £5 note and the man took his wallet from him. That gave rise to counts 1 and 2. Astonishingly, when his robber had left his home, this 89 year old victim gave chase. He told a neighbour he had been robbed. Two women neighbours gave chase for a short while and confronted the man, who pointed a gun at them, giving rise to count 3. They backed off. He made good his escape. 65. The identification of the robber as the applicant rested upon a prosecution witness called Donna Marsh. She happened to be nearby, in Lee Street, when, she said, the applicant, whom she knew as "Tony", ran past her. The issue, essentially, was whether she was right. The two women neighbours who had given chase, although they gave descriptions of the man they chased, were unable to pick him out on an identification parade. 66. Donna Marsh described seeing the man running away. She had a clear view of him. She turned and said "Hello". He replied. She knew him as Tony. He was an Asian man, about 30, five feet eight or nine, stocky and wearing a hat. She had his face in sight for a minute or so. He had a gun in his hand. At this time, that is May 2003, she had known him for about a year. Her evidence (and to the circumstances in which it was admitted in this form we shall come in a moment), was that she had seen him a lot, indeed every other day for a year or so, because she bought heroin from him. She was taking heroin three or four times a day. She used to meet him at the bottom of Lee Street, the street in which he was when she saw Mr Marsh's assailant running away. She also met him at The Junction Pub. 67. On 25th August 2004 she picked out the applicant on a VIPER parade as being the man she had seen the previous May. The reason why there had been so long a lapse of time between the offence of robbery and the VIPER parade was because, for most of that period, from a time starting two days after the commission of this offence, the applicant had been out of this country. 68. She said that she had not wanted to say that she was a heroin user. That was why, in the first statement which she made to the police, she only referred to knowing the applicant from seeing him around and in a pub. She thought she had mentioned the gun in her first statement, but it was not there. She said she had no reason to invent her evidence. 69. There were submissions made to the learned judge in relation to two different categories of evidence namely Donna Marsh the appellant's previous convictions. In relation to Donna Marsh she made a second statement on 8th January 2005 describing the basis on which she was able to recognise the applicant, namely the frequency of their encounters during heroin dealings. The prosecution sought to adduce it, under gateway (c) of section 101(1) , that is to say, that it was "important explanatory evidence." explanatory, of course, in relation to the basis of her identification. 70. The judge ruled that, in such a case, it was inevitable that the jury, who would have to be directed as to the caution necessary in identification by reference to Turnbull , would have to consider the circumstances in which the witness claimed to be able to identify the defendant. It would, the judge concluded, be difficult properly to understand other evidence in the case without knowing the background of the heroin dealings which, he concluded, went to the heart of matters. 71. The wording of section 101(3) of the Act, whereby the court must not admit evidence under gateways (d) or (g) if it appears that it would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it, suggested, the judge said, that section 78 of the Police and Criminal Evidence Act was not applicable in relation to gateways (d) and (g). But, he concluded, even if he was wrong, he would not exercise his discretion in this case to exclude the evidence, bearing in mind the vital importance to the identification by Donna Marsh of the explanatory evidence. 72. Submissions were also made in relation to the applicant's previous convictions, of which there are a considerable number. The application related to a robbery/assault with intent to rob, in 1992, and three burglarise in 2000. The Crown sought to adduce that evidence as to those conviction under gateway (d) on the basis that they were relevant to an important matter in issue, namely, a propensity to commit the type of offence with which the applicant was charged. They fell under subsection(1)(a), in that they were of the same description or category as the offence charged and, therefore, were admissible, subject to section 103(3), in relation to the length of time since the conviction, or any other matter, which rendered them inadmissible. The judge concluded that, despite the lapse of time, it was not unjust to admit the robbery conviction in 1992, bearing in mind the applicant's continuing criminality thereafter and the fact that it was a serious robbery at knife-point, which was material in the present case. Furthermore, the three burglaries in 2000 were relevant because they involved very similar methods of operation, namely gaining entry, by falsity, into the homes of the elderly. The judge concluded that it would not have such an adverse effect on the fairness of the proceedings that they ought not to be admitted. Furthermore, so far as the robbery in 1992, was concerned, although that offence was old, it demonstrated a propensity to commit offences involving the use of a weapon against a householder. 73. The defendant in evidence said that he had not been at Mr Marshall's house on 19th May, nor had he had a gun. He had never been a drug dealer. He had gone to Pakistan soon after the offence because his wife's mother was there and she had been taken ill. He said that, in interview, he had not known what was meant by the name Donna Marsh: he only knew her by her first name. He claimed to have recognised her when he came to court. He had known her for several years, as they were both heroin users. He claimed, and it is to be emphasised that this was denied by Donna Marsh, that he had had a sexual relationship with her. He suggested that she must have lied about seeing him running away from the robbery because he had not told her that he had remarried. 74. On behalf of the applicant, Mr Samuels submits that the judge was wrong to admit Donna Marsh's second statement describing the heroin dealing with the applicant. Mr Samuels accepted, rightly, that only a fraction of the applicant's record went before the jury by reason of the judge's ruling. He submits that it would have been possible to edit the statement in relation to the heroin dealing, in order to disclose a frequency of encounters, without disclosing the reason for those encounters. The prejudice arising from the allegation of heroin dealing was such that the judge ought not to have admitted the statement in the form which he did. It is to be noted that whereas initially, the defence based upon a challenge to the frequency of the association between the applicant and Donna Marsh it later changed to a claim of deliberate dishonesty by her, promoted by malice. 75. In our judgment, the circumstances of this case, in relation to identification, were such that no sustainable criticism can be made of the judge's decision to admit in evidence the witness Donna Marsh's second statement. Only if that was done, as it seems to us, would it be possible for her sensibly to explain, not least, in the face of the different defences emanating from the applicant, the basis of her ability to identify him in the circumstances which she did. 76. So far as the admission of the 1992 robbery and the three dwelling-house burglaries in 2000 are concerned, Mr Samuels was frank enough to concede that the circumstances of the three burglaries were, as he put it, "uncomfortably close" to the offence charged. As it seems to us, that was a reason not for excluding the evidence of those convictions but for admitting it. The judge's exercise of discretion, in relation to the admission of these convictions was, as it seems to us, impeccably performed. No suggestion is made that he took into account inappropriate considerations or failed to take into account appropriate considerations. Accordingly, the application for leave to appeal against conviction on behalf of Chohan fails. 77. Before leaving the case of Chohan, it is, as we foreshadowed at the beginning of this judgment, perhaps helpful to refer to the summing-up of His Honour Judge Mort in Chohan's case: "In this case you have heard evidence that Mr Chohan has a bad character, in the sense that he has got criminal convictions and you have heard, it is alleged, that he otherwise misconducted himself by supplying heroin to Donna Marsh. It is important that you understand why you have heard this evidence and how you can use it. As I will explain in more detail later, you must not convict Mr Chohan only because he has got a bad character. You have heard of this bad character because, first of all, in relation to the allegation that he was supplying drugs to Donna (and bear in mind it is her allegation that that is the position) it may help you to understand other evidence in the case, namely how is it that Donna Marsh was so confident that the man running past her on Lee Street, running away from Mr Marsh and from the two women, was the defendant. The reason being because she was seeing him several times a day when acquiring drugs from him. So it may help you to consider the accuracy and reliability of her identification and it may help you to understand the case as a whole. You have heard, in relation to the previous convictions, of his bad character and it may help you to resolve an issue that has arisen between the defence and the prosecution, namely the question whether he has a propensity or a tendency or an inclination to commit offences of the kind with which he is charged. If you think it is right, you may take the previous convictions into account, in deciding whether or not Mr Chohan committed the offences with which he is now charged. The prosecution rely on the robbers in 1992 because they show that he has a tendency to use weapons to threaten violence to steal and two instances have been given to you where a sheath knife was used, one in order to steal and one whereby theft actually took place and it is said, ten years on, now he is using a handgun. The prosecution rely on the burglaries in 2000 because they say that they show that the defendant has a tendency to use bogus explanations to trick his way into older people's homes in order to steal from them... So the prosecution's case there is that it is, on this occasion, a combination of pretending to be looking for people who have robbed his mother, asking for a pen and paper to write down the description of the alleged robberies and then using the pretext, coming back and saying: 'We have found them' going in, producing the gun and stealing wallet. So the crown are saying here there is a tendency to commit robberies with a weapon and to target the elderly with bogus explanations and, therefore, they say it makes it more likely that he is guilty of the offence. The defence, on the other hand, say, first of all, these robberies were ten years ago, he described himself, 'I was about 16 or 17 at the time, the burglaries were three years old, I always pleaded guilty to offences that I had been arrested for' and it is, in fairness to the defence, a matter which you can take into account, deciding what impact the convictions had on his truthfulness. Mr Samuels put it in a well known phrase from Casablanca of 'rounding up the usual suspects' and that is what obviously you must be very careful about... If you do conclude that, at the time of these offences in May, 2003, Mr Chohan did have a propensity to commit offences of that type, namely robberies with weapons or targeting the elderly with bogus explanations to get entry into the property, then you can consider whether it makes it more likely that he committed the offences in May, 2003. You have to decide to what extent, if at all, his character helps you when you are considering whether or not he is guilty. You must not convict simply because of his convictions, nor mainly because of them. The propensity or tendency amounts to some additional evidence pointing to guilt, but please bear in mind, even if he did have such a tendency, it does not necessarily prove that he would commit further offences or that he has committed these offences. You are also entitled to consider the evidence of Mr Chohan'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 not capable of telling the truth. Indeed, Mr Chohan says, 'The fact that on the previous occasions I have been arrested and I have always held my hands up means that, when I plead not guilty, I am likely to be telling the truth' and you decide to what extent his character helps you when judging his evidence. So that is the extent to which the evidence of his previous convictions may be used for the particular purposes I have just indicated, if you find it helpful." That approach is not only, rightly not criticised by Mr Samuels in this case, but, subject to one refinement in relation to the distinction drawn between propriety of dishonesty and propriety to untruthfulness in para 13 of Hanson , it provides an impeccable summing-up which may well afford useful guidance in other cases where summing up the significance of previous convictions. 78. For the reasons which we have given, Chohan's application for leave to appeal against conviction is refused. 79. Although we have not, in the course of this judgment, referred expressly to the written submissions provided for the Court's benefit by Mr Houlder QC, on behalf of the Crown, we are greatly indebted to him for the submissions which he made in relation to each of these cases.

2005_06_29-539.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/1813/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/1813

1ebbb5fae137d61360ff976b87bef5a202b526a0355816748cfe09553dd8b522

[2023] EWCA Crim 546

EWCA_Crim_546

crown_court

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. [2023] EWCA Crim 546 IN THE COURT OF APPEAL CRIMINAL DIVISION Case No: 2022/03089/A1 Royal Courts of Justice The Strand London WC2A 2LL Thursday 11 th May 2023 B e f o r e: LADY JUSTICE CARR DBE MRS JUSTICE McGOWAN DBE HIS HONOUR JUDGE BATE ( Sitting as a Judge of the Court of Appeal Criminal Division ) ____________________ R E X - v - LEWIS LLOYD YOUNG ____________________ 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 N Cotter appeared on behalf of the Appellant Miss B Mulvanny appeared on behalf of the Crown ____________________ J U D G M E N T ____________________ Thursday 11 th May 2023 LADY JUSTICE CARR: The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of the offences. This prohibition applies unless waived or lifted in accordance with section 3 of the Act. Introduction 1. This is an appeal against sentence brought with limited leave. 2. On 29 th September 2022, in the Crown Court at Salisbury, following his earlier guilty pleas, the appellant (now aged 29) was sentenced by Her Honour Judge Morris (the Recorder of Winchester), and following a variation hearing under section 385 of the Sentencing Act 2020, on 21 st November 2022 as follows: on count 1 (Kidnapping), imprisonment for life; on count 2 (Having an article with a blade or point, contrary to section 139(1) of the Criminal Justice Act 1988), 12 months' imprisonment; on count 3 (Dangerous Driving, contrary to section 2 of the Road Traffic Act 1988), 14 months' imprisonment; on count 4 (Driving whilst Disqualified, contrary to section 103(1)(b) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1998), four months' imprisonment; on count 5 (Assault by Penetration, contrary to section 2 of the Sexual Offences Act 2003), ten years' imprisonment; and on count 6 (Rape, contrary to section 1(1) of the Sexual Offences Act 2003), imprisonment for life. On counts 1 and 6 the minimum term specified under section 323 of the Sentencing Act 2020 was 12 years (less time spent on remand). The sentences on counts 1 and 6 were ordered to run concurrently with each other, and the sentences on counts 2 to 5 concurrently with the sentence on count 1. The appellant was also disqualified from driving for life. A community order imposed in October 2021 for two offences of affray was revoked. 3. An application for leave to appeal against the imposition of a life sentence was refused by the single judge, and there is rightly no attempt to seek to renew such a challenge. The sole ground of appeal for which leave has been granted relates to the length of the 12 year minimum term specified under section 323 of the Sentencing Act 2020. It is said to be manifestly excessive. The Facts 4. At approximately 7.20 pm on 12 th April 2022, the appellant kidnapped a woman, whom we identify as "C", from an underground car park in Bournemouth. He had only a few weeks earlier been released from a psychiatric hospital. He had travelled that day by train from Southampton to Bournemouth, armed with a knife, with the specific intention of committing kidnap and rape. C had attended a work meeting in Bournemouth and had left her vehicle in a private, gated, underground car park. The appellant had entered the car park at an opportune moment and hidden behind some wooden pallets for around two hours before identifying C as his intended victim. As C got into her vehicle, the appellant approached and told her that he was armed with a knife. He was wearing a “Covid” face mask and holding a kitchen knife with a serrated blade. C told him that he could take her handbag or indeed the car but he said "No". He forced C to move across into the front passenger seat and the appellant then drove the car away. He placed the knife between his legs; at all times it was sticking upwards. 5. C said that the appellant then drove like "an absolute maniac". He drove at speed, weaving in and out of cars and deliberately slowing down when he saw cameras. He took her Apple watch and her work and personal mobile telephones and threw them out of the window of the car. They travelled out of Bournemouth and towards the centre of Salisbury. C thought that he was looking for somewhere isolated. She tried to placate him but every time she spoke he would reach for his knife. 6. He eventually stopped the car in a dimly lit area of the village of Wilton, next to a power station. There he physically assaulted C in the car, strangling her to a point where it was difficult for her to breathe. She managed to grab his knife, but he bit her wrist in order to get it back. She pushed him from the vehicle, but he dragged her out with him. He told her that he wanted to look at something on her leg. He then ripped off her tights and pants and went on to digitally penetrate her vagina. C explains that she thought she would die if she did not do as he said. The appellant told her that she smelled "really clean" and that he had never had sex before. She said that she had AIDS in an attempt to deter him from further sexual assault, but he pushed her to the ground and then raped her vaginally until he ejaculated. He put his hand over her mouth when she tried to scream. C managed to run away and she sought help from the occupants of a nearby house who called the police. The appellant meanwhile made off in her vehicle. 7. In addition to the bite on her wrist, C had cuts on a finger, grazes and scrapes to her legs and a "really sore" neck, which made it difficult for her to swallow. She was stiff and sore all over. 8. The appellant was arrested shortly after 10 pm that evening, having been found in C's vehicle on the A303. Upon his arrest he claimed that a girl he killed years ago had "respawned" into C's body. This was a reference to the fact that the appellant had earlier in 2013 been the driver of a vehicle involved in a crash which caused the death of his then 16 year old girlfriend. He was convicted of causing death by dangerous driving for that incident and detained in custody for eight years. 9. The appellant made full admissions in his police interview. He said that the offences were pre-planned. He had intended to take somebody to an empty property and to keep them there for a number of days in order to have sex with them. He also told officers that he had been unsuccessful in an attempt to kidnap a woman some six months earlier as she had brandished a knife at him. He said that he had stopped taking his medication a week earlier. He had wanted to see how many people he could kidnap and he had identified a disused warehouse where he could keep them. 10. The appellant had 16 convictions for 44 offences spanning between February 2010 and September 2021. They included convictions for multiple driving offences, assault, battery and criminal damage. Of most relevance were his conviction for causing death by dangerous driving, to which we have already referred, and also causing serious injury to a 14 year old rear seat passenger in the course of the same incident. 11. The appellant failed to comply with the Probation Service for the preparation of a pre-sentence report, but there were two psychiatric reports from Dr Oliver White before the judge for sentencing purposes. 12. The appellant presented with a long-standing mental disorder. He has a diagnosis of emotional unstable personality disorder and antisocial personality disorder. His conditions are exacerbated by ADHD, other learning difficulties and unresolved post-traumatic stress disorder. He had had a very unhappy childhood, marred by bouts of violence directed at him by his father, and a considerable part of his formative years were spent in custody. As we have said, he was only just released from custody in 2021. Between April 2021 and March 2022 he had been sectioned under the Mental Health Act 1983 on no less than five occasions. Each time he was released back into the community without adequate support. Dr White commented on his desire to commit serious offences in order to receive a lengthy custodial sentence precisely because of his struggles to cope with the demands of life in the community upon release. 13. The judge also had before her a Victim Personal Statement, which we too have read in full. Consistent with C's wishes, we do not propose to refer to any of the detail in our judgment today. It suffices to say that the psychological impact of these events has been extremely severe and has affected all aspect of C's life, both personal and professional. They have also had a wider impact on her family and friends. In her own words, what happened to her was "the stuff of nightmares" and has been life-altering. 14. An updated Victim Personal Statement reveals that the appeal process has inevitably also been very difficult for C. There have been some improvements in her life since the sentence below was passed, but her life largely continues to be an ongoing endurance test. She has been told that the scar on her wrist, which is a source of considerable distress to her, is permanent. She has still not been able to return to her professional life. 15. We take this opportunity to commend C who showed extraordinary bravery and calm in what was a prolonged and terrifying ordeal involving abduction, violence and rape, and during the course of which she genuinely thought that she was going to die. The Sentence 16. The judge first rehearsed the relevant facts and background. She then considered the circumstances surrounding the offence of kidnap, for which there was and is no Sentencing Council Guideline. 17. In terms of categorisation under the Sentencing Council Guideline for Sexual Offences, both the rape and assault by penetration fell within category 1A in each case. The starting point for each as a single offence following trial was one of 15 years' imprisonment, with a range of 13 to 19 years. The judge went on to conclude that, because of the factors previously outlined in relation to the kidnapping, it was necessary to go outside that range. The level of premeditation was significant. The appellant had gone to Bournemouth specifically with the aim of kidnapping and raping a woman. He took a knife with him and, even making allowance for his paranoid thought processes at the time, he knew what he was doing and was determined upon committing a series of offences of the gravest kind. 18. The judge recognised in terms the need to avoid double counting and to have regard to totality. She indicated that in her judgment the appropriate way in her judgment to reflect the offending was by reference to the rape and kidnapping offences, because they were the most serious and both carried the maximum of life imprisonment. She concluded that the seriousness of these offences justified the imposition of a sentence of imprisonment for life on counts 1 and 6. As already indicated, no challenge against that conclusion is pursued. 19. The judge then considered the minimum term. She stated that, if imposing a determinate sentence, she would have imposed a sentence of 27 years' imprisonment on counts 1 and 6. With full credit for guilty pleas, that was reduced to 18 years' imprisonment, two thirds of which was 12 years, which she fixed as the minimum term. Grounds of Appeal 20. Mr Cotter, in measured terms, submits that the minimum term imposed was manifestly excessive. In short, the Sentencing Council Guideline for Sexual Offences is designed to provide consistency of sentence for even the most serious offending, and in its starting point and ranges already takes account of the features of abduction and detention. If both the offences of rape and kidnap merited going outside the guidelines, they did not merit a term of as long as 27 years. Although Mr Cotter recognises that no two cases are ever the same, he has referred us to Attorney General's Reference No 78 of 2012 (R v K) [2013] EWCA Crim 130, where a child was kidnapped, raped twice and kept for a significant period of time. A determinate sentence of 20 years in that case was imposed. 21. On behalf of the respondent, Miss Mulvanny emphasises that the Sentencing Council Guideline recognises that some offences of rape may be of such severity that sentences of 20 years and above may be appropriate. Here, given the multiplicity of aggravating features, the judge was fully entitled to go outside the range for category 1A offending. Once that is accepted, the total sentence is a matter of discretion for the judge, taking into account the overall offending and circumstances. Discussion 22. As the single judge identified, no issue can properly be taken with the imposition of a life sentence. The question for us is whether the term of 27 years' imprisonment taken by the judge as a hypothetical determinate sentence for the offences of kidnapping and rape, resulting in a minimum term of 12 years' imprisonment, was manifestly excessive. In particular, we need to consider whether there was an element of impermissible double counting in reaching this figure. 23. As set out above, the judge treated the rape and kidnapping as the lead offences. We therefore turn to them first. The starting point for category 1A rape was 15 years' imprisonment, with an upper range of 19 years. There can be no doubt that the rape fell into category 1A because of the extreme nature of the abduction, the prolonged detention and violence used and threatened, and the extreme psychological harm caused. In terms of culpability, there was a significant degree of planning. There were then multiple aggravating features: the appellant's previous convictions; the fact that he was subject to a community order at the time; the ejaculation; and the use of a knife to frighten and injury. By way of mitigation, there was the complex picture of mental disorder. 24. There is no guideline for the offence of kidnap. Sentences for such offending will vary considerably depending on the facts. But the authorities make it clear that relevant factors include: the length of detention; the circumstances of detention; the extent of any violence used; the involvement of weapons; the effect on the victim and others; the extent of planning; and any particular vulnerability of the victim. As the judge identified here, there was a high degree of premeditation and planning: the appellant took a knife to the scene and used it; the incident lasted about two hours; C was kidnapped in what she thought was a secure area; the appellant had lain in wait for a lone and thus vulnerable female and had then driven in a dangerous manner to a secluded spot, no doubt aware of C's terror and the risks involved. When she tried to escape or fight back, he strangled her to the point where she could hardly breathe. 25. This analysis demonstrates the very clear and significant overlap between the relevant sentencing considerations on the rape and kidnapping offences. The abduction and detention were a central part of the sentencing considerations for the rape. As was the case in R v K , the rape had to be seen in the context of the kidnapping. Here the rape could have been treated as the lead offence alone, with the associated offences of kidnapping, dangerous driving and possession of a knife as the relevant aggravating context for sentencing purposes. There was then also the separate offence of assault by penetration, which itself carries a starting point of 15 years' custody. Totality meant that the final overall sentence had to reflect all these matters. 26. There can, in our judgment, be no doubt that the circumstances of and the offending additional to the rape entitled the judge to go outside the range for a category 1A offence – and very substantially so. The kidnapping was of the most extreme sort. It went way beyond what could be described as the inherent element of restraint in any rape. It involved planning and the use of a knife. It was accompanied by the dangerous driving and significant violence, including strangling. 27. At first blush, as a determinate sentence 27 years' imprisonment is a steep term. However, on analysis, and even taking full account of the appellant's mental health issues, we have reached the conclusion that it cannot be said to be manifestly excessive. As evidenced in her sentencing remarks, the judge was well aware of the need to avoid double counting. Mr Cotter, when directly asked by the court, could not point to any material error of approach in principle, or on the facts. 28. As the Sentencing Council Guideline for Sexual Offences states, offences of rape may be of such severity that sentences of 20 years and above may be appropriate. Taking into account the available mitigation, balanced against the nature and extent of the abduction – that is to say the violent kidnapping, involving the use of a knife – along with the dangerous driving and other aggravating factors, a term of well over 20 years for the offence of rape as the lead offence was justified. There was then the separate offence of assault by penetration to be taken into account against that background. Conclusion 29. In short, a term of 27 years, resulting in a life sentence with a minimum term of 12 years (less time spent on remand), was not, in our judgment, manifestly excessive. The minimum term of 12 years (less time spent on remand) was just and proportionate to the overall offending. 30. Accordingly, for these reasons, 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 ______________________________

2023_05_11-5664.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/546/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/546

60f490c38a28dacacad0010e83c8694c6239d2a8bde93380f6158f0d49f9050a

[2010] EWCA Crim 3202

EWCA_Crim_3202

crown_court

Neutral Citation Number: [2010] EWCA Crim 3202 Case No: 200805148 D3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 23 November 2010 B e f o r e : LORD JUSTICE MOSES MR JUSTICE HICKINBOTTOM THE RECORDER OF CHESTER - HHJ ELGAN EDWARDS DL (SITTING AS A JUDGE OF THE CACD) - - - - - - - - - - - - - R E G I N A v SHANE MATTHEWS - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merril

Neutral Citation Number: [2010] EWCA Crim 3202 Case No: 200805148 D3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 23 November 2010 B e f o r e : LORD JUSTICE MOSES MR JUSTICE HICKINBOTTOM THE RECORDER OF CHESTER - HHJ ELGAN EDWARDS DL (SITTING AS A JUDGE OF THE CACD) - - - - - - - - - - - - - R E G I N A v SHANE MATTHEWS - - - - - - - - - - - - - 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 R OFFENBACH appeared on behalf of the Appellant MISS K PRESTON and MR D ALLAN appeared on behalf of the Crown - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE MOSES: This is an appeal against conviction, by permission of the full court, arising out of a number of complaints as to the unfairness of a retrial at Birmingham Crown Court, sitting at Worcester, in July and August 2008. The trial lasted 6 weeks and, on 22 August 2008, this appellant was convicted by a majority on a single Count of cheating the Public Revenue. He was sentenced to 7 years' imprisonment. 2. The appellant was arrested on 18 June 2002 in connection with what is commonly known as an MTIC fraud. A fraud, in other words, in which easily transportable items, such as mobile phones, are imported from the European Union; a transaction which does not trigger a liability to pay for VAT, or did not in those days, and in which the mobile phones are bought and sold by a number of different traders in a chain, amongst whom is a trader who does not pay the VAT which it owes by way of output tax and goes missing. The fraud in which this appellant was said to be involved led to the loss of some £54 million of VAT. 3. The appellant had control over a company known as Calcon Industrial Supplies Limited. Over the space of 3 months he made a profit of £324,000. The loss of VAT, due directly to the transactions in which his company was involved, was estimated to be in the region of £10 million. The company was what is known as a buffer company. In other words, it did not make off with VAT it was liable to account to customs for, but it enabled a missing trader to do so. 4. Calcon bought from four different missing traders and sold on to other purchasers. Often Calcon paid for the mobile phones, not to the supplier from whom it bought, but to another supplier at the direction of its supplier. The profit for this appellant consisted of a regular amount of £1 per mobile telephone. That apparently was an unfluctuating reward for each mobile phone, the subject matter of the transactions in which Calcon Industrial Supplies Limited were involved. 5. The nub of the case against him was that he had sole control over Calcon Industrial Supplies Limited. He had never before been involved in this trade; he had previously been conducting a perfectly lawful cleaning business through that company. The prosecution pointed to the complete absence of any dealings with those from whom he was buying and selling telephones. Indeed, there was a complete absence of any commercial dealings at all. The prosecution relied upon the fact that he had, in March 2002, moved from working in the cleaning business that we believe was originated by his parents, to what was properly described as a multi-million pound trade in mobile phones. He had done so, and succeeded in doing so, without any training experience or guidance. He thus made, by dealing with traders who turned out to be missing traders and by making payments at their direction to third party suppliers, very large profits for no credible reason. On the very day he started this trade, he learned of the arrests of others involved in similar trades and, so the prosecution alleged, must have appreciated the use of such trades for the fraud of which he was accused from assurance visits that he received from Customs Officers. 6. He recruited into this business another young man who had no experience of it, a family relative, a man called Hollins, who was given a list of contacts and asked to telephone to see whether there were phones which Calcon could buy or sell. Significantly, Hollins described the circumstances of his dealings in the business; being left on his own on frequent occasions. The appellant was absent from the office for lengthy periods, on what was said to be a golf course, whilst receiving this sudden influx of large amounts of money. 7. The focus of this appeal has been on the complaint that this appellant was subjected to an unfair trial on a second occasion, after a jury had disagreed following an unfair first trial presided over by the same judge, HHJ Cavell. Mr Offenbach, on behalf of this appellant, said, and has argued, that the judge should not have tried the second trial since he had exhibited bias in the first. This was hotly disputed by counsel for the respondent, who also had been trial counsel, Miss Preston. Prosecuting counsel submits that the judge behaved with conspicuous fairness, despite provocation by counsel for the defence, who obdurately failed to comply with the judge's rulings. 8. We indicated at the start of the submissions, and we repeat, that we take the view that this appeal should concentrate on the second trial. If the allegations made in relation to the second trial prove unfounded, it is, in our view, impossible to see how this court could conclude that the verdict in that second trial was unsafe because of unfairness, if any, in the trial earlier, at the conclusion of which the jury disagreed. If, on the other hand, we concluded that the verdict was unsafe in the second trial because of unfairness, or for other reasons, in that second trial, then any reference to the first, save in so far as it clarifies or substantiates grounds advanced in the second, would be irrelevant. 9. We start with two grounds with which Mr Offenbach started this appeal, namely his contention on behalf of the appellant that the judge wrongly admitted previous convictions of others involved in what was said to be this conspiracy. They formed the subject matter of ground 5 and ground 4 of this appeal. Mr Craig Johnson pleaded guilty to conspiracy of laundering proceeds of profits alleged to be frauds, in which Calcon, this appellant's company, was involved. He had also pleaded guilty to cheating the Revenue in relation to the purchase of mobile phones 2 years before. The prosecution sought to rely upon those convictions as tending to prove, not only that a fraud was committed in respect of Count 5 of the indictment that the appellant faced, but also as tending to prove that this appellant knew that by embarking and persisting in this trade that a fraud or cheat was being committed on Her Majesty's Revenue and Customs. 10. The link on which they relied between Craig Johnson and this appellant was that this appellant had been in the habit of providing cleaning services to a house occupied by Craig Johnson, where his wife lived. Apparently an employee would visit three or four times a week. There was, further, evidence that at about the time of this appellant's arrest a fax had been sent by a fellow conspirator, Barbara Moran, to a room in Dubai. That fax set out details of deals in which Calcon had been involved. The link with Craig Johnson, so the prosecution contended, was established by the fact that the room to which the fax was sent was a room paid for by Johnson. Thus, it was contended that it established a further connection between, not only MTIC frauds, but the frauds in which this appellant's company was involved. 11. In our judgment, the evidence was admissible, both to prove the nature of the frauds and also the defendant's knowledge, pursuant to section 101(1)(b), as explanatory evidence within the Criminal Justice Act 2003 . We do not think that it was arguable to the contrary, although it was argued before the trial judge and the arguments were repeated before us. The evidence was plainly admissible and it was fair to admit it. 12. A further ground was advanced in connection with Craig Johnson's plea of guilty to laundering money. The defence sought to rely upon Johnson's basis of plea; he pleaded guilty on a written basis of plea accepted by the Crown, in which he said this: "Although accepting that he played a part in the conspiracy, he does not accept that he entered into an agreement with the named co-conspirators". Amongst those co-conspirators was this appellant. It was argued that the basis of plea should have been placed before the jury, because it had been accepted by the Crown in relation to Johnson, and exculpated, or tended to exculpate, this appellant. 13. In our judgment, it would have been quite wrong to allow this basis of plea to be placed before the jury as some evidence of the absence of guilty involvement of Calcon or this appellant. At best, it contains an absence of admission by Johnson in his case that he was involved with the appellant's company, but it is coupled with a refusal to name who his co-conspirators were. It was thus of no benefit, still less of any evidential value, to this appellant. 14. Mr Offenbach contended that once the Crown had accepted the basis of plea in Johnson's case it was somehow bound to place that basis of plea before the jury as tending to exculpate the appellant, on the basis of unfairness or some species of abuse which would debar the prosecution from refusing to permit what Craig Johnson said about it, to go before the jury in the appellant's case. He relied, for that proposition, on CPS Sussex v Haravinda Singh Mattu [2009] EWCA Crim 1483 . 15. Mattu was a wholly different case. The prosecution sought to prosecute, for laundering, a defendant in respect of whom it had already accepted a plea on the basis that he was merely a conduit for the supply of drugs. In short, the prosecution in that case had earlier accepted that he was merely a conduit for the supply of drugs, and subsequently then sought to change its mind and charge him, in a separate trial, at a different venue, for money laundering. The court regarded that as grossly unfair, inconsistent, and any prosecution, it concluded, would amount to an abuse (see paragraphs 17 to 19). That authority has no relevance to this case where the defendant seeks to deploy a self-protecting basis of plea. There is no basis for saying that the prosecution has behaved inconsistently or unfairly in refusing to allow that basis of plea to go before the jury. If the defence had wanted to call Johnson, it could have done so. 16. Allied to that ground was a contention by Mr Offenbach that the prosecution was guilty of a late disclosure of Johnson's basis of plea; it only emerged after the defence had learned about it through their instructing solicitor and had requested it. There was, in our judgment, no basis for any complaint whatsoever against the prosecution for not disclosing the basis of plea. It was not relevant, it did not tend to undermine the case against this appellant. Indeed, had it been advanced, it was arguably damaging to this appellant, since it was plain on its face that Johnson, whilst not accepting who his co-conspirators were, would not name those with whom he said he had been dealing. 17. The other convictions, the admission of which the appellant objected to, were relevant for the same purpose as the convictions of Craig Johnson. For example, a lady called Hawcroft was alleged to have run a company called Aviat. It was denied that she was running the company, although she was a director. Aviat was a freight forwarder in transactions in which this appellant's company was involved. Plainly, Hawcroft's convictions were relevant for the purposes of section 101 , and admissible for the purposes of section 101(1) (b) of the 2003 Act . 18. Similarly, the convictions of Sanders were relevant and admissible. He was a man whose company dealt with this appellant's company in the first five or six deals. There was, as we reiterate, no basis for objecting to the admission of any of those convictions. 19. Ground 3 contends that the judge unfairly restricted or limited this appellant in the conduct of his defence. The appellant wanted to show how the fraud in which his company was involved had been masterminded, so as to substantiate the defence that he had been unwittingly manipulated into joining in the purchase and sale of the mobile phones. He wanted to show that there were four suppliers from the European Union and four missing traders, and whilst they used a number of different companies, the same people were behind all these trades. 20. The judge ruled, both in the first and the second trial, in a way that sought to restrict the appellant from persistent cross-examination as to the nature of other people's deals and convictions. The judge said, for example on 30 May 2007 in the first trial, and gave similar rulings in the second, that it was not relevant what other defendants had done, and that their basis of plea and convictions were outside the ambit of the matters with which this appellant had been charged and did not assist in determining the state of his knowledge. 21. It is important to stress that it was never alleged by the prosecution that this appellant was the mastermind. All that was alleged was that his company, Calcon, was a buffer, buying phones from missing traders. In other words, that the company had been interposed in the chain to purchase and sell mobile phones, pay output tax to its supplier, and receive input tax from the person who bought its phones in the normal way, thus enabling the missing trader to receive, and subsequently make off with, the VAT for which it was liable to Her Majesty's Revenue and Customs. All that inevitably required planning and control other than by this appellant. None of this, we repeat, was disputed, and the judge specifically recalled that which was obvious, the existence of ring masters, when he directed the jury. Furthermore, there was cross-examination by counsel for the appellant to that end, in so far as was necessary, of an official from Her Majesty's Revenue and Customs, Mr Stone, specifically in that context. 22. The appellant contends that the judge unfairly prevented him from adducing evidence as to the destination of the proceeds of the fraud. It was known that money from this fraud, like from others, had been laundered in Hong Kong. The appellant wished to show who the beneficiaries from what was described as the Hong Kong laundry were. 23. There was never any dispute that the money, the proceeds of these frauds, had gone to Hong Kong. Nor was there ever any suggestion or dispute but that this appellant did not receive the proceeds of that laundry from Hong Kong. His gain from this fraud was alleged to be the unceasing, repetitive receipt of a £1 turn on each deal when buying and selling these mobile phones. There was some suggestion that money for which he was liable to account later, some £100,000, had not been sought from those with whom he was dealing, but that was never suggested to be the proceeds of money laundering in Hong Kong. It was therefore quite unnecessary for the appellant to probe that issue any further. 24. It is further alleged that the judge unfairly prevented the appellant from adducing evidence as to what was described as "the commonality of control" of the European suppliers. The judge rightly stopped that issue from being further explored, for example in a ruling on 24 July 2008 in the second trial. It was quite unnecessary for the appellant to explore that further, in the light of the obvious feature of this type of fraud of the need for ring masters or masterminds -- call them what you will. That was never in dispute. 25. The further matter of which the appellant complains is that he was prevented by the judge from relying on the fact that another company, Aviat, the freight forwarder to which we have already referred, demonstrated in its trade the same features, for example as a first line buffer and payments to third parties, which were alleged to demonstrate guilt in relation to this appellant's company. Yet, so it was contended, Aviat had not been prosecuted, and that showed either that those features of guilt were not well founded or something more sinister. 26. The prosecution in cases such as this is entitled, indeed bound, given their prevalence, to chose who to prosecute. It is no defence to say that others in similar shoes to the appellant have not been prosecuted, and it is of no significance whatever. It would have been quite wrong to allow questioning, or further questioning, on that basis, and misleading for the jury. 27. There is no basis for suggesting that this appellant's defence was unfairly confined or limited. This appellant's counsel, Mr Offenbach, repeatedly attempted to probe into other convictions, the basis of those convictions or pleas of guilt, and the judge allowed him considerable leeway. We have gained the clear impression from reading the transcripts, which of course can never give the full picture and flavour of the trial, that defence counsel repeatedly tried to cross-examine on matters about which the judge had ruled were irrelevant. We take the view that the judge's rulings were correct. Indeed, he would have been wrong to have allowed counsel for the defence further leeway. We reject this ground of appeal. 28. This leads to another ground of complaint advanced by this appellant. The appellant complains that the prosecution refused to admit that their could be innocent traders in chains such as those involved in the instant appeal. The Crown refused to make an admission that traders acting as buffers, like Calcon, buying a selling in a chain, could be innocent in the sense that they did not know that missing traders in the chain would make off with output tax owed to Customs. In support of that submission, Mr Offenbach pointed to cases such as Optigen, Fulcrum Electronics and Bond House Systems v The Commissioners of Customs and Excise ECJ Joined Cases C354/03 and Bond House Systems Limited v The Commissioners of Customs and Excise before what was then the VAT Tribunal in 2003. In cases like Bond House , Customs had advanced their contention that they were not liable to repay input tax, on the basis that, even if individual traders were innocent and did not know of the fraud, the trade in which they were involved was not an economic activity, and thus did not fall within the Sixth Directive. 29. In our view, the stance of the Crown was correct. There was no possible basis for compelling the Crown to make an admission that there could be innocent traders. Such an admission would not assist the jury. The question for the jury was whether the prosecution could prove that the appellant knew that the trade in which he was involved, involved missing traders or fraud upon Her Majesty's Revenue and Customs. It was irrelevant whether anybody could conceive of a case such as this, where a trader might not know. Why then should the Customs have been compelled to make such a confusing and misleading admission to be laid before the jury? By 2002, when the trades in which this appellant was involved were taking place, vast losses had been suffered in relation to VAT, to the detriment of the country, by the trade in small items such as mobile phones and computer chips. The Customs stance, with which many citizens would have sympathy, would be that anyone who chose to make for himself sudden and dramatic gains by entering into such a trade must have appreciated the fraudulent source of such rewards. The suggestion that it would be unfair not to make an admission to the contrary is unwarranted, unfounded and, in our view, absurd. 30. A number of the grounds advanced, particularly grounds 7 and 8, criticise the behaviour of the judge. It is contended that he displayed hostility to counsel for the defence and disinterest in his cross-examination. He repeatedly rejected applications advanced by counsel for the defence, whilst accepting prosecution counsel's submissions. 31. The repeated applications, all, as the judge found and as we endorse, without foundation, were bound to cause any judge displeasure. This judge, rightly, sought to compel counsel for the defence to comply with his rulings and get on with the case. In our view, he was justified in doing so. The response from counsel himself was repeatedly and publicly to blame the judge for rejecting his submissions, and to attempt to indicate to the jury that the judge was unfairly restricting his defence. This was not justified. This court will support and respect counsel for the defence, when undertaking a difficult defence, doing so in a robust and forceful manner; our system of trial depends upon courageous and independent minded advocates. But from time to time both judges and counsel become irritated with each other, that is only human, and it must always be remembered that there sits in the dock an accused, facing possibly a long term of imprisonment, who will find such displays of irritation or anger less easy to understand. They tend to exacerbate any feelings of unfairness the accused feels. 32. In this case, we have considered all the transcripts with which we have been furnished. Our views of the judge's rulings demonstrate that he was right to reject them and right to seek to curb the defence counsel's wish to widen the ambit of the case beyond that which was relevant. From time to time we fear that counsel, in his laudable wish to strain to the utmost on his client's behalf, overlooked his obligations to prepare and conduct the case in accordance with the overriding objective in the Criminal Procedure Rules 2010. That objective is that cases should be dealt with justly (see paragraph 1.1 and 1.21(a)). We acquit counsel of any deliberate attempt to antagonise the judge so as to gain some advantage, either at the trial or on appeal. The 2010 Criminal Procedure Rules do not permit the Liverpool defence nowadays. But from time to time we have to say that defence counsel gave the appearance of doing so in his discourtesy to the judge. 33. Equally, the judge must not permit himself to show anger or display sarcasm to counsel, however provoked he may be. From time to time it is clear that the judge was sarcastic and, unfortunately, showed his irritation with counsel. On one occasion he did so without justification. When the prosecution called the official, Mr Stone, it did so to give evidence about the nature of frauds such as the one in which it was alleged the appellant had been involved. Counsel for the defence, perfectly properly, started to set the ground for the cross-examination which he wished to advance, drawing out from the witness certain features in favour of the defence. He started by questioning the suggestion that he was familiar in his experience with the legal process and then asked whether his opinion evidence comes from an expert. The judge intervened, asking whether he was trying to make a point. 34. In our view, easy though it is to criticise, we have to say the judge intervened too soon. Counsel responded that he was giving evidence as an expert. This, unfortunately, the judge rejected. He said it was not evidence of expert evidence and that counsel for the defence should have objected earlier. When the defence counsel demurred and said he did not have to, the judge said: "You do know the professional rules. I would be grateful if you would oblige with it". Counsel protested and objected that he had been accused of not knowing the professional rules in front of a jury, to which the judge responded that he was merely politely reminding him of them. This exchange, and it was not the only bad tempered exchange, unfortunately is an example where the judge was wrong. Mr Stone was called as an expert. There was no basis upon which defence counsel could have objected to him being called as an expert. Indeed, he was relying upon his expertise to make the points by way of cross-examination. 35. This was a rare occasion when, as it seems to us, the judge was in the wrong and counsel was in the right. On other occasions, we take the view that he had every justification for rebuking Mr Offenbach, who has conducted this appeal with conspicuous skill and courtesy but who seems to have been driven in his disappointment as to the adverse rulings from time to time to step over the mark of the normal politeness between counsel and the judge. It was wrong to accuse the judge of hostility, still less of bias against either the defendant or his counsel. If counsel make repeated unjustified applications, then counsel must expect a rebuke. 36. The rebukes should not have been the subject matter of any grounds of this appeal and we recall that when the single judge, Blake J, first saw this case, he refused permission. We reject any suggestion of unfair hostility or bias against the judge. The accusations should never have been made, either at the time or now. We think that the judge displayed, in the main, great patience. 37. A further allegation made against the judge is that he was either feigning sleep, or was asleep, or deliberately displayed disinterest by not taking notes during passages in the cross-examination, taking off his glasses or closing his eyes. The prosecution deny that that took place. 38. We do not intend to say more than that the judge was under no obligation to note parts of the evidence that he regarded as irrelevant or unhelpful, whether in chief or in cross-examination. But, as we are confidant the judge is well aware, he must not display to the jury in dumb show that the evidence is irrelevant or that the jury should disregard it. He must either let the evidence in and let the jury decide as to its relevance, or rule it out. The judge, we accept, may from time to time have displayed disinterest in passages of the evidence, but we are quite satisfied that that did not lead to any unfairness in the conduct of the trial or deflect the jury from its task. We are confidant in that conclusion because of the care in which this judge drafted his summing up. That amply demonstrates that, in the precision that he exercised, he had paid acute attention to this appellant's case. 39. Ground 11 of the grounds of appeal suggest that the summing up was unfair, in that it was too short. The judge summed up the case up in two and a half hours after a 6 week case. We wish to emphasise that the summing up was a model of how such cases should be summed up. It omitted reference to some of the points the defence wished to make but it clearly laid the issues before the jury and the defence the appellant sought to advance; that he had no knowledge, that he had been set up by others and was angry about it. All the points that were necessary to lay before the jury were sufficiently covered. Any points the defence wished to advance by way of argument did not require repetition by the judge. It was not for the judge, and indeed would have been wrong for him, merely to repeat those arguments which defence counsel sought to advance. There was no lack of balance, there was no unfairness and, in our view, there was no basis for challenging this summing up. 40. It was suggested that the judge wrongly commented on the failure of the defence to make admissions. It is worth illustrating the strength of this, like many other of defence counsel's arguments, by quoting from what the judge said about the absence of admissions in his summing up: "The defence declined to make any admissions of fact in this trial, so the prosecution were put to proof of the fraud and you heard a number of witnesses proving it. You do not hold that against the defendant. He is quite entitled to put the prosecution to proof of the fraud but you will recall, members of the jury, that almost immediately when he gave evidence he did not dispute that all the transactions he took part in were part of an MTIC fraud". 41. It is quite wrong for anyone to suggest that that contains any criticism. It does not. 42. The background to that allegation was the failure of the defence to make some 100 admissions that it had made in the earlier trial, because it said the prosecution had failed to make 9 admissions or so that it had made in the earlier trial. Prosecuting counsel, in our view, was quite entitled not to repeat those admissions. They had been admissions mainly in relation to money laundering in Hong Kong and had led to arguments by way of diversion or deflection from the central focus of the trial. Prosecuting counsel, in our view, was right not to repeat them. Her stance was no justification whatever for the defence not to repeat the admissions. We have already referred to the Criminal Procedure Rules. Counsel, having sanctioned the making of admissions in the first trial, was not justified in refusing to make them in the second trial, unless the evidence or some point that had emerged in the evidence of the first trial demonstrated the lack of wisdom in doing so. Indeed, not to do so was, in our view, a breach of the rules. The trial judge would have been justified in requiring counsel to make those admissions in writing, absent any justification for not doing so. The judge did not take at that approach. Certainly, it led to no criticism within the summing up. 43. The final ground with which we chose to deal is ground 9. There had been found a document written by a witness, a man called Hollins who had been employed by this appellant, that referred to a chain. The appellant called Hollins. The appellant's counsel was, with full justification, under the impression that Hollins was a man of good character. Unfortunately, he was not. After he started to give evidence, the prosecution discovered that he was a man with previous convictions. Without warning, prosecuting counsel asked the witness whether he was of good character, and when he said he was not she launched into a cross-examination as to some of his previous convictions until he was stopped. That led to submissions in the absence of the jury, in which the judge ruled that the only conviction that should have been and should be put to the witness, and the only conviction relied on, was in fact a caution not a conviction for dishonesty of an offence of theft. 44. Prosecuting counsel realises now that she should not have adopted that approach. Although she had no advance warning of this witness, once she discovered the convictions she should have asked the jury to go out and then made her application, if necessary, in the absence of the witness. She regrets it now and has very fairly expressed that regret. The point was dealt with with conspicuous fairness by the judge in the summing up, in reality it disappeared. Certainly the approach of counsel, whilst it was wrong, did not lead to any unfairness in the trial, because there was no basis for excluding the witness' caution. 45. We have considered all the grounds advanced in this case. What is more, we have looked at this case overall. In our judgment, the appellant has no ground of complaint whatever. Defence counsel had a difficult defence to run. Here was a comparatively young man, about 37 at the time, without any experience of such trade, who suddenly saw the opportunity for great wealth. It is difficult to see how he could conceivably think that the gains he made, the rewards he found over such a short time, could have been made without realization that he was participating in some fraud or cheat. These cases should always be focussed on that simple fact. The defence inevitably tried to spin out such cases with applications for discovery in linked cases, arguments about the non-prosecution of others, or the fact that hapless Customs officials, when visiting, did not advise them earlier or stop them persisting in such a trade. None of these features touch upon the essential question and the judges should strive to confine these cases to the essentials. These cases do not warrant long trials, which only deflect a jury from the real question that they have to consider, namely how could a defendant in a position such as this appellant think that he should gain such sudden and dramatic wealth in a trade in which he must have known fraud was rife? 46. We have not considered in detail further examples of the way in which this case was unnecessarily prolonged, or exchanges in what sadly was an ill tempered trial. But the defendant himself should be assured that we are satisfied that he did have a fair trial, and he had the benefit of a robust counsel who did his utmost to defend him. However, for reasons we have given, this appeal is dismissed. (Submissions re sentence) 47. LORD JUSTICE MOSES: The appellant renews his application for permission to appeal against sentence, now that his conviction appeal has been dismissed. He was sentenced to 7 years' imprisonment and disqualified under section 2 of the Company Directors Disqualification Act 1986 for 6 years. 48. He was a comparatively young man, 37, at the time of these offences, 41 now, of positive good character and, as we indicated in the appeal, it was sad that he should be tempted in this way to make so great a reward. But he did make substantial monies out of this until he was stopped by his arrest. He was involved in a particularly serious type of fraud. 49. In excellent submissions, Mr Offenbach contends that the sentence of 7 years was manifestly excessive, mainly on the basis that it was out of line with previous authority, particularly the case of Takkar [2008] EWCA Crim 646 , and the case on which it was based, Attorney General's Reference numbers 88 to 91 of 2006 EWCA Crim 225 for Mehan and others . The bracket, he contended, for offences where the loss is greater than £20 million and the fraud is undertaken for periods of more than a year, is between 6 to 8 years. This appellant, so it was contended, was only involved for 3 months and the loss, as the judge recorded, was only £10 million, with a personal gain somewhere between £300,000 and £600,000. 50. Whatever the suspicions of the judge, we are quite satisfied he did only deal with him on the basis that his company was a buffer. We take the view that the sentence of 7 years was severe, at the top of the bracket for a case such as this with a man of good character, but nonetheless was not manifestly excessive. We do not think it arguable to the contrary. 51. In those circumstances, the application is refused.

2010_11_23-2557.xml

dismissed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/3202/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/3202

609fd392171be623b5e8298bbfe717352af3d7d5ef15081877b8151a95d1f95a

[2023] EWCA Crim 802

EWCA_Crim_802

crown_court

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making are that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. I N THE COURT OF APPEAL CRIMINAL DIVISION Case No: 2018/01608/C3 NCN: [2023] EWCA Crim 802 Royal Courts of Justice The Strand London WC2A 2LL Friday 30 th June 2023 B e f o r e: LORD JUSTICE STUART-SMITH MR JUSTICE JACOBS HIS HONOUR JUDGE JEREMY RICHARDSON KC ( Sitting as a Judge of the Court of Appeal Criminal Division ) ____________________ R E X - v - MICHAEL JOHN LOVELL ____________________ 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) _____________________ Non-Counsel Application ____________________ J U D G M E N T ____________________ Friday 30 th June 2023 LORD JUSTICE STUART-SMITH: I shall ask Mr Justice Jacobs to give the judgment of the court. MR JUSTICE JACOBS: Introduction 1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of the offence. That prohibition applies unless waived or lifted in accordance with section 3 of the Act . 2. On 15 th March 2018, following a trial in the Crown Court at Bournemouth before His Honour Judge Climie and a jury, the applicant (then aged 59) was convicted by a majority of 11:1 of one count of rape (count 4) and was sentenced to a Special Custodial Sentence of 15 years, comprising a custodial term of 14 years and an extended licence period of one year, in accordance with section 236 A of the Criminal Justice Act 2003 . He was acquitted of count 1 (indecent assault), counts 2 and 3 (rape), and counts 7 and 8 (rape), which we will describe in due course. Counts 1 to 3 related to the complainant's mother; counts 7 and 8 related to the complainant. In addition, the applicant was acquitted on the judge's direction of counts 5 and 6 (rape of the complainant). In relation to those counts, no evidence was offered against him and not guilty verdicts were entered, pursuant to section 17 of the Criminal Justice Act 1967 . 3. The applicant now applies for an extension of time (1433 days) in which to renew his application for an extension of time of four days for leave to appeal against conviction, following refusal by the single judge in September 2018. 4. The original application for leave was drafted by trial defence counsel and was confined to a single short point. In connection with the renewal application the applicant has not had the assistance of counsel. His grounds of appeal were originally set out in a form completed on 21 st November 2022. Subsequent to the form completed in support of the renewal, he has provided a large number of handwritten letters which reiterate or supplement those points. The points now advanced are numerous and the original ground of appeal drafted by counsel is not the focus of the application. 5. The applicant also seeks to adduce fresh evidence from four witnesses who attended various parts of the trial. That evidence does not relate to the underlying offence of which the applicant was found guilty. Rather they concern aspects of the conduct of the trial towards its conclusion and specifically: (1) a statement alleged to have been made by the trial judge at the end of the trial, when he is said to have told the jury that if they could not reach a decision, he would make it for them; and (2) the absence of a juror from court at the time when the jury were sent to deliberate. Neither allegation finds any support in the transcript of the trial and indeed each is contradicted by the transcript. The Facts 6. In 2013 the complainant, "C", disclosed to his then girlfriend that he had been sexually abused as a child by the applicant, who was at that time in a relationship with the complainant's mother. C then repeated the disclosure to his mother and father and, as a result, the matter was reported to the police and a video interview conducted in July 2013. 7. C said that he was first sexually abused by the applicant when his mother was not present in the house. The applicant was drunk and entered his bedroom and repeatedly told him to take off his clothes. C said that he did not want to and asked why. However, when the applicant became overtly aggressive, in fear he agreed. He recalled the applicant commenting something like this: "Well, you might like this, give it or not. It's not your choice". He recalled that his head was then held to the bed whilst the applicant penetrated his anus. C said that it became habitual, up to once or twice a week. He did not tell anyone because he was not sure how to complain and worried that no one would believe him. 8. C's evidence was that the abuse only occurred at one address. During the trial, it was established that they had moved to that particular address in June 1999, when C was 10 years old. In light of that agreed fact, the judge directed not guilty verdicts in relation to counts 5 and 6, and the prosecution were allowed to amend the particulars of counts 7 and 8 to increase the number of alleged occasions so as to reflect C's evidence that he was raped once or twice a week each year. Counts 7 and 8 then alleged rape on at least 20 occasions. 9. The defence case was that this never happened. The applicant gave evidence that he was never alone with the complainant and that the complainant was either at his father's address or at his grandparents' address at the weekends. There were, he said, extremely rare occasions when he was alone with C and there was no opportunity that would ever have allowed for the abuse that C described to have taken place. He had no idea why the allegations were being made, but they were not true. 10. The issue for the jury was factual: whether the applicant penetrated the complainant's anus, and, if so, on how many occasions in relation to counts 7 and 8. The Trial 11. We have been provided by the applicant with a transcript of the trial, as well as the summing up and developments after the summing up, including the jury verdict. The transcripts have been prepared by The Transcription Agency, a company independent of the court system, and they contain certifications that the transcript is an accurate and complete record of the proceedings or part thereof. 12. The applicant's proposed grounds of appeal include complaints as to the completeness of the transcript provided. He alleges that certain passages have been omitted. One passage is the alleged statement by the trial judge to the jury to the effect that if they could not decide the case, he would do so. 13. From our reading of the transcripts, we are entirely satisfied that the transcripts are a genuine record of the proceedings which took place. We have no reason to doubt their accuracy or completeness. We have read many transcripts in the course of sitting on criminal appeals, and there is nothing at all unusual about these. The transcripts enable one to see exactly how the case developed, the closing speeches made by the prosecution and defence, the summing up and the delivery of the verdict by the jury. 14. Defence counsel has provided a response to certain allegations made by the applicant, including the extraordinary allegation that the trial judge, the prosecution barrister, and possibly the defence barrister have all been involved in editing the recordings sent to the transcript company so as to remove evidence and judicial directions. Defence counsel says that this was completely untrue. 15. We have no doubt that this very serious allegation is untrue. There is nothing in the transcript to suggest such editing, or to contradict the certification by the transcriber. None of the individuals referred to, including the trial judge, would have any involvement in the production of the transcript. 16. It is also clear from a reading of the transcript that the applicant was well represented by trial counsel. Counsel conducted a thorough cross-examination of both C and his mother. His closing speech to the jury was well constructed and advanced well-judged arguments. He achieved a considerable measure of success in that the applicant was acquitted of all counts involving C's mother, and was also acquitted of counts 7 and 8, which involved allegations of multiple rapes of C. 17. One of the points made by defence counsel in closing argument in relation to those counts was that the jury had to be sure that C was raped on no less than 20 occasions during each of the periods covered by those counts. The jury verdict was to convict of count 4, which concerned the first occasion when the rape happened, but to acquit in relation to the charges of multiple rapes. This is readily understandable. The jury were sure that the first rape happened, but were unsure as to whether or not there were 20 rapes during each of the periods charged in counts 7 and 8. 18. This disposes of the only point advanced in counsel's original grounds of appeal which argue, by reference to the acquittals on counts 7 and 8, that there was a lurking doubt that something went wrong with the jury's verdict. On that point the single judge said that there was "nothing illogical or necessarily surprising in the jury being sure that you had raped the complainant on at least one occasion, but not being sure that you had committed at least 20 further rapes in each of the periods specified". We agree with the single judge's observation. 19. In his Advice on Appeal, defence counsel said expressly that "there is no complaint about the trial process or the summing up". 20. None of the other points now raised by the applicant as defects in the trial process were apparent to defence counsel in 2018. This is not surprising. The transcript shows that that trial was conducted with professionalism by the judge, prosecuting counsel and defence counsel. The directions of law to the jury were clear and contained no error. The summing up of the evidence was concise, with the jury being focused on the critical factual issues which they needed to consider. That the jury applied themselves properly to that task is apparent from their decision to acquit on all of the counts, except for count 4. 21. It is apparent from our reading of the papers in this matter that many of the points raised by the applicant are so implausible that they must be untrue and are obvious fantasy. There is no record of the judge telling the jury that if they could not come to a decision, then he would do that for them. No judge sitting in a criminal case would ever do such a thing. Defence counsel, unsurprisingly, has said that this allegation is completely untrue. If this had been said, there would have been an immediate objection from defence counsel and it would have been the first ground of appeal. Unsurprisingly, the transcript records no such statement having been made. On the contrary, the judge dealt carefully with a problem which arose when one juror injured himself playing football. The defence did not want the jury to go down to 11 and the result was that there were some delays so that the juror could recover sufficiently in order to attend. 22. Another argument, supported by the fresh evidence which the applicant has sought to adduce, is that the adverse verdict was not an 11:1 majority verdict. This was because, albeit unrecorded on the transcript, the jury had been reduced to 11 people. This allegation is also obviously untrue. The concluding part of the judge's summing up includes a direction to the jury to reach a unanimous verdict on which all 12 of them were agreed. When the jury foreman delivered the verdict, he said that it was an 11:1 verdict. At no stage does the transcript record any juror being discharged. 23. The applicant also alleges that he had only a brief meeting with his lawyers prior to trial. This allegation was also made, together with many of the applicant's other allegations, when the applicant's case was considered by the Criminal Cases Review Commission ("CCRC") in 2022. The CCRC had obtained the relevant file from the applicant's solicitor and rejected the argument that the defence team failed to prepare for the trial. They considered conference notes in February 2018 (approximately one month before trial), which indicated that a detailed discussion took place on a large number of material issues. This was after a lengthy proof of evidence had been obtained from the applicant. The same point is made in a letter from the solicitors sent in response to the present allegations made by the applicant. 24. The CCRC also expressed the view that the Court of Appeal would not consider that the applicant was poorly represented. That is precisely our view. 25. We will not discuss each of the other points raised by the applicant. Most if not all of them relate to the applicant's disagreement with the verdict which the jury reached on the facts. However, it was for the jury to decide the facts. In circumstances where there was no irregularity in the trial process or defect in the summing up, and where the jury's verdict is readily understandable, there is no basis for this court to interfere with the verdict of the jury. 26. The CCRC decided that there was no real possibility that the applicant's conviction would not be upheld. It therefore decided not to refer the case to the Court of Appeal. For our part, we have concluded that there are indeed no arguable grounds for saying that the applicant's conviction is unsafe. 27. We therefore refuse the renewed application for leave to appeal. We refuse the application to adduce the new evidence to which we have referred in the course of this judgment. We also refuse the application for a very lengthy extension of time. The applicant has said that he did not originally renew the application because the single judge had ticked the box which warned him that a renewal would result in a loss of time. 28. In our judgment, this renewed application is so completely lacking in any merit that it is, exceptionally, an appropriate case for a loss of time order. The applicant will therefore serve an additional 28 days. __________________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk ______________________________

2023_06_30-5735.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/802/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/802

b91efdb3bb0a5fd5b9442187557258780740e45c64fe2b7f2d95dd2877933cb4

[2008] EWCA Crim 1119

EWCA_Crim_1119

crown_court

No: 2008/1433/A3 Neutral Citation Number: [2008] EWCA Crim 1119 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 7 May 2008 B e f o r e : LORD JUSTICE HUGHES MR JUSTICE TREACY SIR PETER CRESSWELL - - - - - - - - - - - - - - R E G I N A v DENNIS CAVE - - - - - - - - - - - - - - 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 140

No: 2008/1433/A3 Neutral Citation Number: [2008] EWCA Crim 1119 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 7 May 2008 B e f o r e : LORD JUSTICE HUGHES MR JUSTICE TREACY SIR PETER CRESSWELL - - - - - - - - - - - - - - R E G I N A v DENNIS CAVE - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - Mr T Evans appeared on behalf of the Appellant - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE TREACY: This appellant is Dennis James Cave. On 17th December 2007 at the Crown Court at Cardiff he pleaded guilty to conspiracy to transfer criminal property. He was sentenced on 3rd March 2008 by His Honour Judge Denyer to a term of three years' imprisonment. The judge directed that 20 days spent on remand should count towards sentence. 2. There were two co-accused involved in the matter: a man called Hughes who pleaded guilty to the same conspiracy (count 1) as that involving Mr Cave, but also a further offence (count 2) of concealing criminal property. He was sentenced to three years' imprisonment consecutive to a term of 310 days, which represented a period of licence recall pursuant to section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 . There was a further co-accused, a man called McHale, who was found not guilty. 3. The facts of the matter are these. On 5th September 2007 officers of the Serious Organised Crime Agency were conducting observations on Hughes. They saw him leave Swansea and drive to Bristol. During the course of the morning he was seen to make several phone calls and just before 2 o'clock in the afternoon he went to a shopping centre in Bristol. At about 2.20 pm he met the appellant and McHale outside a cafe. McHale was carrying a distinctive orange bag which he passed on shortly afterwards to the appellant. The three men sat together at a table. An undercover officer was able to sit very close to them and was able to overhear what was being said. During the course of the conversation there were obvious references to drugs. 4. At about 2.45 pm the three men left the cafe. By this time Hughes was in possession of the distinctive orange bag and it remained in his custody until he was arrested in Bristol at about 3.30 pm. When the bag was searched it was found to contain £65,480 in cash, split into eleven separate bundles, containing largely Scottish notes. 5. At about 9.40 pm on the same day the car in which the appellant was sitting was stopped. The appellant had hired the car in a false name and was en route back to Liverpool from whence he had started. He and McHale were arrested. When arrested the appellant gave a false name. It was the same false name that he had used to hire the car in the first place. After arriving at the police station he admitted his true identity. 6. Telephones were examined and that showed that there had been a number of calls between this appellant and Hughes not only on 5th September but also on the day before. When Hughes' home was searched a box was found and inside that was approximately £23,000, that represented the additional count (count 2) to which Hughes pleaded guilty. In interview the appellant largely made no comment but disputed that there was any mention of drugs overheard by the officer whilst the men were outside the cafe in Bristol. 7. This appellant is now 36 years of age. He has previously been convicted. His convictions include a conviction for possession of heroin with intent to supply. He was sentenced to three years' imprisonment for that offence on 22nd September 2005. He was released from that sentence on licence on 9th November 2006 and was still on licence at the time this offence was committed. 8. There was a pre-sentence report available to the judge. It showed that the previous licence had been revoked at the end of September 2007. 9. Mr Evans, who has made succinct but pointed submissions to us this morning, says that the sentence which was imposed was manifestly excessive. He points first of all to the early plea of guilty which was tendered in this case. Secondly, he points to the fact that this was a single transaction, that it involved £65,000 whereas some other cases have involved considerably greater amounts. He submits that the role of this appellant was that of a delivery man who was an important part of the chain but not someone who was going to be involved in the ultimate processing of these criminal proceeds. He also observed on behalf of the appellant that the judge's remarks showed that the appellant had no knowledge of the precise initial criminal source of the money. 10. This appellant pleaded guilty to conspiracy to transfer property knowing it to be criminal property. The base offence is to be found at section 327(1) of the Proceeds of Crime Act 2002 . The offence can be committed by a person who either knows or suspects that he is dealing with property representing benefit from criminal conduct. But in this case guilty knowledge was admitted and that represents more culpable conduct than mere suspicion. In this case the appellant has the benefit of an early plea. There is an issue raised as to whether the appellant knew that the money was the proceeds of drug dealing. He had apparently offered his plea to the Crown on the basis that he did not know that the money represented the proceeds of drug trafficking. The Crown's written response was that they had no evidence to gainsay this and so a plea on that basis would probably be acceptable. There does not appear to have been any written basis of plea put before the judge but the correspondence was referred to by counsel at the appellant's sentencing hearing and the pre-sentence report available to the judge reiterated the appellant's case as to the state of his knowledge of the source of the money. 11. By that stage the judge had heard evidence from undercover officers in McHale's trial as to the conversation relating to drugs at the cafe in Bristol. The judge did not call for a Newton hearing and in passing sentence on this appellant he said as follows: "There is no doubt, though, that, by your own admission, you were involved in transporting that money from Liverpool to Bristol. There is no doubt that there was some communication between you and Mr Hughes and, in my judgment, having heard some of the evidence in the trial of McHale, there is no doubt that there was some discussion about drugs and I think it probable that this was drugs money." It does not appear therefore that a finding was made as against this appellant that he knew that what he was dealing with was the proceeds of drug trafficking as opposed to other criminal property. The finding that the conversation generally was probably to do with drugs would be insufficient to show more. 12. The appellant's previous recent involvement as a courier in class A drug supply and his commission of this offence whilst still on licence for that matter are plainly aggravating features of this case. The fact that the appellant was involved on this occasion in a single transaction as a courier has to be viewed in the context of the previous conviction. 13. The Proceeds of Crime Act 2002 has replaced earlier legislation which distinguished between drug related and non-drug related money laundering offences. In R v Monfries [2004] 2 Cr.App.R (S) 3, Cresswell J giving the judgment of this court made certain observations which appear to us to remain helpful in assessing sentence under the 2000 Act , notwithstanding that those observations were made in a drug trafficking case under the old legislation. At paragraph 7 his Lordship said this: "The relevant considerations that apply in cases of this type include the following: (i) The circumstances of assisting another to retain the benefit of drug trafficking and/or criminal conduct vary so widely that this court has not to date provided detailed guidelines. (ii) There is not necessarily a direct relationship between the sentence for the laundering offence and the original antecedent offence. Where, however, the particular antecedent offence can be identified, some regard will be had to the appropriate sentence for that offence, when considering the appropriate sentence for the laundering offence. (iii) The criminality in laundering is the assistance, support and encouragement it provides to criminal conduct. (iv) Regard should be had to the extent of the launderer's knowledge of the antecedent offence. (v) The amount of money laundered is a relevant factor." 14. In this case the judge was not sure that the monies involved were the proceeds of drug trafficking, although it may be thought that since the Proceeds of Crime Act 2002 now concentrates on benefit deriving from all criminal conduct that that is a factor of lesser importance than it may have been in the past. The judge having made no finding against the appellant in respect of knowledge of the actual source of the money was entitled to pay some regard to it, although its weight in our judgment must be relatively limited. The gravamen of this offence now is the dealing with the proceeds of criminal activity knowing that that was the case. 15. This appellant played a significant role by travelling from Liverpool to South Wales with approximately £65,000, having prearranged the trip and a meeting by telephone and having hired a car in a false name. This would seem to suggest that he was a person who was trusted and who was not a mere cipher in the operation. It is rightly pointed out that the single trip and the amount of money involved are in contrast to larger cases involving ongoing money laundering. Those are plainly relevant considerations. 16. Having taken account of all the circumstances, we take the view that the sentence passed in this case, which represents a term of four-and-a-half years after a trial, was too long. Taking account of the aggravating feature of the previous conviction we have come to the conclusion that a sentence of three-and-a-half years after a trial would have been appropriate. Giving full credit for an early plea, that would reduce the sentence to one of two years and four months and we substitute that term for the term which was imposed by the judge. To that extent therefore this appeal is allowed.

2008_05_07-1495.xml

allowed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/1119/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/1119

a8912446405af46828dc9b51950519979ca758cdb71ede154ae92aaa5616ce27

[2014] EWCA Crim 318

EWCA_Crim_318

crown_court

Neutral Citation Number: [2014] EWCA Crim 318 Case No: 201306374/B2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 12th February 2014 B e f o r e : PRESIDENT OF THE QUEEN'S BENCH DIVISION (SIR BRIAN LEVESON) MRS JUSTICE THIRLWALL DBE MR JUSTICE LEWIS - - - - - - - - - - - - - - - - - - - - - R E G I N A v WILLIAM THOMAS MITCHELL - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave Intern

Neutral Citation Number: [2014] EWCA Crim 318 Case No: 201306374/B2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 12th February 2014 B e f o r e : PRESIDENT OF THE QUEEN'S BENCH DIVISION (SIR BRIAN LEVESON) MRS JUSTICE THIRLWALL DBE MR JUSTICE LEWIS - - - - - - - - - - - - - - - - - - - - - R E G I N A v WILLIAM THOMAS MITCHELL - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr D Comb appeared on behalf of the Applicant Miss A Levitt QC & Miss C Goodwin appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. PRESIDENT OF THE QUEEN'S BENCH DIVISION: Is a paramedic employed by a National Health Service Trust in its ambulance service the holder of a public office so as to be subject to criminal sanction for misconduct? 2. On 9th December 2013 in the Crown Court at Durham, the Recorder of Durham, His Honour Judge Prince, answering the question in the affirmative, declined to dismiss such a charge alleged to have been committed in these circumstances. As a result, the applicant, William Mitchell, pleaded guilty to the offence. The Registrar has referred his application for leave to appeal against conviction to the full court, based upon the ground that Judge Prince erred in law and should have answered in the negative. We grant leave. 3. The facts can be shortly summarised. The North East Ambulance Trust ("the Trust") is an NHS Trust which provides a public benefit by way of the provision of emergency healthcare to those in its catchment area who require assistance. In doing so, the Trust fulfils one of the responsibilities of government to provide healthcare services to the public. 4. Mr Mitchell was employed as a paramedic by the Trust, responsible for manning an ambulance which responded to emergency and other calls for assistance. 5. On 18th April 2013, in the company of a colleague, Mr Mitchell attended the address of a 58-year-old lady to answer an emergency call. The lady had been behaving in a volatile and rather bizarre manner. In a journey lasting some 30 minutes, she was transported to hospital by ambulance with Mr Mitchell in the rear of the vehicle in order to carry out his duties as a paramedic. The driver was unsighted as to what was happening in the rear of the ambulance. 6. When the patient later arrived home and, again, the following day, 19th April, when again she was being transported by ambulance, she made a complaint that the paramedic who had previously looked after her in the rear of the ambulance had repeatedly touched her breasts, removed his penis from his trousers and placed her hand on his penis. Examination of the CCTV of the rear of the ambulance entirely corroborated the essential elements of this complaint. That Mr Mitchell failed to conduct himself in accordance with his duty both to the patient and to his employers is beyond argument and he has since ceased to be employed by the Trust. 7. Miss Alison Levitt Q.C. for the Crown accepts that prosecutors should generally charge a statutory offence when one is available and, although not apparent from the short summary of the allegation to which we have referred, she has given cogent reasons for the CPS decision that it would not have been appropriate to prosecute Mr Mitchell for a sexual offence. It was in those circumstances that, in accordance with the issued guidance, consideration was given to the offence of misconduct in public office. 8. That offence requires an analysis of the individual duties and responsibilities of a paramedic which are to provide, under the direction of the body by which they are employed, healthcare to members of the public in emergency situations. We repeat: the question is, does that constitute a public office? 9. The judge responded in the affirmative. Relying on the decision of this court in R v Cosford, Falloon & Flynn [2013] EWCA Crim 466 , [2013] 3 WLR 1064 , [2013] 2 Cr App R 8 , in which nurses employed within the prison service were held, as a matter of law, to hold public office, he expressed himself of the view that: "a doctor, nurse or paramedic falls within the definition of a man accepting an office of trust concerning the public, answerable criminally for misbehaviour in office." 10. Before turning to the submissions in this case, it is appropriate to rehearse parts of Cosford which analysed the development of the offence of misconduct in public office and collected together a large number of examples of the way in which the term 'public office' had been interpreted. Having referred to the observations of Gross LJ in R v Belton [2011] QB 934 , [2010] EWCA Crim 2857 to the effect that there was good reason to confine the offence "strictly within proper grounds", the court in Cosford went on (at [34]): "Nothing in the authorities justifies the conclusion that the 'strict confinement' should be to the position held by whomsoever is carrying out the duty: rather, it should be addressed to the nature of the duty undertaken and, in particular, whether it is a public duty in the sense that it represents the fulfilment of one of the responsibilities of government such that the public have a significant interest in its discharge extending beyond an interest in anyone who might be directly affected by a serious failure in the performance of the duty. This is consistent with Lord Mansfield's observation in Bembridge referring to 'an office of trust concerning the public.'" 11. The argument of the appellants in Cosford proceeded on the premise that a nurse outside the prison service could not be considered to be the holder of a public office and the judgment went on (at [36]): "In our judgment the aphorism from the evidence adopted by [counsel for an appellant] that 'a nurse is a nurse' does not start to do justice to the task which these appellants undertook. The responsibilities of a nurse in a general hospital are to patients for whose care they are responsible; the responsibilities of a nurse (whether trained as a prison officer or not) in a prison setting are not only for the welfare of the prisoners (their patients); they are also responsible to the public for, so far as it is within their power to do so, the proper, safe and secure running of the prison in which they work. The duties [of a prison nurse] ... more than amply fulfil the requirements of a public office..." 12. With clarity of exposition, Mr Comb puts the matter simply. He argues that it is clear from Cosford that a nurse acting within the NHS is not a public officer because his duty of care is to the patient. They have no additional powers or privileges over other persons. The prison service nurse, on the other hand, has a broader responsibility to the public, inter alia, to avoid corruption by prisoners of the institution in which they are incarcerated. He also referred to the context that the prison service nurses knew that security was a fundamental consideration to the Prison Service and that they were expected to behave in a fashion that did not jeopardise it, that each were issued with prison keys and each had a duty to raise issues that might compromise security which they were required to treat as a matter of high priority. 13. Miss Levitt argues that, although Judge Prince went too far in holding that, in general, a doctor, a nurse, and a paramedic are all public officers, he came to entirely the right conclusion in respect of Mr Mitchell's role. In that regard, she submits that a court must consider the nature of the organisation for which the defendant works, the functions and duties of the role (in particular whether they could properly be described as providing or contributing to a public service), and the degree of public trust reposed in respect of that position. Thus, her submission is that whether or not a particular post or occupation is a 'public office' is a combination of status and function. 14. In that regard, Miss Levitt points to the fact that Mr Mitchell was employed as a member of crew in an NHS ambulance, that service being one of the four frontline emergency services provided by the state for the public benefit. An NHS paramedic is, undoubtedly, contributing to a public service. Further, she points to the level of trust vested by the public in such a paramedic for the treatment of potentially vulnerable patients and the possible lack of choice given to these patients. These features, she argues, demonstrate that Mr Mitchell was acting as a public officer whilst providing emergency healthcare, and also serve to distinguish Mr Mitchell's role from that of other care professionals. 15. Miss Levitt further contends that members of the public may have no choice about whether or not to engage with the ambulance service, and certainly do not have any choice as to the identity of the ambulance crew who arrive to assist them. In particular, it may be the case that those being treated by ambulance crews will not be a position to exercise a choice as to whether or not to invite them into their homes. This, she argues, distinguishes emergency or ambulance paramedics from general practitioners or head teachers in State schools, where members of the public do, in the former case, have a choice as to which GP they attend and the latter to which school to send their child. 16. In our judgment, the proper approach is to analyse the position of a particular employee or officer by asking three questions. First, what is the position held? Second, what is the nature of the duties undertaken by the employee or officer in that position? Third, does the fulfilment of those duties represent the fulfilment of one of the responsibilities of government such that the public have a significant interest in the discharge of that duty which is additional to or beyond an interest in anyone who might be directly affected by a serious failure in the performance of that duty? If the answer to this last question is 'yes', the relevant employee or officer is acting as a public officer; if 'no', he or she is not acting as a public officer. 17. In the context of a case such as this, it is important to underline that the focus is on the duties and responsibilities of the relevant individual and not upon the overall responsibility of the Trust. Thus, there is no doubt that the public has a significant interest in the discharge by the Trust of its duty to provide emergency healthcare which extends beyond the interests of anyone who might be directly affected by a serious failure by the Trust in its operations. Putting the matter another way, it is to the benefit of the public as a whole that the Trust is in a position to provide a competent service to respond to the public's emergency needs. Equally, the public has a significant interest in the discharge by an education authority of its duties to provide children with a safe environment in which to be educated. To focus on the overarching duty of the Trust would be to mean (as the judge foresaw) that every doctor, nurse, paramedic (or indeed employee) of the Trust is a public officer; for an education authority, it would mean that every teacher, classroom assistant or other employee at a school is a public officer. This is not correct. 18. Had that been the position identified in Cosford , it would have been sufficient that the prison nurses were discharging the responsibility of the government to treat individual prisoners then incarcerated in prison. They also would not have had a choice as to the nurse who would look after them. It would not have been necessary, however, for the court to have considered the further duties which they owed to the public (that of a proper, safe and secure running of the prison in which they worked). It was only by virtue of those duties which the appellants owed to the public in general that the nature of their position became such as to justify a significant public interest in the proper discharge of those responsibilities. 19. In this case, the nature of the duty undertaken by ambulance paramedics was to treat and provide emergency healthcare to the individual patients for whose care they become responsible by reason of the circumstances in which they come into contact with them: it is a duty to the individual. In a general sense, of course, the public would be concerned by any example of a breach of the individual duty (such as occurred in this case) but that is not to say that there is a duty to the public which is different from, or additional to, the general duty owed to the individual. There is not. 20. Although advanced with characteristic skill, we do not accept the proposition advanced by Mrs Levitt that the fact that a patient may be unable to exercise a choice is a sufficient factor to justify holding that a paramedic is a public officer. That feature does not transform the duty of the paramedic into one which is different in nature to that of a general nurse or doctor, such that his duty is owed not only to his patient but (in a different or additional form) to the general public. The duty is the same, namely a duty owed to the individual to provide healthcare and treatment to the best of the paramedic's ability. 21. In our judgment, the appellant was not, in his position as a paramedic, acting as a public officer. Although we deprecate his conduct whatever the precise detail, we recognise that in the particular circumstances of this case, a sexual offence may not have been capable of proof. It would be wrong, however, to extend the definition of a public officer to bring his conduct within the purview of the criminal law if it is not caught by these other provisions. In the circumstances, the other argument advanced by Mr Comb in relation to retrospectivity and Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms does not arise. This appeal is allowed and the conviction is quashed.

2014_02_12-3348.xml

allowed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2014/318/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2014/318

a78cfdc20e5f1666d427ea1b55075298627d1ea4a956d0c77fd790f9fce0fbfc

[2017] EWCA Crim 1007

EWCA_Crim_1007

crown_court

Case No: 201603320 C5, 201603658 C5, 201603356 C5, 201603322 C5 Neutral Citation Number: [2017] EWCA Crim 1007 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT MAIDSTONE His Honour Judge Joy T20157008, T20150077, T20157005 Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/07/2017 Before : LORD JUSTICE IRWIN SIR ALAN WILKIE and HIS HONOUR JUDGE DICKINSON QC (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - B

Case No: 201603320 C5, 201603658 C5, 201603356 C5, 201603322 C5 Neutral Citation Number: [2017] EWCA Crim 1007 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT MAIDSTONE His Honour Judge Joy T20157008, T20150077, T20157005 Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/07/2017 Before : LORD JUSTICE IRWIN SIR ALAN WILKIE and HIS HONOUR JUDGE DICKINSON QC (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : (1) Aniela Halina Jurecka (2) Charlotte Elizabeth May Johnson (3) David Edward Smith Appellants - and - The Queen Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr G Harris (instructed by Foxes Solicitors ) for the First Appellant Mrs R Becker (instructed by Foxes Solicitors ) for the Second Appellant Mr R Barraclough QC and Mr C Wray (instructed by Bond Joseph ) for the Third Appellant Mr D Connolly (instructed by The Crown Prosecution Service ) for the Respondent Hearing date: 27 June 2017 - - - - - - - - - - - - - - - - - - - - - Judgment Background 1. On 13 June 2016 in the Crown Court at Maidstone, following a trial lasting more than three months before HHJ Joy and a jury, the Appellants were unanimously convicted of conspiracy to commit fraud by false representation. On 11 July 2016 they were all sentenced to imprisonment of two years and six months. 2. All three Appellants have leave to appeal against conviction on a single ground. The complaint is that the judge in summing up failed to remind the jury of any of the concessions made by prosecution witnesses during cross-examination. Johnson also appeals against her sentence, by leave of Gilbart J. In addition, the first two Appellants (Jurecka and Johnson) renew applications for leave to appeal on other grounds, following refusal by the single judge. The Facts and the Proceedings 3. Aniela Jurecka and Charlotte Johnson were engaged in the business of buying and selling horses. They used the trading name SE Horses. They operated from two farms, Great Thorn Farm, Marden, and Duckhurst Farm, Staplehurst in Kent. The third Appellant, David Smith, was a veterinary surgeon based at the Lakeview Veterinary Centre in Deal. 4. The prosecution case was that the Appellants were all three party to an agreement to commit fraud involving the sale of substandard, injured or unreliable horses to unsuspecting members of the public by making false representations as to the qualities of the animals or their suitability for novice or unconfident riders. It was alleged that they dishonestly gave false descriptions of horses in advertisements and in documents for sale, in sales patter and in answers to prospective purchasers’ questions. Typically, the false representations would relate to the horse’s health, temperament, history, behaviour and particularly to their suitability for novice or inexperienced riders. 5. Many of the horses were said to have been known by them to have physical or behavioural issues which were deliberately masked for the purposes of inspection by prospective buyers using sedatives and/or painkillers, administered prior to the horse being shown. The drugs, it was alleged, were dishonestly supplied by the Appellant David Smith. The drugs were all prescription only drugs and should have been recorded as being prescribed in relation to a specific animal. They were not. The effect of the drugs would be to calm a nervous horse, or diminish or abolish pain in an animal with physical problems so as to give the animal the appearance of complying with the advertisements or sales patter. 6. The fraud also involved Jurecka and Johnson persuading, manipulating or tricking buyers into using Smith for the pre-purchase “vetting” examination. He would play his part by passing horses which would have been failed had he been acting honestly and in the interests of the buyers, which was his professional and legal duty. 7. All of the Appellants denied that there was a conspiracy to defraud buyers and denied being party to any such conspiracy. If there were any shortcomings in the descriptions of horses for sale, they were not dishonest, particularly in the context of a world where descriptions of a horse for sale may often not be full and frank. 8. The issue for the jury was whether they were sure that each defendant was party to an agreement with another that an animal, or animals, should be dishonestly sold by pretending to the buyer that the animal was materially different from the truth. 9. Amongst other evidence, the prosecution relied upon seventeen specific transactions as evidencing the broader conspiracy between the parties. The exhibit file included many thousands of text messages, mainly from Jurecka’s mobile phone, in addition to notes, e-mails and letters concerning other horses sold during the indictment period, which ran from 1 June 2008 to 31 December 2013. The case was structured around the seventeen specific sales of horses. Purchasers gave evidence concerning the transaction and about what took place with the horse after the purchase. There was also a great quantity of evidence from veterinary surgeons, farriers and other professionals, as to the animals’ defects and whether they were likely to have been pre-existing. 10. The bundles provided to the jury were subdivided by reference to these seventeen sales, and the papers and documents for the jury were organised according to each sale, a matter which was of some significance as we shall see. The seventeen transactions, organised in point of time and by name of horse, were as follows: i) Jimmy : purchased by Emma Stephens in October 2008. ii) Marcello : purchased by Rosalind Sykes in December 2008. iii) Charlie : purchased by Diane Hogben in August 2009. iv) Snip : purchased by Jacqueline Lowe in January 2010. v) Jack : purchased by Natasha Bartlett in July 2010. vi) Belle : purchased by Oliver Chinery in October 2010. vii) Ollie : purchased by Janet Dellaway in January 2011. viii) Bentley : purchased by Susan Leigh in April 2011 (statement read). ix) Ali G, aka Bentley : purchased by Frances Taylor in June 2011. x) Oakley : purchased by Stacey Boy in June 2011. xi) Ringo Cody : deposit paid by Andrea Vizzard in June 2011 who withdrew after further inspection; then sold same month to Vanessa Harris-Magri. xii) Blake aka Bruce : purchased by Emma Boughton in October 2010 and Elizabeth Molyneux in September 2011. xiii) Christopher : purchased by Samantha Drummond-Hay August 2011. xiv) Ben, aka Salvador Dali : purchased by Delia Silver December 2011. xv) Duchess : purchased by Jonathan Sidwell in January 2012. xvi) Smithy : purchased by Joanne Harris-Hughes in January 2012. xvii) Skye : purchased by Emily Henton in July 2012. 11. In addition to the evidence as to individual sales, there were other important witnesses in the case. Maria Gage worked for Jurecka from September 2011 as a groom. She described how Johnson would come to the premises and, in order to facilitate a sale, would pretend to the prospective buyer that she (Johnson) was the owner and this was a private sale, rather than a sale by a horse dealer. She would give customers a fictional account of the horse’s past. She would then take a cut of the sale profits. Gage also gave evidence that it was commonplace for her to be instructed to give a lame or difficult horse a sedative or a painkiller before a customer came to inspect. The drugs would be dropped off by Smith, who she said conducted many of the vettings. She gave evidence that Smith would pass horses which should have failed the vetting. She also described techniques that were used to exhaust a difficult horse before viewing. She described the business as “a bit of a sham”. 12. Shelley Anthony was a horse transporter. She too was called to give evidence concerning dishonest practices by Jurecka in the sale and purchase of horses and in relation to the use of sedatives. However, in the course of the trial, it became clear that she intended to depart from the evidence in her sworn statements. Following argument, she was declared a hostile witness. 13. In the course of the investigation the Appellants were interviewed under caution, in April 2012. Jurecka and Johnson handed in prepared statements confirming that they bought and sold horses but made no further comment. Smith answered questions from police and denied the allegations. He was re-interviewed a year or so later in June 2013 and at that stage answered “no comment” to most of the questions asked. In due course, the jury were asked by the Crown to draw an adverse inference from the failure by the Appellants Jurecka and Johnson to mention facts in interview upon which they later relied in their evidence. 14. We were informed by Mr Connolly, who appeared below and before us for the Crown, that in a pre-trial hearing the judge raised with the prosecution whether it would be a useful mode of proceeding through the long and complex trial for the Crown to produce for the jury, in relation to each of the transactions relied on, a “working document” or note summarising the relevant evidence for the jury. Thus, for example, there would be a working document in the “Jimmy” file summarising the evidence bearing on that transaction. That procedure was adopted, and the “working document” placed into the jury bundle, beside other documents bearing on the sale, photographs and any relevant communications. 15. Counsel for Jurecka and Johnson objected to this modus operandi . When their objection was overruled they did not provide any parallel working documents on behalf of their clients. Mr Barraclough QC, representing Smith, took a rather different approach. He and his junior provided defence working documents for the jury which were placed in each relevant sub-divider. Although Smith’s case had separate aspects, his case was, as Mr Barraclough described it to us, in many respects “parasitic” upon the cases against Jurecka and Johnson. If there was no criminal conspiracy between the first and second named Appellants, there clearly was no conspiracy involving Smith. The content of the working documents provided on behalf of Smith covered the whole case, was not confined to matters relevant only to Smith, and it addressed or recorded much of the material relevant to Jurecka and Johnson. 16. Jurecka sought permission to appeal based on the procedure adopted of placing in the jury bundle prosecution summaries. The Single Judge refused leave on this ground and the application was renewed by Jurecka before us. We address that matter below. 17. In the course of the prosecution case, the Judge acceded to the application by the Crown to read the witness statement from Susan Lee, the purchaser of the horse Bentley. Jurecka also sought permission from the Single Judge to appeal that ruling, but leave was refused. The application is renewed before us. 18. At the close of the prosecution case, Mr Barraclough QC made a submission on behalf of Smith that there was no case to answer. That was rejected. He sought leave to appeal on that ground. That was refused by the Single Judge. In written submissions, Mr Barraclough sought to renew the application for leave on this ground, on the basis that it was appropriate if the other Appellants succeeded on appeal. He did not address this matter further in oral submissions. 19. All three Defendants gave evidence. Aniela Jurecka gave evidence that she set up SE Horses in around 2008 with her boyfriend Stephen Hendry. She and Johnson had been friends for a long time but Johnson had never been her employee. She and the prosecution witness Shelley Anthony had argued with each other and Anthony had lied in giving her evidence. She had never deliberately defrauded any horse buyer. 20. Jurecka was asked about a “Bebo” profile in which she described herself as “making a mint from selling dodgy mules”. She stated she was not aware of this profile and suggested that a malicious ex-boyfriend was responsible for making this posting. She agreed that she would encourage buyers on occasion to use Smith for the vetting: she did so because she considered him a senior, experienced and honest vet. He did not pass every horse. She did sometimes give horses sedatives or painkillers if they were needed. This was normal practice. The drugs were obtained from various vets and from Stephen Hendry. Her case was there was nothing inaccurate in the advertisements she was aware of. She sold the horses in good faith and they were in good health when they were sold by her. She was not involved in all of the seventeen identified transactions. Some of those horses were advertised and sold by Hendry or by Johnson, and were nothing to do with her. She had given no comment in interview on the advice of her solicitor. She would commonly use a sedative if she was making a video of a horse. Ms Jurecka gave detailed evidence in chief going through each of the transactions in turn. 21. In relation to the evidence of the stable hand Maria Gage, Jurecka agreed that she did instruct her “that [if] a customer was coming, to give [a horse] a small or big pea or a couple of smarties”: “It was not a secret from the customer. If it was a nice quiet pony I would say so. I would not sedate horses that were dangerous for novice riders. Maria was happy to sedate horses for customers and she never questioned it.” This last was a remark which the Judge characterised as “an admission that Maria was told to sedate horses for customers”. Jurecka went on to say: “I am not denying systematic doping of horses for customers. It is not uncommon. I admit I sold Pluto and there was talk about Luke and the false history and it was wrong but unnecessary. The wrong photograph of a horse, Bilbao and I was told by Stephen Hendry to do this. Luke would ask me to lie for him, and it was dishonest but not thoroughly dishonest.” 22. Jurecka made a number of further similar admissions. She agreed that she had asked Johnson: “to lie that she owned Dollar. He wasn’t her family pet for three years. Dollar was similar to Smithy. I was getting her to pose as the previous owner of the horse; it wasn’t totally honest. I did get Charlotte to say things that were not true, a lie about the history of the horse, and to talk posh and telling her what to say, to lie that she owned the horse.” (Summing up, 305G/306B) 23. In relation to another customer she said: “I agree it was wrong her giving a false history to give customers. Charlotte never refused to lie on my behalf. She asked me to make up the testimonial.” 24. Jurecka said that the use of drugs was widespread but denied she would give drugs to a horse without informing the customer: “of course not”. Her case was that none of the seventeen horses had needed drugs. The prosecution case was that covertly given drugs were the only explanation for the very different behaviour on the part of horses at the time of viewing and later, when the drugs had worn off. 25. In relation to arranging that horses should be “vetted” by the Appellant Smith, Jurecka said: “I would sometimes say he was coming when he wasn’t. It was a lie. I found it easy to convince people.” 26. On a number of occasions, Jurecka admitted that she had lied. She said: “I admit I have told little lies but not to make people buy the wrong horse. I have told lies about the history of horses as it is what people do.” 27. Charlotte Johnson also gave evidence, agreeing that she was involved in selling horses from about 2008 to 2012. She had previous convictions which went before the jury. In August 2012 she was sentenced by the Central Kent Magistrates in respect of twelve charges of engaging in forbidden commercial practice between June 2010 and June 2011, in each case giving a false description or history when selling a horse. In evidence she stated she had pleaded guilty to these offences: “I told lies about the ownership of horses, the previous ownership of horses”. 28. She stated she had no website or business name but advertised on horse-selling websites. She accepted that she sedated a horse if it was “a bit fresh” or to prevent it “having an explosion”. There was no intention to deceive a customer or mask any defect in a horse. She agreed she had encouraged buyers to use Smith for pre-purchase examinations because he was a good vet. The horses that she advertised as her own to sell were indeed hers. She denied selling horses that had recently been bought by Jurecka and pretending they were her own, or giving a false history. There was no conspiracy to defraud. If there were inaccuracies in descriptions of horses in adverts, they were genuine mistakes. She acted in good faith and denied lying to or deceiving customers. She denied tampering with any [horse] passports or trying to conceal a horse’s defects from a customer. 29. On a number of occasions she did acknowledge that there were specific misdescriptions of horses or that some of the sales patter had been untrue. In relation to the horse Christopher/Andante, she had never taken the horse to dressage. He was not a working hunter. She should not have made such claims and it was a lie to say that he was a “great, safe hunter”. In relation to the horse Blake, she began by saying that the long advertisement she had published was true, but later conceded it was not true that he had been: “… riding out with a 74 year old lady, nor true that he had team dressaged, nor that it was true that he had been out with the bloodhounds being ridden by a novice. It was not true that he had been at cob classes, nor working hunters. It was not true that he had been at a family-run riding school …. It was not true that he was a much loved family horse. It was not a private sale, that was a pretence”. She had told the eventual purchaser of Blake: “… a pack of lies …. I can’t remember why I lied. One thing led to another. No-one told me to say these things; I kept the lies going” (summing up, page 328D/F) 30. In relation to the sale of the horse Ringo, she also conceded that she had placed the advert “as a private sale and that was a lie” and when the advertisement said that the horse had “cost £6,000 a year ago” that was also a lie. 31. The Appellant Smith also gave evidence. He had qualified as a vet in 1974. He specialised in dog breeders, horses and large animals, his practice being based in Deal. The jury were aware that he had been erased for a considerable period from the register by the Royal College of Veterinary Surgeons, for signing inaccurate certificates in relation to horses. A key component of the Crown’s case against him was that a consistent device was employed by Jurecka and Johnson to ensure that Smith was the vet chosen to conduct the pre-purchase examinations. In one form of words or another, it was suggested that he was coming to the relevant farm at a convenient time to vet another horse and that the prospective purchaser could save money by splitting the call-out charge with the [fictional] other purchaser. Where the prospective purchaser named another vet, various excuses were made as to why that independently chosen vet would be unsuitable or expensive. Consistent text messages between Jurecka and Smith enjoined Smith to undercut charges quoted by alternative vets. 32. The text schedule before the jury also indicated significant numbers of requests for the supply of various prescription-only medicines for general use, as opposed to use on a specific animal. There are no records of Smith supplying these drugs, as there should have been. It was not contested that he did supply such drugs. 33. On 1 November 2011 Smith texted Jurecka that [a purchaser] “wants to come to the vetting so I will have to do it on the way. Will need pony to blood test!” The implication was that a different animal would supply a blood sample to avoid the risk of detection of drugs in the sample from the animal to be sold. Subsequent texts from that evening fit the same pattern. 34. The Appellant Smith denied any dishonest practices or being part of any agreement with Jurecka and/or Johnson to defraud buyers. He did sell Bute and sedatives to Duckhurst Farm, but that was not unusual or dishonest. He stated that he did not know Jurecka or Johnson well, but only knew them through carrying out the pre-purchase examinations. He stated that he conducted these properly and did not attempt to conceal a horse’s faults from purchasers. He was not being asked to certify a horse as perfect, but only as suitable for its intended use. As to the condition of the horses which were the subject of the trial, he disputed much of the evidence as to the condition of the horses sold. He denied that he would have passed a horse if he had seen it was lame or that he would conceal faults. The fees for his vettings in relation to Jurecka and Johnson were not significant for him financially, forming “12-13 percent of my vettings” and “vettings is a relatively small amount of my work”. He was taken in detail through the different horses and different histories, and denied any wrongdoing. 35. In relation to the horse Skye, there was a signature against a record of vaccination of the horse which he denied was his signature. It did not appear to be his signature, although it was his name. There was no entry in the diary for the relevant day, or the day before or day after. He denied that he knew any horses were sold when they were drugged up and he denied he had taken blood from other horses to send off. He denied any dishonest plan to defraud customers. The Ground of Appeal 36. We now turn to the ground upon which the Appellants have leave to appeal. This was originally Ground 8 as advanced by Jurecka. The complaint was put concisely by Mr Harris in oral submissions, and in written submissions both before the hearing and afterwards in short additional written submissions. We have considered them all with care. The submission is that the judge simply failed to remind the jury of any of the concessions made by prosecution witnesses in questioning by the defence. He amplified that simple proposition, as follows. 37. Mrs Hogben was the purchaser of Charlie, in August 2009. She was a large lady and needed a large, strong horse. In giving evidence of an important conversation with both the First and Second Appellants present, this witness conceded that the representations about the horse may have been made by Johnson, not Jurecka. Mr Harris said this evidence showed that little weight should be attached to her evidence, and affected “her credibility in having an animus” towards Jurecka. It was also established in cross-examination that despite the problems Ms Hogben had had with Charlie, which was said to include lameness and back problems, she attempted to sell on the horse. She posted on the Horse and Hounds forum asking for help from other forum members as to how to sell such a horse. It was put to her that she was “worried about scaring away” purchasers, and she said “in some ways I was”. Following a suggestion she did advertise the horse for sale as a “project horse”. She agreed that she did not mention in the advertisement that the horse was “lame” or that it was prone to “weaving”. While she agreed that presenting things in this way was “not right” she maintained that what she did was not misleading since the advertisement had contained the phrase “project horse” anyone could inspect the animal and she was open to vetting. Mr Harris also submits (Hogben transcript 33D) that Ms Hogben accepted that she was trying to sell the horse on “dodgily”. We are bound to say that on a close reading of the transcript we do not accept that was her meaning, but that is the complaint made. She was also cross-examined about an entry she posted on the forum concerning the embarrassment caused by horses that are ordinarily well-behaved but may misbehave in front of potential purchasers. 38. In answer to questioning by Mrs Becker, counsel for Johnson, it is agreed that Ms Hogben said when she attended to the yard to buy Charlie that she understood from the advertisement that it was a trade sale (transcript 46C). This was in the context of what was said more fully by the witness that the sale was on behalf of a pregnant friend who had lost her job, the suggestion being that although a trade sale this was a horse that had been privately owned and was being sold for a specific private reason. Further in the course of cross-examination, Ms Hogben accepted that there was no objective test to determine whether a horse was strong enough to carry the weight of a heavy rider. She accepted that it might be that two people had different but genuine opinions about the matter. 39. It is helpful to note that the working document before the jury, coming from the Defendant Smith, recorded much of the relevant detail in relation to Ms Hogben and Charlie. The entry for Charlie included the following: “The vet noted that the bar was too heavy for the horse. Whether she had this note or not it is inconsistent with any contention that DS was behaving fraudulently. By the time she had the horse examined by her vet David McDonald on 27.10.09 it was lame. It was examined by Emma Boyd on 30.9.09. Whatever the problems, this horse was as described in January and was being ridden in February and neither the vet nor the osteopath was recalled to see the horse. It must have recovered. It just needed gentle massage and release of muscle.” 40. As with all the other witnesses where this complaint arises, the nub of the matter is these issues were not rehearsed by the judge in his summing up. Before we reach a conclusion on the matter, we will touch on the other specific points raised in support of the complaint. 41. Ms Emma Boughton was the purchaser of the horse Bruce who was renamed Blake. Ms Boughton stated in evidence in chief how she purchased the horse from Jurecka in October 2010, but she said she did not ride the horse until the New Year of 2011 and when she did ride him, he was very nervous, did not like her on him and tended to run away. She decided to sell the horse as she did not have time to “educate him”, her mother being ill. She also suggested that Bruce was not good or well behaved with children. 42. In cross-examination, Ms Boughton was shown a Facebook photograph of her son and the horse, dated 30 October 2010. She accepted that the horse “looked okay there” but reiterated that when she first had him he was “quite sort of subdued really”. 43. Mr Harris took Ms Boughton to a Facebook entry of 12 January 2011. Part of the entry was the photograph of herself riding Blake. At first she thought that photograph must have been taken later, but conceded that if it had been uploaded on 12 January 2011, it must date from that day or earlier. The photograph provoked an exchange on Facebook, in the course of which a friend of the witness commented (of the horse) “he looks fantastic”. The witness’s reply was “thank you, he’s a real sweetie”. When the matter was pressed, Ms Boughton agreed that the horse was a “sweetie”, that she was happy with him at that stage, but she reiterated that to start with the horse “wouldn’t stand still” and “just kept on walking away from the block”. He was not easy to “tack up”. Ms Boughton was asked if she could find the advertisement for her onward sale of Blake. She could not. However, she agreed that the reason for her onward sale was to do with her mother’s illness, but for which she would probably not have considered selling the horse at all. She had also sold the other horse that she owned, which she had had for many years. 44. Relevant passages from the notes before the jury concerning this horse on behalf of the Appellant Smith read in part as follow: “Boughton bought him mid October 2010. Boughton says quiet and slower paced, calm. Not over schooled. Right temperament so could train him. Seemed quiet on a hack. … … In June 2011, sold him to Charlotte Foreman for £700. … He is a big horse, Irish draught. Ended up under the bar of a vehicle some time in October. He was then sore until New Year. Happy with him in January. The photographs at Div 13 pp 38-42. Photo 38 taken before 12.1.11. “Real sweetie”. Page 41/2 dated 30.10.10 not long after accident. Looked okay with children. Good with children. … Only vice was that could not catch. Would not have sold him but for the illness of her mother. Needed to spend time with him.” 45. The two purchasers of horses identified above were, said Mr Harris, illustrative of the position in relation to other purchasers. We proceed on the basis, however, that they are the illustrations, since chosen by the defence, which would best illustrate concern from their point of view. We assume that there would be other detailed points from cross-examination of other purchasers. In each case, there were present for the jury notes or working records included from counsel on behalf of Smith. 46. The two further witnesses in respect of which complaints are made were not specifically relevant to particular sales, or only peripherally so in one case. Sue Walker was a joint owner of Duckhurst Farm where, for a considerable period, Jurecka was a livery customer. In respect of her evidence, Mr Harris would wish to make a sequence of points: points which of course he did make in closing submissions to the jury. So as to avoid any sense that we are to any degree confining Mr Harris’s submissions to us, we record here the sequence of points he says arose from Ms Walker’s evidence and were significant for the Defence: “a) In the 20 years Ms Walker has known the appellant there was never a problem with her horses (transcript, p2E); b) How snow wouldn’t be an impediment to have a sale as there was a tarmac yard (transcript, p5C); c) How Annie would take very good care of her horses (transcript, p5E); d) How all horses will potentially buck or rear in their life as it’s a natural characteristic (transcript, p6E); e) How a horse may react after being kept in a stable or due to an inexperienced rider (transcript, p6H); f) How complaints are an occupational hazard (transcript 10F); g) How customers may exaggerate their riding ability (transcript, p11D); h) When in reality it’s a customer riding ability, but customers complain that it is the horse that is difficult or not behaving (transcript, p12A) and sometimes blame the seller for mis-describing the horse (transcript p13C); i) How some vets are more pernickety than others in recommending horses for sale (transcript, p14C); j) How customers sometimes save money on call-out costs by having the same vet vetting different horses on the same day (transcript, p16G); k) How Karen Coombe was in her opinion a particularly pernickety vet (transcript, p17D); l) How sedatives (Sedaline and ACP) are kept in the witness’s own yard and used for emergencies (transcript, p19D); m) How Ms Walker would use a sedative if the horse was stressed, shoeing (transcript p21A), for transportation (transcript, p21G) and how hauliers from Ireland carry it in their cabs (transcript, p22B); n) How, as a previous owner of Jimmy Ms Walker states she had no problems at all with the horse (transcript, p24B); o) How Jimmy was used for riding clubs on children’s holidays because it was a particularly quiet and well mannered (transcript, p24D); p) How the advert used to sell the Jimmy (relied upon by the prosecution as misrepresentation) was accurate (transcript, p24H); q) How, when the other ponies were “spooked” by a large hole in the sand or a sand-kite Jimmy simply walked back with a child on his back (transcript, p28F).” 47. Mr Harris submits that this evidence would provide positive evidence about his client and her care of horses, would give a more accurate and balanced picture of the complexity of selling horses, their unpredictability and how subject they are to change. The evidence might assist on how a vetting could have taken place in snowy conditions, on the practice of Karen Coombs as a vet, on the readiness of customers to complain, on the frequent availability of sedatives and the use of sedatives in transporting horses from Ireland and in relation to the horse Jimmy, his suitability for children. 48. There was a “working document” note on behalf of Smith concerning the evidence of Walker, covering some but not all of the matters raised by Mr Harris for Jurecka. The note reads as follows: “ SUE WALKER confirmed the evidence of MANTELL. Some PPE vets she said are nervous or pernickety about vettings; they are reluctant to pass horses sold by a dealer. It is easy to fail a horse. It is not uncommon she said for a PPE vet to do more than one vetting. The call out charge will be shared. The vet may have three vettings on the same day. As a dealer she said she has seds/ACP/Ibubrofen available in the yard, for emergency, if horse is stressed; for clipping; for transport (hauliers from Ireland carry them in the lorries); they can be used when the horse is being ridden by someone new, who might ride badly; they are used a lot on the continent. She had known DS for 25 years. She spoke of his ability and judgment; that he is honest in his vettings; that he quickly assesses a horse on a vetting more quickly than younger vets.” 49. Mr Harris also makes submissions about the witness Mantell. He was a veterinarian called by the Crown. In chief, he gave evidence to the effect that the use of sedatives was commonplace and that in relation to a horse in new surroundings, it was often “sensible from health and safety point of view to have tranquilised horse underneath you. More docile”. 50. Mr Harris notes that in cross-examination Mr Mantell was to concede that there were a number of horse dealers who tried to influence buyers to use their own vets because they might be favourable; how it is commonplace for vets to perform pre-purchase examinations for different buyers on the same day; how ACP could be used to reduce a horse’s anxiety, that a seller must agree before blood samples are taken from a horse prospectively to be purchased; that travel in a horsebox for several hours could cause stiffness or temporary lameness; how the effect of sedatives was short lasting whereas tranquilisers (such as the commonplace drug Bute) lasts longer, and how a range of factors could change a horse’s behaviour. Those factors include a change in surroundings, diet, habit or routine, an ill-fitting saddle or the overuse of the crop. In relation to these points, Mr Harris submits that such evidence from a prosecution expert could establish a common usage of drugs for non fraudulent reasons, differences in behaviour arising from a variety of reasons, the fact that fraudulent dealers were unlikely to consent to the taking of bloods, and an alternative explanation for the condition of the horse Jimmy inconsistent with fraud. 51. Unsurprisingly, given the Defendant Smith’s position as a veterinarian, the working document before the jury in relation to Mr Mantell was extremely full. We do not intend to repeat that two page document here, but in our judgment it covered virtually all the points emphasised by Mr Harris. 52. The submissions of Mr Harris on this ground were actively supported by Mrs Becker for Johnson. She makes it clear in paragraph 12 of her written submissions that the witnesses identified as the important witnesses for this ground, and addressed by us above, were chosen by way of example after consultation between defence counsel. In the course of her submissions, she provides a table of a little over three pages of detailed comment, wherein she indicates that points favourable to the defence were either missing or misstated in the summing up. 53. It is important to note that in the exchanges before us, Mr Harris and Mrs Becker made it clear that the jury were reminded of all the relevant points which they say were omitted from the summing up, in closing submissions on behalf of the defence. Listening to counsel, it is clear that those closing submissions will have been extremely detailed, and presented forcefully. 54. We bear in mind that, due to illness of a juror and a short illness on the part of the judge, there was an interruption of some ten days after the judge completed the first portion of his summing up and before he was able to conclude and the jury retired. The summing up began on Wednesday 25 May 2016. A juror was unwell on Thursday 26 May and the summing up continued on the Friday. On the Friday the judge reiterated the need for the jury to consider all the points raised by counsel in closing submissions, and then continued to analyse the case. Due to further problems with the jury, the matter was adjourned on the Friday with the intention of resumption on Wednesday 1 June. By that stage, the judge had completed the general aspects of the prosecution case and the evidence concerning twelve of the seventeen horses sold. The Court adjourned, intending to resume on Wednesday 1 June. 55. However, when the Court reassembled on 1 June, HHJ Joy was ill himself. The Court was adjourned once more to Tuesday 7 June. When the Court resumed on that day, the issue of Rosalind Sykes was addressed first and the summing up could only be resumed a little before noon. The judge returned to the sequence of horses beginning with the horse Blake at Divider 12 and continued to sum up the prosecution case. During the afternoon of that day, the judge concluded the summing up of the Crown case and began to sum up the defence. The summing up of the defence case resumed no the morning of Wednesday 8 June, and substantially concluded by the end of the afternoon on that day. The jury retired on the morning of Thursday 9 June. The purpose in recording those timings is that the defence submit there was necessarily a considerable lapse of time between the conclusion of speeches on behalf of the Defendants (and of course it follows, on behalf of the Crown) and the point when the jury retired. In those circumstances, the defence submission is that the impact of defence speeches may have been lessened by the passage of time. Of course those timings also mean that there was a lapse of time between the jury being reminded of most of the prosecution case and their retirement, whereas the defence case had been fully summed up to them much more recently. 56. The Crown response to these submissions is expressed relatively briefly. This was a long, detailed case. It would be impossible for the judge to include every detailed point in favour of Defendants in a summing up without taking an excessive length of time, and indeed producing confusion rather than assistance. As was emphasised in R v Farr (1999) Crim LReV 506, 163 JP 193, a summing up should never be a mere rehearsal of the evidence and an omission of a particular piece of evidence or particular argument should not be considered to make a conviction unsafe, or indeed to found any valid criticism of a summing up. 57. Mr Connolly emphasises the Criminal Practice Direction of October 2015, as amended in April 2016, providing as follows: “To assist the jury to focus on the issues during retirement, save where the case is so straightforward that it would be superfluous to do so, a judge should provide: • A reminder of the issues; • A summary of the nature of the evidence relating to each issue; • A balanced account of the points raised by the parties; and • Any outstanding directions. It is not necessary for the judge to recount all relevant evidence or to rehearse all of the significant points raised by the parties.” 58. Whatever theoretical objection the First and Second Defendants might have to the inclusion of detailed working documents to assist the jury, that approach did mean that the jury had a sensible note and a working document in relation to each of the critical transactions, both from the Crown and from the Third Defendant. Although the positions of the Third Defendant and the First and Second Defendants were not identical, there was no conflict and considerable overlap between them. The effect of the inclusion of all relevant documents, such as photographs, downloaded images and content from Facebook sites, texts, email traffic and the working documents from each side, meant that this jury had a well-structured jury bundle with all the critical material bearing on the relevant transactions and providing the matrix of evidence necessary for their decision. 59. The learned Judge directed the jury properly in the usual terms that if he left out of his summing up something which they regarded as important, they must take it into account, emphasising that it was their: “judgement on the facts that you must rely upon and not mine. That cannot be emphasised strongly enough” (summing up page 4D) He repeated similar comments at different points in the summing up, indicating that he would not seek to repeat all of the facts, as indeed would have been impossible. He informed the jury expressly that he would not be reminding them of the evidence of Jeremy Mantell, Sue Walker, and that of two other witnesses David Jones and Carol Kenneally. He stressed that they were still important witnesses to whose evidence they should have regard if they saw fit. 60. As is made clear by the skeleton argument from Mrs Becker, counsel were provided approximately one week in advance with a draft of the Judge’s summing up of the prosecution case. This led to some detailed submissions from junior counsel for Jurecka, Mrs Pryor. There was no submission to the judge in the course of, or at the conclusion of, his summing up, to the effect that he should sum up the evidence of the witnesses in relation to whom he had given the indication he would not rehearse their evidence. 61. Given that background, Mr Connolly submits that the summing up here satisfied the requirements of the law. Mr Connolly acknowledges that this Court in Amado-Taylor [2000] 2 Cr App R 189 emphasised that counsel’s closing speeches are no substitute for a judicial and impartial review of the facts from the trial judge, emphasising however that the prime consideration for a judge’s summing up is to focus the jury’s attention on the issues that are important. The Court referred to R v Farr and the principle set out in the judgment of Rose LJ in that case that: “It cannot be too strongly emphasised that the judge is under no obligation, when summing up, to rehearse all the evidence or all the arguments.” 62. Further, the Court in Amado-Taylor emphasised the remarks of Lord Morris of Borth-y-Gest in McGreevy (1973) 57 CAR 424 at [430], himself quoting Lord Lowry, Chief Justice of Northern Ireland: “It is not essential that the trial judge should make every point that can be made for the defence ... The fundamental requirements are correct directions on points of law, an accurate review of the main facts and alleged facts, and a general impression of fairness.” 63. Mr Connolly also emphasises that the complaint advanced bears only on the summing up of parts of the evidence of prosecution witnesses. The evidence of the defence was fully summed up by the judge and no complaint has been made in relation to the detail given by the Judge as to their case. 64. In those circumstances, Mr Connolly submits that, even if this summing up might not be held up as a model summing up, it satisfied the requirements of the law. Any failings or shortcomings are certainly no basis for concluding that the convictions are unsafe. Our Conclusions on this Ground 65. It is important to begin with two or three over-arching points. The case was long and detailed, but the issue was whether or not the Defendants entered a dishonest conspiracy. The verdicts did not turn on a multiplicity of specific points or detailed particular allegations. The jury cannot and did not reach their conclusions on the basis of one transaction or one witness. Their judgement, taking the evidence as a whole, was whether they could be sure of the Defendants’ dishonesty. 66. There were extensive admissions by the Defendants of lies and dishonesty in sales, however qualified those admissions might be by such terms as “only a little lie”. 67. There was extensive evidence of the use of drugs to pacify horses or diminish the symptoms of pain. The defence line on this was that such use was normal. The jury had to consider this evidence as a whole, with the Defendants’ attitudes, and thus honesty, in mind. 68. There was strong – indeed unanswerable – evidence of Jurecka and Johnson manoeuvring and lying to ensure that vetting was done by Smith rather than any other veterinarian. There was in addition significant evidence, some of it unanswerable, that Jurecka and Johnson were collaborating with Smith to manipulate his fees, to the same end. There was at least one example of extremely strong evidence, to which we refer above, that a blood sample from a pony, other than the horse to be sold, was to be taken, so as to pass off the sample, and the test results, as coming from the traded horse. That is powerful evidence of dishonesty. 69. The evidence was highly persuasive that the seventeen horses used as the focus of the case were not as advertised or sold. Even allowing for the concessions of the prosecution witnesses relied on under this Ground, in our judgment there was ample material before the jury supportive of the Crown case. Taken at its highest, the body of concessions or other evidence favourable to the defence adduced from prosecution witnesses was not such as to displace the overall weight of the prosecution case derived from the seventeen horses sold. 70. With those points in mind, we consider the Appellants’ submissions. It was freely and properly acknowledged that the jury had been reminded of all the material in respect of which the Appellants criticise the judge. They heard the evidence, and they made extensive notes: a point expressly recorded more than once. There were the two sets of “working documents” organised in respect of each horse, which contained much of this material, indeed much of it noted down from a defence point of view. We address below the renewed application for leave in relation to this way of proceeding, but the fact remains that the jury had the great part of this material when they retired. As Mr Harris and Mrs Becker acknowledged, their complaint cannot be that the jury were not made aware of this material, or reminded of it. The argument really boils down to the complaint that the judge did not recapitulate this evidence and thus invest it with the weight or significance which would have been derived from his recounting it. Yet there is no complaint, nor could there be any proper complaint, that the judge failed fully to remind the jury of the defence case. 71. We do not consider that it is a desirable way of structuring a summing up for a judge to take the simple step of declining to recite any evidence from the cross-examination of a category of witnesses. It is much preferable as an approach to make an assessment of points as they arise and integrate these points, or a suitable selection of them, into a coherent account of the evidence. However, a way of proceeding like this can only lead to a successful challenge to convictions if the result is a summing up which fails overall to convey fairly the balance of the evidence. There was here “an accurate review of the main facts and [main] alleged facts, and a general impression of fairness” to employ the language of Lord Lowry in McGreevy . 72. Moreover, even if our concerns as to the judge’s approach were thought to be too muted, we are firmly of the view that the case against the Appellants was very strong. These convictions are not unsafe. For those reasons, the appeal on this Ground is dismissed. Renewal Applications 73. We turn more briefly to the renewed applications for leave to appeal. Hearsay evidence of Susan Lee 74. The application is made on behalf of Jurecka for permission to appeal on the ground that the evidence of Susan Lee, purchaser of horse 8 (Bentley) was read to the jury. 75. Susan Lee was the purchaser of the horse Bentley. At the time of the trial she was significantly ill, being treated for a pancreatic condition with a drain in place. She had a good deal of pain and was housebound. There was proper medical evidence supporting this. The Crown made an application under Section 116(2)(b) of the Criminal Justice Act 2003 on the basis she was “unfit to be a witness”. The defence conceded that the criteria set out in Section 116(2)(b) were met, but sought to exclude the evidence pursuant to the judge’s discretion under Section 78 of the Police and Criminal Evidence Act 1984 [“ PACE ”]. 76. The relevant issues concerning Ms Lee can be summarised as: (1) the original advertisement placed by Jurecka to sell the horse was unavailable and cross-examination of the witness might elicit the best evidence remaining; (2) the defence wish to explore whether this witness had been communicating with others on the internet; (3) the defence sought to argue that the similarity of complaints about the horses sold by the Defendants might be explained by communications; and (4) the defence sought to cross-examine as to the condition of Bentley following delivery. 77. As the Single Judge observed, the trial judge considered all the relevant factors under Section 114 of the Criminal Justice Act 2003 , identical for present purposes to Section 78 of PACE . An edited version of the statement was read, avoiding some of the more hostile contents of the statement from the defence point of view. The question of communication through internet forums could be and was fully explored with other witnesses, and the evidence from Ms Lee could be and was the subject of comment, on the basis of that more general and broader picture which was suggested by the defence as the source of possible tainting or corruption of evidence. As did the Single Judge, we regard the exercise of discretion here as entirely proper. The Working Documents or Summaries 78. There is an application by Jurecka to renew the appeal in relation to these documents. We have sufficiently described above the nature of the documents that were placed before the jury, both on behalf of the prosecution and on behalf of the Appellant Smith. It is not necessary to expand that factual picture. 79. Cases of this kind represent a considerable case management problem. Working documents of all kinds are regularly admitted before juries, often agreed but also quite often as explicitly coming from one side. There is no absolute objection to proceeding in such a fashion, provided the source and nature of such documents are clear and the jury are at all stages reminded, where appropriate, that such documents are not agreed and are there as aides memoire of the evidence bearing on the particular aspect of the case. Such documents must be handled with care. In our judgment, their proper use should be confined to a convenient reminder to the jury of the facts relied on by a given party and, in brief and neutral terms, of the conclusions sought to be drawn from those facts. 80. It is quite right that if such documents are to be admitted, the defence as well as the prosecution should be given the opportunity to place their working documents before the jury in similar manner and format to any lodged by the prosecution. How far such a process may properly go, must be decided on a case by case basis, but undoubtedly a trial judge must be careful to prevent such documents becoming too extensive or being transformed into a substitute for an adequate summing-up or closing submissions. 81. The Single Judge observed in relation to this Ground: “There can be no absolute bar to a document such as this being given to the jury. Indeed it happens often with documents such as schedules of telephone calls. It is therefore an issue of judicial case management, and of ensuring fairness to all parties. Provided the Judge directed the jury, as he did (transcript volume 9, pages 92-93) that they did not amount to evidence but were simply submissions, it is hard to see what prejudice would be caused. [Jurecka’s] counsel had the opportunity to do as Smith’s counsel did and prepare a counter-document. Any disputes or errors could be pointed out by your counsel in closing submissions, and the jurors asked to write a note on their copies of the document to that effect.” 82. The Single Judge went on for those reasons to refuse leave to appeal. We agree. We likewise consider there is no proper basis for an appeal on this Ground. Smith: Submission of No Case to Answer 83. We have in the course of addressing the Ground of Appeal for which leave was given, summarised the case against the Appellant Smith. In our view there was a clear case for Smith to answer. As we have already noted above, Mr Barraclough made no oral submissions in relation to this application before us. We consider he was entirely realistic in taking that position. As did the Single Judge, we refuse leave to appeal on this Ground. Abuse of Process and Contamination of Witnesses: Late Applications 84. The basis for this application is as follows. There was a concern on behalf of the defence throughout the trial (and indeed before the trial) that there had been discussion groups or “forums” on the internet concerning the activities of the Defendants. The jury had been firmly warned against any exploration of the internet for material connected with the trial. Following the closing speech for the First Defendant, enquiries were made on behalf of the Second Defendant Johnson, and two posts were discovered on a relevant Facebook page, filed in the name “Michael Michaels”. The two posts read: “Is it 17 horses! Allegedly! Drugged to disguise health problems or 17 in total? I think there are more than 17 horses involved in the case, surely, with 60+ witnesses. And how many “private” sellers! can manage to sell so many horses? 350+ in 5 years? “quite possible that the ‘350+ sold’ were simply a few who kept being returned and sold on again!” 85. It transpired that the poster “Michael Michaels” was in fact a prosecution witness named Rosalind Sykes, and it emerged that she had been posting on Facebook pages under that name since at least 2013. Upon establishing the identity of “Michael Michaels” the defence applied to discharge the jury and stay the case. 86. The first question arising is whether such posts could affect the minds of the jury. As the prosecution point out, the material brought to the Court’s attention by the defence was found in closed forums. These are not “open” internet sites. In order to access the relevant sites, one would need to provide a name or pseudonym. There was no evidence that any juror had done so or had attempted to do so. Were that to have been established in relation to any juror, that juror would have been in serious contempt of court. Nothing of that kind was established and nor was there any evidence to suggest it. 87. The basis of the defence concern, then and now, was that the witness Rosalind Sykes evinced hostility to the Defendants and that she had, in effect, concealed her history of posting on the internet. Her credibility as a witness for the Crown might be affected to a relevant extent by this fact, but the evidence was closed and they could not be told of it. 88. Fuller investigation revealed that Rosalind Sykes had posted in this way in July 2012 and November 2013, as well as May 2016. Her first postings took place before the interviews had taken place, before the Defendants had been charged and about three and a half years before the beginning of the trial. The Crown submit there is nothing objectionable in her communication in that way. The second posting, in November 2013, consisted of one message, at a time when she could not know whether there would or there would not be a criminal trial. That message was capable of being or was communicated to the prosecution witness Diane Hogben. However, the Crown point out that the message was at best of marginal significance. Moreover, neither would have known at that stage (at least from this activity) that each was a witness for the prosecution, or would be so for the future. 89. In relation to the posting of May 2016, it is accepted by the Crown that Ms Sykes had been warned not to speak about the case and therefore should not have engaged in the conversation. However, her evidence was complete and nothing could possibly arise from the conversation to prejudice the trial. Any impact upon her credibility as a witness would be extremely limited and as Mr Connolly submitted to us, this represented a clearly insufficient basis to intervene in a trial that had taken three months and was now very close to completion. 90. We reject this submission from the defence. Accepting that Ms Sykes should not have engaged in internet posting following the warning she had been given, we regard her transgression as of at worst, very moderate significance. The rhetorical criticism of her, that she posted under a pseudonym, carries little impact. This was not a fresh pseudonym newly devised to circumvent the instruction she had been given. It is commonplace for those posting messages in such a way to use pseudonyms. Nothing she did or said could possibly affect the trial. At its height, a witness who had been, as she herself would suggest it, a victim of these Defendants, had made two postings before there ever was a case. That is of no significance whatsoever. She had gone on in breach of her instruction to make one rather incidental further intervention in a closed forum. In our judgment, the potential impact on her credibility as a prosecution witness was close to negligible. 91. For those reasons we refuse leave to appeal on that Ground. Deficient Summing-up 92. In the body of the judgment dealing with the principal Ground, we have already expressed our views as to the summing-up and to the evidence overall. This was not a favourable summing-up to the Defendants. In our view that reflected the balance of the evidence in this long trial, not least the admissions made by Jurecka and Johnson. It may be inevitable in the course of such an extensive trial that a number of quite detailed criticisms can be raised. In our judgement they come nowhere near establishing that the summing-up was defective overall, much less establishing that these convictions are unsafe. We refuse leave on this Ground as well. Johnson’s Appeal against Sentence 93. Although expressed at rather greater length, the nub of the submission as to the sentence on Ms Johnson is that the judge himself made remarks which accurately distinguished the role of Ms Johnson from that of Ms Jurecka, but treated the offenders in exactly the same way. It will be recalled that both Jurecka and Johnson had relevant previous convictions. It is not suggested that there is a material distinction to be made between them as on that ground. The judge emphasised that all three Appellants were actively involved in the conspiracy. He was right. In the course of his remarks, Judge Joy stated: “In relation to the two female defendants, you both acted closely together, selling horses together, acting fraudulently together, and I am satisfied on all of the evidence that both of you were as seriously involved as each other. I reject completely the argument that has been put forward in writing on behalf of Charlotte Johnson that somehow she was less involved. The reality is that sometimes buyers were just not sure who they were dealing with between the two of you. One witness said you were always together. Well, that’s a figure of speech, but the text messages clearly show that you were acting as a team together and the effect of the evidence of both you and the First Defendant was that each was selling horses acquired by the other, or loaned, or on sale, or acquired by the other, and each of you pretended that you acted separately; that seems to me quite clear. Sometimes one bought a horse and the other sold it, and you each shared the gains. Each of you, particularly Charlotte Johnson, was always ready with the easy lies, I call it, and the false pretences; the false history such as the horses were private sales, that the horse had been owned by you or a relative or a friend for years, that it had done things it had not done: won awards which it did not; that it belonged to a friend who was pregnant or now had a job in London and how it had been ridden by an old lady who had cancer, but did not in fact exist and was a complete fiction with a completely non-existent address.” 94. However, at page 15 of the sentencing remarks, the Judge gave a slightly different inflection to his analysis of the facts. After indicating that there had to be immediate custodial sentences, and indicating further that he had reviewed submissions, documents, letters and references sent to him on behalf of the Defendants, he said this: “Clearly, the First Defendant, as I say, is the driving force and is in a particularly serious position. I take into account all of the documents that have been handed in on her behalf and I take into account her family circumstances and the fact that she is a mother and I reflect this in coming to the appropriate sentence. In relation to the Second Defendant I also take account of the letters handed in on her behalf and the points made in her written submissions made on her behalf.” 95. At page 16B he said: “In the end, each Defendant has convictions and I intend to deal with each Defendant in the same way. That is because the roles that each of you played, as well as all of your individual circumstances, all seem in the end to balance each other out and because in the end that in the end is the fairest result. In the case of the first two Defendants I have been addressed about the welfare of your children. I have taken very much what has been said in writing and in the references and documents into account.” 96. The learned Judge then proceeded to pass identical sentences on the two. 97. The simple point made by Mrs Becker for Johnson is that the Judge, having observed that Jurecka was the “driving force” and all other circumstances being equal, in terms of previous convictions, age, responsibility for young children and other aspects of the roles in the offending, it was inappropriate of the Judge not to make some distinction in length of sentence as between Jurecka and Johnson. Having reflected upon this, we consider that there is some force in that submission. 98. For those reasons, we quash the sentence of two years six months in relation to Charlotte Johnson and substitute a sentence of two years. The Appellant has been on home detention curfew following release from immediate custody. There will be consequences of the alteration in sentence which will be explained and put into effect by the relevant prison authorities. To that extent, the appeal on sentence succeeds. 99. Otherwise, for the reasons expressed, these appeals are dismissed.

2017_07_18-4027.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/1007/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/1007

600d2b1e1b4ca15ae881a5219871c7d75a704a21fad15a551a11fa7fc3d01282

[2005] EWCA Crim 654

EWCA_Crim_654

crown_court

No: 200406776/A8 Neutral Citation Number: [2005] EWCA Crim 654 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 2nd March 2005 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE DAVID CLARKE MR JUSTICE CHRISTOPHER CLARKE - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 142 OF 2004 (RICHARD SHANE GRIEVE) - - - - - - - Computer Aided Transcript of the Stenograph Notes of Sm

No: 200406776/A8 Neutral Citation Number: [2005] EWCA Crim 654 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 2nd March 2005 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE DAVID CLARKE MR JUSTICE CHRISTOPHER CLARKE - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 142 OF 2004 (RICHARD SHANE GRIEVE) - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MISS B CHEEMA appeared on behalf of the ATTORNEY GENERAL MR T ASHMOLE 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 section 36 of the Criminal Justice Act 1988 , to refer a sentence said to be unduly lenient. We grant leave. 2. The offender is now 32, having been born in February 1973. He was convicted, following a trial, on 1st October 2004 of four offences of indecent assault and one offence of indecency with a child. Following adjournment for the preparation of reports, he was sentenced by His Honour Judge Smith, at Preston Crown Court, on 1st November 2004 to an extended sentence of 4 years under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 the custodial term of which was 2 years' imprisonment concurrently in relation to the offences to which we have referred, with a further consecutive sentence of 3 months' imprisonment imposed in respect of a Bail Act offence committed during the course of the trial. In addition, there was an extended licence period of 2 years. 3. In summary, during a period of 18 months the offender indecently assaulted the 10 year old friend of his stepdaughter, kissing her, touching and pressing his penis against her vagina and masturbating in her presence. The girl (to whom we shall refer as T) was born on 4th July 1992 and lived with her family. She was a friend of the daughter of the offender's partner. As a result, she would stay overnight with the offender and his family and indeed take trips away with the offender's family. When she was 10 years old she was first assaulted and that conduct continued until she was eleven-and-a-half. 4. Count 1, of indecent assault, related to the period to which we have referred. The victim stayed overnight. She was in bed with her friend, watching a video, when the offender came into the room, put his hand under the duvet and beneath her underwear and touched her vagina for a minute or so. Count 2 was a similar offence, which occurred when the girl was camping with the offender and his partner's daughter. On that occasion, he kissed the girl, putting his tongue inside her mouth. Count 3, of indecency with a child, alleged that, during 2003, the girl was sleeping over and found herself alone in the living room with the offender, who took his penis out and encouraged her to touch him, which she did. He then masturbated himself. Count 4, of indecent assault, during 2003, related to the same occasion as count 3, a little later. On the sofa, the offender pulled the girl's knickers down and put his penis against her vagina. The victim told him to get off. He did. He masturbated himself to ejaculation and wiped himself on a black and red sweatshirt. Count 5, of indecent assault, related to the final assault occurring on New Year's Eve 2003 when the girl and her friend were sleeping in the offender's bed. Later the offender got into the bed and undid the zip on his trousers. She felt him touching her over her nightie. As he moved his hand towards her vaginal area, she grabbed his hand and told him to stop: he did. It is to be noted that this case does not involve penetration of the girl. 5. In her video recorded interview the victim told the police that, during her visits, the offender would provide her with cigarettes, money and alcohol. He told her she was beautiful and when she was 16 he would leave his partner and they would live together. The offending came to light on 16th January 2004. The offender was interviewed. He denied the allegations and claimed the girl was fantasising. However, the red and black sweatshirt, to which earlier we referred, was scientifically examined and revealed the presence of his semen. 6. He has convictions for theft, using threatening and abusive words and behaviour and criminal damage. But he has not previously lost his liberty. 7. In the pre-sentence report, the probation officer observed that, in view of the offender maintaining his innocence, no meaningful discussion was possible. The author of the report assessed the risk of re-offending as lying within the medium range. Non-custodial disposal was not suggested. 8. Miss Cheema, on behalf of the Solicitor-General, draws attention to four undoubted aggravating features: first, the position of responsibility occupied by the offender and the betrayal of trust which his conduct indicated; secondly, the youth and vulnerability of the girl; thirdly, the repetition of the conduct over a significant period of time, and fourthly, the nature of the conduct in touching the vagina of a 10 year old girl in the way which we have described. 9. Miss Cheema draws attention to the mitigation to be found in the absence of previous convictions in relation to sexual abuse. She draws attention to three authorities: R v Simpson 12 Cr App R(S) 674, Attorney-General's Reference No 20 of 1998 ( R v Pidcock ) [1999] 1 Cr App R(S) 280 and Attorney-General's Reference No 32 of 1998 ( R v Gilks ) [1999] 1 Cr App R(S) 316. She submits that the sentence passed was unduly lenient, failed to reflect public concern about cases of this kind and failed to be, as she submits it ought to have been, a deterrent sentence. 10. On behalf the offender, Mr Ashmole submits that this was an experienced judge passing sentence, who had the advantage of seeing witnesses and gauging the impact of the offender's conduct on the girl. He accepts that there is not in this case any remorse on which reliance can be placed and that custody was inevitable. He stresses that the present term of custody is the offender's first such term. Mr Ashmole accepts that there was a breach of trust but, he submits, it was not of the gravest kind. He also draws attention to the prison report which refers to the offender making good progress. There is also reference in that report to the grave illness of the offender's daughter. 11. Mr Ashmole's submission is that, if the Court takes the view that the sentence passed was duly lenient, it should exercise its discretion not to interfere. 12. We take all of these matters into account. We would have expected, in the court below, following a trial, a custodial sentence of the order of 3 years in relation to these offences, in which case a consecutive sentence, in relation to the Bail Act offence, would have been unlikely to have been as much as 3 months and might well have been of the order of 1 month. It follows that the sentence passed was sentence, so far as its custodial aspect is concerned. We entertain some doubt as to whether the total sentence can properly be characterised as unduly lenient, when the extended period of licence is taken into account. 13. Accordingly, this is not a sentence with which, in the exercise of our discretion, we think it appropriate to interfere. Therefore, we do not do so.

2005_03_02-458.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/654/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/654

ed90cfc9d5586f7810a229b043fcccab6b9d9786e62dc78717401a57c6b0b887

[2023] EWCA Crim 1437

EWCA_Crim_1437

crown_court

IN THE COURT OF APPEAL CRIMINAL DIVISION [2023] EWCA Crim 1437 CASE NO 202301100/A1 Royal Courts of Justice Strand London WC2A 2LL Thursday 16 November 2023 Before: LORD JUSTICE MALES MR JUSTICE JOHNSON RECORDER OF LEEDS (HIS HONOUR JUDGE KEARL KC) (Sitting as a Judge of the CACD) REX V JOSHUA JAMES CAMERON PRESCOTT __________ 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 W

IN THE COURT OF APPEAL CRIMINAL DIVISION [2023] EWCA Crim 1437 CASE NO 202301100/A1 Royal Courts of Justice Strand London WC2A 2LL Thursday 16 November 2023 Before: LORD JUSTICE MALES MR JUSTICE JOHNSON RECORDER OF LEEDS (HIS HONOUR JUDGE KEARL KC) (Sitting as a Judge of the CACD) REX V JOSHUA JAMES CAMERON PRESCOTT __________ 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) _________ RICHARD LITTLER KC appeared on behalf of the Appellant JASON PITTER KC appeared on behalf of the Crown _________ J U D G M E N T (Approved) LORD JUSTICE MALES: 1. This is an appeal by Joshua Prescott against his sentence of custody for life, with a minimum term of 17 years less time spent on remand, for the murder of Thomas Williamson, on 25 September 2021. He was convicted on 16 February 2023, in the Crown Court at Manchester, and sentenced on 14 March 2023 by the trial judge, HHJ Maurice Greene. At the date of the murder the appellant was 19 years of age, by the time of the conviction and sentence, he was 20 and he is now 21. 2. There were two co-accused. Ben Dawber was convicted of murder and attempted robbery, and sentenced to detention for life with a minimum term of 20 years’ detention less time spent on remand. Because he was 17 years old at the date of the murder, this was an unlawful sentence - it should have been a sentence of detention during His Majesty’s Pleasure (see section 259 of the Sentencing Act 2020 ). Dawber was also sentenced for two robberies and aggravated vehicle taking committed on 4 August 2020, and a further robbery committed on 17 November 2021, for which concurrent sentences were imposed. Kane Adamson, who was 18 at the date of the murder, was also convicted of murder and attempted robbery. He was sentenced to custody for life, with a minimum term of 18 years’ detention less time spent on remand. The Facts 3. During the evening of 24 September 2021, the appellant, Ben Dawber and Kane Adamson were driving around in a Chevrolet Kalos motor vehicle with false number plates. They had exchanged messages earlier in the day, which referred to the criminal activity they intended to undertake, which included theft, robbery and dealing in drugs. They had all taken illegal substances. During the evening, various people got in and out of the vehicle. At approximately half past midnight on 25 September, Dawber and Adamson committed the attempted robbery of a man called David Bagnall, close to his home address. However, they fled after being disturbed by a neighbour who shouted at them, hence the offence was one of attempted robbery. They both pleaded guilty to this. The appellant was not involved in this offence. 4. At 1.10 am, the appellant, Ben Dawber and Kane Adamson were in the vehicle with another man called Ambrosius Kibula, when they saw a fight taking place in the street between two men, Jake Dinning and David Shuttleworth. Both Dinning and Shuttleworth were unknown to the defendants. Dawber, who was driving, stopped the vehicle and the others got out. Shuttleworth, believing the defendants were friends of Dinning, ran off. Dinning was instructed to get into the vehicle, which Dawber then drove away with the appellant and Adamson also inside. Kibula was left in the street along with Dinning’s girlfriend. 5. It appears that the appellant and his co-defendants intended to look for Shuttleworth. As the judge put it, they were in effect hunting him down. However, it is not clear why they chose to involve themselves in this confrontation beyond the fact that they were out looking for trouble. At about 1.30 am, they came across Thomas Williamson (the deceased). He was unknown to the defendants and also to Dinning. The defendants asked Dinning whether this was the person with whom he had been in a fight, and he said that it was, although in fact that was not so. 6. Thomas Williamson was a man who had been diagnosed with Unstable Personality Disorder and was awaiting assessment for Autistic Spectrum Disorder. He had a sad history of self-harm but was described as someone who would not be aggressive towards others. Mr Williamson had been drinking earlier on 24 September and had become angry and upset. He threatened to harm himself with a knife. Shortly before 1.30 am on 25 September, he left his house to go for a walk and clear his head. It was likely that he took with him the knife with which he had threatened to harm himself and with which he was to be killed. His mother could not find it and, concerned, she contacted the police. 7. When Dinning told the defendants, wrongly, that this was the person with whom he had been fighting, they got out of the car. Dinning took the opportunity to run away. The appellant, Dawber and Adamson approached Mr Williamson and all three of them surrounded him. This was captured on CCTV but some of what took place was obscured by a van. At one point an attempt was made to cut Mr Williamson off as he walked down the street. Dawber told Mr Williamson to “Give him everything you’ve got”. A witness from a nearby house heard Mr Williamson being apologetic. Mr Williamson was punched and kicked. The judge considered it likely that he produced his knife in an attempt to defend himself. That knife was then used to stab Mr Williamson at least four times. He also suffered separate defensive injuries. 8. In his evidence, Dawber admitted stabbing Mr Williamson, although he claimed that he had done so in self-defence, a claim which the jury clearly rejected. Adamson was unable to recall if he stabbed Mr Williamson and attributed this lack of memory to having been under the influence of drugs. The appellant did not give evidence. 9. The defendants then went back to the car and drove up to where Mr Williamson lay wounded before driving away. Mr Williamson was found unresponsive at 1.51 am by police officers who were looking for him following the call from his mother. Attempts were made to revive him at the scene without success. He was declared dead at 2.42 am. He had sustained the following injuries: a 6-centimetre deep stab wound to the lower front of his neck which passed into a major vein; two stab wounds to the front right shoulder or outer chest; and a stab wound to the left front side of the chest, which penetrated through the inner edge of the left lung into the heart; two stab wounds to the surface of the heart but only one entry wound. Those injuries could have been caused when the knife was withdrawn and reinserted, or when Mr Williamson’s beating heart contacted the tip of the blade. In addition there was a 0.7 centimetre slither of bone from the interior border of the third rib found in the chest cavity; bruising over both cheekbones and the left side of the jawbone; two incised wounds to the right hand and two superficial incised wounds to the right finger that were consistent with defensive injuries. 10. The cause of death was a combination of the interruption of the pumping function of the heart due to the penetrating injury, the collapse of the left lung and severe bleeding. 11. After the attack, Dawber and Adamson dropped the appellant off and made arrangements to destroy any incriminating evidence. Attempts were made to set the Chevrolet on fire. Dawber and Adamson disposed of their mobile telephones and Adamson also got rid of clothing. 12. The appellant was arrested on 11 October 2021 and gave a “no comment” interview. He was rearrested on 12 April 2022. He provided a prepared statement, in which he admitted being in the Chevrolet on the evening of 24 September 2021 and said he had been dropped off at his mother’s in the early hours of the morning. He claimed to have taken around 25 Xanax tablets at 8.00 pm, which made him fall asleep. He denied any knowledge of the attempted robbery committed by the other two defendants or the murder. Antecedents 13. The appellant had two convictions for two offences in 2020 and 2021. One of these was a conviction for possessing an offensive weapon in a public place - that was the 2021 conviction. Dawber had two convictions for four offences between September 2020 and September 2021. His relevant convictions included offences of robbery, threatening words or behaviour with intent to cause fear or provocation of violence and theft, all in 2020. Adamson was more heavily convicted. He had 12 convictions for 22 offences between December 2019 and October 2021. His relevant convictions included offences of theft, of which there were two in 2019, robbery in 2020, threatening words or behaviour likely to cause harassment, alarm or distress in 2021, threatening words or behaviour with intent to cause fear or provocation of violence, also in 2021, witness intimidation (two convictions in 2021), battery, assault occasioning actual bodily harm and attempted robbery - all in 2021. The Sentence 14. Having described the facts, as we have set them out, the judge said that it was difficult from the CCTV evidence to say exactly who had done what. Accordingly, he did not distinguish between the three defendants as to the roles which they played in the murder. Although Dawber had said that he had inflicted the wounds, the CCTV showed that there was a swap over at one point between two of the defendants, with one of them moving away from Mr Williamson and another going towards him. Accordingly, the judge was not able to be sure who had inflicted the fatal stab wound or when during the incident. 15. The judge noted that he had to determine where the case fell within schedule 21 to the Sentencing Act 2020 . For that purpose, he decided that the murder was not done for gain, but that its main motivation, fuelled by the illicit substances which the defendants had taken, was to gain some revenge on behalf of Dinning and to attack Mr Williamson. The defendants had not taken weapons to the scene, which resulted in a starting point of 15 years for the appellant and Adamson, who were respectively 19 and 18 at the date of the murder, and 14 years for Dawber, who was 17. The judge identified aggravating and mitigating features which were relevant to all three defendants. They were all out looking for trouble with a view to committing offences, were all under the influence of illicit substances, the attack on Mr Williamson was not spontaneous, as they were looking for an individual in order to attack him, albeit they had got the wrong person. There was an element of seeking to gain. It was a group attack, committed at night, on a vulnerable individual, even though the defendants were not aware of his vulnerability. A weapon was used, even though it was Mr Williamson’s own knife with which he had been attempting to defend himself. 16. As for mitigation, the defendants were very young. They had difficult backgrounds, and it was more likely that their intention was to cause really serious harm than to kill. In the appellant’s case he had a relevant conviction for possession of an offensive weapon, although the judge noted that he did not have any convictions for violence. That led, in the judge’s view, to a minimum term in the appellant’s case of 17 years less time on remand. Submissions 17. For the appellant, Mr Richard Littler KC submits that the minimum term of 17 years was manifestly excessive for three reasons. The first is that insufficient account was taken of the appellant’s character. That was the way the matter was put in Mr Littler’s written submissions, but he developed that point orally by submitting that the minimum term imposed in the case of the appellant was too close to the 18-year minimum term which was imposed on the co-defendant, Adamson. The position was that the appellant was lightly convicted, with no convictions for violence, whereas Adamson had 12 convictions for 22 offences, including robbery and other violence, as we have described. In addition, Adamson fell to be sentenced for count 2 on the indictment, the attempted robbery, which was itself a serious street robbery by defendants wearing balaclavas, which had been committed some 45 minutes before the murder. The judge had treated that as an aggravating factor in setting the minimum term in Adamson’s case. 18. Mr Littler submitted that in light of the differences between the antecedents of Adamson and the appellant, and the fact that the appellant did not fall to be sentenced for the attempted robbery and had not been involved in the disposal of evidence, a distinction of only 1 year between the minimum terms imposed on those two defendants was not sufficient. There should therefore have been a reduction below 17 years in order to give effect to the distinction between them. 19. The second ground of appeal was, as we have already mentioned, that the appellant was not involved in the disposal of evidence, which was an aggravating factor applicable to the other two. 20. Thirdly, Mr Littler submitted that the judge was wrong in failing to distinguish on the evidence between the different roles which the defendants had played in the murder itself. He submitted that it was apparent from the CCTV evidence that the appellant was in effect a secondary party and, unlike the other two defendants, was not a joint principal in the murder. He had moved away at one stage of the incident and had not gone back to the deceased. 21. For the prosecution, Mr Jason Pitter KC submitted that the judge was entitled to impose the sentence which he imposed, which reflected the way that the prosecution had put the case at the trial. He submitted that this Court should not engage in a micro-analysis of the facts: the judge had heard the case and had seen the CCTV footage and, as a result, was best placed to analyse it. The prosecution did not share the analysis of that CCTV advanced by Mr Littler. Mr Pitter submitted that the CCTV did not make it possible to identify which defendant was which: all that could be seen was figures moving. It could not be discerned when the weapon was used or when it changed hands. The appellant was party, however, to an attack when the knife was used. It was not a case where the appellant should be regarded as only a secondary party. In any event, whether regarded as a secondary party or not, he was actually engaged in the fatal violence which took place over a very short period of time. Mr Pitter submitted that this was an appropriate sentence for this appellant, whether or not there would be a disparity argument, and that is what mattered. 22. We are grateful for the measured and helpful submissions of both counsel. Decision 23. We take the appellant’s submissions in turn. The appellant’s character, turning to the way in which it was put in the written submissions, was not a mitigating factor. He had a relevant conviction for possession of an offensive weapon in a public place. The judge was entitled to regard this as an aggravating factor, albeit the appellant was not as heavily convicted as the co-defendants. The judge noted and took proper account of the fact that the appellant’s convictions did not include violence. 24. As the matter was put orally, the submission was not so much concerned with the appellant’s character as a disparity argument, that there ought to have been a greater differentiation between the defendants. That was put especially by reference to the position of Adamson, in view of the greater and more serious convictions which he had, the fact that the co-defendants alone were responsible for attempting to destroy evidence and the fact that they alone fell to be sentenced for the attempted robbery. 25. In our judgment, however, there is no real force in that point. In the case of Dawber, there was, in view of his age, at the date of the murder, a lower starting point, but he nevertheless received a higher minimum term, while Adamson also received a high minimum term although only by 1 year. Plainly therefore the judge did draw some distinction between the overall culpability of the appellant, on the one hand, and the co-defendants on the other. The submission is that he did not do so sufficiently, but that is always a difficult submission in this Court. The extent to which to distinguish between the defendants was essentially a matter for the judge, having presided over the trial. If the co-defendants and, in particular, Adamson were to some extent fortunate, as to which we say nothing, that does not mean that the sentence on the appellant was wrong in principle or manifestly excessive. Our task is to focus on the sentence imposed on the appellant. This case does not, in our judgment, approach the kind of unfairness which needs to be shown in order for a disparity argument to succeed. Nor is the fact that the appellant was not involved in the destruction of evidence a mitigating factor; on the contrary, it was an aggravating factor for the co-defendants, albeit not one to which the judge would be expected to give very significant weight. 26. Finally, there is the submission that the judge ought to have differentiated between the appellant, on the one hand, and the co-defendants on the other as regards their involvement in the murder itself. Mr Littler emphasised the fact that Dawber had admitted stabbing Mr Williamson and that Adamson, in his evidence, had acknowledged that he had no clear recollection of what had happened, and said that he did not know if he had stabbed Mr Williamson. On the basis of this evidence, Mr Littler invited the conclusion that the CCTV appeared to show movements consistent with two people stabbing Mr Williamson and that those two people must have been the two co-defendants and not the appellant. In our judgment, this logic is flawed. Dawber’s account of stabbing Mr Williamson alone was part of, and was a necessary part of, his case of self-defence, which the jury rejected. Adamson did not admit that he had stabbed Mr Williamson, only that he did not know whether he had or not. For his part, the appellant did not give evidence. But the jury must have rejected his prepared statement in interview, in which he said he had been asleep after taking 25 Xanax tablets and had no knowledge of the murder. If he had given evidence, he would either have repeated his claim to be asleep, which the jury has rejected, or would have had to accept that that account was not true. After having first claimed to be asleep, it would seem unlikely that he could have said with any credibility that he did remember after all what had happened and that he was not involved in stabbing Mr Williamson or participating in the violence. Such violence would not, therefore, have added materially to the evidence which was already before the jury. 27. Accordingly, no safe conclusions can be drawn, in our judgment, from the rejected evidence given by the two co-defendants. Further, the judge was entitled to conclude that the CCTV evidence similarly presents no firm foundation for drawing distinctions between the participation of the three defendants. It is clear that all three were present and participating. Whether or not the appellant actually wielded the knife, he was engaging in violence, encouraging the others to do so and doing so with the necessary intent for murder. 28. Mr Littler said that the principal murderer is usually the leader of the group, while the others are merely supporters, and that there needs to be a different and more severe sentence on the principal. We would not accept that as a necessary rule. The defendants here were all in this together, on the judge’s findings, and he was not bound to impose different sentences, particularly when it was so difficult to distinguish between the defendants from the CCTV. Accordingly, we conclude that the judge was entitled to sentence the defendants on the basis that all three had played their part and that for the purpose of sentence, it was not possible to distinguish between their respective roles. As the judge says, the CCTV shows Mr Williamson surrounded by all three defendants engaging in this incident. 29. We would accept Mr Littler’s submission that it is important, where possible, to analyse the evidence but we are not persuaded that the judge failed to do so. He did what he could with the material available and was entitled to reach the conclusions which he reached. He was correct also to take a 15-year starting point for this appellant on the findings which he made. The aggravating features, to which we have referred, were serious and required a significant uplift. They outweighed the mitigation. The minimum term of 17 years which he imposed cannot, in the circumstances, be regarded as manifestly excessive. Accordingly, the 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

2023_11_16-5913.xml

dismissed

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1437/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1437

067fb2d02b638c28e5d622542aa53bade0c9f1759848ca3d2a689909c072cc3c

[2020] EWCA Crim 896

EWCA_Crim_896

crown_court

Neutral Citation Number: [2020] EWCA Crim 896 No: 201801091/B2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 30 June 2020 LORD JUSTICE HOLROYDE MRS JUSTICE CUTTS DBE HIS HONOUR JUDGE MICHAEL CHAMBERS QC (Sitting as a Judge of the CACD) R E G I N A v MUHAMMAD ALI 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 S

Neutral Citation Number: [2020] EWCA Crim 896 No: 201801091/B2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 30 June 2020 LORD JUSTICE HOLROYDE MRS JUSTICE CUTTS DBE HIS HONOUR JUDGE MICHAEL CHAMBERS QC (Sitting as a Judge of the CACD) R E G I N A v MUHAMMAD ALI 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. The Applicant appeared in Person (Via Telephone Link) The Crown did not appear and was not represented J U D G M E N T 1. LORD JUSTICE HOLROYDE: On 2 February 2018, after a trial before HHJ Lambert and a jury in the Crown Court at Bristol, this applicant was convicted of an offence of rape. His application for leave to appeal against conviction was refused by the single judge. It is now renewed to the full court. 2. The victim of the offence (to whom we shall refer as "T") is entitled to the protection of the provisions of the Sexual Offences (Amendment) Act 1992. Accordingly, during her lifetime no matter shall be included in any publication if it is likely to lead members of the public to identify her as the victim of the offence. 3. In 2016 and 2017 the applicant and T were living together. They had met at a drug rehabilitation centre. T had been the victim of physical and sexual violence in the past. During the relationship she used significant quantities of sedatives, some of which were provided by the applicant. In March 2017 T reported to the police that she had found footage on her mobile phone showing that, in November 2016, the applicant had recorded himself having sexual intercourse with her whilst she was asleep. She did not feel strong enough to pursue her allegation of rape at that stage. Her relationship with the applicant continued. He soon became aware that she had reported to the police that he had raped her. 4. T was later to allege that there were other occasions when the applicant had raped her as she slept. One such occasion was on 4 June 2017. Social media communication showed that in the early hours of the previous morning the applicant and T had had a row, which culminated in the applicant telling her to leave. A combination of still and video footage on the applicant's phone showed that for about an hour at around midday T had been so deeply asleep as to appear unconscious. The video footage showed the applicant having sex with her whilst she was in that condition. 5. On 5 June 2017 T and the applicant married. They continued to live together. 6. Later in June 2017 the police were called to an incident at the applicant's home. T alleged that she had been assaulted. She also alleged the incidents of rape. 7. The applicant was charged with four counts of rape. Count 4 related specifically to rape on 4 June 2017. He was also charged with an offence of assault. 8. The applicant's defence to the rape charges was that all sexual activity had been consensual, that T had given him permission to have sex with her when she was asleep and that on 4 June 2017 they were having sex to "make up" after their row the previous night. 9. At a trial in December 2017 the jury found the applicant not guilty of assault but could not agree a verdict on any of the counts of rape. At the retrial of those counts the jury found him guilty on count 4 and not guilty on the other three counts of rape. It should be noted that the evidence considered by the jury included a document signed by T in which she said that all sexual activity had been consensual, that "in the videos I was awake but my eyes were closed" and that her allegations were false. Her explanation for this document was that she had been told that the applicant, who had been remanded in custody, had become suicidal in prison, and she did not want him to kill himself. She had therefore agreed to sign the document, even though she did not want to do so. 10. The same solicitors and counsel acted in both the original trial and the retrial. Following the conviction fresh solicitors and counsel were then instructed. Counsel gave two advices on appeal. He settled grounds of appeal contending that the conviction on count 4 was inconsistent with the acquittals on the other three counts and that there had been a failure of legal representation, in that trial solicitors and counsel had failed to take sufficient steps to challenge T's credibility. Ten different categories of failure were identified though no details were given. Reference was made to the retraction letter but not to any recording of something said by T in the telephone conversation. A third ground of appeal based on non-disclosure by the prosecution was put forward but quickly abandoned. 11. The prosecution opposed those grounds of appeal in a respondent's notice in which each of the ten categories of alleged failure of representation were shown to be unfounded. The single judge considered these grounds of appeal and on 7 February 2019 refused leave to appeal. 12. The applicant himself then put forward amended grounds of appeal dated 10 June 2019. He made further complaints about his legal representatives, including, for the first time, a complaint that they had failed to make use of a video recording of a phone conversation between one Umair Mukhtar and T. These amended grounds were taken up by counsel who had been instructed post trial. He settled further grounds, seeking leave to vary the existing grounds and seeking to rely on fresh evidence relating to the video recorded phone call. 13. It seems that in early March 2020 the recently-appointed solicitors and counsel declined to act further. Later that month the applicant, in person, put forward what was said to be final grounds, the document appearing to consist of counsel's grounds amended in manuscript. Then in early June 2020 the applicant put forward yet further grounds. The exact scope of these is far from clear. 14. As we understand it, the applicant wishes to argue that the verdicts were inconsistent, that the trial representatives failed adequately to address the crucial issue of T's credibility and that fresh evidence should be admitted relating to the phone call involving Mr Mukhtar which the applicant asserts was available to his trial representatives. The evidence on which he has sought to rely is a statement from his sister to the effect that she was in a car with Mr Mukhtar when he recorded the phone conversation; a statement from a solicitor instructed post trial, saying that the recording was given to him by the sister; and a transcript of the conversation so far as it can be heard. There is no statement from Mr Mukhtar himself and no indication of the circumstances in which the call took place, though it is said to have been before the first trial. 15. The transcript of the phone conversation is incomplete and partly incoherent, but it is capable of being understood to mean that T did not consent to the first occasion when the applicant had sex with her as she slept, but that "in the end I agreed to it" and that "I just accepted it towards the end". The transcript includes statements by Mr Mukhtar to the effect that the applicant was having a difficult time in custody. 16. The applicant waived his legal professional privilege, and the responses of the trial representatives have been obtained. The trial solicitors indicate that in advance of the first trial, the applicant's sister sent an e-mail referring to the recorded phone call and acknowledging that T had said in it that she did not consent to the first occasion. The solicitor asked her to send him this recording but she never did. The solicitor made contact with Mr Mukhtar and asked him to provide the recording. He did not send it either. He later contacted the solicitors to say he wanted nothing further to do with the case. 17. Both solicitors and counsel took the view that even if it was possible to obtain the recording and to adduce it in evidence, it could prove harmful to the defence case. Given that the defence case was that T had always consented, it would have been damaging to adduce evidence to the effect that she did not consent on the first occasion. 18. As will be apparent the proposed grounds of appeal have repeatedly been expanded and amended. In R v James [2018] EWCA Crim 285 ; [2018] 1 Cr App R 33 , this court emphasised that, as a general rule, all grounds of appeal should be advanced in the application for leave to appeal against conviction. An applicant who later wishes to advance further grounds which have not been considered by the single judge must make an application for leave to vary and address all relevant factors. Such an application faces a high hurdle. 19. In considering whether this applicant can clear that high hurdle, we take into account the fact that he is acting in person. We have, exceptionally, heard oral submissions from him today. 20. We are satisfied that there is no merit whatsoever in the ground of appeal alleging inconsistent verdicts. It is impossible to argue that there can be no rational explanation for the differing verdicts. The jury were correctly directed that they must consider each count separately. Given T's apparently comatose state over a period of about an hour on 4 June 2017 (as shown in the still images and video footage), and given that the applicant knew she had already reported him to the police for raping her as she slept, there was ample basis for the jury to be sure that all of the legal ingredients of the offence of rape were proved on that occasion, and that his evidence about that occasion was untrue, even if they were unsure whether there had been previous rapes. 21. Nor can we see any merit in the criticisms made of trial solicitors and counsel in the original grounds of appeal. We are satisfied, from the solicitors’ responses, that the applicant instructed them after having withdrawn his instructions from two previous firms and that he was in frequent contact with them to give instructions, as indeed the applicant has confirmed in his oral submissions today. 22. It is clear from the respondent's notice that T's evidence was thoroughly tested in cross-examination. We find it striking that the applicant himself does not assert that he expressed dissatisfaction during either the trial or the retrial with the way in which the defence case was being conducted. We infer that he must have been content with the advice he received and the decisions taken as to what matters should or should not be pursued in evidence. The applicant's oral submissions to us this morning confirm that that is a proper inference. 23. We also find it striking that the applicant in his copious writings to this court shows no understanding of the obvious potential for his case to be damaged by some of the matters he now says should have been pursued but were not. We can see no basis on which it can be said that there was a failure of competent representation, still less that there was a failure such as to cast doubt on the safety of the one guilty verdict which was returned. 24. As to the proposed additional ground of appeal, based on the phone conversation between Mr Mukhtar and T, we are satisfied that there is no arguable basis for admitting any fresh evidence. We are prepared to assume, for present purposes, that the recording is genuine. Section 23 of the Criminal Appeal Act 1968 requires the court to consider, amongst other things, whether there is a reasonable explanation for the failure to adduce the evidence at trial. There are two reasons why this recording was not given in evidence. The first is that, contrary to the applicant's assertion, it was never in fact provided to the trial solicitors; but it could have been and, if the applicant really wanted to rely on it, it should have been. 25. The second is that, knowing what the recording contained, the applicant's trial representatives took the view that its potential for harming the defence case made it inappropriate to seek to rely on it. It is clear that they communicated that view to the applicant. It was an entirely reasonable view for them to take. It is difficult to see how any other conclusion could have been reached. The transcript raises more questions than it answers. It contained what, on the face of it, is evidence of at least one rape. It is inconsistent both with the defence case and with the retraction letter on which the applicant relied, and it could well have been seen by the jury as another example of pressure being put on T by one of the applicant's friends. We infer that the applicant must at the time have been satisfied with the good sense of the decision not to seek to adduce this evidence. No explanation has been put forward as to why, if he was not so satisfied, he did not urge his trial representatives to make use of the recording in his retrial, even if it had not been used in the first trial. Nor has any explanation been put forward as to why this ground of appeal was not advanced until more than a year after the original grounds of appeal were settled and after the single judge had refused leave to appeal. 26. We are therefore satisfied that there is no arguable ground on which the safety of this conviction can be challenged. The application for leave to vary the grounds of appeal and the renewed application for leave accordingly fail and are refused. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk

2020_06_30-4921.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2020/896/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2020/896