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20d47c75b6dac6c63372d83c273629c9e515c6b06eba261f4f0454500665a99d

[2008] EWCA Crim 2649

EWCA_Crim_2649

2008-10-15

crown_court

No: 200604671/C3 Neutral Citation Number: [2008] EWCA Crim 2649 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 15 October 2008 B e f o r e : LORD JUSTICE TOULSON MR JUSTICE GRIFFITH WILLIAMS THE RECORDER OF WINCHESTER (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - R E G I N A v SUSAN TRICIA ROACH - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph

No: 200604671/C3 Neutral Citation Number: [2008] EWCA Crim 2649 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 15 October 2008 B e f o r e : LORD JUSTICE TOULSON MR JUSTICE GRIFFITH WILLIAMS THE RECORDER OF WINCHESTER (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - R E G I N A v SUSAN TRICIA ROACH - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr S Redpath appeared on behalf of the Appellant Miss N Miles appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE TOULSON: On 6 June 2005 at Liverpool Crown Court the appellant pleaded guilty to six counts of possessing discs bearing a false trade mark with a view to herself or another offering them for sale, three counts of making a false statement with a view to obtaining benefit and three counts of distributing games and discs which infringed copyright in the course of a business. She also pleaded guilty to four charges of possessing items which infringed copyright. For these offences she received a sentence of 12 months' imprisonment. On 11 August 2006, before His Honour Judge George, she was made subject to a confiscation order in the sum of £242,807.40 with a period of imprisonment of 27 months to be served in default of payment. 2. She appeals against the confiscation order by leave of the single judge, who granted leave on limited grounds. Those on which he refused leave have been not renewed. 3. The prosecution arose out of an investigation conducted from May to July 2004 by trading standards officers of Liverpool City Council and fraud officers of the Department of Work and Pensions. One of the sites placed under surveillance was Great Homer Street Market in Liverpool. The appellant was filmed on a number of occasions working with others at a stall selling DVDs and CDs. In due course the stall was raided and arrests made of those working on the stall. The appellant was arrested and her premises searched. A total of nearly 3,000 counterfeit discs were seized at her home, together with a laptop computer containing a large number of picture and music files and an extensive list of DVD music and games titles. The total value of all the discs seized from the stall, her vehicle and home address was in the region of £100,000. 4. The appellant pleaded guilty at a late stage of the proceedings on a written basis that she had agreed to participate in an ongoing business conducted by others, including family members. She was sentenced on the basis that she was not the organiser of the enterprise. On the hearing before Judge George it was submitted that he was bound by her written basis of plea. That submission was based on what had been said in this court by Keene LJ giving the judgment of the court in May [2005] 1 WLR 2902 paragraphs 88 and 89, to the effect that the making of a confiscation order is part of a sentencing procedure and that where there is a basis of plea which is accepted by the prosecution the judge must honour it. 5. However, in the present case the basis of plea had been agreed by the prosecution expressly without prejudice to the confiscation proceedings. In those circumstances the judge rejected the submission that he was bound by the appellant's basis of plea in the confiscation proceedings. In fact, having heard evidence, he rejected her factual contentions. The judge's approach was right. 6. The observations in May set out the ordinary rule. It is unnecessary to consider whether there may be exceptions, for example, if fresh evidence comes to light in the interval before the confiscation proceedings are heard. But in May the court was concerned with a case in which there had been an unqualified agreement by the prosecution to the defendant's basis of plea. That was not so in this case. There was no injustice, where the basis of plea was accepted on the qualified basis which it was in this case, in the judge hearing the evidence and coming to his own view on the facts. 7. The judge's judgment in the confiscation proceedings was a full and careful judgment, which has the hallmarks of detailed preparation. 8. Two main points underlie the grounds of appeal. Firstly, where a property is acquired on mortgage, what is the interest to be valued when assessing the offender's benefit: is it the freehold interest, or the equity? Secondly, what is the position where funds for the property come partly from tainted and partly from untainted money? 9. In this case the appellant was deemed to have a criminal lifestyle, so the judge had to apply the assumptions set out in section 10 of the Proceeds of Crime Act 2002 , subject to the provisions about incorrectness or injustice in subsection (6). The issues concern the way in which he applied those presumptions in relation to four properties. 10. 8 Park Lane . This property was obtained by the appellant, subject to a mortgage, in 1987. It was still owned by her at the time of the hearing. It therefore fell within the second assumption set out in section 10(3) , which is as follows: "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." 11. It was submitted, firstly, by Mr Redpath that it was unjust to apply that assumption in the present case because so many years had elapsed since the appellant had acquired the property. 12. The appellant's case was that the deposit for the purchase of the property had come from the sale of a previous house, or other legitimate resources, and that the balance had been borrowed on mortgage. There was no dispute as to the mortgage, but the question was whether the appellant had shown that it would be unjust to apply the assumption in relation to the acquisition of the property, bearing in mind the lapse of time and her evidence about the source of the deposit. 13. The judge dealt with this point briefly in his judgment, saying that the figures in evidence did not demonstrate that money from the sale of a previous house or other legitimate resources went towards the purchase of 8 Park Lane in addition to the mortgage. He made plain that in view of the time which had elapsed he would not have expected what he termed full financial records, but he would have expected some more evidence from her. Although she asserted that the deposit came from the sale of another property, she offered no information about the other property, or how it had been acquired, or for how much it was sold. It could reasonably have been expected that she would have been able to remember the previous house in which she had lived and to provide at least some information about its acquisition. In our judgment, no legitimate criticism can be made of the judge's decision as a matter of fact that on the evidence before him it was not unjust to apply the statutory assumption in relation to that property. 14. There is a second point in relation to the Park Lane property which is no longer in dispute. The appellant is a joint owner of the property. It is her submission that since it was acquired on mortgage, the value of her interest in the property for the purposes of the Act was the value of her interest subject to the mortgage. That is the effect of section 79 of the Act which provides: "(1) This section applies for the purpose of deciding the value at any time of property then held by a person. (2) Its value is the market value of the property at that time. (3) But if at that time another person holds an interest in the property its value, in relation to the person mentioned in subsection (1), is the market value of his interest at that time, ignoring any charging orders under a provision listed in subsection (4)." 15. Applying those provisions, the relevant value was the value of the interest of the appellant in the property at the material time, subject to the charge in favour of the building society. The relevant time for this purpose was the time at which the judge reached his decision under section 80. There are alternative dates at which the property may be valued, but in this case the value at the date of the hearing was the value pursued by the prosecution. Accordingly, the benefit figure found by the judge in respect of that property must be adjusted to half the equity in the property, representing the appellant's half share of the property, subject to the building society's interest. This comes to a figure in the region of £55,000. 16. We add that the judge did not have the benefit of having his attention drawn to authorities of this court on this point, such as Walls [2003] 1 WLR 731 . We have no doubt that if his attention had been drawn to that and other authorities and to the section to which we have referred, he would have approached the matter differently. 17. 43 Lusitania Road . This property was acquired by the appellant for just short of £40,000. Half of the purchase price was lent to her as an unsecured loan. The other half of the purchase money came from her own funds, which the court was entitled to treat as tainted money since she had provided no satisfactory evidence of any lawful source of that money. Given that the purchase money therefore consisted half of tainted funds and half of non-tainted funds, the question arose how her benefit in relation to that property was to be assessed. 18. The appellant's argument is that since half the purchase price came from clean money, half the value of the property should be regarded as not representing the fruits of crime. 19. The prosecution's submission was that logically the entire property should be regarded as obtained by her as a result of or in connection with her criminal activities, but by way of concession it was prepared to allow a discount in the amount of the unsecured loan. 20. There is no authority which is directly binding on us on this point, but there is some statutory provision and authority of this court in relation to another part of the Act which provide a helpful pointer. 21. The overall purpose of the Act is to separate criminals from property and other benefits obtained as a result of their crime. This may be done through criminal confiscation proceedings, with which we are presently concerned, or through civil action brought by the director of the Asset Recovery Agency. 22. In relation to the latter, section 306 of the Act deals specifically with the position where property has been obtained through the use of mixed funds; that is to say, tainted funds and untainted funds. Section 306 provides as follows: "(1) Subsection (2) applies if a person's recoverable property is mixed with other property whether his property or another's. (2) The portion of the mixed property which is attributable to the recoverable property represents the property obtained through unlawful conduct. (3) Recoverable property is mixed with other property if, for example, it is used, ... (b) in part payment for the acquisition of an asset." 23. So if in the present case proceedings had been initiated by the director of the agency there is no doubt how this question would have been resolved. The appellant pooled tainted money (the half of the acquisition price which came from her own criminal proceeds) with untainted money to acquire an asset, namely 43 Lusitania Road, and the portion of that which would have been attributable to her criminality would have been one half. 24. Those provisions were considered by the Court of Appeal Civil Division in the case of Olupitan and another v Director the Assets Recovery Agency [2008] EWCA Civ 104 . The court accepted that if property was acquired in part with untainted money and in part with the proceeds of fraud, it was not Parliament's intention that the purchaser should be deprived of the portion of the value of the property derived from untainted money (see paragraphs 38 and 52). 25. It is theoretically conceivable that Parliament intended that a different approach should be taken in criminal confiscation proceedings. But it is impossible to discern any rational ground on which it should do so. While the different provisions of the Act may be capable of producing anomalies, the court should try to avoid this where possible. It seems to us that the provisions of section 306 are instructive because they indicate a legislative intent in this type of situation. 26. A common sense application of the words of section 10 points to the same result. The second assumption directs attention to the time when the property was acquired. The assumption, in the absence of evidence to the contrary, is that property held by the defendant on or after conviction was obtained as a result of the defendant's criminal conduct and that the defendant has benefited accordingly. But if there is evidence which satisfies the judge that the property was obtained in whole or in part from untainted money, the provisions of section 10(6) will apply. To the extent that the property was obtained by untainted funds, it would be incorrect to assume that it represents or constitutes a benefit obtained by criminal conduct. 27. There is fairness and simplicity in this outcome. It is fair because if, for example, someone acquired property largely with untainted funds, but with a small injection of criminal funds, there would be an injustice in depriving that person of the whole value of the property. That is not the purpose at which the Act is aimed. Our approach should not be difficult to apply, because the court simply has to look at the time when the property was acquired and evaluate the evidence, if any, about the source or sources of the purchase money. 28. Other questions may arise where property is acquired on mortgage and mortgage instalments are thereafter paid either out of tainted or innocent funds, but we need not consider those matters in this case. 29. Accordingly we accept the appellant's argument on this issue. The result is that the benefit figure in respect of 43 Lusitania Road should be assessed in the amount of half the value of the property at the date of its valuation by the judge. 30. 34 and 40 Parkinson Road . One of these properties was acquired by the appellant in her own name and the other through a nominee, but the issue is the same in each case. In each case the property was obtained with a mortgage loan. The question is whether in assessing the appellant's benefit from her criminal conduct the valuation of the property should be the market value of the appellant's net interest, subject to the mortgage, or of the freehold. On those facts alone the natural conclusion would be that the value to be assessed is that of the appellant's net interest, as agreed in the case of 8 Park Lane. 31. However, the prosecution submit that in this case a different result should apply because the mortgages were obtained fraudulently. Miss Miles relies on the decision in Olupitan that in such a case the entire property was to be regarded as having been obtained by fraud; and therefore in that case it was found that a recovery order under Part 5 of the Act was properly made in relation to the whole property. 32. However, there is here a relevant distinction between the provisions relating to civil recovery orders and criminal confiscation provisions. The effect of the civil recovery order was to place the property into the hands of an independent officer, who would deal with it in accordance with provisions of the Act (relating to civil recovery proceedings), which are designed to protect the legitimate interests of all interested parties. In that particular case the effect of the order was that the amount owed to the building society would be paid to the building society and the remainder would go to the state. 33. In the present proceedings we are not concerned with a recovery order of that kind. We are concerned with assessing the benefit of the appellant in relation to the relevant properties. Section 79 forms part of the scheme which has to be applied. It was argued that this court can somehow disregard section 79 in a case where the mortgage was obtained by fraud, but there is no statutory process for that submission. It is a matter of fact that in relation to each of these properties at the material time another person, namely the building society, held an interest in the property, and the interest acquired by the appellant was not the unencumbered freehold, but the net equity subject to the building society's charge. Accordingly we can see no basis on which the judge could disapply section 79 . Therefore the relevant value to be taken in the case of each of those properties was the amount of the net equity. 34. LORD JUSTICE TOULSON: We think and hope that covers all the points. May we leave it to counsel to prepare the necessary form of order? I don't imagine there will be any disagreement about that. If there is you can deal with it on paper. Is that going to affect the default period? 35. MISS MILES: No. 36. LORD JUSTICE TOULSON: Thank you.

2008_10_15-1671.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/2649/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/2649

c915b9020953bbbef17946e6aaec4c269dec34677caa0175359cb9a9b6a18627

[2003] EWCA Crim 1555

EWCA_Crim_1555

2003-05-07

crown_court

No: 200205207/1848/Z4 Neutral Citation Number: [2003] EWCA Crim 1555 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 7th May 2003 B E F O R E: LORD JUSTICE KENNEDY MR JUSTICE HUNT MR JUSTICE PITCHERS - - - - - - - R E G I N A -v- MICHAEL RAY THOMAS - - - - - - - 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 t

No: 200205207/1848/Z4 Neutral Citation Number: [2003] EWCA Crim 1555 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 7th May 2003 B E F O R E: LORD JUSTICE KENNEDY MR JUSTICE HUNT MR JUSTICE PITCHERS - - - - - - - R E G I N A -v- MICHAEL RAY THOMAS - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR T MUNYARD appeared on behalf of the APPELLANT MR E BROWN appeared on behalf of the CROWN - - - - - - - J U D G M E N T 7th May 2003 1. LORD JUSTICE KENNEDY: This matter comes before us having been referred to the Court by the Criminal Cases Review Commission. 2. On 17th November 1993 at 10.25 a.m. there was a raid at a bookmakers in Upper Clapton Road, London. There was one armed raider who went inside that shop. It was the Crown's case that this appellant was also there acting as a look-out inside the shop and just inside the door. Police officers had been keeping watch upon this particular premises and possibly on others as well. As a result, whilst the raid was in progress, two armed police officers went into the bookmakers shop and one of those who was inside, namely this appellant, was arrested. 3. The Crown's case as developed at trial on 22nd July 1994 was that initially observation had been kept by two police officers, PC Douglas and PC Howlett, from a building on the other side of the road. According to PC Douglas he had seen two black men walking on the same side of the street as the bookmakers and talking to each other. One of them, the Crown said, was the appellant, clad in a black baseball cap and wearing a black jacket. The other was wearing a light brown jacket. It was the appellant's case at trial that if that was what the officer saw, the officer did not see him because he did not approach the bookmakers shop from that direction. According to the officer the two men went into the shop, and undoubtedly, from what was seen inside the shop, the man who carried the gun was wearing a light brown jacket. 4. A customer inside the shop, Mr Burke, saw a man with the gun going behind the counter and addressing the manager. He said that there was a second man by the door, that they were both black, but that he did not see the second man's face. 5. The two police officers who entered the bookmakers shop were Detective Constable Howell and Sergeant Miller. They passed the appellant, who was by the door, their eyes were undoubtedly on the man who was behind the counter, who, it was said, had a blue cloth over his face. According to the officers the appellant shouted "Run, old bill" by way of warning to what they claimed was his confederate, the man with the gun. According to the officers the man with the gun then dropped his blue cloth and ran. 6. The officers shouted, "Armed police, stand still". The man who had the gun, wearing the brown coat, ran into Sergeant Miller and at that stage, according to the officers, the appellant attempted to free his confederate by grabbing the Sergeant. The second officer, Detective Constable Howell, took hold of the appellant. 7. The appellant's case was that he was playing no part at all in any criminality. He was simply there because he had gone into this betting office in order to look at odds in relation to a forthcoming football match and he laid hands on nobody. 8. The struggle spilled out on to the pavement and at that stage the man who had the gun was able to escape, but the appellant was not. Other officers, Detective Constable Hayes and Detective Constable Smith, were involved in the arrest of the appellant. It was claimed that at that stage the appellant said, "Don't shoot me I haven't got the gun." It was the appellant's case that he never said anything about not having the gun. Furthermore, it was his case that, although it was contended for the Crown that he made an incriminating remark in relation to his confederate, he was not in fact asked about the other man at all. 9. At the Central Criminal Court on 22nd July of 1994 he was convicted of robbery, of possessing a firearm with intent on the basis, of course, that he was a party to the overall criminality, and he was by reason of those convictions in breach of a probation order which had been in existence at the time of the offending on 17th November of 1993, so he was sentenced to a total period of five years' imprisonment. 10. He appealed. His application for leave to appeal was refused. He renewed that application to the Full Court on 20th December 1994 and before the Full Court he failed to obtain leave. When dealing with the matter MacPherson J said this: "The conflict between this applicant's evidence and that of DC Howlett was one of the central issues which the jury had to resolve." 11. As we have already indicated, they resolved it by accepting the evidence of the police officer. (The reference there to DC Howlett was in fact an error; it was DC Howell who was the relevant officer). 12. However, in the late 1990s allegations emerged in relation to the Flying Squad officers who were based, as were the main officers concerned in this investigation, at Rigg Approach. In particular it was alleged that they had with them on many occasions what were described as first aid kits which consisted of items which they could plant on persons whom they believed to have committed offences. As a result of those investigations, Detective Sergeant Miller was prosecuted, but, for reasons with which we need not be concerned, that prosecution had to be brought to an end. Nevertheless, his conduct was investigated with the result that he was required to resign. 13. Detective Constable Howell, who had played a key part in the investigation with which we are concerned and indeed had been the second officer who had entered the betting office together with Sergeant Miller, was convicted of doing acts tending to pervert the course of justice and was sentenced to a period of seven years' imprisonment. That sentence has recently been confirmed, in that his appeal against, as we understand it, conviction and sentence has been dismissed. 14. Detective Constable Smith who played a somewhat lesser role in the present matter, in that he was one of the officers outside the betting office when the struggle spilled on to the street, has also been suspended. He would have been prosecuted but because of ill health no prosecution was pursued. 15. It is said on behalf of the appellant, and indeed is the substance of the reasons why the matter was referred to this Court by the Criminal Cases Review Commission, that as a result of all these events this conviction can no longer be regarded as safe and satisfactory. In the statement of reasons the Commission said this: "The Crown's case relies heavily on the evidence of Detective Inspector Miller and Detective Constable Howell to demonstrate Mr Thomas's participation in the robbery and relies in part on DC Smith to corroborate the incriminating remarks attributed to Mr Thomas. The Commission believes that even if the other officers had been presented to the jury as untainted, and taking account of the evidence of the civilian witnesses, it cannot be said with confidence that the jury would have been bound to convict Mr Thomas had they known that the Crown did not regard Detective Sergeant Miller, Detective Constable Howell and Detective Constable Smith as witnesses of truth. The Commission considers that there is a real possibility that Mr Thomas's conviction would not be upheld were the case to be referred." 16. As Mr Munyard has pointed out this morning, although Police Constable Douglas was not himself based at Rigg Approach, he was working with the officers who were and on the day of the incident with which we are concerned he undoubtedly made up his notes in broad terms at the same time as they made up theirs. Whether Detective Sergeant Miller was there throughout, or only for part of the time, is not a matter which we need investigate further, suffice to say that his association with those officers would of itself give rise to difficulty on the part of the jury when considering the reliability of his evidence. 17. Mr Burke to whom we have referred, the customer in the shop, did not see enough of what transpired to stand as a witness on whose word alone this conviction could be sustained. And in the light of the matters which have transpired Mr Brown, on behalf of the Crown, has taken the realistic stance that the Crown can no longer invite this Court to regard the conviction as safe. In our judgment, that must be right. Accordingly, this appeal against conviction is allowed. (Submissions made in relation to an application for leave to appeal against sentence) 18. LORD JUSTICE KENNEDY: The applicant applies for leave to appeal against sentence. We grant permission. He therefore becomes an appellant. 19. On 18th June 2001 at the Central Criminal Court this appellant was convicted by a majority of possessing a firearm with intent to endanger life. He was sentenced to life imprisonment pursuant to section 109 of the Powers of Criminal Courts (Sentencing) Act 2000 and the specified period for the purposes of section 28 of the Crime (Sentences) Act 1997 was declared to be four and a half years' imprisonment. 20. That prosecution arose out of what occurred on 12th August 2000. It was apparently on that occasion that the victim, a man named George Edwards, was induced to go to the home of a woman named Jacqueline Foster. He claimed that there he was threatened by the appellant's co-accused, a man named Dennis Stephenson, who had a gun. According to Edwards the appellant had a knife and it was the appellant who was active in robbing Edwards of his possessions. According to Edwards he struggled. Stephenson fired the gun and hit him in the hip. Then the appellant and Stephenson fled. 21. Precisely what happened inside that house on that day was far from clear even at the end of the trial, but it was clear, as a result of the verdict of the jury, that there had been a gun there, that the gun had been discharged, and on the findings of the jury that it had been discharged with intent to endanger life. 22. It was in that setting, and having regard to his previous convictions, that the learned judge sentenced as he did. When dealing with this appellant he said this: "You, Thomas, were acquitted of attempted robbery and wounding with intent but convicted of the very serious crime of possessing a firearm with intent to endanger life. You have a very substantial criminal record of serious crime including previous convictions for robbery when in possession of an imitation firearm, thus I have to sentence you to life imprisonment. It seems to me you are just the type of offender for whom a life sentence is appropriate, determined as you appear to be to lead a life of serious crime endangering the lives of others. In the light of the jury's verdict, however, I would have passed a somewhat shorter sentence upon you were I passing a determinate sentence; that would have been ten years." 23. Of course that indication from the trial judge is, so far as this Court is concerned, a useful starting point when deciding what, in the light of the decision made this morning, the sentence should now be. In the light of the decision made this morning it is obvious that the learned sentencing judge on this occasion was not required to pass a life sentence. So, on the face of it, the sentence would appear to be one of ten years. 24. However Mr Munyard, on behalf of the appellant, submits that such a sentence would not give proper weight to certain matters which we should now consider. First of all, he submits that the co-defendant, who actually discharged the firearm, received a sentence of 12 years' imprisonment and that the sentence indicated by the trial judge as appropriate in relation to this appellant was too close to that imposed in relation to one whose criminality was greater. 25. The difficulty about that argument is that if it had validity it could have been raised in relation to the sentence originally imposed and would have been relevant because the indication of the trial judge was relevant when he was certifying for the purposes of section 28 of the Crime (Sentences) Act what he considered the relevant period to be. Nevertheless, for present purposes we are prepared to look at what has been placed before us. 26. We do not regard the disparity argument as being of any significant weight in this case whatever. We do, however, regard there as being some weight to be attached to a second argument advanced by Mr Munyard, namely, that in sentencing as he did the sentencing judge had regard, and rightly had regard, to the previous record of this appellant as he knew it. In the light of our decision this morning that record would have been significantly less than it was at the time when sentence was imposed in June 2001, in that there would not have appeared as part of the record of this appellant his conviction on 22nd July 1994. That is something which we consider does have to be borne in mind in deciding at this stage whether a sentence of ten years' imprisonment is appropriate. 27. Mr Munyard advanced a further submission, namely that this Court should now give weight to the fact that, pursuant to the conviction in July 1994, the appellant did serve a period of three years and five months' imprisonment and that in the light of today's decision that was a period of imprisonment which he should not have served. Of course it is right to say that it is a period of imprisonment which he should not have served, but we do not accept that time served in custody in respect of an alleged offence which has not in the end resulted in a conviction, or in respect of which the conviction has had to be set aside, can be treated as a credit available for use against a proper sentence imposed subsequently in relation to some quite different criminality. Of course it forms, as Mr Munyard accepted when this matter was put to him, some part of the offender's general background, but there can be no year for year, or day for day credit given in respect of such a period of imprisonment. It would be wholly, in our judgment, wrong and illogical to grant it. 28. However, because of the matter to which we have referred, namely the effect of the offender's record at the time of sentencing in June 2001, and, for what it is worth, the background that he had, had the sentencing judge then known it, he had served a sentence of imprisonment which he in reality should not have served, we consider that it would not be right simply to implement the ten year sentence indicated by the sentencing judge. We reduce it to one of nine years. That will now be the sentence which will remain to be served in respect of the conviction at the Central Criminal Court on 18th June 2001. 29. I should say that we read the two letters placed before us and had regard to them. 30. MR MUNYARD: I have one further application and that is in relation to costs. I would ask this Court to make a defendant's costs order under the Prosecution of Offences Act 1985 , those costs obviously to be assessed by the appropriate officer of the Court in the light of his successful appeal against conviction and the ancillary, but also, at least in part, successful appeal against sentence. 31. LORD JUSTICE KENNEDY: Is he publicly funded? 32. MR MUNYARD: No, he is not. 33. LORD JUSTICE KENNEDY: Yes, you may have your order in the light of that indication. 34. MR MUNYARD: I am very grateful.

2003_05_07-64.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2003/1555/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2003/1555

9ded31c0b5a4ca09f737b8ef47e6320bed97f559d723168a9fe20c7e89bea1ed

[2017] EWCA Crim 1410

EWCA_Crim_1410

2017-09-14

crown_court

Neutral Citation Number: [2017] EWCA Crim 1410 201703102/111/110/109/107/106/104 B3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM INNER LONDON CROWN COURT HIS HONOUR JUDGE DAVIES QC Case No. T20167506/T20170336 Royal Courts of Justice Strand, London, WC2A 2LL Date: 14/09/2017 Before: THE RIGHT HONOURABLE LORD JUSTICE BURNETT THE HONOURABLE MRS JUSTICE CARR DBE and THE HONOURABLE MRS JUSTICE CHEEMA-GRUBB DBE - - - - - - - - - - - - - - - - - - - - - Between: REGINA Appellant - and – (

Neutral Citation Number: [2017] EWCA Crim 1410 201703102/111/110/109/107/106/104 B3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM INNER LONDON CROWN COURT HIS HONOUR JUDGE DAVIES QC Case No. T20167506/T20170336 Royal Courts of Justice Strand, London, WC2A 2LL Date: 14/09/2017 Before: THE RIGHT HONOURABLE LORD JUSTICE BURNETT THE HONOURABLE MRS JUSTICE CARR DBE and THE HONOURABLE MRS JUSTICE CHEEMA-GRUBB DBE - - - - - - - - - - - - - - - - - - - - - Between: REGINA Appellant - and – (1) DS (2) SW (3) DH (4) EL (5) SL (6) DN (7) SH Respondents - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Dorian Lovell-Pank QC and Ms Catherine Pattison (instructed by Crown Prosecution Service, London Complex Casework unit ) for the Appellant Mr Henry Blaxland QC and Mr Tom Wainwright (instructed by Bindmans LLP ) for the Respondent DS Mr David Malone (instructed by Kellys Solicitors ) for the Respondent SW Mr Daniel Chadwick (instructed by Ally Lindsay Solicitors ) for the Respondent DN Mr Roy Headlam (instructed by AB Mackenzie Solicitors ) for the Respondent EL Mr Imran Mahmood (instructed by David Rubie Mitchell Solicitors ) for the Respondent SL Mr Owen Greenhall (instructed by Kellys Solicitors ) for the Respondent DH SH was not represented and did not appear Hearing date: 14th September 2017 - - - - - - - - - - - - - - - - - - - - - Judgment Approved Lord Justice Burnett: Introduction 1. This is an appeal pursuant to section 58(2) of the Criminal Justice Act 2003 against a terminating ruling of HHJ Owen Davies QC given on 5 July 2017. The issue for determination in this court is whether the judge was entitled to stay prosecutions for conspiracy to commit the common law offence of public nuisance applying the principles articulated by the House of Lords in R v Rimmington and Goldstein [2005] UKHL 63 , [2006] 1 AC 459 . At the conclusion of argument on 14 September 2017 we announced our decision. We granted leave to appeal, allowed the appeal and directed that the trial continue. These are our reasons for doing so. Prosecution case on the facts 2. On 31 October 2015 an illegal rave took place at a privately-owned disused London Fire Brigade building in Lambeth, South London. The building was occupied without the permission of its owner. The organisers of the event had not applied for a licence to the local authority to sell alcohol or play music even though, had they applied for one, it is inconceivable it would have been granted. The purpose of the event was to attract large numbers of people to enjoy loud music with the inevitable consequence of causing substantial disturbance to local residents. There is no issue that it did so. Unfortunately, there was also substantial violence and disorder in the immediate vicinity of the building which led to the conviction of eleven people, not any of these respondents, for violent disorder. The prosecution case was that each of the respondents was involved, with a specific role, in the organisation of the illegal rave. 3. The unauthorised event had been arranged by a collective known as “Scumtek ” and was advertised via social media networks as an event called “Scumoween ” . Some 10,000 flyers were printed (having been ordered by DS). The location and time were to be revealed only on the night via social media. DN was responsible for spreading word of the event. The prosecution case was that the organisers of the event wanted to organise an illegal rave in such a way that the responsible authority could not prevent it. Each Respondent, by being involved in the organisation, must have appreciated that there was a real risk that, if the event happened as planned, it would create noise (from music and from the crowd of people attending) of such volume as to endanger the comfort of local residents. 4. The event in due course took place, as planned, on 31 October 2015. People arrived from 21.15 onwards in vans with alcohol and equipment. They broke into the building. EL, SL, SW and SH were involved in conveying music equipment and beverages. The organisers had arranged marshals to keep control of those who attended. Music was played at a very high volume. DH was advertised on the flyer as being a disc jockey. There was dancing, barbeques and the provision of alcohol. 5. A public nuisance was created, says the prosecution. Police assistance was called for by members of the public. Officers arrived from around 22.15 onwards by which time some 100 people were inside the venue. The operational judgement of the police was that it was impractical to stop the event, given the numbers and conduct involved. Instead, steps were taken to avoid more people joining it. An estimate from one of the Fire Brigade’s security staff on duty at the building when it was invaded put the number of people who managed to get in at about 450. The situation escalated. Large crowds formed outside the cordons which had been constructed. They were angry at being stopped from joining the rave. Several hundred people were involved in the large-scale violence and disorder. More police officers attended, some now in riot gear and with dogs, but were unable to enter the building safely until around 05.30 the following morning. In common parlance, what occurred that evening was indeed a riot. 6. Having entered the building, the police issued a direction pursuant to section 63 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) for those present to leave. We shall return to this statutory provision because it was relied upon before the judge, although not by Mr Blaxland QC on behalf of the respondents before us, in support of the application for a stay on the basis that the police should have used the power earlier. It appears that control was restored at this stage. It is of note that the prosecution accept that they are unable to prove that three of the Respondents, DS, SW and SL, were present at the scene. 7. The prosecution was focussed on the organisation of the event. Each Respondent was said to have been responsible for organising an illegal rave using telephones and social media, each playing a specific role. The evidence of violent disorder was said to be relevant in demonstrating the sheer volume of people attending and also why the police were unable to halt the rave in its early stages. Procedural history 8. The Respondents were jointly indicted for conspiracy to cause public nuisance contrary to section 1(1) of the Criminal Law Act 1977 between 6 October and 2 November 2015. 9. The original Particulars of Offence stated that the Respondents (save for DH): “….conspired together and with others to cause a nuisance to the public by allowing large numbers of people to commit trespass at the former London Fire Brigade Building, Whitgift Street, London SE11 6AT, cause damage inside and outside the premises and cause large amounts of noise during the night thereby affecting the public.” 10. On 16 June 2017 the Particulars of Offence were amended to remove reference to trespass and criminal damage, instead specifying that (again between 6 October and 2 November 2015) the Respondents: “ …conspired together and with others unknown to cause a public nuisance, namely the organising of a large unauthorised gathering of persons on private land, without permission, where loud music would be played”. By amendment at the same time the Respondent DH was added to the proceedings. 11. The matter was listed for a six week trial commencing on 3 July 2017. All Respondents, led by DS and SW, applied at the outset to stay the proceedings as an abuse of process. In summary, they submitted that there should be a stay since the Crown did not have a “good reason ” for charging the Respondents with conspiracy to commit the common law offence of public nuisance and should, instead, have charged them with conspiracy to commit a relevant alternative statutory offence. The words “good reason” are taken from paragraph [30] of the speech of Lord Bingham of Cornhill in Rimmington. 12. The Crown opposed the application. None of the statutory offences would sufficiently reflect the criminality of the conduct alleged. Reliance was placed on R v Ryder-Large & Castrillon [2008] EWCA Crim 2966 to show that there was here a “good reason ” to proceed with conspiracy to commit the common law offence. Rimmington 13. Rimmington was a case in which the House of Lords reviewed the development of the common law offence of public nuisance and defined its parameters. The appellants had been convicted of public nuisance. They argued that the offence lacked certainty and offended the European Convention on Human Rights. That argument failed. In the course of the appeal it was argued (1) that conduct formerly chargeable as the crime of public nuisance had now become the subject of express statutory provision; (2) that where conduct was the subject of express statutory provision it should be charged under the appropriate statutory provision and not as public nuisance; and (3) that accordingly the crime of public nuisance had ceased to have any practical application or legal existence. 14. Public nuisance covers a wide range of activities many of which have engaged Parliament’s attention and resulted in discrete legislation which provides powers to various bodies to prevent nuisance and creates many offences in connection with different categories of nuisance. Lord Bingham commented (at [29]) that there was a “large measure of truth ” in the first of the appellants’ contentions. He noted a large range of statutory offences that could be prosecuted for behaviour that would fall within the definition of public nuisance. Of particular note for the purposes of these appeals, he referred to section 79(1) of the Environmental Protection Act 1990 (“the 1990 Act”) which identified nine categories of statutory nuisance (including noise injurious to health or amounting to a nuisance) and the criminal consequences of failing to obey an abatement notice in respect of them. Lord Bingham touched on section 63 of the 1994 Act which confers powers of the police to remove persons attending or preparing for a rave “at which amplified music is played during the night …and is such as, by reason of its loudness and duration and the time at which it is played, is likely to cause serious distress to the inhabitants of the locality.” He continued: “30. There is in my opinion considerable force in the appellants’ second contention under this head. Where Parliament has defined the ingredients of an offence, perhaps stipulating what shall and shall not be a defence, and has prescribed a mode of trial and maximum penalty, it must ordinarily be proper that conduct falling within that definition should be prosecuted for the statutory offence and not for a common law offence which may or may not provide the same defences and for which the potential penalty is unlimited…..It cannot in the ordinary way be a reason for resorting to the common law offence [of public nuisance] that the prosecutor is freed from mandatory time limits or restrictions on penalty. It must rather be assumed that Parliament imposed the restrictions which it did having considered and weighed up what the protection of the public reasonably demanded. I would not go to the length of holding that conduct may never be lawfully prosecuted as a generally expressed common law crime where it falls within the terms of a specific statutory provision, but good practice and respect for the primary statute do in my judgment require that conduct falling within the terms of a specific statutory provision should be prosecuted under that provision unless there is good reason for doing otherwise. 31. It follows from the conclusions already expressed in paragraph 29 to 30 above that the circumstances in which, in future, there can properly be resort to the common law crime of public nuisance will be relatively rare. It may very well be, as suggested by JR Spencer in his article, “There is surely a strong case for abolishing the crime of public nuisance”. But as the courts have no power to create new offences…so they have no power to abolish existing offences. That is a task for Parliament, following careful consideration (perhaps undertaken in the first instance by the Law Commission) whether there are aspects of the public interest which the crime of public nuisance has a continuing role to protect. It is not in my view open to the House in resolving these appeals to conclude that the common law crime of causing a public nuisance no longer exists.” 15. Lord Nicholls of Birkenhead, Lord Rodger of Earlsferry, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood all agreed with Lord Bingham. Lord Rodger (at [52] to [54]) noted that Parliament did not abolish the common law offence, as it might have done. He recorded the explanation given by counsel for the Crown for charging public nuisance in respect of one of the appellants as being to avoid a time-bar which Parliament had chosen to enact. He concluded this part of his speech by observing: “It is not for the Crown to second-guess Parliament’s judgment … by deliberately setting out to reject the applicable statutory offences and to charge the conduct in question under common law in order to avoid the time-limits … which Parliament has thought appropriate. … [U]nless and until it is changed, its provisions should be respected and the Crown should not devise a strategy to avoid them.” Other Authority 16. In Ryder-Large the court dismissed an appeal against the judge’s rejection of the submission that a prosecution for public nuisance caused by arranging, organising and conducting a rave, contrary to common law, was an abuse of process in the light of Rimmington . Reference was made to the 1990 Act and section 63 of the 1994 Act. At [16] Bennett J said: “Section 63 gives powers to the police which are additional to the common law offences of causing a public nuisance. But more particularly, so far as Mr Castrillon is concerned, there is no, so far as we understand it, statutory provision under which he could have been prosecuted. The essence of the offence under section 63 is that the police give a direction to somebody to leave the land and if they fail to leave then an offence may be committed. Mr Castrillon was not asked to leave. What the police were anxious to do was to get the music turned down to an acceptable level; something in which unfortunately they did not succeed.” The short point was that the appellant could not be prosecuted for disobeying a direction, because no such direction was given. 17. In R v Dady and others [2013] EWHC 475 (QB) the court declined to order a voluntary bill of indictment on an application to dismiss charges of conspiracy to defraud contrary to common law, where the offending was captured by the statutory offence under s. 297 of the Copyright, Designs and Patents Act 1988. Coulson J said: “21. The matters of difficulty created by section 3 of the Criminal Law Act 1977, such as the six month time limit and the need for permission from the DPP, are procedural safeguards which were plainly regarded by Parliament as important. In my judgment, it would be wrong to allow the Crown now to ignore these safeguards, and to charge what would otherwise be a precise statutory offence under the wide common law offence of conspiracy to defraud. 22. In addition, of course, to allow the Crown to prefer this voluntary Bill would be contrary to Lord Bingham’s guidance in Rimmington , because it would be depriving the defendant of the protection of being charged with an offence which was summary only.” Statutory offences 18. Before the judge, the Respondents had relied upon three statutory offences. We have touched on two of them. Section 63 of the 1994 Act creates an offence of failing to comply with a direction given by a police superintendent or above to leave the land or premises in which persons are gathered or gathering to hold a rave. Section 79 of the 1990 Act identifies the noise-related statutory nuisance. Section 80 creates the mechanisms for preventing or abating such nuisance. In outline, a local authority which is satisfied that a statutory nuisance exists, or is likely to occur or recur, may serve an abatement notice. The person served with a notice may appeal to the Magistrates’ Court. A person who fails without reasonable excuse to abide by such a notice is guilty of a summary offence. 19. The third statutory offence referred to before the judge was created by the Licensing Act 2003 (“the Licensing Act”). 20. The Crown accepts that it might be possible to prove a breach of section 136 of the Licensing Act by one or more of the respondents. Section 1(1) of that Act provides: “(1) For the purposes of this Act the following are licensable activities- a) The sale by retail of alcohol; b) The supply of alcohol by or on behalf of a club to, or to the order of a member of the club, c) The provision of regulated entertainment, and d) The provision of late night refreshment.” “Regulated entertainment” includes the playing of recorded music in the presence of an audience.” 21. Section 4 provides that a licensing authority must carry out its functions under the Licensing Act with a view to promoting the following licensing objectives: “a) the prevention of crime and disorder; b) public safety; c) the prevention of public nuisance; d) the protection of children from harm.” 22. Section 136 then creates a criminal offence in relation to unauthorised licensable activities: “(1) A person commits an offence if- (a) he carries on or attempts to carry on a licensable activity on or from any premises otherwise than under and in accordance with an authorisation, or (b) he knowingly allows a licensable activity to be so carried on. (2) Where the licensable activity in question is the provision of regulated entertainment, a person does not commit an offence under this section if his only involvement in the provision of the entertainment is that he-….e) plays recorded music… … (4) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding £20,000, or to both.” The terminating ruling 23. The Judge stayed the proceedings, in summary, for the following reasons: (a) The continuation of the prosecution would have been a manipulation of the court process. It was not for the court to make up for the shortcomings of legislation or to give effect to the desire of the prosecution as to which charges were to be brought where the “proper charges” were thought to be inadequate; (b) There were statutory offences applicable: under the 1990 Act; the 1994 Act and the Licensing Act. In each case, potential statutory defences existed that were not available to the respondents on a charge of conspiracy to cause a public nuisance; (c) No “good reason” had been provided to justify bringing a charge of conspiracy to cause a public nuisance as opposed to one of the statutory offences; (d) The answer to the argument that any statutory offence would be inadequate to reflect the criminality was that Parliament had had the opportunity to make the causing of a public nuisance a statutory offence, and not seen fit to do so; (e) Ryder-Large was distinguishable since it did not relate to a conspiracy and did not necessarily involve the commission of a nuisance as defined by common law; (f) It was necessary to stay the proceedings in order to preserve the integrity of the justice system. This appeal The Crown’s position 24. Section 67 of the Criminal Justice Act 2003 provides that this court may not reverse a ruling on an appeal such as this “unless it is satisfied a) that the ruling was wrong in law b) that the ruling involved an error of law or principle, or c) that the ruling was a ruling that it was not reasonable for the judge to have made.” 25. Whilst the Crown has brought this appeal under both sections 67(a) and (c) of the Criminal Justice Act 2003, there is in reality but a single ground of appeal here, namely that the judge was wrong in law to stay the proceedings for abuse of process. The Crown acknowledges that there is an overlap between the two grounds that it advances. 26. The Crown’s argument under section 67(a) proceeds as follows: (a) The ruling amounted to an unwarranted intrusion into the prosecutorial discretion to select what the Crown considers to be an appropriate charge best reflecting the overall criminality of those involved; (b) The judge’s interpretation of relevant statutory alternatives was wrong in law. There was no relevant statutory alternative; (c) In such circumstances, and in the absence of bad faith and where the respondents could have a fair trial, the ruling was wrong in law. 27. Under section 67(c) the Crown contends that the judge’s decision was not reasonably open to him: (a) Ryder-Large was not distinguishable; (b) It was unreasonable for him to determine that there was a relevant statutory alternative; (c) It was unreasonable for the judge to reject overall criminality as a “good reason” for the Crown to have departed from any relevant statutory alternative; (d) It was unreasonable for the judge to exercise his discretion to stay in circumstances where it involved interfering with prosecutorial discretion as to charge, where there was no relevant statutory alternative, where there was no bad faith by the Crown, and where the defendants could have a fair trial. 28. Mr Lovell-Pank QC for the Crown emphasised that the police and CPS were faced with a well organised illegal rave, sprung in the night on a densely populated part of London which took a large number of police officers to bring under control and close down. 29. The Code for Crown Prosecutors (at paragraph 6.1) directs that prosecutors should select charges which: (a) Reflect the seriousness and extent of the offending supported by the evidence; (b) Give the court adequate powers to sentence and impose appropriate post-conviction orders; and (c) Enable the case to be presented in a clear and simple way. 30. The prosecution here considered and rejected the statutory offences in this area of offending, including under the 1990 Act, the 1994 Act and the Licensing Act 2003. Each was considered and rejected as insufficient. This was not simply a licensing case, or a case of loud music to be dealt with by way of the service of an abatement notice or a case of asking people to leave premises. It was pre-eminently a public nuisance case. The Respondents’ position 31. As to the first ground of appeal, the Respondents submit variously: (a) In Rimmington the House of Lords clearly established that it would be wrong for a prosecution to be brought for the offence of causing a public nuisance where there is an appropriate statutory alternative. Where the prosecution offends that principle, then the remedy is to stay the proceedings. If the court considers that there is no “good reason” that is a sufficient basis to impose a stay. The Crown does not have an unfettered right to prosecute; (b) The question of whether or not a relevant statutory alternative exists is a question of fact. There have been instances where organisers of raves have been prosecuted for statutory alternatives. (Mr Malone for SW reminded us of this again orally by reference to certain examples.) The existing police powers and various statutory alternatives provide ample tools to deal with raves and ravers. If Parliament had intended a specific offence to deal with rave organisers, it would have enacted the same; (c) A finding that a relevant statutory alternative exists does not mean that the alternative captures the criminality in precisely the same way. The differences may be relevant to sentence; (d) Section 79(1) of the 1990 Act EPA and section 63 of the 1994 Act were stated expressly to be statutory alternatives to causing noise by public nuisance in Rimmington. The Crown accepted that an offence was committed under section 136 of the Licensing Act; the objection was that this offence did not catch precisely the criminality alleged. 32. As to the second ground, the judge’s ruling to stay was a decision within the generous ambit of his discretion. 33. Mr Blaxland QC, in oral submissions for DS to us adopted by all of the Respondents, emphasised the narrowing of the Particulars of Offence by way of amendment in June 2017. The reduced particulars focussed on the organising of a “large unauthorised gathering…without permission”, which he submitted reflected the language of licensing, and the playing of “loud music”, the mischief at which the charge was aimed. Rimmington opened the door to the court treating a failure to follow good practice as an abuse of process. The judge was perfectly entitled to rule as he did on the basis of the amended indictment, in the light of a clear statutory alternative under the Licensing Act. Discussion 34. We cannot accept that the House of Lords in Rimmington created a new and free-ranging category of abuse of process which allows a court to stop a prosecution in these circumstances whenever it considers that the prosecution lacks a good reason for having charged public nuisance rather than a statutory alternative. No question arises that the Respondents cannot have a fair trial. As the judge recognised, before staying the proceedings it was necessary to be satisfied that the prosecution amounted to a manipulation of the process which the court could not sanction. That reflected well-known principles. 35. In R v Crawley [2014] EWCA Crim 1028 Sir Brian Leveson P summarised the scope of abuse of process at (at [17]-[18]): “[T]here are two categories of case in which the court has the power to stay proceedings for abuse of process. These are, first, where the court concludes that the accused can no longer receive a fair hearing; and, second, where it would otherwise be unfair to try the accused or, put another way, where a stay is necessary to protect the integrity of the criminal justice system. The first limb focuses on the trial process and where the court concludes that the accused would not receive a fair hearing, it will stay the proceedings; no balancing exercise is required. The second limb concerns the integrity of the criminal justice system and applies where the Court considers that the accused should not be standing trial at all, irrespective of the potential fairness of the trial itself…..[T]here is a strong public interest in the prosecution of crime and in ensuring that those charged with serious criminal offences are tried. Ordering a stay of proceedings, which in criminal law is effectively a permanent remedy, is thus a remedy of last resort.” 36. As regards the second limb in Crawley (at [21]) the President added: “…cases in which it may be unfair to try the accused…will include, but are not confined to, those cases where there has been bad faith, unlawfulness or executive misconduct.” In such cases, “the court is concerned not to create the impression that it is condoning malpractice by law enforcement agencies or to convey the perception that it will adopt the approach that the end justifies the means: the touchstone is the integrity of the criminal justice system.” 37. The categories of abuse under the second limb are not closed. But tactical manipulation or misuse of procedures in order to deprive the accused of some protection provided by the law is one such accepted category. However, we note that in DPP v Humphrys [1977] AC 1 Lord Salmon said (at 46) that a judge did not have “any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not have been brought. It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene”. 38. In our opinion, Lord Rodger captured the essence of the matter in cases of this sort in his discussion (set out above) of respecting the will of Parliament. A prosecution for public nuisance brought instead of a statutory offence which covers substantially the same ground to avoid an awkward time limit or seek a sentence beyond the statutory maximum might well be such an abuse. So too might be a calculated decision to deny a defendant the benefit of a statutory defence not available when charged with public nuisance. The fact that a prosecutor has not followed good practice, as Lord Bingham put it, would not be enough. 39. The judge, in indicating that Parliament had not created a statutory offence of public nuisance and that the court should not be expected to fill the gap, appeared to overlook that the statutory offences which might apply in cases which concern nuisance supplement, but do not entirely replace, the common law offence of statutory nuisance. That was part of the ratio decidendi of Rimmington . We were shown the Law Commission report Simplification of the Criminal Law: Public Nuisance and Outraging Public Decency, (2015) Law Com No.358 which recommended that the offence should be put on a statutory footing and, in doing so, recognised that it should retain a place over and above the existing technical statutory offences. True it is that Parliament has not, at least as of yet, adopted the recommendation. But in the meantime, the common law offence survives and can be prosecuted. 40. Furthermore, the judge appears to have strayed beyond looking at whether statutory offences could be charged, why they were not charged and whether the failure to do so amounted to an abuse of process, into considering whether the local authority should have used the abatement notice procedure under the 1990 Act, or the police given a direction earlier than they did under the 1994 Act. He appears to have taken the view that the statutory procedures designed to enable the authorities to prevent or curtail public nuisances somehow substituted for the offence of causing a public nuisance. We recognise that were the local authority or police cynically to refrain from using their powers of prevention so as to enable a prosecution for public nuisance to follow, something we consider to be verging on the unimaginable, an abuse argument might run. 41. We pressed Mr Blaxland in oral argument about the relevance of the 1990 Act and the 1994 Act. No abatement notice had been served by the local authority under section 80 of the 1990 Act. There was no possibility of that procedure being activated in the circumstances of this case. To serve an abatement notice before an event occurs requires the local authority to have both notice of its happening and sufficient information to enable the use of the statutory scheme. There was no abatement notice for these respondents to breach. The way in which the event was alleged to have been organised made that inevitable. A prosecution for failing to comply with an abatement notice was an impossibility. In the circumstances of this case, as Mr Blaxland accepted, consideration of the 1990 Act was an irrelevance. 42. So too the 1994 Act. The police did not give a direction to anyone, including those of the respondents present, to leave the premises until the very end of the disturbances. There was no question of a prosecution for a failure to comply. This provision, too, was an irrelevance. Moreover, as was highlighted in Ryder-Large , the police powers under section 63 of the 1994 Act are additional to, not in substitution for, the common law offence of causing of a public nuisance. We would add that even if a direction had been given at the outset of the rave and those respondents present failed to leave, that failure would not cover the essence of the criminality being alleged and a prosecution for public nuisance would have been appropriate. 43. Mr Blaxland retreated to the firmer ground of section 136 of the Licensing Act. Even assuming that the prosecution could prove that the involvement of each of these Respondents was such that individually they had a legal duty to obtain a licence (itself uncertain), the first question is whether breach of the licensing laws captures the essence of the offending. The clear answer to that question is “no”. The Licensing Act establishes a single integrated scheme for licensing premises which are used for the sale or supply of alcohol, to provide regulated entertainment, or to provide late night refreshment. Liability falls on someone who fails to obtain or comply with a necessary licence. Section 136 is not aimed at the organisation of an illegal rave or its consequences, certainly not of the magnitude in question here. Mr Lovell-Pank informed us that this rave involved the largest deployment of Metropolitan Police since the 2011 London riots. A charge under section 136 would not reflect the seriousness and extent of the offending supported by the evidence and (at least arguably) would not give the courts adequate powers to sentence and impose post-conviction orders. It is inevitable, in the event of conviction, that aggravating factors will include the consequences of the rave, even if the respondents were not directly involved in, for example, the criminal damage inflicted or the violent disorder that occurred. The prosecution say they were entirely foreseeable consequences. 44. The offence under section 136 is thus not a realistic alternative to the common law offence of public nuisance on the facts of this case. At best, as the Crown submits, breach of the licensing laws is part and parcel of the overall conspiracy. 45. In short, the gravamen of the alleged offending here, namely the agreement to organise a secret, largescale and illegal rave in a residential built-up area, the location of which was to be deliberately withheld from the relevant authorities, does not fall comfortably or at all within the identified statutory alternatives. The common law offence of public nuisance goes above and beyond the statutory offences identified which is why, for example, Lord Bingham in Rimmington was unable to exclude the possibility that there might be circumstances when the common law offence would need to be invoked. This is not a case like Dady where the judge was able (at [21]) to conclude that the statutory offence in question “precisely caught” the criminal conduct being alleged. 46. For these reasons, we conclude that the judge was wrong in law to conclude that there was one or more relevant alternative statutory offence. The absence of a relevant alternative statutory offence makes it impossible to impugn the prosecution’s decision to charge as it did. The basis for the judge’s decision to stay falls away. Furthermore, contrary to the judge’s conclusion, there was no conduct which could properly be considered as falling into the second type of abuse to which we have referred. Abuse of process even if there were a relevant alternative statutory offence or offences 47. We have indicated that, had the police given the relevant direction for the purpose of the 1994 Act, a failure to comply with it would not have captured the criminality alleged in this case. In the context of this case, consideration of the noise abatement notice procedure is unreal, even on a hypothetical basis. 48. We emphasise that the court should be slow to interfere with a prosecutorial decision taken in good faith where there is no suggestion that the respondents could not receive a fair trial. We have rejected the Respondents’ submission that a failure to follow “good practice” as identified in Rimmington will amount to an abuse of process without more. As the authorities referred to above demonstrate, an abuse of process arises when the integrity of the justice system is under threat, not merely where good practice is not followed, serious though that may be. 49. The view that the charge of conspiracy to cause public nuisance was the most appropriate course in all the circumstances, even on the basis of the amended indictment was a reasonable, indeed obvious, one for the prosecution to take, following the criteria laid down in paragraph 6 of the Code for Crown Prosecutors. Conclusion 50. The staying of criminal proceedings is an option of last resort, requiring clear and compelling justification. We are satisfied that the Respondents’ prosecution for conspiracy to cause a public nuisance does not represent an abuse of process on the facts alleged. There is no assault on the integrity of the criminal justice system such as to justify in any way the effective termination of these proceedings. 51. Mr Blaxland submitted that even were we to come to that conclusion we should refuse leave because the interests of justice, including the passage of time since the alleged offending, do not require the decision to be overturned and the prosecution to continue. We disagree. In those circumstances, we granted leave, allowed the appeal and directed that the trial continue.

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https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/1410/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/1410

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[2020] EWCA Crim 1303

EWCA_Crim_1303

2020-09-25

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: [2020] EWCA Crim 1303 CASE NO 202002015/A2 Royal Courts of Justice Strand London WC2A 2LL Friday 25 September 2020 LADY JUSTICE SIMLER DBE MR JUSTICE DOVE MR JUSTICE CHAMBERLAIN REGINA V BRADLEY WAYNE 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 W SNEDDON appeared on behalf of the Appellant. J U D G M E N T 1. MR JUSTICE CHAMBERLAIN: On 26 February 2020 the appellant, Bradley Wayne, having pleaded guilty at West Sussex Magistrates' Court, was committed for sentence in respect of four offences. On 8 July 2020, in the Crown Court at Portsmouth, HHJ Melville QC sentenced him as follows. For burglary, contrary to section 9(1)(a) of the Theft Act 1968, 32 months' imprisonment; for harassment, contrary to section 2(1) and 2(2) of the Protection from Harassment Act 1997, 8 weeks' imprisonment concurrent; for two offences of criminal damage, contrary to section 1(1) and (4) of the Criminal Damage Act 1971, there was no separate penalty. An order was imposed restraining the appellant from contacting Mrs Wayne or going to her home until further order. 2. The appellant appeals against sentence by leave of the single judge. 3. The appellant was 56 years old when these offences were committed. He and his wife, Victoria Wayne, had separated 3 years previously. The two had a 17-year-old daughter who lived with the appellant. 4. On Friday 21 February 2020 the appellant began to send abusive messages to Mrs Wayne and also persuaded their daughter to contact her. He suspected that Mrs Wayne was seeing somebody else. She told him that she did not wish to speak to him again. On Saturday 22 February he called her approximately 80 sometimes starting at 4.00 am and left text messages and voicemails. One of the messages said: "In the house waiting for you". Later that day the appellant attended Mrs Wayne's house. He entered with a set of keys which had been lent to him. As he was leaving the house a woman who lived with Mrs Wayne returned. He told her: "I'll be back tomorrow to destroy this place". Mrs Wayne's housemate went in to find bicarbonate soda on the floor and a crowbar on the stairs. She found that Mrs Wayne's room had been "trashed", with her bedding pushed onto floor and her make-up all over the place. She took photographs of all of this on her mobile phone. Mrs Wayne's evidence was that she returned to find the doors to her Vauxhall Astra car wide open and both back tyres slashed. Plant pots and a bird bath in the garden had been smashed. 5. On Monday 24 February the appellant called Mrs Wayne when she was at work and said: "I'm coming down to your work. How dare you ignore me? You will see me face-to-face". Later that evening he drove to Mrs Wayne's workplace and continuously sounded the horn. The police were called. They escorted Mrs Wayne to a BMW vehicle she had borrowed from her landlady. The windscreen had been smashed and the door damaged. 6. There was a victim personal statement from Mrs Wayne in which she said that she believed the appellant would never stop trying to destroy her life mentally and physically. She continued: i. "Although I found the strength to get away from him 3 years ago, he continues to control my life and threaten me. I live in fear of him every day at home and at work." 7. She believed the damage and aggression he had taken out on her belongings would have been inflicted on her if he had been able to get hold of her. She was also concerned about the effect of his actions on her daughter. 8. The judge noted that the appellant had been before the court on 19 previous occasions for 53 offences although the last of these was in 2014. The judge dealt first with the harassment offence. In terms of the Definitive Guideline he placed this offending into category 1A because the appellant's behaviour was calculated to cause serious concern and fear in his victim and because he had continued to telephone her in a determinate way. 9. The judge then considered burglary, which he took to have been the most serious offence. So far as harm was concerned, the appellant had soiled, ransacked or vandalised the victim's property (to use the terms in the Definitive Guideline). As to culpability, he had deliberately targeted her and left his "calling card" in the form of a crowbar on the premises. This meant that the offence had to be placed into category 1, with a range of 2 to 6 years' custody. The judge relied particularly on Mrs Wayne's victim personal statement for the conclusion that this was offending in the context of domestic abuse. 10. The judge took into account that the appellant had expressed remorse, had a very troubled past, had suffered from mental health problems and in particular had a diagnosis of Bipolar Disorder and was emotionally fragile. The judge considered that the appropriate starting point for the offence of burglary, if it had been contested, would have been 4 years. After credit for an early plea, that meant a sentence of 32 months. 11. In relation to the harassment offence the starting point was 12 weeks, leading to a sentence of 8 weeks concurrent, after credit for an early plea. 12. In his grounds of appeal, in a skeleton argument prepared for today's hearing and in oral argument before us, Mr William Sneddon submits that the judge was wrong to place the burglary in category 1. He takes issue with what he says are the judge's findings that Mrs Wayne's bedroom had been ransacked, that the tyres of her car had been slashed and that her housemate had returned while the appellant was in the house. Mr Sneddon submits that the judge gave no consideration to the factors indicating lesser harm, the fact that nothing was stolen from the property and the fact that there was limited damage done and lower culpability, in particular his mental disorder. 13. Mr Sneddon submits further that no consideration was given to factors reducing the seriousness of the offence or reflecting personal mitigation. In particular, he criticises the judge's reference to previous convictions stretching back as far as 1976. 14. These historic convictions, he submits, had no relevance and should not have been mentioned. Mr Sneddon also criticised the judge for failing to reflect in his sentence the remorse which the appellant had expressed, his manic disorder and the fact that he was the sole or primary carer for his and Mrs Wayne's 17-year-old daughter. 15. Next Mr Sneddon criticises the judge's observation that "it is no excuse to say that you are mentally ill". This, he submits, showed a complete disregard for the principle that diagnosed mental disorders must be considered as a factor either indicating lower culpability, when committing the initial offence or reduce the seriousness in other cases. Reliance is placed on a decision of this court in R v PS [2019] EWCA Crim 2286 ; [2020] 4 WLR 13 , paragraph 12. 16. Finally Mr Sneddon notes that although the matter was not specifically raised before the judge, no consideration was given to the present ongoing effects of the Covid-19 Pandemic on the conditions of which the appellant would have been detained. In that regard he relies on the decision of this court in R v Manning [2020] EWCA Crim 592 and R v Jones [2020] EWCA Crim 764 . 17. For our part, we consider that the judge was entitled to regard this as a category 1 domestic burglary. So far as greater harm is concerned, there was an incontrovertible evidential basis to conclude that Mrs Wayne's bedroom had been "ransacked". Not only had Mrs Wayne and her housemate said so, the latter had a photograph of the bedroom immediately after the appellant had left the house. 18. The judge made reference to the photographs in his sentencing remarks. Likewise, Mrs Wayne's evidence, taken together with photographs, provided ample basis for the finding that at least one of the tyres on her Vauxhall Astra having been slashed. In any event the appellant's denial that he had damaged that car was flatly inconsistent with his plea of guilty to criminal damage of that vehicle. 19. The fact that nothing was stolen was not in this case a factor indicating lesser harm. The purpose of the burglary was not to steal but to do damage to the property as part of the campaign of harassment against Mrs Wayne, albeit one which took place only over several days. What was done had to be and was seen by the judge in that context. When leaving the property the appellant had made a threat to return the following day and destroy it. He must have known that that threat would be relayed to Mrs Wayne. The ultimate harm he intended and caused was psychological harm to her. Any damage to property was simply the instrument by which that psychological harm was inflicted. That being so, the judge was, in our view, correct to regard this as a category 1 case despite the relatively limited nature of the physical damage done. 20. As to culpability, the judge was plainly correct to say that the property had been deliberately targeted. The Definitive Guideline makes clear that this is a factor indicating higher culpability. Sometimes premises are targeted due to vulnerability of the victim or to hostility based upon disability, race or sexual orientation. But, as the guideline also makes clear, these are only examples. In this case, the property was targeted so that the burglary would cause fear and other psychological harm to Mrs Wayne. That is also deliberate targeting. The judge was correct to treat this as a factor indicating higher culpability. 21. We accept that the appellant's mental health diagnosis as explaining and discussed in the pre-sentence report was capable of constituting a countervailing factor. We also accept that it had to be taken into account at some stage as this court made clear in PS . But on a fair reading on the whole of the judge's sentencing remarks the judge did take into account, having referred to the appellant's troubled past and his diagnosis of Bipolar Disorder, he said: "I have to put all that against the context of what happened over that weekend". He also had regard to what had been said on the appellant's behalf about his disability given his mental illness to cope with prison. The judge concluded that: "Provision can be made accordingly to keep you safe in prison". 22. The judge considered that despite his mental illness and the fact that this burglary took place in the context of a serious campaign of harassment by the appellant against his wife, meant that the starting point of 4 years was appropriate. We do not consider that this involved any error of principle nor was the starting point manifestly excessive. Nor do we consider that the judge made any error in referring to the appellant's previous convictions. He was aware and mentioned in his sentencing remarks that the last conviction was in 2014. There is nothing to indicate that the judge considered that these convictions were matters of great weight nor, in our view, were they irrelevant. 23. Although the judge made no reference to the fact that the appellant was the sole or primary carer of his daughter, this factor was of minor relevance given that she was 17 and she could and would live with her mother. We can detect no error in principle in the judge's conclusion that the harassment offence attracted high culpability for the purposes of the relevant Definitive Guideline given that he plainly intended to cause his victim fear and distress. The victim personal statement provides a plainly justifiable basis for the finding that very serious distress and therefore greater harm having been caused to the victim. The judge made no error in placing this offending into category 1A. The starting point of 12 weeks' imprisonment, leading to a sentence of 8 weeks' imprisonment concurrent, after credit for plea, was not, in our view, manifestly excessive. 24. Nor did the judge err in restraining the appellant from contacting Mrs Wayne or going to her home until further order. The appellant's daughter will be an adult by the time he is released. There is no reason why he should need to contact Mrs Wayne when, for good reason, she does not wish to hear from him again. If the position changes an application can be made to vary the order. 25. The final matter raised by Mr Sneddon is the judge's omission to consider the impact of the pandemic on the conditions in which the appellant is likely to be detained and has been detained. There can be no criticism of the judge in this regard, given that as Mr Sneddon candidly accepts, this point was not raised in mitigation. That may be because sentencing in this case took place just after a major relaxation of the lockdown restrictions. 26. Although more stringent national restrictions have now been reimposed Mr Sneddon has told us that the conditions in prison in which the appellant is now detained have ameliorated: prisoners are no longer confined to their cells for 23 hours per day and the appellant is able to carry out work outside. 27. In those circumstances, we cannot say the principles in Manning and Jones require a reduction in this case. In our view there was no error in principle, nor was the sentence manifestly excessive. The appeal will therefore be dismissed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk

2020_09_25-4976.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2020/1303/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2020/1303

d1c3b1b6f1da8250c10feac28ae48c4c6af6bee10d1cce9b1e026120220316ce

[2008] EWCA Crim 1174

EWCA_Crim_1174

2008-05-14

crown_court

No: 2007/2680/D2 Neutral Citation Number: [2008] EWCA Crim 1174 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 14 May 2008 B e f o r e : LORD JUSTICE HUGHES MR JUSTICE TREACY SIR PETER CRESSWELL - - - - - - - - - - - - - - - - - - - - - R E G I N A v KEVIN BASSETT - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street

No: 2007/2680/D2 Neutral Citation Number: [2008] EWCA Crim 1174 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 14 May 2008 B e f o r e : LORD JUSTICE HUGHES MR JUSTICE TREACY SIR PETER CRESSWELL - - - - - - - - - - - - - - - - - - - - - R E G I N A v KEVIN BASSETT - - - - - - - - - - - - - - - - - - - - - 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 Wainwright appeared on behalf of the Appellant Mr R Jones appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE HUGHES: This appellant took a small video camera hidden in a bag with a hole in it into the men's changing room at a public swimming pool. He was spotted watching and plainly either filming or intending to film a man who was taking a shower and washing the hair of his three-year-old daughter with whom he had been in the pool. At first it was understandably thought that the defendant's object was to observe the child, but it seems that his protestation that it was the man that he was interested in was in this case truthful. The man had his swimming trunks on. The charge was voyeurism of the man contrary to section 67(1) of the Sexual Offences Act 2003 . The principal question in this appeal is whether the man who was watched was doing a private act, as closely defined by section 68. That in turn raises two issues: (1) whether the man was in a place and circumstances which would reasonably be expected to provide privacy and, if so, (2) whether since he was bare-chested it was a case in which "breasts" were exposed within the meaning of the statutory definition. The statute 2. Section 67 creates the offence of voyeurism. It provides so far as material to this case: "(1) A person commits an offence if— (a) for the purpose of obtaining sexual gratification, he observes another person doing a private act, and (b) he knows that the other person does not consent to being observed for his sexual gratification. ... (5) A person guilty of an offence under this section is liable— (a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; (b) on conviction on indictment, to imprisonment for a term not exceeding 2 years." There are also separate but related offences created by subsections (2) and (3) of section 67 for those who operate equipment to enable others to observe or those who record the private acts of others. The charge in the present case was observing the man under section 67(1) . The related offences require the same element of a private act done by the person observed or recorded. 3. In this court at least there is no issue about the elements of (a) observation by the accused, (b) his purpose being for sexual gratification, and (c) his knowledge that the man who he was observing did not consent to being observed for sexual gratification. The issue is whether the man was "doing a private act". 4. For the purposes of section 67 the expression "private act" is defined with considerable particularity by section 68. That section provides as follows: "(1) For the purposes of section 67 , a person is doing a private act if the person is in a place which, in the circumstances, would reasonably be expected to provide privacy, and— (a) the person’s genitals, buttocks or breasts are exposed or covered only with underwear, (b) the person is using a lavatory, or (c) the person is doing a sexual act that is not of a kind ordinarily done in public. (2) In section 67 , 'structure' includes a tent, vehicle or vessel or other temporary or movable structure." 5. The judge ruled that the man here was doing a private act. He ruled (a) that the man was in a place and circumstances which would reasonably be expected to provide privacy, and (b) that the word "breasts" in section 67(1) (a) extended to the male chest. Privacy 6. The changing room was open plan. It had flat benches in the centre of the room. There were some lockers down parts of two of the sides of the room and there was a row of showers along another side. Although the position is not completely clear it seems that the showers were probably separated one from another by some kind of panel or side wall, but that even if they were the stalls thus created had no doors on them and were thus open to the general space of the changing room. The benches could thus look directly into the showers. This appellant, who had apparently been for a swim, was sitting naked on one of the benches as one would if one was changing and he had the camera hidden in a sports bag. 7. It is clear that it is perfectly possible to have a reasonable expectation of privacy without being wholly enclosed or wholly sheltered from the possibility of being seen. The marathon runners in Swyer [2007] EWCA Crim. 204, who had gone behind a hedge or into a shrubbery to urinate, had an expectation of privacy from being pursued and watched. They did not need to be in an enclosed lavatory cubicle to have that expectation. Indeed the reason why they had gone where they had was to find a degree of privacy. We agree therefore with the judge's ruling in this case that the absence of a door to the shower does not conclude the issue. 8. That however leaves open the real question of how far for the purposes of this very particular statutory definition the expression "privacy" is relative and begs the question "Privacy from what?" Privacy generally means and is defined by the Shorter Oxford Dictionary to mean "The state of being withdrawn from the society of others or from public attention ... freedom from disturbance or intrusion or public attention ... absence or avoidance of publicity or display." 9. The marathon runners had a reasonable expectation of being undisturbed by Mr Swyer loitering to watch them relieving themselves and with or without the hidden camera that he in fact had with him. It does not follow that the runners had an expectation for privacy, reasonable or otherwise, from someone such as a walker of his dog who happened unexpectedly and unwittingly upon them. It seems to us that they did not have any expectation of privacy, reasonable or otherwise, from that kind of chance encounter. They took the risk that such an innocent encounter might occur. If such a hypothetical innocent dog walker had happened to derive some sexual gratification from what he or she saw, there would still be no voyeurism because there is no reasonable expectation of privacy from a casual and unintended encounter with a stroller. It is clear from the statute that it is not voyeurism simply to derive sexual gratification from observing something which is not a private act. If, on the other hand, the hypothetical dog walker did not walk on by but loitered for many minutes, closely watching the runners relieve themselves, it is possible that the point would be reached at which the runners had a reasonable expectation of privacy from the kind of observation that was now going on. 10. In the context of changing rooms and similar places the layout of them no doubt varies considerably from place to place. It may be that there are some more or less conventional differences between the layout of the majority of men's changing rooms and those that are provided for women, at any rate where the premises are open to the general public. Even in such places however the layout may well vary considerably from place to place and certainly it is likely to vary as between private clubs, sports or health facilities, places of work and similar places. However, unless such changing rooms consist almost entirely of separate wholly enclosed cubicles, it is normally inevitable that those who use them must expect to be observed unclothed, for some at least of the time, by other people who are also using the changing rooms. Consistently with the statutory policy which we have described it is clear that no offence of voyeurism is committed if that kind of observation takes place and even if in fact the observer derives sexual gratification from what he or she sees. There is, in short, no reasonable expectation of privacy from casual observation by other changing room users. By contrast, the fact that a number of men or women are standing naked at a row of unenclosed showers in a men's or women's changing room, and thus can be seen by anybody else passing through the changing room and using it, does not mean that those in the showers do not have a reasonable expectation of privacy from being spied upon by someone outside who has drilled a hole in the wall for the purpose. 11. The range of possible circumstances which exists between those comparatively plain cases shows that the question of whether the person observed had a reasonable expectation of privacy from the kind of observation which ensued is one for the jury in each case. We accept that that may well mean that in many cases the question of whether there is or is not a reasonable expectation of privacy will be closely related to the nature of the observing which is under consideration. That in turn may mean that the question of expectation of privacy may have an indirect link to the purpose of the observer. It is however plain that it is the nature of the observation rather than the purpose of the observation which may be relevant to the expectation of privacy. As we have already said, the presence of sexual gratification in the observer does not ipso facto mean that the observation is one from which there is a reasonable expectation of privacy. 12. In the present case the judge specifically directed the jury that: "... the mere fact that there is no door on the shower does not mean that this was not a place where [the man observed] had a reasonable expectation of privacy." That, for the reasons which we have given, was correct. The judge went on to tell the jury that in a changing room: "The expectation is that you are only seen by people who are there for the same purpose as you, that is swimming and changing before or after swimming, and that any glimpse there may be is the innocent and accidental glimpse that ordinary social life brings about." A little earlier he had said of such innocent and accidental glimpse: "You accept that chance ... but if somebody was in there looking for sexual gratification, you would be entitled to expect them not to, you would be entitled to expect privacy..." Those latter two passages needed, as it seems to us, to be qualified by a reminder that the mere deriving of sexual gratification from observation could not ipso facto create the necessary expectation of privacy. What might be relevant is the nature of the observation rather than its purpose. Whether in the present case of observation aided by a hidden camera this element of misdirection would cause us to say that the conviction is unsafe is a different matter. We should, however, first address the second point of statutory construction. "Breasts" 13. The judge directed the jury that although Parliament may well have had primarily in mind the voyeur who observes female breasts, it had not spoken in section 68(1)(a) of female breasts but merely of "breasts". That, the judge ruled, included the chest of the man who was observed in this case. Mr Wainwright submits that if this is so then the defendant who films for sexual gratification in the swimming pool proper is committing an offence in respect of the men who will be in trunks but not against the women whose costumes will cover their breasts. That argument does not persuade us. If breasts do indeed include the male chest the rule would be the same for men and women. Secondly, in any event there would, as it seems to us, be no reasonable expectation by a man in the 21st century who swims in a public pool in a pair of shorts with his chest exposed that he should enjoy privacy from observation of his upper torso. Male swimming costumes may have been quite different seventy years or so ago but trunks only as the rig has been standard for men for many years. 14. We look at section 68 in the context of its presence in the Sexual Offences Act. Its very particular and detailed definition does carry the difficulties inherent in such definitions. Nevertheless the scheme of the section, read as a whole, seems clear enough to us. It has to be taken together with the requirement in section 67 that there must be a private act in order for offences of voyeurism to be committed. Section 68 is then concerned to bring within the meaning of the private act those parts of the body for which people conventionally expect or normally expect privacy. In the same way the remaining provisions of section 68(1) , that is to say subparagraphs (b) and (c), are concerned to bring within the concept of "private act" not body parts but functions for which people conventionally expect privacy, namely the use of the lavatory and sexual acts not ordinarily done in public. In each case it remains necessary to show that there was in the particular place and circumstances a reasonable expectation of privacy. However, since the purpose is to bring prima facie within the meaning of "private act" those parts of the body for which people conventionally expect privacy, it is clear to us that the intention of Parliament was to mean female breasts and not the exposed male chest. The former are prima facie still private in 21st century Britain; the second is not. We also think that that construction is supported by the use of the plural "breasts" which we do not think is in ordinary non-medical usage in the context of the male body. Certainly we do not think that it is in such usage in relation to the male body in the context of a statute dealing with sexual offences. It is of limited support for that plain construction, of which we have no doubt, that section 1(1) (a) of the Act provides that "a person commits an offence if (a) he intentionally penetrates the vagina, anus or mouth of another person with his penis." As Mr Wainwright points out, the form of the section is similar to section 68(1) (a) in the sense that the expression 'vagina' is linked to another person, albeit it can only refer to a female. That plainly is a clearer case than is the expression 'breasts' but the form of statutory provision does have that similarity. With or without that additional support we have no doubt that this Act did not in section 68(1) (a) mean to refer to the male chest but only to female breasts. 15. It follows that the judge's direction as to the meaning of breasts in section 68(1) (a) was erroneous. The conviction accordingly cannot stand and must be quashed. This appeal is accordingly allowed. 16. Mr Jones, is there any other consequential application? 17. MR WAINWRIGHT: There is not, no. I simply rise at this stage to ask for a representation order. 18. LORD JUSTICE HUGHES: Yes, of course, you have not had one, have you? 19. MR WAINWRIGHT: My Lord, no. 20. LORD JUSTICE HUGHES: Representation order for junior counsel. Thank you both very much indeed.

2008_05_14-1507.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/1174/data.xml

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36a51609a2e11a22c513586c7e47040c02f49652408a83c046ab325ba45d1707

[2023] EWCA Crim 1175

EWCA_Crim_1175

2023-09-21

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 202301708/A1 NCN: [2023] EWCA Crim 1175 Royal Courts of Justice Strand London WC2A 2LL Thursday 21 September 2023 Before: LORD JUSTICE WILLIAM DAVIS MR JUSTICE JACOBS MR JUSTICE GRIFFITHS REX V ROBERT JONES __________ 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 C EVANS appeared on behalf of the Appellant. _________ J U D G M E N T Approved MR JUSTICE JACOBS: 1. On 25 January 2023, in the Crown Court at Maidstone, the appellant pleaded guilty to an offence of robbery. On 27 April 2023, at the same court, he was sentenced by Ms Recorder Hammond to 5 years and 3 years’ imprisonment, and he now appeals with the leave of the single judge. 2. The facts of the offence were as follows. On 5 November 2022 the appellant had entered a Co-op store in Gillingham, Kent. On arrival at the store the appellant was recognised by staff as a potential shoplifter. One of the shop staff, Ms Louise Ramsden, subsequently went to the meat aisle of the store and started arranging stock close to the appellant. The appellant then turned to Ms Ramsden and said, “I’m taking all of this, and I’ve got a needle”. The appellant then showed Ms Ramsden a needle and Ms Ramsden saw an uncapped needle with a clear 1 inch of the needle exposed. Ms Ramsden subsequently backed away from the appellant, who thereafter began to fill up an Aldi bag which he had brought with him with a large number of meat items from the Co-op store. The appellant then left the store with two large shopping bags full of meat items without making any attempt to pay for those items. 3. The appellant was aged 38 at sentence. He had 18 convictions for 51 offences, spanning November 1999 to November 2022. His relevant convictions included four common assault offences and 31 theft or related offences. The convictions included three convictions for robbery in 2018, where concurrent sentences of 4 years were imposed for robberies where a needle or a bladed article was used in the context of robberies from shops. Most recently, there was a spate of thefts in November 2022 from various shops where a needle had been used to threaten staff. Those incidents had been charged as thefts and common assault rather than robbery, although the circumstances of the offending bore considerable similarity to the robbery offence which was before the court. They involved thefts on the 2 nd , 3 rd , 7 th and 15 November 2022. 4. The appellant was sentenced for the other November 2022 offences at Medway Magistrates’ Court on 5 December 2022, and he received an 18-month community order with a 20-day rehabilitation activity requirement and a 9-month drug rehabilitation requirement. On the same day however, he was arrested for this offence and remanded in custody. In the pre-sentence report for the index offence the court was requested to revoke that order and it did so. 5. At the sentencing hearing in April 2023, the recorder had a pre-sentence report, which described drug abuse as the primary motivating factor in the appellant’s offending. There had been a period, between 2008 and 2016, when the appellant had been free of convictions, but matters had deteriorated afterwards following his mother’s death. The appellant was keen to impress upon the author of the pre-sentence report that he had engaged in efforts with substance misuse services whilst in custody and had demonstrated his motivation and desire for change. The author considered that the appellant was capable of making changes but noted that he had made similar assertions in the past and had relapsed. Given those further relapses, she considered that there was a high likelihood of continued substance misuse and acquisitive offending. The appellant was however able to produce documents from the prison which showed that he was indeed taking positive steps to try to rehabilitate himself, and these included evidence of negative drug tests. 6. In her sentencing remarks the recorder referred to the appellant’s rampant drug habit which had led to shoplifting on many previous occasions. She considered that Ms Ramsden (in the Co-op store) had not suffered physical harm, but that the event had had a psychological impact on her. She did not consider that the harm could be described as simply minimal. She had no doubt that it was terrifying to be confronted with an uncapped needle and she therefore categorised the harm as 2 rather than 3, under the relevant Robbery Guideline. 7. In terms of culpability, she accepted that this was a case of medium culpability B because of the use of a weapon, which was not a bladed article. A B2 offence under the Guideline has a starting point of 4 years and a range of 3 to 6. The recorder considered that she could move up within the range because of the nature of the weapon, leading her to a starting point of 5 years’ imprisonment. She then referred to the appellant’s previous convictions which involved 12 previous instances where he had produced an uncapped needle, or possibly a knife on one or two of those occasions. She said that the previous robbery convictions and multiple convictions for acquisitive offending moved the appropriate sentence in her view to 6 years. She then identified as further aggravating features that the offence was committed under the influence of drugs and there had been a failure to comply with previous community orders, including a community order with a drugs rehabilitation requirement offered in 2019. On the positive side however, she referred to what she described as “the impressive report” on the appellant’s time in custody, where he had been a model prisoner. He had undertaken courses and had been a mentor for prisoners and returned negative drugs tests. Balancing those features, her sentence, had there been a trial, would have been 7 years. Credit for plea of 25 per cent reduced that to 63 months or 5 years and 3 months. The recorder also decided that the appellant was a dangerous offender but that a determinate sentence was, in all the circumstances, appropriate and therefore she did not impose an extended sentence. 8. On behalf of the appellant, Mr Evans submits that the appellant had never caused serious harm or intended to. His only intention was to complete the theft of comparatively low value items to meet his habit. He relied upon the substantial progress that the appellant had made in custody with a view to ensuring that there would be no relapse. The appellant had been taken into custody on 5 December 2022 and had therefore been in custody for a period of 5 months (4 months at the time of the sentence). 9. His principal point was that this was a category 3B offence, not category 2B. This was because there was no or minimal psychological harm caused to the victim and there was minimal detrimental effect on the substantial business of the Co-op. The range for a 3B offence is 1 to 4 years with a starting point of 2 years. He submitted that the recorder should not have increased the starting point by a year to reflect the nature of the weapon produced but, in any event, an increase in a year was not justified. He submitted that the judge was wrong to say that the offence was committed whilst under the influence of drugs. The appellant’s position was that he was withdrawing from the effects of Class A drugs and needed money to purchase his next wrap. Overall, he submitted that a sentence of 7 years, which was higher than the top of the range for a category 2B offence, which this was not, was excessive. Discussion 10. We consider that there is force in Mr Evans’s argument. In our judgment, the offence which the recorder was dealing with was indeed a category 3B offence, not a 2B offence. This was a short-lived incident, which had no doubt been frightening at the time, but Ms Ramsden’s statement did not provide any evidence of any psychological damage which was more than minimal. Accordingly, the starting point was 2 years and the range 1 to 4. We are not persuaded that it was appropriate to move up within the range because the weapon used was a needle rather than something else. Medium culpability under the Guideline covers a variety of weapons which are not bladed items or firearms or imitation firearms. This weapon was squarely within that category, and we do not think that there was any justification for moving up within the range because it was an uncapped needle rather than some other type of weapon. Nor are we persuaded that there was an aggravating circumstance because of a failure to comply with previous court orders. According to the Police National Computer records, the most recent sentences for the appellant were imprisonment in 2018, followed by the community order imposed by the Magistrates in December 2022, which the appellant was unable to start because he was arrested and remanded in custody for this offence. 11. We do consider, however, that there were features of this case which moved the appropriate sentence, prior to credit for plea, beyond the range of 1 to 4 years. The most significant aggravating factors are, in our view, the appellant’s previous convictions. These included the series of offences charged as theft and common assault, but with considerable similarity to the present offence, which had been committed as part of the November 2022 spree. In addition, we consider that the recorder was right to say that the offence was committed under the influence of drugs. The appellant was suffering withdrawal symptoms from his drug use and this was why he was robbing in order to get his next wrap. Set against that, there was the progress made in prison which had impressed the recorder. 12. In those circumstances, we consider that the appropriate sentence, after trial, would have been 5 years. We consider that the sentence imposed by the recorder was therefore manifestly excessive. We reduce 5 years to 3 years 9 months because of the plea. Accordingly, to that 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

2023_09_21-5828.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1175/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1175

72afd194512a407dccef96f9c994289d6fec955354a0ec72b20c41daa7467848

[2007] EWCA Crim 1537

EWCA_Crim_1537

2007-06-13

crown_court

No: 2007/0111/A2 Neutral Citation Number: [2007] EWCA Crim 1537 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Wednesday, 13 June 2007 B E F O R E: LORD JUSTICE TOULSON MR JUSTICE WALKER HIS HONOUR JUDGE WADSWORTH QC (Sitting as a Judge of the CACD) - - - - - - - R E G I N A -v- CLIFTON STEEL LTD - - - - - - - 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

No: 2007/0111/A2 Neutral Citation Number: [2007] EWCA Crim 1537 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Wednesday, 13 June 2007 B E F O R E: LORD JUSTICE TOULSON MR JUSTICE WALKER HIS HONOUR JUDGE WADSWORTH QC (Sitting as a Judge of the CACD) - - - - - - - R E G I N A -v- CLIFTON STEEL LTD - - - - - - - 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 R KIMBLIN appeared on behalf of the APPELLANT MR B THOROGOOD appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. MR JUSTICE WALKER: The appellant is a company which carries on the trade of steel stockholders and processors. At their premises in Birmingham coils are stored lying on their sides. On 17th January 2002, as a steel coil was being lowered to the ground using an overhead crane, a tragic accident occurred and Mr Ian Milligan received injuries which led to his death. 2. Mr Milligan was engaged in moving coil No 3371. He had his back to the lengthways sides of a number of coils stacked three high. The coil closest to him on the top row was numbered 3456. It was one of the heaviest coils in the stack weighing a little over 11 metric tons. It rested on two smaller coils. The first, No 3424, weighed a little over 8.5 metric tons. This was the coil in the second row of the stack nearest to Mr Milligan. The second, No 2438, weighed only 6.2 metric tons. Coil No 3424 in turn rested on two coils on the bottom row of the stack. The first, No 3354, weighed 9.8 tons, which was more than the coil resting on it. The second, coil No 3374, weighed a little over 8.4 metric tons and was thus a little smaller than coil 4324. 3. The stack collapsed in such a way that coil 3456 dropped and coil 3354 was pushed out, sliding over the floor on its plastic cradle. It crushed Mr Milligan against the coil that he was manoeuvring. He was largely unconscious from the moment of impact until he died, having suffered an immediate fall in blood pressure caused by the massive crush injury. An investigation by the Health and Safety Executive led to criminal proceedings. 4. On 3rd February 2006 at Birmingham Magistrates Court the appellant pleaded guilty to breach of section 2(1) and 33 of the Health and Safety at Work Act 1974 . The appellant was committed to the Crown Court for sentence. On 8th May 2006, at a sentencing hearing before His Honour Judge Ross, the appellant was fined £150,000 and ordered to pay £20,000 prosecution costs. Leave to appeal was granted by the single judge who also granted the necessary extension of time of 95 days. 5. Following pronouncement of sentence the appellant asked that it have time to pay. The sentencing judge granted an adjournment for consideration of that question. The matter came back before the judge on 26th May 2006. He determined that £60,000 should be paid in a lump sum within 12 months and that the balance of the fine and costs amounting to £110,000 should be paid at the rate of £5,500 per quarter, the first payment to be made on 13th June 2006. 6. This was not the first occasion on which the appellant had been found in breach of health and safety legislation. On 7th April 1995 an employee suffered serious injuries when trapped between an overhead travelling crane and the wall of the premises. This led to a fine of £7,500. 7. When sentencing, the judge stressed, as do we, that Mr Milligan was a diligent and careful employee. He was a shift supervisor and he was diligent in the responsibilities entailed in this post. In relation to the storage of steel he was very much alert to the dangers it represented and was careful to follow procedures laid down by the appellant. He cannot in any way be blamed for this tragic accident. Mr Milligan's family has behaved with great dignity throughout the proceedings in the magistrates court, the coroner's court and the crown court at a time when they have suffered a terrible loss. 8. The judge acknowledged that the appellant had cooperated with the Health and Safety Executive, that there was real remorse, that the plea of guilty had been entered at the earliest opportunity and that actions since the accident had been taken in order to improve health and safety. He accepted that there was neither a deliberate nor a reckless disregard to health and safety within the company, nor was there the cutting of corners in order to save or make money. However, there was a terrible blind spot relating to one of the most dangerous aspects of the operation on the premises. 9. The judge commented first in this regard on the operating procedures manual in relation to stacks of steel coils. It dealt with the creation of stacks and their continued storage. It did not deal with dismantling of the stacks. The judge commented that the danger of stacking larger and heavier coils above smaller and lighter coils was obvious. The effect when a coil was removed was not addressed in the manual. He accepted, however, that the company had an understandable belief that plastic cradles provided a more durable method of storage and a safer one. He accepted also that the company was seeking to replace wooden chocks which had previously been used with plastic cradles for this reason. 10. The next area dealt with by the judge concerned dangers arising out of the location of the employee at a time when the coils were moved. The nature of the crane operation in this case made it almost inevitable that Mr Milligan would be directly in the path of an unrestrained coil from the bottom of the stack if it chose to move. The judge suspected that the appellant had not appreciated just how little disturbance was likely to be required for the stack to move if it were not chained or restrained with posts. In fact the merest vibration would have been sufficient to cause the stack to move. 11. Overall, the judge concluded that the failure to restrain the stack and the placing of an employee in the position that Mr Milligan was placed in amounted to serious breaches of the legislation. Taking into account what he knew of the appellant's financial position, he concluded that a fine of £150,000 and an order for the payment of £20,000 costs were appropriate. 12. When ruling on time to pay, the judge on 26th May 2006 said that he would make an order in such a way as would allow the appellant to continue to trade. There were employees and he considered it wrong to impose repayment terms in a way which would force the company out of business. The company owned a property which was rented for investment purposes. It was not part of the company pension scheme and had a net value of £60,000. For that reason the judge directed that £60,000 be paid within 12 months. The judge when ordering a sum of £5,500 to be paid per quarter was in fact ordering a sum which was consistent with what had been indicated by the appellant at the earlier sentencing hearing. On that occasion the appellant had indicated that it could afford to pay £2,000 per month. 13. We have had the benefit of a written skeleton argument from Mr Kimblin who appears today for the appellant as he did below. Mr Thorogood appeared below for the Health and Safety Executive. He has provided us with written submissions and he has attended today to assist the court. We are grateful to them both. 14. The appellant's first point is the level of culpability. It is submitted that the penalty does not reflect the low level of criminal culpability but gives undue weight to the element of harm. The guideline from the Sentencing Guidelines Council on seriousness identifies negligence as the lowest level of culpability when compared with deliberate or reckless behaviour or behaviour which is motivated by gain. It is said that there is an imbalance between culpability and harm. Mr Kimblin draws attention to the fact that the company has a culture of working safely, the fact that the company had in place written procedures which were monitored and updated, the fact that the company had undertaken and recorded a risk assessment. He notes that there was no authoritative guidance on steel stocking so this was not a case in which the appellants could be said to have ignored an approved code of practice. 15. It is submitted in the round that the picture one has from the material before the sentencing judge was an appreciation of the hazards, was of senior employees being diligent in the use of safety measures and was of a company which was enthusiastic about safety and its improvement. 16. As against that, however, there was on the material before the judge no actual risk assessment of the hazards involved in relation to the removal of coils from the stack and in particular their removal from a stack where the plastic cradles were being used. They were an innovation. Before they were used they called for a risk assessment. After they were used in the absence of a risk assessment there were obvious matters giving rise to concern. The judge pointed out that the dangers were that the coils were potentially mobile and were extremely heavy, resting on coils which were lighter as was obvious. The material before the judge contained observations on the part of the Health and Safety Executive as to a number of aspects concerning the stacking, the coils not touching each other at the bottom tier and the absence of any settled system for stability during deconstruction of a stack. Mr Kimblin commented that while the operations manual did not deal with how to remove a coil from the stack, that was a small subset of the general procedures. That, as it seems to us, does not answer the judge's first point. Equally, it does not answer the judge's second point of the danger that arose from the location of the employee. It was submitted by Mr Kimblin that as a matter of history the operations manual had been produced in evidence by the defendant only in response to an invitation from the prosecution in the magistrates court and that it was only at the crown court that more was made of the procedure. That may be, but it does not seem to us that it answers the criticisms made by the judge in his sentencing remarks. Indeed, in fairness to Mr Kimblin he accepts that the procedure was open to criticism. 17. The second point relied upon by the appellant concerned previous visits of Inspectors employed by the Health and Safety Executive. It was said that their reports bore out points made earlier that the company was concerned and enthusiastic about health and safety, was cooperative and prepared to listen and learn. It was added, however, that the reports also suggested that the systems in place were adequate and suitable. In that regard we have before us an addendum lodged on behalf of the Health and Safety Executive commenting that the Inspector had not been present to conduct a complete analysis of the arrangements made by the appellant and did not do so. For example, he was not shown deconstruction procedures. As it seems to us, the points made in this addendum are points which were fully before the judge at the time of the sentencing hearing. It was perfectly open to the judge to give little weight to this aspect of the mitigation and it was not a matter which required to be dealt with in express reasons by the judge when making his sentencing remarks. 18. The appellant's third and fourth points concern the scale of the penalty and the means of the appellant. The judge's starting point must have been in excess of £200,000. Mr Kimblin acknowledges the absence of a tariff for offences of this kind but said that nevertheless this penalty must have been out of scale. In his skeleton argument he relied on the fact that only a very small proportion of penalties exceed £100,000. In that regard Mr Thorogood has given us the detailed position, that is that from 1st April 2000 to 31st March 2005 there were 595 cases involving fatalities. In 20 of those cases fines had been £150,000 or more. He informed us that the appellant's fine is in the top 3.6 per cent. It was acknowledged by Mr Kimblin that percentages may not be a particularly appropriate way of going about the matter in principle. However, he submitted that it may assist the court to know that the judge was effectively putting the appellant into the top 3.6 per cent of offenders in relation to this type of offence. 19. As to means, the appellant's submission is that it is manifestly inappropriate to have imposed a fine of this kind when one finds that detailed examination of the company's financial position on 26th May led to the conclusion that considerable time was required to pay and that the company should be required to sell its only saleable asset. The appellant asks the court further to take account of the fact that it is a small to medium sized family business. 20. The latest accounts which have now been provided to us but which were not before the sentencing judge show a profit before taxation of £183,000 in 2006. From that, however, there has to be paid an amount of £144,000 required by the Revenue to be repaid towards a loan from the pension fund, thus leaving some £39,000 balance remaining. The material before the judge showed in the latest accounts (which were at that stage those for 2005) a profit of £112,000. In previous years there had been a substantial loss. Mr Kimblin explained that when giving a figure of £2,000 a month at the initial hearing before the judge he had only been able to proceed on a very broad brush approach. 21. We have had the benefit of a helpful note from Mr Kimblin summarising the approach of the authorities in relation to penalty. Of particular help is what was said by this court in R v Yorkshire Water [2002] Environmental Law Reports 18 , [2001] EWCA Crim. 2635 . This court there said that: "A balance may have to be struck between a fitting expression of censure, designed not only to punish but to stimulate improved performance on the one hand, and the counter productive effect of imposing too great a financial penalty on an already underfunded organisation on the other ... Finally it must be correct to determine what the penalty for any one incident should be rather than tot up the various manifestations of that incident as reflected in the counts in the indictment." 22. In our view there is considerable force in Mr Kimblin's submissions on his third and fourth points. We do not accept that one gains any great advantage from a consideration of averages. However, applying the guidance in the Yorkshire Water case, it does seem to us that the figure of £150,000 when combined with the order as to costs for payment of £20,000 was manifestly excessive. Doing the best that we can, applying the Yorkshire Water principles, we conclude that the appropriate level of fine would have been a fine of £100,000. 23. Accordingly, we shall allow this appeal to the extent that the fine of £150,000 will be quashed and a fine of £100,000 will be substituted in its place. The order that £20,000 be paid towards the costs of the prosecution will remain. (A discussion took place as to the identity of the Inspector) 24. MR KIMBLIN: My Lord, I have an application. That application is for a defendant's costs order in respect of the costs of the appeal. 25. LORD JUSTICE TOULSON: We had anticipated that. Our provisional view was that in all the circumstances we should make no order as to costs in this case. If you want to advance further reasons please do so. 26. MR KIMBLIN: My Lord, it is a simple short point I will make in addition. The best point perhaps is against me that the costs of the appeal are funded by the insurers not the company, I make that plain, but the costs were funded on a discretionary basis, the insurers were not obliged to fund the appeal and in my submission there is some merit in the approach that those costs should follow the normal rule where there is a successful appeal costs should be paid from central funds. Absent the support from the insurers the appeal would not have been brought. My Lord those are my only observations. 27. LORD JUSTICE TOULSON: Yes, thank you very much indeed. (Pause) we have considered the point but in all the circumstances of the case we do not think that it is appropriate to make an order for costs. 28. MR THOROGOOD: My Lord, does the judgment leave the periodic payment undisturbed? 29. LORD JUSTICE TOULSON: We are prepared to hear any request in that regard. We certainly do not think that there should be a reduction in the quarterly payments, but if you have any other application we will hear it. 30. MR KIMBLIN: My Lord, I have no further application to make in that regard and I bear in mind that the Crown Court -- 31. MR JUSTICE WALKER: You need an extension of time, do you not? You are behind on the £60,000. 32. MR KIMBLIN: The factual basis is correct in that the order to pay the £60,000 was due within the 12 month period, leave to appeal having been granted at the same time. 33. LORD JUSTICE TOULSON: You helped yourself to a stay. What is the position now? 34. MR KIMBLIN: My Lord, the approach that I would invite the court to take is to leave the matter to the ordinary way in which fines are recovered via the fines office at the Crown Court. 35. LORD JUSTICE TOULSON: So far as that payment is concerned therefore you do not seek any relief from this court, you leave the matter to be enforced in the usual way? 36. MR KIMBLIN: My Lord yes. 37. LORD JUSTICE TOULSON: So far as therefore as you are concerned you are content therefore that the appeal be allowed and the sentence varied simply by the substitution of the lower figure my Lord has mentioned for that imposed by the judge, but otherwise there be no change as to the order made by the judge? 38. MR KIMBLIN: That is my instinct. 39. LORD JUSTICE TOULSON: So be it. 40. MR KIMBLIN: I am grateful. 41. MR THOROGOOD: My Lord, I just wonder whether it is really -- I hate to sound discordant -- a recipe for disaster if £60,000 is to be paid by the end of this month and that order is not met. 42. LORD JUSTICE TOULSON: Then you go and seek to enforce in the usual way. 43. MR THOROGOOD: With the magistrates court? 44. LORD JUSTICE TOULSON: Certainly. 45. MR THOROGOOD: That may cause some difficulties for these defendants. 46. LORD JUSTICE TOULSON: Well they have had their opportunity to make representations about it and they have not and the matter will take its course. 47. MR THOROGOOD: So be it. 48. JUDGE WADSWORTH: Those representations can be repeated in the magistrates court, can they not? 49. MR THOROGOOD: They can. 50. JUDGE WADSWORTH: It is not an order to sell the property. It is an order to pay £60,000 and the magistrates will deal with that as they see fit. 51. MR THOROGOOD: My Lord is right.

2007_06_13-1136.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/1537/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/1537

008c87099c7dc86b864db0928f9e7c6697bc3c76e55aeb7a5bbe74b016997708

[2008] EWCA Crim 2790

EWCA_Crim_2790

2008-11-26

supreme_court

Neutral Citation Number: [2008] EWCA Crim 2790 Case No: 2008/04502/A6 (1) 2008/04591/A1 (2) 2008/04551/A1 (3) 2008/04542/A7 (4) 2008/04444/A9 (5) 2008/04418/A7 (6) 2008/04492/A4 (7) 2008/04325/A7 (8) 2008/04338/A7 (9) IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT GUILDFORD HIS HONOUR JUDGE ADDISON (1) ON APPEAL FROM THE CROWN COURT AT CANTERBURY HER HONOUR JUDGE W (2) ON APPEAL FROM THE CROWN COURT AT BRADFORD HIS HONOUR JUDGE MCCALL

Neutral Citation Number: [2008] EWCA Crim 2790 Case No: 2008/04502/A6 (1) 2008/04591/A1 (2) 2008/04551/A1 (3) 2008/04542/A7 (4) 2008/04444/A9 (5) 2008/04418/A7 (6) 2008/04492/A4 (7) 2008/04325/A7 (8) 2008/04338/A7 (9) IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT GUILDFORD HIS HONOUR JUDGE ADDISON (1) ON APPEAL FROM THE CROWN COURT AT CANTERBURY HER HONOUR JUDGE W (2) ON APPEAL FROM THE CROWN COURT AT BRADFORD HIS HONOUR JUDGE MCCALLUM (3) ON APPEAL FROM THE CROWN COURT AT TEESSIDE HIS HONOUR JUDGE BOWERS(4) ON APPEAL FROM THE CROWN COURT AT SOUTHAMPTON HIS HONOUR JUDGE BURFORD QC (5) ON APPEAL FROM THE CROWN COURT AT NEWCASTLE HER HONOUR JUDGE BOLTON (6) ON APPEAL FROM THE CROWN COURT AT ST ALBANS HIS HONOUR JUDGE FINDLAY-BAKER QC (7) ON APPEAL FROM THE CROWN COURT AT BLACKFRIARS HIS HONOUR JUDGE MARRON QC (8) ON APPEAL FROM THE CROWN COURT AT NEWCASTLE HER HONOUR JUDGE BOLTON (9) Royal Courts of Justice Strand, London, WC2A 2LL Date: 26/11/2008 Before : THE LORD CHIEF JUSTICE MR JUSTICE OWEN and MR JUSTICE SWEENEY - - - - - - - - - - - - - - - - - - - - - Between : (On a Reference by the Attorney General) R -v- C (1) R - v - CO (2), P (3), D (4), W (5), Rickman (6), Andrews (7), Forbes (8) and Douglas (9) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr P. Wright QC and Mr O. Glasgow for the Attorney General on the Reference And for the Respondent in the remaining cases Mr A Turton for C (1) Miss T Robinson for CO (2) Mr N. Bashir for P (3) Mr B. Russell for D (4) Mr D. Reid for W (5) Mr M Giuliani for Rickman (6) Miss N Cafferkey for Andrews (7) Mr T Smith for Forbes (8) Mr C. Mitford for Douglas (9) Hearing date : 14th October 2008 - - - - - - - - - - - - - - - - - - - - - Judgment The Lord Chief Justice: 1. These nine otherwise unrelated cases were listed together to enable the court to consider and review the amendments made by the sections 13 -18 of the Criminal Justice and Immigration Act 2008 ( the 2008 Act ) to Chapter 5 of Part 12 of the Criminal Justice Act 2003 ( the 2003 Act). 2. The relevant provisions of the 2003 Act and the 2008 Act amendments were brought into force on 4 April 2005 and 14 July 2008 respectively. These far reaching amendments were expressly declared, by paragraph 2 of Schedule 2 of the Criminal Justice and Immigration Act 2008 (Commencement No 2 and Transitional and Saving Provisions) Order 2008 (SI 2008 No. 1586) not to have effect in relation to any person sentenced under any of the provisions of sections 225-228 of the 2003 Act before 14 July 2008. The date when an offender is brought before the court and sentenced is largely accidental and depends on the needs and business, and the overall interests of victims and witnesses, as well as defendants, in each Crown Court. The effect of the transitional provisions is that an offender sentenced before 14 July 2008 (and any appeal by him to this court) is governed by sections 225-228 of the 2003 Act (provided the offences were committed after 4 April 2005) and that after 14 July 2008 the amended sentencing regime found in sections 13 -18 of the 2008 Act applies. 3. The first case, a Reference by Her Majesty’s Attorney General, illustrates some of the complications. C committed offences before and after 4 April 2005. For those committed before that date, the relevant sentencing provisions are contained in a number of statutes, of which the Powers of Criminal Courts (Sentencing) Act 2000 and the Sexual Offences Acts 1956 and 2003 are the most important. A sentence of imprisonment for public protection or an extended sentence under the 2003 Act could not be imposed. For offences committed after 4 April 2005, the Sexual Offences Act 2003 (brought into force on 1 May 2004) and the Criminal Justice Act 2003 (brought into force on 4 April 2005) effectively govern the relevant sentencing decision, although the Powers of Criminal Courts (Sentencing) Act from time to time, continues to be relevant. For these offences a sentence of imprisonment for public protection or an extended sentence would, if appropriate, be available in accordance with the regime created by the 2003 Act itself. However where the offender is sentenced after 14 July 2008 (for whatever reason including the demands on the court, the illness of witnesses, the length of any trial, a sentence delayed because the offender deliberately absented himself) the 2003 Act is to be applied as amended by the 2008 Act , rather than its original form. It is perhaps worth noting that the amendments brought about by the 2008 Act do not impinge on the long established principle, now enshrined in statute, that the court is required to have “regard” to “protection” of the public as one of the purposes of sentencing ( section 142 of the 2003 Act ). 4. We highlight the continuing statutory provisions relevant to the determination of the seriousness of the offence ( sections 143 , 145 and 146 of the 2003 Act in particular) and the concept of “associated” offences as defined in section 305 (1) of the 2003 Act adopting 161(1) of the Powers of Criminal Courts (Sentencing) Act 2000 . This provides: “…an offence is associated with another if (a) the offender is convicted of it in proceedings in which he is convicted of the other offence, or (although convicted of it in earlier proceedings, is sentenced for it at the same time as he is sentenced for that offence) or (b) the offender admits the commission of it in the proceedings in which he is sentenced for the other offence and requests the court to take it into considering when sentencing him for that offence.” We note in passing section 19 of the 2008 Act which amends section 82 A of the 2000 Act with its new and far from uncomplicated framework for setting tariffs in discretionary life sentences, and imprisonment for public protection. Discretionary Life Imprisonment 5. Section 225 (1) and (2), as they bear on the discretionary sentence of life imprisonment, are unamended. The court must consider whether the seriousness of the offence, or the offence and one or more associated offences, justifies the sentence. If it does, however much judicial discretion (or more accurately, judgment) has been introduced into the assessment of dangerousness by the removal of the statutory assumption, or in relation to the imposition of imprisonment for public protection or an extended sentence, a sentence of imprisonment for life “must” be imposed if the conditions in section 225 (1) and (2) are established. In the present group of cases, that requirement was not followed in P . The decision whether to pass such a sentence continues to be informed by the considerations identified in R v Kehoe [2008] EWCA Crim 819 . Assessment of Dangerousness 6. The first striking feature of the amendments is that under section 229 of the 2003 Act , the court’s assessment of dangerousness was subject to a prescriptive and unhelpful statutory assumption ( S229(3) ) in relation to the risks identified in S229(1) , to be applied unless to do so would be unreasonable. It is worthy of immediate notice that the statutory assumption of dangerousness in section 229(3) has disappeared. No court will mourn its departure. Its judgment of dangerousness can now be made untrammelled by artificial constraints. That said, the sentencing option of imprisonment for public protection in the appropriate case remains an important sentencing alternative available to the court. Imprisonment for Public Protection 7. In making its judgment, it is perhaps worth repeating and emphasising that the principles identified and explained in R v Johnson and others [2007] 1 CAR (S) 112 are unchanged. The sentence of imprisonment for public protection “is concerned with future risks and public protection. Although punitive in its effect, with far reaching consequences for the offender on whom it is imposed, strictly speaking, it does not represent punishment for past offending…when the information before the court is evaluated, for the purposes of this sentence, the decision is directed not to the past, but to the future, and the future protection of the public.” 8. Archbold News, Issue dated 6 June 2008, includes a feature by Dr David Thomas QC entitled “IPP Amended”. The author is in his characteristic, irrepressible form, and unsurprisingly so: long ago before the 2003 Act itself came into force, he anticipated that the amending provisions now found in the 2008 Act , or something very like them, would inevitably be required. Events have proved him right. We are grateful to him for his commentary, and begin by recording section 225 of the 2003 Act in its amended form, and as modified by the Criminal Justice Act 2003 (Sentencing) (Transitory Provisions) Order 2005 (SI 2005 No. 643) and the Criminal Justice and Immigration Act 2008 (Transitory Provisions) Order 2008 (SI 2008 No. 1587). “(1) This section applies where (a) a person aged 18 or over is convicted of a serious office 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. (2) If – (a) the offence is one in respect of which the offender would apart from this section be liable to imprisonment for life, and (b) the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life, the court must impose a sentence of imprisonment for life or, in the case of a person aged at least 18 but under 21, a sentence of custody for life (3) In a case not falling within sub-section (2), the court may impose a sentence of imprisonment for public protection or, in the case of a person aged at least 18 but under 21, a sentence of detention in a young offender institution for public protection if the condition in sub-section (3A) or in sub-section (3B) is met. (3A)The condition is this sub-section is that, at the time when the offence was committed, the offender had been convicted in any part of the United Kingdom of an offence specified in Schedule 15A. (3B)The condition in this sub-section is that the notional minimum term is at least 2 years. (3C) The notional minimum term is that part of the sentence that the court would specify under section 82 A(2) of the Sentencing Act (determination of tariff) if it imposed a sentence of imprisonment for public protection but was required to disregard the matter mentioned in section 82 A(3)(b).” The Sentencing Act is the Powers of Criminal Courts (Sentencing) Act 2000 . Section 82 A (3) (b) addresses the now familiar allowance for time spent on remand. 9. The first critical amendment to section 225 is found in sub-section (3). The obligation to impose a sentence of imprisonment for public protection when the statutory conditions are fulfilled is converted into a discretion to do so. In any event it may not be imposed unless one or other of two new and pre-conditions is also established. Therefore the first question which arises for decision is whether the court is “of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission of further specified offences likely to be committed by the offender”. This over-arching consideration is unchanged. Absent such risk, no question of imprisonment for public protection can arise. The existing jurisprudence on this issue is untouched by the amending provisions. 10. Condition 3A (as we shall describe the relevant sub-section) is self-explanatory. The significant difference is that the list of offences specified in schedule 15A of the 2008 Act is much shorter than the original list of “specified offences” in schedule 15 and effectively is confined to very grave offences indeed. Where the offender’s previous convictions include one of the offences now specified in schedule 15A, the sentence of imprisonment for public protection becomes available irrespective of the seriousness of the latest offence, provided always that the court is satisfied that the public is at the significant risk specified in section 225(1) (b). 11. Condition 3A stands distinct from sub-section 3B. Condition 3B requires that the notional minimum term should be at least 2 years’ imprisonment (or appropriate custodial order for a young offender). That condition does not form part of condition 3A. Accordingly if condition 3A is established, an order of imprisonment for public protection may be imposed if the over-arching consideration is established, whether or not such a notional minimum term would be appropriate. However, unless condition 3A is established, an order of imprisonment for public protection may not be imposed under condition 3B unless the offence justifies the specified notional minimum term, even if there is a significant risk of serious harm. 12. In such cases, courts will no doubt ensure that longer than appropriate sentences are not imposed in order to avoid the restriction created by condition 3B. Section 153 (2) of the Criminal Justice Act 2003 remains in force, and any custodial sentence must “…be for the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it.” The same caution will be required where the defendant has been convicted of or admitted a number of offences. There was some discussion before us whether the notional minimum term might be established by the aggregation of a series of sentences of less than 4 years imprisonment, to reach a sentence in excess of that figure (then halved to achieve the notional minimum term) or whether the power to make the order on the basis of condition 3B requires a sentence of at least 4 years to be imposed on at least one offence. In effect, this question is whether the totality of the offending may be reflected in the notional term when a sentence of imprisonment for public protection is under consideration. 13. The length of the minimum term is governed by section 82 A(3) of the 2000 Act s which for present purposes is not affected by section 19 of the 2008 Act . Section 82 A(3)(a) provides that the determination of the “tariff” should reflect “…(a) the seriousness of the offence, or the combination of the offence and one or more offences associated with it”, but disregarding the credit which would normally be due for time already spent in custody. We have already recited the way in which an associated offence is defined for these purposes (5 above). The definition therefore includes both “ordinary” specified offences, and non-specified offences. Consideration of these statutory provisions led the court to a number of cases, such as R v O’Brien [2006] EWCA Crim 1741 and R v O’Halloran [2006] EWCA Crim 3148 to conclude that the combined totality of the offending should be reflected in the assessment of the notional term for the purposes of condition 3B. The amending legislation in the 2008 Act was enacted in the context of existing jurisprudence. If any change of practice had been intended, some indication to that effect would have been included in the amending statute. There is none. Moreover, if the offender’s overall criminality requires a sentence in excess of the minimum laid down in condition 3B, and the court is satisfied of the necessary risk, it would be illogical for the protective powers inherent in imprisonment for public protection to be unavailable. Accordingly, condition 3B may be established notwithstanding the absence of an individual offence for which a 4 year term would be appropriate. We should perhaps add that section 225(3) C excludes any deduction for the purposes of time spent on remand from the calculation of the minimum term for the purposes of condition 3B. 14. Returning to the exercise of the court’s discretion, or more accurately, its judgment, whether a sentence of imprisonment for public protection should be passed when the necessary criteria are established, the court is entitled to and should have in mind all the alternative and cumulative methods of providing the necessary public protection against the risk posed by the individual offender. For example, structured around a determinate sentence, or indeed an extended sentence under section 227 of the Act , which we shall shortly address, a sexual offences prevention order, with appropriate conditions attached could form part of what we may colloquially describe as the total protective sentencing package. Apart from the discretionary sentence of life imprisonment, imprisonment for public protection when the necessary conditions are fulfilled, is the most draconian sentence available to the court. If they are, we re-emphasise that the primary question is the nature and extent of the risk posed by the individual offender, and the most appropriate method of addressing that risk and providing public protection. If what we have described as the overall sentencing package provides appropriate protection, imprisonment for public protection should not be imposed. 15. In another of the present group of cases, Andrews , the judge specifically addressed the question of imprisonment for public protection, and suggested that three criteria should be present before the now discretionary sentence is imposed. First, that no other form of available sentence would be appropriate, second, that the sentence should be proportionate to the gravity of the offending, and third, that the sentence was necessary to serve the public interest. 16. We are grateful to Judge Findlay Baker QC for his analysis, and indeed for explaining in such detail why an extended sentence would be appropriate in the particular case of Andrews , a view with which we agree. However we have examined the three criteria which he addressed in his sentencing observations. On analysis, the first and third considerations, although different, address the same broad problem of the connection between the risk posed by the offender and the necessary protective element in the sentence. In the sense that, apart from the discretionary sentence of life imprisonment, imprisonment for public protection is the last resort, and that what we have described as the overall sentencing package may be sufficient to meet the risk posed by the offender, and provided it does so, the public interest is served accordingly, we agree with the judge. 17. We are however more troubled by what he described as his reluctance “to impose an indefinite sentence for a crime which, though obviously of the gravest kind in its category, is not one in which harm was desired or intended”. That approach influenced him on the element of proportionality. Our reservations arise in part from the terms of section 143 of the 2003 Act which provide that, when considering the seriousness of any offence, the court must address the offender’s “culpability in committing the offence and any harm which the offender has caused, was intended to cause, or might foreseeably have caused”, and in part because, as we have emphasised, the issue remains the risk to the public, not simply what the offender desired or intended. Thus, for example, a reckless offender, or an offender with little or no insight into the consequences of his actions, may represent a significant risk to the public. In short, an order of imprisonment for public protection may be fully justified notwithstanding that, in the broadest sense, the offender did not intend or desire the outcome of his actions. Moreover, the proportionality issue is at least in part addressed by conditions 3A and 3B themselves, and by the removal of the previous statutory assumption relating to the assessment of dangerousness in section 229 . If the harm consequent on any individual offence was not intended or desired by the offender, then, in the context of condition 3B, a determinate sentence of 4 years or more imprisonment is less likely to be appropriate. On the other hand, a relatively minor offence may well reignite concern about the element of public danger posed by a defendant who has already committed one of the very serious offences identified in condition 3A. These considerations are all relevant to the court’s decision. Extended Sentence 18. As amended section 227 , and as modified by the two statutory instruments containing transitory provisions to which we have earlier made reference now reads: “(1) This section applies where (a) a person aged 18 or over is convicted of a specified offence committed after the commencement of this section, and (b) the court considers that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences, but (c) the court is not required by section 225(2) to impose a sentence of imprisonment for life or, in the case of a person aged at least 18 but under 21, a sentence of custody for life.” (2) The court may impose on the offender an extended sentence of imprisonment or, in the case of a person aged at least 18 but under 21, an extended sentence of detention in a young offender institution if the condition in sub-section (2A) or the condition in sub-section (2B) is met. (2A) The condition in this sub-section is that, at the time when the offence was committed, the offender had been convicted in any part of the United Kingdom of an offence specified in schedule 15A (2B) The condition in this sub-section is that, if the court were to impose an extended sentence of imprisonment, the term or in the case of an offender aged at least 18 but under 21, an extended sentence of detention in a young offender institution, it would specify as the appropriate custodial term would be at least 4 years. (2C) An extended sentence of imprisonment or, in the case of an offender aged at least 18 but under 21, an extended sentence of detention in a young offender institution is a sentence of imprisonment or detention in a young offender institution the term of which is equal to the aggregate of (d) The appropriate custodial term, and (e) A further period (“the extension period”) for which the offender is to be subject to a licence and is of such length as the court considers necessary for the purpose of protecting members of the public from serious harm occasioned by the commission by him of further specified offences….” We need not recite the remaining provisions. 19. In many ways the new conditions correspond to those which now apply to imprisonment for public protection. For example, consistently with the new regime the mandatory requirements relating to an extended sentence have been replaced by a discretionary provision involving the exercise of the court’s judgment on the basis of all the relevant information. Where they do, we shall not comment further on them. However, Dr Thomas points out that “the most important change” is perhaps “the least obvious at first sight”. The extended sentence is no longer limited to “specified offences” which are not also “serious”, that is offences punishable with a maximum of less than 10 years’ imprisonment. Where the offence is indeed a “serious specified offence”, the options of both imprisonment for public protection and an extended sentence are now available. 20. Dr Thomas identified two particular features of potential importance. The first is the difficult problem of identifying the dividing line between imprisonment for public protection and an extended sentence for a violent or sexual offence. The short and deceptively simple answer is provided by our earlier reasoning. As we have emphasised, imprisonment for public protection is the last but one resort when dealing with a dangerous offender and, subject to the discretionary life sentence, is the most onerous of the protective provisions. In short, therefore, if an extended sentence, with if required the additional support of other orders, can achieve appropriate public protection against the risk posed by the individual offender, the extended sentence rather than imprisonment for public protection should be ordered. That is a fact specific decision. The second feature identified by Dr Thomas, effectively at the opposite end of the spectrum, is to recognise that there will be some offenders whose persistent repetitive offending might have been dealt with by way of an extended sentence who will fall outside the new provisions. That seems logical. Such an offender, whatever the nuisance he represents, would not present a significant risk of serious harm to the public. The individual who does not pose such risk should be dealt with by an appropriate determinate sentence or community order to which additional protective conditions may be attached. 21. Before we address the individual cases, as briefly as we may, we acknowledge the assistance provided to us by Mr P Wright QC on behalf of the Crown in both his written submissions, prepared with Mr Glasgow, and the oral submissions, as and when specific issues arose. 22. We draw attention to the normal requirement that the victims of sexual offences should not be identified. This consideration applies to C , CO , P , D , and W . P C 23. PC is 42 years old. On 22 nd May 2008 he was convicted at Guildford Crown Court of serious sexual assaults on 5 girls, one was his daughter. He absconded after the jury had retired. He was arrested in Spain and extradited to the United Kingdom. He was subsequently convicted of a Bail Act offence. 24. On 18 July 2008 he was sentenced to a total determinate sentence of 7 years’ imprisonment by His Honour Judge Addison. He was ordered to sign onto the Sex Offenders Register indefinitely, but no sexual offences prevention order was made. 25. The complainants were all known to the offender as family friends. Four of them were well known to each other. However the first girl, K who was 10 or 11 years old when she was assaulted, was not known to the other complainants. The offender left the family home when his daughter, J, born in September 1989, was a baby and had no contact with her until she wrote to him when she was 14 years old. In the meantime he married Samantha Hulme, and they lived in Wales with her son Lewis and their daughter Katrina. K was a friend of Lewis. Count 1 covered an incident of digital penetration during 1998 when she had a sleepover at the offender’s home. The incident occurred late at night when she was watching television on her own. She did not tell anyone about the assault at the time. At her next stayover, when the offender entered her bedroom and touched her, she indicated that he should not continue, and he left her alone. She never stayed at the home again. She only saw the offender on one or two further occasions. The incident was not reported to the police until 2003. By that time he offender had separated from Samantha Hulme and moved to an address in Surrey where he formed a relationship with Michelle Johnson. Between January 2005 and April 2007 they had 3 daughters. The offender was arrested in 2004 following the allegation made by K. He was interviewed and denied the offence. K was a reluctant witness. The offender was not charged. She was contacted by the police when the other offences came to light and she then agreed to be a witness. 26. J got in touch with the offender in late 2004. In September 2005 when she turned 16 she moved in with her father and Michelle Johnson. She did not know of K and she was unaware of any allegation of sexual assault. 27. The offences covered by counts 2-9 related to a cousin of the offender’s partner Michelle Johnson, CH. It was a particularly aggravating feature of the offender’s behaviour towards this girl that he knew that when she was 9 years old she had been raped by a stranger and that he, the offender, had taken her to counselling which it was hoped would enable her to come to terms with what had happened. She was sexually assaulted by the offender in 2004 when she was 13 years old. Count 2 related to an incident when she and her brother were left in the offender’s care while her parents were on holiday. One evening when the offender and CH were alone together he offered to massage her. While doing so he touched her breasts, and then apologised and said he had not meant to do it. Counts 3 and 4 related to an incident when the offender was driving CH back to her home in Surrey after a visit to his daughter in Wales. He pulled over to a service station. Despite her objections he began to kiss her, and pulled her trousers down. There was digital and oral penetration. She tried to stop him and push him away and eventually he did so. She was 14 or 15 years old at the time. Count 5 related to an incident in January 2005, when the offender’s wife was in hospital giving birth to their child. CH was staying with the offender’s daughter in her room. She slept on the bottom bunk bed. While the girls were asleep he came into their room and touched CH’s breasts. He was disturbed when J made a noise, but he later returned, and put his fingers into CH’s vagina. Count 6 occurred during another stayover at the offender’s home. She was doing her homework when the offender entered the room. He started to kiss and cuddle her. She told him to stop. He unzipped his trousers, told CH to put his penis in her mouth and suck it. He forced his penis into her mouth and held her head when she refused to do so. He ignored her pleas and ejaculated into her mouth. Subsequently he told CH not to tell anyone in case he got into trouble. 28. Count 7 occurred when CH was asleep in J’s room and was woken in the early morning. He took her into his office and there began to kiss and cuddle her. He had sexual intercourse with her without her consent. He was however only charged with sexual activity with a child, contrary to section 9(1) and (2) of the Sexual Offences Act 2003 . This incident occurred between September and December 2005. 29. Count 8 was a similar incident, except that it culminated in sexual intercourse when she was pressed up against the side wall of the house. This incident occurred between September 2005 and June 2006. 30. The final count involving CH occurred when she was lying on a sofa with a duvet covering her legs. Notwithstanding Michelle Johnson’s presence, the offender sat next to her and put his hands under the duvet and digitally penetrated her. CH ignored what was happening and pretended to be watching television. 31. Counts 10 and 11 related to events in January 2006. L was J’s friend. During a sleepover when she was 14 years old he went into her room, and sexually assaulted her by touching her breast under her night clothes, biting it, and digitally penetrating her vagina. The offender stopped when he heard his baby crying in another room. L wrote a sealed letter to her mother describing what had happened. 32. Counts 12 and 14 occurred in May 2006. The victim was S. On 2 nights during May 2006 he offender sexually assaulted S while she was in bed. On the first occasion he went into her bedroom and kissed her, putting his tongue into her mouth. On the second he touched and kissed her breasts while she was in bed. 33. The victim in count 16 was J herself. Sometime between September and December 2005, a couple of weeks after J had moved in to live with him and his wife, she kissed him and Michelle Johnson goodnight and went to her bedroom. In the early hours the offender came to her room. He removed the duvet. J woke up to find the offender standing over her, and touching her breasts underneath her pyjama top. She turned over to try and get him to stop, but he continued for another 10 minutes, masturbating as he touched her. She pretended to be asleep until he left. She was frightened and did not tell anyone what had happened. 34. No further recitation of these facts is needed. The judge recorded that the offender had shown no remorse whatever for his offences. When counsel mitigated the judge indicated that he would be influenced in his sentencing decision by what he described as the offender’s family circumstances which “enabled him to meet these various girls”. The judge did not know “what opportunity for doing so” would arise in the future. He did not think that a pre-sentence report would assist. 35. A report has been provided for us. The offender simply does not acknowledge any sexual offending. In a carefully considered report the writer assessed him as “presenting a high risk of causing serious harm to children through sexual offending and a high risk of committing similar offences in the future”. She believed that he had behaved in “a calculated and predatory manner towards the victims”, creating and using the opportunities he created both in order to come into contact with and then to assault the children. Directing her attention to the statutory criteria she believed that he presented “a significant risk of causing further serious harm to children” by committing further specified sexual offences. 36. The offender was convicted of serious sexual offences against immature girls who did not in fact consent to any sexual contact. He was in a position of trust with all of them, but with none more than his own daughter. It was in truth a pattern of abuse over an 8 year period, in which the offending was planned in the sense that the offender created an environment in which he had access to the victims. In the judgment of this court this was a predatory offender, grooming his victims, and then assaulting them. All were caused significant psychological damage, and in the case of CH, as already recorded, his behaviour was unusually callous and for that matter prolonged. The stark reality is that he has an obsessive sexual interest in underage girls, and there is nothing in the evidence or information before the court to suggest that he has yet even begun to reflect on the possibility of seeking to cure himself of his obsession, and none to suggest that his obsession is curing itself. In short, we entirely agree with the assessment of the writer of the report. 37. Notwithstanding that the sentencing judge presided over the trial, he has provided no explanation in his sentencing observations which identify any particular feature or features of this case which became apparent to him at trial, which might not otherwise have been apparent from the papers. He simply said that for the reasons he had given, and “having regard to the change in the law”, he did not consider that there was a risk of serious harm from the commission of further specified offences. When he concluded his sentencing remarks, he was invited to consider a sexual offences prevention order. He said that he had considered that possibility, but decided that one should not be made. Perhaps the most surprising feature of the judge’s reasoning is that the appellant will lack for opportunity to meet young girls. Quite apart from the fact that predatory offenders of this kind are frequently able to make the opportunities they seek for such contact, this particular offender is the father of 3 young daughters, who will grow up and who will have friends of their own age. 38. There is no mitigation, save and except that, although the offender has previous convictions, none is for an offence of a sexual nature. 39. In our judgment this sentence was unduly lenient, and significantly so. This is a serious sexual offender, who has shown not the slightest intention to curb his exploitative behaviour. The conditions for making an order of imprisonment for public protection are established. No other method of achieving the necessary level of protection is available. Accordingly such an order should be and will now be made. In assessing the notional minimum term, we have concluded that the overall criminality in this case required a total determinate sentence of at least 12 years’ imprisonment. Accordingly, on counts 7-12, 12-14 and 16, which involve offences committed after 4 April 2005, there will be concurrent sentences of imprisonment for public protection with a minimum term at 6 years’ imprisonment. 40. Counts 1-5 inclusive were committed before 4 April 2006 and count 6 alleged an offence committed between 1 January 2005 and 6 September 2005. As the date when this offence was committed was not established in the course of the trial, it should be treated as if it too was committed before 4 April 2005. 41. The appropriate approach to sentencing for offences falling within the dangerous offenders provisions of the 2003 Act , some committed before and some after 4 April 2005 is addressed in R v Stannard and others . As the court observes, to impose no separate penalty for a relatively minor offence when the offender is sentenced for more serious offences is sometimes a convenient was of avoiding some of the extraordinary complexity of current sentencing provisions. But the court goes on to say that it can rarely be appropriate for a serious offence to be treated in the same way. Speaking generally every victim of a serious or specified offence should be vindicated, and an order for no separate penalty will tend to convey to the victim that the court did not fully address the impact of the crime on him or her. 42. Counts 1 - 6 addressed offences of a very serious nature, which were committed over a considerable period. Furthermore the victim in relation to count 1 did not feature in any of the remaining counts. In our judgment there must be determinate sentences in relation to those counts, notwithstanding the concurrent sentences of imprisonment for public protection. Sentences of 3 years’ imprisonment were imposed on count 1, 1 year on count 2, 3 years’ on count 3 and 4, 2 years’ on count 5, and 4 years’ on count 6, all to be served concurrently. We shall not vary the terms of the sentences, but we direct that the sentences imposed on counts 2 – 6 inclusive, although to be served concurrently with each other, should be served consecutively to the sentence imposed on count 1. This results in a total sentence of 7 years imprisonment in relation to these counts. 43. A consecutive term of 6 months imprisonment was imposed for the offender’s failure to surrender to bail on the last day of the trial. That sentence will stand, and will be served consecutively to the total of 7 years imprisonment to be served on counts 1 – 6. The total term of 7½ years’ imprisonment will be served concurrently with the sentences of imprisonment for public protection imposed. 44. We shall also make a sexual offences prevention order for an indefinite period. Under its terms the offender will be prohibited from the following: 1. Having any contact, directly or indirectly, with JC , CH, LB, SF, AR and K J. 2. Speaking or communicating, directly or indirectly, about matters of a personal nature with or befriending any female who is, or reasonably appears to be, under the age of 18 or attempting to do any of these things whether by himself or with anyone else. 3. Allowing any female under the age of 18 into or to remain in his home or any other premises or private vehicle under his control. 4. Being in the home of any female under the age of 18 if that person is there, unless in the presence of that person’s parent or legal guardian who is aware of this order. 5. Working, whether paid or not, in any job or taking part in any recreational activity, which by its nature involves substantial regular or any form of unsupervised contact with any female under the age of 18, unless with the prior written consent of the West Surrey Area Chief Inspector of the Surrey Police, or the appropriate equivalent officer for that, or any other police area, where the offender may from time to time reside. 6. Engaging in unsupervised contact with EC , NC and EC other than as authorised by Surrey Social Services or an equivalent authority in the event of the children residing elsewhere. PCO 45. PCO is 51 years old, a man of previous good character with positive references to support him. However on 28 April 2008 in the Crown Court at Canterbury before Her Honour Judge W he pleaded guilty to rape (count 1), distributing indecent photographs of children (counts 2-11) making indecent photographs of a child (counts 12-14) and having indecent photographs of a child (counts 13-16). He was sentenced to 8 years’ imprisonment for rape, and 2 years’ imprisonment consecutively to count 1 for the distribution offences. Concurrent sentences of 1 year’s imprisonment were imposed on the remaining counts. In total therefore he was sentenced to 10 years’ imprisonment. A sexual offences prevention order was made and he was disqualified from working with children. The time spent on remand was ordered to count towards the sentence. 46. The facts of this application for leave to appeal against sentence can be briefly summarised. In May 2007 a man was arrested for distributing indecent images of children. It was subsequently established that he had corresponded with, among others, the applicant, whose home was consequently searched. He and his wife were present. He was asked if he had any indecent images of children and he replied that he had, on his computer. He said that he had been stupid but had no sexual interest in children, and promised to co-operate fully. Shortly afterwards he handed the officers two CDs and a pen drive storage. His computer equipment was seized. He was arrested. 47. Before his computer and equipment were examined, he was interviewed. He admitted that initially he had been sent indecent images of children which were contained in blocks of adult material, and then he had been sent more and more indecent images of children. He had been stupid and had exchanged images with other users. 48. When his computer was examined 10459 indecent images of children were found, 5063 at level 1, 1033 at level 2, 2434 and level 3, 1855 at level 4 and 74 at level 5. Importantly for present purposes, there was also a level 4 film clip which was a descriptive step by step guide on how sexually to abuse a child from birth without being caught. On the pen drive 345 indecent images were found, 181 at level 1, 28 at level 2, 56 at level 3, and 71 at level 4. On the CDs 1150 indecent images were found, of which 424 at level 1, 262 at level 2, 210 at level 3, 247 at level 4 and 7 at level 5. 49. The most significant finds however were 16 images of a young baby. The baby was the applicant’s step-granddaughter, aged about 18 months at the time. In the photographs she appeared to be asleep and in a number of them the applicant’s erect penis was close to her face. In another photograph her hand was around the erect penis, and in one photograph the erect penis was penetrating her mouth. These images had all been taken by the applicant. 50. On 29 April 2008, the applicant was arrested on suspicion of the rape of a child. He responded, “what rape? I don’t believe it. Rape?” When the images of his step-granddaughter and his penis were shown to him, he declined to comment. 51. Count 1 related to the act of oral rape depicted in the photographs. Counts 2-11 related to the applicant’s distribution of indecent images, counts 12-14 to the images of his step-granddaughter, count 15 to the possession of the guide to the sexual abuse of a child, and counts 16 and 17 to the images found on the pen drive and the CDs respectively. 52. A basis of plea was prepared in which it was asserted that the photographs of the applicant and his step-granddaughter were made following pressure from a male who he came to know through an internet chatroom. It was agreed that there was a single incident of penile penetration of the baby’s mouth which was, as the times recorded on the photographs showed, short-lived. No physical harm was done to the child. 53. The psychiatric report suggested that the applicant was not suffering from any mental disorder. He appeared to be genuinely repulsed and disgusted by his actions and did not present a significant risk of committing further serious specified offences. 54. The pre-sentence report recorded expressions of remorse but suggested that the applicant was still in denial about the sexual motivation for his offending. Until he came to terms with the fact that his feelings and thoughts were distorted, the risk of re-offending was high. 55. In her sentencing remarks the judge was prepared to pass sentence on the basis of the plea tendered by the applicant, but recorded that there was no doubt that the applicant had throughout sought to minimise his own conduct. He was indeed still in denial about the horrible nature of the offences he had committed. His behaviour was not only disgusting, but totally unacceptable, and the child’s parents would have been left with a deep sense of revulsion at his gross breach of trust. In addition he had shared child pornography with other paedophiles. Although he denied any sexual motivation for these offences, he was deluding himself. Although the rape was a single incident, the pornography offences represented a continuous course of conduct. The judge concluded that the applicant was dangerous, but that a long determinate sentence would be sufficient to deal with the risk he represented. 56. The submission on CO’s behalf was that the sentence on count 1 was manifestly excessive. It failed to reflect his early guilty plea and positive good character, the limited nature of the penetration which was short-lived, the basis of plea, and, the improbability of any psychological harm to the child because of her age. This was an isolated offence when he applicant had himself been subject to blackmailing pressure. 57. It was further contended that the judge was wrong to conclude that the applicant was dangerous, but even if the conclusion were correct, the protective element of the sentence could have been well achieved by a shorter custodial period with an extended licence. Finally it was contended that examined as a totality the sentence was excessive. 58. Notwithstanding the conclusion that the applicant was dangerous (one with which this court would not for one moment interfere) the decision that imprisonment or public protection or an extended sentence should not be imposed fell properly within the ambit of the judge’s discretion. She carefully addressed the issue of public protection by reference to the lengthy custodial sentence to be served by the applicant, together with the various orders designed to add to the public safety. In short, she carefully reflected on the most appropriate way in which to achieve public protection from the risk posed by this particular offender. 59. Our conclusion is that this was a severe sentence for a very serious offence. It is correct that this rape was different from baby rape cases which involve penetration of the baby’s vagina or anus. True it may be that the baby herself was not aware of, or may not have appreciated what was happening to her. This, however, was a dreadful violation of a baby, committed by a man in a position of trust, who had become obsessed with child pornography, which he was making and distributing. This application is refused RP 60. RP is 74 years old, and he has no previous convictions. That short statement disguises the fact that for a period of 40 years or so he was committing serious sexual offences without ever being caught. 61. On 14 May 2008 at Bradford Crown Court he pleaded guilty to counts 12 and 13 in an 18 count indictment. On the day of the trial, 16 June 2008, on re-arraignment, he pleaded guilty to counts 1-11 and 14-18. The allegations were serious sexual offences. The victims were all members of his family, and included his two daughters, two granddaughters, and a great granddaughter. 62. He was sentenced to a total of 20 years’ imprisonment, and a sexual offences prevention order was made. The precise details of the sentences do not matter for present purposes. This is an application for leave to appeal against sentence. 63. The first victim was the applicant’s daughter by his first marriage. After his divorce from her mother, the child would visit the applicant and his second wife and family during school holidays. When she was 11 years old in 1967 or 1968 he lifted her nightgown and inserted his finger in her vagina. After he removed his finger, she pushed him away and left the room. The second victim was the applicant’s elder daughter from his second marriage. She was born in December 1962. When she was about 5 years old she called him into her room for a cuddle. During the cuddle he rubbed her vagina with his hand on at least two occasions. Thereafter, from the age of about 10 to 15 years, when she was alone in the house, he would rape her, usually by forcing her to bend over the banisters on the landing so that he could penetrate her. This conduct occurred regularly, sometimes when she was menstruating. 64. The third victim was the daughter of the second victim, and she was aged 14 in 2000/2001 when the applicant began to fondle her breasts and vagina under her clothing when she visited him. This sexual abuse continued until she was 17 years old. 65. The fourth victim was the daughter of one of the applicant’s other daughters. In 2004, when she was 13 years old, he started buying her alcoholic drinks. He would take her for drives in his car and stop in lay-bys. There he would insert his finger into her vagina and place her hands on his penis and ask her to make it hard. On one occasion he forced her head down onto his penis so that she would lick it. On other occasions similar offences occurred at home. Then, on three occasions, when she was aged 14 and 15, he had sexual intercourse with her at his home and paid her for it. She estimated that he had paid her £300 in total. 66. The final victim was the applicant’s great granddaughter who, aged between 8 and 9 years, would stay at his home on a Saturday night. While her grandmother was taking a shower she would get into his bed. He would feel her chest and the area of her breasts. 67. The offences came to light when the father of the fourth victim became aware that his daughter had disclosed details of the abuse to her friends. The police were informed. The applicant was arrested. He denied the offences. 68. The psychiatric report indicated that there was a low risk of future re-offending because the applicant had been denied access to most of his family members. That conclusion addressed not inclination, but opportunity. The pre-sentence report also concluded that there was a low risk of re-offending, but acknowledged a high risk of harm to young females within the family if he were allowed renewed contact with them. A lengthy period of intervention would be needed to address his cognitive defects and entrenched deviancy. He hugely minimised his offending and displayed no insight into the impact of his activities on his victims. 69. A medical report was before the judge which indicated a variety of different conditions consistent with his age. 70. The judge did not mince his words. He regarded the applicant as a “disgrace to the human race”, and pointed out that the catalogue of crime which the court had heard could not begin “to describe the terrible conditions these children had to endure during their early life”. The breaches of trust were simply “unimaginable to the ordinary healthy mind”. 71. The judge intended his sentence not only to reflect society’s horror at these events, but also “to make sure that you do not ever leave prison alive”. He went on “I have considered life imprisonment or a determinate sentence, I do not want there to be a life imprisonment situation where somebody might think that you should be released”. Later, in an exchange with counsel, he said that he would make a sexual offences prevention order “just in case some unbelievable thing happens and someone releases him”. 72. On the applicant’s behalf it is suggested that the sentence was well in excess of the starting point indicated in the appropriate guidelines issued by the Sentencing Guidelines Council. As the starting point for a first time offender after a trial was 15 years, the sentence was wrong in principle. 73. The problem with this submission is that there are occasions, and this is one, where it is difficult for any guideline to encompass depravity on this scale. It demonstrates, as a classic example, the need, however carefully structured guidelines may be, for judges to apply them with sensible flexibility. The scale of this offender’s sexual offending, the violation of the children in his family, all of whom are entitled to look to him for love and protection, went on for generation after generation. There was no realistic basis for treating him as a man of previous good character when he had been offending for 40 years or more, and in any event, repeated conduct on the scale which took place here well exceeded what may be described as the normal level of criminality addressed by the guidelines. Justice would not have been done if the judge had regarded himself as bound by a guideline which did not encompass the true extent of the applicant’s criminality. 74. There is however a single criticism of the judge. If, as he clearly intended, the offender was to be incarcerated for an indefinite period, then a sentence of life imprisonment or imprisonment for public protection should have been ordered, and an assessment of the appropriate determinate term used to calculate the minimum term. The judge did not find any specific reason to hold back from making such an order. He was concerned to ensure that the applicant should not be released. An order to that effect rather than a determinate sentence should have been made, and the notional minimum term fixed in accordance with the judge’s assessment of the determinate term. 75. As a matter of law we cannot interfere with this sentence in order now to impose a sentence of life imprisonment or imprisonment for public protection. 76. This application is dismissed. SD 77. SD is 43 years old. He has no previous conviction. On 27 June 2008 in the Crown Court at Teesside he pleaded guilty to causing or inciting a child to engage in sexual activity (count 1) rape of a child under 13 years of age (count 2) and sexual assault of the same child (count 3). The victim in each of these crimes was his daughter. 78. On 25 July 2008 he was sentenced by His Honour Judge Bowers to imprisonment for public protection and a minimum term of 4 years and 6 months, less 92 days served on remand, was ordered. He was disqualified from working with children and a sexual offences prevention order for an indefinite period was made. This is an application for leave to appeal against sentence. 79. The applicant’s 12 year old daughter was apparently rather naive, and certainly not very knowing about sexual matters. The first offence was covered by count 3. The applicant told his daughter that they had to get closer, and he told her to remove her top. She did so, he lifted up his clothes. He hugged her, but made no direct attempt to remove her bra. However just over two weeks later, when they were in the living room of their house, the complainant was wearing a nighty and dressing gown. The applicant made her remove her dressing gown. He removed his shorts and ordered her to sit on his lap. When she did so he penetrated her. The final incident occurred when the child went to her father and told him she wanted to go to Tesco with a friend and asked him for some money. He replied “only if you wank me”. He then forced her hand down his trousers and moved her hand up and down his penis. The activity was interrupted when the daughter’s friend arrived. 80. When the applicant became aware of these allegations he took an overdose, and in interview he made partial admissions. 81. The pre-sentence report recorded the applicant’s belief that the abuse of his daughter started because he wanted to bond emotionally with her, and his motivation was to achieve an improvement in his relationship with her. He denied that there was any sexual motivation or gratification, and he said that he never intended to cause any harm. The view of the writer of the report was that he presented a risk of harm. 82. The judge recorded that the applicant had targeted his own daughter for sexual abuse. He regarded these offences as very serious, and concluded that there was a significant risk of serious harm. He was concerned not only about the sexual abuse itself, but the applicant’s distorted and warped thinking, and in particular his denial of any sexual motivation or gratification. He concluded that a sentence of imprisonment for public protection was appropriate. 83. It is said on his behalf that there were no grounds for concluding that the applicant posed a significant risk of serious harm, and that the ancillary orders, with a determinate sentence, would have been adequate to address his offending. There is however no basis for interfering with the judge’s conclusion that an order for imprisonment for public protection was appropriate. In short, the minimum term reflected this applicant’s criminality, and accordingly this application is refused PW 84. PW is 38 years old. He has a previous conviction for a sexual offence which is relevant because it was committed at a time when some of the offences which now arise for consideration were occurring, and he was sentenced after the last of them was committed. 85. On 13 June 2008 he pleaded guilty to count 5, indecent assault on a male person contrary to section 15(1) of the Sexual Offences Act 1956 , count 6 and 7, indecency with a child contrary to section 1(1) of the Indecency with Children Act 1960 , count 8, 9 and 10, sexual activity with a child contrary to section 9 (1) of the Sexual Offences Act 2003 , count 14, travelling with the intention of meeting a child following sexual grooming contrary to section 15(1) of the Sexual Offences Act 2003 and count 16, possession of indecent photographs of a child contrary to section 160 of the Criminal Justice Act 1988 . 86. On 24 July 2008 he was sentenced by His Honour Judge Burford QC to 32 months’ imprisonment concurrent on counts 5, 6 and 7, 32 months’ imprisonment on counts 8, 9 and 10 concurrent inter se, but consecutive to the sentences on counts 5, 6 and 7, 16 months’ imprisonment consecutive on count 14, and 8 months’ imprisonment consecutive on counts 16. The total sentence was therefore 88 months’ imprisonment (7 years 4 months) and an indefinite sexual offences prevention order was made. Further orders relating to forfeiture and destruction of computer equipment and photographs were made. This is an appeal against sentence. 87. The facts of this case can be summarised very briefly. The appellant targeted underage teenage boys over the internet. Knowing that they were underage he befriended and arranged to meet them, so as to engage in sexual activity. No force was ever used, and by the time sexual activity actually occurred, the boys accepted what happened without demur. 88. The complainant in counts 5, 6 and 7 was JH, who was born in May 1988 and met the appellant in November 2003. He said, as was the case, that he was 15 years old, and the appellant said that he was only 24. A friendship developed. On about 5 occasions between January and April 2004 the appellant took the complainant to his shared house in Southampton. They cuddled in his bedroom and engaged in sexual activity. The counts were specimen counts reflecting oral sex by the two men on each other, and anal sex. 89. Counts 8, 9 and 10 were similar. The complainant JF was born in October 1988. He created a profile on a social networking website, inviting gay men in the area to chat to him. The appellant frequently chatted with him and JF agreed to meet him. During the conversations he had made it clear that he was 15 years old and still at school. The counts reflected an occasion in June 2004 when mutual oral sex and anal sex occurred. 90. The victim in count 14 was a boy, AN, born in December 1989 who met the appellant over the internet in April 2004. Their conversations took a sexual turn. AN made clear that he was under age, and the appellant indicated that he was not concerned about the lawfulness or otherwise of sex with under age boys. In April 2005 the appellant masturbated on his webcam while online with AN. They arranged to meet, but in fact AN had no intention of doing so and did not attend. It was however clear from the internet chat log that the appellant made every effort to meet up with him and that he had travelled to the arranged meeting place. 91. Count 16 reflected a large number of indecent images of children, the majority of which were boys in a similar age range to the complainants in the other counts. These were recovered from the appellant’s desk top computer. There were 278 images of level 1, 85 at level 2, 2 at level 3 and 76 at level 4. 92. The appellant was convicted in 2005 and sentenced to 18 months’ imprisonment and disqualified from working with children on conviction of offences of meeting a child following sexual grooming and sexual activity with that child. These convictions arose from activities similar to those already described. 93. The pre-sentence report indicated that following this sentence, the appellant completed the sex offender treatment programme, and had made some positive progress. However the police offender management unit highlighted ongoing concerns about his behaviour. His views continued to be distorted, and he minimised his own responsibility. The risk of re-offending was medium. Reflecting the assessment of dangerousness, and the proper approach to it, the writer of the report indicated that there was nothing to suggest that the presumption of dangerousness was unreasonable. 94. The remaining material before the judge included character references. In his sentencing remarks the judge accepted that the offences did not involve the use of force, but were aggravated by the clear disparity between the appellant and the various complainants. He lied about his own age, and persisted when he knew the actual ages of the complainants. He was highly skilled at grooming young boys in order create opportunities for sexual activity with them. 95. The judge acknowledged the guilty plea, and gave full credit for it. He also acknowledged that since the offender had finished his previous sentence, no further offences had been committed. He accepted that although the appellant had developed a greater awareness of the impact of his offending, his views continued to be distorted and he tended to minimise the seriousness of the offences. 96. The judge analysed the relevant statutory provisions as then newly in force. He identified count 14 as a serious specified offence, and count 16 as a specified offence. After considering the appropriate guideline from the Sentencing Guidelines Council he concluded that neither offence justified a determinate sentence of 4 years’ imprisonment. Accordingly a determinate sentence would be appropriate, and consecutive sentences would reflect the criminality perpetrated against each boy. 97. The single ground of appeal was that the overall sentence, after a guilty plea, was manifestly excessive. 98. Given the history we are disinclined to take issue with the judge’s conclusion that sentences of imprisonment for public protection or an extended sentence were inappropriate, although, we pause to observe that the decision should have reflected the offender’s overall criminality rather than focus exclusively, or virtually so on the post 4 April 2005 offences. In any event, even if we disagreed, we could not now impose such a sentence. ( R v Reynolds and others ). 99. After careful reflection, we are persuaded that, examined as a totality and in the light of the sentence already served by the applicant, the sentence was manifestly excessive and should be reduced to 5 years’ imprisonment. That would reflect an overall sentence, taking account of the sentence already served, of 6½ years. The sentences on counts 5, 6 and 7 will be 24 months’ imprisonment, on counts 8, 9 and 10, 24 months’ imprisonment, on count 14 12 months’ imprisonment, all to run in the way ordered by Judge Burford, and the sentence 8 months count on 16 will be ordered to run concurrently rather than consecutively. To that extent this appeal is successful. The sexual offences prevention order will continue in force. Gareth Rickman 100. Gareth Rickman is 27 years old. He already has an unenviable criminal record, having made 39 previous court appearances for 121 offences, in the period between 1994 and December 2007. The offences are many and varied, but they include offences of robbery, assault occasioning actual bodily harm, affray, assault on a constable, grievous bodily harm and racially aggravated harassment. 101. On 23 June 2008 in the Crown Court at Newcastle before Her Honour Judge Bolton, at the last moment, he pleaded guilty to count 1, dangerous driving, counts 3, 5, 6 and 9, assault occasioning actual bodily harm, counts 7 and 10, criminal damage, and count 8 false imprisonment. On 22 July he was sentenced to imprisonment for public protection on count 8, with a minimum term fixed at 30 months. Concurrent sentences of imprisonment were imposed on the remaining counts, count 1, 12 months’ imprisonment, count 3, 12 months’, counts 5 and 6 18 months’ imprisonment were imposed on the remaining counts, count 1, 12 months’ imprisonment, count 3, 12 months’ imprisonment, counts 5 and 6 18 months’ imprisonment, count 9, 2 years’ imprisonment, counts 7 and 10 2 months’ imprisonment. Appropriate disqualification orders were made. This is an application for leave to appeal against sentence. 102. This case involved serious domestic violence. In May 2006 the applicant and the complainant began a relationship. He soon moved into her home. Within a few months he had demonstrated that he was possessive, manipulative and violent. The complainant made numerous complaints to the police. When he promised that he would change, the complaints were withdrawn. Once a complaint was withdrawn, his violent conduct resumed. 103. Count 1 occurred in April 2007 when the couple were driving home and his partner sought to discuss with him the way in which he had been treating her. He lost his temper. He deliberately reversed his car into some fencing, causing a significant amount of damage. 104. In mid May 2007, in consequence of an unrelated police investigation, the appellant moved out of the complainant’s home, and she went to visit him. When she arrived he accused her of being a “grass” and assaulted her. She said that she wanted to go home. He struck her, abused her verbally and poured a drink over her. She managed to get away. She sought medical care. 105. A month or so later they visited his mother. An argument began, and he assaulted her. She wanted to go home but he would not let her go, and the violence continued until his mother intervened. As a result of that assault, she sustained a broken nose. 106. Another assault occurred shortly afterwards. On this occasion, after receiving dental treatment, she returned home. An electrician was working there. She borrowed a telephone from him to call the appellant. In the result he accused her of having an affair with the electrician. He head butted her, and when she tried to run away, he dragged her back by her hair. 107. Unsurprisingly, the relationship was rapidly deteriorating, and on an occasion towards the end of July he threw paint around her home and damaged the soft furnishings. Count 7 related to a specific incident when he punched a hole in the door. Then, finally, on 31 July 2007, the applicant accused his partner of having an affair with his solicitor. He cut up her clothes and attacked her. He punched her, and cut out lumps of her hair, with a knife. He stabbed her leg and abdomen. She managed to get to the bathroom to try and clean herself up, but while she was in the bath the applicant entered, and used the knife to make marks on her skin. She was detained for between 12 and 18 hours. On the next day he decided to sell her car and he made her go with him to a number of garages for the purpose. Eventually she managed to escape from the car and ran to some nearby shops. A shopkeeper saw the state she was in and immediately called the police. 108. The pre-sentence report recorded that the applicant attributed his outbursts of violence to his use of alcohol and crack cocaine. Although he felt that on occasion he had been provoked by the complainant, in all other respects he accepted full responsibility for his actions and expressed his regret for his behaviour and its impact on her. It appeared that in the past a former partner had been assaulted by the applicant, and it was recorded that a number of serious specified offences were included in his previous convictions. Unsurprisingly it was recorded that the applicant posed a high risk of re-offending with a high risk of serious harm. 109. In her careful sentencing remarks the judge summarised the injuries inflicted by the applicant on the complainant. She concluded that he had developed an all enveloping power over her and that she was absolutely terrified of him. This was sustained domination of a young woman. She regarded the offences on 31 st July as particularly serious, noting, rightly, that the way in which he prodded her with a knife while she was in a bath amounted to slow torture. The applicant’s record for violence was noted, and the court agreed with the assessment in the pre-sentence report that he presented a significant risk of serious harm to the public. In those circumstances, a sentence of imprisonment for public protection was required. In assessing the determinate term, the judge took account of the appropriate level of sentence for each individual offence, and although there was every justification for passing consecutive sentences, she decided that the determinate term should reflect the overall criminality. 110. Her sentencing decision, and the process by which she reached her conclusion are criticised. It was suggested that imprisonment for public protection was inappropriate on the basis that it should be reserved for the most serious offences. None of the offences of which the applicant was convicted could properly be described as really serious offences. It was also suggested in written grounds that the judge erred in allowing her concern about when it would be safe to release the applicant to influence her sentencing decision. 111. In our view the judge was entirely justified, and for the reasons she explained, to make an order for imprisonment for public protection. There was ample material to justify her conclusion. She carefully examined the facts of the applicant’s repeated offending, both in the context of his previous record and throughout his relationship with his partner, and the ordeal to which he had subjected her as a culmination of repeated acts of personal violence. An overall sentence of 5 years’ imprisonment as a determinate sentence in this case, with the notional minimum term calculated accordingly was within the appropriate range of sentence to reflect his criminality. This application is refused. Scott Andrews 112. Scott Andrews is 35 years old. His previous convictions include two previous convictions for driving with excess alcohol, two for failing to provide a specimen, and two for driving while disqualified. On 10 th January 2008, for yet another offence of failing to provide an appropriate specimen, he was sentenced to a community order with a requirement of supervision, and disqualified from driving for three years. Less than two months later he was driving again. 113. On 16 June 2008 in the Crown Court at St Albans, before His Honour Judge Findlay-Baker QC, he pleaded guilty to driving while disqualified (count 2) and on re-arraignment, to causing death by dangerous driving (count1). On 25 th July he was sentenced to an extended sentence of 14 years’ imprisonment, comprising a custodial term of 10 years’ imprisonment and an extension period of 4 years for causing death by dangerous driving. No separate penalty was imposed for driving while disqualified or for driving with excess alcohol, an offence committed under section 51 of the Crime and Disorder Act 1998 . He was disqualified from driving for 14 years. An order for an extended re-test was made. The vehicle was forfeited, and time spent on remand was ordered to count towards his sentence. This is an application for leave to appeal against sentence. 114. The facts of this case are virtually self-explanatory. The applicant, disqualified from driving, and less than two months into the community order imposed for failing to provide a specimen, was driving with excess alcohol. At about 3.20 on 5 th March 2008, a young woman collected her 5 year old son from school and was walking him home. The route took her towards a hump back bridge in Watford. There the road narrowed to one lane, and access in each direction was controlled by traffic lights to ensure that only one vehicle was travelling over the bridge. Nearby, another young mother, and her young child were also walking. As she was walking over the bridge a car approached it from the north side, and as the lights were green in its favour, the driver proceeded to cross the bridge. The applicant was driving a van in the opposite direction. He went straight through the red lights facing him at some speed and there collided with the car which was lawfully on the bridge. His van then mounted the pavement and hit the young woman who was carried for some distance on its bonnet before she was thrown into the air. She landed some 18 metres from the point of impact. The applicant simply drove on and away, despite the efforts of another pedestrian to prevent him doing so. The emergency services were summoned. The young woman was pronounced dead shortly after arrival in hospital. 115. The applicant was arrested at home some half an hour later. He admitted that he had been involved in an accident, but denied that he had struck anyone. A check revealed that he was disqualified. A breath test was conducted at the police station at 5.59pm some 2½ hours after the accident. On analysis the level of alcohol in his breath was found to be 108mg, by contrast with the legal limit of 35. 116. When subsequently interviewed, the applicant admitted driving the van, but continued to deny that he was involved in a collision or mounting the pavement. He denied driving through a red light. He admitted that he was disqualified from driving. He explained that he was an alcoholic and that he drank half a bottle of wine every morning to steady his nerves. A psychiatric report confirmed that the applicant had a very severe alcohol dependency problem, requiring treatment. It recorded that the applicant had expressed remorse for his actions. 117. The court was provided with, and we have ourselves read, some profoundly moving victim impact statements, not only from the mother of the deceased, and grandmother of the surviving boy, but also from the young woman, who like the child of the deceased and her own child, is lucky to be alive. 118. The judge accurately summarised the facts. The applicant had driven too fast. He ignored a red light. He had taken the life of a young woman. At the time he was disqualified from driving. He was about 3 times over the drink/drive limit. These were extremely serious features of the case. His extensive criminal record with previous convictions for drink/driving offences and driving while disqualified added to the aggravating features. The judge noted that in his interview the applicant had admitted purchasing the van after he had been disqualified in January. Court orders which had been passed to protect the public from him and his driving and the possibility of harm occasioned by drink driving had been wilfully ignored. 119. The judge was prepared to allow the credit for the guilty plea, but it came at a late stage, notwithstanding the overwhelming evidence and credit for the plea would therefore be limited to some extent. The judge concluded that the plea was unaccompanied by any real remorse. The judge accepted that the appellant was weak-willed rather than vicious, and that he had struggled with severe and chronic alcoholism over the years, but, despite the incident in which a young woman had been killed, he could find no evidence to suggest any change of behaviour and indeed for the time being the applicant’s condition was entrenched. He presented a significant risk of serious harm to the public. The judge acknowledged that the recent amending legislation meant that a sentence of imprisonment or public protection did not necessarily have to be imposed following a finding of dangerousness, and in the circumstances, an extended sentence would be an appropriate disposal as this would provide an appropriate level of control for a significant period of time. In reaching this conclusion the judge was also influenced by the fact that the offence was not one in which harm was desired or intended. 120. In essence the submission was that the sentence was manifestly excessive and although the offence was undoubtedly grave, it was not one of the worst of its kind, and in the total sentence, insufficient credit was given for the guilty plea. Reference was made to the well known case of R v Cooksley [2004] 1 CAR ( S) 1 and, in relation to this particular piece of driving, the more relevant recent decision in R v Richardson [2007] 2 CAR (S) 36. 121. Our conclusion on the application can be expressed very simply. The judge correctly identified the serious aggravating features of this case, and in our judgment his sentence fairly reflected both the elements of punishment which this offence demanded, and the risk to the public created by an offender with an alcohol problem whose record showed that he was impervious to the orders of the court and impervious to the danger he represents. As the judge explained, his sentence was intended to “provide proper retribution and a measure of public protection for the very grave act or irresponsibility which had appalling but unintended consequences”. We agree with the assessment, and no basis for interfering with this assessment, or the reasoning which underlies it, has been shown. This application is refused. Giles Forbes 122. Giles Forbes is 32 years old. He has previous convictions over the years, having made 4 court appearances between 1978 and 1999. Three of those appearances involved offences of child pornography, one possessing indecent photographs with intent to distribute, and two importing indecent material. 123. On 18 April 2007 in the Crown Court at Blackfriars before His Honour Judge Hillen he changed his plea to guilty to 3 counts of distributing and indecent photograph of a child (counts 1-3) and one count of possessing indecent photographs of a child (count 10). 124. We can conveniently summarise the facts before addressing the processes which followed the guilty plea. On 14 March 2006 police officers went to the appellant’s home. Outside they saw and arrested him. They were armed with a search warrant to search his home. During the course of the search a large quantity of DVDs, videos and video spools was recovered. Ninety of them contained indecent images of children, 77 at level 1, 5 at level 2, 4 at level 4, and 5 at level 5. Another video with indecent images at level 2 was found, which on further investigation, had been sold by the appellant on video by auction on eBay on 3 occasions during late 2005. These transactions were the subject of counts 1-3. The basis of plea relating to counts 1-3 agreed that the video contained indecent photographs of a child, but it was said to be an image contained in a full length feature film widely available on open sale on eBay. He bought the DVD versions of the film on eBay through his own account and then sold the same version on 3 occasions. This basis of plea was accepted by the Crown. 125. In relation to count 10 the appellant said that some of the DVDs and videos may have been left by an acquaintance at his premises, and he was never aware of the exact nature of some of the images, and if he had been, he would have destroyed them. He intended to distribute the coming of age films in his possession, but not on a commercial basis. He had not intended to distribute videos and video spools, nor contacted anyone with a view to distribution or sale. He had no form of contact with others for this purpose, and no meetings had been arranged to effect an exchange. This basis of plea was not accepted by the Crown. 126. At the Newton hearing Judge Hillen concluded that all the material recovered belonged to Forbes, and that he knew its exact nature. He also concluded that the videos and video spools were old and dated and had been copied over many years, and that the material at the higher level was not for sale or commercial trading. It was intended for distribution to like minded individuals and had indeed been copied repeatedly over many years, and the appellant had been engaged with others in the production of such images. There had been considerable trading of the level 1 and 2 images without substantial gain, and an intention to continue to trade in the level 1 and 2 images found at the appellant’s address. The purpose of the appellant’s postbox in Amsterdam was to facilitate the importation of this type of material into this country. The appellant had also been involved in the distribution (not sale) of level 3-5 images to like minded individuals in a paedophile ring, which amounted to conspiracy to distribute or show the images. This however had not involved him in commercial trading or gain. Accordingly the appellant fell to be sentenced on the basis that he was engaged with others in both the production and distribution of level 4 and 5 images and his culpability was aggravated by his criminal convictions. The judge concluded that a 15% discount for the guilty plea would be appropriate. 127. The case was adjourned for sentence. The pre-sentence report, apart from noting the contentions by the appellant which were rejected in the course of the Newton hearing, noted his agreement that his behaviour was irresponsible, and observed that he sought to minimise his offending. However he admitted to a pre-occupation with pornography and it was suggested that Forbes was likely to commit further offences which would place children at risk of serious physical or sexual abuse. In short, the risk of harm to children was high and the risk of harm to members of the public was “medium”, with a high likelihood of re-offending. 128. On 22 nd July 2008, before His Honour Judge Marron QC, the appellant was sentenced to an extended sentence of 7 years pursuant to section 227 of the 2003 Act made up of a custodial term of 5 years’ imprisonment and an extension period of 2 years’ imprisonment. Appropriate orders were made disqualifying him from working with children, together with notification orders and a sexual offences prevention order, to remain in force until further order. 129. Judge Marron proceeded on the findings made by Judge Hillen. There was evidence of involvement with others amounting to a conspiracy to distribute. The appellant was engaged with others in the production of images at level 4 and 5, and had previous convictions. He carefully addressed the question whether a determinate sentence of 4 years or more was appropriate. He decided that a determinate sentence in this case would have been 6 years’ imprisonment, and allowing for the guilty plea, a sentence of 5 years would be appropriate. The judge appreciated that the amendments to the dangerous offenders provisions provided him with a discretion whether to impose imprisonment for public protection or an extended sentence. The judge addressed the issue of dangerousness in the context of the judgment in R v Terrell [2007] EWCA Crim 3079 , and having done so, he concluded that there was a significant risk of serious harm but that an extended sentence, rather than imprisonment for public protection would be appropriate. It would have been helpful for the judge to have given some explanation for his conclusion on the issue of dangerousness, beyond saying that he disagreed with the defence about the impact of Terrell . That said, however, the finding itself was fully justified. 130. The submission on appeal is that the judge was wrong to pass the extended sentence, because, first, the conclusion that the appellant represented the danger which was a pre-requisite to such an order was unreasonable, and in any event, the notional determinate term should not have been 4 years or longer. It was also suggested that the sexual offences prevention order was wrongly made. 131. The essential finding relating to the appellant’s culpability is that he was involved in both the production and the distribution of level 4 and 5 images. For this type of conduct the Sentencing Guidelines Council’s guidelines provide for a sentence range in the order of 4-9 years’ imprisonment. This culpability had to be examined in the light of the appellant’s previous convictions and the other associated offences, and the demonstrable background that his network was widening and the images becoming increasingly grave. 132. This appeal illustrates some of the problems which face a sentencing judge when addressing the dangerousness provisions, and the alternatives between imprisonment for public protection, an extended sentence, and a determinate sentence of imprisonment, together with all the ancillary orders which provide for the protection of the public. The judge made a careful assessment of how best to address the safety of the public against the risk posed by this particular offender. However, in our judgment, his conclusion produced an outcome which in the result was too long. At the end of the hearing we announced that the sentence would be reduced from 7 years to 6 years, that is 4 years’ custody and an extension period of 2 years. To that extent this appeal was allowed. Craig Douglas 133. Craig Douglas is 23. One significant previous conviction is recorded. We shall return to it in due course. 134. On 4 December 2007 in the Crown Court at Newcastle upon Tyne he pleaded guilty to arson, being reckless as to whether life would be endangered. On 14 July 2008 he was sentenced by Her Honour Judge Bolton to an extended sentence of 5 years, pursuant to section 227 of the Criminal Justice Act 2003 , made up a custodial term of 3 years’ imprisonment and an extension period of 2 years. Time already spent in custody was ordered to count towards sentence. This is an application for leave to appeal against sentence. 135. The facts of this case are unusual and troublesome. The complainants were the applicant’s mother and sister. The family has long been estranged. In February 2001 the applicant pleaded guilty to rape and intercourse with a girl aged under 13 years, who was his sister, then aged 10 years, when he himself was 16 years old. He was made subject to a 2 year supervision order. This conviction, by itself, provides a chilling indication of the nature and state of family relationships. 136. On 19 November 2007, in the early hours, the applicant’s mother was woken when a smoke alarm went off. She got out of bed and found a flickering light coming from a letterbox at her front door. She observed that a piece of cardboard had been set alight and pushed through the letterbox. She grabbed hold of an unlit part of it and took it to the kitchen sink and put out the smouldering cardboard. In the meantime the applicant’s sister checked and found that a net curtain covering the window in the door had been singed. She looked outside and saw the appellant leaving the vicinity. The applicant had not spoken to his mother or sister for some considerable time. 137. The police were called. They established that a liquid had been poured over the front door and the paint peeled off, and shortly afterwards they went to the appellant’s home address. He immediately admitted he had gone to his mother’s home earlier, and when arrested, he said that he had poured paint stripper over the door and put a lighted piece of cardboard through the letterbox. He intended only to set the alarm off, and indeed he showed the officers where he had discarded the paint stripper can. When interviewed he asserted that he intended to strip the paint from the door and wanted to scare his mother by setting off the alarm. 138. The pre-sentence report recorded the applicant’s assertion that he did not intend to cause physical harm, but did want to scare his mother. There had been long-standing ongoing difficulties. He could not really explain his behaviour. He acknowledged how reckless he had been and accepted full responsibility without minimising his own criminal culpability, and demonstrated remorse. 139. Addressing the applicant’s earlier history, it was recorded that he had been witness to domestic violence and himself placed on the child protection register. As a result of his conviction in 2001 he had been taken into the care of social services. He last worked in October 2007, but was anxious to gain employment. He had misused alcohol, but not drugs. 140. The applicant was assessed as posing a high risk of serious harm to a known adult, his family members, and more broadly a medium risk of harm to the public. Neither risk was deemed to be imminent. But the risk of re-offending, and the potential for self harm in a custodial setting, were both recognised. The writer of the report concluded that as there was no broad risk of serious harm to the public at large a determinate sentence, possibly suspended, would be appropriate. 141. A psychiatric report was provided. The psychiatric opinion was that although the applicant remained vague about his own motivation for the offence, it was likely to have followed as a result of anger following his lack of contact with his mother, the consumption of alcohol and a depressive disorder. His symptoms met the criteria for a mild depressive episode. He had not received treatment, and anti-depressants and a referral for psychological intervention were recommended. His alcohol consumption was likely to exacerbate his depressive symptomatology. Psychological intervention would reduce the risk of re-offending. Any risk he posed would be directed towards his mother and sister, not the general public. A psychological report indicated that the applicant suffered from a range of complex and long-standing difficulties, including emotional and behavioural self regulation and an ability to manage himself independently. There was no evidence of significant mental health difficulties, but there was a possibility of relapsed and continued vulnerability. A non-custodial sentence would, it was suggested, require considerable multi-agency resources. Victim impact statements from the applicant’s mother and sister were before the judge. 142. The judge approached this difficult sentencing decision with care. She immediately recognised that on the face of it, this would not be described as the most serious offence of arson, but the applicant had put his mother and sister at risk, intending to frighten them. She recognised the complexity of the background, and concluded that the applicant had a “burning anger and resentment” against them. He needed proper psychiatric and psychological treatment, and until he received it, he would pose a significant risk of serious harm to them. 143. She then addressed the intractable problem of how best, in the interests of everyone involved, this treatment could be provided. She concluded that a custodial sentence was appropriate, but doubted whether what she described as a “commensurate” sentence would allow for the necessary treatment. Accordingly she decided that an extension period beyond the commensurate sentence would be required. The applicant’s release on licence would be subject to strict conditions, which would enable any treatment received in custody to be followed through, and for those responsible for the safety of the applicant’s mother and sister to ensure that the risk to them was minimised. She recorded her view that it would be very remiss if the necessary psychological and psychiatric care was not provided for the applicant. 144. The grounds of appeal are that the judge was wrong in law to conclude that the applicant was dangerous, and that whether that was so or not, the custodial term was manifestly excessive. 145. In our judgment the evidence that the applicant represented the danger required as a pre-requisite to both imprisonment for public protection and an extended sentence was clear. To the extent that he was, the most likely potential targets were his mother and his sister. Their individual interests were not to be ignored. 146. It seems clear, although the judge did not express herself directly, that she considered and rejected imprisonment for public protection on discretionary grounds. The extension period was ordered so as to cater for the need for appropriate treatment for this very troubled young man. In short, the overall sentencing package was designed to minimise the risk which he represented. As an exercise in judicial judgment, balancing the punitive elements of sentencing with those of rehabilitation and public protection, the sentence is not open to criticism. Accordingly this application is refused.

2008_11_26-1739.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/2790/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/2790

379c0f26f0417fd301e468a30218e8285a09e2000e2aa11fa74b8d6f61d64b08

[2008] EWCA Crim 658

EWCA_Crim_658

2008-02-12

crown_court

No: 200705759 D1 Neutral Citation Number: [2008] EWCA Crim 658 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 12th February 2008 B e f o r e : LORD JUSTICE THOMAS MR JUSTICE KING THE COMMON SERJEANT HIS HONOUR JUDGE BRIAN BARKER QC (Sitting as a judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - R E G I N A v SAMUEL AMOS SHERVINGTON - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript o

No: 200705759 D1 Neutral Citation Number: [2008] EWCA Crim 658 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 12th February 2008 B e f o r e : LORD JUSTICE THOMAS MR JUSTICE KING THE COMMON SERJEANT HIS HONOUR JUDGE BRIAN BARKER QC (Sitting as a judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - R E G I N A v SAMUEL AMOS SHERVINGTON - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr D Rhodes appeared on behalf of the Appellant Mr M C Aston appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - Judgment 1. LORD JUSTICE THOMAS: In the early hours of 27th December 2006 Mr Mfinanga, the complainant in this matter, was walking along Great Western Road towards Westbourne Park Road in West London. As he turned into Westbourne Park Road he was attacked by three males who demanded money from him, and one, referred to as "Male 2", hit him with a vodka bottle. As a result he sustained cuts above the left eye. 2. Some two and a half months later, that is on 14th March 2007, the complainant identified the appellant as Male 2 at an identification parade. 3. The trial was held in the Inner London Crown Court before Mr Recorder Bueno QC and a jury in September 2007. 4. The defence case was that the identification was mistaken and an alibi was put forward. 5. At the conclusion of the prosecution case a submission was made of no case to answer, but the judge rejected it. The appellant then gave evidence of what he had been doing that evening and called two witnesses. The judge then summed the case up to the jury after counsel's speeches and the jury returned a verdict of guilty after a retirement of 68 minutes. 6. The appellant was then sentenced to 18 months' detention in a young offenders institution on counts of attempted robbery and assault occasioning actual bodily harm. 7. He appeals with the leave of the single judge on two grounds: first, that the judge should have ruled that there was no case to answer and, secondly, that the judge, in the way in which he summed the case up, although he gave the standard Turnbull direction, diluted that to such an extent that the direction was almost worthless by remarks made both before and after the giving of the direction. 8. The evidence of the complainant was that he saw three males outside a pizza parlour on the opposite side of the road. He heard them talking loudly and it appeared the group were saying goodnight to each other. He said that one of the males across the road walked towards him, put him arm round him and asked for some "smokes". The complainant said he had none. The other males also crossed the road. He kept walking in the same direction towards Notting Hill and the first male continued to follow him. These males went over to his left hand side; the four of them were then walking abreast. He was then asked by the first male whether he had any small change. The other males were quiet and did not say anything at this stage. Again he apologised and explained he had no spare change, then told them that he did have some but he did not want to give it to them. At this point he felt uneasy and uncomfortable as he was surrounded. They kept asking for cigarettes and money. In an attempt to try and deflect them from pursuing this he took from his inside coat pocket a small bottle of vodka. His girlfriend, her friend and another friend of theirs had each had some vodka and cokes earlier that evening. There was some vodka left in the bottle which he estimated to be between a quarter and a half as they had only had a couple of drinks each. As he was offering the bottle to them, Male 2, standing on his left, grabbed it and said "I'll have that". The second male backed off to a distance of about four feet. From that distance he could not reach the bottle. 9. He kept on walking and the three males continued to walk with him. The first male asked him again for money. He felt this was not right and told them he did not have any money. He said "Sorry man, I don't have no change". At this stage the first man grabbed both his shoulders from behind and tried to pull off his leather jacket. The first male did this with some force. He was wearing bulky clothing and the jacket did not come off. As the male was drunk he slipped and fell to the ground. This happened immediately after the vodka bottle had been snatched from him by Male 2. After this they demanded money. He turned round instinctively though his feet were still facing forward. As he did so Male 2, who had the bottle, hit him with a full swing above his left eye. When he did so the second male was still standing to his left and came at him from the distance of about four feet. Male 2 jumped at him and for a split second everything came to a stop. He thought the second male was surprised that he remained standing as he had been hit with his full might. 10. He immediately left the scene as fast as he could. He sprinted 60 metres until he was out of breath and could not run further. He turned round to see whether the group of young men chasing him. The first male was sitting down. 11. He then described the lighting. It was quite bright. It was quite a big road and the lighting was good enough to read by. The pizza parlour had their lights on and he had no difficulty in seeing persons close to him. He had the best opportunity and every conceivable incentive to look carefully at the man who struck him. He was absolutely certain that the man who struck him with the vodka bottle was the appellant. The second male did not seem English but he could not trace the accent. He thought it was foreign, maybe Albanian, but that was a guess. He could not identify the third male with any certainty. He was completely sure that the appellant was the man with the bottle. The second male was the male he identified at the parade. 12. When he was cross-examined, he was asked about the 999 call he had made to the police and conversations he had had previously with the police. In the 999 call at 2.08 am on the morning he was attacked he described Male 2 as being white, heavy built with facial hair. In his first description to the officer at 3 am that morning he had said that Male 2 was white, with a round face, a light moustache and quite chubby but not obese. In his witness statement three weeks later this had changed from white to olive-skinned, possibly Albanian or Turkish, with a dark coloured moustache. He was adamant, however, that his identification of the appellant was correct and he could not have been mistaken. After Male 1 had attempted to pull his jacket off, Males 2 and 3 were much better in his vision at that stage than Male 1. He concluded his evidence by saying that "he [the appellant] was so clear, I am not mistaken, I am as sure as I can be". 13. A police officer was called to give evidence about the lighting in the street. 14. At the close of the prosecution case, as we have stated, a submission of no case to answer was made; we shall return to that in a moment. 15. The defence case can be summarised briefly. The appellant was half Caribbean, half white. He gave evidence he had been by himself from about 10 pm that evening and he gave a description of what he had done. His account was supported by his sister's boyfriend who was at home with him and by his mother. 16. That is a sufficient summary of the evidence in the case. We turn to the two issues that arise. 17. The first relates to the question of whether there was a case to answer. The importance of the judge considering the position at the close of the prosecution case in an identification case was in itself made very clear in Turnbull [1976] 63 Cr App R 132 , and emphasised again in the decision of this court in Fergus [1994] 98 Cr App R 313 , where Lord Justice Steyn (as he then was) set out the very heavy duty that rests upon a judge to consider the matter very carefully. It is, in essence, the duty of a judge, where the quality of the identification evidence is poor, to withdraw the case from the jury and direct an acquittal unless there is any other evidence that supports the correctness of the identification. In this case there is no other evidence and the issue that the learned judge had to consider during the course of the submissions was the question as to whether the identification evidence was poor and therefore whether the case should have been withdrawn from the jury and an acquittal directed. 18. In support of the submission that the judge should have withdrawn the case from the jury a number of points were made. First, that there was a considerable passage of time between the identification parade and the offence, a period of some two and a half months. Secondly, the incident lasted from about 30 seconds to a minute. That is not in dispute. The issue arises as to whether that was adequate. Next, it is pointed out that plainly there was more than one person involved in this incident. Male 1 appeared to have been making much of the action. The question was therefore rightly put, was the complainant so sufficiently distracted by this that he did not have a proper opportunity to identify the appellant? Next, there was the lighting. Furthermore clearly this was also a case where the appellant was a person that was unknown to the complainant. As we have set out, the appellant, on his own account, had been drinking. There are the points to which we have already referred on the inconsistency in the description. Then there is a point on accents, the complainant saying that he thought Male 2 had an Albanian or other accent that was not English. 19. The judge's reasons cannot be described as grappling with these issues. The transcript is poor, but it is self-evident that the judge did not attempt to analyse what had happened. This was wrong. At this stage in the case, in a matter that is important, the judge should have set out his reasons for allowing the case to proceed. It was, in our judgment, very unfortunate the judge did not do that, but the fact that he failed to reason his ruling is not in itself a ground for saying that the ruling should be set aside and an acquittal directed. We have to ask ourselves the question: did the judge err in his approach or reach a decision that was not within the ambit of decisions reasonably open to him? 20. It seems to us that although there were serious points that had been made carefully and cogently by counsel on the appellant's behalf, this was a case where, looking at the matter objectively, the judge was entitled to conclude that there was sufficient evidence for the case to proceed to consideration in due course by the jury. It seems to us that it is in fact obviously right that the passage of time between the identification parade and the offence and the fact that the complainant was identifying a stranger were factors that weighed in favour of saying there was a doubt as to whether this was a sufficient case as to whether the evidence was strong enough to go to a jury. But on the more crucial factors, we think that there was, in the light of the fact that the identification was at very close proximity and in the light of the fact that the lighting was such that it was possible to read by it. We also take into account the fact that on the evidence it appears that the appellant had drunk very little himself, and certainly there is no evidence that his ability to identify and describe someone was impaired. The inconsistencies on the description are not that serious, particularly bearing in mind the time at which the 999 call was made. As to the mistake on accent, it is clear that only three words were said, "I'll have that", and so the fact that he made a mistake as to the accent is, on analysis, not a powerful point. 21. We therefore consider, despite the heavy onus that rests upon a judge, and despite the judge's failure to deal with the matter properly, that this was a case where it was right to leave the case to the jury. 22. We therefore next turn to consider the way in which the judge directed the jury. It should by now, we trust, be self-evident to any judge that the collective wisdom of many years has gone into drafting the standard JSB direction. There is always a need to ensure that where a JSB direction is used it is appropriately tailored, but it is rarely appropriate to depart in the way this judge sought to do from the basics of that direction. 23. In submissions to us, Mr Rhodes on behalf of the appellant, has identified what the judge did in very clear terms. First, before giving the direction the judge prefaced it by a passage in which he tried to point out that the jury must approach the matter with common sense. He concluded this passage by saying: "You must not allow an oversophisticated approach to the evidence relating to the identification to become, as Mr Aston [counsel for the Crown] has described it, 'a mugger's charter'. Having said that, I do emphasise, as I will now explain, the need for special care." Those remarks were made before the learned judge proceeded to set out his direction. When he concluded the direction he said: "Bear all these points in mind, and as prosecuting counsel have told you, be sensible. Bring your common sense to bear on this evidence, and indeed on all the evidence that was been given in this case." 24. We were taken then to other passages in the summing-up where the learned judge emphasised the importance of the fact that the complainant had given convincing evidence. We think it is only necessary to refer to one of those passages by way of illustration. That is the concluding passage in his summing-up: "You have on the one hand the prosecution evidence, first the very clear and very emphatic evidence of identification given by [the complainant], who would not be shifted at all. Secondly the prosecution rely upon the fact that the defendant was given an opportunity to explain himself but declined to do so (and again you will bear very much in mind the direction I gave you about that), the golden opportunity to clear all of this matter up. They say, pointing to that, that this undermines the remainder of his evidence, and that it means you really cannot have any confidence in it. The defence, on the other hand, say no, and you must bear in mind all the warnings that I gave you in relation to your approach to visual identification. I said that there are a series of factors there, which undermine the quality of that identification. The defence also say that whatever criticisms can be made for the defendant's failure to respond to the questions at the time that he was interviewed, he was nevertheless 17 years old at the time, and he had legal advice to make no comment. The defence say that that is, in the circumstances, a reasonable excuse for his failure to disclose any of the details of the alibi which he has now advanced in this case." 25. In our view, it was plainly inappropriate for the judge to have referred to the words "a mugger's charter". Secondly, it was very unwise of the judge to have departed from the Turnbull direction by prefacing the Turnbull direction with the passage he did. The JSB direction is, as we have said, the product of the collective wisdom of many judges and it is, in our view, wrong for a judge to seek to add his own gloss upon it. It should not be done. But the question that we have to ask ourselves is: reading the transcript of the summing-up as a whole, was the clear Turnbull direction that he gave in effect watered down by the preface and other passages, examples of which we have given? Before answering that question we turn to two other complaints made. 26. First, it is said that the judge failed to emphasise the fact there was no supporting evidence. We have already set out the fact that there was none, but the judge did tell the jury that the case depended wholly upon the correctness of the identification and it seems to us that was sufficient to tell them there was nothing else to support it. 27. Secondly, it is said that the judge commented unfairly on the various points that had been made and which he set out which went to the weakness of the identification evidence. We think it is only necessary to give one illustration of that. One of the weaknesses, as we have already said, was that the complainant had said the accent was not English. The judge commented as follows: "He said he did not seem English, he could not trace the accent, but he thought it was foreign; 'maybe Albanian', but this was a guess. On any showing, members of the jury, very little was said, it seems, by Man 2. More of the speaking was done by Man 1. Bear that point in mind as well". It seems to us that, providing a judge approaches the matter with care, he is entitled to draw to the jury's attention what might be said about the weaknesses that he has identified, but it is plainly something that a judge must approach with great care. 28. We therefore return to the question of whether, by reason of the fact that the judge made comments such as the one we have given by illustration, that he inserted the preface and that he put emphasis on the certainty of the complainant's certainty, the summing-up, read as a whole, diluted the effect of the Turnbull direction. Although, as it is clear from what we have said, the judge was unwise to have summed the case up in the way he did, and was singularly unwise to have ignored the collective wisdom set out in the JSB direction, we have come to the conclusion, not without hesitation, that the summing-up in this case did sufficiently set out the direction on identification and that consequently the matter was put before the jury in a fair and proper way. We have addressed the question as to whether this conviction was safe. In all the circumstances we think that it was, and therefore the appeal must be dismissed.

2008_02_12-1367.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/658/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/658

880067f4897e0aad3508756111ece13877a5e5c30fab9d5a9f684113b6bef6ac

[2010] EWCA Crim 2676

EWCA_Crim_2676

2010-11-02

crown_court

Neutral Citation Number: [2010] EWCA Crim 2676 Case No. 2009/02562/D4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Tuesday 2 November 2010 B e f o r e: LORD JUSTICE GROSS MRS JUSTICE DOBBS DBE and MR JUSTICE OPENSHAW __________________ R E G I N A - v - ALAN SULLIVAN __________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4 Telephone No: 020 7404 14

Neutral Citation Number: [2010] EWCA Crim 2676 Case No. 2009/02562/D4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Tuesday 2 November 2010 B e f o r e: LORD JUSTICE GROSS MRS JUSTICE DOBBS DBE and MR JUSTICE OPENSHAW __________________ R E G I N A - v - ALAN SULLIVAN __________________ 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 Biddle appeared on behalf of the Appellant Mr D McLachlan appeared on behalf of the Crown ____________________ J U D G M E N T LORD JUSTICE GROSS: 1. On 16 April 2009, in the Crown Court at Liverpool, before His Honour Judge Boulton and a jury, the appellant (now aged 63) was convicted of conspiracy to evade the prohibition on the importation of Class A drugs (heroin). On 17 April 2009 he was sentenced to 18 years' imprisonment. He appeals against conviction by leave of the full court. 2. There were a number of co-accused, to some of whom we will make reference in due course, in particular Stephen Corke and John Brian Carroll. 3. In short summary the facts were these. In August 2004 the Revenue and Customs Investigations Unit covertly recorded conversations at an industrial unit in Liverpool from which they were able to deduce that there was a detailed and sophisticated scheme led by Mark Brown to import heroin into the United Kingdom concealed in the struts of specially constructed wooden pallets. Some conspirators visited contacts in Turkey, where the drugs were secreted in the compartments of the pallets, and others went to Holland to arrange regular purchasers of quad bikes as cover loads for the importation of 4.5 kilograms of heroin per pallet. The pallet factory was able to turn out 30 pallets per week. The recorded conversations included references to someone called "Sully". The appellant's name is Sullivan. 4. The gang avoided detection for more than two years until a seizure at Hull on 21 October 2006 when a sniffer dog gave a positive identification for drugs in a van driven by Peter Burke. A scanner showed abnormalities in the construction of the pallets carrying his load of quad bikes. When the pallets were dismantled they were each found to contain around 4.5 kilos of heroin. The total seizure of heroin from this load was the equivalent of 15.79 kilograms of pure heroin with a street value of almost £2 million. 5. An invoice from Motor Cross AAD found in the van led investigators to the proprietors of that business in Holland: Mr Petersman and Mr Von Wordragen. There had been 25 other invoices for the purchase of legitimate loads of quad bikes over the previous two years. 6. Initial descriptions of the men who had bought the quad bikes were taken from Mr Petersman in December 2006. He said that the man with whom he arranged the business gave his name as Pikey. He described him as a short man with short grey hair, about 1.55 metres tall who wore reading glasses. He described the second man as slightly older and around 1.85 metres tall, unkempt and thin. He estimated he was around 50 years of age and had short dark hair. He did not know his name. 7. In a statement given in June 2008 Mr Petersman stated that he had regular dealings with the same group of four Englishmen who purchased and transported goods from his premises. One man always paid for the goods in cash; a second man always arrived with him. He described the first man as white, aged around 57 years, with a full head of hair which was dark in colour but beginning to grey. He was about 1.6 to 1.65 metres in height and of average build but with the signs of a beer belly. He described the second man as white, aged around 63 years, taller and thinner than the first man, more athletic in build, around 1.85 metres in height, with receding hair and tattoos on both arms. He said that he would recognise both men again if he saw them. 8. In due course the prosecution submitted that Man 1 was Corke and Man 2 was the appellant. 9. Two other men arrived separately in a Mercedes Sprinter van and the first two men assisted them to load the goods into the van. The men transferred the goods onto their own pallets. On 20 October 2006 the men arrived to collect their consignment. They had purchased twenty mini quad bikes but could only take eight. They proposed to return the following day to collect the others but they never did so. 10. The appellant was arrested on 10 June 2008. On 9 July 2008 Mr Petersman attended a video identification procedure and identified the appellant as the man who loaded the pallets. 11. The prosecution case was that Corke and the appellant were the two men who regularly bought quad bikes in Holland as cover loads as part of the conspiracy. They relied on Mr Petersman's identification of the appellant and the coincidence of the appellant's trips with those of Corke, which also coincided with the issue of invoices by Motor Cross AAD for quad bikes. Reliance was placed upon the appellant's close connection with Mark Brown and James Carroll, in that he let them register a house in his name. 12. The defence case was that the identification of the appellant by Mr Petersman was wrong and unreliable. Reliance was placed on the inconsistencies in the descriptions given by Mr Petersman in his various statements. The appellant gave evidence that he had done some work with Paul Brown for Mark Brown and James Carroll (the alleged leader and second in command of the conspiracy) on their houses. He had gone to Holland to renovate properties. He had nothing to do with the importation of heroin. 13. The issue for the jury in a nutshell was whether they were sure that the appellant was a party to the conspiracy; specifically whether he was one of the men who purchased quad bikes in Holland to be imported into the United Kingdom on the pallets in which heroin was concealed. 14. At his trial the appellant gave evidence. He said that he knew the co-accused Paul Brown Senior. He had started to work with him on houses belonging to Mark Brown and James Carroll. In late 2003 he had gone to Holland to renovate properties. He went with Paul Brown in a van. He was dropped off in Amsterdam and went to the site. There were problems about the delivery of materials and he flew home. He then received a call from "the boss" asking where he was. He flew out again and returned a couple of days later with Paul Brown in the van. 15. Later, in November he went back out to work in Holland. Paul Brown introduced him to Corke. He had nothing to do with the importation of heroin. He knew nothing of the pallets and the secret compartments. The person referred to as "Sully" on the covert recording was not him. He was paid cash-in-hand for the work. The flights were paid for by his employer. 16. A house was indeed registered in his name. James Carroll had cash flow problems. The appellant had been paid £500 for his trouble. He had not had a bank account since the 1980s. 17. When he was interviewed he answered "no comment" because he did not want to implicate anyone in the conspiracy. It was a serious matter and he was shocked. 18. In cross-examination the appellant was questioned about each of the trips he made to Holland. He could not remember why he booked a return ticket when he came back the first time. It was a misunderstanding. Each of the eight instances of him taking the same flights as Corke were pure coincidence. Mr Petersman was wrong when he picked him out at the VIPER parade. At first he thought that it was a mistake; now he thought that it was corruption on the part of the officers. 19. The evidence of Mr Petersman to which we have referred had been adduced at trial by way of hearsay, pursuant to section 116 of the Criminal Justice Act 2003 (the provision for a witness in fear). 20. The grounds of appeal are these: (1) The judge erred in allowing Mr Petersman's statements to be read to the jury pursuant to section 116 of the Criminal Justice Act 2003 . (2) If, however, the judge had not been in error in doing so, then the directions in the summing-up on this part of the case were inadequate. Both submissions were to be considered in the context that the procedures adopted by the police in identifying the appellant were flawed. 21. Section 116 of the Criminal Justice Act 2003 , insofar as material, provides as follows: "(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matters stated if -- (a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter; (b) the person who made the statement (the relevant person) is identified to the court's satisfaction; and (c) any of the five conditions mentioned in subsection (2) is satisfied. (2) The conditions are: .... (e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings either at all or in connection with the subject matter of the statement and the court gives leave for the statement to be given in evidence. (3) For the purposes of subsection (2)(e) 'fear' is to be widely construed and (for example) includes fear of the death or injury of another person or of financial loss. (4) Leave may be given under subsection (2)(e) only if the court considers that the statement ought to be admitted in the interests of justice having regard -- .... (b) to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence)." 22. We turn to trace the history of Mr Petersman's evidence and the route by which it came to be admitted. We start with Mr Petersman's initial statement of 29 December 2006 ("the December 2006 statement"). The descriptions in the December 2006 statement do not, as they seem to us, assist in identifying the appellant. 23. Next, we come to the statement of 10 June 2008 ("the June 2008 statement"). The prosecution case was that Male 2 in the statement was the appellant and that Corke, who after the trial admitted his guilt, was Male 1. Mr Petersman spoke of regular dealings with these two men in 2006 and that they may well have been the same men, amongst others, with whom he had dealt in prior years. In a passage to which Mr McLachlan for the Crown drew our attention this morning, in this statement, Mr Petersman spoke of males 1 and 2 assisting in the loading of the pallets. 24. On 9 July 2008 Mr Petersman attended a video identification procedure held in Rotterdam where he identified the appellant as No 6. According to Mr Petersman, the appellant was the man who had loaded the pallets. Pausing there, the demeanour of Mr Petersman in the video we have seen of this procedure was striking. In short, he was confident and relaxed. 25. In a statement of the same day, 9 July 2008 ("the July 2008 statement"), Mr Petersman said this: "At 9.51 hours on Wednesday 9 July 2008 I attended at Rotterdam Police Station, where I saw a video film of nine persons. I picked out number SIX who I can positively identify as being the person who I knew from 2001/2002 (unsure of exact date) to around 10am Friday 20 October 2006 at Motorcross Aad .... In 2001/2002 this male arrived at my company and purchased a quantity of quad bikes. I then had regular face-to-face meetings with him regarding purchases of merchandise up to October 2006. I was also involved in arranging the transportation of the merchandise purchased. The person I have identified was the person I saw stacking the pallets. I have not seen any broadcast or published films or photographs or any descriptions of suspects relating to the offence." It will be noted that the identification is based not on a single glance but on Mr Peterman's evidence of regular contact with the appellant. 26. The history moves on to 2009. Following a voir dire on 12 March 2009 at which two Dutch police officers, Detective Inspectors Cloo and Van Soerst, gave evidence, the judge ruled on 13 March 2009 ("the 13th March ruling") that Mr Petersman was in fear and that his evidence regarding the identification of the appellant could be read under section 116 of the 2003 Act . In that ruling the judge had regard to the considerable experience of the Dutch police officers and to the view that they had formed as to Mr Petersman. As summarised by the judge, their evidence was as follows: ".... essentially they formed the view as a result of what he [Mr Petersman] said to them, firstly, that he was not prepared to come; secondly, that he had been threatened; thirdly, that he knew that the other witness [his partner], who at that stage was thought was going to be called in this case had also been threatened and the nature of the threats was such that he was in fear. That was their view and they described to me in some detail the nature of the fear and the genuineness of the fear in their view ...." 27. The original evidence from the officers was set out by the judge in the course of the summing-up and likewise merits quotation: "He told us that approximately two weeks ago on a Tuesday he also received a phone call in which it was said that they could find him. They knew that he had spoken to the police force and that he should not talk to the police any more. We asked him who he had spoken to on the telephone. He indicated that he suspected that this person was from Amsterdam. He emphasised that he knew that this matter concerned an organisation in which only a part had been apprehended. He emphasised he did not want to have anything to do with us any more. They could find him. He indicated that he had heard that his ex-colleague Fred Von Wordragen had also received a phone call." 28. In the light of this evidence the judge was satisfied that Mr Petersman was in genuine fear and he therefore went on to consider the provisions of section 116(4) . In the event, the judge ruled that the evidence was admissible by way of hearsay. He said this: "The net result is that I am satisfied on the evidence available to me that this witness is in fear and that fear is a genuine one and therefore I have to consider whether under section 116 the evidence should be admitted. .... I have to look at the difficulty that the defence would have to challenge the evidence that he would give in relation to the identification of Mr Sullivan and it seems to me that here is no risk of unfairness in this case because there is available to the defence and to the jury the tape of the VIPER procedure and indeed all those officers who took part in the parade and the setting up of the VIPER tape may be called to court and may be challenged and anything in Mr Petersman's original statements, which are not acceptable to the defence can be challenged by showing inaccuracies, if they are, in comparison with the actual people on the parade." 29. That ruling was given on 13 March 2009. The defence moved swiftly, dispatching a private investigator to interview Mr Petersman. On 18 March he did so. The interview resulted in a video-recording which we have viewed today. As appears from the video and the transcript, a number of different things were said by Mr Petersman. He spoke of seeing prior photographs. He said that he was not in fear; that he had a business to run; that he was too busy; and that he had given the police enough assistance. He said that he had not been threatened. What he had said to the Dutch officers had been twisted. He had not said at the identification procedure, "That's him". Instead he had said, "It looks like him". He added this, though, when asked how often he had seen the man: ".... they used to come. Then they didn't come for two years and then there they were again. They dropped in and bought stuff. Sometimes once a month, sometimes every three months. .... They just came in and said we want such and such and then I ordered it and then two to three days later they'd come and collect it." 30. It is correct to say that in that interview Mr Petersman said things which were not the same as that which he had said in his earlier statements. However, there are two particular features to which we would draw attention at this stage: (1) Insofar as he said that he had not said at the identification procedure, "That's him", he was mistaken. It is clear from the video evidence of the procedure that that was precisely what he had said, and, moreover without any hesitation. (2) It can be seen from the private investigator's video that Mr Petersman's demeanour was utterly different to that displayed at the VIPER procedure. We do not think for a moment that we exaggerate if we say that his demeanour on this second occasion showed a man in no little fear. 31. On 23 March 2009 the matter came back before the judge. He was invited to reconsider the 13th March ruling in the light of the defence video. The judge, who by then had viewed the recording of Mr Petersman on the VIPER procedure, viewed the recording of the private investigator's interview as well. He ruled shortly, without repeating the matter or the detail of section 116 , that there was nothing to suggest that the 13th March ruling was other than correct. 32. We turn to the rival cases. On behalf of the appellant, Mr Biddle, who had only come in to the trial at the close of the prosecution case when the appellant parted company with his original legal team, advanced the following submissions: It was not clear whether the December 2006 and June 2008 statements referred to the same men. It was not clear from the earlier statements who was doing what. There was nothing in those statements to suggest that the appellant was the man loading the pallets. There was confusion about the suggestion as to the man who had tattoos. There were other contradictions or discrepancies or anomalies between the various statements made by Mr Petersman. Mr Petersman had not said in terms to the Dutch officers that he was afraid; that was simply their impression. Mr Petersman was not given the opportunity to give evidence by way of video-link. Mr Biddle, at least in writing, placed some considerable reliance on the evidence obtained by the Dutch private investigator. On all the evidence, whether considering the 13th March ruling or 23rd March ruling, or the two together, the judge had been wrong to conclude that Mr Petersman was in fear. In any event, the admission of his identification evidence by way of hearsay was not in the interests of justice under section 116(4) . The judge had not addressed the "many anomalies and unusual features" of the case. As Mr Biddle put it this morning, "all these matters were the stuff of cross-examination, and that was not possible as the evidence was adduced by way of hearsay". 33. In writing (though, realistically, not developed further orally today) Mr Biddle said that if the judge had been correct to admit the evidence, then his directions had not been sufficiently careful or detailed. He had not descended to the particularities of the inconsistencies and anomalies in the evidence. The judge had been selective in some parts, but had provided too much comment and opinion in others. We hope that is a short but fair summary of the structure of Mr Biddle's most helpful submissions. 34. The Crown's riposte was robust and detailed. In his submissions Mr McLachlan underlined that the sole test for this court was whether or not the conviction was safe. If the court was satisfied that, despite any misdirection, or any irregularity in the conduct of the trial, or any fresh evidence, that the conviction was safe then the court would dismiss the appeal. In this regard Mr McLachlan underlined that the evidence against the appellant fell into five categories. Of those five, identification evidence was but one. The categories were these: (1) links with the other defendants; (2) the probe; (3) travel; (4) interviews under caution; and (5) identification evidence. 35. So far as links with other defendants were concerned, there was a plain link between the appellant and the co-defendants Mark Brown and James Carroll in that they had purchased a property which was registered in the name of the appellant and remained so registered. That demonstrated the close relationship of trust between the two principal conspirators, Brown and Carroll, and the appellant. 36. So far as concerns the probe, it was the prosecution case that the covert recording had picked up a considerable amount of conspiratorial talk. Although the appellant was never observed at the industrial unit, there were a number of references to "Sully" on the probe. It is unnecessary to set those out in detail. They show him in Holland. It is the prosecution's case that when the other conspirators were talking in this manner, unaware that they were being listened to, they referred to the appellant. 37. The third category, travel, was a feature of the prosecution case. The overlap between the travels of the appellant and Corke was striking. In his summing-up the judge remarked on this at least twice. He said: "The prosecution say that Sullivan is number 2, visited Motor Cross AAD on those many occasions. The prosecution say that number 1 is .... Mr Corke, because an analysis of the travel schedules shows that not only are these two visiting Amsterdam at the same time as the issue of invoices from Motor Cross, but in the company of each other. Travel records of Easyjet flights and P&O, and other channel crossings, Liverpool to Amsterdam, Dover to Calais, Hull to Rotterdam, painted the picture. Sullivan was established to be in Amsterdam to coincide with each and every invoice from Motor Cross AAD, flying home soon after its issue. Corke was shown to be making the same, or similar trips to those of Sullivan, the two were almost inseparable, being shown to be on the same flight at whatever time of day on eight occasions. ...." Later in his summing-up, referring to the cross-examination of the appellant, the judge said: "He was taken through by the prosecution each of the trips one after the other and it was put to him: 'Hang on, when you came back that time, having gone out in the van with Paul Brown, you came back but you booked a return'. He said: 'No, I was under the impression I booked a weekly return. I can't recall why I changed it, it was all a misunderstanding. As to all these flights together, they're all a series of coincidences.' Every single instance, eight in total, of his taking exactly the same flight as Corke he gave the same answer: pure coincidence, pure coincidence, pure coincidence, eight times." 38. As to interviews under caution, Mr McLachlan in his submission reminded us that the appellant had been interviewed under caution on six occasions. In the first interview he answered all questions concerning his personal circumstances. However, when he was shown photographs at the end of the interview he made "no comment" answers in relation to questions concerning who the individuals were. In the other interviews he answered "no comment" to all questions put to him concerning his travel to the continent. He further stated that he had never heard of Motor Cross AAD. He agreed to go on an identification parade. In the last interview he admitted that in 2000, while working for James Carroll, he had been asked to put his name on a property deed for him and had done so. 39. Mr McLachlan's submission was that both the 13th March and 23rd March rulings made by the judge had been correct. Mr McLachlan underlined that it was open to the defence to highlight matters in Mr Petersman's original statements showing inaccuracies with later statements. 40. So far as any other criticisms of the VIPER procedure are concerned, there was nothing to them. Matters such as the stubble condition of the appellant when he was identified and the manner in which the procedure had been held had been raised in the original written grounds of appeal. In his written response Mr McLachlan dealt one by one with each of those. On the judge's two rulings, Mr McLachlan's submission was that the 23rd March ruling should be read together with the ruling of 13th March. 41. We come to our conclusions. Hearsay evidence is never easy, as recent cases on section 114 of the Criminal Justice Act 2003 show. Applications should be approached with care and, in our judgment, on whatever basis, should never become routine. If, however, a witness is not available through fear, that is an almost paradigm case for the application of the provisions of the 2003 Act . For that reason, no doubt, section 116(3) speaks of giving to subsection (2)(e) a broad meaning. But it is also right, and the judge here so reminded himself, that there is a need for caution against the back-door introduction of hearsay evidence when the conditions of the section are not satisfied. Even if the matter does come within subsection (2)(e), the evidence is not to be admitted unless it would be in the interests of justice so to do. One of the considerations which necessarily arises, and again of which the judge reminded himself, was the ability of the appellant to challenge that evidence. 42. Was the decision on 13 March one which the judge was right or entitled to reach? In our view he was plainly right to reach that conclusion. He was amply entitled to take into account the evidence of the experienced Dutch police officers as to the fear under which Mr Petersman was labouring. It certainly cannot matter whether or not in his conversation with he Dutch officers Mr Petersman had said he was threatened or he was in fear in express terms. That could not be a requirement of the section, as a moment's reflection must demonstrate. 43. We turn to the ruling of 23 March. Was the judge wrong not to reverse his previous ruling? We bear in mind at once that the judge had seen more of the case by this stage. Had we only read the material on the papers, we would have been inclined to say that the judge was entitled to balance the transcript of the interview by the private investigator with the other evidence that he had seen and heard and come to an appropriate decision. We would have been disinclined to say that he could not reach the conclusion that his decision of 13 March remained correct. 44. However, any doubt we might have had in that regard is dispelled when we see the interview conducted by the private investigator. To underline and repeat, Mr Petersman was by then a man in obvious fear. 45. Against that background we turn to the interests of justice. Even if Mr Petersman was in obvious fear, we must still consider section 116(4) . For his part, the judge had had regard to this in his ruling on 13 March. For our part, we would not fault him for not going over the same ground on 23 March. The two rulings must be read together. The second should not be read in isolation from the first. In our judgment, the judge again reached a correct conclusion. There was ample scope for the defence to have a "field day" with submissions on the inconsistencies in the material and we daresay that they did so. To recap, they had all the VIPER procedure witnesses available; they had the DVDs of the procedure; they had all Mr Peterman's statements with their anomalies and inconsistencies; and the defence DVD was there for the court and the jury to consider. 46. Having reached those conclusions, we take what remains briefly. Were the directions adequate? Yes, we answer without hesitation. The judge gave appropriate identification directions, bearing in mind that the basis for Mr Petersman's evidence was recognition over a period of years rather than anything by way of a fleeting glance. 47. What of other complaints? Mr Biddle will, we hope, forgive us if we say that they do not by themselves go anywhere. Questions such as the interview procedure, the state of the appellant's beard and so on do not add much. 48. Though we are far from saying that the conviction would have been safe even if the decision on hearsay had been otherwise, we are fortified in our conclusion by the intrinsic strength of the prosecution case. There was weighty evidence of association, of the reference to "Sully" on the probe, there was the remarkable coincidence in travel arrangements to which we have referred, and there were those interviews from which no doubt inferences could be drawn. The overall impression is of an immensely strong prosecution case. But that is by-the-by because in our judgment the judge was amply entitled to admit Mr Petersman's evidence by way of hearsay and his directions were perfectly adequate. 49. It follows that this appeal must be dismissed, but we would not wish to leave the case without paying tribute to the careful and succinct arguments of both Mr Biddle for the appellant and Mr McLachlan for the prosecution. ____________________________________

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https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/2676/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/2676

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[2007] EWCA Crim 2215

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2007-07-04

crown_court

No: 200702784/A2 Neutral Citation Number: [2007] EWCA Crim 2215 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Wednesday, 4th July 2007 B E F O R E: LORD JUSTICE HOOPER MR JUSTICE MCCOMBE MR JUSTICE FIELD - - - - - - - - - - - - - - - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 61 OF 2007 (MICHAEL MADDEN) - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Sten

No: 200702784/A2 Neutral Citation Number: [2007] EWCA Crim 2215 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Wednesday, 4th July 2007 B E F O R E: LORD JUSTICE HOOPER MR JUSTICE MCCOMBE MR JUSTICE FIELD - - - - - - - - - - - - - - - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 61 OF 2007 (MICHAEL MADDEN) - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - MR M FENHALLS appeared on behalf of the ATTORNEY GENERAL MR R MAIRS appeared on behalf of the OFFENDER - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE HOOPER: The Attorney-General seeks leave to refer to the Court of Appeal a sentence which is said to be unduly lenient. We grant that leave. 2. The offender is Michael Madden. He is 31 years old. On 21st March 2007 he was found guilty of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861 . The case was adjourned for a pre-sentence report to be prepared. On 3rd May 2007 the offender was sentenced to 3 years' imprisonment by Miss Recorder Danji, sitting at Bradford Crown Court. 3. In summary, on Sunday 22nd January 2006, the offender and the victim were drinking in a public house in Huddersfield. A fight broke out inside the pub, although it did not involve the victim. Both the offender and the victim came to be on the pavement outside the public house. The offender armed himself with a 12-inch carving knife and used this to stab the victim in the face in a downward motion. We have seen the photograph: it was a deep slashing wound to the side of the nose. There is no doubt, and this is not disputed, that the attack was entirely unprovoked. 4. The facts in more detail are as follows: (i) On the evening of 22nd January 2006 the victim, Joseph Rainey, went to Huddersfield and met up with two friends. He drank four pints of lager in two different public houses before the three men went to the "Ivy Green" public house at about 10.00pm. While there he drank a fifth pint. He considered that he was sober and stated that this was not a large amount for him to drink. (ii) When he went to order a further pint, the barmaid asked if he was with 'the other two' referring to his friends. He confirmed that he was and she declined to serve him. As he went to leave the public house he made his way past a group of men who were fighting and went outside onto the pavement. (iii) The victim noticed the offender approaching him along the pavement. The offender swung at him with his arm, connecting with the victim's nose and he felt a great deal of pain. In fact he had been stabbed and his nose began to bleed heavily. (iv) An independent witness, Anne Hirst, saw the offender walk towards the pub carrying a large carving knife with a 12' blade. She saw him raise his knife above his head and attack the victim, striking him in a downward direction to his face. (v) The victim describes how he moved away, but was followed by the offender who continued to challenge him to fight. He phoned the police who arrived swiftly. (vi) Anne Hirst saw the offender being arrested by the police. She later identified the offender at an identification parade. (vii) Two independent witnesses, Peggy Callaghan and Pauline Cadogan, who were passing in a car saw a man walking away holding a knife with a 12" blade concealed behind his back. Neither they nor the victim were able to identify the offender. (viii) The victim received a 6cm laceration to the left nostril and septum of his nose. He went to Huddersfield Hospital where he received emergency treatment including 12 sutures administered in two layers, one internally and one externally. (ix) The offender declined to answer questions when first interviewed on 23rd January 2006. He was re-interviewed on 22nd September 2006, when he admitted that he had been involved in a disturbance, claimed that he had been assaulted and then declined to 'go into any more detail'. He denied carrying or using a knife. (x) The offender has two previous convictions. The first is for an offence of wounding contrary to section 20 of the Offences Against the Person Act 1861 , on 25th June 1996. The second is criminal damage on 22nd October 2002. The facts of the 1996 wounding were described to the sentencing court by prosecution counsel as follows: "The offender had been outside a public house when he hit a man on the head with a bottle. The bottle did not break but the blow knocked the victim to the ground. The offender then punched him repeatedly in the face. The victim suffered a cut to the rear of his head and to his lip." We note that the offender was in the Army at the time of the section 20 offence. 5. The offender continued to deny his role in the offence to the author of the pre-sentence report. He claimed that the victim and his friends were troublemakers and, while he accepted fighting, he had no recollection of hitting the victim. He continued to deny that he had ever carried or used a knife. The author concluded that the offender posed a medium risk of harm. No mitigation was advanced suggesting the victim himself had provoked the attack. 6. In the submission of the Attorney-General there are four aggravating features: (i) The offence was to some degree a premeditated attack, in which the offender used a knife, which he had no lawful excuse for possessing. (ii) The offender raised the knife above his head and struck the victim in the face, where it was likely to cause significant and lasting damage. (iii) The attack was unprovoked, late at night, and in a public place. (iv) The offender has a previous conviction for unlawful wounding in similar circumstances. We agree. 7. The following mitigating features are, in our view, present. First, the offender has served in the British Army and has served his country well in Bosnia and other places. We have been provided with a number of excellent character references. Those who write the references speak highly of the offender, both as a soldier and as a human being. In one of the references it is said: "If it was not for the fact that Pte Madden was leaving the Army to pursue a Civilian Career, I do believe that in a few years he would have made a strong and robust JNCO." 8. Another reference written by a Major refers to Private Madden as "a fine soldier, by far the best in the company and one of the most talented I have worked with." 9. Another testimonial states in part: "As an Infantryman he has demonstrated the ability to work in conditions of personal discomfort, often in difficult and sometimes dangerous circumstances. In all situations he has proved to be reliable and dependable. He has the ability to successfully absorb detailed theoretical information and perform important practical skills as part of a team." He is described as "robust, fit, with strong leadership ability and a degree of technical aptitude." 10. It is also important to note in mitigation that there has been almost a period of 10 years between the serious offence of violence to which we have referred and this offence. The Attorney-General draws our attention to the case of Attorney-General's Reference No 18 of 2002 (Christopher Simon Hughes) [2003] 1 Cr App R(S) 9 and particularly at paragraph 21, where the then Vice-President, Rose LJ, said that the sentences for offences against section 18 involving a knife, would normally be within the bracket of 3 to 8 years. 11. We also looked at Attorney-General's Reference No 138 of 2006 [2007] EWCA Crim 1077 . In that case the offender, who was aged 20, with no previous convictions and a good character, stabbed the victim twice, once in the right arm and once in the left side. The second blow was administered with such force that the knife became embedded in the bone and had to be surgically removed. In the view of the Court, the appropriate sentence, after a trial, would have been approaching 6 years' detention. 12. In passing sentence on the offender in this case the judge said: "You have been found guilty of unlawfully and maliciously wounding Joseph Rainey with the intent to do him grievous bodily harm. On 22nd January 2006, you used a knife to slash his nose causing a 6cm laceration as a result of which he required twelve stitches. As you know this is a serious offence. You caused very significant injury to the victim in the nature of the offence, namely street violence involving the use of a knife, is also one which the public are rightly very concerned about and the incident must also have caused distress and fear to those people who witnessed it. I have taken into account what is known about what happened that evening including the fact that you too had been struck a blow. I have also noted the role that alcohol appears to have played in this offence and that you seem unable to recall exactly what happened, but that is, of course, no comfort to the victim or to the public, nor does it excuse what you did. I have taken into account all that has been said in your favour in a pre-sentence report and in Court today in relation to the circumstances of the offence and in relation to your personal and your work life. I have also noted in your favour what has been said about your attempts to avoid further trouble since the offence by moving out of your area and that there have been no difficulties since the date of the offence. These factors do weigh in your favour. I have taken particular note of the dossier containing your qualifications and references. These are clearly quite a large number of people who think very highly of you and some of the references, particularly from your time in the Armed Forces, are excellent. I have taken these into account in your favour but would also venture to say that it is a great shame for someone with your skills and potential to engage in criminal behaviour regardless of the circumstances and I very much hope you will conduct yourself in the future so as not to come before these Courts ever again. It seems to me that alcohol has played a significant part in this offence and I am surprised by the indication in the pre-sentence report that you are comfortable with your level of alcohol intake. I think this is something you ought to seriously rethink if you want to build a kind of positive life which people who know you best seem to think you are capable of. In considering the appropriate sentence I have taken into account your two previous convictions for offences. In particular the offence involving violence although I have taken into account, also, that that was over ten years ago. I do not propose to invoke the dangerous offender provisions of the Criminal Justice Act because I do not consider that there is a significant risk to members of the public of serious harm occasioned by further specified offences being committed by you. Nevertheless, as I am sure you have been told, your offence is so serious that neither a fine alone nor a community sentence can be justified. It is unavoidable that you must be sentenced to a term of imprisonment. This will be the very shortest which, in my opinion, matches the serious and circumstances of your offence and takes into account all the mitigating factors. The sentence I pass is one of three years' imprisonment." 13. It is submitted that the sentence is unduly lenient having regard to the aggravating features of the case to which we have made reference. It is said that the sentence failed to reflect the gravity of the offence and the public concern about offences of this nature. 14. Mr Mairs, who appears for the offender, accepts that the attack was unprovoked, although he refers to the fact that there had been difficulty between two groups of people. Whether the victim was a member of one of those groups is not clear. Mr Mairs mentions that only to try to explain why the offender, given his record in the Army and the references to which we have referred, might have resorted to violence on this occasion. 15. Mr Mairs also points out that, although the injury was clearly a very serious injury, it was not of a life threatening character. It could, so he submits, have been far more serious than it was. He submits that we are entitled to take into account that the injuries were not as serious as they otherwise could easily have been. 16. It is submitted by Mr Fenhalls, on behalf of the Attorney-General, that the proper sentence in this case would have been in the region of 6 years' imprisonment. We agree with that submission. We quash the sentence that was passed and, giving a small discount for double jeopardy, we substitute for it a sentence of five-and-a-half years' imprisonment.

2007_07_04-1157.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/2215/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/2215

cb9934815fd73391c0bfbc498531e6ebbd4409cf012e50a8a524e5cca2386464

[2009] EWCA Crim 2774

EWCA_Crim_2774

2009-12-04

crown_court

No: 200905059/A2 Neutral Citation Number: [2009] EWCA Crim 2774 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 4th December 2009 B e f o r e : LORD JUSTICE MOSES MR JUSTICE IRWIN MR JUSTICE EDWARDS-STUART - - - - - - - - - - - - - - - - R E G I N A v GARY DAVID SHARPE - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2D

No: 200905059/A2 Neutral Citation Number: [2009] EWCA Crim 2774 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 4th December 2009 B e f o r e : LORD JUSTICE MOSES MR JUSTICE IRWIN MR JUSTICE EDWARDS-STUART - - - - - - - - - - - - - - - - R E G I N A v GARY DAVID SHARPE - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - Mr E Boyce (Solicitor-Advocate) appeared on behalf of the Appellant - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE EDWARDS-STUART: On 22nd August 2009 in the Taunton Deane and West Somerset Magistrates' Court the appellant pleaded guilty to an offence of witness intimation under section 51(1) of the Criminal Justice and Public Order Act 1994 and was committed for sentence to the Crown Court. However, the Crown subsequently considered that it would be more appropriate to charge the appellant with the offence familiarly known as "revenge" contrary to section 51(2) of 1994 Act, that is say threatening to do an act intended to cause a person to fear harm knowing or believing that that person has given evidence in proceedings for an offence. On 18th September 2009 the appellant then pleaded guilty to that revised offence and was sentenced in the Crown Court at Taunton to 2 years' imprisonment. The appellant appeals by leave of the Single Judge against that sentence on the ground that it was manifestly excessive. 2. The incident which gave rise to this prosecution occurred on 23rd April 2008 at a roundabout in Taunton. The appellant was driving a Transit van when he saw a car driven by a man with whom he had a long running dispute. The appellant swerved and rammed the other car with his van and then smashed its rear windscreen with a baseball bat. He then went for the driver. 3. The incident was observed by another motorist, Mr Bigwood. He took down the number of the van and reported it to the police and the appellant was subsequently charged with affray and dangerous driving. To those offences he pleaded guilty and on 11th March 2009 he was sentenced to 12 months' imprisonment concurrent on each offence. 4. Ten days later, on 21st March 2009, and whilst in prison, the appellant made a call from his cell to Mr Bigwood's business address using a mobile phone. Mr Bigwood happened to be away on holiday when the call was made but on his return the following day he went into his office and he heard the following message on the answer phone: "Hello there. Just a message for Keith Bigwood. Pass this on to him that he should never have made a statement to the police because now my friend is in prison doing twelve months for something he didn't do and Keith Bigwood is in serious fucking trouble. His life is about to slowly get destroyed whilst my friend is still in prison." The number from which this call was made was checked and matched the SIM card found in a mobile phone found in the appellant's cell. 5. The appellant was arrested and made no comment when interviewed. In the light of the appellant's refusal to make any admissions in relation to this telephone call, the police had to arrange the recording of a message made by Mr Bigwood to be analysed by a forensic expert. The expert concluded that the voice of the caller matched that of the appellant. As a result the appellant was charged on 21st August 2009 and, as we have already mentioned, appeared before the magistrates the following day. 6. Mr Bigwood made a witness statement in which he said he was completely shocked when he heard the message and that he believed it was a clear threat intended to cause him some sort of alarm or intimidation. He said he was concerned not only for himself but also for the safety of his family and those employed in his business. However, it is right to say that Mr Bigwood has never made a victim impact statement. 7. In passing sentence the judge, Mr Recorder Still, said this, after referring to the case of MacDonald [2008] EWCA Crim 707 , on which the appellant relies and to which we will refer later: "The serious aspect of this seems to me, as I have indicated to your counsel, that this was done not in hot blood but in cold blood ten days after the event. It was done trying to disguise the fact that it came from you in the context of a friend ringing on your behalf. The nature of what was left on the answer-phone was a threat which was that he would be 'in serious fucking trouble and his life was about to slowly get destroyed while my friend was still in prison.' The nature of those words are ominous and sinister and frightening. I am not surprised that Mr Bigwood says in his statement that he was concerned not only for himself but his family safety and the fact it came to his business address, that he was concerned that possibly those words spelt out a threat to the business. Those are the reasons why I am afraid I cannot go along with your counsel's submission to me that this is the sort of case where a prison sentence should be imposed to mark the gravity of the offence but suspended. It is perfectly obvious that you have made an effort to rehabilitate yourself with the gardening work, the landscaping work that you have undertaken and I have with interest and sympathy the kind words that are said about you by others, but at the same time I have just got to look at what you have done and what you have done, I hope I have made crystal clear, is serious, very serious indeed and the word has got to go out from the courts that this sort of thing which is prevalent is going to be stamped on and stamped on hard by the courts. It seems to me that putting all the good things that can be put in the balance on one side against the gravity of the offence on the other, that a minimum sentence that I can impose in this case is one of two years' imprisonment and that is the sentence that I impose." 8. The Recorder's remarks were, in our view, entirely appropriate. We agree with him also when he said it is a very serious matter for anyone to attempt to interfere with a witness who has given evidence, or who may be about to give evidence. This court also wishes to make it absolutely clear that this sort of interference with the due process of law will not be tolerated. 9. At the time when this offence was committed the appellant was 40. He does have a very substantial and persistent record of offending over the past 20 years or so, including several offences of violence, albeit not of the most serious sort. He has numerous convictions for theft. However, it does seem to us that during the past 5 years the appellant has run a successful gardening business: there are three very good references from those who had engaged him in during that period. 10. In his address to us on behalf of the appellant Mr Boyce has referred us in his written submissions to a case of this court, a decision in R v MacDonald [2008] EWCA Crim 707 . In that case the defendant who was aged 23 had been convicted of affray following a trial in the Crown Court and was sentenced to 12 months' imprisonment. About 2 months after his release from prison, he came across a witness in the case in a supermarket. The witness was shopping with his two teenage sons, one of whom was approached by the defendant who said: "You're part of the Avery family." The defendant then spotted the victim and threatened him, saying he was going to have him outside and was going to kill him. A person who was with the defendant tried to intervene and the witness continued shopping. However the defendant found him again, repeated his threat and then punched him in the head. The victim made a victim impact statement indicating that the incident had made a profound impression on him and that there were long-lasting effects. The defendant was sentenced to 4 years' imprisonment. 11. After stating that the maximum sentence of this offence was 5 years, this court considered that an appropriate starting point in that case would have been 4 years. That should then have been reduced by one-third for the defendant to plead guilty leading to a sentence of two-and-a-half years. The sentence was quashed and reduced to that figure. 12. Mr Boyce submits that the case of MacDonald was a much more serious case than this one. He therefore submits that the starting point in this case was too high. Amongst other things he points out the following features. First, the appellant had been on bail for 10 months prior to sentence without any attempts at intimidation allegation. Second, there was only one threat. A telephone call, 55 seconds long was made 11 days after the sentence was passed on the appellant for the driving incident. Third, the mobile phone from which the call was made remained in the appellant's possession for over 2 weeks before it was seized by the prison authorities, but no more messages were sent to Mr Bigwood. Fourth, no violence was used, and fifth, he points out that Mr Bigwood had declined to make a victim impact statement. He observes also that because there was a guilty plea Mr Bigwood never had to go through the ordeal of giving evidence in court. 13. In addition, it is said on the appellant's behalf he pleaded guilty before the magistrates at the first available opportunity, but given that the SIM card was found in the telephone that was in his possession, it might be thought that to give a full one-third reduction for the guilty plea was generous. But it appears that was what the Recorder indicated that he would do and we are not minded to approach the matter differently. 14. Mr Boyce in his written submissions has also drawn our submission to two other matters by way of mitigation: the fact that the appellant wrote a letter to Mr Bigwood apologising for what he had done, and also that the appellant has had a very difficult time in prison being intimidated by other inmates. 15. For our part, we readily accept that the use of violence in the case of MacDonald , particularly when used in front of the victim's children, was an aggravating feature that is absent in this case. Nevertheless, the power of a threat left on a telephone answering machine should not be underestimated. It can cause enormous worry and alarm, particularly when it appears to come from an unknown caller. 16. How it really affected the victim in this case, Mr Bigwood, is difficult to know without a victim impact statement, but a person in the position of the appellant will not know how seriously the victim may take the threat or what damage it may do. 17. In the light of the decision of this court in MacDonald , we consider that the circumstances of this offence justified a starting point of between two-and-a-half and 3 years, with a reduction for the guilty plea of between one-quarter and a third. It was manifestly not a case where any sentence of imprisonment should have been suspended, and immediate custody was clearly justified for an offence of this seriousness. 18. The Recorder seems to have taken a starting point of 3 years and then made a reduction of one third for the guilty plea, thereby arriving at a sentence of 2 years. It may be that some judges might have taken a slightly lower starting point, but we consider that this sentence was certainly not manifestly excessive. Accordingly this appeal must be dismissed.

2009_12_04-2183.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/2774/data.xml

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3070a0c918602f487fa01a618e74b88999ec93c474b624d095c968ed664ffb68

[2006] EWCA Crim 114

EWCA_Crim_114

2006-01-18

crown_court

No: 2005/05138/A0 Neutral Citation Number: [2006] EWCA Crim 114 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2 Wednesday, 18 January 2006 B e f o r e: LORD JUSTICE LATHAM MR JUSTICE BURTON THE RECORDER OF LONDON ( Sitting as a Judge of the Court of Appeal Criminal Division ) - - - - - - - ATTORNEY GENERAL'S REFERENCE No. 96 of 2005 UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 - - - - - - - R E G I N A - v - GATHO ABIBO DIDI - - - - - -

No: 2005/05138/A0 Neutral Citation Number: [2006] EWCA Crim 114 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2 Wednesday, 18 January 2006 B e f o r e: LORD JUSTICE LATHAM MR JUSTICE BURTON THE RECORDER OF LONDON ( Sitting as a Judge of the Court of Appeal Criminal Division ) - - - - - - - ATTORNEY GENERAL'S REFERENCE No. 96 of 2005 UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 - - - - - - - R E G I N A - v - GATHO ABIBO DIDI - - - - - - - Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4A Telephone No: 020-7421 4040 (Official Shorthand Writers to the Court) - - - - - - - MR D PENNY appeared on behalf of the ATTORNEY GENERAL MR S ROBINSON appeared on behalf of THE OFFENDER - - - - - - - J U D G M E N T Wednesday, 18 January 2006 LORD JUSTICE LATHAM: 1. This is an application by the Attorney General for leave to refer to this court a sentence of two years' imprisonment imposed upon the offender on 26 August 2005 for an offence of cruelty to a child under 16 years of age. We grant leave. 2. The offender is a national of the Congo. He came to this country and claimed asylum, which has been refused. The victim was a child, Natalie, who is now 10 years of age. She is the daughter of a friend of his. She also was born in the Congo. Her parents are separated. Her father came to this country in 2001. Natalie joined him here and they lived in Nottingham, where her father met and became friends with the offender. He would often leave Natalie in the offender's care. 3. It is apparent from what Natalie has subsequently said that when she was left in the care of the offender he would abuse her, not sexually, but physically and in other ways. That occurred both in Nottingham and after Natalie and her father moved to Hull. 4. The offender's treatment of Natalie came to light as a result of the observations and concerns of a neighbour in Hull who had a daughter at the same school as Natalie. Natalie would often play together with her daughter at the neighbour's house. It became apparent to the mother that Natalie was often left on her own and she appeared thin and hungry all the time. On occasions she heard Natalie screaming. On one occasion in May 2004, the neighbour heard screaming; but Natalie denied to her that anything had happened. Nonetheless the neighbour saw that she was walking in a way which suggested that her ribs had been hurt. The neighbour also saw bruising to her face. On another occasion she found Natalie had come into her house and had opened her refrigerator and was looking for food. Matters came to a head in July 2004, when once again the neighbour heard Natalie screaming and then a man's voice berating her. The neighbour shouted to whoever it was in the house that she would call the police if matters went on like that. 5. The following day the neighbour asked Natalie what had happened and Natalie told her that her "uncle" had been hitting her and that he had hit her that night. The neighbour saw that Natalie's right hand was very swollen. When she asked her further questions, Natalie said that her uncle had been burning her with cigarettes on her arms. The neighbour saw circular marks and bruises on both arms; she then called the police. 6. Natalie was examined by a doctor who found 24 areas of bruising and scarring on her arms and legs. Her right hand was swollen and bruised. There was bruising to her upper arms, consistent with being hit with a shoe (which is what Natalie had said had happened). The marks on her legs and arms were consistent with cigarette burns. Her condition fully bore out the account that she gave of having been ill-treated by the offender over a period of approximately a year. He would not merely ill-treat her physically in the way already described, but he would deprive her of food and water by way of punishment, and on occasions he attempted to strangle her and pinch her. He would make her stand up for long periods at night and she was made to wash in cold water. 7. When the offender was arrested and questioned he denied that he had ever assaulted or ill-treated Natalie. As to the cigarette burns, he suggested that that had been her own fault when she had fallen asleep in front of the television and rolled on to an ashtray. He was granted bail, but absconded. He was eventually arrested in June 2005 and subsequently appeared before the Crown Court on 29 July 2005, when he pleaded guilty having, it is to be noted, put in a defence statement a few days earlier in which he vehemently denied the allegations. 8. There was no written basis of plea. The only explanations as to how it was that the offender came to commit this offence against Natalie comes from the pre-sentence report and the material provided in mitigation by counsel on his behalf. The judge stated that he did not think that his actions were harming the child; he thought that what he was doing was, according to his culture, a perfectly proper way of teaching her right from wrong; what happened to her was "a way of life for children". 9. In his submissions to this court on behalf of the Attorney General, Mr Penny has submitted that the aggravating features to be found in this case are that the cruelty was perpetrated over a substantial period (over at least a year). He submits that they amounted to purposive acts of torture on a young child and were committed when the offender was in a position of trust in relation to that child. He accepts that the mitigation was that the offender pleaded guilty, albeit at the plea and case management stage and after he had been at large for some time. He had no previous convictions at the time he committed this offence. The ultimate result in terms of injury to the child was not as serious as in some cases. He has referred this court to R v J [1996] 1 Cr App R(S) 20 and R v Parker [1996] 1 Cr App R(S) 58. His submission is that the judge failed adequately to reflect the seriousness of this offence in the sentence of two years' imprisonment and that the authorities to which he referred would have suggested that after a plea of guilty in circumstances such as this, a sentence of five years' imprisonment or so would have been appropriate. 10. On the offender's behalf Mr Robinson does not seek to suggest that the sentence was other than lenient, but submits that the starting point after plea, in the light of the fact that the offender had no previous convictions, should have been in the region of three-and-a-half years and that, bearing in mind double jeopardy, we should exercise our discretion not to interfere with the sentence ultimately imposed. 11. Having considered this case with some care, bearing in mind the persistent nature of the ill-treatment of this poor child, the fact that the offending did not simply involve the physical beatings and injuries that thus were caused, but also deprivation of water and food, the minimum sentence that we would have expected after a plea of guilty in these circumstances would, as the Attorney General submits, have been one of a about five years' imprisonment. In those circumstances we consider that the sentence imposed was unduly lenient. Taking into account the principle of double jeopardy, it seems to us that the proper sentence we should impose today by way of substitution is one of four years' imprisonment. 12. Insofar as it will ultimately be of any relevance, we disqualify the offender from working with children under the provisions of section 28 of the Criminal Justice and Courts Services Act 2000.

2006_01_18-685.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/114/data.xml

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644ce7182d916ca63d81fd07927107862709aa91b1ab551ccea1aa1f15e1ee8a

[2011] EWCA Crim 1755

EWCA_Crim_1755

2011-07-05

crown_court

Neutral Citation Number: [2011] EWCA Crim 1755 Case No: 2011/1578/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday 5 July 2011 B e f o r e : LORD JUSTICE MOORE-BICK MR JUSTICE CRANSTON HIS HONOUR JUDGE BAKER QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v NICHOLAS LANDON - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A

Neutral Citation Number: [2011] EWCA Crim 1755 Case No: 2011/1578/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday 5 July 2011 B e f o r e : LORD JUSTICE MOORE-BICK MR JUSTICE CRANSTON HIS HONOUR JUDGE BAKER QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v NICHOLAS LANDON - - - - - - - - - - - - - - - - - - - - - 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 Williams appeared on behalf of the Appellant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE CRANSTON: This appellant, now 19 years old, appeals against sentences which His Honour Judge Bidder QC imposed earlier this year at the Crown Court at Cardiff. The appellant had pleaded guilty to two counts of causing death by careless driving and the judge imposed sentences of 20 months' detention in a young offender institution on both counts concurrent. There was a co-accused, Jack Germain, who pleaded guilty to a count of driving without due care and attention. He was fined. 2. The background in summary is this. On the evening of 16th November 2009, when he was 17 years old, the appellant met up with a group of friends in Bridgend Town Centre. There were four cars and he had two passengers in his, Royston Thomas and Alexander Jones, both close friends and both also 17 years old. 3. Shortly before the accident all four cars gathered at a retail park. A decision was made to drive to the coast. The appellant was following a car driven by Germain and two other cars were behind him. The route to took them along a B road which had a speed limit of 40mph. It had been raining that day and there were puddles on the road. The road was not well lit. The appellant overtook Germain and opened up a gap of about 100 to 120 yards. He then negotiated a shallow S-bend in the road outside The Pelican Public House. There was a dip in the road and shortly after that dip a large puddle of standing water caused by a blocked drain. The puddle was deep and covered the width of the appellant's side of the carriageway. On the expert evidence the appellant was driving at between 64 and 71 mph. When the car hit the water it began to fishtail. The appellant lost control. The car crossed over into the other carriageway and then collided with the boundary wall of a house. Mr Germain, who was also driving at speed, saw the accident and was able to bring his car to a halt in the pool of water. He and his passengers alighted to assist. The two passengers in the appellant's car had been killed immediately. The appellant himself was in a coma for five days. An expert opined that if the appellant had been travelling within the speed limit of 40 mph and had seen the area of flooding he would have been able to stop short of the boundary wall, even if he had entered the water. 4. The appellant was interviewed. He said that he had no recollection of events leading up to the accident, but did know that the road had a speed limit of 40 mph. He said as well that he had driven along it a few times and would normally take care because he knew it was poorly lit, had a number of bends and would have puddles on it when it was wet. 5. The appellant was of previous good character. Before the judge there was a pre-sentence report. That recognised the inevitability of a custodial sentence. The report writer concluded that there was a low risk of the appellant reoffending. The appellant accepted full responsibility for his actions and presented as someone who was deeply remorseful. 6. In his sentencing remarks, the judge said that the appellant had taken the lives of two close friends through his careless driving. Both had great potential. No sentence would relieve the pain their families were suffering. The judge continued that the appellant was only 18 years old and was of good character. He was a very inexperienced driver who had only passed his driving test a month before. His inexperience was a contributory factor to the offences. The judge accepted that the appellant had no recollection of the accident and that he had pleaded at the earliest opportunity after the report of the defence experts had been submitted. He was entitled to full credit for his plea, and account was taken of his genuine remorse. He was an intelligent young man who was popular with his friends. The judge also accepted that the large sheet of water should not have been permitted to remain on the road for several days. In the judge's view the aggravating factors were the grossly excessive speed, the appellant's driving given the weather conditions, and the fact that two people had died. The mitigating factors were the appellant's pleas, his genuine remorse, his age, his inexperience and the fact that he was also seriously injured. 7. The judge referred to the sentencing guidelines and said that he considered that the case fell very clearly into the most serious bracket in the guidelines, namely driving which falls only just short of dangerous driving. Indeed, said the judge, the driving was right at the cusp between careless and dangerous driving. The judge explained the sentencing range in the guidelines for that type of offence, from 36 weeks to three years with a starting point of 15 months. If there had been a trial, said the judge, had there not been the various mitigating factors, particularly the appellant's age and good character, a term in excess of three years might have been justified. As it was, had there been a trial, he considered a term of 30 months' detention in a young offender institution would have been appropriate. He then imposed the sentences we have mentioned. 8. On the appellant's behalf Mr Daniel Williams contends that the sentence was manifestly excessive. The judge must have identified a starting point of 36 months, taking account of the plea and the mitigating factors. In his submission a custodial sentence was not wrong in principle, but the starting point was too high. The speed was an aggravating feature, but an important contribution to the accident was that water backed up on the road. Mr Williams also highlighted the very significant mitigating factors. The appellant himself was seriously injured in the accident, the victims were his best friends, there was the substantial contribution which the backed up water had made to the accident and the appellant lacked driving experience. In the expert's view had he been more experienced he would have braked earlier. There was also his genuine remorse and his young age. Overall, Mr Williams contended, this was a freak accident and a reduction to 12 months would be appropriate. 9. As this court has said on previous occasions, this type of case is immensely difficult. It almost goes without saying that the consequences are especially tragic. This accident involved three young men, all close friends, all with enormous potential. The parents of Royston Thomas and the father and godmother of Alex Jones (his mother being disabled) have written to the court and given expression to their grievous loss. We express our sympathy for the pain and the devastation they have suffered as a result of losing these fine young men. 10. On the other hand, there is the impact of the accident on the appellant himself. Not only did he incur serious injury from the accident, but he must live with the consequences of his actions for his friends for the rest of his life. 11. In our view the approach of the judge to this difficult sentencing exercise was unimpeachable. He undertook the task with care and in accordance with the lawful requirements of the sentencing guidelines. He took into account all the mitigating factors Mr Williams has advanced, including the appellant's age at the time. As the judge identified, however, there were serious aggravating features. The appellant's driving, as the judge described it, was especially culpable. He was driving well over the speed limit on a wet, narrow, poorly lit and bendy road, in conditions familiar to him. The appellant's driving, as the judge rightly concluded, was at the cusp between careless and dangerous driving. There was also the fact that two people were killed as a result of that driving. 12. Taking all those matters into account, we do not regard the judge's sentence as manifestly excessive or wrong in principle. We dismiss the appeal.

2011_07_05-2783.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/1755/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/1755

2f6f363fe2ef7672d04276724be3401cbf411a69aa6c09341b08a886d0908cfb

[2006] EWCA Crim 1433

EWCA_Crim_1433

2006-06-20

supreme_court

Neutral Citation Number: [2006] EWCA Crim 1433 Case No: 2004/6486/D1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SOUTHWARK JUDGE ELWEN T2002/7329 Royal Courts of Justice Strand, London, WC2A 2LL Date: 20 th June 2006 Before : LORD JUSTICE THOMAS MR. JUSTICE WALKER and SIR RICHARD CURTIS - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - (1) Anthony Bowers (2) Lewis Nicholl (3) Martin Bowers (4) Joseph Ashman

Neutral Citation Number: [2006] EWCA Crim 1433 Case No: 2004/6486/D1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SOUTHWARK JUDGE ELWEN T2002/7329 Royal Courts of Justice Strand, London, WC2A 2LL Date: 20 th June 2006 Before : LORD JUSTICE THOMAS MR. JUSTICE WALKER and SIR RICHARD CURTIS - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - (1) Anthony Bowers (2) Lewis Nicholl (3) Martin Bowers (4) Joseph Ashman (5) Jonathan Michael Turner Appellants - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Timothy Barnes QC and Miss J Carter Manning (instructed by CPS ) for the respondent Mr Dafydd Enoch for the first and third appellants Mr T Forster for the second appellant, Mr S Hammond for the fourth appellant and Miss C Firth for the fifth appellant. Hearing date: 3 March 2006 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Thomas: 1. Between August 2002 and April 2003, the appellant Anthony Bowers was the principal of a conspiracy based on the Peacock gym and warehouse at Canning Town in the East End of London which carried out a number of sophisticated crimes of dishonesty. The co-conspirators included the other four appellants. 2. They were charged and committed to the Crown Court at Southwark; the trial date was fixed for April 2004 before HH Judge Elwen. The indictment contained 7 counts. i) Count 1 was a global count of conspiracy ii) Counts 2 and 3 charged respectively conspiracy to obtain by deception and to handle a container load of blenders and a container load of Hi-Fi equipment from Thamesport. iii) Count 4 charged conspiracy to obtain by deception two containers of Absolut Vodka from Grangemouth, Scotland iv) Counts 5 and 6 charged respectively conspiracy to obtain by deception and to handle a container of stationary tape from Felixstowe v) Count 7 charged conspiracy to obtain by deception £1.1m belonging to HSBC Bank at Gatwick Airport 3. On 20 April 2004, Anthony Bowers pleaded guilty to Counts 2, 4 and 7, the appellant Martin Bowers to Counts 3 and 7 and the appellant Ashman to Counts 2, 4 and 7. On 15 June 2004, the appellant Turner pleaded guilty to Counts 2, 4 and 5. It is not necessary to refer to the position of the other defendants who pleaded guilty. 4. There was a trial of two of the defendants. Paul Bowers was found guilty on counts 3 and 7 on 5 August 2004 and the appellant Nicholl was found guilty of counts 3, 6 and 7. 5. On 15 October 2004, the conspirators were sentenced by Judge Elwen as follows: i) Anthony Bowers: a) Count 2: Conspiracy to obtain property by deception, 3 years b) Count 4: Conspiracy to obtain property by deception, 3 years consecutive to Count 2 c) Count 7: Conspiracy to obtain property by deception, 6½ years, consecutive to count 2 This made a total of 12½ years ii) Nicholl a) Count 3: Conspiracy to handle stolen goods, 2 years b) Count 6: Conspiracy to handle stolen goods, 3 years consecutive to count 3 c) Count 7: Conspiracy to handle stolen goods, 6 years consecutive to Count 3 This made a total of 11 years iii) Martin Bowers a) Count 3: Conspiracy to handle stolen goods, 2 years b) Count 7: Conspiracy to obtain property by deception, 5 years consecutive to Count 3 This made a total of 7 years iv) Ashman a) Count 2: Conspiracy to obtain property by deception, 2½ years b) Count 4: Conspiracy to obtain property by deception, 2½ years consecutive to Count 2 c) Count 7: Conspiracy to obtain property by deception, 5 years, consecutive to count 2 This made a total of 10 years v) Turner a) Count 2: Conspiracy to obtain property by deception, 3 years b) Count 4: Conspiracy to obtain property by deception, 3 years consecutive to Count 2 c) Count 5: Conspiracy to steal, 3 years, consecutive to count 2 This made a total of 9 years vi) Paul Bowers (who does not appeal) was sentenced to 2 years on count 3 and 4 years on Count 7, a total of 6 years imprisonment. 6. The five appellants all appeal by leave of the single judge against their sentences; all the appellants contend that the sentences passed on them were manifestly excessive. 7. Anthony and Martin Bowers appeal also on the ground that the sentence passed was contrary to an indication said to have been given by the trial judge that the maximum sentence he would impose, in the event of acceptable pleas of guilty, would be 7 years imprisonment in total; leave was given by the single judge to Anthony Bowers on this ground and we granted leave to Martin Bowers. It is convenient to consider this ground first. The appeal of Martin and Anthony Bowers on the “indication” issue 8. It is contended on behalf of the Bowers appellants that the indication was given through a court official to counsel and that was done with the authority of the judge. It is common ground that any giving of an indication in this way was highly irregular and unorthodox. An application was made to us on behalf of the Bowers appellants for permission to call four barristers and two members of the court staff to give evidence to us on what happened. We granted that application at a hearing for directions and heard that evidence. 9. An application was also made to us on behalf of the appellants at the directions hearing that the judge be asked to provide a statement and that counsel for the appellants should have an opportunity to test it. We decided that we would hear the evidence of counsel and the two members of the court staff and then determine in the light of their evidence what further evidence, if any, was necessary. The proceedings 10. The proceedings were sent for trial from Bow Street on 8 May 2003; the first hearing was on 16 May 2003; further hearings took place at approximately monthly intervals. During one of those hearings the judge indicated in open court that maximum credit would be available until a late stage for any defendant who pleaded guilty. Discussions took place between the lawyers for the prosecution and the defence as to possible pleas that the defendants might make which would be acceptable to the prosecution. The conversations involving Mr Carter 11. Sometime in the early part of the proceedings, probably in December 2003, counsel for Mr Anthony Bowers, Mr David Whittaker, had asked Mr Carter, the court clerk who normally sat with Judge Elwen if the judge would see him on sentence on this matter, as he had wanted to know if any sentences would be concurrent or consecutive. 12. Mr Carter conveyed the message to the judge. Mr Carter’s evidence was that the judge had told him that, as the tariff for the most serious offence (which he, Mr Carter, understood (wrongly) to be the handling) was known, he invited counsel to do his own arithmetic; the judge would not see counsel. The judge agreed he could pass those words on to counsel. Although Mr Carter, as the clerk to the court, clearly knew there was more than one count on the indictment, he told us he did not give any thought to the sentences on the counts for the less serious offences. 13. When Mr Whittaker had been appearing at Southwark Crown Court conducting another trial before a different judge in either January or February 2004, he was told by Mr Carter that the judge would not see him in relation to sentence in the Bowers case; that the judge had said that he could work out what the maximum was and what the maximum credit would be. Mr Whittaker’s evidence was that he understood that would mean seven years, but it did not answer the question as to whether this was concurrent or consecutive. He thought that this approach by Mr Carter was highly unorthodox and irregular. 14. On Thursday 18 March 2004 junior counsel for the prosecution indicated that the prosecution might be prepared to accept a plea to count 1 as sufficient. Leading Counsel for the prosecution, Mr Timothy Barnes QC, took a different view and on 19 March 2004, informed the defendants and the court that such a plea would not be acceptable as it might unduly limit the judge’s powers in respect of confiscation and his sentencing powers as he would not be able to deal with the defendants on multiple counts with the possibility of consecutive sentences. 15. One of the defendants in consequence made an application to the court that the prosecution’s action was an abuse of process and it should not be entitled to proceed on the full indictment; this was subsequently dismissed by the judge The conversations between Mr Turner and Miss Cohen 16. Between Friday 19 March and Wednesday 24 March 2004, probably on Tuesday 23 March 2004, the second junior counsel for Anthony and Martin Bowers, Miss Samantha Cohen, had a conversation with the listing officer of the Southwark Crown Court at the court, Mr Nick Turner to see whether there needed to be a further hearing before the judge about access by the appellants in Bellmarsh prison to video and other equipment for use in preparing the case. Mr Turner had been engaged in listing since 1995 and had been the listing officer at Southwark since October 2003. 17. It was Miss Cohen’s evidence: i) Whilst discussing that issue, she was asked by Mr Turner if there was going to be a trial. She replied that she was not sure, as the defendants would want to know what sentence they were likely to get. Mr Turner then told her that the judge had said it would be 7 for those most involved and less for the others. ii) Mr Turner had used the expression that “this was not attributable to the judge”. She understood from this that, although the indication was from the judge, it was not one that would be repeated in formal circumstances by the judge. It had not come from Mr Turner personally, because he would have had no idea of the sentence in a case like the present. iii) She knew that the maximum sentence for conspiracy to obtain by deception was 10 years and 7 years would be the sentence after full credit; however she wanted to know if it was 7 years on everything or 7 years for count 7, the charge in respect of Gatwick which all regarded (rightly) as the most serious offence. She therefore asked Mr Turner if it was 7 for Gatwick or 7 for everything. Mr Turner had replied that he did not know and would need to find out from the judge. She left the listing office. iv) Shortly after on the same day, she had returned to the listing office. Mr Tuner had told her that the judge had said that it was 7 on everything. She understood that this came from the judge and that the judge intended it to be conveyed to the defendants so they would know what they would get if they pleaded guilty. 18. Mr Turner’s evidence was: i) He had on occasions prior to this been asked by judges at Southwark Crown Court to pass on sentencing indications to counsel; he could not recall the number of such occasions, but it was more than 10. ii) In relation to the present case, he had been approached by some of the defence counsel to ascertain what the views of the judge would be to a plea of guilty. iii) He had seen Judge Elwen and told him this. The Judge had told him that in the event of a plea of guilty he would be minded to give full credit for a plea of guilty and to discount the sentence he would otherwise have passed. He indicated a sentence of 7 years. He asked the judge whether he could pass that information to counsel. The Judge had authorised him to do so. He would not have passed that information without the express authorisation of the judge. He could not recall whether the judge had indicated that the defendants would receive no more than 7 years regardless of the number of counts to which they pleaded or whether it was 7 years on each count. He did, however, see the judge on a number of occasions about the issue of plea and sentence. iv) The judge never told him he would not see counsel. v) Mr Carter was present on some of the occasions when sentence was discussed with the judge, but he could not recall the specific occasions; Mr Carter accepted that he was present at occasions when conversations took place between Mr Turner and the judge on sentence, but he stood to one side to allow them to have the conversation and did not listen. The communication of the conversations to the other counsel 19. After the conversation, Miss Cohen telephoned Mr David Whittaker and also Mr David Burgess, the more senior junior counsel who was appearing with her for Martin Bowers, as well as their solicitor, Mr Peter Hughman. Miss Cohen had not raised the matter with the prosecution or the judge, because the judge had initiated an unorthodox communication and it was not for her to say to the judge that he was acting wrongly and he should do it properly. 20. It was Mr Whittaker’s evidence that: i) He was appearing in Chelmsford Crown Court when he was telephoned by Miss Cohen and told of what Mr Turner had told her. He had never come across this situation before or since. ii) He knew at once what had happened was highly irregular and unorthodox. He wished he had not been made a party to it. iii) He considered whether the indication had come from the judge or whether Mr Turner had been on a frolic of his own. He concluded that Mr Turner was not on a frolic of his own, both because it would be professional suicide for him to have acted without the authority of the judge and because Mr Turner would not know the sentence would be 7 years. Furthermore, if the indication had not come from the judge it would have been an elaborate deception on the part of Mr Turner to have said he would enquire of the judge if it was for one count or for all counts and then to have given an answer. Moreover, the sentence was not out of line if concurrent sentences were to be given. He had also understood that the judge wanted the case to plead as the judge had made it clear that maximum credit would be given and he had heard the judge was going on holiday the day the case was going to start. He also thought that the judge was unhappy with the prosecution because they had not stuck to their agreement to accept the plea on count 1. He was also influenced by the conversation with Mr Peter Rowlands, counsel for another defendant, referred to at paragraph ii) below. iv) His first instinct was to speak to the judge and ask him if this communication, which was unorthodox and wrong, had come from him. He decided, after seeking advice from more senior colleagues, not to see the judge as there would be no point; the judge would not see him and would not confirm the indication. This was because he had been told by Miss Cohen that the judge would not confirm what Mr Turner had told her and because of the earlier conversation with the clerk to which we have referred at paragraph 13. He thought the indication was consistent with that and, from what he had been told by Mr Carter, he thought that the judge would not see him. He also thought that it was highly unlikely that the judge would say in open court what had passed through the court staff. He considered his duty to his client paramount. v) He considered whether he should see the prosecution; he thought that Mr Barnes QC would tell him to go and see the judge. He decided not to, as he had already rejected the course of going to see the judge. He accepted in cross-examination that, in hindsight, he should have told Mr Barnes. vi) He considered whether he should remain silent or tell his client; he concluded it was his duty to tell his client who was concerned at the length of the sentence and the confiscation orders that might be made. 21. The evidence of Mr David Burgess, counsel for Martin Bowers, was that he had no doubt that the source of the indication was the judge, but he did not seek to get confirmation from the judge, as he tended to fall in with Mr David Whittaker’s thinking. He did not think about raising the matter with the prosecution. 22. Mr Peter Rowlands, counsel for the appellant Jonathan Turner, was also engaged in discussions with the prosecution. His evidence was: i) His overall position was that if the prosecution accepted pleas to counts other than counts 1 and 7, then his client, the appellant Turner, would plead guilty come what may; he did not want a sentence indication. ii) In the course of a discussion with Mr Nick Turner as to whether there would be a trial, Mr Nick Turner gave him an indication, which Mr Rowlands understood to have come from the judge, that no matter what pleas were tendered to which part of the indictment, the maximum sentence would be 7 years. He told his client of this. iii) He was also told by Mr Whittaker that he had received an indirect communication from Judge Elwen that any defendant who pleaded guilty would get a maximum of 7 years; he understood this to mean 7 years was the maximum irrespective of the number of pleas which a defendant tendered. He told Mr Whittaker of his conversation with Mr Nick Turner. The appellant Turner does not rely on any indication as a ground of his appeal. The conference on 24 March 2004 23. Miss Cohen arranged for the case to be listed for a mention on 24 March 2004 with the express purpose that Anthony and Martin Bowers would be brought to the cells at Southwark not for an appearance at court, but for a conference with counsel and solicitor in the cells of the court, instead of counsel and solicitors having to go to Bellmarsh prison. A note of the conference in the cells on 24 March 2004, attended by counsel and the solicitor for Anthony and Martin Bowers was taken by Miss Cohen. There was a discussion of the issues; these two appellants were told that the judge had “informally let it be known that [guilty] pleas will get seven years for everything. Although could not go [to the Court of Appeal] with it, he would find it difficult to renege on that.” Mr Whittaker’s evidence was that he told the Bowers appellants that he had thought that the indication had come from the judge, but he could not recall whether he had advised them of his view that the judge would not confirm it in open court. He believed he told them that it was irregular and unorthodox, that he had no reason to suppose that the judge would not honour the sentence indication, but that it would be difficult to pursue the matter on appeal. The pleas of guilty on 20 April 2004 24. On 19 April 2004, there was a further conference with Anthony and Martin Bowers. Miss Cohen’s note of that conference recorded that if the appellants pleaded guilty to Count 7 (Gatwick) and sufficient other counts (probably counts 2, 3 and 4), the judge had commented on the maximum sentence of 7 years and there was the additional benefit of the way in which confiscation proceedings would be dealt with. 25. On 20 April 2004, both these appellants entered the guilty pleas we have set out. 26. It was common ground that: i) no one acting on behalf of the appellants told those acting for the prosecution of what Mr Turner and Mr Carter had said. ii) No defence counsel had seen the judge in his chambers about sentence. iii) No one raised the issue of sentence in open court. The hearings in October 2004 27. The appellants were not sentenced until October 2004 because there was a trial of the defendants who had pleaded not guilty. 28. On 14 and 15 October 2004 the sentencing hearing took place. Nothing was said about what Mr Tuner and Mr Carter had communicated. The judge made clear before passing the sentences to which we have referred that: i) The pleas entered on 20 April 2004 were to be treated as having been entered at the earliest realistic opportunity; these had resulted in the radical shortening of the trial and great savings to the public purse ii) He had therefore given appropriate discounts for those pleas, tempered by the fact that there was irrefutable evidence on each count to which the appellants had pleaded. iii) It was not appropriate to treat these offences as part and parcel or arising from the same facts and that therefore concurrent sentences would not be appropriate; these were separate and discrete criminal ventures and justified consecutive sentences, 29. On 29 October 2004, there was a further hearing at the request of Mr Whittaker. He told the judge that prior to the pleas being tendered on 20 April 2004, they had at their disposal indications on the length of sentence that they had understood had emanated from the judge and had been provided by Mr Turner and Mr Carter. Miss Cohen had been told by Mr Turner that the appellants Bowers who were principals in the case would receive 7 years if they pleaded guilty; that Miss Cohen had sought clarification as to whether this was for a single offence or related to the indictment as a whole; that he could not answer that question immediately and he returned and informed her that it was for the indictment; she had understood that this came from the judge. Mr Whittaker had been given the indication through Mr Carter. He submitted to the judge that the Bowers appellants had a legitimate expectation that the sentence of 7 years was what they would receive if they pleaded guilty. Mr Burgess made a submission to like effect. Letters had been written to Mr Tuner and Mr Carter to which there had been no response. The judge was invited to vary the sentence or hear evidence. 30. Mr Barnes QC made clear to the court that no one had told him or anyone on behalf of the prosecution of these matters before that day. It is common ground that this was in fact the case 31. The judge stated he had read letters written to Mr Carter and Mr Turner setting out what he had been told: “My recollection is quite clear; on a day which I cannot precisely pin-point, but which was before pleas to any particular counts had been indicated, my clerk said to me that counsel wanted to know if I would give an indication. I told him, in no uncertain terms, I did not give indications and that I would not, adding that counsel were experienced and quite capable of working things out for themselves. I understand that this is what my clerk told them. At no time did I authorise Mr Turner to approach counsel and convey any of the information he is said to have imparted. That is my position and I do not propose to accept the invitation put forward by the defence if they want to do anything about it.” 32. When grounds of appeal were initially settled for the appellant Anthony Bowers, no point was taken by Mr Whittaker in relation to the conversations between Ms Cohen and Mr Turner. The position of the judge 33. The evidence we heard established that: i) Miss Cohen was told by Mr Nick Turner that the judge had said it would be 7 for those most involved and less for the others; he made clear to her that this was from the judge, but was not attributable. ii) In response to her enquiry, Mr Turner subsequently told her that the judge had said that it was 7 on everything. iii) Ms Cohen passed this on to the other counsel. 34. Mr Turner’s evidence was unequivocal in that he had said what he had said only because he was authorised by the judge. In Warren v Warren [1997] QB 488 , it was held that, although a judge was competent to give evidence, judges could not be compelled to give evidence in relation to their conduct or matters of which they became aware when performing their judicial functions. 35. We decided in the light of the evidence of Mr Turner to invite the judge to comment on the evidence given by him and by Mr Carter; we directed that transcripts of the evidence be sent to him for him to determine whether he wished to make any comment. 36. The judge responded in writing: “I cannot account for what Mr Turner may have said without my authority. It is worthy of note that no complaint was made by learned counsel, on 15 October 2004, that I had reneged on an indication and passed a sentence significantly different from what they maintain they had been led to believe. I would, respectfully, add that it is not my habit to give indications as to sentence, except formally and with the participation of prosecuting counsel. It was never my intention, in this case, to indicate to anyone that I had in mind a total sentence, embracing the whole of the indictment, and certainly not for such a thing to be communicated informally to defence counsel alone. However, reflecting carefully on what I can recall having taken place almost two years ago, I cannot now say, with absolute certainty, that I did not say to Mr Turner something which he may have misconstrued, although I am unable to think what it might have been” 37. We received written observations from counsel on this statement. We were also required by the members of the bar who gave evidence before us for an opportunity of seeing any observations made about them in the course of this judgment. We acceded to their request and provided them with a copy of the drafts of paragraph 23 to 46 of the judgment. They informed us they had no observations. Our conclusion 38. There are two clear principles that should have governed what happened: i) First, justice must, save in exceptional circumstances, be done in public; see, for example, Rose LJ in Dossetter [1999] 2 Cr App (S) 248 at 253 and the Attorney General’s Guidelines on the Acceptance of Pleas issued on 7 December 2000 where it is stated that “justice in this jurisdiction, save in the most exceptional circumstances, is conducted in public”. An application of that first principle is the clear rule that issues relating to pleas and to sentence should be dealt with in open court, save in exceptional circumstances. Two citations will suffice; in Harper-Taylor and Bakker (1988) NLJ 80, Mustill LJ stated (in a passage cited in Terrence Carl Smith (1989) 90 Cr App R 413 and in Pitman [1991] 1 All ER 468 ) in relation to the practice of seeing the judge in his private room: “ A first principle of criminal law is that justice is done in public, for all to see and hear. By this standard a meeting in the judge's room is anomalous: the essence, and indeed the purpose, being that neither the defendant nor the jury nor the public are there to hear what is going on. Undeniably, there are circumstances where the public must be excluded. Equally, the jury cannot always be kept in court throughout. The withdrawal of the proceedings into private, without even the defendant being there, is another matter. It is true, as this Court stated in Turner (1970) 54 Cr App R 352 at 360, that there must be freedom of access between counsel and the judge when there are matters calling for communications or discussions of such a nature that counsel cannot in the interest of his client mention them in open court. Criminal trials are so various that a list of situations where an approach to the judge is permissible would only mislead; but it must be clear that communications should never take place unless there is no alternative. Apart from the question of principle, seeing the judge in private creates risks of more than one kind, as the present case has shown. The need to solve an immediate practical problem may combine with the more relaxed atmosphere of the private room to blur the formal outlines of the trial. Again, if the object of withdrawing the case from open court is to maintain a degree of confidence, as it plainly must be, there is room for misunderstanding about how far the confidence is to extend; and, in particular, there is a risk that counsel and solicitors for the other parties may hear something said to the judge which they would rather not hear, putting them into a state of conflict between their duties to their clients, and their obligation to maintain the confidentiality of the private room. The absence of the defendant is also a potential source of trouble. He has to learn what the judge has said at second hand, and may afterwards complain (rightly or no) that he was not given an accurate account. Equally, he cannot hear what his counsel has said to the judge, and hence cannot intervene to correct a misstatement or an excess of authority: a factor which may not only be a source of unfairness to the defendant, but which may also deprive the prosecution of the opportunity to contend that admissions made in open court in the presence of the client and not repudiated by him may be taken to have been made with his authority. " In Warth (1991) 12 Cr App (S) 680, Lord Lane made clear “First, once again, no visits to the judge except in the most exceptional circumstances; certainly not to discuss any question of plea. Secondly, if there must be such a visit and if the judge is thought to have made some sort of promise or indication about punishment, counsel should make a note of it then and there and ask the judge to approve the note and initial the note before counsel goes to see his client and makes any mention or suggestion of a promise by the learned judge. It is only in that way that counsel can protect himself and make sure that he understands plainly what it is the judge has said, and make sure that his recollection will not be at fault when he goes to his client. He will then both protect himself and his client from any misunderstandings, misapprehensions or indeed from wishful thinking.” Numerous other cases make this clear: see Grice (1978) 66 Crim App R 167, Atkinson (1978) 67 Cr App 200, Ryan (1978) 67 Cr App 177; Keily [1990] Crim LR 204 and A-G’s Reference 44 of 2000 [2001] 1 Cr App R 27 and the cases cited below. It is no part of our system of justice for anyone whether they be judge, court officer, prosecutor or defence lawyer to seek “to do deals” in private; transparency and openness are the hallmarks of our system of justice and to the maintenance of public confidence in that system. ii) Second, any communication by a party to the court or by the court to a party must be communicated to the other parties. Save in those circumstances where the making of without notice applications is permitted, this rule is again fundamental to the openness and transparency of our system of justice. 39. These two principles were applied in the well known propositions set out in Turner [1970] 2 QB 321 , (1970) 54 Cr App R 352 (reference to the facts of which we make at paragraph 40) and in paragraphs 45.3 and 45.4 of the Consolidated Practice in force in 2004: “There must be freedom of access between advocate and judge. Any discussion must, however, be between the judge and the advocates on both sides. If counsel is instructed by a solicitor who is in court, he too should be allowed to attend the discussion. This freedom of access is important because there may be matters calling for communication or discussion of such a nature that the advocate cannot, in his client's interest, mention them in open court, e.g. the advocate, by way of mitigation, may wish to tell the judge that the accused has not got long to live because he is suffering maybe from cancer of which he is and should remain ignorant. Again, the advocates on both sides may wish to discuss with the judge whether it would be proper, in a particular case, for the prosecution to accept a plea to a lesser offence. It is imperative that, so far as possible, justice must be administered in open court. Advocates should therefore, only ask to see the judge when it is felt to be really necessary. The judge must be careful only to treat such communications as private where, in fairness to the accused, this is necessary. .. Where any such discussion on sentence has taken place, the advocate for the defence should disclose it to the accused, and subject to the exception of those matters of which he should remain ignorant, such as cancer of which he is unaware, inform him of what took place.” 40. There is no appeal against conviction; it is not contended that the breach of these fundamental principles in the circumstances of this case are such that the court should set the plea or conviction aside: cf Llewellyn (1978) 67 Cr App Rep 149, Grice (1977) 66 Cr App R 167 , R v James [1990] Crim L R 815 and Pitman (above). In Turner, counsel had seen the judge in his room and then told the defendant that it was his own personal view that if he was convicted he would go to prison, but if he pleaded guilty he would get a non custodial sentence. The way in which this was done conveyed to the defendant’s solicitor the impression that this had come from the judge and the court accepted that the defendant might well have thought that it came from the judge. The court clerk then came and gave counsel the impression that the message he was authorised to give was that if there was a plea at that stage the court would pass a non custodial sentence. The court concluded that in all the circumstances there had not been a free choice as to whether he should plead, given the fact that the defendant thought that the intimation emanated from the judge. 41. The appeal in the present case is, in contradistinction, one against the sentence imposed. It was contended that the judge should not have passed a greater sentence than that purported to have been indicated through Mr Nick Turner, as the two appellants would retain a legitimate sense of grievance. Although it was accepted by counsel who argued the appeal on behalf of the appellants that what these appellants contended had happened was highly unorthodox and irregular, that did not affect the position of the appellants; that was because the judge had authorised the communication and counsel owed a duty to their client to pass on what they had been told. There was no point in their counsel raising the issue with the judge as the judge had made it clear through Mr Nick Turner that the indication was informal and would be denied if raised openly. 42. It is, in the light of the judge’s statement set out at paragraph 36, possible that there may have been some sort of misunderstanding between the judge and Mr Nick Turner. We set out at paragraph 49 our reasons for concluding that we do not need to resolve whether there had been such a misunderstanding. At this point we observe that, given the necessity of adherence to the two principles which we have set out, it is essential that judges take care to avoid saying anything which could give rise to any possible misunderstanding in relation to sentencing. 43. What then happened, in consequence, in this case went far beyond anything that is set out in the cases or could even have been contemplated in those cases. As relayed in the evidence to us, this was a case where it was believed by those concerned that: i) The indication was one which, although apparently coming from the judge, would be denied if a request was made to mention it in open court; ii) If there was communication to the prosecution, the indication would be brought into the open and denied. Two fundamental principles of the way justice is administered in this country were being negated by any participation in such a process. In essence what was being done on this basis could only be viewed as a device – passing secretly to defendants a message to achieve a result which would be denied if raised openly. It was therefore entirely right for counsel who gave evidence to accept that what they believed had happened in this case was highly unorthodox and irregular. 44. It is clear from the two principles which we have set out (and a review of the cases to which we refer in this judgment) that what should have happened was that: i) What had been communicated by Mr Turner and Mr Carter should have been brought to the attention of counsel for the prosecution. ii) The issue should immediately have been raised with the judge in open court, so the position could be brought into the open and made public and transparent. 45. This did not happen. Counsel for the Bowers appellants decided, in accordance with their duty to their clients, to tell their clients what they believed had happened, without the steps set out in paragraph 44 being taken. This was without doubt an error on their part, but one we are sure was made by them in good faith. However, when they told these appellants what had transpired, we are sure they did so in terms where they made clear to the appellants that the indication was made in an unorthodox and irregular way, that the judge was unlikely to renege on his indication but that it would be difficult to appeal if he did. 46. The court was not asked if the appellants could give evidence; in Nazham and Nazham [2004] EWCA Crim 491 , this court decided it could receive the testimony of appellants where it was contended by the prosecution that the change of plea following an irregularity had not been brought about by that irregularity. Given our findings as to what counsel told these appellants, the ordinary inference to draw in the absence of evidence from the appellants is that they understood what counsel was telling them 47. In these circumstances, these appellants can have had no legitimate expectation that this irregular and unorthodox method of conveying an indication was one they could rely on, even though we accept that they were told that it came in this irregular and unorthodox way from the judge. They were told by counsel what the risks were and decided to take them. We do not consider therefore that the appellants can have a legitimate sense of grievance in these circumstances. This was not a case such as Terrence Carl Smith where the defendant was misled by counsel into believing that the judge had given an undertaking. 48. Nor do we think that a right thinking member of the public would consider that justice required that this court substitute for the sentence passed the sentence mentioned to counsel by Mr Nick Turner. The position is, for example, quite different from Bird (1977) 67 Cr App R 203 . The judge in that case had given an indication of sentence before the trial and during it; during the trial, the judge had sent for both counsel and asked defence counsel if the defence wished to fight on. On being told, the defendant did not, he indicated that he would pass a suspended sentence if the defendant pleaded guilty at that stage, but there would be a sentence of immediate imprisonment if he did not. Counsel, after consulting the authorities, subsequently enquired if this was confidential as he had not passed this to his client. He was told by the judge that it was, the trial continued and the defendant found guilty. The court observed: “ [counsel in the case] quite rightly considered that what transpired in the judge's chambers, or part of it at least, ought to be said in open court in the interests of his client. Counsel has a high duty to the court but it does not override his concurrent duty to his client. It would have been wrong in our view if [counsel in the case] had not sought to make not only plain, but public what ought not to have been said at all in the privacy of the judge's chambers.” In the course of his mitigation, counsel disclosed what had happened in the judge’s chambers and made the point that, if the court had thought that a suspended sentence was the appropriate sentence for a plea of guilty, the court should not pass a more severe sentence because the defendant had exercised his right to put the prosecution to proof. The judge nonetheless passed an immediate sentence of imprisonment, telling the defendant that he had lied in the witness box, but he did not punish him for that. This court concluded: “ It has long been one of the essential requirements of our system of justice that it should not only be done but those that see what is done should respect what is done and understand that it is done as a matter of justice and for no other reason. Anyone who knew what had gone on in the course of this trial must have realised that the principle had not been borne in mind. It had certainly not been applied, and so it comes about that whereas an immediate sentence of imprisonment for 21 months would have been a perfectly proper one, the manner of its imposition was, it seems to this Court, improper. The circumstances which led up to its being passed were so irregular that it cannot be supported. To redress the situation thus created, rather than in the interests of the defendant who has no real claim to clemency, we feel obliged, in order to preserve the good face of justice, to quash the sentence of 21 months' imprisonment and to substitute a suspended sentence.” 49. Given that the appellants can have had no legitimate expectation that the irregular sentence indication would be treated as binding, we find nothing in the present case to indicate that the sentence passed should be reduced in order to preserve the good face of justice, to use the phrase in Bird . We reach that view by examining the position as made known to the appellants, this being our conclusion even if what was made known to them - as to the indication having come indirectly from the judge - was true. This ground of appeal therefore fails without any need to determine what in fact was said by the judge either to Mr Carter or to Mr Turner. We have considered whether we should invite the judge to give oral evidence to us in that regard, though it would of course be for him to determine whether or not to give evidence on the authority to which we have referred at paragraph 34. As such evidence would not affect our conclusion on this aspect of the appeal, we do not think it would serve any useful purpose to do so. We therefore have not asked the judge to agree to give oral evidence; nothing in this judgment should therefore be taken to indicate that we have formed any view one way or the other as to what he actually said, or as to whether there is or is not any substance in potential criticisms which might be made of him, Mr Carter or Mr Turner. 50. We hope that what happened in this case will never happen again. The procedure for obtaining a sentence indication has now clearly been set out by this Court in Goodyear [2005] EWCA Crim 888 and provided the guidance given is followed and the proceedings conducted openly and transparently (as this court made clear in Wedlock-Ward [2005] EWCA Crim 3367 they should), a situation such as this should never occur again. The appeal on the other grounds 51. The conspiracy alleged by the prosecution was, as we have set out, based on the Peacock gym and warehouse; the gym was run as a legitimate business by the three Bowers brothers, but they used the office to plan the offences and the warehouse to store the stolen property. It was the prosecution case that Anthony Bowers was the principal and his lieutenants were Ashman and Bowers. There were extensive audio and video recordings of the premises. 52. The circumstances of the offences charged on the indictment can be briefly summarised: i) Counts 2 and 3 involved the dishonest acquisition of a container of food blenders and a container of hi fi systems to a retail value of over £80,000. These had been obtained on 22 November 2002 by two of the defendants who had arrived at the depot at Thamesport with documentation and vehicles with false registration numbers but which corresponded to those which the genuine haulier was intending to use. The goods were taken to a storage facility booked by the appellant Turner and then transferred to the Peacock warehouse. There was evidence that also linked Ashman, Martin Bowers and Nicholl to this. ii) Count 4 involved the dishonest acquisition of two container loads of Absolut Vodka which had a retail value of over £639,000. These were driven away from Grangemouth on 18 January 2003 by the same two defendants as had been involved in the Thamesport offence. There was evidence which linked Ashman, Turner and Anthony Bowers to this. iii) Counts 5 and 6 involved the dishonest acquisition of a container of stationary tape which had a value of £23,000 on 11 February 2003. The container was driven away from premises at Felixstowe which had been left unsecured. The same storage facility was used as that in Count 2. There was evidence to link Turner and Nicholl to this. iv) Count 7, as we have stated, related to the dishonest acquisition of £1.1m in cash from Brinks Matt at Gatwick Airport on 26 March 2003. This involved an elaborate deception in converting a van into an imitation Brinks Mat van and acquiring false documents and inside information. The cash was handed over, but those involved in the acquisition were arrested as they left the airport. There was evidence to link Ashman, Martin and Anthony Bowers and Nicholl to this. 53. The circumstances of each of the appellants was: i) Anthony Bowers: He was 47 years of age; he had several convictions for offences of dishonesty; for the most serious of these he received a sentence of 7 years for robbery, burglary and theft in 1980. His last conviction was for an offence of assault occasioning actual bodily harm in 1986 He had benefited the local community through the work of the gym; numerous testimonials referred to the work he had done in this respect. ii) Nicholl: He was 57; he had several previous convictions in relation to dishonesty and drugs; the most serious was a sentence of 10 years in 1980 for the importation and supply of drugs. iii) Martin Bowers: He was 54. He had no previous convictions and had played a significant role in establishing the gym as a centre of excellence; again numerous testimonials referred to his work at the gym, his promotion of boxing and in organising summer camps and helping youths in many respects, including young offenders and those on probation. iv) Ashman: He was 37. He had several convictions for offences of dishonesty; the most serious and most recent was in 1991 when he was sentenced to a total of 5 years imprisonment for burglary of commercial premises. v) Turner: He was 44. He had numerous previous convictions, principally for offences of dishonesty, the last of which was in 1990. He had served in 2000 a sentence of 9 months imprisonment for possession of cannabis resin with intent to supply. He had, however, done much for youth football and usefully spent his time on remand. 54. All the appellants, except Nicholl, had the mitigation of guilty pleas for which the judge gave them full credit. 55. We have carefully considered the submissions made in respect of each of the appellants. In essence, it was submitted that the sentences were far too long for the type of crimes committed and the sentences should not have been consecutive; the judge had failed to have proper regard to the principle of totality. It was stressed that no violence was involved and that these were cases to be distinguished from cases such as Turner (1974) 60 Cr App R 67 . We were also referred to R v Beston and others (2004) 2 Cr App (S) 52, R v Luttrell [2004] EWCA Crim 1344 , Sutcliffe (1995) 16 Cr App R (s) 69, Webbe [2001] EWCA Crim 1217 and A-G’s Reference70 of 1999 [2002] 2 Cr App Rep (S) 28. 56. In our judgment, each of the sentences reflected the criminality involved. These were professional criminals operating on a large scale over a period of time; these were not one off offences (such as that considered in Betson) , but serious and meticulously planned criminality involving the corruption of employees of those who either held or transported the goods to provide inside information. No arms were used nor was violence, but each of the offences called for a significant sentence which it was right to make consecutive to one another. i) Anthony Bowers: He was the principal behind the offences and had encouraged others to participate. His sentence for the Gatwick offence reflected the gravity of that offence and the consecutive sentences for the other two offences their lesser nature and the principle of totality. ii) Nicholl had been found guilty by the jury; the judge concluded, as he was entitled, having heard the evidence, that he played a significant role in the offences, though he had not been at the heart of the planning. He was right to do so; we therefore reject the submission made on his behalf that his role was a lesser one or that there was any disparity of his sentence with that of Paul Bowers. The most significant sentence reflected his role in the Gatwick offence, being the most serious. iii) Martin Bowers was an able and active lieutenant to his brother; the judge gave him full credit for the service he had given to the community and for his previous good character; but he had become involved in serious criminality and the sentences passed properly reflected that. iv) Ashman did not participate in the original planning of the offences, but he had acted as an able lieutenant playing a significant role in the conversion of the van for the Gatwick offence. v) Turner, though not a lieutenant, had played a significant role in the offences to which he had pleaded guilty; his sentence reflected that role and the fact that he was not involved in the most serious of the offences. 57. Each of the sentences was severe and towards the upper end of the range of sentences, but none was in our judgment manifestly excessive. The appeal on this ground also fails.

2006_06_20-844.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/1433/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/1433

19894f09e4bffd0d2400305b61fe93fa699200b424ef63a25d24430e5d1f4959

[2006] EWCA Crim 2000

EWCA_Crim_2000

2006-07-31

crown_court

No: 200407224/B5-200407226/B5-200407225/B5 Neutral Citation Number: [2006] EWCA Crim 2000 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Monday, 31st July 2006 B E F O R E: LORD JUSTICE MAURICE KAY MR JUSTICE OPENSHAW SIR CHARLES MANTELL - - - - - - - - R E G I N A -v- MICHAEL STEELE PETER THOMAS CORRY JACK ARTHUR WHOMES HOUSE OF LORDS PRONOUNCEMENT - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Stre

No: 200407224/B5-200407226/B5-200407225/B5 Neutral Citation Number: [2006] EWCA Crim 2000 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Monday, 31st July 2006 B E F O R E: LORD JUSTICE MAURICE KAY MR JUSTICE OPENSHAW SIR CHARLES MANTELL - - - - - - - - R E G I N A -v- MICHAEL STEELE PETER THOMAS CORRY JACK ARTHUR WHOMES HOUSE OF LORDS PRONOUNCEMENT - - - - - - - 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 BENLAMKADEM appeared on behalf of the APPELLANT CORRY MR R KEOGH appeared on behalf of the APPELLANT WHOMES MR J ASHLEY-NORMAN appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. LORD JUSTICE MAURICE KAY: Since this matter was listed some 2 months ago, this has proved to be the first occasion upon which the three members of the Court have been in London at the same time. But before turning to the disposal of the application under section 33(2) of the Criminal Appeal Act 1968 , we shall address a point which has been raised in written submissions by Steele and also by Mr Blaxland QC. They contend that, because Openshaw J was not present on the day when judgment was handed down, 22nd February 2006, the appeal was not legally determined on that date. As a result, they seek to make further submissions on the merits of the appeal to this Court. Their contention is based on section 55 of the Supreme Court Act 1981, the material parts of which provide as follows: "(2)... a court shall be duly constituted for the purposes of exercising any of its jurisdiction if it consists of any uneven number of judges not less than three... (4)...a court shall, if it consists of two judges, be duly constituted for every purpose except- (a) determining an appeal against (i) conviction..." 2. Thus, it is submitted, this remains an undetermined appeal. Reference is made to the case of R v Coates & Ors [2004] EWCA Crim 2253 , which dealt with the position which arose when the presiding Lord Justice had died after the hearing but before the reserved judgment was produced. 3. We reject the submission based on section 55. It is the common practice of this Court, however constituted, to hand down judgments which have previously been released to counsel without all members of the constitution necessarily being present. The usual reason and the one which arose in the present case is that, by the time the judgment is ready to be handed down, a member of the Court is no longer in London but is sitting somewhere on circuit. In such circumstances it would only be possible for the three judges to reassemble for the hand-down if the judge on circuit were to leave his duties there for a day, thereby disrupting a current trial, or if a potentially lengthy delay in handing down the judgment were to be tolerated. It is the view of this Court, and (we apprehend) all constitutions of it, that it is in the public interest to hand down the judgment as soon as possible without disrupting a trial in another part of the country. In the present case Openshaw J was presiding over a trial in Liverpool on 22nd February. We reject the submission that the Court is not properly constituted on an occasion such as pertained on the handing down of the judgment in the present case. No judgment is released to counsel unless and until it has been approved by all members of the Court. That occurred in the present case. The appeal was not "determined" by the Court on 22nd February. What happened on that day was simply the formal promulgation of the judgment. As Judge LJ observed in Coates (paragraph 32): "An appeal is 'determined' for the purposes of section 55 when the decision is properly to be treated as binding on the judges themselves." That point was reached when all three indicated their approval of the draft and authorised its release to counsel. Accordingly, this Court has no jurisdiction to receive further submissions on the merits of the case at this stage. 4. Steele seeks to raise a further point in the form of complaint that we are unwilling to receive oral submissions about the application under section 33(2) . He says (correctly) that if Openshaw J had been present on 22nd February, it would have been appropriate for oral submissions to have been made by counsel at that time. However, such oral submissions were not and could not be made at that time, partly because of the absence of Openshaw J but also because Baroness Kennedy QC, with the apparent support of other counsel, asked for time before submitting an application in writing. Her request was granted and indeed there was a further extension of time. We should add that on 22nd February there was, in any event, only a very short amount of court time available for this case. 5. As a matter of law, it is open to this Court to deal with an application for leave to appeal to the House of Lords on the papers: see R v Daines and Williams 45 Cr App R 57 . Whilst applications are often made orally at the conclusion of a hearing and are dealt with on that basis, that is not always so. We have considered whether any appellant can have a justified sense of grievance by our not inviting oral submissions in the present case. We are in no doubt that any such sense of grievance would not be justified. What has happened is that the appellants have been able to make lengthy written submissions - far more lengthy than would have been possible in the time that would have been allowed for oral submissions - and they have supplemented them with further written submissions. In Steele's case, the original submissions were made in writing by his counsel but he then dispensed with the services of counsel and has added his own submissions in writing, partly adopting what counsel had advanced but adding to that material at some length. We are entirely satisfied that no injustice has arisen from the exclusion of oral submissions. We are also satisfied that our view does not contravene Article 6 of ECHR. Quite apart from the lack of unfairness (as we find), we are no longer at the stage of a "trial". Finally, we turn to the application under section 33 . As we have previously communicated in writing, we decline to grant a certificate that a point of law of general public importance is involved. We discern no such point. The matters raised are essentially specific to the facts and circumstances of this particular appeal. We consider the application to be a thinly disguised attempt to reargue the case. The application is therefore refused.

2006_07_31-899.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/2000/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/2000

4d7aa49bc10a3bda664a7118638c6f61c1abaac2e1b3b5d0946a44f187678c0f

[2019] EWCA Crim 565

EWCA_Crim_565

2019-04-03

crown_court

Neutral Citation Number: [2019] EWCA Crim 565 Case No: 201801802 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SNARESBROOK HIS HONOUR JUDGE HAMMERTON Royal Courts of Justice Strand, London, WC2A 2LL Date: 03/04/2019 Before : LORD JUSTICE DAVIS MR JUSTICE WARBY and HIS HONOUR JUDGE POTTER (SITTING AS A JUDGE OF THE CACD) - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - and – SB Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2019] EWCA Crim 565 Case No: 201801802 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SNARESBROOK HIS HONOUR JUDGE HAMMERTON Royal Courts of Justice Strand, London, WC2A 2LL Date: 03/04/2019 Before : LORD JUSTICE DAVIS MR JUSTICE WARBY and HIS HONOUR JUDGE POTTER (SITTING AS A JUDGE OF THE CACD) - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - and – SB Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - A Dunn for the Appellant J Sugarman QC for the Respondent Hearing date : 15 March 2019 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Lord Justice Davis : Introduction 1. The appeal against conviction in this case has been based on fresh evidence. In particular, the appellant has relied on a written statement from the complainant (made after conviction and sentence) retracting as false all her previous complaints of sexual abuse which had resulted in the conviction of the appellant at trial. It has been argued on behalf of the appellant that in such circumstances the conviction of the appellant on the four counts on the indictment cannot be regarded as safe. 2. At the hearing, this court received and had regard to such statement (and certain other statements sought to be adduced), initially de bene esse. We also received oral evidence from various witnesses. 3. At the conclusion of the hearing, this court announced its decision that, whilst leave to adduce such evidence under s.23 of the Criminal Appeal Act 1968 would be granted and leave to appeal would also be granted, the appeal itself would be dismissed. We said that we would give our reasons at a later date. These are those reasons. 4. Before us the appellant was represented by Mr Dunn, who had also appeared at the trial below. The respondent was represented by Mr Sugarman QC, who had not appeared below. Background facts leading up to conviction 5. The complainant, whom we will call M, is the granddaughter of the appellant, her father being one of his sons. The complainant was born on 6 February 2002. 6. Complaint about what the appellant had allegedly done to M first apparently emerged at the end of 2015. At that time, the evidence was that M was a fragile and troubled teenager, who was self-harming. The evidence was that, after M had been arguing with her brother and after her mother, who may be styled P, intervened, M said to her words to the effect “you don’t know what happened”: repeating that at a later stage when the two were walking to M’s school. P was also to say that in around February 2016 M, who was crying, said that the appellant had offered her money and had touched her private parts. M was at a later stage (according to P) to say to P that the appellant had put his finger in her vagina and later still that this happened two or three times. 7. By May 2016 M was seeing a counsellor. In a session on 17 May 2016 M told the counsellor that her grandfather had been doing sexual things to her whilst she was a child living with her grandparents. She said that this had happened more than once. She said to the counsellor that she (M) had only realised it was wrong after doing sex education classes at school in year 8. She then kept it to herself, feeling that it was her fault. In the meantime she had started self-harming. The counsellor reported these allegations. Police officers, DC Murray and PC Matthews, in consequence attended on M the following day: and she repeated these allegations in more detail. She also said that she had thought it was her fault. Among other things, she further said that her grandmother had told her not to challenge her grandfather. She also said that she had told her mother, P, in early 2016. 8. For some considerable time, relations between P and the appellant (her father-in-law) had not been at all good. P’s perception was – rightly or wrongly – that he had behaved in a sexually inappropriate way towards P: and, in particular, P had complained to the police in 2008 and 2010 about sexualised communications sent to her at the behest, as she saw it, of her father-in-law. She also had concerns about how he on occasion had behaved with regard to M as a child. 9. At all events, the complaints having been made there was a lengthy ABE interview of M on 28 June 2016. This court had the transcript of such interview and also viewed the video recording of such interview. The interview was conducted objectively, sensitively and fairly by an experienced female police officer. M gave her answers in a seemingly articulate, direct and clear way, albeit clearly in a nervous and sometimes embarrassed way. She provided considerable detail to her allegations. A jury would at all events have been well capable of assessing her evidence given in that interview as credible and her demeanour impressive: although that was, of course, ultimately a jury matter. 10. The appellant had in the meantime been interviewed on 18 May 2016. He among other things said that he was often out of the house; when there, he was never alone with any of his grandchildren; and he had never touched M in any sexual way. 11. The appellant was not charged until 2 August 2017. The matter came on for trial on 29 January 2018. There were four counts of assault of a child under 13 by penetration on the indictment, each being a specific incident count and each being based on what M had said in her ABE interview. The first two counts related to alleged incidents when M was 3 or 4. The third count related to an alleged incident when M was 6 or 7. The fourth count related to an alleged incident when M was 8 or 9. 12. The police officer having overall charge of the case was DC Duncan Milne. In December 2017, P had told DC Milne that M was saying that she did not want to go to court. DC Milne in consequence visited M at school to discuss the situation with her. What passed between the two on that occasion is in dispute: we will come on to the differing accounts. But at all events the matter proceeded to trial. 13. Shortly before trial, M studied the video recording of her ABE interview at a local police station in the presence (most probably) of a female police officer. Further, she attended court (Snaresbrook Crown Court) with her mother for a familiarisation visits and she spoke to DC Milne and Mr David Smith, counsel then appearing for the prosecution. 14. Her ABE interview was played at trial, both in her presence and in court before the jury, as her evidence in chief. In supplemental oral evidence in chief she confirmed that what she had there said was true. She was then cross-examined, thoroughly and professionally, by Mr Dunn. Whilst in some places her answers to questions were “I don’t remember”, her answers overall were to the clear effect that she maintained that what she had alleged had indeed occurred. She denied that she was not telling the truth and said that she was telling the truth. She further denied the suggestion put to her that it was her mother, P, who had prompted her to say these things about her grandfather. She also said that she had not complained earlier (after having the sex education classes in year 8) as she thought that no one would believe her. 15. At the conclusion of her re-examination there was this passage: “Q. Why are you here now giving this evidence? A. Because I want him to get what he deserves. Q. Sorry, your voice is dropping. A. I want him to get what he deserves.” 16. The mother, P, then gave evidence about the family background and about M’s complaints. In the course of her evidence, she also denied prompting M to make these allegations because of her own dislike of her father-in-law. The counsellor gave evidence, her statement being read, about the complaints. DC Murray also gave evidence The appellant himself then gave oral evidence. He maintained his denials. He also pointed to mobility problems which he had for part of the time and to other matters which the defence said showed limited opportunity for him to do what was alleged. 17. The trial judge, Judge Hammerton, summed up to the jury in two stages. It is accepted that the summing up was thorough, balanced and fair and that the legal directions were full and accurate. The judge among other things stressed that the jury had, in respect of each count, to be sure that there had been digital penetration as alleged by M. 18. In the result the jury on 5 February 2018 convicted, by a majority of 11 to 1, on all four counts. Subsequently on 16 March 2018 the appellant – who is now 68 – was sentenced to a custodial term of 12 years imprisonment and an extended licence period of 1 year under s.236A of the Criminal Justice Act 2003. 19. There matters would appear to have rested. The jury had heard the evidence. Plainly they had accepted that of M and plainly they had rejected that of the appellant. Events following conviction 20. However, on 1 May 2018 a form NG was lodged at Snaresbrook Crown Court. The sole ground of appeal was that M had given false evidence at trial. Reliance was placed in this regard on a written witness statement of M dated 13 April 2018: that is, some four weeks after sentence. 21. This statement, as unchallenged evidence before us showed, had been made by M in the presence of a solicitor (and his assistant). That solicitor’s name had been provided by one of M’s uncles, B, who is himself a criminal law solicitor and who had attended the trial. When M attended on those solicitors, on 5 and 13 April 2018, she was accompanied by another uncle, R, but not by her mother: who was said to have been busy at work. B and R are both sons of the appellant. 22. This statement, which is signed and witnessed on each page by M, R and the solicitor, contains an unqualified retraction by M of her evidence at trial. It extends over 14 paragraphs. She amongst other things says in it that she wished to “withdraw my allegations as the alleged incidents did not in fact take place”. She says that she had made them up to “seek attention from my family, teachers and classmates”. She says that she was “not informed of the consequences that would follow if the allegations I made were believed until after the proceedings had commenced, by which time I was too scared to say that I had lied. I now fully understand the severity of my allegations and the consequences of my actions….”. 23. She went on to say that she had not liked the way her grandfather had treated her mother and “this gave me the idea” to make false allegations against him. She also said, however, that she told the counsellor in order to draw more attention to herself. She further claimed that the police “told me that it was very unlikely the case would go to court so I felt at ease in continuing to make the false allegations”. 24. The last two paragraphs of her statement are as follows: “13. When I gave evidence at Snaresbrook Crown Court, I did not want to lie anymore and answered most questions with “I don’t know” or “I don’t remember”. I hoped that this would make things right and that my grandfather would be found “not guilty”. I was shocked and horrified to discover that my grandfather was not only convicted but had gone to prison. This was never my intention and was not what was supposed to happen. I was just supposed to get attention and that would be it. 14. I now realise the severity of my actions and sincerely regret them. After my grandfather went to prison, I knew I had to do the right thing and tell the truth. I therefore confided in my uncle, [R]. He has always been the understanding one in the family and I knew he would listen to me. With his help, I have come to see a solicitor and make this statement of my own free will. No one has pressurised me and no one has told me what to do. I am making this statement because it is the right thing to do and I want to tell the truth. I am truly sorry for what I have done.” 25. The import of this statement is specific, even though the language of it is in some respects scarcely the language of a 16 year old (at one stage she refers to “my momentary lapse of judgment in making the false allegations”). 26. In the light of this, on 24 May 2018 the police then interviewed M under caution. What they in fact saw fit to do was to arrest her on suspicion of perjury: a thoroughly unsuitable and inappropriate procedure given the circumstances and given M’s age, as Mr Sugarman rightly acknowledged. Unsurprisingly, M then (on the advice of her accompanying solicitor) made no comment to all questions asked of her. 27. On 28 May 2018 the mother, P, herself provided a statement. Amongst other things, she said in that statement that 2 or 3 days after the appellant was convicted M told her that she had lied. P said she was shocked. P said that later that day she rang DC Milne and informed him that “we wanted to withdraw the case”. A week after that, she went to the grandmother’s house and told R what M had said. Her other brother-in-law B was in due course consulted; and the upshot was that M went with R to the new solicitors. She also said that she (P) also went round to the grandparents’ home shortly after M had herself told R about her lies. P further said that neither she nor M had been pressurised to withdraw the allegations. 28. At a later stage, a witness statement dated 15 July 2018 was put in by R setting out his account of the circumstances in which M withdrew her allegations. Subsequently, and following a directions hearing in this court on 5 February 2019 convened in accordance with the procedure suggested as appropriate in SV [2013] 1 Cr. App. R 35 , statements were put in, on behalf of the respondent, of DC Milne and of Mr David Smith, trial counsel. 29. It was in such circumstances that the matter came on for hearing before this court on 15 March 2019. M, P, R and DC Milne were orally examined and cross-examined before us. The statement of Mr Smith was not challenged. M chose to answer all questions put to her, although we had reminded her of her entitlement to refuse to do so on grounds of the risk of self-incrimination. We should record that, while making all allowances for the present situation in which she finds herself, M (who is now aged 17) gave her oral evidence in a markedly different manner from that revealed in her ABE interview and was also notably hesitant on occasions in giving answers to direct questions; and some of her answers were, on any view, absurd (for instance, that she made complaint to the counsellor because she was “bored” or that she felt that the police officer in the ABE interview was telling her what to say). 30. It was the position of the appellant that, in the light of the retraction, the evidence of M at trial is to be regarded as wholly unreliable and tainted and thus that the convictions cannot stand. It was the position of the respondent that it is the retraction evidence which is wholly unreliable and to be rejected: its production is to be explained as deriving if not from direct family pressure then at all events from the pressure of M appreciating that her grandfather was now subject to a 12 year sentence. 31. Given the circumstances, we concluded that it was expedient in the interests of justice, having regard to the provisions of s.23 of the 1968 Act, to give leave for this fresh evidence to be adduced. The question thus has been, in the light both of that evidence and of the other evidence deployed before us (including the oral evidence), whether these convictions are safe. Disposal 32. The latest evidence adduced on behalf of the appellant simply cannot, we have concluded, be accepted. The retraction is, we have concluded, demonstrably unreliable. 33. There are numerous reasons for so concluding - reasons which are to be assessed cumulatively: (1) M’s allegations in her ABE interview are detailed and (on the face of it) compelling and consistent. It is difficult to credit that a fifteen year old girl could maintain such an account if it was all a lying account: although we accept of course, as other such cases show, that that can happen. But at all events, if this was a lying account, it needed sophisticated lying. (2) M thereafter consistently maintained that account up to and including trial: when she had both re-studied her ABE interview and had ample other opportunity to withdraw her allegations. She never did. Nor did she at any time before or at trial tell her mother that her account was false and (as she confirmed to us) P throughout had believed at that time that M’s complaints were true. (3) M must have known throughout that her allegations were very serious. It is also difficult to comprehend why she would maintain that account at trial and then, as is now alleged, just two or three days later (after conviction) tell her mother that it was false. (4) We in fact, in this regard, reject P’s evidence that M had confessed to her (P) two or three days after conviction. M herself never in her own witness statement had claimed such a thing. To the contrary, the clear tenor of M’s statement is that the first person she confided in was her uncle R and that this was after the 12 year sentence had been imposed. Further, DC Milne had no recollection or note of P contacting him at this time after conviction. P in oral examination maintained that she had; and indeed she further said that she told DC Milne at this time that M had said that she had lied, adding that DC Milne had said that nothing could be done and that they would both be arrested if they now sought to withdraw. Not only is none of that in P’s statement (all she said there is that she told DC Milne that they wanted to “withdraw”) but it would have been grossly unprofessional and wrong for DC Milne to have said such a thing. To the contrary, we accept his evidence that he would have told his superior officer and the CPS had this been said. At all events, having heard him, we are entirely satisfied that he said no such thing; and indeed that there was no such conversation at all at this time and all this has since been made up by P. (5) It was common ground that in November 2017 M had been indicating reluctance to go to court and that DC Milne in consequence saw her at school. We accept DC Milne’s evidence that he never told her that she had to go to court and that she never suggested to him that she had lied or wanted to withdraw. To the extent that M in her oral evidence claimed that DC Milne cut her short and told her that she could not withdraw we reject that. M was, in our view, plainly embroidering in this regard: not only was this not said in her written retraction statement but M also herself then threw in, in her oral evidence, absurd suggestions that she too – as, subsequently, was also to be claimed by P – had at this time herself been threatened with arrest by DC Milne. We reject that: it is not credible. (6) Not only had M, in her ABE interview and at trial, provided what might be thought telling detail but she also had volunteered comments about conversations with her grandmother concerning her grandfather. This, if untrue, ran a high risk of being exposed as untrue: as the grandmother could be approached to verify such conversations (the grandmother gave no evidence at trial). (7) M had made consistent – albeit late – complaints to her mother, to her counsellor and to the police. She maintained those complaints at trial and adhered to them in cross-examination and re-examination. (8) The unchallenged evidence of Mr Smith, a very experienced practitioner, showed that, in accordance with the applicable protocols, he had had an amount of contact with M at court before and after she gave evidence; and he also retained his notes. His recollection and notes record M as, though nervous, happy with the way she was being treated. No indication whatsoever was given to him that she wanted to withdraw her allegations or to cause him to doubt what she was saying. That corresponded precisely with the perception of DC Milne: which was, as he said and we accept, that M and P were at the time supportive of the court case. (9) We are entirely satisfied, accepting DC Milne’s evidence, that no indication of withdrawal was given at any time prior to sentence. The only substantial communication DC Milne had from P at that stage, before sentence, we find, was about an incident of criminal damage to her car after trial, which she was concerned may be connected. This complaint was recorded in the police records. (10) M’s suggestion in evidence that the police told her that the case would not go to court is utterly implausible. It is not only denied by DC Milne but is belied also by the opening remarks of the police officer at the ABE interview. We accept that DC Milne said no such thing: indeed the case did go to court, as M full well knew it would after it had been listed in November 2017 for trial. 34. Overall, we have concluded that M’s and P’s evidence on this appeal was thoroughly unsatisfactory and could not be accepted in these respects: the more so when many of the points they sought to make in oral evidence are not contained in their prior witness statements. We accept DC Milne’s evidence and Mr Smith’s evidence. The suggestion that M or P told DC Milne that M had lied and/or wanted to withdraw and that he had then threatened them with arrest if they did so is a false suggestion. We wholly reject the submission that Mr Dunn was constrained to make to the effect that DC Milne had been lying in his evidence to this court. To the contrary, we consider him to have been a reliable and truthful witness; and we accept that had he been so told he both would have remembered and would have reported it to his superior officer and the CPS. We further reject the suggestion that DC Milne had been “gung ho” (in Mr Dunn’s words) and intent on securing a conviction at all costs. We conclude that (as he said) DC Milne only realised that the allegations were being withdrawn in May 2018. We also conclude that the first time any unhappiness at the outcome was expressed was by P when she was told by DC Milne of the (lengthy) sentence and asked if a community sentence might not suffice. As for R’s evidence, that clearly, as we assessed it, was toeing the party line and we have assessed it as of no material support to the appellant’s case. Furthermore, if (as he claimed, purportedly in line with P’s evidence) P really had told him that M had said she lied shortly after conviction, it was, to say the least, remarkable that nothing was seemingly done until several weeks later. 35. Mr Sugarman accepted that, whatever suspicions one may have (and he said it was of further concern that M had been accompanied to the solicitors by R but not by her own mother), he was not in a position positively to show that M had been subject to direct pressure, following sentence, from family members. He was content to say that the pressure at all events came from within, once M knew that the sentence was as long as 12 years: with the inevitable consequential impact on the whole family. Mr Dunn, for his part, said that such a scenario can be a (belated) prompt to tell the truth. That can indeed sometimes be so: but we do not accept it as so here, given the evidence and the circumstances of this particular case. Conclusion 36. We do not propose to say more. There is no proper basis for rejecting M’s original evidence, as reflected in her complaints, detailed in her ABE interview, maintained throughout the trial and accepted by the jury. We reject the veracity and reliability of her subsequent retraction statement, put in after sentence was announced. We consider, in all the circumstances, that the convictions are safe. 37. It is for these reasons that we have (as previously announced) dismissed this appeal.

2019_04_03-4561.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/565/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/565

4d2a8174117e794aa5cda5595ddbd1e600a31c63840ed596c02b6d4d8fd15195

[2022] EWCA Crim 1732

EWCA_Crim_1732

2022-11-22

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 CASE NO 202201299/A2 [2022] EWCA Crim 1732 Royal Courts of Justice Strand London WC2A 2LL Tuesday 22 November 2022 Before: LORD JUSTICE WARBY MRS JUSTICE McGOWAN DBE THE RECORDER OF LIVERPOOL HIS HONOUR JUDGE MENARY KC (Sitting as a Judge of the CACD) REX V

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 202201299/A2 [2022] EWCA Crim 1732 Royal Courts of Justice Strand London WC2A 2LL Tuesday 22 November 2022 Before: LORD JUSTICE WARBY MRS JUSTICE McGOWAN DBE THE RECORDER OF LIVERPOOL HIS HONOUR JUDGE MENARY KC (Sitting as a Judge of the CACD) REX V MONIKA SOLARSKA __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) _________ MR R HERRMANN appeared on behalf of the Appellant MR P MAKEPEACE KC and MR D CORDEY appeared on behalf of the Crown _________ J U D G M E N T (Approved) LORD JUSTICE WARBY: 1. This is an appeal against sentence by Monika Solarska, aged 37. On 2 March 2022 in the Crown Court at Teesside she pleaded guilty to one count of doing acts tending and intended to pervert the course of justice. On 8 April 2022 she was sentenced by Stacey J to five years and six months' imprisonment. The appeal is mounted on the basis that this was manifestly excessive. 2. The charge arose from the discovery of the corpse of Tomasz Dembler in April 2021. Mr Dembler was a Polish national who had lived in the United Kingdom from about 2002. He had married and had a daughter. In 2018 he moved to the Northeast. In the months before his death his lifestyle had deteriorated. He had fallen out or lost touch with extended family members who lived here, he had no settled address or employment, and he was in a bad way with drink and drugs. In March 2021 he moved to an address in Edward Street in Middlesbrough. He was aged 39 at the time. 3. On 21 March 2021 there was a party at the Edward Street address. A few weeks later, Mr Dembler's body was found by two teenage girls in a shallow grave in woodland bordering Flatt's Lane Country Park near Middlesbrough. They found the body because a foot was sticking out of the ground. 4. A post-mortem examination found bruising and cuts to the lips and mouth, a fracture to the right side of the upper jaw, bruising over both sides and the back of the scalp, dense bruising around the jaw line and muscles of the neck and to the tongue, bruising to the chest wall with 15 associated rib fractures, and generalised bruising to the muscles of the back, the upper arms and the lower limb. Mr Dembler's back had been broken and there was partial dismemberment of the lower part of each arm which had been severed above the wrist. There was also some brain injury. 5. The expert analysis was that the injuries to the head were likely to have been caused by kicks or stamps, and the injuries to the neck by compressive pressure. The multiple fractures to the ribs were indicative of repeated kicks or stamps which would have been very painful and would have impaired Mr Dembler's ability to breathe. It was most likely that the spine was broken when Mr Dembler was still alive. The injuries were so extensive that the medical expert could not be sure which were fatal. The headlock which may have cut off the oxygen supply to his brain could have been what had killed him. The separation of the hands from the body was probably carried out after death. There was hypostasis at the front of the body indicating that it had been lying at the Edward Street address for a time on its front, before being transported and buried sometime later. 6. A police investigation under the name of Operation Spark led to the arrest of seven individuals, all of whom were initially indicted for the murder of Tomasz Dembler. Of those, five were proceeded against. They were: (1) Rafal Chmielewski (RC), (2) The appellant, who was RC's girlfriend, (3) Adam Czerwinski (AC) (4) Tomasz Reczycki (TR) and (5) Zbigniew Pawlowski (ZP). 7. The trial began on 19 January 2022. The prosecution case was that the Edward Street party had involved heavy drinking and the taking of drugs. Mr Dembler was not involved but he was killed at the house in the early hours of 21 March. All five defendants were present at the time and the prosecution alleged that all were involved in a joint enterprise to kill or cause really serious harm to Mr Dembler. 8. RC and ZP were said to have been the ringleaders in the killing. Those two were also alleged to have been the principal actors in the actual burial. Evidence was called to show that a white Mercedes belonging to RC and a black Mercedes belonging to the appellant had made repeated journeys between Edward Street and the burial site after Mr Dembler's death. The purpose of these, the prosecution alleged, was to reconnoitre the burial site by day and by night, to take the body there and finally to pick up the two involved in the burial itself. Further, the prosecution adduced evidence that the cars were cleaned of all DNA or other evidence of Mr Dembler. The house too was scrupulously cleansed of all traces of the deceased. The carpet was changed, the sofa was replaced, and the mobile phone of the deceased was also disposed of. The appellant was alleged to have been involved in all of this as part of a joint enterprise. 9. By day 29 of the trial the prosecution was in the course of cross-examining RC when guilty pleas acceptable to the prosecution were offered by all defendants. The indictment was amended by consent to add count 2 (manslaughter) to which RC and ZP pleaded guilty, and count 3, to which the appellant and the other two defendants, AC and TR, pleaded guilty. That was the count of perverting the course of justice. No further evidence was offered on the count of murder and the case was adjourned for sentence. 10. The judge was left to reach her own conclusions as to the facts of the offending based on the evidence she had heard and seen in the course of the trial. The key facts as the judge found them to be were these. 11. In early March 2021 RC and the appellant had taken Mr Dembler into their home at Edward Street which they shared with AC. During the party, at some point in the early hours of 21 March, RC and ZP had launched a sustained and brutal attack on Mr Dembler in his bedroom lasting up to 30 minutes, in the course of which they beat and kicked him to death. This was unplanned and unpremeditated but it was also unprovoked. They broke Mr Dembler's spine while he was still alive. After his death in his bedroom his hands were severed. Evidently the purpose of this was to ensure that he could be fitted into the suitcase in which he was transported to the burial site. 12. Although RC and ZP had pleaded guilty to manslaughter, not murder, said the judge, the deceased's injuries made clear that their intention "fell only just short of intending to cause grievous bodily harm" and the assault had been one that carried a high risk of death. 13. The appellant did not go upstairs until after the assault, but she must have known something of what was happening. It was a small house with thin walls and the assault would have been noisy. The operation to dispose of the body and destroy evidence and all trace of the deceased was "chillingly slick, ruthlessly efficient and callous". That operation, said the judge, was led by RC and it was he and ZP who were involved in dismembering and burying the deceased but, over 21/22 April 2021 the appellant was busy ferrying RC and ZP to and from the burial site. 14. Whilst it was not possible to identify who had played exactly what part in the clean-up operation, the appellant had colluded with the others in that part of the offending and in doing all of her power to ensure that Mr Dembler's death would never come to light or be linked to any of the defendants. In that respect they were all in it together. Like the others, the appellant had repeatedly lied to the police and put forward a false defence case statement. 15. Victim personal statements were provided as to the impact of Mr Dembler's death. The judge's findings were that this had devastated his family and friends, not just by the savage way in which he had been killed, the desecration of his body and his dismemberment, but also, she said, the concealing of his body, denying him a decent burial. All of this was said to have caused "unimaginable pain and grief" for three generations of his family -- his mother, his brother, his daughter and his nephew. 16. For the manslaughter of Mr Dembler the judge identified the appropriate sentence after a trial for each of RC and ZP as one of 17 years. She allowed a six-month reduction for the guilty pleas and thus sentenced each to imprisonment for sixteen-and-a-half years. 17. She turned to the appellant and the remaining co-defendants. There are no sentencing guidelines for perverting the course of justice but the general approach to sentencing applies and the authorities identify three main factors to be taken into account when deciding the seriousness of the offending. These are: (1) The seriousness of the substantive offence; (2) the degree of persistence of the criminal conduct; and (3) the effect of that conduct on the interests of justice: see R v Tunney [2006] EWCA Crim. 2066 and Attorney General's Reference No 16 of 2009 (Yates ) [2010] 2 Cr.App.R (S) 11. 18. Applying these principles the judge found, first, that the killing in this case was at the top of the range for manslaughter. It was a Category 1A killing, and hence extremely serious. Secondly, she found that there was "a thoroughness and persistence to the destruction and cover up of all aspects of the evidence and the facts that went on for a number of days after Tomasz's death". Thirdly, addressing the effects of the offending, she said that the killing had only come to light through the sheer luck that the teenagers found the body: "You very nearly got away with it". Bearing in mind the harm to Mr Dembler and his family the judge said this was "one of the most serious of cases of perverting the course of justice." 19. This is a common law offence and sentence is at large, with no statutory maximum. There is a large number of decided cases which may be considered to offer some guidance to a sentencing judge, many of which were placed before the judge in this case for her consideration. They featured a range of sentences from two years to eight years' imprisonment. The judge observed that only limited assistance could be gained from other cases as each would turn on its own facts, but she did derive some help from R v Amin [2014] EWCA Crim. 1924. In that case the appellant had driven his car from Birmingham to London with the body of the deceased in a suitcase in the boot and this court refused leave to appeal a sentence of eight years' imprisonment after a trial. The judge said the cases shared some common features, whilst identifying two distinctions: Amin was a case of murder, not manslaughter, and culpability was higher in that the murder was premeditated and Amin had known of it in advance. 20. Turning to the cases of the three who had pleaded guilty to this offence, the judge found that the appellant was the most closely involved in the post-mortem activities. She was the driver on two of the journeys to Flatt's Lane and took cunning steps to try to avoid detection, such as by changing routes. She had knowingly transported the body to the burial site and she had worked side by side with RC on the clean-up and cover up operation. The judge took account of the appellant's previous good character but found that she had become involved with RC and his family out of genuine choice. The judge said that the starting point was one of six years' imprisonment which she reduced by six months for the late guilty plea. After similar reductions the other two defendants, AC and TR, received sentences of five years and three years six months respectively. 21. Three grounds of appeal were advanced before the single judge. The first was that the judge's notional sentence after a trial was too high, given the role that the appellant played and for that reason the sentence was manifestly excessive. Secondly, there was a complaint of disparity. Thirdly, there was a suggestion that the guilty plea should have attracted a greater reduction. The single judge gave leave on ground 1 but rejected the other grounds of appeal which have not been renewed before us. 22. For the appellant, Mr, Herrmann, who appears today, submits that the judge placed too much reliance on the comparison with Amin which he says was a very different case. This appellant had no prior knowledge of the killing, and no direct dealings with the body. Her role, it is submitted, was the secondary or supportive one of being present in the car to divert suspicion. The written grounds of appeal referred us to two decisions of this court where the substantive offence was one of manslaughter and co-defendants were sentenced for preventing lawful burial. In Munday [2003] 1 Cr.App.R (S) 118 the principal offence was one of gross negligence manslaughter by leaving the victim of a heroin overdose to die without calling for help. That led to a sentence of five years' imprisonment on a guilty plea. The appellant had helped to bury the victim and the sentence was two-and-a-half years after full credit. In Gale [2018] EWCA Crim. 120 the principal offence was manslaughter by reason of loss of control, leading to a sentence of 12 years. A sentence of four years after a trial was imposed on a co-defendant for helping to move the body. 23. For the Crown, Mr Makepeace KC responds that these comparisons do not assist as the facts were so different from those in the present case. Mr Makepeace argues that Mr Herrmann's analysis of the appellant's conduct does not fully or properly encompass her true role as found by the judge. Mr Makepeace emphasises the factors we have already mentioned and, in addition, that Mr Dembler's body was left overnight in the house which was the appellant's home. He describes the principal offending and the offence to which this appellant pleaded guilty as “as bad a case as the court is likely to come across”. 24. We have reflected on these submissions. In our judgment the judge was clearly right to regard this as a particularly serious case of its kind. This appellant, knowing that her boyfriend and ZP had killed Mr Dembler, helped them try to get away with it. On the judge's findings the appellant played a leading role in every aspect of an attempted cover up involving five individuals, which was elaborate and sophisticated, lasted at least two days, and must have taken up most of her waking hours during that period of time. The attempt to erase all traces of the killing very nearly succeeded. It increased the pain suffered by the family of the deceased. 25. There is rightly no challenge to the judge's findings of fact. There can be no doubt that those findings were open to her on the evidence. We consider that her approach reflected a faithful application of the principles identified in the authorities. She had proper regard to the case of Amin without affording it undue weight. 26. We have not found the cases cited by Mr Herrmann of great assistance, for the reason given by the Crown. We do consider that the application of the first of the criteria in Tunney should lead to a sentence for perverting the course of justice that bears some reasonable relationship of proportionality with the gravity of the principal offending. Here, that turned out to be a joint offence of manslaughter by assault falling just short of murder. Even testing proportionality by reference to the sentences imposed, which can only be a rough and ready guide, the notional sentence for the appellant's interference with justice was just over one-third of the sentences for the principal offending. On neither approach does the judge's sentence strike us as in itself disproportionate or manifestly excessive. 27. That conclusion is reinforced when we consider the second criterion, which focuses on what the defendant did to interfere with the course of justice. Some offences of this kind involve a single brief and spontaneous act, such as obstructing access to a fleeing offender, or some other short-lived conduct. The prolonged and persistent nature of this appellant's behaviour clearly places her case at the other end of the scale. 28. So far as the comparison with Amin is concerned, although the appellant did not have full knowledge of the killing she clearly did know about it when she took part in the burial arrangements and the clean-up of the cars and the house. She may not have touched the body but she had close dealings with it. Participation in the other aspects of the cover up is an aspect of the appellant's offending that goes beyond the conduct of the defendant in Amin . There were other factors that made this appellant's case one of higher culpability: her leading role in a group activity and the significant degree of planning that must have been involved. 29. Turning to the third factor, we can see no grounds for criticising the judge's assessment of the impact of the appellant's offending. It came close to being a complete success in defeating the ends of justice. Indeed, the appellant's intention was that Mr Dembler's disappearance should remain a mystery forever. His relatives and friends would never have known what had become of him but for the chance discovery by the teenagers and the diligent police investigation. Of course, an offender's previous character and any personal mitigation must be taken into account but there was nothing about the offending or its circumstances here that mitigated this appellant's culpability. The only mitigation was her previous good character which the judge took into account. 30. Standing back, the sentence in this case was towards the upper end of the scale indicated by the authorities on sentencing for this offence. But in our judgment that is because the gravity of the offending was in the upper range. For these reasons, we consider that the judge's sentence was not manifestly excessive but just and proportionate and 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

2022_11_22-5506.xml

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7ecad2393db27d62ac903baf70a7a51ee2ba62b4c0cb1a3770b8925387fa38f7

[2010] EWCA Crim 28

EWCA_Crim_28

2010-01-27

crown_court

Neutral Citation Number: [2010] EWCA Crim 28 Case No: 200805132C3 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CANTERBURY CROWN COURT HHJ VAN DER BIJL T20050143 Royal Courts of Justice Strand, London, WC2A 2LL Date: 27/01/2010 Before : LORD JUSTICE MAURICE KAY MR JUSTICE SWEENEY and MRS JUSTICE SLADE - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - and - Tiina Kaisa Paivarinta-Taylor Appellant - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2010] EWCA Crim 28 Case No: 200805132C3 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CANTERBURY CROWN COURT HHJ VAN DER BIJL T20050143 Royal Courts of Justice Strand, London, WC2A 2LL Date: 27/01/2010 Before : LORD JUSTICE MAURICE KAY MR JUSTICE SWEENEY and MRS JUSTICE SLADE - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - and - Tiina Kaisa Paivarinta-Taylor Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Richard Furlong (instructed by Tehrani & Co ) for the Appellant Alex Munro (instructed by The Solicitor for the Department of Work and Pensions ) for the Respondent Hearing dates : Friday 16th October 2009 - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice Sweeney: Introduction 1. This case raises the issue, not for the first time in this Court, of the consequences of a failure to comply with the provisions of section 72A (9) of the Criminal Justice Act 1988 (“ the 1988 Act ”) in confiscation proceedings. 2. Following refusal by the Single Judge, we granted leave to appeal out of time against the confiscation order made in this case; to add a Ground dealing with the section 72A (9) issue; and to abandon the original Grounds of Appeal that were relied on before the Single Judge. We also grant a representation order. Background 3. The background is this. On 20 October 2006, at the conclusion of a seven week trial before H.H. Judge Van der Bijl and a jury in the Crown Court at Canterbury, the Appellant was convicted of one count of obtaining property by deception. Sentence was postponed until 24 November 2006, when the Appellant was fined £1,000 - to be paid at £100 per month, with 28 days’ imprisonment in default. Confiscation proceedings under the 1988 Act regime were further postponed until 22 December 2006. On that date the learned Judge found that the Appellant had benefited in the sum of £35,635, and that (largely in accordance with formal concessions made on her behalf) she had realisable assets in the sum £216,453.11. Accordingly he made a confiscation order in the sum of £35,635 – to be paid within 6 months, and with 15 months’ imprisonment in default. The Appellant was also ordered to pay £500 costs. 4. It is the imposition of the fine before the making of the confiscation order that gives rise to the section 72A (9) issue. 5. The Appellant was tried with her former husband David Taylor, who was also convicted of obtaining property by deception. In addition, he was convicted of 22 specimen Counts of false accounting in relation to benefit frauds. He was sentenced to a total of 12 months’ imprisonment. A confiscation order in the sum of £65,324.34 was subsequently made against him, with 20 months’ imprisonment consecutive in default. He was also made the subject of a compensation order in the sum of £4,388.46, and ordered to pay prosecution costs in the sum of £100,000. 6. The offence of obtaining property by deception of which both the Appellant and David Taylor were convicted was concerned with a joint fraudulent application to purchase a property in Lewisham, at a substantial discount, under the ‘right to buy’ provisions of the Housing Act 1985 . The application was successful. The confiscation order made against the Appellant reflected half of the net benefit resulting from the purchase. 7. On 19 February 2008 this Court, differently constituted, dismissed the Appellant’s then renewed application for an extension of time for leave to appeal against conviction – see [2008] EWCA Crim 680 . 8. Thereafter, some twenty months out of time, the Appellant (then differently represented) applied for an extension of time, for permission to appeal against the confiscation order, and for a representation order. The Grounds then advanced were founded upon the premise that matters had come to light during enforcement proceedings in relation to the confiscation order which showed that the learned Judge had erred in concluding that the Appellant had realisable assets worth in excess of the benefit obtained from her criminal conduct. This premise was always doomed to failure given that, as we have already mentioned, it had been formally conceded before the learned Judge in December 2006 that the Appellant had realisable assets worth in excess of £200,000 - more than five times the benefit figure. Hence the Single Judge refused the application. At that stage, there was no section 72A (9) Ground. 9. On 7 October 2009 the case was listed before us as a renewed application upon the Grounds advanced before the Single Judge. It was then that Mr Furlong (who did not appear below, and who had only been instructed a short time before the hearing) sought to add the section 72A (9) Ground, and also (being unaware of the formal concession at first instance as to the extent of the Appellant’s realisable assets) indicated an intention still to pursue the original Grounds. In the result, we adjourned the application in order for the Respondent to attend to assist the Court in relation to the section 72A (9) issue, and for Mr Furlong to consider the Appellant’s position as to the merits of the original Grounds. 10. At the adjourned hearing, Mr Furlong abandoned the original Grounds, and concentrated on the section 72A (9) issue. We are grateful to him, and to Mr Munro who appeared on behalf of the Respondent (but who likewise did not appear at the sentencing hearing below) for the product of their researches and for the clarity of their submissions. The 1988 Act 11. In so far as material, section 71 of the 1988 Act , as amended by the Proceeds of Crime Act 1995 , provides that:- “(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. (1A) The court shall first determine whether the offender has benefited from any relevant criminal conduct. (1B) Subject to subsection (1C) below, if the court determines that the offender has benefited from any relevant criminal conduct, it shall then – (a) determine in accordance with subsection (6) below the amount to be recovered in his case by virtue of this section, and (b) make an order under this section ordering the offender to pay that amount. ……” 12. Section 72 (5) of the 1988 Act provides that:- “Where a court makes a confiscation order against a defendant in any proceedings, it shall be its duty, in respect of any offence of which he is convicted in those proceedings, to take account of the order before – (a) imposing any fine on him; (b) making any order involving any payment by him, other than an order under section 35 of the Powers of Criminal Courts Act 1973 (compensation orders); or (c) making any order under – (i) section 27 of the Misuse of Drugs Act 1971 (forfeiture orders); or (ii) section 43 of the Powers of Criminal Courts Act 1973 (deprivation orders), but subject to that shall leave the order out of account in determining the appropriate sentence or other manner of dealing with him.” 13. Section 72A of the 1988 Act was inserted by the Criminal Justice Act 1993, and provides that:- “(1) Where a court is acting under section 71 above but considers that it requires further information before – (a) determining whether the defendant has benefited as mentioned in section 71 (2)(b)(i) above; (b) determining whether his benefit is at least the minimum amount; or (c) determining the amount to be recovered in his case by virtue of section 72 above, it may, for the purpose of enabling that information to be obtained, postpone making that determination for such a period as it may specify. (2) More than one postponement may be made under subsection (1) above in relation to the same case. (3) Unless it is satisfied that there are exceptional circumstances, the court shall not specify a period under subsection (1) above which – (a) by itself; or (b) where there have been one or more previous postponements under subsection (1) above or (4) below, when taken together with the earlier specified period or periods, exceeds six months beginning with the date of conviction…. (7) Where the court exercises its power under subsection (1) or (4) above, it may nevertheless proceed to sentence, or otherwise deal with, the defendant in respect of the offence or any of the offences concerned. (8) Where the court has so proceeded, section 72 above shall have effect as if – (a) in subsection (4), the words from “before sentencing” to “offences concerned” were omitted ; and (b) in subsection (5), after “determining” there were inserted “in relation to any offence in respect of which he has not been sentenced or otherwise dealt with”. (9) In sentencing, or otherwise dealing with, the defendant in respect of the offence, or any of the offences, concerned at any time during the specified period, the court shall not – (a) impose any fine on him; or (b) make any such order as mentioned in section 72(5)(b) or (c) above……” 14. Section 72A (9A) of the 1988 Act was inserted by the Proceeds of Crime Act 1995 and, as later amended, provides that:- “Where the court has sentenced the defendant under subsection (7) above during the specified period it may, after the end of that period, vary the sentence by imposing a fine or making any such order as is mentioned in section 72(5)(b) or (c) above so long as it does so within a period corresponding to that allowed by section 155(1) or (2) of the Powers of Criminal Courts (Sentencing) Act 2000 (time allowed for varying a sentence) but beginning with the end of the specified period.” 15. As we have already indicated, the section 72A(9) issue arises because H. H. Judge Van de Bijl fined the Appellant £1,000 on 24 November 2006, in advance of making the confiscation order on 22 December 2006. 16. In consequence, the learned Judge was also unable to comply with the provisions of section 72(5) of the 1988 Act . Had matters been brought to his attention by Counsel at the hearing on 22 December, the learned Judge would have been able to vary sentence by revoking the original fine and then considering the imposition of a fine again, now in the proper sequence. Given that the value of the remainder of the Appellant’s realisable assets, after deducting the amount of the confiscation order, was in excess of £180,000, it seems inevitable that the learned Judge would have concluded, again, that the appropriate sentence was a fine of £1,000. However the learned Judge was not so assisted by Counsel then appearing. The Authorities 17. Before turning to the cases in which this Court has considered the consequences of a breach of section 72A (9), or the analogous provisions in the Drug Trafficking Act 1994 (‘the 1994 Act’), it is necessary to set out some of the general principles to be derived from the three now leading authorities on the general approach to breaches of the procedural provisions relating to confiscation orders in both the 1988 Act and the 1994 Act . 18. Prior to the judgment in Sekhon & others [2003] Cr. App. R. 34 (a case concerned with breaches of the postponement provisions in both the 1988 and 1994 Acts), this Court had generally adopted a strict approach to breaches of the ‘mandatory’ procedural requirements of both Acts, with the result that confiscation orders made in breach of them were regularly quashed. Examples of this approach, or apparent approach, include Ross [2001] 2 Cr. App. R. (S). 109 (which was concerned with the need for a decision to postpone under the 1988 Act ), and Palmer [2002] EWCA Crim. 2202 (a notorious case which was concerned with the notice requirements of the 1988 Act , and resulted in the quashing of a multi-million pound confiscation order). 19. In giving the judgment of the Court in Sekhon , Lord Woolf LCJ reviewed the prior case law, and the general failure of courts dealing with confiscation orders, up to that point, to recognise that procedural steps usually do not go to jurisdiction; that, absent a specific provision in the relevant legislation as to the consequences of a particular breach, it was left to the Court to infer what Parliament intended to happen as a result; that the use of mandatory terms was far from decisive; and that substantive provisions giving the Court its jurisdiction were not to be automatically defeated, in the ordinary way, by non compliance with procedural requirements, unless that was necessary to achieve the statutory purpose. 20. Lord Woolf LCJ then went on to identify the correct principles to be applied in future, including the following:- i) The consequences of a failure to comply with a procedural requirement may be to render any subsequent step of no effect, a nullity; but that will usually not be so. ii) Whether a breach of a procedural requirement has that effect must be determined by ascertaining Parliament’s intention from the language used, in the context of the structure and purpose of the legislation. iii) It would not have been the intention of Parliament to exclude the jurisdiction of the Court in relation to the making of confiscation orders because of defects of a technical nature that caused no injustice to the defendant. iv) Where the court concludes that a breach renders any subsequent step a nullity it will describe the procedural requirement as mandatory, otherwise it will be described as ‘merely’ directory. v) Parliament frequently uses what might be regarded as words of command, such as ‘must’ as opposed to ‘may’, which have the appearance of being mandatory, but which are not ‘mandatory’ in terms of their legal effect. vi) Merely to ask whether the words used are mandatory or directory without having regard to the structure and purpose of the legislation, and the particular provision concerned, is wrong. vii) The correct question to ask is ‘what did Parliament intend should be the consequences which flow from a breach of this requirement’; and not ‘are the words mandatory or directory’. 21. In the result, the Court concluded that Palmer had been wrongly decided and should not be followed, and that the other cases dealing with the postponement provisions that the Court had referred to (including Ross ) should, in future, be examined with care to see whether, in fact, it could be said that they should be regarded as doing any more than deciding that there should be a decision to postpone confiscation proceedings, however generally explained, prior to the completion of sentencing an offender, if confiscation proceedings were to take place after sentencing. As to Ross itself, the Court concluded that it was in part inconsistent with the correct approach, as the Court in that case had failed to ask itself what the effect of non-compliance with the language of the Act was. The Court went on to point out that, on closer analysis, all that Ross required was that there be a decision to postpone – the nature of the decision, and its form, were not treated as critical. As long as there was a decision to postpone, that was all that mattered. 22. This change of approach was subsequently affirmed by a five member Court, again presided over by Lord Woolf LCJ, in Simpson [2004] 1 Cr. App. R. (S) 24 , which was concerned with a breach of the notice provisions in the 1988 Act . 23. In R v Soneji & Bullen [2006] 1 Cr. App. R. (S) 79 the House of Lords was concerned with an alleged breach of the postponement provisions in the 1988 Act , following the imposition of sentences of imprisonment. Their Lordships concluded that:- i) It was not necessary to adopt a strict approach to the construction of the relevant provisions of the 1988 Act , given that they dealt with the process of making confiscation orders, not with the definition of crimes. ii) The context required a purposive construction. iii) The emphasis, tracing the approach from a dictum of Lord Hailsham in London & Clydeside Estates Limited v Aberdeen DC [1980] 1 WLR 182 , ought to be on the consequences of non-compliance, and posing the question whether Parliament could fairly be taken to have intended total invalidity. iv) The purpose of the sequence set out in section 71(1) of the 1988 Act was to ensure the effectiveness of the sentencing procedure overall. Given that purpose, there was no good reason to suppose that Parliament could have intended that the court’s duty to consider making a confiscation order under section 71(1) should be limited so that the court could no longer discharge it if, with his consent, the defendant had been sentenced first, even if there had been a breach of the postponement provisions in section 72A(3) in the process. Similarly, it was hard to suppose that Parliament would have intended that a confiscation order should be invalid merely because it was made in such circumstances. Likewise, when the breach caused no prejudice of any kind to the defendant in respect of his sentence, Parliament would not have intended that the sentence passed by the Judge should be invalid either. v) The purpose behind section 72A(9) was to maintain the primacy of confiscation orders by prohibiting the court from imposing a fine or other financial order until after the making of any confiscation order, thereby ensuring that the court could take account of any confiscation order when deciding on the amount of any fine or other financial order. 24. The consequences of a breach of section 72A(9) of the 1988 Act , or of the analogous provisions in the 1994 Act , have been considered in this Court on a number of occasions, with differing conclusions. Mr Furlong draws our attention, in particular, to Threapleton [2001] EWCA Crim 2892 , Ruddick [2003] EWCA Crim 1061 , Jones [2004] EWCA Crim 2213 , Ghebremariam [2006] EWCA Crim 91 , and Khan & others [2007] EWCA Crim 718 . We propose to examine these authorities in chronological order. 25. Threapleton was decided in 2001, and thus before the change of approach marked by Sekhon in late 2002. It was concerned with the making of a costs order before a confiscation order – which is prohibited by section 72A (9) (b) of the 1988 Act . The Appellant invited the court to quash the costs order. The court did so, following what it perceived to be the strict approach to a breach of a ‘mandatory’ procedural requirement in Ross (above – which, as we have already indicated, was concerned with the postponement provisions in the 1994 Act ), and concluded that the costs order was one that could not lawfully have been made. The Court was then invited to make a costs order itself, by virtue of its power under section 11(3) of the Criminal Appeal Act 1968 to make any order for costs that could have been made by the Crown Court after the making of the confiscation order. The Court declined to make such an order, indicating that even if section 11(3) conferred such power, the requirements of section 72A(9) were not merely formal but were intended to ensure that the amount payable under a confiscation order had priority over, amongst other things, the payment of costs; that to make the order sought would be to condone the fact that the requirements of the 1988 Act were not complied with; and that the Court was not sure that if the correct procedure had been followed, the amount of the order would have been the same. The court emphasised that it was the duty of counsel on both sides to bring the provisions of section 72A(9) to the attention of judges dealing with confiscation orders at first instance. 26. Ruddick was decided in April 2003, and thus after the decision in Sekhon . It was another case in which a costs order was imposed before, in that case, the making of both a confiscation order and a forfeiture order. In giving the judgment of the court, Rose LJ considered the principles to be derived from Sekhon , and then said (at paragraph 32):- “…the first question is whether a financial order made before the forfeiture process was completed is null and void, or whether it is simply a potential ground of appeal. What did Parliament intend? The words of the statute are mandatory in form, and the purpose of the statutory sequence of events is to ensure that a forfeiture order is made before the defendant’s assets are depleted by any other financial order made in the course of the sentencing process. And, to this extent, we agree with the decision in Threapleton . But what did Parliament intend in the event of a Judge not following the correct sequence of events? In our view there is no reason to suppose that Parliament intended that a failure to follow the correct procedure would, of itself, render the orders he made ‘unlawful’ or a ‘nullity’. If, for example in this case, the Judge made no forfeiture order, because he was not satisfied that the appellant had received any identifiable benefit from his crime, would the costs order, none the less, have been void? We cannot think that Parliament would have intended this consequence. Procedural requirements must not be allowed to wag the dog. But, a failure to follow the correct procedure enables the Appellant to argue before the Appeal Court that had the proper sequence been observed then the costs order which was prematurely made should be quashed, because, ex hypothesi, the Judge had failed to take into account when he made it the amount of the forfeiture order. In this case, the amount of the forfeiture order, £100,000, was substantial, and we can see the force of the argument that the costs order might have been less after the forfeiture order had been made. Had there been a forfeiture order for a relatively small or nominal amount, the force of the argument would be weakened. We shall return to the size of the costs order after we have considered the other submissions on costs.” 27. Having concluded that the amount of the costs order was appropriate, Rose LJ continued (at paragraph 34):- “…..In those circumstances we are not prepared to quash the order made by HHJ Cartlidge, even though it was made out of sequence and did not take account of the forfeiture order he later made. But had we felt that the order made was excessive, we would have had no hesitation in exercising our powers under section 11(3) of the Criminal Appeal Act 1968 to make a new and lesser order. We disagree with the comment of the court in Threapleton that to do so ‘would be to condone the fact that the requirements of the 1988 Act were not complied with.’ Whenever this court corrects an error made in the court below and exercises its powers under section 11(3) it could be said to be ‘condoning’ an error. But that is not the correct approach to section 11(3) . That section is there to ensure that this court can properly do justice. The doing of justice is two sided. To deprive the prosecution of their costs order simply because of an error seems to us to be a one-sided approach to justice. In this case it is to be noted that none of the counsel who appeared in the court before HHJ Cartlidge ever suggested that he had acted outwith his powers.” 28. Jones was decided in July 2004. It was concerned with the provisions of section 2(5) of the Drug Trafficking Act 1994 (the equivalent of section 72(5) of the 1988 Act ). Again, a costs order was made prior to the making of a confiscation order. The Court’s attention was drawn to Threapleton , but not to Sekhon , Ruddick, or Simpson (which had been decided, shortly after Ruddick , in May 2003). The Court decided that the making of the costs order was contrary to the general guidance given in Threapleton , and therefore quashed that order. 29. Ghebremariam was decided in January 2006. It was yet another case concerned with the imposition of a costs order prior to the making of a confiscation order – on this occasion involving the directly analogous provisions of section 3(9) of the 1994 Act . It seems clear that the Court was not referred to Sekhon , Ruddick , Simpson , or Soneji (which had been decided by the House of Lords in July 2005). In the result, the costs order was quashed. The Court concluded that it should not have been imposed, and that it could not do anything else about it – because to do so would be to condone a void order made without jurisdiction (an apparent echo of Threapleton ). 30. Khan & others was decided in February 2007. It was concerned with section 72A (9), and involved fines and/or costs orders imposed prior to the making of confiscation orders. When making the confiscation orders the learned Judge was satisfied, as a matter of fact, that both the confiscation orders and the amount of the previous fines and/or costs orders were within the means of each of the Appellants. Again, it seems that the Court was not referred to Sekhon, Ruddick, Simpson or Soneji , but only to Ghebremariam . Against that background, the Court concluded that the orders for the fines and costs had to be quashed, because they were made unlawfully – given that the Judge had no power to make them. The Court nevertheless went on to decide that, because confiscation orders had eventually been made, it had, by virtue of section 11(3) (b) of the Criminal Appeal Act 1968 , the power to make appropriate fine and/or costs orders itself – thereby achieving the appropriate sequence. In the event however, the Court decided not to make such orders - but only upon the basis that it did not have the necessary financial information. The Court emphasised again the duty of both prosecuting and defence counsel at first instance to draw the relevant statutory provisions to the attention of the sentencing Judge. 31. We note in passing that the conclusion of this Court in Donohoe [2007] 1 Cr.App.R.(S) 88 (a case dealing with a broadly similar problem under the Proceeds of Crime Act 2002 , to which our attention was drawn after the hearing) was that Parliament did not intend that the imposition of a fine, or other prohibited order, in advance of making a confiscation order, should render the confiscation order a nullity. Submissions 32. Against the background of these various authorities, Mr Furlong submitted that the imposition of a financial penalty, followed by the making of a confiscation order on a subsequent date, was in breach of section 72A(9) of the 1988 Act , and that in consequence, either:- a) The confiscation order should be quashed as the Court was rendered functus officio when it completed sentencing by the imposition of the fine - thereby rendering the subsequent confiscation procedure unlawful; and/or b) The fine was unlawful and should be quashed (following the Threapleton line of cases), and not re-imposed (following Threapleton & Ghebremariam ). 33. As to the Court being functus after the imposition of the fine, Mr Furlong relied upon R v Warwick Justices ex parte Patterson [1971] Crim LR 420 – which decided that Justices were functus officio once they had passed a valid sentence. He also relied (in part) on Soneji & Bullen . He argued that Parliament might well have considered that the consequence of imposing a fine before a confiscation order was to render the Court functus, and that to do otherwise would be to prioritise the section 71(1) duty to proceed over the section 72(5) duty to take account of the confiscation order before imposing a fine or other financial order. 34. Mr Munro accepted that there had been a breach of section 72A(9) , but argued (relying on Sekhon, Ruddick, Simpson and S oneji & Bullen ) that this did not result in either the fine or the confiscation order being invalid, particularly given that the Appellant had suffered no injustice whatsoever as a result of the breach. In the alternative, he argued (relying on Ruddick and Khan & others ) that if the imposition of the fine was a nullity, then we should impose the same amount of fine again by exercising our powers under section 11(3) of the Criminal Appeal Act 1968 . Discussion 35. As the House of Lords made clear in Soneji & Bullen , the purpose of the sequence set out in section 71(1) of the 1988 Act is to ensure the effectiveness of the sentencing procedure overall, and the purpose behind section 72A(9) is to maintain the primacy of confiscation orders by prohibiting the Court from imposing a fine or other financial order until after the making of a confiscation order, even though the Court may impose other types of sentence or order before making a confiscation order. Sections 72(5) & 72(9A) are clearly further reflections of the same purposes. 36. In this case, there is no dispute that when the learned Judge fined the Appellant £1,000 on 24 November 2006 he was acting in breach of section 72A(9) , and was thus unable to comply with section 72(5) . 37. This Court is bound by the decision in Soneji & Bullen as to the correct approach to the consequences of such a breach. 38. It is clear that the decisions of this Court in Sekhon , Ruddick, Simpson and Donohoe , as to the relevant approach are all consistent with the approach in Soneji & Bullen . It is equally clear that the decisions of this Court in Threapleton, Jones, Ghebremariam, and Khan & others are all inconsistent with Soneji & Bullen in this regard. Equally, Threapleton was decided before the seminal change of approach in Sekhon , was based on Ross (which was itself corrected and restricted in Sekhon ), and was not followed in Ruddick . Further, Jones, Ghebremariam and Khan & others all appear to have been based on the approach in Threapleton , and were variously decided without the Court being referred (as appropriate) to Sekhon, Ruddick, Simpson or Soneji & Bullen . 39. In our view therefore, to the extent that the decisions of this Court in Sekhon, Ruddick and Simpson add to the principles identified in Soneji & Bullen as to the approach to the consequences of a breach of the procedural provisions relating to confiscation orders under the 1988 Act , they should continue to be followed. In contrast, the decisions of this Court in Threapleton, Jones, Ghebremariam, and Khan & others should, in future, be disregarded when considering the consequences of such a breach. 40. The breach in this case involved the imposition of a fine before the making of a confiscation order. The fine did not impact at all upon the subsequent making of the confiscation order. The fine was in the sum of £1,000, and the Appellant made formal concessions at the later confiscation hearing as a result of which the learned Judge was able to conclude that she had realisable assets worth over £216,000. Even after deducting from that the confiscated sum of £35,635, the Appellant was still left with realisable assets worth in excess of £180,000. Clearly, therefore, the premature imposition of the fine resulted in no prejudice or injustice to the Appellant at all. 41. Against that background, we have asked ourselves the questions ‘what did Parliament intend should be the consequences which flow from this breach’, and ‘can Parliament fairly be taken to have intended total invalidity’? 42. It seems to us that the answers are clear, namely that:- i) Parliament cannot be taken to have intended total invalidity; and ii) Parliament did not intend that the imposition of a fine before making a confiscation order should render the fine itself invalid, nor did it intend that the Court could no longer proceed to consider the making of a confiscation order, and nor did it intend that the resultant order should be invalid. 43. It follows that Mr Furlong’s reliance on the Threapleton line of cases cannot avail him and, in view of our conclusions as to Parliament’s intent, it seems to us that both the Grounds of Appeal advanced are without merit. 44. We should perhaps add, in deference to Mr Furlong’s argument, that had we concluded that the fine was invalid, we would have been minded to follow the approach in Ruddick and Khan & others (rather than Threapleton ), and thus would have considered our power to impose a fine by virtue of section 11(3) of the Criminal Appeal Act 1968 . Conclusion 45. For the reasons given above, this appeal is dismissed. 46. Although there are likely to be relatively few confiscation proceedings brought under the 1988 Act in the future, we would emphasise again the duty of Counsel on both sides to bring section 72A(9) the attention of the Court.

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https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/28/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/28

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[2003] EWCA Crim 3868

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2003-12-08

crown_court

Case No: 2002/1599/D3 Neutral Citation Number: [2003] EWCA Crim 3868 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Monday, 8 December 2003 B E F O R E: LORD JUSTICE BUXTON MR JUSTICE GOLDRING MR JUSTICE MACKAY - - - - - - - R E G I N A -v- PAUL ANTHONY FINLAY - - - - - - - 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

Case No: 2002/1599/D3 Neutral Citation Number: [2003] EWCA Crim 3868 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Monday, 8 December 2003 B E F O R E: LORD JUSTICE BUXTON MR JUSTICE GOLDRING MR JUSTICE MACKAY - - - - - - - R E G I N A -v- PAUL ANTHONY FINLAY - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR D GIBSON-LEE appeared on behalf of the APPELLANT MR A MALCOLM appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. LORD JUSTICE BUXTON: This appellant, Mr Paul Anthony Finlay, faced two counts of manslaughter at a trial before His Honour Judge Broderick and a jury in the Crown Court at Winchester as long ago as February 2002. Both counts emanated from the same incident and it will be convenient to describe the incident in broad terms before we turn to the counts, the verdicts on them and the law. 2. The deceased was a lady called Jasmine Grosvenor who had a serious history of drug and alcohol abuse. She died of an overdose of heroin. The appellant was by his own admission present when she took the fatal dose. The prosecution case was on two alternative bases: first, that the appellant had personally injected the deceased with the heroin, that is to say had himself operated the syringe; or alternatively, that the appellant had cooked and prepared the heroin, loaded the syringe and then handed it to the deceased who had injected herself. The defence said that the appellant had not personally injected the deceased. She had done it herself and he had not caused any taking of heroin on her part because, as the judge put it to the jury as the defence case, she was determined to take heroin regardless of anything that was said or done by him. 3. The significance of those two different ways of putting the case was this. The allegation in both cases was of unlawful act manslaughter. The unlawful and dangerous act was said to be the offence under section 23 of the Offences Against the Person Act 1861 : "Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger life." It was accepted that if Mr Finlay had himself injected Miss Grosvenor with the heroin, as was alleged under count 1, then he would indeed have unlawfully and maliciously administered a noxious thing to that lady, and therefore would have committed the offence under section 23 . However, it was the prosecution case at trial that, even if the appellant had not himself wielded the syringe, he would have committed an offence under section 23 if he had caused an administration of the heroin, even though he did not himself physically administer it. The importance of that way of putting the case will become apparent hereafter. 4. It is necessary to say something in brief terms as to the background against which these counts were brought. The deceased's general practitioner gave evidence that she had an addictive personality and was addicted both to alcohol and to drugs. She had clearly had an extremely damaged and traumatic experience of life. She had been involved in a number of abusive relationships, had attempted suicide on several occasions and had given birth to no fewer than six children, all of whom had unfortunately had to be removed from her care. Other evidence suggested that this lady, although she took heroin as well as alcohol, did not know how to prepare heroin or to inject it: other people would inject her. 5. On the day in question she (Miss Grosvenor) had said, according to one witness, that she wanted alcohol, but it had been suggested to her that she should in fact take heroin and she had been with the accused at the time of the death. 6. Mr Finlay's evidence was that he was concerned on the day in question about the deceased's appearance and the fact that she appeared to have been attacked by somebody. He had injected another lady with heroin. The deceased said that she would like some and asked him to get it. She said that she preferred heroin to beer. He bought some heroin from his dealer and then they both went to her address where he prepared the heroin. He filled a syringe for himself and half a bag for the deceased, saying, as he claims, that it was her decision whether to take it or not. He said that she then injected herself. An hour or so after she asked for the other half-bag. He tried to persuade her not to but, as he put it, she badgered him. He filled a syringe for her, she took it out of his hand, injected herself, went into shock, and died. He agreed in cross-examination that he had asked the deceased whether she wanted the second half of the bag, but she had said that she was all right and could handle the matter. His account of the events was seriously challenged in cross-examination. 7. There was an application at half time for count 2, that is to say the count upon which Mr Finlay was eventually convicted, to be withdrawn from the jury. We will come back to that shortly. 8. The jury were given directions by the learned judge, which again we will come to, and duly retired, he having told them that they should start their consideration with count 1, that is what we might call direct injection, and only if they acquitted on that should they go on to count 2, which is the count alleging involvement, as we will call it for the moment, in injection. 9. Things did not work out in that way because the jury returned to court and said that although they were not able to reach a verdict on count 1, they had reached a verdict on count 2; which, as we have seen, was a guilty verdict. The judge was concerned by that turn of events since it involved the jury approaching the matter in an order different from that which he had advised, indeed directed, them. However, he did in due course take that verdict and discharged them from a verdict on count 1. 10. In his submissions to us Mr Gibson-Lee suggested that this course of events might imply that the jury did not properly understand the task they had in hand. That, we have to say, does not appear to have been the view of the learned judge and it does not, in our judgement, follow from what happened. It also, we are bound to note, is not a ground of appeal before us. The jury may very well have not been able to agree on the first question (that is to say, whether Mr Finlay himself did the injection) but were satisfied of his involvement in the events indicated in count 2. That, as it seems to us, is a possible view for a jury to take and in no way indicates that they did not understand the case. 11. With that rather lengthy introduction we can now turn to the substance of the appeal. Effectively the only matter in issue was whether it was open to the judge to leave to the jury the possibility that there was a version of events that caused Mr Finlay to be guilty of an offence under section 23 of the 1861 Act even though he had not himself held the syringe. There is a history to that point, which has been the subject of a number of authorities in this court. 12. In the first relevant case, R v Kennedy [1999] Crim.L.R 65, a situation very close to the present was before the court. The judge in our case pointed out in his observations on the submission of no case to answer that the facts of Kennedy were effectively indistinguishable from those in the present case and that Kennedy therefore was binding upon him. He did, however, express caution about one aspect of the judgment in that case. That was at the very end of the judgment where this court explained its conclusion that the appellant in that case might have been guilty of an offence under section 23 in those words: "Perhaps more relevantly the injection of heroin into himself by [the deceased] was itself an unlawful act, and if the appellant assisted in and wilfully encouraged that unlawful conduct, he would himself be acting unlawfully." That analysis was subject to severe criticism by the late Professor Sir John Smith in the note in the Criminal Law Review report. We would respectfully agree with that criticism. The reason is this: the court in Kennedy clearly proceeded upon the assumption that the person who supplied the syringe -- and we will call him in neutral terms "the helper" -- would have been guilty on the basis of being an accessory to an offence committed by the deceased. The reason why that analysis cannot be correct is that there is no offence of self-injection. By injecting himself Mr Bosque, the deceased in the Kennedy case, was not administering a noxious thing to another. Since no principal offence had been committed, it is black letter law of the blackest sort that there can be no offence of aiding and abetting. It was for that reason and that reason only that Kennedy was criticised. 13. That criticism was adopted by this court in R v Dias [2002] 2 Cr.App.R 5 , where the court accepted that there could be no offence of self-injection. However, this court recognised that there might be a different basis for a section 23 offence. At paragraph 25 the court specifically envisaged the possibility that there might be other ways in which an accused could be guilty, and they said this, and we emphasise this is only only an obiter observation but it is of importance: "We accept that there may be situations where a jury could find manslaughter in cases such as this, so long as they were satisfied so as to be sure that the chain of causation was not broken. That is not this case because causation here was not left to the jury." And for that reason, lack of causal connection, it was held that the conviction was unsafe and would be quashed. It is perhaps also important to note that the court in Dias did envisage the possibility that mere supply of heroin might count as an unlawful act for the purposes of the law of unlawful act manslaughter, leaving aside the issue under section 23 . 14. That is how the matter stood at the time of the trial in this case. The judge had a difficult problem in assessing what the standing of the case of Kennedy , and what it taught as to the nature of unlawful act manslaughter in the context of section 23 . After the judge's rulings, to which we will come back, this court had to return to the matter in the case of R v Rogers [2003] 1 WLR 1374 , a constitution presided over by the Vice President, Rose LJ. That was a case where the victim had injected himself while the defendant held his belt around the victim's arm as a tourniquet. The victim died. The defendant was charged with one count under section 23 and one count of manslaughter, it clearly being laid that the unlawful act in respect of the manslaughter was a section 23 offence committed by the defendant Mr Rogers. The court accepted the criticisms that had been made by Sir John Smith of the reasoning in Kennedy , and drew attention also to the criticisms made by this court in Dias . This court said: "[We] accept Sir John Smith's criticisms of the reasoning in R v Kennedy: in so far as that reasoning was based on self-injection being an unlawful act, it was wrong." However, the court also identified that, whilst it was incorrect to say that in circumstances such as we are concerned with the helper could be found liable on the basis of aiding and abetting, that did not exclude the possibility that he could be found liable on the basis of joint principleship. That was clearly the issue before the court in Rogers . The court said earlier in paragraph 6: "It was common ground between counsel that the crucial question at the heart of this appeal is whether the appellant's conduct was that of a principal: if so, he was guilty of both offences. If, on the other hand, his conduct was that of a secondary party, merely aiding the deceased, he could not be guilty of either offence, because no offence was committed by the deceased." Rogers is thus clear authority for saying that if a "helper" is in fact a joint principal with the deceased, then he can be guilty of an offence under section 23 even though the deceased is not guilty of an offence by self-administration. That follows from the classic understanding of what is meant by joint principalship, as set out in the 10th Edition of Smith and Hogan at page 161. That work of authority says: "A and B are joint principles where each does an act which is a cause of the actus reus; eg, each stabs P who dies from the combined effect of the wounds; or A and B together plant a bomb which goes off and kills P; but then each is liable for his own act, not because he has 'participated' in the acts of another; and each is liable to the extent of his own mens rea." The learned authors finish the paragraph by saying: "there are two principals and two offences". The test therefore is whether each of the parties has done an act which is a cause of the actus reus and it was that test that was applied by this court in Rogers . In paragraph 7 the court said this: "... by applying and holding the tourniquet, the appellant was playing a part in the mechanics of the injection which caused death. It is therefore, as it seems to us, immaterial whether the deceased was committing a criminal offence. There is nothing in Dias which is inconsistent with this conclusion. Indeed, on the contrary, paragraph 25 of the judgment expressly envisages that, even where a victim injects himself, the supplier of the heroin may be guilty of manslaughter, provided causation is established. Edwards ... is to like effect. A fortiori, as it seems to us, a person who actively participates in the injection process commits the actus reus and can have no answer to an offence under section 23 or a charge of manslaughter if death results. Once the appellant is categorised as such a participant, it being common ground that death resulted from the injection, no question arises in relation to causation." 15. The learned judge in his observations on the application to remove count 2 from the indictment seems to us, with great respect, strikingly to have anticipated the analysis that this court adopted in the case of R v Rogers . Having expressed caution about Kennedy , he went on at page 9F of his ruling: "So it seems to me that subject to one further point, to which I will turn almost immediately, cooking up heroin, loading it into a syringe, and then giving the syringe to someone who is clearly going to inject themselves almost immediately, is capable of coming within the terms of section 23 . Whether or not it does so in any given case is a question of fact which falls for the court to the jury and not the court to decide. The last remaining point in relation to section 23 is this. In order to establish limb two of their case, the prosecution would have to prove that the defendant caused the heroin to be administered to, or be taken by, the deceased. In my view it is not necessary for the Crown to prove that the defendant's actions were the sole cause of the deceased injecting heroin. Here, by cooking up, loading the syringe, and handing it to the deceased, the defendant produced a situation in which the deceased could inject and in which an injection by her into herself was entirely forseeable. It was not a situation in which injection could be regarded as something extraordinary. That being the case, it seems to me that on the authority of Environment Agency v Empress Car Company Limited [1999] 2 AC 22 , that it would be open to the jury to conclude that the defendant's action caused heroin to be administered to, or to be taken by, the deceased. At the end of the day this is a question of fact for the jury to decide." That clearly sets out the law as it was understood by this court in the case of R v Rogers . The test is one of causation. In this case, could it be said that the act of the deceased in taking up the syringe and using it on herself, which are to be assumed to be the facts, prevented Mr Finlay's previous acts being causative of the injection. The judge rightly referred to Environment Agency v Empress Car Company [1999] 2 AC 22 . In that case Lord Hoffman said that the prosecution need not prove that the defendant did something which was the immediate cause of the death. When the prosecution had identified an act done by the defendant, the court had to decide, particularly when a necessary condition of the event complained of was the act of a third party, whether that act should be regarded as a matter of ordinary occurrence which would not negative the effect of the defendant's act; or something extraordinary, on the other hand which would leave open a finding that the defendant did not cause the criminal act or event. That, said Lord Hoffman, with the agreement of the rest of the House of Lords, was a question of fact and degree to which, in the case before him, the justices had to apply their common sense, as in a jury trial the jury has to apply its common sense. That was exactly the way in which the judge directed himself in his observations on the application that count 2 should be removed from the jury. 16. And that is exactly how he directed the jury when he came to sum up. At page 14F he said this: "Whether or not the defendant caused heroin to be administered to or taken by the deceased is a question of fact and degree which you have to decide, and you should decide it by applying your common sense and knowledge of the world to the facts that you find to be proved by the evidence. The prosecution do not have to show that what the defendant did or said was a sole cause of the injection of heroin into the deceased. Where the defendant has produced the situation in which there is the possibility for heroin to be administered to or taken by Jasmine Grosvenor, but the actual injection of heroin involves an act on part of another - in this case Jasmine herself - then if the injection of heroin is to be regarded in your view as a normal fact of life, in the situation proved by the evidence, then the act of the other person will not prevent the defendant's deeds or words being a cause, or one of the causes, of that injection. On the other hand, if in the situation proved by the evidence, injection is to be regarded as an extraordinary event, then it would be open to you to conclude that the defendant did not cause heroin to be administered to or taken by the deceased." That was consistent with Rogers ; it was also consistent with the direction of the House of Lords in the Empress Car case. 17. Mr Gibson-Lee really advances two reasons why the judge should not have taken that view, and why he should have considered that count 2 should not have gone to the jury. The first is that on the assumption that it was the deceased who injected herself, that act of itself breaks the chain of causation between whatever it was that the accused did and the actual event of injection. That is a view that is also taken in a critical commentary on the decision in Rogers in in the Criminal Law Review. We have to say that that approach is not correct. It seeks to make the existence of what used to be called a novus actus interveniens , and can now more simply be regarded as an act of another person, as something that as a matter of law [emphasis added] breaks the chain of causation. It was that view or assumption that was rejected by the House of Lords in the Empress Car case. Intervening acts are only a factor to be taken into account by the jury in looking at all the circumstances, as the judge told them to do. 18. Secondly, Mr Gibson-Lee says that in any event the facts of this case were such that it simply was not open to the jury to conclude that Mr Finlay had caused the injection. He had done no more than form part of the background, or provide the opportunity of which the deceased availed herself:- in other words, that the case was so extreme or so clear that it was not appropriate for the jury to look at it as a case of causation at all. The judge did not take that view, nor do we. The unhappy circumstances of this case, and in particular the unhappy circumstances of this lady's life and condition, in our view indicate that it was certainly open to a jury to conclude in Empress Car terms that in those circumstances, and we emphasise that, it was what Lord Hoffman described as an "ordinary" occurrence for the purpose of the law of causation that she should have taken advantage of whatever it was that Mr Finlay did towards her or with her. It is not necessary for that conclusion to decide, as Mr Gibson-Lee suggested it was, that she was incapable of knowing what she was doing or had ceased entirely to be a rational being. All that is necessary, in our judgement, is that the circumstances should be such that it could properly be said to fall within the ambit of possible and ordinary events that she will take the opportunity given her. We quite accept that, on facts different from these, there might be more difficulty in coming to that conclusion. 19. Third, we do not accept the argument that Mr Gibson-Lee also put forward that Rogers was simply irrelevant to this case because Mr Finlay's acts were much further removed from the actual act of injection than was the act of Mr Rogers in applying the tourniquet. We of course accept that there was a difference on the facts, but the passage that we have read from Rose LJ indicates that he certainly did not think that the facts of Rogers were the only type of facts that could fulfil a case of joint principleship. It will be remembered in particular that in paragraph 8, having referred to mere supply in Dias being a possible case of liability, Rose LJ described the placing of the tourniquet and so on as a case a fortiori of a supply case. 20. We are therefore satisfied that on the facts of this case it was open to the judge to leave count 2 to the jury. Having done that he directed them in terms that we consider to be impeccable, and which accurately foresaw the law set out in Rogers , which is the law which now governs this not altogether easy area of the law of homicide. 21. For those reasons, therefore, we would dismiss this appeal. 22. MR GIBSON-LEE: My Lord, the appellant is not here. He is a prolific letter writer. Could I just raise two matters of fact in your Lordship's judgment to stop him writing to me. 23. LORD JUSTICE BUXTON: By all means. 24. MR GIBSON-LEE: The reference to Dias in the current edition of Archbold is page 96, not page 5. 25. LORD JUSTICE BUXTON: Yes, it is case 5, page 96. 26. MR GIBSON-LEE: It was a mistake. More importantly your Lordship should know that although Dias had been decided when this case was heard at Winchester, it had not reached the reports and nobody had it and so in fairness to Judge Broderick he anticipated it without actually having it. 27. LORD JUSTICE BUXTON: He seems to have done rather well in that case. 28. MR GIBSON-LEE: I am not criticising. 29. LORD JUSTICE BUXTON: He seems to have anticipated Dias . Thank you for mentioning that. 30. MR GIBSON-LEE: There is one other matter I am afraid I do have to raise. He has specifically asked me to ask you to certify a point of law of public importance. 31. LORD JUSTICE BUXTON: Well, unless you produce a question -- 32. MR GIBSON-LEE: The question is, the point I would ask is that where you do no more than supply can this offence be committed? 33. LORD JUSTICE BUXTON: No, Mr Gibson-Lee, but we are grateful for you for putting it in the way you did. Thank you very much for your assistance and thank you for coming.

2003_12_08-155.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2003/3868/data.xml

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0157b84cb206b43c70e7318307b83ecc4e42c7ce7e8089329bf7b02ec473d70e

[2006] EWCA Crim 936

EWCA_Crim_936

2006-03-29

crown_court

No: 200600579/A4 Neutral Citation Number: [2006] EWCA Crim 936 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 29 th March 2006 B E F O R E: LORD JUSTICE KEENE MR JUSTICE MACKAY MR JUSTICE GROSS - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 12 OF 2006 (RUPERT HARDY SINCLAIR) - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet

No: 200600579/A4 Neutral Citation Number: [2006] EWCA Crim 936 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 29 th March 2006 B E F O R E: LORD JUSTICE KEENE MR JUSTICE MACKAY MR JUSTICE GROSS - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 12 OF 2006 (RUPERT HARDY SINCLAIR) - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR J LAIDLAW appeared on behalf of the ATTORNEY GENERAL MR P MOSTYN appeared on behalf of the OFFENDER - - - - - - - J U D G M E N T 1. LORD JUSTICE KEENE: This is an application, under section 36 of the Criminal Justice Act 1988 , by Her Majesty's Attorney-General for leave to refer a sentence to this Court because it appears to him to be unduly lenient. We grant leave and therefore treat this as the hearing of the Reference. 2. The offender, Rupert Hardy Sinclair, was convicted on 1st December 2005 at Wood Green Crown Court, after a trial, of one count of possession of a Class C drug, namely cannabis, with intent to supply, and one count of having an article with a blade, namely a 3 inch knife, in a public place. On 5th January 2006 he was sentenced by Her Honour Judge Bevington to a community punishment order. He was ordered to perform 200 hours work for the drugs offence and a concurrent period of 50 hours work for the possession of the knife. That made therefore a total period of 200 hours work which he was required to do. 3. The charges arose out of events on 2nd April 2005. On that day police officers stopped a car being driven by the offender in East London. In the boot of the vehicle the police found a large bag containing 10 compressed blocks of skunk cannabis. Each block had been heat sealed in clear plastic. In total the cannabis weighed 4.94 kilograms. The offender was arrested, but as the police attempted to apply handcuffs he ran off. Eventually he was detained and taken to Edmonton police station. There he was found to be wearing a belt into the buckle of which was incorporated a 3 inch knife. The offender said: "I forgot about that, it's just a belt, I wear it every day." 4. In interview he said that he had collected the bag containing the cannabis in Redbridge. He said that he had not looked inside the bag but believed it to contain records. 5. The pre-sentence report recommended a community punishment order. However, the writer of it had proceeded on the false basis that the offender had no previous convictions because that was the upshot of the antecedents originally produced by the prosecution. The offender pointed out, in a very frank manner, that he did in fact have a previous conviction. Despite that, an accurate record of his antecedents was not made available until the day of the sentencing hearing itself. 6. During the course of that hearing the judge expressed the view that it would be unfair to the offender, having raised his hopes by the recommendation in the report, for that recommendation not to be followed. She noted that the previous convictions were old and unrelated to drugs and, as a result, she passed the non-custodial sentence to which we have referred. 7. It is now submitted, on behalf of the Attorney-General, that in circumstances such as these an immediate custodial sentence was called for and that a non-custodial outcome was wrong in principle. Mr Laidlaw, who appears on behalf of the Attorney-General, refers to a number of authorities. Some of these establish that, even though cannabis has been re- classified as a Class C drug, the previous guidelines which existed when it was a Class B drug still apply (see the case of R v Mitchell [2004] EWCA Crim 2945 and R v Donovan [2004] EWCA Crim 1237 . This reflects the fact that Parliament, while re-classifying cannabis, increased the maximum sentence for offences involving a supply of it to 14 years' imprisonment, the same maximum as for offences involving the supply of Class B drugs. There is no dispute between the parties in this case that those earlier guidelines apply. We accept that that is indeed the position. 8. While the Attorney General accepts that the offender has no relevant previous convictions, it is submitted on the Attorney's behalf that this offender was in possession of a significant quantity of cannabis, nearly 5 kilos, with intent to supply. The circumstances surrounding the pre-sentence report did not, it is said, justify a non-custodial sentence. 9. The submission is made by Mr Laidlaw that the non-custodial sentence here failed properly to reflect the seriousness of the offence, the aggravating features present, the need to deter others and the public concern about offences such as this. 10. As we have indicated, his case is that a non-custodial sentence was wrong in principle. It is suggested on the basis of other authorities that the appropriate sentence here, at first instance, would have been one of 18 months' imprisonment. That is particularly based on the cases, apart from the well-known one of R v Aramah (1982) 4 Cr App R(S) 407, of R v Theophil [2003] EWCA Crim 1288 and R v Lappalainen [2005] EWCA Crim 1458 . 11. It is acknowledged that, in this Court, an allowance has to be made for double jeopardy and for the extent to which the offender has actually carried out the unpaid work since the sentence was passed. He has, it is agreed, done 78 hours of the 200 hours unpaid work which he was required to do. But, taking all those matters into account, it is said on behalf of the Attorney-General that an appropriate sentence, for this Court now to pass, would be one of 9 months imprisonment. 12. This offender is aged 47. He has no previous convictions for drug offences, although he does have a number of convictions for offences of burglary, theft and handling. On the other hand, as we have already indicated, those offences are of some age, the most recent of them being in 1994. So there was a substantial period when he has kept out of trouble. He is married and has two adult children. He is self-employed. 13. In our judgment, the starting point today has to be the line of cases which began with R v Aramah, which indicate a bracket normally of a custodial sentence of between 1 and 4 years' imprisonment in cases such as this. In that decision Lord Lane, C.J., said that at the lower end of the scale will be the retailer of a small amount to a consumer. One cannot regard this as being such a case. The possession of almost 5 kilos of cannabis with intent to supply makes it a case above the bottom level of the bracket indicated. 14. Having said that, we accept the proposition advanced on behalf of the Attorney-General that at first instance a term of imprisonment of some 18 months was appropriate here. The mitigating features have to be considered, of course. They do not include a plea of guilty because this matter was contested. The eventual total sentence had to reflect the possession of the knife. The sentencing judge placed great weight on the family circumstances of the offender, including the support of his wife, who wrote a very persuasive letter about the impact which imprisonment of the offender would have on her and the family. The judge was also influenced by the fact that the offender had "had his hopes raised" by the favourable pre-sentence report prepared on an erroneous basis. 15. We have to say that we do not regard that last aspect of the case as of any real significance. A pre-sentence report will not uncommonly recommend a community sentence and thus raise the hopes of an offender. It is not then unfair for the judge to take a different view and to conclude that, despite that recommendation, a custodial sentence is appropriate. We can see that there might be some unfairness if the absence of previous convictions made a non-custodial sentence the right outcome, that is to say, if that made all the difference. But that is not the case here. 16. It seems to this Court that an immediate custodial sentence was required in this case at first instance and that the community penalty imposed was lenient and unduly so. As already indicated, we agree with the Attorney General that a term of 18 months' imprisonment would have been appropriate at first instance. However, we have to deal with the matter today. We must allow for the fact that Mr Sinclair has already been sentenced once and was allowed to remain in the community to serve his sentence. A custodial sentence now bears particularly heavily in such circumstances. We have to make an appropriate allowance for this factor, normally described as double jeopardy. That, in our view, would alone reduce the appropriate term here to one of around 9 months' imprisonment. In addition to that, we have to allow for the hours which the offender has worked under the community punishment order. It is a very significant proportion of the total, close to 40%. 17. When we take that into account as well, it seems to this Court that one would be left with a short period of custody and we then have to apply our discretion as to whether that is truly merited, in the present case. In our judgment, custody is not now merited given the circumstances to which we have referred. As a matter of discretion, in all the circumstances, we decline to interfere with the sentences which were passed below.

2006_03_29-772.xml

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[2024] EWCA Crim 103

EWCA_Crim_103

2024-02-13

crown_court

Neutral Citation Number: [2024] EWCA Crim 103 Case No: 202300637 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT LEWES HHJ ARNOLD T20200686 Royal Courts of Justice Strand, London, WC2A 2LL Date: 13/02/2024 Before : PRESIDENT OF THE KING'S BENCH DIVISION MRS JUSTICE CHEEMA-GRUBB DBE and MR JUSTICE SWIFT - - - - - - - - - - - - - - - - - - - - - Between : GRAEME BROOKER Appellant - and - REX Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2024] EWCA Crim 103 Case No: 202300637 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT LEWES HHJ ARNOLD T20200686 Royal Courts of Justice Strand, London, WC2A 2LL Date: 13/02/2024 Before : PRESIDENT OF THE KING'S BENCH DIVISION MRS JUSTICE CHEEMA-GRUBB DBE and MR JUSTICE SWIFT - - - - - - - - - - - - - - - - - - - - - Between : GRAEME BROOKER Appellant - and - REX Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr M Graffius KC (instructed by Cheesemans, Solicitors ) for the Appellant Mr G Burrows (instructed by the Crown Prosecution Service ) for the Respondent Hearing dates : 13 December 2023 - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment was handed down remotely at 2pm on Tuesday 13 February 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives. ............................. WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. Dame Victoria Sharp, P. Introduction 1. On 1 December 2022, at the Crown Court at Lewes, the appellant, Mr Graeme Brooker, was convicted after a trial of two counts of theft (Counts 1 and 2). He was acquitted of a third count of theft (Count 3). On 13 January 2023 at the same court he was sentenced to three years imprisonment. He appeals against conviction by leave of the single judge, who granted an extension of time of 60 days. 2. The appellant has three adult siblings: Cheryl Brooker (“Ms Brooker”), the appellant’s older sister), Tracey Brooker and Glen Brooker. On all three counts that he faced, the appellant was alleged to have stolen money from Ms Brooker. 3. The appeal is concerned with the fairness of the trial. It is said that there was a clear challenge to Ms Brooker’s allegations by the appellant: in his interviews under caution, in his defence statement and in the evidence he ultimately gave in his own defence at the trial. Notwithstanding, the appellant’s former counsel, Mr Martin-Sperry took a decision at an early stage not to challenge Ms Brooker’s evidence by cross examination, a stance he maintained at trial in the face of a ruling from the judge that he was professionally obliged to do so. It is said in this appeal that Mr Martin Sperry’s professional misconduct and incompetence in this (and other) respects resulted in significant unfairness to the appellant such that it renders his conviction unsafe. The factual background 4. Ms Brooker had been a senior social worker. Since 2005 however she had suffered from ill health, including epilepsy. Between 2005 and 2012 she had a series of strokes which led to weakness on her left side and significantly reduced mobility as well as hearing loss. Ms Brooker took medical retirement in 2012. She had been prudent and saved for her retirement; she had also received a substantial lump sum from a critical illness policy as well as a pension and disability living allowance. 5. Following her retirement, it was agreed evidence that the appellant had given up work to care for Ms Brooker and assisted her with managing finances, albeit there was a dispute about the degree of access and control he was given to her online banking and whether he had possession of her bank card. After about four years, the appellant returned to work and Ms Brooker reduced the amount that she paid him for looking after her. By the end of 2018, the relationship between the appellant and Ms Brooker had broken down: Ms Brooker wanted Tracey Brooker to move into a bungalow which the appellant had had built for Ms Brooker: the building of it was financed by Ms Brooker, but the bungalow was in the garden of the appellant’s family home, and he did not agree with Tracey’s lifestyle. Ms Brooker broke off relations with the appellant and turned more consistently to her other siblings. 6. The indictment covered a seven-year period between the beginning of January 2013 and the end of December 2019. The thefts alleged had all taken place by March 2019. Count 1 alleged that during the indictment period, the appellant stole money belonging to Ms Brooker by drawing cheques on her Barclays bank account. Count 2 alleged that he stole from her by making online payments from the same account. Count 3 alleged that over the same period he had stolen money by making ATM withdrawals also from that account. Ms Brooker’s account and the prosecution case 7. The allegations first came to light in March 2019 when a police officer took an account from Ms Brooker in the presence of and with the assistance of her sister Tracey. 8. In July 2020, an ABE interview was conducted with Ms Brooker. It lasted nearly three hours and formed the principal prosecution evidence at trial. Ms Brooker was accompanied by an appropriate adult (unrelated to her) to facilitate communication. Ms Brooker told the police that following her last stroke in 2012 she found numbers, spelling and reading difficult. She could not do maths anymore but had since learned to recognise her numbers up to 50. She had difficulty recognising or retaining larger sums. Her spelling was phonetic and she needed help with shopping, housework and personal care as well as with managing money. 9. Ms Brooker said initially her mother had taken care of these things for her. When her mother died in 2014 her the appellant took over her finances so she did not get into debt. She told the police that the appellant had wanted to look after her following her medical retirement because she had looked after their parents in the past. She said that he arranged for a power of attorney to be signed and he would give her money as she needed it, from her pension and her disability living allowance (it was not suggested by the prosecution that the appellant had ever used or abused the power of attorney). Ms Brooker said she wanted to try and help the appellant and his wife; and some payments were made to them with her knowledge, including money for the appellant’s Open University course. But over time they seemed to expect more money from her. There came a stage where they were asking for £30,000. She did not know what to do and it was then that Tracey had found her crying. She and Tracey had looked through the accounts and Ms Brooker then realised quite what sums she had been paying out - payments that had been made, she said, without her knowledge. Ms Brooker said she was paying sums to the appellant for things such as dog-walking and gardening but she did not need either of those services. She also said that the appellant held her bank card to use to withdraw cash, because she couldn't get to the bank herself and it was a weight off her mind that he was safeguarding her and ensuring that she got the money she needed. She believed her sister-in-law, Jen (the appellant’s wife) had also made cash withdrawals. The appellant’s wife was never interviewed by the police. 10. Ms Brooker said that at the time she retired she knew certain payments were already set up, such as her utility bills which were met by direct debit. When her brother decided to build a bungalow on his property for her to live in, the invoices were sent to him, and he would pay them from her account. There was no evidence before the jury of how those payments, made using the faster payments system with internet banking, had been set up. 11. The total disputed amount transferred to the appellant’s account was £74,617, including a single payment of £20,000 to the appellant’s young son with the son’s name as the reference. There was an issue in the case as to whether these payments had been put in place by the appellant or Ms Brooker herself. Ms Brooker was shown a number of cheques drawn on her bank account. She explained that the appellant held her chequebook. He wrote the cheques out because she could not write cheques anymore and she would sign them. Sometimes she signed cheques for him to make out later when they were needed. She was asked about a cheque used to pay off the appellant’s credit card bill but said she did not remember agreeing to do that. Including the credit card bill, the cheque payments in dispute totalled £13,932. 12. The police obtained Ms Brooker’s bank statements and those of the appellant. A number of cash withdrawals, amounting to £84,492, were identified. The withdrawals had been made using cash machines at different locations, some of which were close to Tracey Brooker's address, where Ms Brooker had stayed from time to time. Other withdrawals were made close to the appellant's home. There was no CCTV evidence to show who had made these withdrawals. The cash withdrawals formed the basis of Count 3. At trial, the officer in the case expressed surprise that any charge had been pursued in respect of the cash withdrawals. As we have said, the appellant was acquitted on Count 3. 13. On Counts 1 and 2 the prosecution's case was that the appellant had taken advantage of his sister who had obvious medical issues which made her vulnerable; and that under the guise of helping her manage her financial affairs he had set up payments which she did not authorise and had obtained her signature on cheques which were not for her benefit and which she would not have agreed to sign. By doing so he had used up most of her savings. The appellant’s account 14. On 6 September 2019, so some ten months before the ABE interview, the appellant was interviewed by the police. He said that he had given up work to look after his children and care for Ms Brooker and she had agreed to pay him on a monthly basis to be a stay-at-home dad. When the police pointed out that he received a carer’s allowance for her, he described the sums from his sister as gifts rather than payments. The sums she gave him were labelled by her in her bank account as being for “cleaner, gardener, laundry, shopping, loan repayment, dog walker, window cleaners” as well as for G&J Brooker which was his joint account with his wife. The appellant said these were Ms Brooker’s choice of descriptions and might have been to do with the way she claimed her benefits. Other direct payments were made over time for such things as his university degree fees which she had agreed to pay, contributions towards holidays they had taken together, to pay off his credit card and for him to buy a new car. He had never had access to Ms Brooker’s bank accounts and could not have set up direct debits on her account. She managed all her own bills, set up her own transfers and the only time he helped her write cheques would be at her request because her writing was illegible. He had made some cash withdrawals from the cash point on her behalf because of her limited mobility, but he would always give the card back afterwards. Other relatives including his son and his wife had also done this. 15. In November 2017, the appellant had returned to work, and she had reduced the amount she was paying him monthly to £600. When their mother died he had decided to build a bungalow especially adapted for her to live in, on his own family’s property. It had two bedrooms, one for a carer to occupy should that become necessary in due course. Although Ms Brooker had paid for this, having sold her previous home, the appellant had not charged for the land, and he had since paid her back £250,000. No sums transferred in respect of this building project, which had come from Ms Brooker’s NatWest account, were the subject matter of the indictment. 16. The appellant told the police that Ms Brooker had medical issues but was strong willed. She was in control of her bank account, and he did not control it for her. She was lying about him receiving money from her account without her knowledge and consent. He said this was probably because she did not want to reveal to their siblings the extent to which she had given money to him over the years. As well as the criminal investigation there was an ongoing civil dispute about the bungalow. He was content for the police to look into all his correspondence and the messages between him and his sister on all of these matters. He provided some documentary material including copy emails written by his sister which referred to some of the monthly sums for gardening and dog walking, as demonstrating her knowledge of the payments. 17. There was, accordingly, a stark issue between the prosecution and defence as to whether, as the prosecution alleged, the appellant had taken effective control of all Ms Brooker’s financial affairs and abused his position to steal from her, or, as he claimed, she managed all her own bills and was fully aware of and in control of all payments made from her account by whatever means, even if he sometimes wrote out cheques for her to sign and took out money from cashpoints at her request. The pre-trial proceedings 18. The appellant had the benefit of a representation order held by Cheesemans Solicitors. Mr Martin-Sperry was instructed by Cheesemans by about September 2021. Mr Martin-Sperry was called in 1971 and has been in practise at the Bar for more than 50 years. 19. On 10th December 2020, the appellant’s case was sent to the Crown Court. On 7 January 2021, he appeared for a pre-trial preparation hearing at which he entered not guilty pleas. 20. On 13 January 2021, the prosecution made an application under section 16 Youth Justice and Criminal Evidence Act 1999, for a special measures direction for Ms Brooker: for her ABE interview to stand as her evidence in chief and for cross-examination to take place via a video link. 21. The basis of the application was Ms Brooker’s health difficulties. She takes medication for epilepsy, Crohn's disease, high blood pressure, anaemia, depression and to prevent further strokes. Her GP had provided a statement to the prosecution on 5 October 2020, in which he summarised her history of strokes and described her has having ongoing anxiety and depression. He also said she suffered from “dissociative identity disorder” a condition which manifested itself when she was particularly stressed. Having known her for many years however, he expressed the opinion that she was alert and orientated, had a good memory for short- and long-term issues, the capacity to understand the long-term implications of giving away her life savings and she would remember authorising payments and transfers. 22. The reasons why the special measures sought were likely to improve the quality of Ms Brooker’s evidence were expressed in these terms: “The witness / victim has suffered a series of strokes that have resulted in certain physical and cognitive impairments. Walking is difficult and laborious for her. Her General Practitioner also states that stress can cause her to manifest dissociative and identity disorder. Cheryl is intelligent but can become confused when fatigued. The witness / victim has a dissociative identity disorder used to be called "multiple personality disorder". An episode could result in gaps in the witness’ memory which would defeat the point of bringing her as a witness, and an episode could result in the witness acting completely contrary to her normal behaviour which would provide a greatly misleading impression on the judge and jury.” 23. On 1 February 2021, the prosecution’s special measures application was granted. On 4 March 2021, following discussion with Ms Brooker, the prosecution made a second special measures application on the basis of fear and distress as well as disability. It also applied pursuant to section 28 of the Youth Justice and Criminal Evidence Act 1998 for pre-recorded cross-examination to take place. In this respect the application stated: “Section 28 has been requested by witness care alongside the evidence in chief already approved. Pre-recorded cross examination will help achieve best evidence for Cheryl because her disabilities may impact the detail and quality of evidence she can give in an open court room with the knowledge the Defendant will be there. ” 24. The second application was granted. On 22 April 2021, the Court made the standard section 28 directions required by the criminal procedure rules (Crim. PD 6.3): cross-examination questions to be submitted by defence counsel by 10 May 2021; a ground rules hearing to take place on 17 May 2021 and the cross examination to be conducted by defence counsel on 27 May 2021 with the appellant to attend. The court directed that the trial was to be listed for 29 November 2021, with a time estimate of 4 days. 25. On 4 April 2021, the defence statement was served. Consistent with the appellant’s account in interview, most of Ms Brooker's evidence was denied. The defence case was that the appellant did not have access to her online banking; she would write her own cheques although he sometimes wrote them out for her; she set up online payments herself and he only withdrew cash for her when she gave him her card which he would return to her afterwards. The appellant asserted that although she had agreed to pay for a variety of things for him and his family, she arranged those herself, and she was in control of her financial affairs. The defence statement also included a table of ATM cash withdrawals which the appellant said could not have been made by him. Finally, the appellant invited the prosecution to consider whether Ms Brooker’s testimony was reliable in light of what was described as “a diagnosis” of dissociative identity disorder. 26. Ms Brooker was a fully bound witness at trial. Few, if any of the numerous case management directions made by the Court had been complied with. The directions referred to in para 24 above were no exception. No questions for cross examination were submitted within the timetable laid down (indeed none were ever submitted). The hearing on 17 May 2021 was listed for a mention only. An adjourned ground rules hearing was listed for the 13 September 2021. 27. On 10 September 2021, the appellant’s solicitor, Mr Barry Cheeseman, sent an email to the court. This said: “[W]e have advised David Martin-Sperry - trial counsel- of the position last week. He takes the view that he will not be cross examining the complainant due to her fragile medical condition. However, we have not had that confirmed in an advice yet. We have requested that he get back to us by 4:00 PM latest today so we may confirm the position in writing to yourselves and the CPS.” 28. Mr Martin-Sperry telephoned the court the same day. He told an administrative officer that he had been instructed recently. A note was made of what he said: “it is not appropriate to cross examine the witness as she is very fragile and has had two strokes already and he will propose that her statement is read instead but will not cross examine the witness under no circumstances.” The Resident Judge ordered that the case be listed for mention only, rather than for the ground rules hearing which had been due to take place. 29. Mr Martin-Sperry then served on the prosecution a note he had prepared, dated 11 September 2021. In the note (the first note) he urged the police to review the case: he said that in view of the witness’s medical history he was reluctant to cross examine her at all, even to suggest simply that she was wrong in what she said, if that ran the slightest risk of potentially triggering an adverse reaction in her health. He provided a copy of research he had carried out on dissociative identity disorder and said he believed that because of her mental state Ms Brooker may “in her own mind have adopted as factually correct what from her would be essentially hearsay material, being unable to distinguish between what she has worked out first hand for herself and what she may have been told by [other] siblings.” He concluded: “That said, at any trial that takes place the defence proposal would be for the Complainant’s statement be read, but subject to an agreed resume/explanation of her various medical conditions, together with an opportunity for the defence to explain why it is undesirable that she be subjected to any cross-examination arising out of that statement. It may be that this would be an appropriate case for the Defence briefly to ‘set out its stall’ to the jury before any evidence in the case is called. I can in any event confirm that for my part, I will not be cross-examining Cheryl, allowing the s 28 hearing date now to be vacated.” 30. The proposed date for the section 28 cross examination was then vacated. The prosecution obtained a statement from Ms Brooker dated 26 September 2021 to deal with the question of dissociative identity disorder. She explained that during stressful or traumatic times in her work as a social worker she would, “switch off the part of me that felt emotions and just be the other professional me until the situation was dealt with.” She had been told by a therapist (since deceased) that what she experienced was dissociation, a normal reaction to trauma, albeit with a risk that it could develop into dissociative disorder. On the therapist's recommendation she had spoken to her GP, but the GP could not find anyone to refer her to. She said, “I do have some difficulties with my short term memory that are due to the stroke, I don't have blank spots in my long term memory, I haven't had any hallucinations, and the only person in control of me is me.” In a further report dated 28 September 2021, her GP for his part, confirmed that Ms Brooker had told him in 2010 that a private psychologist had diagnosed her with dissociative identity disorder which was only an issue under severe stress or when she was very ill. He was unable to find a specialist to see her, but in treating her for over 22 years he had observed no variation in her personality, including at times when she was unwell and when he had to examine her in circumstances that caused her distress. 31. On 8 October 2021, a further case management hearing took place attended by Mr Martin-Sperry. Amongst the case management directions that had still not been complied with, were the collation by the defence of any suggested edits to the ABE interview. Mr Martin-Sperry maintained his stance regarding cross examination and the prosecution indicated that the case would be reviewed. 32. On 29 November 2021, there was a further case management hearing attended by Mr Martin-Sperry. The prosecution said it intended to proceed. Mr Martin-Sperry sought disclosure of Ms Brooker’s medical records so an expert’s report could be commissioned. Further and extensive case management directions were made, including for the disclosure of Ms Brooker’s medical records . 33. On 19 January 2022, a further pre-trial review took place. A different counsel was in attendance for the defence. The prosecution said on this occasion that they had complied with the orders made and were ready to proceed. The case remained in the warned list for March. The hearing before Recorder Roques 34. On 2 March 2022, the case was listed for trial before Mr Recorder Roques (now HHJ Roques). The appellant was present in court. We commend Mr Recorder Roques’ approach to the case as it was presented to him. The parties were still not ready for trial. The prosecution had not disclosed Ms Brooker’s medical records and no edits for the ABE interview had been proposed by the defence. 35. Mr Martin-Sperry produced a hard copy bundle of documents (many of which were eventually uploaded to the Crown Court Digital Case System (the DCS) and relied on at trial). The Recorder noted that very few of the previous directions had been complied with, either by the prosecution or the defence. The defence position was still that Ms Brooker could not be cross examined. Mr Martin-Sperry reiterated his request for the entirety of the witness’s medical records, maintaining this was the barrier to serving ABE edits, instructing a defence expert to report and making any other kind of progress in the case. He also suggested that “false memory syndrome” may be an area of expert evidence he would seek to explore. Mr Recorder Roques deprecated the failure of both sides to list the case for non-compliance or to mention the lack of trial readiness at the pre-trial review held in January 2022. 36. Mr Recorder Roques summarised the situation concisely: “..the Defence decided not to cross examine the witness at all, notwithstanding the fact that her evidence is challenged almost in its entirety. The reason for their having taken this stance is that Defence counsel unilaterally decided that to cross examine the witnesses would inevitably cause her stress and this may in turn have an adverse impact on her health….. There is no medical evidence in the hands of either party to indicate this is likely and the Crown take the view the complainant is both competent and more than fit enough to give evidence. As a result of the above the complainant has not been warned to attend and the Crown take the view that if she is to be called they will revert back to seeking a s28 timetable.” 37. The Recorder observed that whether a witness is medically fit to be cross examined is a matter for the court to decide based on expert evidence and the availability of appropriate special measures, not for defence counsel. He noted that defence counsel had indicated he may wish to consult with the Bar Council and the Recorder had warned him that the court should be notified as a matter of urgency if counsel took the view that he should withdraw. 38. The orders made by the Recorder included: “10. Today’s fixture broken. 11. Whether the Complainant is medically fit to be cross examined is a matter for the court to decide based upon expert evidence and the availability of appropriate special measures, not for defence counsel. NB- Defence counsel (Mr Martin Sperry) indicates he may wish to consult with the bar counsel ethics line. Counsel informed that it is a matter entirely for him but the court are to be notified as a matter of urgency if counsel takes the view he should withdraw. Defence agree that no such conversation will be able to take place until the experts have provided reports on the Complainant’s health (see orders below). 12. Defence to upload a written list of outstanding disclosure requests with justification as to why items should be disclosed by 16 th March 22. This document need not include medical records which are dealt with specifically below but should identify which bank account statements are sought and why. 13. Prosecution Jury Bundle to be uploaded in digital form by 16 th March 22 (hard copy given to defence today). 14. Prosecution to serve the Complainant’s medical records on the Defence by 23 rd March 22. These records are to include (unredacted) information that could impact her current state of health including any history of strokes, TIAs or epilepsy as well as entries about DID. 15. Prosecution to serve an expert report in relation to whether the Complainant is suffering from DID and if so, what impact it has on her by 11 th May 22. 16. Prosecution to serve any intermediary report (if relied upon) by 11 th May 22. 17. Addendum Defence Statement to be served by 22 nd June 22 outlining what issues the Defence will ask the jury to consider as potential explanations for the Complainant’s assertion that the Defendant has defrauded her. 18. Any Defence expert to be relied upon by 22 nd June. This is to include: any expert as to DID, any expert in relation to the Complainant’s health more generally and her ability to give evidence specifically, any expert in relation to False Memory Syndrome. It is made clear that this defence will not be left to the jury absent expert evidence. 19. Defence to supply ABE edits to Crown by 22 nd June 22 20. Defence Jury Bundle to be uploaded in digital form by 22 nd June 22. 21. Defence to notify the court in writing whether they seek to cross examine the Complainant and if not, what the legal basis for that decision is, by 22 nd June 22. 22. PTR fixed for 24 th June with a time estimate of an hour. Trial counsel to attend (both confirm today they are available)…. 24. Trial fixed for 21 st November 22 with a current time estimate of 7 days. This is on the basis that the Complainant will need to be called (whether via s28 or over a video link) and experts will be required on both sides. 25. Either party is to notify the court as a matter of urgency if the orders above are not complied with… 39. On 16 March 2022, Mr Martin-Sperry uploaded a further note to the DCS (the second note). He referred to the first note of 11 September 2021 and said that the appellant’s solicitors had written to the prosecution on 4 November 2021 drawing attention to it. He continued: “The issue I was concerned about was not the complainant’s diagnosed DID [dissociative identity disorder] which is not in any sense a life threatening condition, but rather her history of suffering strokes: it is well established that strokes are in some instances capable of being stress induced, where such stress leads to an increase in blood pressure, the stroke then being occasioned by an interruption to the flow of blood to the brain. It is for this reason that the defence required the totality of her medical records to be disclosed, so that relevant documents could be seen by experts in these two fields - an expert in strokes to deal with the one condition, and a psychologist familiar with the dissociative identity disorder to deal with the other. It is not, in the first instance at least, anticipated that reports from either expert would require any further investigation to be conducted in person with the complainant herself. The purpose of the former will be to quantify the risk, if such a risk exists, of a further ‘stroke episode’ being provoked by the very fact of the complainant being required to give her evidence-in whatever circumstances that may take place- and having to be cross examined about her account. Her evidence would of necessity be centred round a detailed examination as to whether the account she has given- and the surrounding circumstances of how she came to give it- is in any sense reliable. This might be expected, however conducted, to place her under some considerable stress: whether that can be conducted without occasioning any additional risk to her health will, with respect to the court, be a matter for medical and not legal determination.” 40. In this second note, Mr Martin-Sperry went on to make further requests for disclosure of Ms Brooker’s full financial position, including records of every bank account in her name, together with copies of each and every cheque signed by her” which he said would demonstrate that she was largely in control of her own finances and would be inconsistent with the prosecution’s analysis of the financial and personal relationship between the appellant and his sister. 41. On 5 May 2022 , the prosecution disclosed Ms Brooker’s medical records. 42. On 24 June 2022, HHJ Arnold conducted a further pre-trial review attended by Mr Martin-Sperry. Mr Martin-Sperry maintained his refusal to cross examine Ms Brooker. The judge adjourned the case for 14 days directing that a letter from the Chief Crown Prosecutor detailing the failures on behalf of the Crown should be filed by 4 July, accompanied by a full timetable through to the trial date. 43. On 1 July 2022, the appellant wrote to the Crown Prosecution Service by email asking for a review to be undertaken of the decision to prosecute him. He referred to the documentary material he had provided at interview and gave some specific details of cash point withdrawals which he said could not have been made by him because of their location at times when he was elsewhere. He expressed his frustration with the police and said: “I have no previous experience of the legal system and have been shocked by the lack of interest in actually looking at the evidence and the amount of public money and court time that has already been wasted in this case….I am assured by both my solicitor and barrister that this is not unusual and that when the case finally gets to court the prosecution will not be successful, but as an outsider to the legal system it amazes me that the case has to run its course even though it does not pass the initial evidential stage.” 44. On 4 August 2022, the prosecution served an expert report from Dr Roderick Ley, a consultant forensic psychiatrist. Dr Ley explained the distinction between dissociation, a perfectly normal process which may happen during a traumatic incident so that a person dissociates from the overwhelming event to escape fear pain or horror, and who may thereafter find it difficult to remember the details of the experience, and dissociative identity disorder, previously referred to as multiple personality disorder. 45. Dr Ley expressed the firm conclusion that Ms Brooker did not suffer from dissociative identity disorder. He noted she had never been formally diagnosed with any mental health disorder despite having presented to health care professionals in the past with depressed mood, anxiety and emotional problems which she related to the impact of her work as a social worker. Nor could Dr Ley find any compelling evidence that she suffered from dissociative amnesia over the period of the indictment. Further, whilst recognising this was ultimately a matter for the jury, he expressed the view that her history of mental health problems would not alone render her testimony unreliable. The most likely diagnosis was a recurrent depressive disorder. He did note that she had problems with word finding, reading and an inability to process numbers and perform calculations. 46. The prosecution subsequently obtained and served the report of an intermediary which identified a number of communication issues. The intermediary also assessed Ms Brooker as having significant problems with numbers and money, particularly with zeros. The intermediary described well known strategies, familiar to every Crown Court and defence advocate, which would enable the witness to give her best evidence. 47. On 13 October 2022, in light of these reports, the prosecution made a third special measures application. This was for Ms Brooker to give her evidence at the trial with an intermediary, and through a live link from a police station where her mobility needs could be accommodated. On 7 November 2022, that application was granted. 48. On 9 November 2022, the appellant sent an email to Mr Martin-Sperry . Privilege having been waived we have seen it. The appellant endorsed Mr Martin-Sperry’s decision not to cross-examine Ms Brooker. In that email, the appellant said: “[M]y counsel Mr David Martin-Sperry has repeatedly made clear to the court his intention not to cross examine Ms Cheryl Brooker if there is a risk of it having a negative impact on her health and I fully endorse his decision to leave the courtroom should Ms Cheryl Brooker be asked to give evidence in any format.” 49. On 10 November 2022, Mr Martin-Sperry made an entry on the DCS which said that if the prosecution insisted on calling Ms Brooker, he had his client’s full support to leave court while that happened. By then, the defence were in possession of Ms Brooker’s medical records, the expert report of Dr Ley and the report of the intermediary. Mr Martin-Sperry did not then or subsequently, provide any legal basis for his refusal to cross examine Ms Brooker. He reiterated his suggestion that Ms Brooker’s evidence should be put before the jury in writing and that evidence would be called by the defence to contradict it. On 17 November 2022, the defence uploaded to the DCS a number of documents. Some were inadmissible: others were introduced into evidence during the defence case. A further pre-trial review took place the week before the trial. The trial 50. The trial began on 21 November 2022. The jury was not sworn on the first day which was wholly taken up by legal argument, focusing, yet again, on the cross examination issue. We have the advantage of full transcripts. 51. Mr Burrows who appeared for the Crown, as he does in this appeal, confirmed to the court that the case had been reviewed in light of the documents submitted on 17 November 2022 and his instructions were to proceed. 52. Mr Burrows summarised the position with regard to Ms Brooker. In support of the submission that there was no bar to her cross examination using appropriate methods, he relied on the passage of time since her last stroke in 2012, the report of Dr Ley and the use of the intermediary. He submitted that if the defence case was not put in cross examination then then the defendant should be warned that an adverse inference would be drawn viz. that if in due course criticism was made of Ms Brooker’s reliability and truthfulness, the jury would be directed that she had not been given an opportunity to answer those points. 53. Further, Mr Burrows submitted the defence approach was a deliberate one to avoid putting the case to Ms Brooker and allowing her to answer it as she had done in her ABE interview. The core of the prosecution case was that Ms Brooker had been paying the defendant about £1,000 a month over and above what she gave him for caring for her and those payments were described on her account as being for such services as gardening and dog-walking but she had not authorised them. He said whatever the family history, these matters called for an explanation from the defendant. Ms Brooker should have an opportunity to answer the defendant’s explanation that the defence was going to give the jury. This was an obligation defence counsel had which he should not be allowed to side-step. 54. In his response, Mr Martin-Sperry said he had taken a personal and professional decision for the following reasons: “[T]he defendant has a decade of experience with this particular person. She has had numerous transient ischemic attacks, TIAs, which are mini strokes. They have an effect on her, which is she then comes back to normal, but slightly less normal than before she had that particular one. She's had numerous of those. She has had a number of strokes and her medical history of strokes I don't think has been disclosed to the defence, but the defence knows precisely because he's been living with her and assisting her for quite some time. He knows what is liable to happen. In those circumstances I have taken advice. I am not prepared, and I’ve put down my marker very clearly.” 55. He said that if he were to be criticised, he would withdraw from the case. He said that if it was to be suggested that the defence were taking advantage of Ms Brooker by not cross examining her, then he “would not stay on board in the case” because it was his decision. He said he had had a number of conferences with the defendant (i.e. the appellant) and the defendant’s wife and he had no intention of subjecting Ms Brooker to further medical examination or cross examination – implying thereby that his own assessment of the purported risk to Ms Brooker’s health was based on what he had been told by the appellant. In the absence of any evidence from the defence on the issue, Mr Martin-Sperry nonetheless revisited the reference to dissociative identity order in the initial statement from Ms Brooker’s GP. He submitted that the prosecution was withholding evidence. When these submissions did not find favour with the judge, Mr Martin-Sperry said he intended to absent himself from the courtroom while Ms Brooker’s evidence was adduced. 56. The judge did not give a formal ruling. Her conclusion however was that whether a witness is able to give evidence and be cross examined is a matter for the court. The judge said Ms Brooker was fit and available for cross examination with an intermediary using a video link and whatever the defendant might think, there was no (evidential) support for a fear of risk to her health if questioned. Mr Martin-Sperry said he would consider withdrawing from the case. 57. The judge rose for a short period and then provided counsel with the draft of the material part of a written direction s he proposed to give to the jury in the event that Mr Martin-Sperry maintained his stance. This said: “you may conclude that there is no sensible explanation for Cheryl Brooker not having been afforded the opportunity to answer questions.” 58. In further submissions that afternoon, Mr Martin-Sperry criticised the draft. He maintained that the appellant should not be held responsible by the jury when counsel had taken what he described as “a personal and professional” decision not to cross-examine Mr Brooker. He said he would ask the defendant himself to describe the strokes he knew her to have suffered. The judge pointed out that the defendant was not a medical professional and that he had agreed with his counsel’s decision. It followed that he knew the consequences of it. There then followed these exchanges: “Mr Martin-Sperry: He hasn't agreed with it. I have simply told him, that is what I'm going to do.” Judge Arnold: Well, I thought you'd indicated quite clearly this morning that he agreed with it. Mr Martin-Sperry: Well, yes, but it’s not something – it’s not something I have negotiated with him. I have simply told him, this is what I am going to do, and if he doesn’t agree with it, he can withdraw instructions from me…. And he has not chosen to withdraw instructions. Judge Arnold: well then, he agrees with it, I would imagine. Mr Martin-Sperry: well, he respects it. I think there is a difference in language here. He respects the decision that I have taken. I have no doubt that the decision that I have taken is correct. If I thought it wasn’t correct, I would review it… and I have been in touch with the Bar Council a year and a half ago... on exactly this issue. 59. In due course the judge spelled out her understanding of the defendant’s position. “Judge Arnold: I hear you say that it’s your decision, [I] respect that decision and the reasons you make it, but the defendant has a choice. You say he hasn't agreed, but you've made it plain to him that that course of action being taken by you, he could continue to give you his instructions or not, and he's decided to continue to give his instructions. So one assumes, therefore that he's happy with your decision and he has to bear the consequences of it, and one of those consequences, of course, it leaves untested the account before the jury. So far as the prosecution are concerned that may weigh against them. But, equally, the jury may conclude that, as I've indicated in the direction... there may be an alternative explanation.” Again, a little later, “Judge Arnold: …This defendant has chosen to continue obviously instructing you and on that basis he has to stand by the consequences of that decision… I am not saying it's the defendant’s fault. It's the defendant’s conscious decision to continue to instruct a lawyer knowing what the likely consequences might be from the decision taken not to cross examine her.” 60. Mr Martin Sperry repeated that the reason he had made the decision he had was because of what the defendant knew from his experience with his sister, and he had taken it from the defendant at face value. 61. Mr Burrows said that all of these matters had been rehearsed when the case was listed for trial before Mr Recorder Roques, and that there was no expert evidence to support the defence approach, despite the service of 500 pages of medical notes. In the circumstances, he said, if the decision taken by counsel was on the basis of what the defendant had said about his sister, the defendant could not hide behind it and it would be fair for him to bear the consequences. 62. After a further adjournment for Mr Martin-Sperry to review the draft direction, the court sat to consider some amendments Mr Martin-Sperry had proposed. It is sufficient to say that the amendments were not agreed. Mr Martin-Sperry then repeated his intention to withdraw from the case if the prosecution insisted on a direction that was capable of leading to any form of adverse inference against the defendant. Nonetheless, the judge finalised her direction and having seen it, Mr Martin-Sperry must have decided he would continue with the case. 63. The direction was delivered orally to the jury before the ABE interview was played. The judge also included the direction in her written legal directions delivered in the first part of her split summing up, the material part of which said: “In a criminal trial a witness whose evidence is not accepted by the defence is called to give that evidence by the prosecution. The witnesses first asked questions by the prosecution so the jury hear the evidence which the prosecution say supports their case. Thereafter, it is the duty of the defence to put their case to the witness and so they will ask the witness questions - that is the process known as cross examination which is designed to expose, for example, inconsistencies, to demonstrate that the evidence is not true or that the witness cannot be relied on. Whether a person is fit to give evidence (and that includes being asked questions in cross examination) is a matter for the judge. I have considered material in this case and have decided the witness Cheryl Brooker is fit to give evidence and to be asked questions in cross examination. The consequence of that is that the defence are required to put their case i.e. To give the witness the opportunity to answer what they assert. However, defence counsel has decided that he does not wish to risk putting any stress on the witness at all and so he will not ask her any questions. That is his decision, but it has important consequences for the defendant. … the decision not to cross examine her means that you will not have the opportunity of seeing her account tested in front of you. There may in due course be other evidence from which it may be suggested you will be able to gauge the accuracy and reliability of what she has said to the police, but importantly you will not have been afforded, as a jury properly should be, the opportunity to form your own assessment by seeing and hearing her direct responses to questions put to her by the defence. In short, whilst the defence challenge her evidence, they do not seek to do so by what I have determined in this case to be the perfectly proper mechanism of cross examination. Whilst you must not speculate, you are entitled to draw conclusions from the evidence you accept. The defence will suggest that the decision not to ask Cheryl Brooker questions is borne out of concern for the impact on her health notwithstanding my finding her fit to give evidence and be cross examined. The prosecution will contend that in those circumstances the only sensible conclusion for you to draw from that action is that the answers she would have given would have been such as to make you sure her evidence is true. It will be a matter for you to draw the conclusion you think appropriate when you have considered all of the evidence in the case.” 64. The transcript of the delivery of legal directions prior to speeches includes a refinement of the penultimate sentence of the second paragraph set out above. We include that here for convenience. When the judge addressed the jury she said: “.. defence counsel, for his own and perfectly good reasons - which I know he'll tell you about - didn't wish to put any stress on the witness, or indeed, risk putting any stress on her and so chose not to ask her any questions.” 65. After the ABE interview had been played, some statements were read by agreement, including those of Ms Brooker’s GP and Dr Ley and police evidence was called. The jury was provided with summaries of the disputed payments, redacted copies of the Ms Brooker’s bank statements, cheques written on her account, a list of agreed payments and other documentary evidence as well as the defendant’s police interview transcript. There was no handwriting evidence or any evidence of how or by whom the payments from Ms Brooker’s account which she said she knew nothing about, had been set up. 66. Mr Brooker was of good character. He gave evidence consistent with his account in interview that his sister was very much in control of her financial affairs and kept her own records. He produced a bundle of documents which was shown to the jury. It included a number of texts and emails written by his sister in her distinctive phonetic style of expression. In one text she referred to making a payment by bank transfer (BAC). In an email she wrote to West Sussex Council in February 2015, copied to the appellant, she appealed against a financial assessment of disability benefit and said that the sums allowed for her gardener and cleaner were insufficient because “[b]oth my privetley employed peepawl charge more than this gardener £15 an ower, cleener/lawndry ladey £12 an ower.” 67. He told the jury he had not seen his sister since 2018 and had not viewed her ABE interview until the trial. In his view she had deteriorated markedly in that time. He left his job in 2014 to care for her, along with caring for their mother who had since died. He said he had been paid by Ms Brooker to do so via standing order. He identified the standing order payments and how they had changed over time including when he returned to work himself. Other payments such as those described as being for domestic help, she had set up herself for her own purposes. Having looked at her cheques paid into his account he identified nine of the eleven as wholly in her writing. He repeated his belief that she had been compelled go to the police because she had fallen out with him, and their sister Tracey and brother Glen had gained influence over her. 68. The handwriting on the cheques varied because sometimes he would write them out for her, not because he wanted to hide the payments from her. He told the jury that he had no access to her cheque books. All the online bank payments such as standing orders and transfers were made by her, and the descriptor references were hers. She gave him her bank card to withdraw money on occasion, but he always gave it back to her. The printouts of emails and correspondence involving his sister demonstrated how capable she was. Other evidence in the defence bundle included medical appointments, evidence of ill health of the defendant himself and other records which he said demonstrated he could not have made some of the cash withdrawals he was accused of making. Although he denied being the person who withdrew all the sums alleged from ATMs using her card, in general, the appellant did not suggest that his sister had not given him and his family the sums of money alleged. His case was that he had not stolen them and that at the time his sister had generously and freely given them to him. The issue for the jury on counts 1 and 2 was therefore whether the prosecution had proved he received the sums dishonestly. 69. The appellant’s wife gave evidence supporting his account and a number of character witnesses were also called. 70. In his closing address to the jury Mr Martin-Sperry explained his approach to the case. He began by giving an illustration of a child who was asked if he could see a squirrel in a tree, and through leading questions, the child purporting to describe a squirrel, which had not in fact been there. He then drew a distinction between someone who tells an outright lie and somebody who agrees with the suggestion despite not being confident that the suggestion is correct. His invitation to the jury was that they should determine the case on the background history and the reasons for the breakdown of the relationship between the appellant and his sister which were unrelated to any of the contested payments. He highlighted the influence that the appellant said his other siblings had had on Ms Brooker thereafter. Then came this passage, “And so it is that our own perception – it can change. Now, I'm quite certain that all of you will have in your mind things that you think are correct from your past and maybe they're not, never mind what everyone's told you, and they become part of your memory. I'm no great memory expert. Recovered memory, false memory, it's a well known phrase, a well known topic. It does happen. It's not the sort of thing that you can call an expert and say, “That's a piece of false memory.” 71. At this the judge interjected: “Well, Mr. Martin-Sperry you're treading on dangerous ground suggesting false memory when there's been no evidence for it.” 72. Mr Martin-Sperry continued: “I may be treading on dangerous ground, much more dangerous if I don't tread there. I will not be giving evidence here, but the phrase false memory may be my own mistake. I have made some mistakes in this case, oh yes I have.” 73. He referred to some minor errors in his reading of character witnesses’ evidence and returned to the topic he had been dealing with, “But, be that as it may, the more important thing is that we come back to squirrels because what I'm going to investigate with you is whether there is any room for you even to consider that Cheryl was lying. I don't say she was lying at all. She's not a liar. We do know about liars in these courts and Cheryl Brooker is not one of them. I'm sorry to disappoint the crown but the crown seem to have missed the point and have said, “Well, she must be a liar. The defence must be saying that she's a liar,” and all the rest of it. You'll remember I got rather excited in the middle of all that and said, “That's not for the defendant to say”, and he doesn't say that she is a liar either. The crown can't quite follow it. She is no more a liar than the little child who saw or didn't see the squirrel. She is telling the truth about an image that she has in her mind.” 74. Mr Martin-Sperry then moved on to the reasons he had not cross examined Ms Brooker. Having made reference to her medical history and the deterioration the appellant had described between when he had last seen her in 2018 and the ABE interview in 2020, he said: “Her way of dealing with it - remarkable! I pay tribute to her and if you think that I am going to cross examine somebody like that in a court of law, Oh no, I'm not. I don't mind who tells me to. I'm not going to do it and the reason I'm not going to do it may well be selfish. Do you think I want on my record, “this is the very experienced barrister who cross examined a disabled person, caused them to have a stroke which killed them?” Oh yes, am I going to want that on my record? No, I am not and if I think there is any risk of that, I will simply drop anchor which is precisely what I've done and I dropped anchor at a very early stage and I said, “I'm sorry, we will have to find another way of dealing with her.” 75. Later in his speech he reminded the jury of the appellant’s character, his selfless care of his sister and mother and made reference to the large amount of money that the appellant had returned to his sister in respect of the building of the bungalow. He also recalled the evidence of a police officer that when Ms Brooker made her first complaint to the police, her sister Tracey had done most of the talking. Finally, he mentioned, albeit not in detail, the correspondence and other material produced by the appellant (though he said he anticipated none of the documents in the case for either side would assist the jury) and the failure of the police to re investigate the case in light of that evidence. The appeal 76. Following conviction, Mr Brooker withdrew instructions from Mr Martin-Sperry and instructed Mr Graffius KC who mitigated at sentence and has argued this appeal. Legal professional privilege was waived in a letter to the appellant’s solicitors on 9 February 2023 and appeal counsel carried out the necessary enquiries with Mr Martin-Sperry. We directed that Mr Martin-Sperry and the appellant should make themselves available to give evidence on the appeal. In the event, both did so and were asked questions by Mr Graffius and Mr Burrows for the respondent. 77. The grounds of appeal come to this: defence counsel’s incompetence resulted in identifiable errors in the trial process and rendered the convictions unsafe. No criticism is directed towards the trial judge. Mr Graffius relies on seven specific features of Mr Martin-Sperry’s conduct of the case. 78. Firstly, his refusal to cross-examine Ms Brooker, due to his personal opinion that it could be dangerous for her, despite the fact that there was no medical basis for such a conclusion. Mr Graffius describes the decision as ‘seismic’ and the key factor in the trial. It meant the jury lost the opportunity fairly to assess the two principal witnesses, Cheryl and Graeme Brooker. Given that failure, which was not the fault of the appellant, he should not have suffered the consequences of the unusual direction drafted and delivered by the judge. He emphasises the fact that Ms Brooker had agreed to be cross examined and measures had been put in place to enable her to give her best evidence. 79. In his evidence to the court Mr Martin-Sperry said he had reliable material to indicate that there was a substantial risk in subjecting the witness to stress. He could not identify that material. Eventually, he said it might have been what Mr Brooker told him. Mr Martin-Sperry agreed that directions had been made for service of defence medical evidence. He could not recall whether he had drafted an advice on evidence for his instructing solicitor; he said had difficulty reaching the solicitor on the telephone although he acknowledged that the solicitor may have tried to communicate with him by email. We gave him an opportunity after the hearing to provide any written advice he could find in his records. It is accepted that none has been identified. 80. Mr Martin-Sperry told us that he sought agreement by email for this approach from his client shortly before the trial, because the situation was unusual. However, he did not accept the general proposition that if he failed to challenge a witness’s evidence if it was controversial, he would be taken to have accepted it. On 21 November 2022, prosecution counsel had made submissions in line with this general proposition. Mr Martin-Sperry told us he thought this was, “frankly, a disgraceful conclusion” to come to because it was his personal decision, not that of the appellant. He was asked whether he recognised the duty of barristers to promote fearlessly and by all proper and lawful means their client’s best interests. He said this was an irrelevant question because “trumping that.. is my overriding duty on both a personal and professional level not to put at risk the very life of a vulnerable prosecution witness.” He said he had decided not to seek medical evidence for the defence, despite Mr Recorder Roques’ order, because the interview for any report in his view, would have placed Ms Brooker under more stress and he was not prepared to do that. 81. Secondly, the refusal to accept that the judge’s ruling that Ms Brooker was fit to be cross examined, despite his professional duty to do so and to put his client’s case. Mr Graffius relies on section 53 of the Youth Justice and Criminal Evidence Act 1999 which provides, as far as material: 53 Competence of witnesses to give evidence. (1)At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence. (2)Subsection (1) has effect subject to subsections (3) and (4). (3)A person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person who is able to— (a)understand questions put to him as a witness, and (b)give answers to them which can be understood. (4)A person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution (whether he is the only person, or is one of two or more persons, charged in the proceedings). [Emphasis added] 82. In a passage of quite remarkable evidence, Mr Martin-Sperry told the court this was not a matter of law but one of “medical fact” for him to make his own decision about; that he found the judge’s decision that the witness was fit to be cross examined “extraordinary” and he did not consider himself bound by it. 83. Thirdly, the failure to advise the appellant that if Ms Brooker was not cross examined the judge may direct the jury to draw an adverse inference. The 9 November 2022 email from the appellant made no reference to his having been advised that any consequence may flow from the decision counsel had taken. In responding to a request for information from Mr Graffius, Mr Martin-Sperry supported the appellant’s evidence to us that he had not made the appellant aware that any adverse outcome would result; indeed he had not turned his own mind to the possibility until, at the earliest, the trial judge agreed with the prosecution’s submissions to that effect on the first day of trial. Later on in his evidence, Mr Martin-Sperry said that he did not recollect the proposed direction being confirmed until the close of evidence in the case. Still later, he conceded that he had seen the direction early in the trial, but he did not appreciate that it was the court’s decision which had important consequences for the defendant. He came to understand that much later in the trial: it had ‘got lost in the wash’ at the beginning of the case. 84. In a statement prepared for this appeal and in an email of complaint against Mr Martin-Sperry which he sent to his solicitor after the trial, the appellant said that it had never been made clear to him how the judge and prosecution might react to counsel’s decision, or that it might lead to the suggestion, or inference that the decision had been taken to hide information from the jury. Mr Martin-Sperry had seemed to be very confident in the strength of the defence case and joked that he would jump of Westminster Bridge if Mr Brooker was convicted. As a lay person, he was wholly reliant on the professional support of a barrister with fifty years’ experience and trusted him to act in his best interests as well as in accordance with his professional obligations. The appellant’s evidence to us was that he may have had a copy of the direction or a draft and he was in court listening to what was being said but he did not fully understand it; during one of the breaks he had asked Mr Martin-Sperry what the impact was of what the judge had said. The appellant said he was told that cross examination was not important or necessary and defence counsel was still ‘buoyant’ because of the evidence the appellant himself had produced. The appellant encapsulated the position in this way: Mr Martin-Sperry “basically implied that the evidence I provided would outweigh the lack of cross examination.” Mr Graffius submits that the appellant could not be expected to follow the legal argument at the start of the trial and when he asked, he was reassured by his lawyer. 85. Fourthly, the failure to withdraw from the case when the judge had ruled and despite the judge’s observation that if he did not wish to question the witness he should withdraw. Mr Graffius points out that this was foreshadowed by what had been said by Mr Recorder Roques. In failing to provide appropriate advice and, if so indicated, to return his instructions Mr Martin-Sperry deprived the appellant of proper, regular representation and this was grossly unfair. The appellant told us that at the time, he did not understand what was meant by ‘withdrawing instructions’ and similar phrases. He did not realise it would mean leaving him without representation. Mr Martin-Sperry’s evidence was that he believed he had his client’s confidence and Mr Brooker understood that if he did not like his decision not to question the witness he was at liberty to obtain alternative representation by speaking to his solicitor. He was taken by Mr Burrows to the passage in the transcript for the first day of the trial at para 58 above. He agreed that he must have given the appellant the choice to withdraw his instructions but the appellant had not done so. He added that he had little idea what was going on in the appellant’s mind at the time and he had no note or endorsement of any decision made. 86. He said they spent a lot of time together in conversation, but it is not his habit to make notes of any conferences he has with his clients. He agreed that the normal course would be for a solicitor to be present at important conferences, for the protection of the barrister and the client, but this did not happen at any stage in his involvement with this case. 87. Fifthly, a failure to ensure that the defence case was put fully and fairly to Ms Brooker and the witness challenged. Mr Graffius illustrates the simplicity with which Ms Brooker could have been cross examined by reference to the email she had sent to West Sussex Council in February 2015 in which she asked for greater allowance to be made for her payments to a gardener and cleaner, payments which went to the appellant’s account and which she told police she did not know about and had never authorised. 88. Sixthly, making a closing speech in which he advanced his personal opinion first, that Ms Brooker may have false memory syndrome - despite the absence of any evidence of false memory syndrome; and secondly, that she may have believed she was telling the truth. Mr Graffius said the speech made by prosecution counsel had focussed the minds of the jury on the simplicity of the issue before them: either Ms Brooker was lying about somebody else having written the references on standing orders from her account and causing her to write cheques which she did not remember and would not have authorised, or the appellant had lied in his evidence when he asserted that his sister had no difficulties managing her finances and did so more or less independently. Defence counsel’s speech was at odds with the defence case. Much of what he said was entirely inapposite. He would have known that there was no evidence of false memory syndrome and the appellant’s account from start to finish was that his sister was lying to cover up her previous generosity to him and hide it from their other siblings. Mr Graffius suggests the effect would have been to confuse the jury at best, and at worst, to persuade them that the appellant had no real defence at all. Mr Martin-Sperry’s explanation to us was that false memory syndrome was a possible reason for the witness to say what she did. He thought the judge’s interruption of his speech at this point was “very odd.” 89. Seventhly, undermining the appellant’s evidence in his closing speech, including dismissing the defence bundle of documents, rather than reminding the jury of the evidence of Ms Brooker’s apparent control over her finances and her ability to write. Although he referred to some of the material the appellant had produced. Mr Martin-Sperry said that the jury had probably not looked at either the prosecution or defence bundles very carefully and asked, “Why should you. They’re not going to help you.” 90. Though he could not remember those sentences specifically, Mr Martin-Sperry’s justification of this to us, was that he wanted the jury to approach the case with an open mind; he also made what in our view was inappropriate and unattractive criticism of the biased attitude, as he saw it, of the foreman of the jury. 91. Mr Graffius acknowledges that the judge summarised the defence case, including the appellant’s evidence effectively. She reminded the jury that the appellant had said from the start of his police interview that any money he received from his sister had been given to him freely and with her full knowledge and he did not have access to her online banking. However, the judge concluded her recital with a reminder that Ms Brooker had not been able to answer her brother’s contentions as they had never been put to her in cross examination and the jury would have to make of that what they could. 92. The respondent agrees with Mr Graffius that defence counsel’s conduct of the trial was incompetent. Mr Burrows seeks however to uphold the convictions. He submits that the adverse inference direction adopted by the judge favoured the appellant more than it did the prosecution. Further, it could be seen that the appellant was not prejudiced by the direction because the jury acquitted him of one of the counts that he faced. The respondent submits that the true issues were put clearly before the jury and they must have applied the legal directions, the correctness of which are unchallenged, in deciding that the prosecution had failed to prove one count. So defence counsel’s closing submissions had not influenced the jury against him. The approach 93. In R v Farooqi and others [2013] EWCA Crim 1649, another appeal concerned primarily with what was said to be egregious misconduct by defence counsel, Lord Judge CJ delivering the judgment of the court, said at 100: “In this jurisdiction it is axiomatic that every defendant has an absolute right to a fair trial.” 94. The circumstances in which the quality of defence representation has been found by the courts to have led to an unfair trial are exceptionally rare. This is principally because there are many other guarantees of fairness in our adversarial system. These include the fact that solicitors instruct counsel, and can provide independent advice to the client when this is called for; the duty of prosecution counsel to act as a minister of justice; the role of the trial judge in ensuring proceedings at trial are fair to both sides and who can swiftly remedy any error which – uncorrected - may affect the fairness of the trial; and the role of the jury in determining contested issues of fact. Further, exceptionally high standards of conduct are required of advocates in our criminal courts. In consequence, it will be difficult for a convicted defendant to persuade this court that, despite the safeguards we have mentioned, his conviction should be overturned because his representation was incompetent. It certainly does not follow that a finding that there has been incompetence on the part of counsel necessarily leads to the conclusion that the conviction is unsafe, although in some circumstances, that may be the case. 95. As Buxton LJ said in R v Mark Darren Day [2003] EWCA Crim 1060 at 15: “While incompetent representation is always to be deplored it is an understandable source of justified complaint by litigants and their families; and may expose the lawyers concerned to professional sanctions; it cannot in itself form a ground of appeal or a reason why a conviction should be found to be unsafe. We accept that, following the decision of this court in Thakrar [2001] EWCA Crim 1096, the test is indeed the single test of safety, and that the court no longer has to concern itself with intermediate questions such as whether the advocacy has been flagrantly incompetent. But in order to establish lack of safety in an incompetence case the appellant has to go beyond incompetence and show that the incompetence led to identifiable errors or irregularities in the trial, which themselves rendered the process unfair or unsafe.” The failure to cross examine and put the defence case 96. Mr Graffius who has presented this appeal moderately and with skill, realistically grounds his submissions on the effect of the decision not to cross examine the only important prosecution witness. However, what happened at the trial was predicated on defence counsel’s approach for over a year before the trial started. We agree that it would be obvious to any competent counsel that Ms Brooker had to be cross examined and challenged. There was no medical or other basis for refusing to question a witness whose evidence was directly contradicted by his client. The ABE interview had been served and was relied on. Having viewed it, we can understand that a tactical decision might have been made to limit the challenge so far as possible in order not to evoke sympathy for an obviously vulnerable witness. Another reason might be to reduce the damage to the appellant’s case that the answers provided in cross examination might cause. But that is not what Mr Martin-Sperry told us his approach was. He denied any element of strategy. He maintained that he had formed a firm view, based on some evidence which he could neither recall nor produce that there was a serious risk of harm if he were to ask the witness any questions. 97. The only information upon which this view could have been formed is what the appellant may have told counsel Mr Martin-Sperry of his experience of Ms Brooker over the years he had looked after her. We allow for the possibility that this is what led counsel to form an early provisional view, one he expressed to his instructing solicitor and set out in writing in his note of 11 September 2021. Once matters had been fully aired in court however (which had happened as early as March 2022) and the medical records had been disclosed and the report of Dr Ley had been served it was clear beyond peradventure that Mr Martin-Sperry could have no justification whatever for maintaining his stance on cross examining Ms Brooker. In this context it is to be noted that he never did provide his instructing solicitors with an advice on this issue, even though they had asked him to do so as early as 10 September 2021. 98. It is a well-established rule founded on justice, that in a criminal trial the case for the prosecution and for the defence must be fairly put and the witnesses challenged where possible. The general rule and the rationale for it is described in the current edition of Phipson on Evidence 20th ed (2022) at 12-12: “In general a party is required to challenge in cross examination the evidence of any witness of the opposing party if he wishes to submit to the court that the evidence should not be accepted on that point… This rule serves the important function of giving the witness the opportunity of explaining any contradiction or alleged problem with his evidence. If a party has decided not to cross examine on a particular important point, he will be in difficulty in submitting that the evidence should be rejected.” 99. The duties of counsel are spelled out in the Bar Standard Code of Conduct (the current version in force from 20 September 2023, but is not different in any material respect). Core Duty 1 is to observe the duty to the court in the administration of justice. The Code makes clear that this duty overrides any other core duty, if and to the extent that the two are inconsistent. Core Duty 2 is to act in the best interests of each client. Core Duty 7 is to provide a competent standard for work and service to each client. The core duties are supplemented by the conduct rules. Rule C7 could not be clearer: “rC7 Where you are acting as an advocate, your duty not to abuse your role includes the following obligations: 1. you must not make statements or ask questions merely to insult, humiliate or annoy a witness or any other person. 2. You must not make a serious allegation against a witness whom you have had an opportunity to cross examine unless you have given that witness a chance to answer the allegation in cross examination. 3. .. 4. You must not put forward to the court a personal opinion of the facts or the law unless you are invited or required to do so by the court or by law.” 100. The treatment of vulnerable witnesses, whether called by the prosecution or the defence, has changed beyond all recognition in recent years. This has involved a shift in professional culture and all advocates who practise in the criminal courts are aware of the changes There are many tools available to enable all witnesses to give evidence to a satisfactory standard. The Criminal Practice Directions and the Criminal Procedure Rules provide the necessary framework. Counsel are expected to have developed the skill-set necessary to carry out fair and effective cross examination in accordance with ground rules set by the trial judge. Where pertinent, those rules can include requiring questions to be framed shortly in easily understood language, providing regular breaks in the evidence, allowing an independent communications expert (an intermediary) to intervene if questions are inappropriately worded and giving a witness a variety of ways of signalling the need for a break. A wide range of special measures can be deployed and objections to these are now rare. The consequence is that a far more compassionate and practical mode of examination of witnesses prevails, leading to a shorter and more focussed examination of vulnerable witnesses. There is however no diminution in the opportunity (or the professional requirement) to test disputed evidence within the parameters set by the court. Indeed with heat and emotion removed the genuinely probing question is capable of “hitting home” with greater effect. 101. Returning to the case before us, the specific tools of pre-recorded cross examination under section 28 Youth Justice and Criminal Evidence Act 1999 and the use of an intermediary were available in this case. What was required was relatively straightforward. The lengthy ABE interview called for extensive editing which could have reduced its impact in a perfectly permissible way. Ms Brooker had to be challenged, sensitively, on her evidence that she had not known about any of the questioned payments. The appellant had provided counsel with a selection of emails she had sent concerning specific payments of money which, he said, demonstrated that at the relevant time she had full knowledge of where her money was being spent. Cheques which he said were in her handwriting, and certainly not his own were available. At least some of these documents should have been shown to her for her response. Furthermore, as the appellant intended to give evidence of what he said was her motive for the lies she had told the police, this should have been put to her for a response. None of this was beyond the skill of an averagely competent criminal advocate, newly qualified. All these matters could have been put to Ms Brooker as long ago as May 2021, as the prosecution and court originally envisaged. 102. We deprecate the approach taken by Mr Martin-Sperry in relation to this issue. It was not a display of professional independence. It was recalcitrant and unprincipled. Mr Martin-Sperry is, in a word, unrepentant. Refusal to accept the judge’s determination 103. The competence of a witness can be raised by any party to proceedings or by the court of its own motion. When the issue is raised it is for the party calling the witness to satisfy the court on the balance of probabilities that the witness is competent, taking into account any expert evidence available. Once the court has ruled on the issue however, the parties are bound by the ruling. 104. The transcript of the first day of the trial makes for concerning reading. It is plain that Mr Martin-Sperry simply refused to accept the trial judge’s decision that Ms Brooker should be cross examined, notwithstanding that he should have expected exactly that outcome. The duty to the court in the administration of justice is counsel’s paramount duty. In circumstances where Mr Martin-Sperry disagreed with the ruling, he had two options: to comply with the direction of the judge, and, in the event of a conviction, challenge the ruling on appeal; or to withdraw from the case and return his instructions. It seems that he considered this latter course but he did not pursue it. Thereafter, the only choice he had, consistent with the primary core duty of an advocate, was to cross examine the witness. 105. Conduct rule C26 provides as follow: rC26 You may cease to act on a matter on which you are instructed and return your instructions if: 1. Your professional conduct is being called into question.. 106. In this case, it is obvious that the judge was calling Mr Martin-Sperry’s professional conduct into question. In circumstances where, according to Mr Martin-Sperry, the decision not to cross examine Ms Brooker was his and not that of the client, it was incumbent upon him to advise his client in clear terms of the options available and their different implications. Mr Martin-Sperry should also have referred the matter to his instructing solicitors, so as to ensure that the appellant, if he wished to have it, had access to his solicitor’s advice. 107. Following the judgment of Fulford LJ in R v Daniels [2021] EWCA Crim 44, the Bar Council has provided revised advice on when counsel should withdraw during a trial. The guidance is called “Returning Instructions in Criminal Cases: R v Daniels – Feb 2022” and includes passages dealing with late returns of instructions and the obligation of advocates to comply with the cab rank rule in taking instructions even if there is limited time to prepare. This is illustrative of the pragmatic approach expected of advocates when matters of professional compromise arise. The ‘adverse inference’ direction and withdrawal 108. We reject Mr Martin-Sperry’s evidence that he did not realise until the first day of the trial that the appellant was in jeopardy of an adverse direction if he failed to challenge the evidence of Ms Brooker. It was, frankly, obvious that this might happen. We do not accept either that the direction drafted by the judge on 21 November simply “got lost in the wash”. It was the product of a full days’ argument in the absence of the jury. Given the unusual situation that counsel had himself engendered, it is inconceivable that he simply let this direction drift out of his mind. 109. We also reject the appellant’s evidence that he did not realise that the discussion that took place on the first day of the trial concerned what was to be said to the jury about the decision not to cross examine his sister, a decision with which he had already agreed. Firstly, it is apparent from the material before us that the appellant was fully engaged with the issues raised by his trial and was taking the closest possible interest in them. Secondly, albeit that Mr Martin-Sperry’s submissions were on occasion, repetitive and discursive, the debate before the judge was generally clear and coherent. Thirdly, the appellant told us that a representative from Cheesemans was present on that day. No doubt the appellant could have spoken to that representative if he wished to do so and if he did not follow what was being discussed. Fourthly, the directions that emerged after the debate before the judge, namely that drafted by her, and the final version which went to the jury were provided to the parties in hard copy. Fifthly, as the appellant was eventually constrained to accept, he had seen a copy of the judge’s direction and was indeed aware that the judge intended to direct the jury that they could criticise the defence for the approach they had taken. The closing speech 110. It is trite that Counsel are not permitted to give evidence. It is also trite that counsel should not allude in their closing speeches to (alleged) facts or matters which have not been the subject of evidence. 111. Plainly, Mr Martin-Sperry should not have given the jury the benefit of his personal views and reasons for not cross examining Ms Brooker, nor should he have made the wholly speculative reference to false memory syndrome. The latter reference led to an intervention from the judge, the former did not (perhaps out of a concern that the effect, if any of the wrong decisions of his counsel, should not be visited upon the appellant). Beyond this however, we consider the various criticisms of defence counsel’s closing speech and their effect, if any, to be overstated. 112. Counsel has a wide discretion in how to address the jury in closing. This includes for example deciding what evidence to refer to, the overall approach (be it a broad brush or a closely analytical one) and whether the prosecution case should be met head or attention drawn away from it. These are all matters of judgment on which reasonable professional advocates may disagree. The trial judge is responsible for ensuring that the defendant's case is left fairly to the jury. In doing so a judge may have to correct, distil and augment the points made by defence counsel, as this trial judge did. It is not suggested she fell into error in this connection, or that the way the jury had been addressed should have led her to discharge them. In this short trial, completed within nine days, the issues between the prosecution and defence were fairly placed before the jury in the written directions they were given and in a full summing up which has not been the subject of criticism. Whatever Mr Martin-Sperry had said in his closing speech, the jury can have been in no doubt as to the nature of the appellant’s case and his defence to the charges against him. Outcome 113. Mr Martin-Sperry was an unimpressive witness. It is a matter of regret that there are ample grounds for criticising his conduct is what was a relatively straightforward case. 114. We do not find his unorthodox approach to counsel’s duty to put his client’s case is one that can be tolerated. The rationale for Mr Martin-Sperry’s approach was opaque and unsupported by material which we would expect experienced advocates to seek out before making such a significant decision about the tactical approach to a contested case. We are forced to conclude that he recognised the difficulty of successfully challenging the video recorded evidence of Ms Brooker and decided that the appellant’s best chance lay with his own account to the jury, as a man of previous good character, with as little attention being drawn to his sister’s account as possible. Mr Martin-Sperry fixed variously on dissociative identity disorder, Ms Brooker’s strokes and what the appellant was able to tell him about how his sister reacted when under stress. Having failed to persuade the prosecution and the judge that a transcript of the ABE interview should be provided to the jury rather than the footage (as suggested in his first note to the court) he sought to limit the damage her evidence might cause, by presenting the appellant’s oral and documentary evidence “fresh”, and unchallenged and uncontradicted by Ms Brooker. It follows that we find that Mr Martin-Sperry has not been frank with the court. 115. In addition, behind this, there was a catalogue of elementary professional errors. Mr Martin-Sperry communicated directly with his lay client, including using his personal email address; he took no notes of those discussions or of the advice that he gave; he apparently ignored the request for advice from his instructing solicitors; he failed to comply with directions made at a series of preparatory court hearings and there is no indication that he ever analysed the extensive medical records disclosed during the case. 116. In all the circumstances we are satisfied that his performance of his duties fell below the standard to be expected of a member of the Bar of England and Wales. We are not convinced that the accurate description is incompetence which implies a lack of skill. Here, having made an erroneous strategic decision on the basis of his personal judgment Mr Martin-Sperry, in his role for the defence, failed to comply with orders of the court before the trial and during the trial itself. He is a highly experienced advocate. It is hard to escape the conclusion that this was a deliberate course of conduct. It is regrettable that this is the position at the end of Mr Martin-Sperry’s long career. 117. We turn then to the safety of the conviction. Notwithstanding the conduct of Mr Martin-Sperry we are satisfied that the appellant’s conviction is safe for a combination of reasons we can state shortly. 118. Firstly, the rationale for the general rule on cross examination is that set out in Phipson i.e. it serves the important function of giving the witness the opportunity of explaining any contradiction or alleged problem with his evidence. The unfairness, if any engendered therefore was to the prosecution and not the defence. Ms Brooker was not given the opportunity to answer the appellant’s case against her, which was that her complaint of theft was made to disguise from her siblings how much she had given to the appellant. This meant the appellant then had a relatively free hand in giving his evidence unencumbered by what Ms Brooker might have said in response to the case as put to her, as did Mr Martin-Sperry in commenting on her evidence in his closing speech. Secondly, the effect of the adverse direction as finally delivered was fairly anodyne. It did not clearly identify the process of reasoning the jury should follow or the factors, if any, the jury had to weigh when deciding whether to conclude that questions were not asked because to do so would simply confirm the witness’s account. Nor did the direction suggest that a failure to cross examine Ms Brooker meant the defence accepted her evidence. When the final direction was repeated, shortly before counsels’ closing speeches, the judge told the jury that defence counsel had “his own and perfectly good reasons” for his approach, which they would hear about from him, thereby neutralising any adverse effect the direction may have had on the appellant’s case (as well as opening the door for Mr Martin-Sperry to explain himself to the jury, as he did). Thirdly, we are not persuaded that the appellant did not understand that an adverse inference might be given or that he could have changed counsel, if unhappy with Mr Martin-Sperry’s stance. The appellant was present to hear the debate in court, and we consider he understood what was being said, about the direction to the jury (he had seen a hard copy of it) and by Mr Martin-Sperry about the conversations he had had with the appellant regarding the withdrawal of instructions. In our view, his current stance is no more than “buyer’s remorse” in respect of the tactical decisions of his counsel which he fully supported at all material times. Finally, as we have already said, the judge’s summing up is not the subject of any criticism in this appeal. It was full and fair; it set out the appellant’s case in detail and can have left the jury in no doubt as to the issues they had to decide. 119. For these reasons, the appeal against conviction is dismissed. 120. We cannot leave this case however without making some observations arising from the procedural defaults with which it was replete, and the number of hearings these and other issues engendered. In this relatively straightforward criminal case, listed for four days, there were numerous pre-trial hearings of one sort or another and a catalogue of failures on the part of both parties to comply with court orders and/or to ensure that the timetable for case preparation was adhered to. This lamentably lackadaisical approach did not merely have serious implications for the progress of this particular case; it will have had an impact on the ability of the court to deal with other cases and was a waste of precious court resources. 121. The Criminal Procedure Rules were introduced in 2005 as a result of a recommendation of Lord Justice Auld’s Review of the Criminal Courts of England and Wales. As the rules state in terms, each participant in the conduct of the case must prepare and conduct the case in accordance with the overriding objective; they must comply with the rules, practice directions and directions made by the court; and they must inform the court and all parties at once of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by the Rules, any practice direction or any direction of the court: see Crim. PR 1.2. It should not be necessary to state that the objectives Lord Auld identified of fairness, efficiency and effectiveness are more critical than ever to the working of the criminal justice system given the significant pressure under which it is now operating; or that the achievement of those objectives requires close attention and adherence to the rules. 122. Although the particular circumstances of this case are unusual, the history we have set out above reveals some concerns of general and current importance.  The current outstanding workload of the Crown Court is very high because of various events which have happened over the past few years.  The level of receipts into the Crown Court is presently rising.  This situation requires that cases are managed as efficiently as possible so as to use the limited resources of the system to the best possible effect.  For this reason, the Crown Court Improvement Group was established by the former Lord Chief Justice and has met monthly over the last 2½ years to attempt to improve the functioning of this jurisdiction.  All major executive agencies which contribute to the running of the Crown Court are represented on it.  It is chaired by a judge.  The efforts which have been made by all involved to run the Crown Court effectively require participants, including counsel, to assist in that end.  Wasted hearings and trials which do not proceed when they should are to be avoided as far as possible.  In this case the PTPH was on 7 January 2021.  There were then 5 further hearings before the trial.  One of these, on 2 March 2022, involved the case being listed for trial but not proceeding.  When the trial did eventually start, the whole of the first day was taken up by legal argument about Mr Martin-Sperry’s approach to the evidence of Ms Brooker.  This was the reason for all the delay, and this was compounded by a repeated failure, by both parties, to comply with the directions of the court.

2024_02_13-6049.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2024/103/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2024/103

947673cf78d4bdddc2d662abe8b4e8fa47087ca9729a4f5161893c99240d3242

[2011] EWCA Crim 1332

EWCA_Crim_1332

2011-04-19

crown_court

Neutral Citation Number: [2011] EWCA Crim 1332 Case No: 201100586 A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 19th April 2011 B e f o r e : LORD JUSTICE MOORE-BICK MRS JUSTICE RAFFERTY DBE MR JUSTICE EDER - - - - - - - - - - - - - - - - R E G I N A v SC - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY

Neutral Citation Number: [2011] EWCA Crim 1332 Case No: 201100586 A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 19th April 2011 B e f o r e : LORD JUSTICE MOORE-BICK MRS JUSTICE RAFFERTY DBE MR JUSTICE EDER - - - - - - - - - - - - - - - - R E G I N A v SC - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7422 6138 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - Mr I Harris appeared on behalf of the Appellant - - - - - - - - - - - - - - - - J U D G M E N T 1. MRS JUSTICE RAFFERTY: On 18th October 2010, in the Crown Court sitting at Liverpool, this 19-year-old appellant upon re-arraignment pleaded guilty to sexual activity with a child and on 21st January 2011 was sentenced to three and a half years' detention in a Young Offender Institution with consequential orders. By leave of the single judge he challenges the length of that sentence. 2. On Boxing Day 2009 a 14-year-old girl, "R", went out with five friends and the quintet bought a total of four bottles of wine and a bottle of vodka, which as a group they drank. R drank quite a part of it; one of her friends described her as being very drunk and unable to walk properly. En route home R became detached from the other four and encountered the appellant on his pedal cycle. He was unknown to her. To her discomfort, he began to discuss sexual matters. Thereafter her memory, perhaps mercifully, fails and she could remember little else until she, as she put it, came round, her jeans and knickers at her ankles and soreness in her genital area. It was to become clear that the appellant had digitally penetrated her vaginally and then ejaculated over her. 3. At some stage -- the chronology is a little difficult to follow with complete confidence -- he had secured the telephone number from R's telephone of R's sister and rang her. He claimed he had found R in a troubling condition and explained where the girl was, undertaking to stay with her. Once, however, he realised her parents were on their way, he told R's sister he would have to leave. At some stage, and very possibly by now, R had sufficiently recovered to begin to attack him. He told her not to tell anyone what had happened, and left. Not long after, a passer-by found her, put her in a cab and sent her home. 4. Arrested and interviewed, the appellant made no answer. Born on 21st October 1991, he was of good character. A pre-sentence report, recognising that custody was inevitable, explained that he minimised his behaviour and made statements about R which were derogatory in tone. His insight was poor and he blamed her for what had happened to him. It worried the author that he was not willing to shoulder responsibility, and he posed a high risk of serious harm to youngsters, not least because he did not seem to grasp the gravity of the situation in which he found himself. He put before the judge two excellent character references. 5. This matter had been listed for trial on 18th October 2010, when a plea of guilty was tendered. Thereafter there was an application made to vacate the plea. 6. The judge reminded himself of the circumstances before adding that the appellant could not reasonably have believed that R was 16 or older. He was not dangerous, but custody was inevitable. Aggravating the matter was that R was evidently the worse for drink, it was late at night, she was vulnerable, and the appellant must have realised that, both because of her age, and because she had become detached from her friends. The two did not know each other, still less were they in a relationship. Nevertheless, he had ejaculated over her afterwards. He was at the time of sentence but 18 and, despite difficulties at school, he had worked to improve himself. He pleaded guilty, but at a late stage and to some extent compromised by his earlier equivocation, but, that said, the victim had not had to come to court. The judge considered the guidance offered by the Sentencing Guidelines Council and positioned this offence in the topmost category of the relevant selection since it involved digital penetration of R's vagina. As a consequence the starting point was four years' loss of liberty, the range three to seven years. 7. In Grounds of Appeal composed and orally advanced by Mr Harris, the complaint is that insufficient credit was extended for the guilty plea and to take account of the fact that (according to the appellant) the offending was consensual, of his age, and his troubled schooling and attempts to overcome the handicaps nature had imposed upon him. Mr Harris has deduced a three and a half year disposition means six months had been deducted, so the discount, in percentage terms, is 12 and a half. 8. This is not as straightforward a sentencing exercise as it might at first have seemed. The appellant's behaviour was appalling and his progress toward his confirmed plea unattractive. He did, however, limp toward a final position which meant that R was not obliged to come to court. He was also still young. Very importantly, he was of good character. The judge made clear that some discount was to be afforded for plea, and appeared to recognise personal mitigation, but it is not clear where, if at all, that featured in the reduction he went on to make. 9. We have deliberated with some anxiety about this case and have concluded that the interests of justice can be met by a reduction in loss of liberty. Our first thought was that a reduction to perhaps two and a half years was appropriate. Mr Harris addressed us then on the topic of one of the consequential orders, the sexual offenders register. If a loss of liberty of 30 months or more is imposed the obligation to sign it will endure for life. 10. This appellant is, as we have already said, still very young. As a consequence of what we propose he will until he is 28 or 29 still be obliged to sign the sexual offenders register. A decade is quite long enough. For that reason the appropriate course is to reduce the loss of liberty to two years and four months. To that limited extent this appeal succeeds.

2011_04_19-2711.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/1332/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/1332

333f51882169d708276dadf7c12a6af8d853fda20b0f49450f0140d207c51dbf

[2014] EWCA Crim 2047

EWCA_Crim_2047

2014-10-17

crown_court

Case No: 201400198 B1 Neutral Citation Number: [2014] EWCA Crim 2047 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BIRMINGHAM CROWN COURT - HIS HONOUR JUDGE ROSS QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/10/2014 Before : LORD JUSTICE PITCHFORD MR JUSTICE DINGEMANS and MR JUSTICE WILLIAM DAVIS - - - - - - - - - - - - - - - - - - - - - Between : MARTIN PATRICK FORAN Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Case No: 201400198 B1 Neutral Citation Number: [2014] EWCA Crim 2047 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BIRMINGHAM CROWN COURT - HIS HONOUR JUDGE ROSS QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/10/2014 Before : LORD JUSTICE PITCHFORD MR JUSTICE DINGEMANS and MR JUSTICE WILLIAM DAVIS - - - - - - - - - - - - - - - - - - - - - Between : MARTIN PATRICK FORAN Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Miss Elizabeth Nicholls (instructed by Olliers - Solicitors ) for the Appellant Mr J Rees QC (instructed by Crown Prosecution Service ) for the Respondent Hearing date: 3 October 2014 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Pitchford : The CCRC Reference 1. On 12 June 1978 Martin Patrick Foran faced trial before HHJ Ross QC at Birmingham Crown Court upon an indictment charging him with six offences. In count 1 he was charged with burglary of a garage at 29 St Chad’s Road, Rubery between 1 and 4 May 1977 and theft of a wallet and its contents. In the alternative, in count 2 he was charged with handling the wallet and contents. In count 3 he was charged that on 26 September 1977 he robbed Charles Apechis of £2,800 in cash and other property. In count 4 he was charged that on 8 October 1977 he robbed Natwarlal Trikain of a handbag and £35. In count 5 he was charged that on 13 October 1977 he robbed Richard Alexander Rice of a quantity of jewellery and watches, a cash box and cash. In count 6 he was charged that on 13 October 1977 he robbed Ian Lawrence Holmes of a watch, a wallet and its contents. In counts 3 - 6 Mr Foran was jointly charged with Errol Alexander Campbell. Campbell pleaded guilty to those counts and trial proceeded against Mr Foran alone. 2. During the course of the trial the judge withdrew count 1 from the jury and directed an acquittal. On 21 June 1978 the jury returned verdicts of not guilty upon count 2 and guilty upon counts 3 – 6 inclusive. Mr Foran was sentenced to 10 years imprisonment concurrent upon each count. 3. He appealed against conviction. On 11 March 1980, in a judgment a transcript of which is no longer available, the full court refused the applicant’s renewed application for leave to appeal. In 1981 an effort was made to persuade the Home Secretary to refer the convictions back to the Court of Appeal. That effort was unsuccessful. In July 1982 Mr Foran conducted a roof top protest at HMP Nottingham. His case was raised in the House of Commons on 20 July 1982. The minister of state at the Home Office, Mr Patrick Mayhew QC, who had a copy of the court’s judgment in his possession, reminded the House that he could not usurp the functions of the jury and the Court of Appeal. There was no new evidence that cast doubt upon the safety of the verdicts which, as Donaldson LJ had remarked in his judgment on behalf of the court, depended upon confessions by Mr Foran to the offences alleged. 4. On 7 January 2013 Mr Foran made an application to the Criminal Cases Review Commission (“the Commission” or “the CCRC”) for a review of his case. On 9 January 2014 the Commission referred the convictions to this court under section 9 of the Criminal Appeal Act 1995. Henceforth we shall refer to Mr Foran as the appellant. The grounds for referral which we paraphrase are that further information has come to light that casts down upon the prosecution case proved by police officers that the appellant had confessed to the count 3 – 6 offences; accordingly, that the verdicts were unsafe. 5. On 16 April 2013 this court (Leveson LJ, Mitting and Males JJ) allowed the appellant’s appeal against a quite separate conviction at Birmingham Crown Court on 3 May 1985 on the ground that police evidence was tainted ( Foran [2013] EWCA Crim 437 ). However, the evidence under scrutiny in that case concerned an offence which took place in September 1984 and concerned police officers none of whom were involved in the investigation which is the subject of the present appeal. Summary of evidence at trial 6. On 12 April 1977 the appellant and his wife were arrested in a jeweller’s shop on suspicion that they were attempting to sell stolen property. They were later released without charge. A dispute arose as to the whereabouts of the jewellery in the appellant’s possession. The appellant claimed that the police had seized and not returned the jewellery. The police account was that the appellant must have discarded the jewellery after his arrest and before arriving at the police station. Shortly afterwards, acting on information provided by the appellant, the police carried out a surveillance operation in anticipation of a wages robbery. No such robbery occurred. Later, at his trial, the appellant maintained that he had given false information to the police as a hoax in retaliation for his lost jewellery. On 3 May officers attended the appellant’s home looking for stolen property. They found a wallet and other documents belonging to Mr Farmer the owner of the garage the subject of count 1 in the indictment. The appellant was arrested and taken to Digbeth Police Station where he was interviewed under caution. The appellant claimed that his children had handed him the wallet the night before his arrest. The appellant was charged and released on bail to appear at Birmingham Magistrates Court on 14 June 1977. He failed to appear and a warrant for his arrest was issued. This is the background to subsequent events. In circumstances to which we shall return the appellant was arrested on 24 October 1977. 7. In the meantime the robberies the subject of the indictment took place. As to count 3, on 26 September at 4.00 am four men, three of whom were black and of West Indian origin, and the fourth of whom was white, broke into the home of Charles Apechis carrying knives. They robbed Mr Apechis of £2,800 in cash and a quantity of half sovereigns. As to count 4, on 8 October two men, one West Indian and the other white, broke into the home of Natwarlal Trikain and his wife. They entered the couple’s bedroom carrying metal bars. The black man took money out of a handbag and left the room. Taking advantage of the momentary distraction, Mr Trikain grabbed the metal bar in the white man’s hand. There was a struggle; then both intruders then made their escape. As to counts 5 and 6, the loser in count 5, Richard Rice, owned a jewellers shop in Sparkbrook. Mr Holmes, the loser in count 6 visited Mr Rice shortly before closing time on 13 October. Two black men entered the shop followed by a white man brandishing a sword. He was followed by two more black men. The sword was used to sever the telephone connection to the shop while the contents of two safes were emptied into a black bin bag. Cash was also removed from the till. Mr Holmes was robbed of his wallet. Mrs Rice and her daughter, Karen, interrupted the robbery when they arrived at the front door of the shop which had by this time been locked. As a result the robbers lost their nerve and ran off leaving the bin bag behind them. 8. On 21 October Detective Sergeant Whelan, stationed at Sparkbrook Police Station, showed Karen Price a number of photographs. She identified a photograph of the appellant as the white man at the robbery of her father’s shop. The jury knew of the identification but were instructed that the only admissible evidence of identification came from Mr Holmes (see para. 9 below). On 24 October the appellant was spotted by Detective Constable Davies, a member of the West Midlands Police Serious Crime Squad, driving a car in which a woman was the front seat passenger. Knowing that the appellant was wanted by the police he called for assistance and stopped the car. He arrested the appellant and took him to Acocks Green Police Station. On 26 October while he was in custody the appellant was examined by Dr Tubb. Dr Tubb found 15 bruises on the appellant’s body clustered around the front left shoulder and chest, the left upper arm, the abdomen, the right thigh and the left thigh. Their possible age was between two and four days. They were not, in Dr Tubb’s opinion, the result of a mere fall because they were too widespread. Some of the marks were linear, suggesting contact with a straight, blunt object. Others were caused by contact with a larger blunt object. If the marks were caused by objects impacting on the body, the force had been considerable. The evidence of the arresting officer, Detective Constable Davies, was that the injuries must have been caused during the fight between himself and the appellant when the appellant resisted arrest. According to Detective Constable Davies punches were thrown and a violent struggle took place while the appellant was both inside and outside the car from which he was removed. Once the appellant was outside the car an officer who arrived in support saw that the appellant and Detective Constable Davies were still grappling with one another but he was unable to say what had occurred in the earlier stages. The appellant’s passenger was not called to give evidence; the appellant said he could trace the witness. Detective Constable Davies suggested that the linear marks found on the appellant’s body may have been caused by impact with the steering wheel of the appellant’s car. There were other possibilities. The appellant’s evidence was that there was no fight at the time of arrest. He maintained that later, at the police station, he was beaten up by officers frustrated that he would make no admission. 9. The prosecution had no evidence with which to identify the appellant as being a person present at the robberies the subject of counts 3 and 4. As to counts 5 and 6, there was an identification of the appellant made by Mr Holmes at an identification parade held on 9 November 1977. However, on the same day, Mr Rice picked out a volunteer, while Mrs Rice and Karen picked out a different volunteer. 10. One of the grounds of appeal to the Court of Appeal on which the appellant relied in 1980 was that Mr Apechis (count 3) had since been shown a photograph of the appellant and positively excluded him as the white man who robbed him. The appellant also sought to challenge his conviction of the robbery at Mr Rice’s shop (counts 5 and 6) by relying on the prosecution’s failure to disclose at trial that the sword allegedly wielded by the appellant contained a single partial fingerprint that could not have been left by him. Part of the judgment of Donaldson LJ refusing the renewed application for leave was read to the House of Commons on 20 July 1982. It contained the following passage: “We have given serious consideration as to whether there should have been leave to appeal to enable these applications to call further evidence to be considered. We do not think there are any grounds for granting leave to call that further evidence, bearing in mind our analysis that this was a confession case and that identification or non-identification, or positive evidence that it was not the man, in the circumstances of this case, would not take the matter sufficiently far beyond the state which was reached at the trial when evidence from these two men was read, to justify us giving leave for them to give evidence and re-considering the matters.” Thus, it is conceded by the respondent to the present appeal that the alleged confessions were central to the appellant’s convictions. 11. The prosecution case was that the appellant was first interviewed at 5.35 pm on 24 October. Detective Inspector Curry, Detective Sergeant Hancocks and Detective Constable Davies were in the interview room. The appellant made no explicit denial but made no admission either. Detective Inspector Curry and Detective Constable Davies left the interview room, leaving the appellant alone with Detective Sergeant Hancocks. Detective Sergeant Hancocks gave evidence that he encouraged the appellant to respond directly to the accusation that he had participated in the robbery at Rice’s shop. He suggested that the appellant must remember whether he had done the robbery or not. Detective Sergeant Hancocks, in response to the appellant’s questions, told him that he would probably be asked to attend an identification parade because there were four witnesses. At 6.30 pm on 24 October the appellant was again interviewed by Detective Inspector Curry and Detective Constable Davies. He again made no admissions, saying that daylight robberies were not his style. 12. Those officers left the interview room at 6.55 pm and for a second time the appellant was left alone with Detective Sergeant Hancocks. During their conversation, according to Detective Sergeant Hancocks, the appellant said that he would say nothing about the robbery until he could trust him. He asked for time to think and the officer left the room. At 7.15 pm Detective Sergeant Hancocks returned with Detective Chief Inspector Taylor, recently appointed head of the West Midlands Police Serious Crime Squad. The officers gave evidence that they summarised their information as to the robbery at Rice Jewellers and accused the appellant of being the white man to whom the witnesses had referred. According to them the appellant said he wanted to talk alone with Detective Sergeant Hancocks because he did not know Detective Chief Inspector Taylor. 13. Detective Chief Inspector Taylor left the room. Detective Sergeant Hancocks said in evidence that the appellant started to bargain with him. He was prepared to give information about the robbery together with other crimes, including offences committed in Ireland. The officer replied that he could not make bargains but the appellant proceeded to give him information anyway. It was the defence case that Detective Sergeant Hancocks was lying. The officer’s response was to produce the handwritten note there and then made to jot down the information with which the appellant provided him. Detective Sergeant Hancock’s note, a copy of which we have seen, contains references to criminal associates meeting in the Vine Public House. The appellant called them “coons”. They committed robberies. One of them was a man named Errol. The description given matched the appellant’s co-accused Errol Campbell but the appellant did not identify Campbell as one of the robbers at Rice Jewellers. The appellant told Detective Sergeant Hancocks he would be able to recognise the robbers from photographs. He gave information about other crimes including events in Northern Ireland. The exhibit contained two A4 pages of handwriting that bear the appearance of notes spontaneously recorded and supplemented as the information emerged. 14. Detective Sergeant Hancocks said that having recorded this information he brought the appellant back to the Rice Jeweller’s robbery. The appellant replied, “Well it was me and the four west Indians. What a cock-up it was”. He told Detective Sergeant Hancocks how he had been recruited by the West Indians but denied that he had ever had the sword in his hand. He claimed that it had been carried by one of the black men who entered the shop after him. He told the officers that he had got “fuck all” from the robbery because it had been “a cock-up”. The appellant was asked whether he wanted to make a statement. He said that first the officer should check the information he had been given. 15. Detective Sergeant Hancocks left the room and at 8.15 pm returned with Detective Chief Inspector Taylor. In the appellant’s presence Detective Sergeant Hancocks gave Detective Chief Inspector Taylor an account of what had occurred. Detective Chief Inspector Taylor asked the appellant if Detective Sergeant Hancocks’ account was correct. The appellant replied that it was but he continued to insist that he had not carried the sword. He told the officers that he did not know the names of the other robbers (despite having referred to Errol earlier) but he could provide details and would do so only if the charge against him was dropped. The appellant was told that he had been identified by one of the witnesses from photographs. The officers could make no promises to him. Shortly after the interview the officers together made their notes of the appellant’s account of the robberies and his admission. That account was consistent with the statements of the witnesses. The appellant told the officers “I’ll give you them (i.e. the West Indians) if you drop the charges against me”. Detective Chief Inspector Taylor asked the appellant if he would make a statement. He replied that he would do it “tomorrow”. 16. Detective Sergeant Whelan, the officer who had shown the photographs to Karen Rice, gave evidence that at some point later that evening he had visited the appellant in custody at the police station. He had with him Detective Constable Bawden who was also stationed at Sparkbrook. Neither officer was a member of the Serious Crime Squad. Since Detective Sergeant Whelan was the officer in charge of the case in Sparkbrook he needed to see the appellant. Detective Sergeant Whelan informed the appellant that he had been told by Detective Sergeant Hancocks that he had admitted the Rice Jewellers robbery earlier that evening. According to Detective Sergeant Whelan and Detective Constable Bawden the appellant confirmed the truth of the statement. However, on the following day, 25 October, the appellant declined to make a written statement. On 22 December he was committed for trial and remanded to HMP Leicester. On 13 March 1978 Errol Campbell was arrested. He admitted his participation in the robberies charged in all four counts and in the course of his written statement implicated the appellant as the white man. The jury was informed of the statement but were directed that it was only admissible in the case of Campbell. Armed with this statement Detective Constable Davies and Detective Sergeant Jennings, both members of the Serious Crime Squad, travelled to Leicester to interview the appellant. They gave evidence that the appellant admitted his involvement and together they completed their notes of the conversation in a car outside the prison. 17. There was a dispute as to whether the appellant was willing to see the officers at all. A prison officer, Mr Law, gave evidence in the defence case. The prosecution produced a letter from the Chief Constable of the West Midlands Police to the governor of the prison confirming an arrangement for the visit. Also produced was a consent form signed by the appellant in which his rights as a prisoner in custody were set out. Mr Law gave evidence that the document was signed by the appellant either immediately outside or inside the interview room. The officers maintained that Mr Law entered the interview room and was present when the document was signed by the appellant. Mr Law agreed that when the appellant signed the document he must have known the identity of the officers who were to interview him: the appellant was either in the room with them or could see them through the glass door. According to the officers they first asked the appellant whether he recognised the names of some West Indian men. The appellant replied that he did not. The officers informed the appellant that they had in their possession a statement from Errol Campbell who was in custody at Bardesley Green Police Station. The statement was being read aloud to the appellant when the appellant jumped up and walked to the door of the interview room saying “That’s it. I have heard enough”. Detective Constable Davies suggested to the appellant that it was in his own interests to listen to what Campbell had said about him. According to the officers, when informed that Campbell had implicated him in all three robberies, the appellant responded by nodding and said, “OK Johnny [Davies], fair enough but if you hadn’t had locked the coon up I had a fifty-fifty chance of getting away with it”. The officer asked, “Am I to take it Martin, that you are admitting your part in the other offences?” The appellant replied, “Yes, I have got to give it to you, Johnny, you’ve worked hard. You know I am a bit of a con man, but how did you get Campbell? Did somebody put him in?” The appellant was asked whether he wished to make a statement. He replied that he wanted to speak to his solicitor first. He asked the officers to visit his wife in hospital where she had just given birth to their child. He wanted them to tell her that he knew what he was doing. 18. In cross-examination the officers maintained that at no stage did the appellant ask that Prison Officer Law should be in the interview room. He was present when the appellant signed the consent form and then left of his own volition. Mr Law gave evidence that the appellant was reluctant to be interviewed. Through the glass partition he could see that the appellant had got to his feet on between two and five occasions. However, at no stage did the appellant terminate the interview (as he had been told he could) but, towards the end, Mr Law said that he was asked to enter the room in order to hear the appellant’s denial of a proposition that was put to him. However, Mr Law could not recall what it was that the appellant was denying. Afterwards he left the room of his own volition. Mr Law recalled that as the officers were walking towards the gate while the appellant was being escorted by Mr Law back to his cell, the appellant was repeating to the officers his request for a favour which, it was apparent to him, the appellant had already made in the interview room. Mr Law could not recall what the favour was. 19. The judge reminded the jury of the appellant’s evidence of this visit. The appellant said he thought he was going to be visited by his wife. We note that it would be difficult to reconcile that belief with an assertion that his wife had just given birth in hospital. The appellant said that he declined to see the officers and asked to be returned to his cell. Detective Constable Davies told him that they had his solicitor’s permission to see him. He thereupon signed the consent form. The appellant said that as soon as he heard his name mentioned in Campbell’s statement he stood up and asked to be returned to his cell. As we have said, that assertion was not supported by Prison Officer Law. The officer suggested that it was in the appellant’s interest to listen. Detective Sergeant Jennings said that he wished to speak to the appellant alone and Detective Constable Davies left the room with Mr Law. That assertion is also inconsistent with Mr Law’s evidence. The appellant claimed that Detective Sergeant Jennings told him that if he was prepared to admit the Rice Jewellers robbery he would guarantee that his wife would not be arrested on suspicion of offences in Ireland. The appellant said that he made no admission to the officers of any offence. When informed by Jennings that he would go to hospital to charge his wife the appellant requested that he pass on his love to his wife and tell her not to worry. 20. In his evidence the appellant denied that he was aware that he was on bail to appear at the magistrates’ court in June 1977. He claimed that Detective Constable Davies had let him go on condition that if he acquired information that he was prepared to give to the police about other offences at a later stage the charge of burglary and theft of Mr Farmer’s wallet (count 1) would be dropped. It was the appellant said, police bail pending further enquiries. The prosecution produced exhibit 9, the charge sheet in which, contrary to the appellant’s evidence, he had been charged with the offence. The appellant denied that the reference to bail to the magistrates’ court was in the copy that had been provided to him. The prosecution case was that there were up to six copies of the document. The appellant denied that the signature on the bail form was his own. However, the officer who prepared the document and obtained the appellant’s signature gave evidence that had the appellant not signed his acknowledgement of bail he would not have been released from the police station. 21. The appellant maintained that there had been no fight when he was arrested by Detective Constable Davies. At the police station he was taken to a cell by Detective Sergeant Hancocks and later retrieved by Detective Constable Davies. In the interview room were Detective Sergeant Hancocks, Detective Inspector Curry, Detective Constable Davies and a fourth, unidentified officer. The appellant said that Davies fetched some paper and told the appellant that he would now have a statement from him about the robbery. When the appellant refused Detective Constable Davies twisted his ears and said, “You are fucking Uncle John about, now make a statement”. When the appellant again refused he was pulled off his chair by his hair and kicked by Detective Inspector Curry and Detective Constable Davies. The appellant said that he would prefer to talk to Curry than to him. Davies fetched a truncheon and rammed it into his stomach. Hancocks and another officer held up the appellant’s legs while Curry kicked him. The appellant said that despite this beating he had never made admissions and he had not given Detective Sergeant Hancocks any information. The note made by the officer was a fabrication. The appellant accepted, however, that when Detective Sergeant Whelan visited him the Sergeant informed him that he understood the appellant had made earlier admissions to Detective Sergeant Hancocks. According to the appellant, he responded, “You have got to be joking. They beat the hell out of me.” 22. The appellant agreed that he told the police he could not recall where he was on 13 October. He said that while in custody on remand he worked backwards and recalled that he had an alibi for the time of the robbery. He had been visiting a Mrs Kyle. He recalled using a taxi because his own car was at a garage. Mrs Kyle, he agreed, had visited the appellant in prison several times. Mrs Maisey Hamilton, Mrs Kyle and Mrs Kyle’s daughter gave evidence in support of the alibi. The prosecution did not dispute that the appellant had visited Mrs Kyle. They challenged that the witnesses were honest and/or accurate about the date of the visit. As to the circumstantial detail that the appellant had used a taxi because his own car was at a garage, when asked to name the garage the appellant was unable to do so and was evasive when challenged. The summing up 23. In the course of his summing up Judge Ross QC explained to the jury that the prosecution relied on identification only in the case of the Rice Jewellers robbery in counts 5 and 6. Later, he pointed out that in relation to count 3 the victim’s description of the white intruder bore no resemblance to the appellant. Although Mr Trikain and his wife (count 4) purported to give a general description of their attackers, both of them said that they had covered their faces with articles of clothing. As to Mr Holmes’ identification of the appellant, (counts 5 and 6) the judge gave the jury an incomplete Turnbull direction. He instructed them as to the dangers of identification evidence even by perfectly honest witnesses. He pointed out the factors that the jury would need to examine in order to assess the opportunity that Mr Holmes had to make an accurate identification. They should compare his face to face identification with the description earlier given in a statement. He reminded the jury of the contrary identifications made by Mr and Mrs Rice and their daughter. The judge did not make specific reference to the court’s knowledge of cases of miscarriages of justice occasioned by the identification evidence of perfectly honest witnesses. In his witness statement Mr Holmes described the white man as aged about 40 with moles on his right cheek. The appellant was aged about 30 and did have moles on both cheeks. At the identification parade all those who stood wore brown paper ‘plasters’ on their cheeks. Mr Holmes said that he could tell from his accent that the white man was Irish, as was the appellant. Mr Holmes had described the man as having fair hair. The appellant did not have fair hair. Mr Holmes ascribed his mistake to the fact that the man had been wearing a hat. The judge advised the jury to look for other evidence in support of the identification and informed them that the supporting evidence derived from the appellant’s alleged admissions. The jury would have to resolve the dispute in the evidence as to the circumstances in which the appellant suffered his injuries and the accounts of the admissions made by the appellant to the officers. 24. The judge reminded the jury of the evidence of Police Constable Flemming, the officer in charge of the desk at Digbeth Police Station on 3 May. He did not claim to remember the appellant personally but he described the process of charge and admission to bail as routine. 25. The judge reminded the jury that the note of the first interview between Detective Constable Davies, Detective Inspector Curry and Detective Sergeant Hancocks was made jointly by the officers. He invited the jury to consider whether Detective Sergeant Hancocks was telling the truth when he said that when alone with the appellant the appellant appeared more willing to talk to him. The critical conversation occurred when Detective Sergeant Hancocks was alone with the appellant after Detective Chief Inspector Taylor’s first visit with Hancocks to see the appellant at 7.15 pm. The judge reminded the jury of the relevant contents of the note Detective Sergeant Hancocks said he had made in the appellant’s presence as follows (page 36): “Meet in the Vine Pub. Can show house in Small Heath (West Indian) with stolen gear. Col”, which I suppose is there for coloured, “n.s. etc. Near Golden Hillock Road. House where robbery property goes to (can show) in Bardsley Green Road above police station – white bloke Richard Woolley. Wife knows jewellery trade and West Indian uses them. Uses his mothers as a safe house at …” I have difficulty in reading that bit members of the jury. “She owns second hand shop at Digbeth. Ricky looks after the coons in the robberies”. Then there is a series of references to different people. One was, “West Indian, Errol, 5’8” bushy hair, dresses well, uses Vine and frequents Small Heath. White girlfriend”. You heard evidence from another police officer, not Hancocks, that that is a description that fits Errol Campbell a man who has been so frequently mentioned in the course of these proceedings”. The judge continued with the following comment: “The significance really of this document which goes on later to describe various places in Ireland is this: the defendant says it was not written in his presence. He denies having given any of this information to Hancocks. Therefore, you are left to ask yourself which of the two of them is giving anything like an accurate account of this particular interview? One of the questions the Crown asks you to ask yourselves is whether it is really conceivable that Detective Sergeant Hancocks just made this document up out of thin air or whether it can only have come into existence because it is a note of what the defendant at that time was telling him. If it was, does it or does it not, in part at least, relate to Errol Campbell and, on another part, does it or does it not relate to the defendant’s movements in Ireland?” 26. The judge reminded the jury that according to Detective Sergeant Hancocks the appellant gave an account of the Rice Jewellers robbery that accorded with the evidence of the witnesses. It was the appellant, Hancocks said, who described the robbery as a cock-up from which he had received no gain. The judge concluded with these words: “Members of the jury, yours is the task to determine where the truth lies in this case. Did Detective Sergeant Hancocks make that up or is that what he was told? Not necessarily word for word as he made a note of it afterwards, but is that the substance of what he was told? If it is, is that or is it not a reasonably accurate description of what happened in Mr Rice’s shop? You bear in mind his evidence about it and Mr Holmes’ evidence about it and, for that matter, the evidence of Mrs Rice of how she came to the shop and upset the whole business by knocking on the door. It is for you to decide … as to whether or not that evidence leads you to the conclusion that the identification made by Mr Holmes is, in fact, the correct identification.” 27. The judge summarised the evidence that Detective Chief Inspector Taylor and Detective Sergeant Hancocks returned to the appellant who repeated and expanded on the version already provided to Hancocks, while at the same time attempting to bargain his way out of the charge against himself. The judge concluded: “Once again, are Detective Sergeant Hancocks and Detective Chief Inspector Taylor telling you the truth? Not necessarily word for word because these are not notes made as the words are spoken, they are words made shortly afterwards, but have they told you the substance of what this man was saying at that time?” 28. The judge reminded the jury of the agreed evidence that following the interview on 24 October Detective Chief Inspector Taylor went to fetch the appellant’s wife so that she could visit the appellant in custody, the judge commented upon the evidence as follows: “...at the defendant’s request Detective Chief Inspector Taylor went and got Mrs Foran and brought her to the station and she was allowed to see him. Again members of the jury, it is a matter for you, but it is the defendant’s version … that in the course of these successive interviews between himself and the police officers he was beaten up because he would not confess. It is then a question for you, the officers who have just given this man a beating fetch his wife to the police station and say that she can see him within a matter of hours of the beating having taken place. It is a matter for you whether you think that is an allegation that makes sense or not.” As to the visitors, Detective Sergeant Whelan and Detective Constable Bawden, later that evening, the judge reminded the jury that the appellant did not dispute that Whelan opened the conversation by saying, “I understand from that you have admitted responsibility for that job, is that right?” The judge added no further comment but we observe that the jury may well have concluded that it was hardly likely that Whelan would have used those words to the appellant unless Hancocks had in fact told him that the appellant had made the admission. If that was the jury’s view, they might also have concluded that it was improbable Detective Sergeant Hancocks would so have informed the officer in charge of the case unless the admission had been made by the appellant. 29. The judge made plain to the jury that as a matter of common sense counts 5 and 6 must stand or fall together. There was an overlap in the evidence relevant to counts 3 – 6 only in the sense that Detective Sergeant Jennings and Detective Constable Davies asserted that at HMP Leicester on 3 April 1978 the appellant made admissions to all three robberies. However, in the case of counts 3 and 4, there was no evidence independent of the police officers to associate the appellant with those offences. The additional and fresh material 30. In the course of her submissions Ms Nicholls relied upon the statement of Charles Apechis absolving the appellant of responsibility for the count 3 burglary and upon the admission by the prosecution that by reason of an oversight the prosecution had failed to disclose the fingerprint evidence relating to the sword recovered from the scene of the robbery in counts 5 and 6. Notwithstanding the refusal of leave by the court in 1982 and the acknowledgement by the CCRC that the evidence was unlikely to assist the appellant in the present appeal, Ms Nicholls submits that these are both factors that this court should consider when examining the safety of the verdicts. In the Commission’s view, and as Ms Nicholls acknowledged, the fingerprint evidence was of marginal assistance to the appellant since the evidence revealed that the sword was handled by more than one person; it follows that at least one person handled the sword but left no recoverable finger impressions. 31. It is acknowledged on both sides that the evidence that was critical to the convictions related to the admissions allegedly made to police officers. 32. In August 1989 the West Midlands Police Serious Crime Squad was disbanded. There followed an investigation into its practices by the West Yorkshire Police under the supervision of the Police Complaints Authority. Efforts were made to trace all of those arrested by the Serious Crime Squad during the years between 1986 and 1989. There was revealed a catalogue of malpractice which included physical abuse, the generation of false confessions, the planting of evidence and the mishandling of informants. At least 33 convictions resulting from tainted evidence given by members of the squad have been quashed by this court including some convictions emanating from the work of officers who were or became members of the Serious Crime Squad as early as the mid-1970s, the most notorious of which were the convictions of the Birmingham Six (see McIlkenny and Others [1991] 93 Cr App R 287 ; see also O’Toole and Murphy [2006] EWCA Crim 951 ; Wilcox [2010] EWCA Crim 1732 ; and Dunne and Others [2001] EWCA Crim 169 ). 33. Those officers who gave evidence concerning counts 3 – 6 of the present indictment and were members of the Serious Crime Squad in 1977 and 1978 were Detective Chief Inspector Taylor, Detective Sergeant Hancocks, Detective Sergeant Jennings and Detective Constable Davies. Detective Inspector Curry, Detective Sergeant Whelan and Detective Constable Bawden were not members of the Squad. 34. Membership by police officers of the Serious Crime Squad in the mid-1970s is not an automatic gateway to successful appeals against historic convictions obtained by evidence of confession. In John Edwards [1991] 93 Cr App R 48 , the then Lord Chief Justice, Lord Lane, gave guidance to trial judges as to the permissible limits of cross-examination of police witnesses as to credit. Giving the judgment of the court, Lord Lane said, at page 55: “Generally speaking, questions may be put to a witness as to any improper conduct of which he may be guilty, for the purposes of testing his credit.” (Note: see now section 100 of the Criminal Justice Act 2003). Usually, the questioner would be bound by an answer given to a question going only to credit, but where the evidence went as far as to establish bias, evidence might be called in rebuttal of any denial by the witness. Thus, evidence of systematic misconduct in the investigation of suspects or in the management of witnesses may be admissible. Lord Lane continued: “So far as the matters advanced by Mr Hacking [counsel for the appellant] are concerned, the police officers could certainly be cross-examined as to any relevant criminal offences or disciplinary charges found proved against them. That leaves the following matters: should questions be permitted as to – (1) complaints by members of the public about the behaviour of the witness on other occasions not yet adjudicated upon by the Police Complaints Authority; (2) discreditable conduct by other officers in the same squad; (3) other cases in which the witness has given evidence which has resulted in acquittal of the defendant at the trial or the quashing of the conviction on appeal? This is an area where it is impossible and would be unwise to lay down hard and fast rules as to how the court should exercise its discretion. The objective must be to present the jury as far as possible with a fair, balanced picture of the witness’ reliability, bearing in mind on the one hand the importance of eliciting facts which may show, if it be the case, that the police officer is not the truthful person he represents himself to be, but bearing in mind on the other hand the fact that a multiplicity of complaints may indicate no more than what was described before us as the “band-wagon” effect. We do not consider that it would have been proper to suggest to the officer in the present case that he had committed perjury of any other criminal offence by putting to him that he had been charged but not yet tried. Nor do we think that complaints to the Police Complaints Authority which have not been adjudicated on would properly be the subject to cross-examination. It would not be proper to direct questions to an officer about allegedly discreditable conduct of other officers, whether or not they happen to be serving in the same squad.” 35. Lord Lane gave consideration to the admissibility of questions concerning acquittals and other cases in which an officer had given evidence that may have been disbelieved. Having examined the authorities he said, at page 59: “Relevance, and therefore admissibility, is a matter of degree and has to be considered not by rule of thumb but against the background of each individual case. One of the considerations, we repeat, is the necessity of keeping the criminal process in proper bounds and avoiding the pursuit of side issues which are only of marginal relevance to the jury’s decision. It will accordingly, as the judgment in Thorne made clear, be rare that the judge in his discretion will allow cross-examination about the activities of a witness in other cases and the outcome of those cases. The reason is that an acquittal, save in exceptional circumstances, by no means necessarily means that the jury has disbelieved the police officer who has given evidence at the defendant’s submissions.” 36. The issue that arises in the present appeal is not, as in John Edwards, whether proper disclosure was made to the defence of the result of disciplinary proceedings to which an officer had been subject but whether, in the light of later events, it is demonstrated that the officers’ evidence was unreliable and, accordingly, that the verdicts are unsafe. That would involve a consideration by the court of the particular facts of the appeal before them, including the nature of the information available to the court as to the discredit of witnesses who gave evidence in the original trial. Ms Nicholls, in the course of her submissions disclaimed any attempt in this appeal to establish guilt by association. That which concerns this court, she accepted, is whether there is material, subsequently gathered, that taints the credit of the witness to such an extent that the safety of the verdicts is placed in doubt. That issue may be tested, and has been tested in similar appeals, by considering whether, had the material been available at the time of trial, cross examination upon it would have been permitted and, if so, whether that cross examination may have had the effect of casting doubt upon the reliability of the witness and thus the safety of the verdict. However, evidence may be tainted by subsequent events although no specific findings of corruption or perjury have been made against an officer concerned. 37. In Maxine Edwards [1996] 2 Cr App R 345 the appellant had been arrested by Detective Constable Gillan and Police Constable Carroll on suspicion of being in possession of crack cocaine. At her trial she asserted that the officers were lying when they claimed that the drug was in her hands. It had been recovered from the back seat of her co-accused’s car next to which she had been standing at the time of her arrest. They were also lying when they claimed she had made compromising remarks to the officers when she was being conveyed to the police station. Ms Edwards was convicted of possession of a class A drug with intent to supply, her appeal was dismissed and she was deported. Subsequently, her case was referred back to the Court of Appeal by the Home Secretary, using his powers under section 17 of the Criminal Appeal Act 1968. The arresting officers had been members of the Stoke Newington drug squad which in intervening years had been the subject of an investigation, Operation Jackpot, and severe criticism of the integrity of the squad. Several convictions that had depended upon similar evidence had been overturned on appeal, some with the agreement of the prosecution. It was argued by the respondent in the appeal of Ms Edwards, however, that, since the investigation had exposed no explicit wrongdoing by the officers who arrested her, the appeal should be dismissed. Beldam LJ, giving the judgment of the court, said at page 350: “Mr Aylett urged us that now enquiries had been completed and no charges had been brought, nor disciplinary action taken, involving either of the officers who gave evidence in the case of this appellant, we should take the view that there was no reason to regard her conviction as unsafe. Whilst there is much to be said for Mr Aylett’s approach, the fact remains that in 1993 the degree of suspicion of the trustworthiness of the evidence of Constable Carroll, and those with whom he was working from day to day was such that the Crown considered convictions based upon that evidence could not safely be supported. Once the suspicion of perjury starts to infect the evidence and permeate cases in which the witnesses have been involved, and which are closely similar, the evidence on which such convictions are based becomes as questionable as it was in the cases in which the appeals have already been allowed.” Thus, the reach of discredit may have become institutional. Although there had been no adverse finding express or implied against Detective Constable Gillan, it was sufficient that the evidence of Constable Carroll was tainted by his discredited appearance in other cases. The appeal was allowed. 38. This was an issue again examined by the Court of Appeal in Crook [2003] EWCA Crim 1272 (Judge LJ, Andrew Smith J and HHJ Richard Brown). The target of the appeal was the reliability of evidence given at trial by Detective Constable Geaghan. The squad in which he served had been the subject of investigation. As a result 25 officers were charged with offences or suspended from duty. Detective Constable Geaghan was not one of them. Nonetheless it was argued that he was covered by the “general taint” of evidence of the squad’s activities. Judge LJ, delivering the judgment of the court said, at paragraph 21, that taint may properly be attributed to those found guilty of misconduct and those who turned a blind eye to the misconduct of other officers of which they were aware. The same considerations did not apply to officers of whom it was not established that they either participated in misconduct or, being aware of it, said nothing. Nothing had been produced that could have been put to Detective Constable Geaghan in cross examination and his participation in the investigation was, in any event, limited. There was material that could have been put to another officer, Detective Inspector Brown, but his involvement in the investigation had also been extremely limited and he had not given evidence at the trial. In the result, the court saw no basis on which to find that the safety of the conviction was undermined. 39. Each case must be decided upon the court’s assessment of its particular facts. We shall turn to examine the material on which the appellant now relies to undermine the safety of his conviction. Detective Constable Davies 40. Detective Constable Davies was central to the investigation of the appellant although he was not present on 24 October when any alleged admission was made. He arrested the appellant for the theft of Mr Farmer’s wallet. He arrested him again on 24 October 1977. He interviewed the appellant following his arrest and again after charge at HMP Leicester. Detective Constable Davies, according to the appellant, took the lead when officers adopted a threatening manner towards the appellant and assaulted him when he refused to make a statement. 41. The appellant relies upon the accepted fact that Detective Sergeant Hornby and Detective Constable Davies both served in the Serious Crime Squad, subsequently the subject of close scrutiny and criticism. It is common ground that the reliability of Detective Sergeant Hornby as a witness has been severely compromised by decisions of the court in several subsequent appeals. It is unnecessary to repeat the details here. Nonetheless, in none of those appeals has Detective Constable Davies featured either as a participant or as a witness. There are undoubtedly occasions between 1974 and 1978 when Hornby and Davies would have been working together but, with one possible exception with which we deal below, we are not persuaded that there has been any explicit or implied finding adverse to Detective Constable Davies concerning any of those occasions. 42. The appellant relies specifically upon the involvement of Detective Constable Davies with Detective Sergeant Hornby in the investigation which led to the arrest and prosecution of the Birmingham Six in November 1974. There were appeals against conviction in 1987 and 1991. In 1991 the convictions of the six men were quashed. The Court of Appeal held that two issues, considered separately, would lead to the conclusion that the convictions were unsafe. The first concerned the reliability of chemical tests performed during the investigation for the purpose of connecting explosive material to the defendants. The second concerned the police evidence as to the making of contemporaneous notes of interview. During the appeal evidence of electrostatic document analysis (ESDA) was introduced as a means of testing the accuracy of interview records in which Richard McIlkenny reportedly made a confession. The analysis showed that the records were not contemporaneous as the interviewing officers had stated when giving their evidence at trial but were composed, at least in significant part, after the event. In 1991 the Court of Appeal found that the four officers who had contended otherwise in evidence had misled the court. 43. There also featured in the appeals in both 1987 and 1991 a document that became known as “the Reade Schedule”. It had seven columns headed by Superintendent Reade respectively, “Date”, “Time”, “Officers”, “Prisoners”, “Place”, “Reference”, and “Knowledge of”. Entries covered the period 3.15 am on 22 November to 3.15 pm on 24 November and many of them were alterations and corrections of earlier entries. When asked in 1987 what was the purpose of the document Superintendent Reade said, after giving conflicting accounts, that he could not remember. At [1991] 93 Cr App R at page 309, in his judgment given on behalf of the court, Lloyd LJ observed that it was probable that the schedule was not a running record of the interview of suspects but a record prepared shortly after the interviewing had been completed. It was argued by counsel for the appellants that the purpose of the schedule must have been to nominate, after the event, in which interview, with which officers a suspect had made admissions. At 3.05 pm on Saturday, November 23 the appellant Hugh Callaghan was interviewed. In the column headed “Officers”, Superintendent Reade had written, “DS Hornby and crew”. Detective Constable Davies was a member of Detective Sergeant Hornby’s crew. On the last page of the schedule was written “Davies and Bryant will be OK”. Other entries in the schedule caused the Court of Appeal in 1991 serious misgivings. However, in the first appeal in 1987 the court had heard Superintendent Reade give evidence and rejected the appellants’ contention that the schedule was a “blueprint for perjury”. In 1991 the court concluded, at page 310: “We need go no further than to say that on the evidence now before us, Superintendent Reade deceived the court. We do not think we should go further than that, without having heard from Superintendent Reade and the other officers alleged to be part to the conspiracy.” Lloyd LJ’s reference to deceit concerned the evidence given about the interviews with Richard McIllkenny and not, as far we can discern from the judgment, those with the appellant Hugh Callaghan. 44. Detective Constable Davies did not give evidence in the trial of the Birmingham Six or in the appeals. We do not know the reason. At the time of the hearing in the present appeal it was not known whether Detective Constable Davies had made a witness statement. We have since been provided with a typed but unsigned and undated copy of Detective Constable Davies’ witness statement, which appears from its pagination to have formed part of a file of evidence. He was never asked to account for the interview with Callaghan and the court in 1991 made no explicit findings in respect of it. The court’s conclusions were, at page 317, as follows: “As with Walker, the case against Callaghan rests primarily on his written statement under caution. He confessed almost at once when seen by Detective Sergeant Hornby, Detective Constable Bryant and Detective Constable Davies at 2.55 pm on Saturday November 23. As with Walker, his statement under caution is in two colours of ink. Some of Callaghan’s signatures are in black ink. Some in blue. Unlike the other appellants, Callaghan does not allege police brutality other than a single slap in the face. Part of what appears in his statement is, he said, true; part he made up for the benefit of the police, and part the police made up themselves. He signed the statement under caution, implicating Hunter in the bombing of the Mulberry Bush, because he felt threatened. On the Sunday, he was seen again, he told the police that Walker was a brigadier in the IRA, Hunter a captain and the others all lieutenants. This was not a police invention, since Callaghan admitted in evidence that he had given their ranks, but said that he had picked the ranks at random, and that they were not in fact members of the IRA.” 45. In his witness statement Detective Sergeant Davies said that at 2.30 pm on Saturday 23 November 1974, he went with Detective Sergeant Hornby and others to Sutton Coalfield police station where they saw Hugh Callaghan. Mr Callaghan almost immediately said that he wished to make a written statement. Hugh Callaghan, said Davies, “then threw his arms around me and sobbed on my shoulder”. Shortly afterwards Detective Sergeant Hornby took down Callaghan’s statement at his dictation. While the statement was taken Callaghan cried continually. 46. There is no doubt that in 1974 Detective Sergeant Hornby was the leader of a “crew” of which Detective Constable Davies was a member but we are unable to accept that by virtue alone of the entry in Superintendent Reade’s schedule, the Court of Appeal can be taken as having made any finding against Detective Constable Davies, expressly or impliedly. On the other hand, at page 318 of its judgment, the court pointed out the inconsistencies between the confessions of Hugh Callaghan and John Walker. As we have seen, Callaghan accepted that in parts he told the truth while in others he lied for the benefit of the police. He claimed that some of his confession was made up by the police. This, however, was not an issue that was resolved by the court and Callaghan’s allegation does not appear ever to have been put to Davies. The court had concluded that four officers, not those engaged in Callaghan’s interview, had at least deceived the trial in the course of their evidence: Superintendent Reade, Detective Sergeant Morris, Detective Constable Woodwiss and Detective Constable Langford. The court concluded that in consequence the police evidence at trial was so unreliable that the convictions as a whole were unsafe and unsatisfactory. 47. In the course of argument this court expressed concern at the prospect of making adverse findings about Detective Constable Davies in the absence of such a finding by the Court of Appeal in McIlkenny or in any other case that his evidence had been unreliable or that his participation in an investigation had been in any way suspect. Such a finding would indeed amount to guilt by association. However, Mr Rees QC, on behalf of the respondent, drew our attention to the decision of the court in the appellant’s earlier appeal. On 3 May 1985 the appellant had been convicted of robbery and conspiracy to rob. One of the witnesses who gave evidence of an alleged confession was Detective Inspector Paul Matthews. The appellant relied on further material that had become available since his earlier appeals. First was the background evidence as to the misconduct of the West Midlands Police Serious Crime Squad. Second was Detective Inspector Matthews’ involvement in the cases of McIlkenny (above) and O’Toole and Murphy [2006] EWCA Crim 2123 . In the investigation of McIlkenny Detective Constable Matthews, as he then was, interviewed the appellant Richard Hill. He gave evidence that Hill implicated two other accused, Murray and Sheehan. Just as, in the case of Hugh Callaghan’s interview, the court did not single out any officer for specific criticism but made the generic finding that the fresh investigation carried out by the Devon and Cornwall Constabulary, and in particular the ESDA evidence, rendered the police evidence and therefore the convictions unsafe. However, Detective Sergeant Matthews, as he then was, also gave evidence in the trial of O’Toole and Murphy whose subsequent convictions were quashed (Laws LJ, Collins and Silber JJ). It emerged in the appeal of O’Toole and Murphy that Matthews had in September 1986 been made the subject of an adjudication for disobedience to orders and neglect of duty. He was required to resign from the force. Furthermore, in November 1985 a jury disbelieved the evidence of the officer in the trial of Herring and Fitzgerald. These were both matters that had been raised in an earlier appeal mounted by O’Toole & Murphy. However, in the appeal of Foran LJ Leveson, giving the judgment of the court, pointed out (reflecting the views of Lord Lane in John Edwards, para. 34 above) that notwithstanding the absence of specific findings against Matthews subsequent to the earlier appeals of O’Toole & Murphy there was no hard and fast rule as to the ambit of legitimate cross-examination going to the credit of the officer. At paragraph 33 of his judgment LJ Leveson, speaking of the judgment of the court in O’Toole and Murphy , said: “33. Laws LJ then concluded (at para 44) that DI Matthews and other officers could properly have been cross-examined on the matters to his discredit referred to above which had emerged (including the Herring case, which here does not appear to have been regarded as a case where DI Matthews evidence was disbelieved). The 1995 decision of this court in which little or no weight was given to the Herring case does not appear to have been cited in O’Toole & Murphy , but despite this, we consider that the same conclusion as in O’Toole & Murphy, must apply here, that is to say, that at the trial in the present case DI Matthews could properly have been cross-examined if those matters had been known, as to his involvement in (at least) the Herring, McIlkenny and O’Toole cases, all of which involved fabricated or allegedly fabricated confessions, sometimes in circumstances with similarities to the present case and which together suggest a disturbing pattern, against the background of his membership of the discredited West Midlands Serious Crime Squad, as well as his disciplinary record.” 48. With respect to Mr Rees’s argument, we see a stark distinction to be made between the positions of Detective Inspector Matthews and Detective Constable Davies. It may be that if there was in the present case hard or even inferential evidence of misconduct to the witness’ discredit in other cases, or of his suspected participation in corrupt practices with witnesses or defendants, cross-examination as to his involvement in the interviews of Hugh Callaghan would have been permissible. In the present case, however, not only is there no evidence to Detective Constable Davies’ discredit in other cases but he did not give evidence in the trial of McIllkenny and Others . In the absence of an adverse finding by the Court of Appeal, the basis for putative cross-examination in Mr Foran’s trial would have been flimsy and inconclusive. All that exists is a suspicious entry in the Reade Schedule that, at best, is likely to have been double hearsay for which there may be a perfectly innocent explanation. Had there been evidence that, as in the case of Detective Inspector Matthews, Davies was implicated in any way in the corrupt practices of the Serious Crime Squad in the 1980s, this court would be able to take a different view. In the absence of such evidence we are un-persuaded that we should approach the position of Detective Constable Davies in the present appeal as though he were in the same position as Detective Inspector Matthews in Mr Foran’s successful appeal against his 1985 conviction. We conclude that the assertions made as to Detective Constable Davies’ credibility amount on examination to no more than unsubstantiated speculation within the third category of witnesses described by Judge LJ, as he then was, at paragraph 21 of his judgment in Crook. Detective Chief Inspector Taylor and Detective Sergeant Jennings 49. We turn to the role of Detective Chief Inspector Taylor. Mr Taylor was an important witness since the prosecution asserted that, on two occasions, he was consulted by Detective Sergeant Hancocks and then accompanied Detective Sergeant Hancocks to interview the appellant. He confirmed Detective Sergeant Hancocks’ evidence that during the last interview between them on 24 October the appellant was admitting the robbery at Rice Jewellers. Detective Sergeant Jennings interviewed the appellant with Detective Constable Davies at HMP Leicester on 3 April 1978. 50. The material on which the appellant relies concerns the police investigation into Keith Twitchell’s alleged participation in a robbery and manslaughter that took place on 13 November 1980, three years after the investigation in the present case. After Mr Twitchell’s unsuccessful appeal against conviction in 1983, the CCRC referred the matter back to the court in 1998. In Twitchell [2000] 1 Cr App R 373 (Rose LJ, Vice President, Jowitt and Hooper JJ), the appeal was allowed and his convictions were quashed. Keith Twitchell was arrested at 11.55 am on the morning of the robbery in which the victim was shot dead. A stolen Ford Escort had been used to facilitate the robbery of a Securicor van. The police evidence was that recovered from the defendant’s girlfriend’s home was his cloth cap on which was found, on examination by a forensic scientist, a single fibre that matched the carpet in the stolen Ford Escort. A stolen Daimler was also used in the robbery to facilitate escape. The police gave evidence that Twitchell was seen in the car after the robbery, that tools from the stolen Daimler were found in Twitchell’s motorcar and that toys and a tool box from the Daimler had been found in Twitchell’s lock-up garage. The appellant’s case was that these items had been planted by the police. However, the Court of Appeal proceeded on its assessment that the case against the defendant rested primarily on admissions allegedly made in interview. 51. The defendant was interviewed on 14 November. At first he said he was at home at the time of the robbery. The officers gave evidence that, when they produced the statements of his two co-accused, the defendant began to make admissions. Those officers included Detective Sergeant Hornby, Detective Sergeant Jennings and Detective Constable Brown. Twitchell’s account was that he had made no such admissions. He was stripped so that his clothes could be forensically examined. He was effectively naked. He was told that the officers wanted a statement. When he refused to make a statement the officers screamed at him. He was handcuffed to a chair and a plastic bag was placed over his head. In consequence and in fear he signed a statement written by the officers and, the following day, signed a second statement. He also admitted a robbery in Sheffield of which he was later acquitted in a separate trial. Mr Twitchell did not implicate Detective Sergeant Jennings personally in the physical assault upon him but he was present, he said, during at least part of the fabricated interview when pressure was being placed upon him to make a confession. 52. Detective Chief Inspector Taylor gave evidence that he was present during the first interview and he could therefore confirm that no assault had been committed by his officers on the defendant. Mr Twitchell’s evidence was that Taylor was not present. Detective Sergeant Brown later became Chief Superintendent. Some years later, in a civil action for damages brought by another convicted but unrelated defendant, Mr Treadaway, against the Chief Constable of the West Midlands Police, Mackinnon J made an explicit finding to a high degree of probability that Mr Treadaway had been assaulted by five officers of the Serious Crime Squad including Detective Sergeant Brown in circumstances not dissimilar to those alleged by Mr Twitchell. As a result Mr Treadaway’s conviction was quashed. 53. In the appeal of Twitchell the prosecution conceded that evidence of the findings against Detective Sergeant Brown in Treadaway were admissible as also were two disciplinary findings of March 1982 against Detective Chief Inspector Taylor, one for neglect of duty concerning payments to an informant and another for falsehood, the nature of which was unspecified. Other material going to credit was available in respect of other officers (but not Jennings). The respondent conceded that had this material been available to counsel to cross-examine the officers at trial the effect upon the jury’s consideration of the evidence of confession was likely to have been “devastating”. Accordingly, the Court of Appeal allowed Mr Twitchell’s appeal against conviction. It is argued by Ms Nicholls that this material would have been admissible in the cross-examination of Detective Chief Inspector Taylor and Detective Sergeant Jennings. Mr Rees QC responded that there had been no explicit finding in Twitchell against either man. The Court of Appeal had allowed the appeal not because the allegations made by the appellant against Taylor and Jennings were established (Rose LJ, Vice President, stated at page 385 that the court made no findings against any individual officers) but because the material available would have been used to effect in cross examination before the jury. Discussion and conclusion 54. It is accepted by the Commission that there is no direct evidence of malpractice against Detective Constable Davies, Detective Sergeant Hancocks, Detective Constable Bawden and Detective Sergeant Whelan, all of whom gave pivotal evidence in the trial of the appellant in 1978. However, it is submitted that there was implied in the judgment of the Court of Appeal in McIlkenny in 1991 a finding that the investigating team, including Detective Constable Davies, was corrupt or, if not corrupt, at least tainted to a degree that puts the credibility of Detective Constable Davies’ evidence on oath in serious doubt. We have already expressed our reasons for rejecting this argument. While we accept that the taint of institutional corruption may affect the credit of an individual witness against whom no specific finding has been made, we note that this was an investigation in 1977 and that on no occasion since has Detective Constable Davies been implicated in corrupt practice. It is argued that the subsequent disciplinary findings against Detective Chief Inspector Taylor are important because, had they preceded the appellant’s trial, they would have provided ammunition for cross-examination as to credit. He was also tainted subsequently by his involvement in the trial of Twitchell and thus susceptible to accusations of corruption in his dealings with suspects . In 1977 Detective Chief Inspector Taylor was the recently appointed head of the Serious Crime Squad. His leadership role would, it is submitted, have had a significant impact upon the team whom he was directing and, therefore, the truth of the evidence that the appellant made the disputed admissions on 24 October 1977 and on 3 April 1978. He was, in particular, Detective Sergeant Hancocks’ senior officer. Detective Sergeant Jennings was, it is further submitted, implicated in the allegedly false evidence given at the trial of Keith Twitchell, and the taint on his credibility affects the value of his evidence that the appellant made admissions on 3 April 1978. 55. The respondent, having considered the material available, concedes that this court could properly conclude that the verdicts upon counts 3 and 4 are unsafe. There is a sufficient taint upon the credibility of Detective Constable Davies to cast doubt upon the accuracy of his evidence. There was upon the relevant issues evidence supportive of the appellant from Prison Officer Law. There was no direct or circumstantial evidence to place the appellant at either of the robberies; therefore, there was no supporting evidence from any other source. Charles Apechis (count 3) gave a description of his attacker that bore no resemblance to the appellant and subsequently, not having been called at trial, made a statement absolving the appellant. We accept Mr Rees QC’s submission that no specific findings were made against Detective Chief Inspector Taylor and Detective Sergeant Jennings in the appeal of Twitchell. The ground upon which the court allowed the appeal was that had the material been available for cross-examination the effect would have been devastating. We have posed the question: why would cross-examination have been devastating? In our judgment, the material available for cross-examination of Detective Chief Inspector Taylor and Detective Sergeant Brown in Twitchell was so damaging to the credibility of those officers that there was serious doubt whether the jury would have been prepared to accept them as witnesses of truth. That being the case, Detective Sergeant Jennings’ own evidence would have suffered the same taint since he was supporting the thrust of their evidence. We consider that, in the absence of any other admissible evidence implicating the appellant in the robberies charged in counts 3 and 4, any legitimate attack upon the credit of either Detective Constable Davies or Detective Sergeant Jennings would affect the safety of the verdicts upon those counts. The fact that we have found that there was nothing in the background or later events to cast doubt on the honesty of Detective Constable Davies does not determine the question whether the verdicts on these counts were unsafe. We recognise that our reasoning differs from that of the respondent. In our judgment, it is enough that there is material on which Detective Sergeant Jennings could legitimately have been cross-examined to effect. We have no way of knowing how that would have affected the jury’s decision upon the reliability of the confession allegedly made at HMP Leicester on 3 April 1978 but we are clear that the challenge would have cast renewed light on its reliability. We are persuaded that we cannot be sure that the verdicts on those counts are safe. We consider a further route to the same conclusion in the following paragraphs. 56. We turn to counts 5 and 6. While, some three to four years later, Detective Chief Inspector Taylor was accused and convicted of disciplinary offences which went to his honesty and therefore affected the fairness of the trial of Mr Twitchell in 1982, there is no evidence of malpractice by him before the investigation of Mr Twitchell’s case in November 1980, fully three years after the investigation in the appellant’s case. However, the appeals of OToole, Murphy and Wilcox all concerned the investigation of robbery by the Serious Crime Squad in 1977 and in Twitchell the allegation was that Detective Chief Inspector Taylor had falsely placed himself in an interview in order to give dishonest support to the evidence of other officers. 57. Detective Sergeant Hancocks, admittedly an untainted witness, was able to produce a document at trial that has the hallmarks of contemporaneity and was consistent with the evidence of the progression of the critical interview leading, as he said, to the appellant’s admissions. It was inconsistent with the appellant’s complete denial that he had given any information to the officer about robberies or Ireland. In our judgment, this document must have been central to the jury’s consideration of counts 5 and 6. On the other hand, the legitimate point was made by Ms Nicholls in argument that no contemporaneous note of admissions from the appellant to the Rice Jewellery robbery was made by Mr Hancocks even though, according to the officer, he immediately went on to make them. Furthermore, it did not follow that because the jury accepted the handwritten note as genuine they were bound to accept the critical evidence of admissions. There was open to the jury the conclusion that the appellant did attempt to strike a bargain by giving information about others but may not have made any admission of his own guilt. The evidence of Detective Sergeant Whelan and Detective Constable Bawden, also untainted witnesses who did not serve in the Serious Crime Squad, provided, as we have said, significant support for Detective Sergeant Hancocks’ evidence, since Whelan was hardly going to ask for confirmation from the appellant that he had made admissions unless Hancocks had told him that he had. That, however, does not resolve the question whether the admissions had in fact been made to Detective Sergeant Hancocks before Detective Sergeant Whelan arrived at the police station. If by reason of an attack on the credibility of Detective Chief Inspector Taylor the jury had doubts about the truthfulness of the evidence of Detective Sergeant Hancocks it seems to us that a ripple effect would inevitably follow. 58. The question we have to resolve is whether the specific material available for cross examination of Detective Chief Inspector Taylor and the general taint upon the leadership of the Serious Crime Squad in 1977 is sufficient to place the confession evidence in doubt. We consider that cross examination of Detective Chief Inspector Taylor would have had some impact upon the issue facing the jury. That fact was bound to place the evidence of officers of the Serious Crime Squad under pressure, particularly the evidence of Detective Sergeant Hancocks and Detective Constable Davies. Although we readily accept that it is not possible to assess with any certainty what the outcome would have been, we are clear that the jury would not have approached the evidence in categories each one hermetically sealed from the next. Cross-examination of the head of the Serious Crime Squad as to the honesty and reliability of the investigation may well have had the effect of causing the jury to examine with increased scepticism the issue as to how the injuries to the appellant had been caused. It may also have had an effect on the jury’s assessment of the truth and accuracy of the appellant’s alibi evidence. Once the jury were faced by this means with a further challenge to the accuracy and truthfulness of Detective Constable Davies’ evidence, there would have been a further ripple effect on their examination of his evidence in support of the confession allegedly made on 3 April 1978, and the evidence of Detective Sergeant Whelan and Detective Constable Bawden supporting the alleged confession of 24 October 1977. While we are quite unable to make findings adverse to the credibility of any officer, we cannot be sure, for the reasons we have stated, that a verdict based upon on these alleged confessions is a safe verdict. 59. Finally, there was in the case of counts 5 and 6 a positive identification of the appellant by Mr Holmes who said, when attending the identification parade, “I am not mistaken, that is the man”. We are conscious of the fact that the full Turnbull direction was not given to the jury but we have read each of the judge’s directions to the jury on the subject of identification and, in our view, the judge safely left the issue to the jury with the warning that they should look for supporting evidence. However, since we have concluded that the identification cannot be regarded as reliably supported by the evidence of confession it follows that the convictions upon counts 5 and 6 are unsafe. 60. For these reasons the appeal is allowed and we quash the appellant’s convictions upon counts 3 – 6 inclusive.

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https://caselaw.nationalarchives.gov.uk/ewca/crim/2014/2047/data.xml

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[2022] EWCA Crim 1280

EWCA_Crim_1280

2022-06-30

crown_court

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION [2022] EWCA Crim 1280 No. 202201091 A4 Royal Courts of Justice Thursday, 30 June 2022 Before: LORD JUSTICE WILLIAM DAVIS MRS JUSTICE CUTTS HER HONOUR JUDGE DEBORAH TAYLOR, RECORDER OF WESTMINSTER IN THE MATTER OF A REFERENCE BY HER MAJESTY'S SOLICITOR GENERAL UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 AQY Respondent REPORTING RESTRICTIONS APPLY: Sexual Offences (Amendment) Act 1992 __________ Computer-aided Transcript prepared from the Stenographic Notes of Opus 2 International Ltd. Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 CACD.ACO@opus2.digital _________ MR P NORSWORTHY appeared on behalf of the HM Solicitor General MR J POLNAY appeared on behalf of the Respondent _________ JUDGMENT LORD JUSTICE WILLIAM DAVIS: 1 The provisions of the Sexual Offences (Amendment) Act 1992 apply to the offences with which we are concerned. No matter relating to the person 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. Given the relationship between the offender and the person to whom the 1992 Act gives protection, we shall refer to the offender throughout as "AQY". Where he to be further identified, this would be likely to lead to the identification of his victim. Introduction 2 On 17 December 2021 in the Crown Court at Truro, before Mr Recorder Levene and a jury, AQY was convicted of two counts of indecency with a child contrary to s.1(1) of the Indecency with Children Act 1960 (Counts 1 and 2); two counts of indecent assault on a woman contrary to s.14(1) of the Sexual Offences Act 1956 (Counts 3 and 4) and three counts of rape contrary to s.1(1) of the Sexual Offences Act 1956 (Counts 5 to 7). 3 On 11 March 2022 he was sentenced as follows: • Counts 1 and 2 – six months' imprisonment on each count. • Counts 3 and 4 – two years' imprisonment on each count. • Counts 5 to 7 – four years and six months' imprisonment on each count. 4 All of the sentences were ordered to run concurrently, making a total sentence of four years and six months' imprisonment. 5 Her Majesty's Solicitor General seeks leave, pursuant to s.36 of the Criminal Justice Act 1998, to refer this sentence to the court as unduly lenient. The Facts 6 Between 1979 and 1982 AQY lived with his family near Redruth in Cornwall. At that time, he was aged between 14 and 17. He had a female cousin ("AB") who lived nearby. She was aged between five and eight during this period. She would play regularly at her grandparents' house, which was next door to her own home. AQY was a regular visitor at that address. Over a period of about nine months, AQY sexually attacked AB in a variety of ways. The precise period over which the offending occurred was not identified. AB did not complain about what had happened until she was an adult and in her early 40s. She was able to correlate the offending to the time when her father left the family home on New Year's Eve 1981. That was because she was upset by what AQY was doing to her. Members of her family were aware that she was upset and they thought that this was as a result of her father leaving. On that analysis, AB was aged around seven when she was subjected to the sexual attacks. AQY was aged either 16 or 17. He was born in December 1964. 7 Counts 1 and 2 related to occasions on which AQY exposed his erect penis, put AB's hand onto his penis and made her masturbate him. The first time that this occurred they were in a shed at the grandparent's house. AB did not properly understand what she was doing. AQY told her not to tell anyone as it was their secret. There were other occasions on which AQY got AB to masturbate him. In evidence AB said that it happened often and that she could not remember each one. Count 1 was said to relate specifically to the first incident in the shed. Count 2 referred to "an occasion other than in Count 1" and was said to be "another specimen occasion". However, this was not a multiple incident count, so the indictment reflected two instances of masturbation. 8 Counts 3 and 4 concerned instances of AQY forcing AB to take his penis into her mouth. The offending now would be charged as rape of a child under the age of 13. The first occasion on which this occurred AB was in the toilet at her grandparent's house. AQY made her kneel in front of him, though she remembers not kneeling properly and fully because she was much smaller than him. AQY put his penis into her mouth. He explained he wanted to push his penis into her mouth. He threatened to kill AB if she did not allow him to do so. He blocked the door to the toilet so that she could not leave. He had oral sex with her, pulling her hair in order to do so. He ejaculated into her mouth. The incident lasted for a couple of minutes. This form of sexual assault occurred on other occasions, both in the toilet and in the bathroom. Count 3 related to the first occasion. Count 4 referred to "an occasion other than Count 3". It was said to be "another specimen occasion". But, as before, this was not a multiple incident count. 9 The offending then progressed to vaginal rape of AB by AQY. The first time that this happened AB was in the bathroom at the grandparents' house. AQY came into the bathroom behind her. He pulled down her trousers and underwear. He made her stand on the toilet seat, he undid his trousers and he raped her vaginally. AB told him to stop because it was hurting her. AQY ignored her and ejaculated inside her. He then pulled up his trousers and told AB that he would kill her if she told anyone. AB did not know what had happened, but she felt disgusting. She did not know to whom to talk about what AQY had done. There was an occasion on which AQY raped AB when the two of them were in a shed, the nature of the rape being similar to the first occasion. AB said she was raped vaginally on a number of other occasions. Count 5 related to the rape in the bathroom. Count 6 was said to refer to the rape in the shed, though it was pleaded simply as being on "an occasion other than Count 5." Count 7 concerned "at least two occasions other than in Counts 5 and 6". This count was described as "two specimen occasions", but the number of incidents was specified, as we have described. 10 The offending did not continue after AB's eighth birthday. She left Cornwall as soon as she had finish her schooling. She joined the army from school and subsequently became a firefighter in Yorkshire. She visited her mother and other family who remained on Cornwall only at holiday times. It was on a visit home at Christmas in 2019 that she revealed to her mother what had occurred. The police conducted an ABE interview with AB in February 2020. AQY was interviewed by the police first in March 2020 and again in June 2020. He denied any sexual activity with AB. The material before the judge 11 AB made a victim personal statement, in the course of which she said this: "When I was a young child, I remember being very happy. I liked being at home and playing outside as I was energetic. After the assaults, I remember turning in on myself. I became quite shy. I had a lot of nightmares and I would wet the bed. I was so unhappy that I would hide in my wardrobe where my mum would find me. This is where I felt safe. After this happened, I felt like I had all this anger in me that I needed to get out. The minute I was old enough to move away, I did. I only came home at holiday time. This has affected my whole family relationship as I never wanted to come back and bump into him. I was around 22 years old when I had my first proper relationship, but we split up because of the sexual issues that I couldn't get over. This still affects my relationship today. In the past two years since reporting, I have felt really stressed at times and guilty at others. I felt like although I was a child, I must have done something wrong as I carry a lot of guilt. I believe this has really ripped the family apart and some days wonder if I shouldn't have spoken out as it would have been my burden to bear and not my family suffering. I will never forget what BM has done to me, but I intend to get counselling when I get home." 12 The pre-sentence report provided no insight into AQY's offending. He continued to deny any sexual assault on AB. At the time of the report (which was prepared in March 2022) AQY had been married for some 16 years with two children aged 15 and 10. His wife had two grown up children from a previous relationship. They lived in Redruth. AQY had worked until about 2011 when he had stopped work due to health problems. 13 AQY's general practitioner provided an overview of those medical problems in a letter dated 5 January 2022. In 2011 AQY suffered an intracranial abscess and acute endocarditis and had undergone aortic valve surgery. From 2005 onwards, he had suffered with recurrent depression. He suffered from epilepsy and impaired cognition. There was psychological evidence concerning his cognitive abilities. AQY took various medications to keep his conditions under control. He recently had had chronic leg pain, thought to be associated with previous clotting incidents. The general practitioner said that, having been asked to comment on how the medical problems would affect AQY in prison, he had no experience of prison medicine, but that he would need ongoing monitoring of his medication to keep his condition stable. 14 Nine character references were provided by relatives and friends of AQY. They described him as a caring and kind man whom they trusted. Some spoke of his positive relationship with children. The Sentence 15 The judge described the offending as an escalating course of sexual violence, culminating in four offences of rape. He said that those offences were by far the most serious offences. He noted the aggravating factors of ejaculation and threats made to AB. In relation to the harm to AB, he said that it was clear that she had suffered lifelong from what AQY had done to her. She was still distressed about what had happened, though she had been learning to cope over the years. 16 The judge had been referred to the Sentencing Council definitive guideline in relation to the offence of rape of a child under 13 contrary to s.5 of the Sexual Offences Act 2003, i.e. the current equivalent of the offences of rape of which AQY had been convicted. It had been suggested to him that the offence fell into Category 3B, with a starting point of eight years' custody. The judge said that AQY's offending fell higher on the scale than "the ordinary starting point", because of the matters to which he had already referred and the overall offending reflected on the indictment. 17 The judge concluded that, had AQY been an adult at the time of the offending, the sentence after trial would have been eight years' imprisonment. He reduced that figure to five years because of the age AQY was at the time. He then said that the figure would be increased by a year to allow for the aggravating factors. Finally, the judge took account of mitigating factors. He said that AQY's good character over his adult life was a neutral point. The judge considered that the most important issue was AQY's health. He said that AQY's physical problems would cause significant difficulties. Due to that factor, the judge reduced the sentence to four and a half years' imprisonment, which he imposed on the counts of rape. As we have set out above, shorter concurrent sentences were imposed on the other counts. Discussion 18 On behalf of the Solicitor General, it is submitted that the judge did not err when he adopted the categorisation of the offences in Counts 5 to 7 as being in Category 3B of the relevant guideline. The guideline in relation to rape of a child under 13 also should have been adopted in respect of Counts 3 and 4. The starting point for a single offence is eight years' custody, the category range being six to 11 years. Where the judge fell into error was in failing to reflect the repeated offending in the sentence identified as appropriate before any allowance for mitigating factors. The judge also failed to reflect the aggravating factors in the appropriate adult sentence. Eight years' custody might have been appropriate for a single offence with no significant aggravating factors present. It was "by some margin" too little for repeated offending with the features which were present in BM's case. Because of this error, this eventual sentence was unduly lenient. 19 Mr Norsworthy represented AQY at his trial. He appeared before us and made submissions on the reference. He argued that the sentence was a proper reflection of two factors. First, the indictment period began when AQY was only 14. It was possible that AQY had been only 14 throughout the offending, in which even a very substantial discount for age would have been appropriate. Although the judge did not make a finding to this effect, it was a conclusion open to us on the evidence. Second, the mitigating effect of AQY's ill-health was very substantial. The judge was justified in making the reduction he did in relation to that factor. Thus, he argued the sentence was not unduly lenient. 20 The correct formulation of what amounts to an unduly lenient sentence is still that provided by the then Lord Chief Justice in Attorney-General's Reference No 4 of 1989 [1990] 1 WLR 41: "A sentence is unduly lenient, we would hold, where it falls outside the range of sentences which the judge, applying his mind to all of the relevant factors, could reasonably consider appropriate." 21 By reference to that formulation, we consider that the sentence imposed in this case was unduly lenient. We respect the fact that the sentencing judge had heard a trial and that he gave careful consideration to the case. Were the sentence imposed to be dependent on the judge's assessment of the evidence in the case, it would be very difficult for us to interfere with his conclusions. That is not the position here. We have the evidence of AB as it was presented to the jury via the ABE interview. We have the documentary materials relating to sentence. We consider that the judge fell into error in relation to more than one point of sentencing principle. It is incumbent upon us to correct those errors. 22 Though the judge did not set out his reasoning explicitly, it is apparent that he took the offences of rape as the lead offences on which he would impose a sentence which reflected the totality of the offending. That was a permissible approach. As the Sentencing Council totality guideline makes clear, repeated sexual offences against the same individual may be met with consecutive sentences. But it is often equally appropriate to impose concurrent sentences reflecting the overall criminality. In that event, the sentences should be aggravated by the repeated offending. In this case, the judge took as his starting point for an adult convicted of the offences a term of eight years' imprisonment. That did not give any allowance for the fact that AQY had committed the six offences of rape of a child under 13 over a period of approximately nine months. Had the judge taken proper account of the fact that there were repeated offences, the starting point in relation to the offences of rape would have been significantly higher than eight years. 23 We note that the judge categorised the offences of rape as Category 3B offences at the invitation of the prosecution and the defence. The Solicitor General does not argue that he was wrong to adopt that categorisation. We are not convinced that this approach was or is correct. The factors which place a case into Category 2 harm include, "child is particularly vulnerable due to extreme youth and/or personal circumstances". In our view, AB satisfied the description of "extreme youth" during the currency of the offending. Her position vis-a-vis AQY rendered her particularly vulnerable. Although he was not in a position of trust in the sense required by the guideline as explained in Forbes [2016] EWCA Crim 1388, their relationship was relevant to AB's vulnerability. Even if the case properly was placed into Category 3B, AB's age and vulnerability required the judge to place the case towards the top of the category range just for a single offence: see R v O [2019] 1 Crim App R (S) 28 at para.32. 24 Having reached his view of what he took to be the appropriate sentence before allowance for mitigation, the judge applied a reduction of 25 per cent to take account of the mitigating effect of AQY's ill-health. He did not refer to any authority or general principles when he did so. This meant that he failed to apply the guidance in Bernard [1997] 1 Cr App R (S) 135, which set out four principles, of which two are relevant in this case: "(iii) A serious medical condition, even when it is difficult to treat in prison, will not automatically entitle an offender to a lesser sentence than would otherwise be appropriate. (iv) An offender's serious medical condition may enable a court, as an act of mercy in the exceptional circumstances of a particular case, rather than by virtue of any general principle, to impose a lesser sentence than would otherwise be appropriate. 25 This guidance has been endorsed repeatedly in this court, in particular at some length in S [2018] 1 WLR 5344. Two points are of relevance to this case. First, there must be evidence that the medical condition in question will cause serious problems for the offender in prison. Second, reducing a sentence below that which would otherwise be appropriate due to ill-health will be an exceptional course. We have set out the only evidence available to the judge. This gave no basis at all on which to reduce the appropriate sentence. The general practitioner simply said that AQY's condition and medication would have to be monitored in prison. The judge had no reason to think that the prison medical service would be unable to fulfil this requirement. Nor do we. There was nothing exceptional about the medical position of AQY. It follows that it was wrong in principle to apply a significant reduction to the appropriate sentence to take account of ill-health. 26 The judge applied a reduction of five eighths to take account of the age of AQY at the time he committed the offences. We do not consider that he erred in doing so. There has been considerable debate in recent authority as to the way in which a sentencing judge should deal with an adult who committed offences some time ago when he or she was under 18. In Forbes para.20 to 22 it was stated that youth was relevant to culpability in that a young person might be immature. It was the immaturity which reduced culpability. It was said that the Youth Guideline (as it then was) was not relevant other than in terms of assessing maturity. The Sentencing Council guideline on sentencing children and young people postdates Forbes . In Limon [2022] EWCA Crim 39, application of the principles in that guideline to someone in AQY's position was approved. However we approach it, we cannot criticise a substantial reduction in sentence to take account of the fact that AQY was around 16 at the time of the offences. Almost by definition, he was lacking maturity. For the reasons we have given, we do not accept the proposition that the judge should have assumed that AQY was 14 at the time so as to require a more substantial discount. In our view, the evidence did not support any such assumption. Conclusion 27 Had these offences been committed by an adult, the very least sentence that would have been appropriate would have been 13 years' imprisonment. That would have been a proper reflection of six occasions on which a child aged around seven had been raped either orally or vaginally. We emphasise that the sentence could only be imposed in relation to six occasions. The references on the face of the indictment to "specimen occasion" did not create multiple incident counts permitting the judge to go beyond the specific incidents. Quite correctly, he did not do so. But the sentence identified by the judge was, in our view, barely half the appropriate length of sentence. 28 The term we have identified takes account of the aggravating factors. It gives such weight as can be given to the good character of AQY, as evidenced by his behaviour over the last 40 years and by those who provided character references. These were very serious offences. Good character can be given no significant weight in determining the appropriate sentence. 29 Applying the reduction of five eighths, as the judge did, gives a sentence slightly in excess of eight years' imprisonment. It must follow that the sentence of four and a half years' imprisonment was unduly lenient. 30 We quash the sentences of four and a half years' imprisonment on Counts 5, 6 and 7 and we substitute sentences of eight years' imprisonment on those counts. Those sentences will run concurrently to each other and to the other sentences imposed. 31 In the course of the hearing, there was debate between Mr Polnay, who appeared for the Solicitor General, and the court in relation to the sentences imposed on Counts 3 and 4, namely sentences of two years' imprisonment. We discussed with Mr Polnay whether the principles set out in Limon , a case to which we have already referred, in relation to the maximum sentence available between 1979 and 1982 to someone of the offender's age would in fact have been 12 months, in which event, as a matter of practice and principle, if not law, the sentences on Counts 3 and 4 should not stand. Mr Polnay frankly admitted that this was not an issue that he had the opportunity to investigate in detail. There is a lack of clarity in this case. The sentences of two years' imprisonment were not unlawful. It follows therefore that given the lack of clarity and given the overall result of this case, we take no further action in relation to those counts. They merely indicate the difficulties that face any judge sentencing for very old sexual offences. 32 The sentences of eight years' imprisonment constitute the effective sentences in this case. 33 The offender will serve two thirds of those sentences before he will be eligible for release. _________

2022_06_30-5364.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/1280/data.xml

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a44552a6a9bc6290d4a4e9d6cc332d0db190762b0bed9415e8a1dda66ea1a41e

[2005] EWCA Crim 2191

EWCA_Crim_2191

2005-08-03

crown_court

No: 05/3036/A1 Neutral Citation Number: [2005] EWCA Crim 2191 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 3 August 2005 B E F O R E: LORD JUSTICE LATHAM MR JUSTICE GIBBS THE COMMON SERJEANT OF LONDON HIS HONOUR JUDGE BARKER QC - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 57 OF 2005 ( STEVEN SHEARGOLD ) - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith

No: 05/3036/A1 Neutral Citation Number: [2005] EWCA Crim 2191 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 3 August 2005 B E F O R E: LORD JUSTICE LATHAM MR JUSTICE GIBBS THE COMMON SERJEANT OF LONDON HIS HONOUR JUDGE BARKER QC - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 57 OF 2005 ( STEVEN SHEARGOLD ) - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR M HEYWOOD appeared on behalf of the ATTORNEY GENERAL MR AJ JACKSON appeared on behalf of the OFFENDER - - - - - - - J U D G M E N T 1. LORD JUSTICE LATHAM: On 12th May 2005 the offender was sentenced to two years' imprisonment at the Nottingham Crown Court by His Honour Judge Pert QC for an offence of manslaughter. The Attorney General seeks leave to refer that sentence to this court under section 36 of the Criminal Justice Act 1988 on the grounds that it is unduly lenient. We give leave to him to refer the sentence. 2. The offender is 22 years of age. The offence arose out of his relationship with Samantha Burrows, who is the same age as him. They both lived in Long Eaton in Nottingham and had been friends since they were 18 years old. It became a sexual relationship, but was stormy. The evidence makes it plain that that was to a large extent due to the offender's bad temper and jealousy. Eventually Miss Burrows ended that relationship in May 2004. Despite the termination of the relationship, they still met each other and indeed had sexual intercourse on a number of occasions. Miss Burrows regarded him as her best friend. 3. She met at some stage after May 2004 the deceased, who was Joseph Goodrich. He and Miss Burrows had been out together and had developed a sexual relationship by the time the offence occurred. 4. The offender had since May 2004 not only met Miss Burrows when she was willing to meet him but pestered her when she was unwilling to meet him, and indeed had come round to the house at which she lived with her mother on a number of occasions when he was unwelcome. He had been told by Miss Burrows' mother on 26th September 2004 that he was no longer welcome, that he was not to visit the premises and if he persisted in doing so when he was unwelcome she would seek legal advice and obtain an injunction. That gives an indication of the persistence with which the offender was clearly intent, even though unwelcomed, on seeking to see Miss Burrows. 5. In October the deceased arranged to see Miss Burrows. They met on the evening of 10th October and went back to his house for the night. In the early morning on 11th October the offender rang Miss Burrows, enquiring what she was doing. It is unclear precisely what stimulated him to do so. She told him that she was getting ready for work. In fact she was at the time still at the home of the deceased. She then left, driven by the deceased to her own home in Doncaster, so that she could in fact get ready for work. 6. Shortly before she was ready to go to work, the offender arrived at the house. He knocked loudly on the window of the kitchen, where he could clearly see Miss Burrows and the deceased. He shouted, "I want to talk to you". He clearly wanted to confront Miss Burrows, who anticipated trouble. When she went to the front door the offender said, "What are you sleeping with him for when you've been sleeping with me?" She told him to "Fuck off, you idiot" and shut the door. She finished changing, reassured the deceased, saying that that was how the offender regularly behaved and then as she was leaving, she was confronted again by the offender, who had remained outside the house. The deceased followed her. When he saw the deceased the offender said, "I'm going to fucking kill him". As they got to the gate, Miss Burrows told the offender to "go home". She described him as being agitated; but she did not consider that he was behaving in an unusual way. Clearly that was the way that he had behaved on other occasions in the past when feeling jealous. He came up to her aggressively; she pushed him away, telling him to "go home". He did not. He stepped forward and struck the deceased with a clenched fist. The blow landed on his neck. The deceased collapsed to the floor. Miss Burrows said, "Look what you've done. Just fuck off." The offender then left. 7. It became apparent that the deceased had been very seriously injured. The emergency services were called, but by the time the police arrived his breathing was compromised and by the time the ambulance personnel arrived it was too late to revive him. He was found to have suffered an extensive subarachnoid haemorrhage which had resulted from a ruptured vertebral artery in the left side of the neck. That was a desperately unlucky injury to have sustained. The evidence of the pathologist was to the effect that such an injury could be the result of a relatively minor blow. 8. When the offender was arrested that day, he was interviewed and said that his relationship with Miss Burrows had been a bit stormy. He knew that he had been banned from going to the house, but nonetheless he had become very angry about Miss Burrows and her relationships. As a result of that anger, he just swung at the deceased after he had come out of the house and hit him in the left side of the face. He was asked whether he had had any reason to hit the deceased. His answer was, "Not really no. I just swung - spur-of-the-moment thing. I only caught him with a few fingers ... on the left side of his neck." Later, "I didn't intend to hurt him. I didn't go round there to cause any trouble for anyone." 9. It was in those circumstances that he was charged with manslaughter. Ultimately, on 14th April 2005, about a month before the trial was due to take place, he pleaded guilty on the basis that he did not in fact make contact with the deceased when he aimed the blow. That wholly unrealistic basis of plea was unacceptable to the prosecution. Ultimately on 12th April, on the day that he was sentenced, he abandoned that basis of plea and was sentenced, as we have said, to two years' imprisonment. 10. The judge in sentencing him made it plain that he had considered with care a number of previous decisions of this court in relation what he described as "one punch manslaughter". He expressed the view that many would consider the authorities as setting a level of sentence which was very low, particularly looked at from the point of view of those directly affected by the death of the deceased. He accepted that, when the offender had said that he was going to kill the deceased, that was merely an angry and unconsidered remark; it was not an expression of true intent. He took into account the fact that, as is the case, the offender has two previous convictions for violence. The first was an offence of causing grievous bodily harm, for which he was sentenced in 1998 to 24 hours at an attendance centre; and then in 2000, for an assault occasioning actual bodily harm, he was ordered to be subject to a community service order of 80 hours. In addition to those convictions, the judge expressed the view that the evidence showed that the offender was unable to control his temper. The judge took into account that the pre-sentence report showed that the offender had, however, expressed real remorse for what had happened. He pointed out that the offender could not benefit from full credit for the plea of guilty that he had entered because of the lateness of that plea. In all the circumstances, he considered that two years was the appropriate sentence. 11. In his submissions before us today Mr Heywood on behalf of the Attorney General has submitted that that is an unduly lenient sentence. He refers us in particular to the aggravating features, namely the fact that the offender had attended at the home of Miss Burrows when he knew perfectly well that he had been told that he should not do so by Miss Burrows' mother; that he was intent on a confrontation with his girlfriend, and had persistently refused to leave despite being asked to do so; that the incident as it in fact happened was in the public view, in the sense that it was in view of all the neighbours. He submits that in all the circumstances, particularly bearing in mind the offender's previous convictions, the judge had failed to reflect adequately those matters in his sentence. 12. We have been referred to a number of previous decisions of this court. From these it is abundantly clear that sentencing in this area is notoriously difficult. The variety of circumstances which give rise to the death of a person resulting in a charge of involuntary manslaughter are infinitely various. In this particular case the judge was correct to take the view that the category within which this falls is that which he described as "one punch manslaughter". It is also one of those cases where there is no evidence that the punch itself was of such severity that the offender could have anticipated any serious harm to the victim. It is accordingly a tragedy to all concerned that the deceased unhappily suffered the injury from which he died. But, as Mr Heywood has pointed out, the fact that death has occurred is a critical factor which has to be taken into account by the court in determining the appropriate level of sentence. 13. In our judgment the judge's sentence falls outside the limits of what could be described as the appropriate level for sentencing, particularly bearing in mind this young man's previous convictions. We would have expected, after a late plea of guilty, a sentence of between three and five years to have been imposed. It follows that the sentence of two years' imprisonment must be categorised as unduly lenient. We have to consider in those circumstances what to do, bearing in mind the fact that this young man has had to face the prospect of being sentenced for this offence on a second occasion. Bearing in mind his youth, we consider that the interests of justice do not require us to increase the sentence. Accordingly, although, as we have said, we consider that the Attorney General was right to refer this sentence to this court as being unduly lenient, we do not propose to interfere with it.

2005_08_03-577.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/2191/data.xml

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4511dc4f7a7160a20e3c727b3a429865eaf41cbd372ca76ec60f20ddf5e5cc5e

[2023] EWCA Crim 1173

EWCA_Crim_1173

2023-09-14

crown_court

IN THE COURT OF APPEAL CRIMINAL DIVISION [2023] EWCA Crim 1173 No. 202203259 A3 Royal Courts of Justice Thursday, 14 September 2023 Before: LADY JUSTICE SIMLER MRS JUSTICE MAY MR JUSTICE CHAMBERLAIN REX V NATHAN THOMAS SMITH __________ Computer-aided Transcript prepared from the Stenographic Notes of Opus 2 International Ltd. Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 CACD.ACO@opus2.digital _________ MR J. DEI

IN THE COURT OF APPEAL CRIMINAL DIVISION [2023] EWCA Crim 1173 No. 202203259 A3 Royal Courts of Justice Thursday, 14 September 2023 Before: LADY JUSTICE SIMLER MRS JUSTICE MAY MR JUSTICE CHAMBERLAIN REX V NATHAN THOMAS SMITH __________ Computer-aided Transcript prepared from the Stenographic Notes of Opus 2 International Ltd. Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 CACD.ACO@opus2.digital _________ MR J. DEIN KC appeared on behalf of the Appellant. ________ JUDGMENT LADY JUSTICE SIMLER : Introduction 1 This is a renewed application for an extension of time of 49 days in which to apply for leave to appeal against sentence. The applicant was convicted of murder on 17 August 2022 at the Central Criminal Court before the Recorder of London and a jury. He was sentenced by the Recorder of London on 25 August 2022, when he was aged 28, to life imprisonment with a minimum term of 21 years, less 447 days spent on remand. 2 At trial he was represented by leading counsel, Mr Tetlow KC, and a junior, Mr Goold. He is now represented by Mr Dein KC, who has appeared on his behalf and to whom we are grateful for his succinct clear submissions. Mr Dein summarised his submissions in this way. Although the judge was corrected to identify a starting point of 15 years, he was wrong thereafter to increase the minimum term to 25 years and inadequately reduced it to reflect what was substantial mitigation in coming to the 21 year term. The result was an unjust and unjustifiable minimum term. The facts 3 On 3 January 2020 Takieddine Boudhane was murdered by the applicant. He was then 30 years old. The two men did not previously know one another. Mr Boudhane was working as a delivery driver that evening and was riding a moped. The applicant was driving a white caddy van. Both were travelling along Stroud Green Lane before turning into Lennox Road. In evidence the applicant said that he had been talking to a woman he was due to meet on the telephone. He maneuvered the van in a way that annoyed Mr Boudhane. There was an altercation between the two, first in Lennox Road and then in Charteris Road. Another moped driver, Mr Cherfi, stopped in Lennox Road when he recognised Mr Boudhane. 4 Having driven into Charteris Road, the applicant stopped the van and both Mr Boudhane and Mr Cherfi parked their mopeds nearby. The applicant got out of the van. At that point he had a skeletool in his hand with the blade out and locked. Mr Boudhane had a screwdriver in his hand. Mr Cherfi got back on his moped. As Mr Boudhane went back towards his moped, the applicant ran at Mr Boudhane and stabbed him with the tool. CCTV showed the applicant swing the tool at Mr Boudhane at least five times, causing three separate incised wounds. The applicant then fled the scene in his van. 5 Despite emergency medical intervention, Mr Boudhane died at the scene at just before 8pm that evening. The cause of his death was blood loss and respiratory failure from a stab wound to his chest which penetrated his heart. 6 The applicant moved to Salzburg the next day using his brother's bank card and passport. The applicant's father called the applicant to inform him that the police were looking for him. The applicant contacted British authorities in Portugal some 17 months later and travelled back to the UK in June 2021. Sentence 7 The applicant had six convictions for 12 offences spanning the period 13 April 2012 to 30 August 2017. They included a conviction for possessing a prohibited weapon in 2012 and possessing an imitation firearm in a public place, also in 2012. 8 There was a victim personal statement from Mr Boudhane's mother dated 24 August 2022, which we have read and was available to the judge. There was also a letter in which the applicant expressed his genuine remorse. There were character references available, including a letter from the reverend of the prison, Reverend Scott, which describes the applicant in particularly impressive terms. 9 As the judge explained in his admirably clear sentencing remarks, the sentence for murder was required to be a sentence of life imprisonment. The issue for the judge was to determine the minimum term to be served before the applicant's release by reference to schedule 21 of the Sentencing Act 2020 . The first question for the judge was whether the case came within paragraph 4 or paragraph 5 of schedule 21. This depended on whether the applicant took a knife to the scene with the necessary intent. The judge said that he could not be satisfied that the applicant had the skeletool, intending to use it to commit an offence or to have it available to use as a weapon. The judge therefore took the lower starting point of 15 years. There were however, a number of aggravating features. First, there was the use of the skeletool. The judge said that the fact that the applicant took it out of the van and swung the blade at Mr Boudhane at least five times during the course of the incident, causing three separate wounds, was a serious aggravating factor. So too was the fact that the attack took place in public in front of members of the public, one of whom was in the immediate vicinity of the attack and was plainly alarmed by what unfolded. After the murder, the applicant took positive steps to dispose of evidence, clothing and the knife, which connected him to the incident in order to conceal his involvement. He then fled the jurisdiction and remained at large for 17 months, knowing throughout that period that there was a warrant issued for his arrest. Finally, the judge referred to the fact of the previous convictions. 10 Against that, there were mitigating factors identified by the judge as a lack of premeditation and as the judge accepted, an intention to cause serious bodily harm rather than to kill. While there were a number of swings with the blade, there was a single stab wound that led to death and the judge also accepted that there had been an element of provocation or acting in defence of himself because Mr Boudhane had accelerated up to the driver's side door of the applicant's vehicle and appeared to have initiated the encounter and played his part in the angry exchange that followed. The judge referred to the fact that Mr Boudhane and Mr Cherfi both stopped their mopeds and that Mr Boudhane himself was armed with a screwdriver which he was brandishing towards the applicant. Notwithstanding that element of provocation or action in self-defence, the judge was satisfied that the applicant was aggressive throughout, as shown from his actions from the moment he got out of the van and, in particular, his actions towards the end of the incident. The judge referred, as we have just done, to the letter of remorse written by the applicant and also to the references that spoke about the many positive qualities displayed by him. Balancing all of those matters, the judge indicated that he would move up from the 15 year minimum term to one of 25 years, reflecting the aggravating factors he had identified, and then would reduce that to a minimum term of 21 years to reflect the mitigating features he had identified. The application 11 Developing the grounds of appeal, Mr Dein KC made the following points. Having identified the 15 year minimum term correctly the judge was wrong to increase it by as much as ten years. He accepted, inevitably, that the experienced judge had heard the evidence in the case and was in the best position to reach a conclusion in relation to the facts, but submitted that the aggravating features were not sufficiently serious to justify such a significant increase. The use of the blade did not merit such a substantial uplift. It was a tool that the applicant had with him for the purposes of his work as a plumber. Furthermore, this was an unplanned and spontaneous attack that was out of character. Those points were not sufficiently focused on in the unjustifiable uplift to the minimum term identified by the judge. 12 The fact that the applicant left the jurisdiction was counterbalanced by the fact that he surrendered voluntarily and he was at large having done so. 13 The mitigating factors in his case were also very powerful and were inadequately identified and reflected in the term. There was a lack of premeditation; and an intention to cause really serious harm rather than to kill. There was the element of provocation, including the production of a screwdriver, and the very positive qualities identified in the character references, together with the remorse and insight reflected in the applicant's letter. All of these matters, together with the impact on the applicant's young daughter, should have resulted in a much more substantial reduction from the notional minimum term reached by the judge after aggravation and should have resulted in a much lower minimum term. 14 We have reflected carefully on those submissions, which were admirably focused and clear. We have concluded that it is not arguable, however, that this experienced judge, who heard the evidence, sentenced this applicant on a wrong factual basis. It seems to us that the judge was amply entitled to conclude that he was the aggressor throughout, had become upset and angry at the outset and when he got out of his van, was holding the skeletool in his hand, with the blade out and locked in an open position and that it remained locked in an open position throughout the incident. The tool was not produced in response to any threat from Mr Boudhane. Once out of the van, the applicant advanced towards the victim with the blade in his hand. Whilst he had been working as a plumber that night, the judge was entitled to conclude, in the absence of any evidence to the contrary, that his possession of the tool as he got out of the van was neither lawful nor legitimate and he had no reason to advance towards Mr Boudhane with it. The judge was entitled to pay particular regard to the fact that the applicant swung at Mr Boudhan five times and that three incised wounds were caused by him. 15 The judge had clearly in mind the sequence of events and, in our judgment, the conclusions he reached were accurately and clearly analysed. He was entitled, as we have said, to conclude that the applicant was the aggressor, that his possession of the tool in the circumstances leading to the fatal incident had nothing to do with his work as a plumber and that he had no lawful or legitimate purpose to have that the blade out as he emerged from the van and towards the applicant. Moreover, the judge carefully analysed and correctly identified the aggravating features. He was entitled and right to conclude that the use of the skeletool itself necessitated a substantial uplift and that there were the aggravating features to which we have referred. The combined effect of these features merited a substantial increase in the minimum term. 16 So far as the mitigating features are concerned, we have described the way in which the judge analysed those. He identified all of the features present and relied on by Mr Dein. Having done so, it seems to us that the judge was in the best position to evaluate the aggravation and mitigation in this case and to reflect it in the 21 year minimum term to which he came. 17 For all those reasons, which are similar to those given by the single judge, and notwithstanding the submissions made by Mr Dein on the applicant's behalf, we have concluded that this application is not arguable. Accordingly, we refuse the application and since we are doing so, no purpose would be served in extending time. __________

2023_09_14-5818.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1173/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1173

a4c4c5f3b29acbdfa77b2b38bcbc2e32822e39e332c26e0e7d07cbd637705ddd

[2013] EWCA Crim 1393

EWCA_Crim_1393

2013-07-31

crown_court

Case No: 201104229 A2 Neutral Citation Number: [2013] EWCA Crim 1393 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Luton Crown Court - His Honour Judge Farnworth Royal Courts of Justice Strand, London, WC2A 2LL Date: 31/07/2013 Before : LORD JUSTICE PITCHFORD MR JUSTICE NICOL and MRS JUSTICE LANG DBE - - - - - - - - - - - - - - - - - - - - - Between : Mohammed Mokshud Ahmed Appellant - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Case No: 201104229 A2 Neutral Citation Number: [2013] EWCA Crim 1393 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Luton Crown Court - His Honour Judge Farnworth Royal Courts of Justice Strand, London, WC2A 2LL Date: 31/07/2013 Before : LORD JUSTICE PITCHFORD MR JUSTICE NICOL and MRS JUSTICE LANG DBE - - - - - - - - - - - - - - - - - - - - - Between : Mohammed Mokshud Ahmed Appellant - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Toby Long (instructed by Noble - Solicitors ) for the Apellant Ms Maryam Hassan Syed (instructed by CPS ) for the Respondent Hearing date: 17 July 2013 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Pitchford : 1. This is an appeal against sentence with the leave of the single judge who also granted the appellant an extension of time of some 1,600 days within which to seek leave to appeal. The issue raised by this appeal is whether the sentencing judge’s order for the detention of the appellant in a young offender institution for public protection was wrong in principle. The single judge granted leave on the ground that it was properly arguable that the appellant was, at the time of sentence, suffering from a mental illness which should have attracted an order that the appellant be detained in a mental hospital under the provisions of section 37 Mental Health Act 1983 , as amended, together with an order for restriction under section 41. The appellant has leave to adduce the evidence of two consultant psychiatrists, Dr Jason Taylor and Dr Elizabeth Barron; the court gave leave to the respondent to adduce the evidence of a further consultant forensic psychiatrist, Dr Philip Joseph. Before considering the disputed expert evidence it is necessary to describe the background to the appeal in some detail. We have been assisted by the production of several written reports and letters from consultant psychiatrists, psychiatrists, psychologists and others who have had the appellant’s care before and after sentence was imposed. Family background 2. Mohammed Mokshud Ahmed was born on 23 February 1988. He is now aged 25 years. He lived with his parents, who are natives of Bangladesh, two of his brothers, his sister-in-law and his niece at the family home in Luton. Two further brothers were intermittent residents at the family home. The appellant is an intelligent young man. He successfully completed several GCSE examinations and went to a Sixth Form college to study A levels. The information given to Kyela Puech, the author of the pre-sentence report, by members of the family is that at college the appellant became a heavy user of illicit drugs including cannabis, ecstasy and cocaine. Two of his brothers were heroin users. The appellant would consume their methadone prescriptions when he could get access to them. Later, the appellant was to say that he had been consuming cannabis since the age of 13 years. In addition the appellant was drinking heavily. His favoured drink was vodka. The consequence of this deteriorating behaviour was conflict within the family, aggression and sexual disinhibition. The appellant dropped out of college. Psychiatric intervention 2005 3. The appellant was seen by the Luton and Dunstable Crisis Intervention Team at the request of his family in April 2005 when he was aged 17 years. He had been taken to the Accident & Emergency Unit at his local hospital following an incident of self-harm. He complained that he felt depressed and paranoid. He admitted his drug consumption, including his brothers’ methadone. Records indicate that the crisis team thought the appellant had been suffering from untreated psychosis for a period of two years. He was prescribed the anti-psychotic drug Olanzapine and arrangements were made for follow-up. On 13 May 2005 the clinical picture had not materially changed. The appellant’s family were concerned that he was not keeping to his prescription advice and was continuing to abuse drugs. On that day the appellant was admitted to Oakley Court Psychiatric Unit, later re-named the Robin Pinto Unit in honour of its former clinical director Dr Robin Pinto. The appellant remained at Oakley Court until 6 June 2005. On discharge he failed to keep outpatient appointments. He was re-admitted on 3 December 2005 and discharged on 19 December 2005. 4. On 28 September 2005 the appellant was charged was assault upon four police officers. In preparation for his forthcoming appearance in the Magistrates Court, the appellant’s solicitors obtained a report from Dr Jitendra Kumar Nayar, the appellant’s treating psychiatrist at Oakley Court. In his report, Dr Nayar wrote that during his first admission a diagnosis of mental and behavioural disorder due to alcohol and cannabis misuse was made. He had suffered an acute transient psychotic episode. During his second admission the appellant came under Dr Nayar’s direct care. He found no evidence of psychotic symptoms. The appellant was still using cannabis to excess. He was again discharged with a diagnosis of mental and behavioural disorder due to substance misuse. Dr Nayar reported that there appeared to be continuous conflicts within the family about the appellant’s behaviour and his refusal to conform to his parents’ standards. Dr Nayar found no evidence of depression, obsessive behaviour, phobia or anxiety. He found no evidence of hallucinations or delusions and his cognition was intact. Dr Nayar had no proposal to make to the court for psychiatric treatment but was prepared to continue with follow-up observation by the community mental health team. For a reason which is unclear the proceedings in the Magistrates Court seem to have come to nothing. The offence and sentence 5. On 22 June 2006 the appellant was living at home with his parents. At about 6.30 pm he was carrying a knife in the street when he approached a 63 year old stranger, Mohammed Iqbal and, without an apparent cause, stabbed him in the abdomen. He attempted to follow up the attack but the complainant managed to stumble across the road. The appellant followed him and stabbed him twice to the arm before running away. Mr Iqbal was treated in hospital for his stab wounds. He made a satisfactory recovery. When arrested the appellant was placed upon an identification procedure and was identified by witnesses. Having first denied the offence the appellant said when re-interviewed, “I must have forgotten that”. He was remanded in custody to HMP Woodhill but between 6 July and 1 August 2006 he was transferred to the Orchard Unit for further psychiatric assessment. 6. On 15 January 2007 the appellant pleaded guilty to an offence of wounding with intent to do grievous bodily harm contrary to section 18 Offences against the Person Act 1861 . He appeared for sentence at Luton Crown Court on 9 February 2007 and was sentenced to detention for public protection. The minimum term was set at 5 years. Mr Long makes no complaint about the length of the minimum term of sentence for the pragmatic reason that the appellant has been in custody serving his sentence for a period significantly in excess of that term. 7. The sentencing judge was provided with psychiatric reports from Dr Robin Pinto and Dr William Canning, both of whom were instructed by the appellant’s solicitors, Messrs Williams & Co. On Friday, 1 December 2006 Dr Pinto visited the appellant at HMP Woodhill. The appellant refused to see him. Subsequently, Dr Pinto was able to interview the appellant. Dr Pinto adopted the opinion of Dr Canning given in his report of 30 October 2006. Dr Soni, an associate specialist at the Orchard Unit had reported to the magistrates that the appellant was not suffering from a mental illness and he would not be further detained at the Orchard Unit once his current detention expired on 1 August. Dr Rajamani said in his transfer report that the appellant appeared “to make a calculated display of confusion” when he thought he was being noticed. Dr Canning interviewed the appellant on 23 August and 24 October 2006. Dr Canning was aware of records at HMP Woodhill which indicated that the appellant was threatening suicide, claimed to be experiencing auditory hallucinations, complained that he was vomiting blood, and had threatened to jump from a prison balcony. Dr Shapero of the Mental Health In Reach Team at HMP Woodhill intended to increase the appellant’s prescription for Olanzapine from 10 to 20 mgs daily but did not expect any change in the clinical picture. The appellant told Dr Canning that voices were taking control of him. He was being told that he would be better off in a grave. Once in a grave the voices would stop. During his second interview the appellant was demanding to know whether Dr Canning was “going to section him”. He was being told by a man’s voice to urinate and defecate into his hands and to smear his face. The voice was threatening torture. The “man” was banging the appellant’s head against his cell door. On a number of occasions the appellant placed his hand on his chest and grimaced as though in pain. He told Dr Canning that the voice threatened to insert a snooker cue through his anus until it emerged from his mouth. At the conclusion of the interview the appellant claimed then and there to be hearing a voice. In Dr Canning’s view the appellant’s behaviour during his interview was “histrionic”. He concluded at paragraphs 1-3 of his Opinion as follows: “1. I have been unable to arrive at a diagnostic formulation. I do not consider that Mr Ahmed is suffering from true auditory hallucination as part of a psychotic disorder. It is possible that the voice he claims to hear is a pseudo-hallucination, sometimes defined as a hallucination which the patient knows to be such; the patient has the vivid sensory experience, but realises that it has no external foundation. It is however possible that Mr Ahmed has at some stage suffered from a transient drug induced psychosis. 2. The attack on Mr Iqbal was unprovoked without reason. What is so worrying is that Mr Ahmed was carrying a knife at the material time. 3. I consider the likely diagnosis to be an Emotionally Unstable Personality Disorder. This order is defined in ICD-10 (Classification of Mental and Behaviour Disorders) as a “personality disorder in which there is a marked tendency to act impulsively without consideration of the consequences, together with affective instability. The ability to plan ahead may be minimal, and outbursts of intense anger may often lead to violence or behavioural explosions; these are easily precipitated when compulsive acts are criticised or thwarted by others”. There are two variants of this disorder and both share the general theme of impulsiveness and lack of self-control. Mr Ahmed’s behaviour more easily fits the impulsive type i.e. “the predominate characteristics are emotional instability and lack of impulse control. Outbursts of violence or threatening behaviour are common, particularly in response to criticism from others. …” 8. Dr Pinto said at paragraph 22 of his report to the sentencing court of 27 December 2006: “22. Dr Canning describes components of Mr Ahmed’s behaviour at Woodhill Prison. This was very similar to the syndrome he manifested during the first few days of his stay at the Orchard Unit. He complained of “voices” that he said were instructing him to kill himself, and repeatedly maintained that he had absolutely no recollection of the events that had led to his arrest. The nursing observations in our unit did not provide any supporting evidence to confirm that he might have been genuinely hallucinating as he was never noticed to have been responding to any outside experiences. He kept maintaining that he was unfit to plead because he felt suicidal, though our repeated assessments of his mental state did not conclude that he was clinically depressed. On 31 July 2006 he appeared to make a show of using a cutlery knife, which had to be retrieved, but the nurses who dealt with the matter did not feel that Mr Ahmed was actually intending to carry out an attack.” 9. In his Opinion at paragraph 24 Dr Pinto continued: “24. In my view, Mr Ahmed does not suffer from a treatable mental illness at the present time. His description of the “voices” is most unlikely to represent true hallucinatory experiences. His form of speech does not reveal any evidence of thought disorder, and his repeated assertions that he is compelled to carry out actions such as bathing in urine or covering his face in faeces are most unlikely to be true.” At paragraph 26 Dr Pinto continued: “26. On the other hand, the information that is available in his records does indicate that Mr Ahmed has behaved in an abnormal and disturbed fashion on many occasions before the event. His parents would appear to have been extremely concerned about his behaviour to the extent of seeking help for him on repeated occasions. The description they provided of his behaviour, including his spontaneous aggression, his sexual disinhibition, and his assault on other members of the family, are suggestive of confused and possibly transient psychotic states.” Dr Pinto expressed the view that the appellant’s statements to psychiatric consultants were primarily driven by his desire to escape a custodial sentence. There was little convincing evidence to support Mr Ahmed’s declaration that he would never take drugs again. He had been a heavy consumer of most forms of illicit drugs and alcohol since his early teens. At paragraph 31 Dr Pinto reported that there was clear evidence of dissembling by the appellant. His claim to have been constantly affected by auditory hallucinations was not borne out by independent observation. The instant offence was likely to have been the consequence of a transient psychosis, probably brought about by extensive drug misuse. Dr Pinto did not disagree with Dr Canning’s tentative view that the appellant suffered from an emotionally unstable personality disorder which Dr Pinto did not regard as a treatable mental illness. 10. It is common ground between Ms Syed, on behalf of the respondent, and Mr Long, on behalf of the appellant, that there was no evidence before the sentencing judge that would have entitled him to order the appellant’s detention in hospital. The judge concluded that the appellant presented a significant risk to the public. For that reason an indeterminate sentence was required. It is now necessary to trace the history of transfers between prison and hospital. HM Aylesbury YOI 9 February 2007-19 December 2008 11. Once in custody the appellant did not have access to the cocktail of drugs and alcohol which he had consumed before his remand. Dr John Baruch was consultant psychiatrist at HM Aylesbury Young Offenders Institute. On 29 April 2008, Dr Baruch wrote to the appellant’s then solicitors, Solomon Levy & Co, that in January 2007 the appellant began to complain of hearing voices. It was noted that the appellant had, at the time of committing the offence, been under the influence of a psychotic episode brought about by misuse of drugs. At Aylesbury the appellant was prescribed anti-depressant and anti-psychotic medicine. He withdrew from medication in October 2007 and appeared to become unwell with hypo-manic symptoms and, possibly, paranoid delusions. He was therefore re-started on Olanzapine. Dr Baruch expressed the view that a number of diagnoses were possible including, drug induced psychosis, manic depression, schizophrenia and emotionally unstable personality disorder. He did not rule out the possibility “that Mr Ahmed had simulated his psychotic symptoms”. Suttons Manor Hospital 19 December 2008-20 October 2009 12. On 19 December 2008 the appellant was transferred to Suttons Manor Hospital under section 47 Mental Health Act 1983 . He remained until 20 October 2009 when he was transferred to the Robin Pinto Unit. Dr Owen Samuels was Consultant Psychiatrist at the Robin Pinto Unit. On 6 August 2009 Dr Samuels wrote to Dr Jason Taylor at Suttons Manor Hospital. Dr Samuels said that the appellant’s mental state had started to deteriorate in June 2008. In October 2008 he was involved in a fight in detention for which there had been no provocation. In November he claimed to have heard a woman being tortured in the YOI. He was now complaining that at the time he committed the section 18 offence voices had told him that unless he went out to stab someone he would himself be tortured. He was expressing persecutory beliefs. He thought his family was being tortured. His own thoughts were, he said, being broadcast on the television. Similar accounts were given by the appellant on his admission to Sutton Manor. On 4 April 2009 the appellant attacked a fellow patient. He claimed the voices had told him to punch another person or a member of his family would be run over by a car. He said he had punched his fellow patient as gently as he could. He was reported to be making telephone calls to his family between three and five times a day. He told Dr Samuels that whenever he saw the colour purple on the television he believed the content of the programme related to him. He repeated his previous claims to be suffering olfactory delusions. He thought the Imam was talking about him. The language he used caused the appellant to believe that the female members of his family were being raped. The appellant revealed that his symptoms had improved since being transferred to hospital. That was because, he said, he was able to telephone his family more frequently. Dr Samuels interviewed the appellant on 4 August 2009. He described the appellant as follows: “Mr Ahmed was dressed in a traditional tunic. He was friendly and engaging during the assessment and appeared generally eager to assist with the process. He was reasonably well groomed and maintained good eye contact throughout the assessment. He exhibited some restlessness and at times appeared stiffened but denied any specific complaints about his current medication. His speech was spontaneous and he spoke with normal volume and rate albeit somewhat monotonous. He described his mood as being “fine” and denied any significant mood symptoms. He denied any hopelessness or despair and said that although he experienced auditory hallucinations telling him to harm himself, he denied suicidal intent. There was no evidence of formal thought disorder. He described numerous ongoing psychotic symptoms including auditory hallucinations, ideas of reference, passivity phenomena and paranoid beliefs that his family and he will come to harm. Although he admitted that although he believed these symptoms were due to his mental illness, he is unable to dismiss these symptoms, particularly when the voices are most distressing. He said he experienced difficulties managing this distress.” Robin Pinto Unit 20 October 2009-22 July 2010 13. Dr Samuels expressed the opinion that the appellant was suffering symptoms of paranoid schizophrenia. In other words, he accepted the truth of the appellant’s own account of those symptoms. However, following his transfer to the Robin Pinto Unit on 20 October 2009 the appellant was assessed using the Miller Forensic Assessment of Symptoms. Dr Raman Deo, Clinical Director at Brockfield House Medium Secure Unit, the appellant’s current treating psychiatrist, describes the assessment in his report of 25 January 2013 as a reliable and valid screen for Malingered Mental Illness. Dr Deo said at paragraph 40 of his report: “Mr Ahmed’s scores met the cut-off criteria for malingered symptoms across several scales. These include RC (rare combinations), which indicates the endorsement of unlikely combinations of symptoms associated with mood and psychotic disorders. Mr Ahmed also reached the cut-off points for RO (reported versus observed behaviour) and USC (unusual symptom course). The author also stated that these findings were consistent with his presentation on the ward, whereby he often states anxiety symptoms that are not observed by others. It is felt by the team that Mr Ahmed’s presentation is not consistent with that of a person [suffering from] psychoses at present.” 14. In his transfer/discharge form prepared upon his transfer to HMP Woodhill on 22 July 2010 the following entry appears: “...in the week prior to transfer, Mr Ahmed expressed concerns about being isolated in prison and not being able to contact his family. He believed that this would result in an increase in his auditory hallucinations and he requested Lorazepam to manage this anxiety. When this was declined, he made veiled threats to cut his wrists and said that this was the only way people accede to his requests. He was therefore placed on enhanced observations but these were rescinded on 21 July when Mr Ahmed reported stable mood and denied any thoughts of self-harm. He spoke positively of completing his required programmes in prison and returning to live with his family when the loft is converted. He spoke of realistic plans to attend college and secure paid employment upon release.” 15. In a further report from Dr Samuels dated 25 October 2010 he acknowledged what he described as a tendency in Mr Ahmed to exaggerate his symptoms. Speaking of the appellant’s time at the Robin Pinto Unit Dr Samuel’s said: “Over time, we also noted a tendency by Mr Ahmed to fluctuate in mood and he exhibited a very polarised way of thinking. It was felt that Mr Ahmed preferred being on the Robin Pinto Unit, which was in close proximity to his family’s home, and his family would visit most days bringing him meals. Mr Ahmed began asking for escorted leave and it was felt that although he continued to report delusional beliefs, he had made significant progress and it was appropriate to transfer him back to prison. Around this time, Mr Ahmed began engaging in self-harming behaviour, superficially cutting his wrists and threatening to kill himself if he was transferred back to prison. Over time, however, I was able to convince him that as he was on an indefinite sentence for public protection, the only way that he would eventually secure his release was through doing the necessary rehabilitative programme in the prison and we were able to, with the support of the prison In Reach Team at Woodhill, negotiate a safe transfer back to HMP Woodhill.” HMP Woodhill 22 July 2010-11 March 2011 16. Dr Samuels followed up Mr Ahmed after his transfer to HMP Woodhill. He assessed Mr Ahmed in the presence of Dr Shapero. In his report of 25 October 2010 Dr Samuels’ said: “It is clear that despite all the efforts from the In Reach Team, Mr Akmed has deteriorated in his mental state, reporting very vivid auditory hallucinations. He began suffering with intense anxiety and would isolate himself in his room refusing to engage in any programmes. In addition, Mr Ahmed described believing that his family were being assaulted and I understand on one occasion he actually asked his mother to uncover her veil because he believed that she would have marks from being assaulted. The prison In Reach Team had made numerous efforts to manage him in the prison setting but feel that they are no longer able to do this. He has seemingly remained compliant on his medication and it may be that he would benefit from an increase in Clozapine but Dr Shapero feels that he is unable to do this in prison because he feels he is unable to monitor the prescribing of Clozapine in this setting. Although I do not entirely agree with this opinion it was on this basis that he was re-referred to me”. Speaking of his interview with the appellant on Thursday 21 October 2010 Dr Samuels wrote: “… Mr Ahmed was casually dressed in prison-issued clothing. He was animated and aroused throughout the assessment and presently objectively anxious. His speech was lucid and coherent but he spoke with a degree of desperation, seemingly eager to impress upon me the level of his stress and the need for transfer to hospital. He described his mood as being very depressed with ongoing suicidal ideation. He has self-harmed on several occasions recently. Mr Ahmed described poor sleep and poor appetite. He described low energy levels and said that he is unable to concentrate. He described complex persecutory delusional belief that his mother and sister are repeatedly being raped. He described how he had come to this knowledge by hearing the ongoing screaming of women and also how he has recently heard a single entitled “I like that” which he described in a circuitous way that it referred to his sister being raped. He also described himself as having been classified as “a rape class citizen” which he said meant that his family would be assaulted and raped by people that form an “organisation of the public bodies”.” 17. Dr Samuels concluded that he was uncertain whether the appellant was exaggerating his symptoms but he believed that the appellant was suffering from paranoid schizophrenia. It was for this reason that he supported the appellant’s return to hospital. Dune Ward, Brockfield House 11 March 2011-February 2012 18. On 11 March 2011 the appellant was admitted to Dune Ward, Brockfield House, a medium secure unit in Runwell, Essex for further assessment. Between 21 July and 4 August he completed a range of tests including the HCR-20 violent risk assessment, the Minnesota Multiphasic Personality Inventory (MMPI-2), the Millon Clinical Multiaxial Inventory – III (MCMI-III), the Structured Interview of Reports Symptoms (SIRS) and the Test of Memory and Malingering (TOMM). Ms Hanaan Haddad, the locum forensic psychologist, who conducted the series of tests with Mr Stockton, prepared a report dated 18 January 2012. In it she wrote a summary of assessment findings in which she said: “1. Mr Ahmed has not been sincere in his responding on all psychometric tests administered. This brings into question the sincerity and genuine experience of both psychotic symptoms and complaints of low mood and severe anxiety. Findings on the above psychometric tests are consistent with previous opinions held by Dr R Pinto, Dr Ragamarni, Nikala Kumari and nurses at HMP Woodhill who have described a calculated attempt by Mr Ahmed to uphold a mentally ill and disturbed picture of his current mental state. 2. Further, in a specific test designed to assess malingered memory difficulties, Mr Ahmed’s performance is so poor that we would expect neglect in his self care and hygiene, that he would be unable to maintain conversation with staff, recall staff members’ names, the medication he requires and even the telephone numbers of his family, yet he has been able to recall these freely from memory. This test adds to the concerns of feigning memory difficulties and concentration difficulties and the lack of observed difficulties he has presented while being at Brockfield House. In 2007, Mr Ahmed completely courses targeting critical thinking skills, problem solving skills and reflective thinking skills. He completed these courses with positive feed-back and even demonstrated the ability to link material and apply his learnt skills. 3. Therefore, based on the evidence detailed in his comprehensive psychological report it seems reasonable to conclude that Mr Ahmed does not have a current psychiatric diagnosis and does not suffer from genuine memory or cognitive impairment. It is highly unlikely and suspicious that such a performance could have occurred either as a result of paranoid schizophrenia – spectrum illness or as a result of cognitive deterioration. The vast level of discrepancy between his reports and his observed functioning on the ward taken together with his exaggerated symptoms and malingered memory impairment adds weight to this conclusion. It appears as though Mr Ahmed presented with apparent mental health symptoms which resulted in his admission to Brockfield House, however during the more comprehensive psychological assessment, it seems reasonable to conclude that his mental health symptoms are likely malingered.” HMP Woodhill February 2012-25 July 2012 19. In about February 2012 the appellant was returned to HMP Woodhill. He was prescribed an anti-psychotic drug, Aripiprazole, and an anti-depressant, Mirtazapine. Dr Raman Deo, the clinical director of the SEPT Secure Mental Health Service at Brockfield House said in his report dated 25 January 2013 at paragraph 43 that the appellant had an inconsistent and unusual presentation. There was a working diagnosis of anxiety and probable personality disorder. At Brockfield his anti-psychotic drug Clozapine was stopped. His functioning remained at a high level and there was no objective evidence of cognitive impairment. When, however, the appellant returned to HMP Woodhill his claims to a belief that his family were being sexually abused resumed. He stopped taking his medication and carried out a planned attack on a fellow inmate. He befriended his victim and invited him to his cell for a cup of tea and then poured a kettle of boiling water in his face. He claimed that he believed his victim was one of several men who had raped his mother, sister and cousin. 20. Dr Deo was aware of conflicting opinions as to whether the appellant severed a true mental illness. 21. We interrupt the chronology of Dr Deo’s report to refer to a letter typewritten by the appellant on 3 February 2012 to Dr Jason Taylor, who was a treating psychiatrist at Suttons Manor Hospital from April 2009. The letter was also sent to Dr Elizabeth Barron, a treating psychiatrist at Brockfield House. The letter was written from Dune Ward at Brockfield House by the appellant shortly before his transfer back to HMP Woodhill. In five closely typed pages of A4 the appellant seeks support for a diagnosis of paranoid schizophrenia. He seeks to explain and criticise the contrary view of other psychiatrists. His argument is closely reasoned. The effort of memory required was prodigious. Inconsistently, however, the appellant argued that his response to the memory tests conducted by Ms Haddad was genuine. The appellant purported to give other examples of poor memory, completely inconsistent with the effort of memory required to write the letter. In his concluding paragraph the appellant wrote: “So Dr Taylor my analysis for Dr Phinn’s [a reference to a Dr Thinn whose report we have not seen] opinion and the psychological aseessment can challenge them. Also it should be brought to light the truth which is I am a sick man with real problems and if these problems are in fact not real then I must admit I am a very sick man. The index offence I committed was due to my illness and I speak the truth, nothing but the truth, the whole truth and only the truth. So please Dr Taylor I beg, please do not withdraw your support or commitment to the Court of Appeal. Just because how you are going to look I say this because I know you believe I am ill but just now going to find it hard to prove. So I guess I will leave it at this, goodbye and I wish upon you a good life from God …” Lagoon Ward, Brockfield House 23 July 2012 to date 22. Returning to Dr Deo’s report of 25 January 2013, he recorded that the appellant was returned to Lagoon Ward at Brockfield House under section 47 Mental Health Act 2007 on 23 July 2012. The appellant again presented in an inconsistent manner. He appeared to be delusional, he was observed pacing the ward, talking to himself, praying and laughing inappropriately. At times he would not maintain eye contact with female members of staff. At others he did maintain eye contact and spoke in a relaxed manner. On 25 August 2012 he attacked a member of staff. In consequence his medication was recommenced. The appellant himself described periods of calm when he no longer entertained his bizarre delusional beliefs that his family were in danger of rape by Pakistani men. The appellant had become pre-occupied with his original conviction for wounding. He was constantly asking staff to provide a report in support of an appeal against conviction. Dr Deo’s opinion was that the appellant suffered paranoid schizophrenia but the picture was complicated because it might be that he was exaggerating his various symptoms. Evidence in the Appeal 23. The diagnosis of paranoid schizophrenia is supported by Dr Jason Taylor and Dr Elizabeth Barron. Dr Taylor is a consultant psychiatrist who first encountered the appellant at Suttons Manor Hospital in April 2009. The appellant had been on the ward since 19 December 2008. He remained in Dr Taylor’s care until he was transferred to the Robin Pinto Unit on 20 October 2009. On 9 December 2010, Dr Taylor wrote to the appellant’s solicitors, Noble & Co., expressing the firm opinion that the appellant had suffered a “serious, discrete mental disorder at the time of the index offence”. When deprived of drugs and alcohol he continued to display classical symptoms which very strongly supported a diagnosis of treatment resistant schizophrenia. Dr Taylor described in evidence “classical” and “first rank” symptoms of schizophrenia. They were resistant to treatment. This was the reason why Clozapine had been prescribed; it is a last resort medication. Dr Taylor said that the appellant suffered command hallucinations “almost identical to those he experienced when he committed the offence”. The appellant had made, in Dr Taylor’s opinion, a partial response to medication, in particular Clozapine. His view was that the opinion of the psychiatric experts who advised the sentencing court had subsequently been demonstrated to have been wrong. The consumption of drugs and alcohol may have been the trigger for the development of an enduring psychosis. Dr Taylor had not observed any signs of a personality disorder: “He was anxious but adhered to the rules and conditions. He was compliant with treatment”. 24. Dr Taylor agreed in cross examination that his diagnosis depended in substantial measure upon the appellant’s own reports of his symptoms. He had also relied upon the family history and the appellant’s observed behaviour. When asked to explain the results of psychological testing on two occasions Dr Taylor expressed the view that the testing methods were unreliable in schizophrenic patients and cast doubt upon the experience and, therefore, the competence of the psychologists who performed them. Asked to reconcile the appellant’s severe condition with the letter written to him on 3 February 2012 Dr Taylor said only that he found its contents “bizarre” and “contradictory” It was not inconsistent, he thought, that a man who was severely mentally ill would try to persuade others of that fact. In re-examination Dr Taylor conceded that there may be an element of exaggeration in the appellant’s self-report of symptoms. Exaggeration, he said, could be the result of anxiety caused by genuine symptoms. 25. Dr Elizabeth Barron was the appellant’s treating psychiatrist at Dune Ward, Brockfield House between 11 March 2011 and the end of the year. In a letter of 25 May 2011 to Noble & Co. Dr Barron supported the diagnosis of paranoid schizophrenia. She also considered that the appellant was mentally unwell at the time of the offence. She did not agree with Dr Pinto’s diagnosis of emotionally unstable personality disorder. During his stay at Dune Ward the appellant showed no evidence of such a disorder. She said in a letter dated 25 January 2012 to Noble & Co. that “he has never demonstrated impulsive behaviour, mood swings or outbursts of anger. On the contrary he has tried to comply with rules and regulations and has been able to get along with staff and patients alike. He has, however, continued to be distressed by his symptoms at times and to require constant reassurance around his delusional beliefs”. Dr Barron concluded that the appellant did not have a personality disorder but suffered a persistent delusional disorder that required anti-psychotic medication and possibly cognitive behavioural therapy. In evidence Dr Barron conceded that it was possible that the appellant’s schizophrenia developed after sentence. It was unusual to diagnose schizophrenia at such a young age. 26. Dr Barron said that she had interviewed members of the appellant’s family, his parents and a brother, Hussain, with the assistance of an interpreter. In consequence she understood from Hussain that a maternal uncle had suffered symptoms not dissimilar to those of the appellant. An older brother with a history of drug taking was also paranoid and had been prescribed anti-psychotic medicine. The parents had denied that there was a history of mental illness in the family but Hussain explained that his parents may not have wished to reveal such an embarrassing fact in the presence of an influential member of their own community. Asked upon what objective evidence she had based her opinion, Dr Barron said that Hussain had told her that the appellant frequently expressed his anxiety about his family over the telephone. We have been provided with no notes of these conversations and no follow up enquiries appear to have been made. Dr Taylor relied upon Dr Barron’s report to support his diagnosis of paranoid schizophrenia. He said his opinion was partly based upon the “appearance” of a family history of schizophrenia. 27. The appellant had not, in Dr Barron’s experience, ever exaggerated his symptoms although she could not totally ignore the results of psychological testing. Dr Barron believed that the appellant had during his time in custody suffered a deterioration in his intellectual functioning. 28. Dr Philip Joseph is a consultant forensic psychiatrist who had recently retired from his treating practice at St Mary’s and St Charles Hospital in London. He was the consultant responsible for a locked psychiatric care unit between 1996 and October 2012. He has provided reports and evidence in over 800 cases of homicide over a period of 28 years. Dr Joseph provided reports, at the request of the respondent, dated 6 December 2011 and 14 February 2012. In short, it was Dr Joseph’s opinion that too little respect had been paid to the contemporaneous opinions of those who reported upon the appellant’s mental health in years 2005-2007. He found upon interview and examination that he agreed with them. Contrary to the account given at the time of offence the appellant claimed that he had been hearing voices for “some months”. Britney Spears had told him to be racist towards an African lady shopkeeper. He replied “No” to the voice. He repeated his previous accounts which had emerged while he was at Aylesbury YOI of being told that he would be tortured unless he attacked his victim. At first he claimed it was one voice, then he said it was a crowd of men and women speaking in English. Eventually he had given in to the voices but had chosen the smaller of two knives to minimise the damage to the victim. He claimed that he had been “stitched up” by Dr Pinto. 29. Dr Joseph found a man who was well groomed, alert, intelligent and keen to participate. He understood all Dr Joseph’s questions and gave prompt and articulate answers. He observed no signs of the anxiety, depression or suicidal thoughts. He found no evidence of poverty of speech, blunted effect, lack of motivation or poor self-care, which he would have expected to be demonstrated by a man suffering from the burden of chronic schizophrenia. When Dr Joseph discussed with the appellant the first diagnosis of schizophrenia (when he was in HMP Aylesbury) the appellant told him that now five doctors agreed and “hopefully you will be the sixth”. The appellant told Dr Joseph that he wanted a hospital order instead of a prison sentence because under his present sentence he could not be released without first returning to prison. In hospital he enjoyed escorted leave but in time he hoped to return to the Robin Pinto Unit so that he could be given unescorted leave in order that he could visit his family. He thought he was “a bit better in hospital”. 30. Dr Joseph explained in his report that Clozapine was a powerful drug which was used in the treatment of resistant schizophrenia which had not responded to more conventional antipsychotic drugs. It has unpleasant side-effects. The appellant told him that although he had been taking Clozapine for a year it had not helped him. Yet, Aripiprazole, which he had been taking for two and a half weeks, had taken effect immediately. Dr Joseph noted the history of report writing to which we have referred earlier in this judgment. 31. Dr Joseph concluded that the appellant was not suffering from treatment-resistant paranoid schizophrenia. Dr Joseph found the appellant’s presentation at interview to be entirely inconsistent with a man who was so ill that only the drug of last resort was deemed appropriate to treat his condition. Dr Joseph agreed with the tentative opinions of Dr Canning and Dr Pinto that the appellant had an emotionally unstable personality disorder which was the cause of his occasional outbursts of anger, and impulsive and violent behaviour. It was not uncommon to treat such a disorder to some effect with low doses of anti-psychotic drugs. Although Dr Joseph did not rule out the possibility that at the time of the offence the appellant was suffering from a transient psychotic episode brought about by his drug consumption, it was his view that drug consumption may equally have intensified his emotional instability with the same result. 32. In evidence Dr Joseph noted that the opinion of Ms Haddad had been unequivocal: the appellant had been malingering his symptoms. Dr Joseph explained the conclusions contained in his report. If the appellant was not malingering he was very ill. If he was very ill, Dr Joseph would expect to find enduring signs of the burden of the illness. There were none. Those with the condition this man claimed to have cannot care for themselves. Dr Joseph accepted that there was room for disagreement between experts in psychiatry. However, his concern lay in the “inconsistency” and “incongruence” between the appellant’s claimed experience of schizophrenia and his demeanour and presentation in interview and to others. Dr Joseph’s study of the reports had caused him to notice a curious feature of the cycle by which the appellant would be transferred from prison to hospital and back to prison. There would be an apparent improvement in hospital. When he was transferred to prison there would be a rapid deterioration and he would refuse to take his medication. That was inconsistent with a patient who was responding to a successful anti-psychotic drug regime in hospital and deemed, for that reason, to be fit to return to prison. Dr Joseph asked rhetorically: why, if the appellant’s symptoms were relieved by the drugs regime did he refuse to take them when he was returned to prison? Any deterioration in the appellant’s mental condition in prison Dr Joseph would expect to be gradual. Dr Joseph considered that the appellant’s claims to be hearing voices were not genuine. He accepted that he could not be certain, but if he was wrong he did not consider that the later development of paranoid schizophrenia demonstrated that expert opinion at the time of sentence was misconceived. When, for example, the appellant had been admitted to the Oakley Unit in 2005 he had improved quickly and had been discharged. He failed to keep to the agreed regime and returned. The appellant’s reported behaviour towards the victim of wounding was entirely consistent with drug induced and transient psychosis. As to the letter written by the appellant in February 2012, Dr Joseph expressed the view that a man who had endured treatment resistant schizophrenia since the age of 21 simply could not have composed it. Those suffering from schizophrenia do not describe the voices they experience commanding action as “delusions”. Their voices are as real as any other human experience. Discussion and conclusion 33. The burden is upon the appellant to demonstrate that at the time of sentence the appellant was suffering from a mental disorder of a nature or degree that made it appropriate for the appellant to be detained in a hospital for medical treatment ( section 37(2) (a) Mental Health Act 1983 ). There is no issue raised by the respondent that if the appellant meets the burden upon him an order under sections 37 and 41 would have been appropriate (see section 37(2) (b) and section 41(1)). The stark issue raised by this appeal is whether the appellant has demonstrated that at the time of sentence he was suffering from paranoid schizophrenia or some other form of delusional disorder, susceptible to treatment, which should have resulted in an order for his detention in a hospital. 34. In our judgment, the appellant has manifestly failed to demonstrate that the opinions expressed in the reports of Dr Pinto and Dr Channing to the sentencing judge were flawed in any significant respect. We recognise the possibility, which we regard as unlikely, that the appellant has, since he commenced serving his sentence, developed the mental illness of paranoid schizophrenia. This Court cannot allow an appeal against sentence on the ground that it was wrong in principle or manifestly excessive merely because the offender has since developed a mental disorder or illness which, had it been present at the time of sentence, may have caused the sentencing judge to take a different view as to the appropriate sentence. Section 47 exists to enable the Secretary of State to respond to such an eventuality by directing the offender’s transfer to hospital. 35. We have reached our conclusion essentially for the reasons given by Dr Joseph. We found Dr Joseph to have been both a careful witness and a careful reporter. We recognise that both Dr Taylor and Dr Barron have had the appellant in their care for significant periods while they were treating psychiatrists at institutions to which the appellant had been transferred. We do not doubt that their opinions were sincere. However, on two occasions separate teams of psychologists have tested the appellant for the purpose of ascertaining whether he has been “malingering” his symptoms. Those symptoms are in the main his description of the voices which he claimed were commanding and frightening him. We have received no satisfactory explanation from Dr Taylor and Dr Barron as to why the opinion of the psychologists is to be discounted. 36. Secondly, we see force in Dr Joseph’s evidence that: (1) if the appellant was telling the truth, he was very ill. His presentation was consistently at odds with a man who was very ill. His emotionally unstable personality was enough to account for his occasional outbursts of violence; (2) the appellant’s behaviour was manipulative. He clearly preferred the regime in hospital and his preference was the Robin Pinto Unit close to his family home. We share Dr Joseph’s concern about the cycle of behaviour and symptoms claimed; (3) the letter typed by the appellant on 3 February 2012 was an attempt by a man in full control of his faculties to rationalise the effect of the voices which he claimed to be hearing. It was clearly designed to persuade his audience to support his case. We accept Dr Joseph’s opinion that there is precious little evidence of a man who was distressed by his seriously ill mental condition; there is plenty of evidence of thoughtful self-justification; (4) the appellant was the subject of expert evaluation during three separate periods of observation in 2005/2006. None of the experts who saw the appellant accepted that the appellant was describing genuine hallucinations. 37. We are not persuaded that Dr Taylor and Dr Barron gave sufficient consideration to the need, for diagnostic purposes, to be clear about the objective evidence which might support a diagnosis of paranoid schizophrenia. While both experts relied upon conversations with the family, the evidence was imprecise and inconsistent and no attempt was made on the appellant’s behalf to establish the factual assertions as to the family history on which their diagnosis was based. They have expressed their clinical impressions primarily, if not exclusively, upon their own dealings with the appellant who, we find, to have been quite capable of manipulating others to his own advantage. 38. In our judgment, the appellant has failed to establish that the expert psychiatric evidence presented to the sentencing judge was flawed or mistaken. It follows that a sentence of detention for public protection was the appropriate sentence and the appeal is dismissed.

2013_07_31-3244.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/1393/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2013/1393

d659911174093b7700da976ae83f07fc11e6bc915f9a700cb875c586ebd9d3c7

[2018] EWCA Crim 2445

EWCA_Crim_2445

2018-08-10

crown_court

Neutral Citation Number: [2018] EWCA Crim 2445 Case No. 2018/01230/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Friday 10 th August 2018 B e f o r e: LADY JUSTICE THIRLWALL DBE MR JUSTICE KNOWLES and MR JUSTICE GOOSE - - - - - - - - - - - - - - - - - - - - - R E G I N A - v - A B - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Miss M Williams appeared on behalf of the Appellant - - - - - - - - -

Neutral Citation Number: [2018] EWCA Crim 2445 Case No. 2018/01230/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Friday 10 th August 2018 B e f o r e: LADY JUSTICE THIRLWALL DBE MR JUSTICE KNOWLES and MR JUSTICE GOOSE - - - - - - - - - - - - - - - - - - - - - R E G I N A - v - A B - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Miss M Williams appeared on behalf of the Appellant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (Approved) WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. LADY JUSTICE THIRLWALL: I shall ask Mr Justice Goose to give the judgment of the court. MR JUSTICE GOOSE: 1. The provisions of section 45 of the Youth Justice and Criminal Evidence Act 1999 are engaged in this case because the appellant is under the age of 18. An order was made under section 45 in the Crown Court in the following terms: "No matter relating to [the appellant], a person concerned in the proceedings, shall while he is under the age of 18 be included in any publication if it is likely to lead members of the public to identify him as a person concerned in the proceedings and in particular: a) His name; b) His address; c) The identity of any school or other educational establishment attended by him; d) The identity of any place of work; and e) Any still or moving picture of him." We extend the terms of the order under section 45 to this appeal. The appellant will be referred to as "AB". 2. The appellant appeals against sentence with the leave of the single judge. He was born on 19 th April 2001 and is now aged 17. At the time of these offences he was aged 16. 3. On 12 th March 2018, in the Crown Court at Northampton, having been committed for sentence by the Youth Court pursuant to sections 4A and 3B of the Powers of Criminal Courts (Sentencing) Act 2000, the appellant was sentenced by Mr Recorder Chinery to 36 months' detention in a young offender institution. The sentence was imposed for five offences as follows: having an article with a blade or point, contrary to section 139(1) of the Criminal Justice Act 1988 (offence 1), eight months' detention; possession of a controlled drug of Class A, contrary to section 5(2) of the Misuse of Drugs Act 1971 (offence 2), eighteen months' detention; possession of an offensive weapon (ammonia), contrary to section 1(1) of the Prevention of Crime Act 1953 (offence 3), eight months' detention; possession with intent to supply Class A drugs (cocaine), contrary to section 5(3) of the Misuse of drugs Act 1971 (offence 4), 36 months' detention; and possession with intent to supply Class A drugs (heroin), contrary to section 5(3) of the Misuse of Drugs Act 1971 (offence 5), 36 months' detention. All sentences were ordered to be served concurrently. 4. The appellant relies on three grounds of appeal. The first ground is that the Recorder should have imposed a sentence of a detention and training order for a maximum of 24 months, because there was no finding that the offences were "grave crimes". The second ground is that the sentences on all counts were manifestly excessive because inappropriate discount was given to the appellant for his age (being 16 at the time of the offences). The third ground is that insufficient weight was given to the appellant's personal mitigation when the judge fixed sentence. 5. The facts of these offences can be shortly stated. The first two offences, namely having an article with a blade or point and possession of a controlled drug of Class A, were committed on 24 th May 2017. On that afternoon a police officer was on duty in the area of Farndon Road in Wellingborough. He saw the appellant riding a bicycle and decided to stop and search him, he was initially unsuccessful, as the appellant rode off. He was later stopped in an underpass. He was searched. Within his waistband, the police found a knife inside a sheath, with a blade of six to eight inches in length. A search was carried out at his home address and a wrap of cocaine was found hidden inside a trainer, said to be for his personal use. He was arrested and released on police bail. 6. The third offence of possession of an offensive weapon was committed whilst the appellant as on bail. On 14 th August 2017 he was searched in the area of Osprey Lane in Wellingborough. Police officers found in his possession a Lucozade bottle containing a concentrated ammonia solution. 7. Offences 4 and 5, namely possession with intent to supply Class A drugs (cocaine and heroin respectively), occurred on 1 st October 2017. The appellant was in the home address of an older man when the police carried out a search. In the living room of that house the appellant was found to be in possession of 66 individual wraps containing drugs and two further bulk quantities ready for further street dealing. There were 40 individual £10 deals of crack cocaine with 5 grams of bulk cocaine ready for dividing into further deals. There were also 26 wraps of heroin, with 5 grams of further heroin also ready for division into individual wraps. The street value of the drugs was estimated to be in the region of £1,660. A search was also carried out at the appellant's address, where he was living with his girlfriend. £900 was recovered from a box in her bedroom. The appellant's mobile phone contained text messages indicative of involvement in drug dealing. 8. In sentencing the appellant, the Recorder expressly took into account the principles which apply to the sentencing of young people within the Youth Guideline of the Sentencing Council. The Recorder also took into account the fact that the appellant had no previous convictions, the contents of the pre-sentence report dated 9 th November 2017 and the addendum report dated 11 th March 2018, which dealt with the effect on the appellant of a period in custody after his breach of bail. Further, the Recorder took into account letters written by and on behalf of the appellant. The Recorder appropriately imposed a global sentence on the two offences of possession of Class A drugs with intent to supply. He imposed concurrent sentences on the other counts, but took them into account in fixing the overall sentence. By this process, a sentence of 36 months' detention was imposed, with concurrent sentences on all other offences. Whilst he did not specifically identify a sentence appropriate for an adult who had pleaded guilty to the same offences, before adjusting for the appellant's age, the Recorder stated that, as an adult, the sentence could have been up to seven years' imprisonment. 9. The first ground of appeal is that the Recorder incorrectly imposed a sentence in excess of 24 months' detention, when there had been no finding by the court of "grave crimes". This ground can be dealt with shortly. The appellant was committed to the crown court for sentence under section 3B of the Powers of Criminal Courts (Sentencing) Act 2000, which provides: " 3B Committal for sentence on indication of guilty plea by child or young person (1) This section applies where – (a) a person aged under 18 appears or is brought before a magistrates' court ('the court') on an information charging him with an offence mentioned in subsection (1) of section 91 below ('the offence'); (b) he or his representative indicates under section 24A or (as the case may be) 24B of the Magistrates' Courts Act 1980 (child or young person to indicate intention as to plea in certain cases) that he would plead guilty if the offence were to proceed to trial; and (c) proceeding as if section 9(1) of that Act were complied with and he pleaded guilty under it, the court convicts him of the offence. (2) If the court is of the opinion that – (a) the offence; or (b) the combination of the offence and one or more offences associated with it, was such that the Crown Court should, in the court's opinion, have power to deal with the offender as if the provisions of section 91(3) below applied, the court may commit him in custody or on bail to the Crown Court for sentence in accordance with section 54(1) below. (3) Where the court commits a person under subsection (2) above, section 6 below (which enables a magistrates' court, where it commits a person under this section in respect of an offence, also to commit him to the Crown Court to be dealt with in respect of certain other offences) shall apply accordingly." 10. The provisions of section 5A(1) permit the crown court to deal with an offender committed to it under section 3B in any way in which it could deal with him if he had been convicted of the offences on indictment before the crown court. Under section 91(1) and (3) of the 2000 Act, it is provided that: " 91 Offenders under 18 convicted of certain serious offences: power to detain for specified period (1) Subsection (3) below applies where a person aged under 18 is convicted on indictment of – (a) an offence punishable in the case of a person aged 21 or over with imprisonment for 14 years or more, not being an offence the sentence for which is fixed by law; or section 29(6) of that Act (exceptional circumstances which justify not imposing the minimum sentence). … (3) If the court is of the opinion that neither a youth rehabilitation order nor a detention and training order is suitable, the court may sentence the offender to be detained for such period, not exceeding the maximum term of imprisonment with which the offence is punishable in the case of a person aged 21 or over...” 11. Accordingly, the committal of the appellant by the Youth Court to the Crown Court under section 3B of the 2000 Act was correct for the offences of possession of Class A drugs with intent to supply, being the fourth and fifth offences to which the appellant had pleaded guilty. The remaining offences were also correctly committed to the crown court under section 6 of the 2000 Act, as related offences. In the circumstances, we reject the first ground of appeal. 12. The second and third grounds, namely that the sentences were manifestly excessive and that insufficient weight was given to mitigation, can be taken together. The central point of appeal is that the sentence of 36 months' detention was manifestly excessive for the appellant, who was aged 16 at the time of the offending and without previous convictions. In sentencing the appellant, the Recorder correctly identified the appellant as having a significant role with category 3 harm under the Drugs Offences Guideline for offences of supply. As an adult for Class A offences the starting point, before aggravating and mitigating factors was four and a half years' custody after a trial. The category range was three and a half years to seven years. In imposing a global sentence for all offending, as the Recorder did, allows for an adjustment upwards in the range to take account of the other offences, including the fact that possession with intent to supply involved both cocaine and heroin. It also included the other offences and the fact that he was on bail for some of the offending. For an adult over the age of 18, the sentence after trial, but before discount for the guilty plea, would have been appropriate at seven years' imprisonment. Accordingly, adopting such a starting point as the Recorder appeared to do, of seven years after trial was appropriate for these offences. However, such a sentence requires downward adjustment to reflect personal mitigation. The appellant had no previous convictions and had now spent some time in custody after breaching his bail; also, the contents of the letters written by and on behalf of the appellant were to be taken into account. These mitigating factors serve to reduce the sentence for an adult after trial to one of six years' custody. A discount for the appellant's early pleas of guilty required a further adjustment of one-third, to four years' detention, and a further discount to reflect the fact that he was aged only 16 at the time of the offences. The Recorder correctly had in mind the need to apply a substantial discount to any sentence to reflect the reduced culpability of the appellant by reason of his age. 13. The Sentencing Council Guideline for sentencing children and young people provides for a discount in the region of one-half to two-thirds of the adult sentence for those aged 15 to 17, as a rough guide (see paragraph 6.4(6) of the Guideline). In the circumstances, therefore, the period of four years' detention, after discount for a guilty plea, requires a further discount to two years' detention. It follows, therefore, that a sentence of 36 months' detention was manifestly excessive. Further, since the appellant was aged 17 at the time of sentence, the sentence should have been that of a Detention and Training Order under section 101 of the Powers of Criminal Courts (Sentencing) Act 2000. 14. Accordingly, we quash the sentences of 36 months' detention in a young offender institution for the offences of possession of a Class A drug with intent to supply and substitute for them concurrent sentences of a 24 month Detention and Training Order. The remaining sentences will remain unaffected in their length but will be concurrent sentences of a Detention and Training Order. 15. To that extent, this appeal against sentence is allowed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.

2018_08_10-4380.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/2445/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/2445

94d5623bba7ab2151acfa09197352b78238fcf999944d0119183802b8409dd7c

[2004] EWCA Crim 2342

EWCA_Crim_2342

2004-09-09

crown_court

No: 04/755-2689-3024/A8 Neutral Citation Number: [2004] EWCA Crim 2342 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday 9 September 2004 B E F O R E: THE VICE PRESIDENT OF COURT OF APPEAL CRIMINAL DIVISION LORD JUSTICE ROSE MR JUSTICE OWEN MR JUSTICE MITTING - - - - - - - R E G I N A -v- AMERICO PRACTICIO AFONSO AND: R E G I N A -v- MOHAMMED SAJID AND: R E G I N A -v- DOUGLAS ANDREWS - - - - - - - Computer Aided Transcript of the Stenograph Notes of Sm

No: 04/755-2689-3024/A8 Neutral Citation Number: [2004] EWCA Crim 2342 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday 9 September 2004 B E F O R E: THE VICE PRESIDENT OF COURT OF APPEAL CRIMINAL DIVISION LORD JUSTICE ROSE MR JUSTICE OWEN MR JUSTICE MITTING - - - - - - - R E G I N A -v- AMERICO PRACTICIO AFONSO AND: R E G I N A -v- MOHAMMED SAJID AND: R E G I N A -v- DOUGLAS ANDREWS - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MISS GEORGINA GIBBS appeared on behalf of the APPELLANT AFONSO MR MICHAEL MAGEE appeared on behalf of the CROWN IN THE CASE OF AFONSO MR ANDREW SMITH appeared on behalf of the APPELLANT SAJID MR DAVID MUNRO appeared on behalf of the CROWN IN THE CASE OF SAJID MR J0NATHAN GOODMAN appeared on behalf of the APPELLANT ANDREWS MISS MARIA DINEEN appeared on behalf of the CROWN IN THE CASE OF ANDREWS - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: We have heard three appeals together. There was to have been a fourth case, an Attorney-General's application under section 36 of the Criminal Justice Act 1988 , seeking to challenge as unduly lenient a deferment of sentence, but yesterday afternoon the Attorney General, wisely, withdrew that application. These appeals provide an opportunity for this court to give guidance in relation to the sentencing of a particular group of offenders within the category of retail suppliers of Class A drugs identified in Dhajit [1999] 2 Cr App R (S) 142 and Twisse [2001] 2 Cr App R (S) 37. We take into account the guidance given in relation to the making of drug treatment and testing orders in Attorney-General's Reference No 64 of 2003 [2004] 2 Cr App R (S) 106; [2004] Crim LR 241. 2. Nothing which we say is intended to affect the level of sentence indicated by Djahit and Twisse for offenders, whether or not themselves addicts, who, for largely commercial motives, stock and repeatedly supply to drug users small quantities of Class A drugs: and, as was pointed out in those authorities, as well as other authorities, the scale and nature of the dealing are important when deciding the level of sentence. Nor does anything we say call into question the propriety of the levels of sentence for the supply of drugs in the circumstances dealt with in McKeown and Others (Attorney-General's References 13 to 18 of 2004 [2004] EWCA Crim 1885 ; The Times, 17th August 2004. 3. But there is a group of offenders who supply Class A drugs for whom we believe that the level of sentence indicated by Djahit and Twisse , namely in the region of six years following a trial, is disproportionately high and we think some review is called for. These are the offenders who are out-of-work drug addicts, whose motive is solely to finance the feeding of their own addiction, who hold no stock of drugs and who are shown to have made a few retail supplies of the drug to which they are addicted to undercover police officers only. An unemployed addict has, in practical terms, three means of financing his or her addiction - prostitution, theft or supplying others and sentencers should recognise that, in consequence, his or her culpability is likely to be less than that of many other suppliers. Furthermore, if they are shown only to have supplied undercover police officers and hold no stock for supplying others, the harm caused by their conduct is comparatively slight. 4. There will be some such adult and young offenders for whom a drug treatment and testing order will be appropriate in the circumstances indicated in Attorney-General's Reference No 64 of 2003 , to which we have already referred. Where such an order is not appropriate, generally speaking, adult offenders in the category we have identified, if it is their first drugs supply offence, should, following a trial, be short-term prisoners, and, following a plea of guilty at the first reasonable opportunity, should be sentenced to a term of the order of two to two-and-a-half years' imprisonment. For young offenders, the custodial term is likely to be less. 5. It has long been recognised that this court has power to review existing tariffs upwards or downwards: see, for example, Avis [1998] 2 Cr App R (S) 197, Ollerenshaw [1999] 1 Cr App R (S) 65; Attorney-General's Reference No 3 of 1996 (Latham) [1997] 2 Cr App R (S) 10, and Kefford (2002] 2 Cr App R (S) 495. It accordingly would not be appropriate, for the reasons explained in Graham , [1999] 2 Cr App R (S) 312 at 315, for this judgment to be regarded as a basis either for applications for leave to appeal against sentence out of time or for references to this court by the Criminal Cases Review Commission. 6. We turn to the three appeals before us. As will appear, none of these appellants falls entirely within the group which we have identified. All of them supplied undercover officers, were addicted to a Class A drug and had no previous drug convictions, but Andrews had stock, Afonso and Sajid supplied more than one Class A drug, and Sajid's appeal depends primarily on disparity with his co-accused. 7. Afonso, who is now 37, pleaded guilty at Peterborough Crown Court on 16th January 2004 to a number of offences for which he was sentenced by His Honour Judge Coleman. There were four counts of supplying heroin, for which he was sentenced to five years' imprisonment on each concurrently, two counts of supplying crack cocaine, for which he was likewise sentenced to five years' imprisonment concurrently and concurrently to the sentences for heroin offences, and there was a further offence of being concerned in supplying heroin, for which he was sentenced to three years' imprisonment concurrently. His total sentence was therefore five years' imprisonment, and orders were made for forfeiture and disposal of the drugs under section 27 of the Misuse of Drugs Act 1971 . He appeals against sentence by leave of the single judge. 8. The facts were these. In September 2003, police officers mounted an undercover operation targeting drug dealers in Peterborough. On 15th September 2003, an undercover officer entered a centre for the homeless asking for someone called Lucy and he met the appellant. They left together. In the ensuing conversation, the appellant asked if the officer was looking for heroin. In consequence, two telephone calls were made, a third male was met, and the appellant, who on this occasion had drugs in his possession, handed the officer a wrap of heroin in exchange for £10. 9. Three days later, on the 18th, the appellant supplied the officer with £20 worth of cocaine, which he obtained for another man, and he also arranged for another man to supply the officer with heroin. The next day, the 19th, the appellant supplied the officer with crack obtained from another man; on the 23rd he supplied the officer with £10 worth of heroin obtained from another man, and he did precisely the same again on the 25th September. 10. In passing sentence, the learned judge said that there was an issue as to what the precise role of the appellant was. His offending had been brought about by his £150 a day addiction to crack cocaine, but he was trying to rid himself of that addiction, which was to his credit. 11. The operation in the course of which the appellant had been arrested was directed at a further drug-dealing operation which had sprung up as a consequence of the closing down of an earlier operation in Peterborough. The judge described what the appellant and others were doing as "filling the vacuum" that the closing down of the earlier operation had caused. 12. The learned judge referred to the appellant's record. He has no previous convictions in relation to drugs, but he has a substantial record over a four-year period from late 1999, particularly of offences of shoplifting, for which he has been dealt with by the magistrates in a variety of ways, including, in 2001, the making of a drug treatment and testing order - an order which was revoked a few months later when a one-month sentence of imprisonment was imposed. Thereafter, he continued to shoplift. During 2002 and early 2003, a community punishment order, a community rehabilitation order and then sentences of imprisonment, the longest of which was three months, were imposed. In the autumn of 2003, he continued to shoplift, having a knife with him on one occasion, and sentences of seven days' imprisonment and by way of a deferred sentence were passed. It was against that background that these offences were committed in September 2003. 13. A pre-sentence report obtained for magistrates in relation to offences of theft in September 2003 assessed the risk of him reoffending as high and continuing to remain high unless he addressed his drug addiction. An addendum to that report in January 2004 said that there was a high risk of reoffending if the defendant, who at that time had stopped taking drugs, reverted to his old ways when back in the community. 14. On Afonso's behalf, Miss Gibbs stresses the plea of guilty at the earliest opportunity, the absence of drugs convictions from the appellant's record and the continuing drug-free state of the appellant in prison. She says that the appellant made no profit from these dealings, which were prompted by his addiction, though she accepts, of course, that he dealt with two different kinds of Class A drugs. She points out that, because the appellant had himself been an addict for some three years, that is to say addicted to crack cocaine, he knew a number of suppliers and therefore it is unsurprising that he sought, for others in the supplies which he made to these officers, a number of different sources of the drugs. She points out the relatively short period over which these drugs were supplied; though it is to be observed that they were supplied on virtually a daily basis. It is also apparent, both from Miss Gibbs' submissions and from the evidence in relation to the appellant's dealings with a man in a Mitsubishi motorcar, that the appellant was close to at least one source of supply. 15. Miss Gibbs contrasts the present case from Djahit , on the basis that there was no money in the appellant's possession, nor did he have any drug-dealing paraphernalia. She referred the court to Beevor [2001] 2 Cr App R (S) 362, where a sentence of five years was reduced to four in relation to an appellant who had pleaded guilty to supplying heroin. He was an addict who had supplied two different drugs - heroin and cocaine - and he had stocks of both. His supplies were not limited to undercover police officers. 16. With the assistant of Mr Magee on behalf of the prosecution, Miss Gibbs referred the court to the sentences passed on others with whom the appellant was involved. They were sentenced by a different judge. They were Abdezade, who received four years, having pleaded guilty on the day of trial; Pinto, who received four-and-a-half years after a trial in relation to the supply of heroin; and Thomas, who had a crack house in relation to the activities from which he pleaded guilty and was sentenced to a term of five-and-a-half years' imprisonment. Mr Magee accepts that all those three were higher in the chain than this appellant. 17. Mr Magee, in a written skeleton argument, helpfully referred the court to a number of pertinent authorities about which we shall pass a few observations. 18. Djahit , to which reference has already been made, was an addict who had a stock of drugs, both at his flat and on his person, and he was in possession of a list of names and addresses, running to some ten pages. 19. Twisse was dealing from home in Class A drugs, both heroin and cocaine, and did so for a period of months; and it is implicit, if not express, that he held stocks of drugs. He was addicted to heroin. He had a previous conviction for supplying drugs and he was subject to a conditional discharge in relation to a drugs offence at the time when he came to be sentenced. 20. Iqbal , [2000] 2 Cr App R (S) 119, had a stock of cocaine and he was not an addict. Four-and-a-half years was said to be the upper limit of what could be described as the existing tariff in relation to him. 21. Day , [2000] 2 Cr App R (S) 312, supplied cocaine, but he was also in possession of cannabis and ecstasy, and he was not an addict. 22. Barnett , [2003] 1 Cr App R (S) 102 , was not an addict. He had previous convictions in relation to Class A drugs. He was on licence at the time of the offences and he did not make his plea at the first available opportunity. 23. Cargill , [1999] 2 Cr App R (S) 72, had a stock of crack and was "trying to make a living". He was not an addict and he behaved dangerously on arrest. 24. Devaney , [2002] 1 Cr App R (S) 478, supplied others in addition to police officers. He received orders on his mobile telephone. He had no previous convictions in relation to drugs but was described as a "career criminal". He was not addicted. He was on licence for other matters at the time of the relevant offences. 25. The submission which is made by Miss Gibbs, from which Mr Magee rightly does not dissent, is that, particularly in the light of the sentences passed on the other related defendants to which we have referred, a sentence of five years passed on this appellant was too long. We agree. That sentence is quashed and the appeal allowed in relation to all the five-year sentences of imprisonment in relation to heroin and crack cocaine. In substitution for those periods of five years the sentence will be one of three-and-a-half years' imprisonment concurrently in each case and concurrently also with the three-year sentence imposed for the offence of being concerned in supplying heroin. To that extent, his appeal is allowed. 26. We turn to Sajid. He was born in December 1979 and so is not quite 25. On 27th February 2004, at Warwick Crown Court, he pleaded guilty to a number of offences, for which he was sentenced by His Honour Judge Coles QC on 7th April 2004. They were four offences of supplying heroin and three of supplying cocaine. The sentence passed on each count concurrently was one of three years three months' imprisonment. Orders were also made under section 27 of the Misuse of Drugs Act 1971 . He appeals against sentence by leave of the single judge. 27. A co-accused called Jamil, who pleaded guilty to counts of supplying heroin and cocaine - the same counts to which the appellant had pleaded guilty - was sentenced to four years' imprisonment on each, that four years to run consecutively to a period of two months imposed for breach of licence. 28. The facts were that, in the autumn of 2003, an undercover operation was mounted in Leamington Spa targeting drug dealers. The appellant and Jamil at that time lived in Birmingham and went daily to Leamington Spa for the purpose of dealing in drugs. 29. On 17th September, the officers telephoned a mobile number used by the appellant and Jamil and were told to go to a field, where they met Jamil, the appellant and another man. In consequence, Jamil supplied the officers with £20 worth of heroin and was seen to have six or seven more wraps in his possession. 30. The next day, the 18th, the officers met the men again at the same place and this time the appellant supplied £20 worth of heroin and crack. 31. On 20th September, by arrangement, the officers went again to the same place and again met the same people. This time the appellant supplied them with £10 worth of crack and Jamil supplied £10 worth of heroin. 32. On 2nd October, the officers met the men again in a car park. Jamil supplied them with crack and another unknown man supplied them with heroin. The officers paid Jamil £20 and again on this occasion saw that he had further wraps in his possession. 33. On 17th December, the appellant was arrested. He admitted in interview handing packages to the officers on 18th and 20th September, but at that time claimed not to know what was in them. 34. In passing sentence, the learned judge said that the appellant and his co-accused were fully aware of what they were doing, namely supplying Class A drugs on a commercial basis. The learned judge drew attention to the fact that it was not the first time that Jamil had been before the court for drug offences, that he had a poor record and, indeed, was in breach of licence at the time these offences were committed. The appellant, the judge accepted, had become addicted to drugs when at a particularly low period in his life. He did not, as the judge said, have as bad a record as Jamil and had no previous history of drug-related offending. He was now drug free and there was an impressive letter in support of him from a prison officer. In all the circumstances, the judge said, he should receive a lesser sentence than Jamil. To the records of the appellant and Jamil we shall in a moment return. 35. There was a pre-sentence report on the appellant indicating that the offences were committed whilst he was abusing drugs, but as he had, apparently, by the time of the report in March 2004 ceased drug use, there was only a medium risk of him reoffending. 36. The submission which is made by Mr Smith on behalf of Sajid is directed primarily to the disparity of the sentence passed upon this appellant when compared with the four-year sentence passed upon Jamil. The appellant is still, it appears, drug free in prison. Mr Smith stresses that this was not a case of the appellant making any commercial gain. 37. Mr Munro, on behalf of the prosecution, accepted that the Crown had always regarded Jamil as playing the greater role in these activities when compared with the appellant. 38. Bearing in mind that two Class A drugs were supplied and that Jamil on at least one occasion had a stock of drugs in his possession, the sentence of four years in relation to him may well have been a lenient one. But, in our judgment, the argument based on disparity is well founded. There are several reasons why the sentencing judge ought, in our judgment, to have drawn a greater distinction than he did between this appellant and Jamil. They include the fact that the appellant had only one previous conviction, for which he had been conditionally discharged, and he had no previous convictions in relation to drugs. Jamil, on the other hand, had on five occasions been convicted of possessing drugs, which included, in October 2002, heroin. Also, over a seven-year period, Jamil had many other convictions for dishonesty, violence and the possession of weapons. He had lost his liberty on several occasions, the longest sentence being for a total of three years, from which he had been recently released and was on licence at the time of the present offences. Furthermore, as we have said and as the prosecution accept, the appellant's role in these activities was subsidiary to that of Jamil. 39. Taking into account also that the only people shown to have been supplied by the appellant were police officers, that he is now drug free, and all the other circumstances of the case, we allow his appeal by quashing the sentences of three years and three months' imprisonment imposed concurrently by the learned judge and substituting for them sentences of two-and-a-half years' imprisonment concurrently in relation to each count. 40. We turn to Andrews. He was born in July 1978, is therefore 26 years of age, and he was of previous good character. On 3rd March 2004, at Bury St Edmunds Crown Court, he pleaded guilty on rearraignment and, on 14th May 2004, he was sentenced by His Honour Judge Holt to five years' imprisonment concurrently on each of five counts of supplying cocaine. Orders again were made under section 27 of the Misuse of Drugs Act 1971 . He appeals against sentence by leave of the single judge. 41. The facts were that, in July 2003, an undercover operation was mounted by police officers targeting drug dealers, particularly those dealing with crack cocaine, in Ipswich. Two officers made contact with the appellant, and on five separate occasions, between 22nd July and 29th July, he supplied a total of 2.8 gms in exchange for £240. 42. On the first occasion, the appellant asked the officers to follow him slowly, and, eventually, he retrieved a bag from its hiding place in some weeds. From it he took two wraps, which he sold to the officers for £40. The officers noted that there were a number of other similar cellophane wraps in the bag. The officer asked the appellant for his mobile telephone number, which he gave, and he also told the officers that he was known as "Doggy". Other purchases were made following contact by the officers over the mobile telephone. 43. On 31st July, he was arrested at his home address and a mobile telephone was recovered. He said in interview that he was from Sierra Leone and had lived in Ipswich for about two years. He confirmed that the telephone was his, but at that stage denied supplying drugs. He claimed as part of his basis of plea that he had not supplied anyone other than the undercover police officers; but, as we have already said, the stock which he had demonstrated his ability to supply others. He was a user of crack cocaine. 44. There had been a telephone call on 23rd July (which it will be recalled is, between the dates of 22nd and 29th, when dealing took place) when he had told the officers he did not want to deal. But, as we have said, he did in fact supply the officers thereafter. The prosecution did not accept, for obvious reasons, that he only supplied drugs to undercover officers. 45. In passing sentence, the judge said that there had been five supplies over a seven-day period; these were examples of his criminality and it was clear that he was a commercial trader with access to considerable stock. He had not pleaded guilty at the earliest opportunity, but his good character was in his favour and regard was paid to a pre-sentence report in March 2004, which assessed the risk of him reoffending as low. The judge said that the number of offences and their clear commercial nature could not be overlooked. 46. On Andrews' behalf, Mr Goodman seeks to explain the plea of guilty on rearraignment by reference to difficulties in relation to disclosure and the audibility of certain tapes which had to be examined. 47. As was pointed out to counsel in the course of his submission, a defendant who defers admitting his guilt until such time as he has been able to investigate the strength of the prosecution case, when he has had the opportunity at an earlier stage of showing his remorse by pleading guilty in the knowledge of what he has done, cannot expect the same discount for a plea of guilty as one who pleads guilty at the earliest opportunity. 48. Mr Goodman draws attention to the industry which, in the period between his incarceration in May and the middle of August, the appellant has shown by achieving a variety of certificates in prison in relation to self-help and substance and alcohol awareness. He has also been awarded a certificate in relation to Desktop Publishing. 49. Mr Goodman stresses that no drug paraphernalia was found when Andrews' home was searched; that the total sale price of the drugs supplied to these officers was the comparatively modest figure which we earlier identified; and that the appellant is now drug free and is of previous good character. He is also, apparently, HIV positive. 50. On behalf of the Crown, Miss Dineen pointed out that, when interviewed, the appellant was shown a photograph which depicted the appellant, among others, but he at that stage denied that he was 'Doggy' and made no comment. She also draws attention to the circumstances of the first supply, indicating, as we have already said, that the appellant had a stock of drugs for supply to persons other than the police officers who made statements about these matters. 51. Taking all the circumstances which we have identified into account, we take the view that the sentence of five years imposed by the learned judge did not sufficiently reflect the appellant's plea of guilty, albeit late, his good character and the aspect of his addiction to which we have referred. Accordingly, Andrews' appeal is allowed. The sentence of five years imposed concurrently on each of the five counts of supplying cocaine is quashed. There is substituted for it a sentence of four years concurrently on each count.

2004_09_09-319.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/2342/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/2342

557f2fe5bc9c58244c1ca3a62ddec811a8f388eeb8065491308805576cde9efc

[2017] EWCA Crim 850

EWCA_Crim_850

2017-06-07

crown_court

Case No: 2017/0510/A3 Neutral Citation Number: [2017] EWCA 850 (Crim) IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday 7 June 2017 B e f o r e : LORD JUSTICE HICKINBOTTOM MR JUSTICE HOLROYDE THE RECORDER OF BIRMINGHAM HIS HONOUR JUDGE INMAN QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A WILLIAM ALFRED ROGERS - - - - - - - - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph Notes of Wo

Case No: 2017/0510/A3 Neutral Citation Number: [2017] EWCA 850 (Crim) IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday 7 June 2017 B e f o r e : LORD JUSTICE HICKINBOTTOM MR JUSTICE HOLROYDE THE RECORDER OF BIRMINGHAM HIS HONOUR JUDGE INMAN QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A WILLIAM ALFRED ROGERS - - - - - - - - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph Notes of WordWave International Limited trading as DTI 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Miss S Duckworth appeared on behalf of the Appellant The Crown did not appear and was not represented - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE HOLROYDE: There is in this case a young witness who is entitled to the lifelong protection of section 45A of the Youth Justice and Criminal Evidence Act 1999 . Her name must accordingly be anonymised in any report of these proceedings. 2. This is an appeal by leave of the single judge against sentences totalling three years' imprisonment for two offences of breach of a Sexual Offences Prevention Order, contrary to section 113(1)(a) of the Sexual Offences Act 2003 . The appellant, William Rogers, who was born on 25th September 1951 and so is now 65 years old, has appeared before the courts on many occasions. He has previously been convicted of 98 offences. Thirty-eight of those offences have been sexual offences, directed against both adults and children. In 2009 he was convicted of 15 offences of making indecent photographs of children. He was made subject to a community order with a number of requirements and was also made subject to a Sexual Offences Prevention Order ("SOPO") of indefinite duration. He failed to comply with the terms of the community order, committed two offences of breach of the SOPO and committed further offences involving indecent photographs of children. As a result of those various matters he was sentenced to a substantial term of imprisonment. 3. Following his release from that sentence, the SOPO of course remained in force. It was amended in July 2014 in order to clarify its terms. In its amended form it prohibited the appellant from: "1. Having any unsupervised contact of any kind with a child under 16 years other than: (i) such as is inadvertent and not reasonably avoidable in the course of lawful daily life; (ii) with the consent of the child's parents or guardian who has knowledge of his conviction. 2. Using any device capable of accessing the internet unless: (i) it has the capability to retain and display the history of internet use and (ii) he makes the device available on request for inspection by a Police Officer. 3. Deleting such history. 4. Possessing any device capable of storing digital images unless he makes it available on request for inspection by a Police Officer." 4. In April 2016 a police officer involved in monitoring the SOPO visited the appellant's home. When asked to show the officer any devices capable of accessing the internet the appellant produced two mobile phones and a computer tower. Examination of those devices did not reveal any cause for concern. The appellant however did not disclose that he was also in possession of a laptop computer. That failure was a breach of the SOPO. 5. This offence first came to light because a man who had been engaged by the appellant to repair the laptop reported to the police that he had found on it a video clip of a woman urinating, which had been recorded by the appellant using a camera covertly installed in his bathroom. 6. In early July 2016 the appellant was arrested for that first breach of the SOPO and he pleaded guilty to that offence at an early stage. 7. Then in August 2016, whilst on bail for the first offence, the appellant committed the second breach of the SOPO. He was at that time in a relationship with a woman to whom we shall refer as Miss B. She was aware of some of his previous convictions but not aware that he was subject to the restrictions in the SOPO. Miss B had at the time a 10-year-old daughter, to whom we shall refer as S. S did not live with her mother and was under the care of a guardian. 8. The offence was committed when the appellant drove Miss B to visit her former partner at a prison. Also in the car were S and Miss B's 19-year-old brother. Neither the brother nor S's guardian knew anything about the appellant's criminal record. The appellant had said nothing to any of them about the restrictions to which he was subject. 9. Upon their arrival at the prison, Miss B went inside to make her visit. The appellant remained in the car with Miss B's brother and with S. A time came however when the brother left the car for a few minutes in order to make a phone call. He did not move far away, but his back was to the car whilst he was using his phone and the appellant was thus left unsupervised in the company of S. There was no allegation that the appellant did anything towards S but he was plainly in breach of the SOPO. To this second offence he belatedly pleaded guilty on the day set for his trial. 10. A pre-sentence report assessed the appellant as continuing to pose a high risk of harm to women and children. The author of the report regarded these offences as "indicative of ongoing deviant sexual issues and the willingness to breach measures designed to manage his risk of further offending." 11. The appellant came before His Honour Judge Newell sitting in the Crown Court at Preston on 3rd January 2017. In his careful sentencing remarks the learned judge rejected a submission that the court could and should impose a sentence aimed at rehabilitation. He said: "In the 48 years that have elapsed between your first and last sexual conviction (1968 to 2016), every part of the criminal justice system (and every sentence available to them) has made endeavours to try and, either deter you, or rehabilitate you, all without success." The judge went on to note that the second offence had been committed whilst the appellant was on bail for the first. As to that second offence, he observed that although the appellant was only alone with S for a very short period of time, the appellant "knew full well that that was not permitted and yet you made no disclosure to anybody, in respect of your previous convictions, the sort of disclosure that any reasonable and sensible parent, or guardian, or supervisor, would have expected." 12. The judge accepted the assessment of the author of the pre-sentence report to which we have already referred. He concluded: "In those circumstances, I cannot (and do not) consider any rehabilitation, I consider deterrence is limited, that your sexual offending is ingrained and will persist and the only sensible conclusion is to try and protect the public (and particularly children) from you, for such period of time as is available to me." Giving credit for the guilty pleas and having regard to the times at which they were entered, the learned judge sentenced the appellant to 30 months' imprisonment for the first breach and to a consecutive term of six months' imprisonment for the second breach. Thus the total sentence was one of three years' imprisonment. 13. The maximum penalty for the offence of breaching a SOPO is five years' imprisonment. There is, as yet, no definitive sentencing guideline applicable for such breaches. In her well-focused submissions on behalf of the appellant, for which we are grateful, Miss Duckworth submits that the sentence of 30 months for the first offence, implying a sentence after trial of 45 months, was simply far too high. She makes no specific complaint in relation to the consecutive term of six months' imprisonment for the second offence, but argues that the total of three years was much too high. 14. We have reflected upon those submissions. In our judgment the first offence was a serious breach of the SOPO. True it is that when the laptop computer was examined there were no unlawful images of children and the only material found on it which gave rise to concern was the recording of the woman urinating. There had nonetheless been a quite deliberate withholding of that laptop when the appellant had lawfully been required by the police officer to make all relevant devices available for inspection. In the lower court some reliance was placed on the fact that the woman who had been covertly filmed had not wished to make any complaint. Miss Duckworth sensibly has not pursued that point in her oral submissions and we for our part are unable to see how it could have assisted the appellant. The woman's reticence is entirely understandable. It does not alter the fact that the appellant had been called upon to produce all relevant devices but had withheld one of them from inspection. The appellant fell to be sentenced for the breach of the SOPO, not for the covert filming. But the fact that he was willing to go to the lengths of installing a covert camera in his bathroom, and of withholding from inspection the laptop on which he had stored a recording taken by that camera, shows why the SOPO was important and shows why his breach of it was serious. 15. As to the second offence, although it was of short duration and was committed in circumstances brought about by Miss B's brother leaving the car for a short time, it was nonetheless an offence which easily could and should have been avoided. The prohibitions imposed by the SOPO were intended amongst other things to ensure that no adult would unwittingly leave a child unsupervised with the appellant. The appellant must have foreseen when driving to the prison that circumstances would or might well arise in which both Miss B and her brother might part company from him and S. It was precisely the sort of situation in which the appellant should either have disclosed the restrictions to which he was subject or have taken immediate action to ensure that he was not left alone with S. He took no such steps. 16. At this stage the court's focus must be on the totality of the sentencing rather than on its precise structure. We see some force in Miss Duckworth's argument that the sentence for the first offence was a stiff one and it was perhaps at the upper end of the range properly open to the learned judge. On the other hand, it seems to us that no similar criticism can be made of the sentence for the second offence, which might have been rather longer than it was without giving rise to any ground of appeal. 17. Overall, the learned judge had to sentence a man with a long history of offending, including for sexual offences, who had previously breached his SOPO and had not been deterred from further breaches by the prison sentence which he received in 2010. In all the circumstances of the case, notwithstanding Miss Duckworth's submissions, we are unable to say that a total of three years' imprisonment for these two further breaches was manifestly excessive. This appeal accordingly fails and is dismissed.

2017_06_07-3984.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/850/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/850

62cc7448fe66cd5a042b6cb96f5423b391e54f898539a140f041cfe2a8b71657

[2004] EWCA Crim 1294

EWCA_Crim_1294

2004-05-26

supreme_court

Neutral Citation Number: [2004] EWCA Crim 1294 Case No: 2003/1391/B4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM WOOD GREEN CROWN COURT HIS HONOUR JUDGE LYONS Royal Courts of Justice Strand, London, WC2A 2LL Date: 26 May 2004 Before : LORD JUSTICE AULD MR JUSTICE ELIAS and SIR EDWIN JOWITT - - - - - - - - - - - - - - - - - - - - - Between : ALI SED Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2004] EWCA Crim 1294 Case No: 2003/1391/B4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM WOOD GREEN CROWN COURT HIS HONOUR JUDGE LYONS Royal Courts of Justice Strand, London, WC2A 2LL Date: 26 May 2004 Before : LORD JUSTICE AULD MR JUSTICE ELIAS and SIR EDWIN JOWITT - - - - - - - - - - - - - - - - - - - - - Between : ALI SED Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr George Carter-Stephenson QC and Mr John Madden (instructed by Moss & Co ) for the Appellant Mr Peter Rook QC and Miss Kim Jenkins (instructed by Crown Prosecution Service ) for the Respondent Hearing dates : 30 th March 2004 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Auld : 1. On 28 th January 2003, before His Hon. Judge Lyons in the Crown Court at Wood Green, the appellant was convicted of attempted rape of an 81 year old woman suffering from Alzheimer’s Disease. On 7 th March 2003 the Judge imposed on him an extended sentence of 14 years’ imprisonment, pursuant to section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 , consisting of a custodial term of 10 years and an extended period of licence of 4 years. 2. The appellant appeals against conviction on five of eight grounds with the leave of the single judge, and seeks to renew the remaining three grounds that were refused by the single judge. He also renews his application for leave to appeal against sentence following refusal by the single judge. 3. The prosecution case was that the appellant had had sexual intercourse with the complainant when he knew, because of her obvious mental weakness, that she was incapable of consenting to sexual intercourse. The defence case at trial was that the appellant had had some consensual sexual engagement with the complainant, but that he had not had sexual intercourse with her or even touched her. The main issue arising in this appeal is whether the Judge rightly allowed the prosecution to put in evidence under sections 23 and 26 of the Criminal Justice Act 1988 a video-tape of a police interview of this mentally ill complainant. 4. The complainant, at the material time, lived in a care home in Tottenham. The appellant was a mini cab driver who lived in Chingford. For reasons that will become apparent, we should mention that he is an Asian and of Asian appearance. The start of the story is on 16 th April 2001, at about 9 a.m., in the front garden of a house in Chingford, where the owner of the house, Miss Jackson, saw the complainant behaving strangely. As the police were later to discover, the appellant lived only about 30 yards away. Miss Jackson called the police. The complainant told the police officer who responded to the call that she was a cleaner from Tottenham. She made some rude remarks to him, such as “How is your willy?” She continued in that vein when he took her to the police station, saying, for example “Up the front and up the back”, pointing to her groin. The officer took her to her care home, where the staff indicated that she customarily made such remarks. Throughout, the complainant spoke to the officer in disjointed sentences and did not make much sense. 5. Shortly after her return to the care home, the complainant told her niece of an incident in a park in which a man and a boy had approached her from behind. She said that one of them had opened her legs and had “put his willy in two or three times”. She also mentioned that there had been a girl present. The niece informed the police of this conversation, and they arranged for the complainant to be medically examined by Dr Gray, a police surgeon. Dr Gray. She found a tear on her vagina, which was bleeding. She also noted that the complainant alleged that she had been raped by two men 6. On 17 th April 2001, the police interviewed the complainant in the presence of another niece, recording it on video tape. By any standards, the complainant’s responses to the officers’ questions were often confused, but a strong theme following the first of a number of undoubtedly leading questions by one of the officers was that a man had “put his willy into her”. 7. We have seen the video-tape and have read the transcript of the interview. The officers opened it with some pleasantries to which the complainant responded in a light hearted, inconsequential and vague manner. Within a short time one of the officers brought her to the point with the question “Do you remember what’s happened to you in the last couple of days?”, to which she gave a very confused and incomplete account of going for a walk, but making no relevant allegation. The officer then tried to bring her back to the point, again with a leading question, referring to her medical examination the previous day, “Do you remember yesterday you went with the police lady to see a doctor?”. That produced a series of muddled and incomplete answers to questions that never got beyond the visit to the doctor. The officer tried again, this time with the question “Do you remember yesterday morning when the police found you in Chingford?”, an incident of which, at first, she appeared to have little or no memory. The officer, in an attempt to prompt it, asked her “Do you remember telling your other niece that a man had put his willy in you?”. The complainant replied in a series of somewhat disjointed answers that a white or jewish looking man, rather than a black man, had grabbed her and stuck his willy in her and that he had caught her by surprise. She then drifted off into what sounded like another incident altogether in which a man, possibly one who worked in a care home, had stolen her handbag with money in it. 8. The officer brought her back to the subject of the interview with the following question: “You said earlier that the man grabbed you, how did he grab you, can you show me?” which produced some muddled answers from her about being tired. Yet again the officer tried to bring her to point, this time by asking “Where was he when he was attacking he [sic], when he put his willy in you, where was he standing?”. The complainant replied that they had been in bed at the time. and that he “stuck it” in her four or five times, that it hurt and that she had not wanted him to do it. A few questions later, she said much the same thing again, namely that he had stuck his willy or winkie in her. There then followed a very muddled series of exchanges in which she referred to the possibility that she might have aids and of the man not wanting to take her somewhere else, and some expressions of worry about what had happened. In the course of these exchanges she referred to the man having put something, presumably his “willy”, into her “three or four times”, and said “I think he’s a bleeding animal”. 9. The complainant also spoke towards the end of the interview about a firm that looked after a home, and of a van that came from the firm, again about somebody stealing money from her handbag and about a gang of men having been involved in some way. The officers tried to establish from her whether she was saying that the man who had sexually assaulted her was the man who had stolen from her handbag, to which she eventually said yes, identifying him as a “thick big bloke”. Following some further inconsequential exchanges, the interview ended. 10. At trial, the medical experts on both sides agreed that the injury to the complainant’s vagina had been caused by a rubbing, drawing or pulling across the surface of the skin, typical of an injury caused by vaginal rape. The prosecution expert was of the view that it could not have been caused by the complainant herself, for example, by scratching herself. But the defence expert could not rule that out. 11. DNA swabs taken from the complainant revealed on examination the appellant’s DNA on her knickers, near the crotch at the back and also on an anal swab. 12. That discovery led, on 13 th June 2001, to the police arresting and interviewing the appellant in the presence of a solicitor. On the advice of his solicitor, he replied simply “no comment” to their questions. The officers did not disclose to the appellant in those questions their discovery of the DNA match, because they had not completed their investigations. 13. On 24 th July 2001, the police attempted to take a witness statement from the complainant, but all she said was: “A while ago, a naughty man was naughty to me. He was tuti fruity and wanted a bit of the other”. 14. On 25th July 2001 the police decided to re-interview the appellant, again in the presence of a solicitor to give him an opportunity to comment on the discovery of the DNA match with him. Immediately before the interview, DS Walker, the officer in charge of the case, disclosed the DNA match to the appellant and his solicitor. At the outset of the interview conducted by DS Walker and another officer, the appellant said that he did not trust the officers, and his solicitor then read a prepared statement to them. In that statement, the appellant: 1) recalled an incident in which he had met an un-named woman with whom he had had what he described as “consensual sex”; 2) complained that the police had refused to disclose the details of the incident they were investigating or the complainant’s allegations; 3) claimed that DS Walker had informed him that he was likely to be charged with attempted rape, a claim DS Walker denied; 4) maintained that, therefore, having regard to the provisions of the Police and Criminal Evidence Act 1984 and the relevant code of practice, he did not consider that the police should interview him; and 5) he had, therefore, been advised to exercise his right of silence. 15. The police nevertheless continued to question him with a view to giving him an opportunity to explain the DNA match, and also having regard to his mention in the prepared statement of the incident in which he had had “consensual sex” with a woman. In their questions they also referred to the fact that he lived only about 30 yards away from where the complainant had been found in the front garden and that it was obvious that she was not mentally sound enough to consent so sexual intercourse. To all those questions, the appellant, true to his prepared statement, remained silent. 16. On 3 rd and 4 th July 2002, some six months before the trial, the Judge heard and decided in the prosecution’s favour its application to allow it to put the complainant’s evidence before the jury through the medium of the video tape of the interview of her on 17 th April 2001, pursuant to section 23 of the 1988 Act . At the hearing two psychiatrists gave evidence as to the complainant’s condition, Dr Garner for the prosecution and Professor Hodgkinson for the appellant. As to her mental state, their evidence was at one. At the material time she was suffering from moderate to severe Alzheimer’s disease, which, as is well known, is a dementia that affects the functioning of the brain, including the memory. Sufferers tend to have a better recall of recent events, particularly if they have some emotional or physical significance. Both experts expressed the view that, at the time when she gave the video-taped interview and thereafter, she was not fit to give evidence in court owing to her dementia. They acknowledged that, in the interview, the video-tape of which they had both viewed, she was clearly speaking of a sexual incident that appeared to have been unpleasant and unwelcome to her. But they agreed that she was unreliable on the details and seemingly did not appreciate that she was being interviewed by the police as distinct from having a social conversation. They were both of the view that, given her condition she was likely to have been suggestible to at least some of the leading questions put to her and that there was a risk of her filling in gaps in her patchy memory (“confabulation”). 17. Dr Garner also gave evidence that the complainant had denied to her that she had been attacked, then had given an account of an attack long before during the war when she had been attacked by three men. The doctor concluded that, due to her mental state she was unable to give a coherent and detailed recollection of the assault in question, though she seemed to have an upsetting and emotional memory of it. The doctor did not consider her a rational witness or likely to be useful as a witness in court. 18. Professor Hodgkinson, in addition to agreeing with Dr Garner that the complainant was unfit to attend court as a witness, expressed the view that she would have been incompetent as a witness at the time she gave the interview. 19. The Judge ruled that the evidence should be admitted. He proceeded on the basis that it met the requirements of section 23 of the 1988 Act , and held: 1) it satisfied the test of competence in section 53 of the Youth Justice and Criminal Evidence Act 1999 as applied by this Court in R v. D [2002] 2 Cr App R, 36; 2) it, therefore, passed “the interests of justice” test in section 26 of the 1988 Act ; 3) it did not require exclusion on the ground of unfairness under section 78 of the Police and Criminal Evidence Act 1984 ; and 4) its admission did not violate Article 6 ECHR. 20. At the trial in January 2003 the appellant gave evidence to the following effect. He was a minicab driver. When he met the complainant he was in an emotional turmoil and had been taking sleeping tablets and anti-depressants. At about 5 a.m. on the day in question, when he was in his minicab and stationary at traffic lights, she knocked on the window of his minicab and asked for a lift. He agreed and she got into the front passenger seat. As he drove, she made sexual comments and seemed excited. He thought she wanted sexual intercourse, and she suggested that they should go to his home. He took her there and she indicated that she wanted sexual intercourse. She took her trousers and pants down. He dropped his trousers and took out his penis. He ejaculated about three inches away from her, his sperm going into her groin area and her knickers. 21. The appellant described the complainant as having been smartly dressed and looking 20 years younger than she was. At some stage of their time together they talked about his family problems and she gave him sensible advice. 22. There are eight grounds, or proposed grounds, of appeal. Six of them of them are largely overlapping challenges to the Judge’s decision to admit the video-tape of the complainant’s interview into evidence under section 23 of the 1988 Act . They may be divided into two main questions: i) whether the Judge should have considered the competence of the complainant as a witness on the issue of the admissibility under section 23 of her answers in the video-taped interview, and, if so what test he should have applied ( grounds 1 –3); and ii) whether the Judge, in deciding to admit her evidence in that form acted fairly in the sense of applying “the interests of justice” test in section 26 of the 1988 Act , and of fairness under section 78 of the 1984 Act and in accordance with Article 6 of the European Convention of Human Rights (grounds 4, 6 and 7). Ground 1 - “Competence” as an ingredient of admissibility under section 2 ? 23. Sections 23 and 26 of the 1988 Act provide for the admissibility as evidence of certain documents as exceptions to the hearsay rule, and specify criteria for a judge when considering whether to admit any particular document into evidence. Section 23 is concerned with the threshold question of admissibility, and section 26 is concerned with whether, as a matter of justice in the individual case, a document should be admitted into evidence. By virtue of Schedule 2, paragraph 5, to the 1988 Act , a “document” for this purpose includes a video-taped interview. 24. Section 23 provides, so far as material, that “a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible” if that person is “by reason of his bodily or mental condition unfit to attend as a witness”. It should be noted that the section says nothing about the competence of the maker of the statement when he made it, and refers only indirectly to his competence, in a broad sense of that word, at the time of trial having regard to his unfitness to attend it because of his physical or mental condition. Section 26 provides, so far as material, that a section 23 statement, if made for the purpose of a pending or contemplated criminal proceeding, requires the leave of the court for admission of it into evidence, and that such leave shall not be given unless the court: “is of the opinion that the statement ought to be admitted in the interests of justice”. Section 26 further provides that, in considering that question a court should have regard: “(i) to the contents of the statement; “(ii) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused …; and (iii) to any other circumstances that appear to the court to be relevant.” 25. Mr George Carter-Stephenson QC, on behalf of the appellant, submitted that section 23 contains a threshold condition as to competence of the witness whose statement it is sought to admit as hearsay, and he complained that the Judge wrongly declined to consider competence as part of the section 23 test. He said that, as section 23 only applied to evidence of “any fact of which direct oral evidence by him would be admissible”, unless the complainant was competent when interviewed on video-tape, section 23 could not apply to that evidence. He submitted, therefore, that competence was a pre-condition of admissibility under section 23 and that the Judge should not have followed the observations of this Court in R v. D that it was simply a relevant consideration to the exercise of his discretionary jurisdiction under section 26 because they were obiter and wrong. 26. Mr Peter Rook, QC, for the respondent, submitted that section 23 does not itself require, as a condition of admissibility, that the maker of a statement in a document should be competent at the time of making it or at the time of trial. Rather, it was a highly material matter for the court’s consideration under section 26 whether it was in the interests of justice to consent to the admission of the statement. He maintained that the competence test applied to the giving of oral evidence by witnesses at trial, not as to whether hearsay evidence in lieu of it in the form of a document was admissible under section 23 . He pointed out, for example, that a judge considering the admissibility of such hearsay evidence, say in written form, does not have to satisfy himself that the maker of the statement understood the nature of the oath or appreciated the nature of the proceedings, as formerly required for live evidence: see e.g. R v. Hill (1851) 2 Den 254; R v. Dunning [1965] Crim LR 372 and R v. Bellamy [1986] 82 Cr App R 222 . And he prayed in aid the reasoning of this Court in R v. D, 27. The Judge appears to have been content to proceed on the basis that section 23 had nothing to do with competence of a witness, that the proper approach was that indicated in R v. D , namely via section 26 of the 1988 Act and/or section 78 of the 1984 Act and/or Article 6, and that the proper statutory peg for consideration of that issue was to be found in section 53 of the 1999 Act (which had come into force on 24 th July 2000, but did not govern proceedings like this, instituted before that date). He acknowledged that, on the evidence, the complainant would have been unfit to give evidence in court at the time of the video-taped interview and that she was still unfit to do so at the time of trial. But he said that it did not follow from that unfitness that she was an incompetent witness when considering whether her evidence in that form could be put before a jury. 28. In R v. D, as we have said, the primary issues on which the Court appears to have decided the matter were as to the propriety of the trial judge’s reliance on the section 26/section 78/Article 6 interests of justice and fairness test. Waller LJ, giving the judgment of the Court said, at paragraph 35: . “We are doubtful whether, on the proper construction of section 23 a question of competence arises under that section. We suspect that … [counsel for the appellant] places too much weight on the words ‘as evidence of any fact of which direct oral evidence by him would be admissible’. Furthermore, since any statement which is made for the purpose of pending or contemplated criminal proceedings … will, unless it is taken in accordance with certain statutory provisions, be the subject of section 26 and thus admissible only with the consent of the court, it seems unlikely that any question of competence was intended to rise under section 23 . There is however no necessity to reach any final conclusion on that point because clearly section 26 applies in the instant case and because even if section 26 did not apply and some issue of competence or reliability did arise, then section 78 would almost certainly be applicable.” 29. In our view, section 23 has nothing to do with competence, either in its terms or in its purpose. It was designed, and its function remains, to render admissible at trial in certain circumstances and as an exception to the hearsay rule, a statement of a person in a document, when that person is “by reason of his bodily or mental condition unfit to attend [the trial] as a witness”. As such it is the first of a two stage exercise provided by the Act, because, even though “admissible” under section 23 , whether in any case a court will, as a matter of justice, admit the evidence in that form falls to be determined on a number of quite different criteria. 30. In 1988 when section 23 first took effect competence was a quite separate matter governed by the common law. It was a condition for determination as a matter of a matter of fact by the judge after examination of the witness and/or after hearing medical evidence about him in the presence of the jury. As Mr Rook rightly observed, the test was whether the witness understood the nature of the proceedings and appreciated that the taking of the oath involved something more than a duty to tell the truth in ordinary day-to-day life, not whether his evidence might be unreliable, which was a matter for the jury. That is, it was an exercise conducted at trial, often with the potential witness giving evidence, with a view to determining whether, by reason of his mental condition, he was fit to be a witness at all, not as to whether his evidence might be given by some other means. 31. Section 23 from its inception has had a wholly different concern from that of competence, namely the potential preservation of a person’s evidence notwithstanding that he was or might be unable to attend trial to give it. The provision could not, in any event, have provided a means of assessing the competence of a witness at the time of making of a written statement or of giving a video-taped interview, still less of doing so as then required by the common law, before a judge and jury, the very thing section 23 was designed to avoid in the circumstances for which it provided. Put in another way, the court, in its application of the section, assumes that the maker of the statement was “competent” in that broad sense at the time he made it. Its concern is only with whether his mental (or physical) condition at the time when it becomes necessary to consider its admission renders him unfit to attend trial as a witness. 32. Even if, by reason of the 1995 amendment permitting evidence to be given in the form a video-taped interview, there were now scope for a judge and jury to embark upon the old common law examination as to competence, it would be a needlessly complicating addition to the section 23 exercise, which is concerned only with the admissibility of documentary hearsay, not with whether such evidence should in the circumstances of the case be admitted. As Waller LJ observed in R v. D, the 1988 Act , in section 26 , provides a court with a second stage and separate means of considering matters, both as to competence in a broad sense and as to reliability when considering whether, in justice, to admit the hearsay evidence; but so also does section 78 of PACE and, if all else fails, Article 6 of the European Convention of Human Rights.. 33. Accordingly, we reject the first ground of appeal. Ground 2 - The test of competence 34. It follows from our view that competence in its common law, or any, form was not a matter that engaged the application of the test of admissibility under section 23 , but that notions close to it were and are capable of being relevant considerations as to admission of section 23 hearsay under section 26, section 78 of PACE and Article 6. The question is, what test of competence was appropriate to evidence in the form of a documentary statement admissible under section 23 made - as in this case - before the coming into force on 24 th July 2002 of section 53 of the 1999 Act ? Section 53 changes the common law in three main ways. First, it applies the test throughout the criminal process, not just at the stage of trial. Second, it presumes that everybody is competent to give evidence, though as we have indicated, so does section 23 as far as it goes. Third, in identifying factors that may rebut that presumption, it requires a different level of competence from that of the common law, namely an ability on the part of the potential witness to understand questions and to give answers to them that are understable – in short, intelligibility. Thus, it provides, that “[a]t every stage in criminal proceedings all persons are (whatever their age) competent to give evidence” unless in the case of any such person “it appears to the court that he is not … able to – (a) understand questions put to him as a witness, and (b) give answers to them which can be understood”. 35. In R v. D the Court faced a similar problem to that here, an 81 year old woman complainant who suffered from Alzheimer’s disease, who gave an account in a video-taped interview of an indecent assault on her by the appellant. There too the prosecution sought to rely on sections 23 and 26 of the 1988 Act to put her evidence in that form before the court at the trial. There too the defence raised the issue of her competence, maintaining that because of her mental condition she was incompetent when she gave her account on video-tape, so that section 23 could not render her evidence admissible in any form. In the alternative, the defence relied on section 26 of the 1988 Act and/or section 78 of PACE and/or Article 6. The trial judge anticipated the coming into force of section 53 of the 1999 Act by applying its criteria, both to the issue of admissibility under section 23 and to its admission under section 26 . On that approach, and having seen the video and having heard medical evidence as to complainant’s mental state, he held the evidence admissible under section 23 and ruled that it should be admitted in the exercise of his discretion under section 26 . 36. On appeal to the Court of Appeal, the Court, as we have indicated, were doubtful whether the issue of competence, in whatever form, engaged section 23 . However, the Court took the view, that it did not need to decide that matter since the issue arose in any event at the section 26 stage and, if necessary also by recourse to section 78 of PACE and/or Article 6. On that approach, it too applied the then still to be introduced section 53 test of competence and held that the Judge had rightly admitted the evidence in the exercise of his discretion under section 26 . In doing so, it acknowledged that the notion of competence is a highly material circumstance when considering the interests of justice under section 26 , but drew back from attempting to define it for the purpose, other than to express the view that the Judge’s recourse to the future section 53 criteria was an acceptable way in which to exercise its section 26 discretion. Waller LJ said: “37. As regards the appropriate test of ‘competence’ or ‘reliability’ the test applicable to a live witness cannot, as it seem to us, be the appropriate test. In relation to any statement, or as in this case a video, the judge is not going to be in a position to examine the witness to see whether the witness understood or understands an oath and indeed the witness will not have actually been on oath in making the statement or at the time when the video is recorded. Furthermore we have put ‘competence’ and ‘reliability’ in quotation marks because it seems to us that there is in reality no reason to lay down criteria as to competence. Indeed, it would be inappropriate to seek to lay down criteria as to competence which might be thought to have to apply across the board when a court is considering any statement or any video which might fall within section 23 but which falls also to be considered under section 26 . In our view there is no reason to go beyond the language and the direction under section 26 . The question for the court is whether a statement ought to be admitted in the interests of justice, and in considering that question the duty on the court is to have regard (i) to the contents of the statement; (ii) to the risk having regard in particular as to whether it is likely to be possible to controvert the statement of the person making it if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused ….; and (iii) any other circumstances that appear to the court to be relevant. 38. Obviously one circumstance to which a court will have regard when considering the admissibility of a video, as in this case, is the ‘competence’ or ‘reliability’ of the witness being videoed. That by no means requires the judge to apply the test which he would apply to a live witness. The test applied by the judge in this case by reference to section 53 ….is a sound test. Does ‘B’ seem to have been able to understand the questions being put to her and was ‘B’ giving answers which could be understood.” 37. The Judge in this case, as we have said, followed that approach, holding that the criteria of admissibility under section 23 were satisfied, in particular that the complainant was unfit to give evidence through mental disability. He said: “…It is agreed she is unfit to give evidence at court now. Given the slow process of this deteriorating disease, what was her position in April [i.e. at the time of her video-taped interview] It would appear that both experts believe that she was in much the same condition then, unfit to come to a court and deliver that particular evidence and, I would add, be subject to cross-examination, whether it be by TV link or otherwise. Does that, therefore, mean this lady is not a competent witness to be given to the jury? The answer is no. The case of R v. D has … [indicated] that the test in section 53 of the Youth Justice and Criminal Evidence Act 1999 is an appropriate one to use. … That is the test by which I must judge whether this lady is competent and therefore, that I could admit the evidence which is otherwise relevant. It is clear from the interview itself, and also from the evidence of both doctors, that the lady clearly does not always give what might be considered logical or appropriate answers to questions. However, it is perfectly clear at the simple level – what is your name, how old are you – she has an understanding and replies properly. It is also clear that she has a reasoning ability beyond that. … … It is clear to me that in parts this lady is entirely competent as to that test, and sufficiently so for a jury to evaluate her evidence. ….” 38. Mr Carter-Stephenson submitted that neither this Court in R v. D, nor the Judge below, should have applied the section 53 test in advance of it taking effect. His concern was more than temporal. He maintained that the section 53 test prescribed a lower level of competence than had the common law, the test that must have been contemplated by Parliament as a necessary safeguard when enacting section 23 of the 1988 Act . The new test, he submitted, was devoted only to understanding, not to capability or reliability of a witness, whereas the old common law test called for an awareness of the truth and the importance of telling it. Moreover, it was only one of a number of circumstances for consideration under section 26 . 39. Mr Rook submitted that the Court in R v. D was entitled to take the view that a judge, as part of the exercise of his discretion under section 26 , could have regard to, as distinct from being bound by, the test of competence in section 53 on the question whether it would be in the interests of justice to admit such a video-taped interview into evidence. One relevant matter in cases such as this was whether courts should make it easier than it had been in the past for vulnerable witnesses to give evidence, provided that its admission and the manner of its admission should not unfairly prejudice a defendant’s trial. 40. There are two points to make about these competing submissions. First, as we have said, and as the Court discussed in R v. D , there was no test of competence at common law that could engage section 23 . That was because they provided for two entirely different regimes, the former for assessing the competence of a person on his appearance as a witness at trial, the latter for determining the admissibility of a documentary statement because, by reason of his mental condition he is unfit to attend and give evidence at trial. The second point is that, even before section 53 took effect, its formulation of a new notion of competence was a reasonable, though not obligatory, approach for a judge to adopt when considering, as part of its section 26 exercise of discretion whether to admit the hearsay evidence, the degree of mental unfitness, whether at the time of making the witness statement or at trial. And that is how the Court in R v. D and the Judge in this case dealt with it – an appropriate, but not obligatory circumstance to take into account in the exercise of its section 26 discretion. In our respectful view, the Court was correct in its approach in this respect in R v. D and the Judge was, in the circumstances, entitled also to adopt the section 53 formulation in exercising his discretion under section 26 . Accordingly, we also reject this ground of appeal. Ground 3 - The correctness of the Judge’s finding of competence within the meaning of section 53 ? 41. The Judge held, following his viewing of the video-taped interview of the claimant and hearing the largely common evidence of Dr. Garner and Professor Hodgkinson that the complainant was a competent witness, applying the section 53 test. In so holding, he did not find that she understood all the questions put to her or that all her answers were understandable, but that she understood, and was understood in part, sufficiently for a jury to evaluate her evidence. 42. Mr Carter Stephenson made a number of broad submissions which, on the Court’s own viewing of the complainant’s video-taped account, are not - in their breadth - borne out. He submitted, for example, that she “was not aware of the nature and/or the purpose of the questions asked”; was not able to understand the questions asked of her”; “was not able to give answers which could be understood in their context or which could be relied on”. In our view, which was also that of the Judge, the video-film of her interview shows that she did have some appreciation of why she was being questioned, namely about a man who had recently done something to her, namely sticking his penis into her in an unpleasant way, a matter to which she referred a number of times during the interview. Whilst she did not always answer the question put to her and sometimes rambled off into other occurrences and places involving other people, her reference to such sexual assault by a man was a strong theme in her discourse with the officers. Sometimes her answers were hard to understand or bore little relation to the question asked, but at the end of the interview, the abiding picture was of a woman whose account and responses to questions were somewhat patchy, but who was nevertheless complaining repeatedly of a particular recent sexual assault by a man in which he had stuck, or had tried to, stick his penis into her more than once and that she had not liked it. 43. Mr Carter-Stephenson nevertheless, submitted that the complainant’s account could not be competent in the section 53 sense for a number of reasons. 44. First, he submitted that the complainant was not fully aware of the nature and purpose of the questions. But that, insofar as it relates to the purpose of the questions, is in part, the old common law test of competence, which, for the reasons we have given, does not engage section 23 and does not feature in section 53 of the new Act. 45. Mr Carter-Stephenson’s second point was that, unless the complainant understood all the material questions put to her and all her material answers were understandable, she could not qualify as competent within the terms of section 53 . It should be noted that section 53 does not, in terms, provide for 100% mutual comprehension of material exchanges giving rise to potential evidence. And, in our view, depending on the length and the nature of the questioning and the complexity of the matter the subject of it, it may not always require 100%, or near 100%, mutual understanding between questioner and questioned as a pre-condition of competence. The Judge should also make allowance for the fact that the witness’s performance and command of the detail may vary according to the importance to him or her of the subject matter of the question, how recent it was (in this case the interview took place within two days after the alleged attempted rape) and any strong feelings that it may have engendered. 46. It is thus for the judge to determine the question of competence almost as a matter of feel, taking into account the effect of the potential witness’s performance as a whole, whether there is a common and comprehensible thread in his or her responses to the questions, however patchy – bearing always in mind that, if, on critical matters, the witness can be seen and heard to be intelligible, it is for the jury and no-one else to determine matters of reliability and general cogency. 47. Mr Carter-Stephenson’s third point was that the Judge could not, on the evidence, have properly concluded that the complainant had demonstrated an ability to give logical answers to the questions put to her. The Judge, in his ruling, noted and gave an example of the complainant’s demonstration of a logical sequence in her thought-processes in response to the officers’ questions. However, Mr Carter-Stephenson submitted that the Judge was not equipped to reach such a conclusion because he lacked the “signposts” that might have been provided by effective cross-examination of the complainant during the course of her video-interview both as to her competence and her account, and of evidence from experts who had examined her at the time of the interview who had been provided with all relevant background material. In our view, Mr Carter-Stephenson, in seeking to deny the Judge an ability in a section 23 exercise to determine the issue of competence – of intelligibility – for want of the trappings of a trial, was wrongly to credit him in that exercise with the task of the jury, whose function, it would be to consider the reliability and other cogency of her evidence. 48. In our view, the Judge’s approach to the issue of competence in the sense that he took it from R v. D was entirely justified for the reasons given by the Court in that case. And on the facts of this case, we are also of the view that the Judge was entitled, for the reasons he gave, to form the view he did as to the complainant’s competence, as distinguished from her reliability. Indeed, for the reasons we have just given in response to Mr Carter-Stephenson’s submissions on this issue, and from our own viewing of the video-tape and reading of the transcript, we agree with the way in which he applied the section 53 test and with the conclusion that he reached. 49. 49. But this is a section 23 case, and “competence”, however defined, is not the final question. The final question is whether the Judge failed properly to apply the section 26 “interests of justice” test in deciding to admit her video-taped interview into evidence without the defence having had an opportunity to test her account at the time when she gave it or later at trial in the normal way. Ground 4 – whether the Judge properly applied “the interests of justice” test in Section 26 50. 50. The new section 53 test of “competence” is, as we have said, concerned at its highest with the degree of mutual comprehension of those questioning and of the person being questioned, whether the exchange is recorded in writing or on video-tape or takes place in court. Such matters and, indeed, those of the sort referred to by Mr Carter-Stephenson under the third ground of appeal, which go to reliability and cogency of a potential witness’s account, must be of particular concern at the section 26 stage when the court has to consider whether it is in the interests of justice to admit a written statement or a video-taped interview satisfying the section 23 admissibility test where, by reason of his physical or mental condition, the court is satisfied that he is unfit to attend trial to give evidence. 51. 51. A witness’s mental state may prevent him or her from attending trial for that purpose, for example, because of a high degree of vulnerability to the strain of giving evidence and of being cross-examined or of psychiatric damage in having to “re-live” horrific events by giving evidence of them. But it is still for consideration whether and to what extent his or her mental state at the time of making the statement, in whatever form, may have been so unreliable as to render its admission at trial on that account unjust to a defendant. That does not, as we have said, turn on a nice analysis by the Judge as to his or her “competence” in any technical sense, but on an assessment along with the other circumstances that Mr Carter Stephenson has mentioned that may go to support or undermine the reliability or cogency of the evidence at the time when the statement was made. The Judge must then consider alongside that assessment, the other specified factors in section 26 and any other circumstances that appear to him to be relevant, in exercising his discretion whether or not to admit it. 52. 52. The Judge, in approaching his task, dealt first with the complainant’s mental condition as revealed by her performance on the video-film and the evidence of Dr Garner and Professor Hodgkinson. He said that it was in the nature of someone suffering from Alzheimer’s disease that her thought processes were not always logical, her recollection patchy and supplemented by or interwoven with a mix of possibly imaginary or unrelated incidents. He said, with particular reliance on the agreed medical evidence, that her memory as to detail and context might have been unreliable, but was likely to have been more reliable in relation to important events that had affected her. 53. 53. As to the content of the video-tape, the Judge acknowledged that the defence would be at some disadvantage by its admission, possibly containing misleading assertions and details because of the complainant’s condition, without any opportunity for the defence to test her evidence in cross-examination. However, he considered that such disadvantage was balanced by a number of matters, including: 1) that the jury would have the advantage of seeing the complainant’s evidence on video for themselves, as contrasted with simply having a written statement to read or to have read to them; and 2) the evidence of the medical experts as to her condition, physically shortly after the alleged offence and mentally after the video-taped interview. 54. 54. The Judge added that, to the extent that her evidence was unreliable, it could be tested by a jury against other evidence, including: 1) her early complaints to one of her nieces, Dr Gray and the police: 2) the medical evidence of the injury to her vaginal tissue; and 3) again, the DNA evidence as to the appellant’s semen on her knickers. 55. 55. As to the risk of unfairness for want of an opportunity to controvert the complainant’s statements in the video-film, the Judge referred to: 1) the evidence of the appellant’s response, or lack of it, to the questions of the police in their two interviews of him; 2) his opportunity through cross-examination on his behalf to challenge or explore all the other material evidence in the trial, in particular that of the psychiatrists, to controvert her allegations; and 3) the appellant’s own evidence; and 4) the arguments of his counsel, including, we would expressly identify, obvious points as to the need for caution in relying on the complainant’s account, given her mental condition and prompted as it was on occasion by leading questions from the interviewing police officers, and having regard to the lack of any opportunity to test it by cross-examination of her. 56. 56. Mr Carter-Stephenson emphasised that, given the DNA evidence and the appellant’s acknowledgement before trial of “consensual sex”, the issue at the time the Judge gave his ruling was not whether there had been some sexual contact between the complainant and the appellant, but whether it was consensual. He submitted that it had not, therefore, been necessary for the prosecution to rely on the evidence of the complainant to prove that aspect of the case, and that her video-taped evidence, when considered with Dr Garner’s and Professsor Hodgkinson’s view of her unreliability and the inability to test it as would be the case if she were a live witness at trial, was of little or no probative value on the issue of consent, adding very little to the prosecution’s other evidence on that issue. 57. 57. Mr Rook maintained that the Judge properly applied the section 26 “interests of justice” test. He pointed to the various issues for determination by the jury in the case, including, under the umbrella of consent, whether the complainant had the capacity to consent, if she had that capacity, whether she did consent and as to the appellant’s belief that she did so. On all those and the other issues as to whether the appellant’s conduct amounted to attempted rape or to an indecent assault, he submitted that the performance of the complainant in the video-taped interview was of potentially strong probative value. He also pointed to the safeguard for the defence in their opportunity to challenge the prosecution case by reference to the medical experts’ views as the complainant’s unreliability, and to rely on the ability and duty of the Judge to warn the jury appropriately in his summing-up as to the care they should take when considering the complainant’s video-taped evidence. Bearing all such considerations in mind, he submitted that the Judge was entitled to conclude that it was in the interests of justice to admit this evidence. 58. 58. Before we express our conclusion on this ground, we should mention briefly essentially the same issues arising under the banners of “fairness” in section 78 of PACE and of the right to a fair trial under Article 6 of the European Convention of Human Rights. Ground 5 and proposed ground 7 - Section 78 of PACE and Article 6 ECHR 59. 59. Both counsel acknowledged in their oral submissions that there was little if anything to be added by these provisions to the section 26 “interests of justice” test. Mr Carter-Stephenson repeated his point that the complainant’s video-taped evidence was of little probative weight because it added little or nothing to the common ground that there had been some sexual engagement between the complainant and the appellant. He added that, because of her suggestibility to leading questions of the officers at critical stages of the interview, her unreliability was such that even the most emphatic warning from the Judge in his summing-up could not obviate the risk of the jury relying on what she said. He stressed again, under both these provisions, the importance and difficulty of the appellant being able to controvert directly what the complainant said in interview and the limited value for that purpose of reliance on medical evidence as to her unreliability. He summarised his various complaints under these three grounds by saying that the interview evidence was a prejudicial distraction for the jury, particularly in the complainant’s references to her attacker’s rough handling of her, references which, he said, were not borne out by the medical evidence. 60. 60. Mr Rook also largely relied on his arguments under section 26 . He added that the playing to the jury of the video-taped record of the complainant’s interview was fairer than the reading of a written witness statement would have been. It gave them an opportunity to judge for themselves what manner of witness she was and to put her performance and account alongside the medical evidence before them as to her condition. As to Article 6, he referred to well established principles of Strasbourg jurisprudence of the need to balance the interests of defendants against those of victims called upon to testify, and submitted that a fair trial does not demand the attendance of a witness for cross-examination if the trial process over-all is fair. Conclusions on Grounds 4 and, 5 and proposed ground 7 61. 61. We have had to consider whether the Judge was entitled to conclude that it was just in the circumstances of this very grave allegation to allow the evidence of a seriously mentally ill woman to be put before the jury in secondary form, in this case by way of a video-taped interview, with the result that her account could not be tested in cross-examination. As we know, in a similar circumstance in R v. D the Court upheld the trial judge’s ruling under section 26 to admit the complainant’s video-taped evidence. Waller LJ gave the Court’s reasons for doing so at paragraph 39 of the judgment: “We viewed the video as well as examining the transcript. … not only do we think there is no basis for interfering with judge’ view that it was in the interests of justice that this video should be admitted, but we entirely support his view. It seems to us that first, ‘B’ was understanding the questions which were being put to her and was able to give answers to those questions which can be understood. Secondly, ‘B’ prima facie has a right to have her complaint placed before a jury and a right to have a jury assess whether they are sure that the complaint is established and the putting of the video before the jury is the only way in which that right can be upheld. Thirdly, the appellant also has his rights but they are in this instance protected. He will be able to call medical evidence to challenge the capacity of ‘B’ to remember, understand and say what happened. In reality, as it seems to us, he will be in a stronger position before a jury than he would have been if ‘B’ had been called to give evidence and were to be cross-examined; we say that because the appellant through his lawyers and experts will be able to argue about the reliability of ‘B’ and will further be able to make the point that they have been unable to cross-examine her. If ’B’ had been questioned by advisers on behalf of the appellant at the time when the video was made, for example, her reaction might well have been much more positive about what had occurred to controvert what ‘B’ said. In those circumstances it seems to us that it will be possible for the appellant to controvert the statement of ‘B’ that this video should be admitted. It will and should be for a jury and a jury alone to decide with the aid of expert evidence the truthfulness or accuracy of what ‘B’ was saying.” 62. 62. Much, if not all, of what Waller LJ said in that passage is equally applicable to the facts of this case. In our view, the Judge was entitled to conclude that it would not be unfair to the appellant to admit into evidence the video-taped interview of the complainant. He clearly identified the correct approach to the issue in the light of the guidance given in R v. D, namely, in the first instance, to apply a broad test of competence in line with that set out in section 53 of the 1999 Act . That is essentially - and sensibly - a test of intelligibility, which, before or after the application to any proceeding of section 53 , was and is part of the Judge’s task when making his “interests of justice” decision under section 26 . If, in the proper view of the Judge in such a case, the witness at the time he gave the hearsay account on which the prosecution seek to rely is competent and that, on a proper balance of all the relevant circumstances, the jury will have an adequate opportunity, and without unfairness to the defendant, to form a view of the reliability of his account, the judge is entitled in the exercise of his judicial judgment under sections 26 and 78, to admit such hearsay evidence. It is trite law that this Court should be cautious, notwithstanding the gloss of Article 6, before interfering with such a decision. We can see no error of law or principle or criticism of the balance drawn by the Judge of the relevant factors for and against the admission of this evidence that would entitle the Court to interfere with his decision. Indeed, on the facts, we would have reached the same conclusion ourselves. 63. 63. We add that, given that “the interests of justice” or – the same thing – fairness is the determinative factor for a court in deciding whether to admit hearsay evidence admissible under section 23 , Mr Carter-Stephenson’s suggestion that the Judge should have excluded it here because the prosecution did not need it given its other evidence on the issue of consent, cannot in the circumstances of this case be a relevant factor. It might be an easy way out for a judge in a case where the circumstances for and against admission of the evidence are finely balanced, but it would not normally be a relevant one. As Waller LJ clearly had in mind in the passage from the Court’s judgment in R v D that we have just set out, one of the interests of justice or aspects of fairness is that, as part of the process of a criminal trial to determine whether an alleged victim is truly a victim, his or her voice should be heard. See A v. United Kingdom (1998) 27 EHRR 611 . That is especially so where, for one reason or another, the alleged victim is vulnerable and may, on that account be unable to attend court as a witness, and perhaps more especially where, as here, the alleged “insult” to him or her, in the nature and circumstances of the offence charged, is particularly grave. That is, in part, just why section 23 is there and provides as it does. Having said that, we should record what Mr Carter Stephenson tacitly acknowledged, namely that there was evidence without that of the complainant on which the jury could have found the appellant guilty. The prosecution case on other evidence was far stronger than that in R v. D. 64. 64. Accordingly, we reject grounds of appeal 4 and 5 and refuse permission to appeal on proposed ground 7. Proposed ground 6 - The Judge’s direction to the jury 65. 65. The appellant has sought to renew his application for leave to appeal based on a complaint that the Judge failed to direct the jury properly as to the probative nature of the video-taped interview of the complainant. The jury saw the video-taped interview of the complainant twice, and they also had a transcript of it. The Judge warned them about the danger of giving it greater weight than other evidence in the case because they had a record of it in permanent form. He also warned them of its shortcomings as evidence because there had been no opportunity to cross-examine the complainant: “All the process of examination of a witness before a jury has not taken place. Take very great care.” And then he invited them to consider it alongside the evidence of the psychiatrists: “… the psychiatrists both agree on one thing. Whatever her powers of recall about the big picture or the main event are, she’s not reliable on detail. So please remember that as well. Now, in this case there’s been a lot of expert evidence, two psychiatrists, two doctors, one scientist. …. …. … let’s now look at the evidence of the two experts who dealt with … [the complainant’s] video and her general condition. … They both agree she had moderate, or one of them thought, moderate or severe degree of Alzheimer’s, …. Alzheimer’s is a dementia which affects the functioning of the brain, and for our purposes the important function is it affects is memory. They both say that she was not fit to give evidence in court. Both agree that sufferers from Alzheimer’s have a better recall of an event, if it’s a recent event and it was an event which had an emotional or physical importance to the person suffering from Alzheimer’s. … There is no doubt, both those doctors agree, that on the video, she was speaking of a sexual incident, which appeared unpleasant or unwelcome to her. They both agree she’s unreliable on the details, and Professor Hodgkinson agreed … that … to say she was recalling an incident that was unpleasant or unwelcome, you had to be sure that the incident she is recalling was the one that is complained of here today and not something else in her past. …. So she is not reliable on details, … That does not mean you can believe nothing of what she says. It means you’ve got to be very careful before you can rely on something of what she says and, before you rely on anything, remember the warnings I gave about her evidence and look for supporting evidence elsewhere. 66. Later in the summing-up the Judge, after referring to the complainant’s language to the police officer who had found her in the garden in Chingford and to her account to one of her nieces, continued: “The prosecution say that is valuable for two reasons. Firstly, it is unprompted and it’s her first account and, secondly, it gives you consistency with the video, the next day, for all those reasons the prosecution say you can be sure … that he attempted to penetrate her with his penis. Well, what do the defence say? … they say … you cannot simply rely on that video. It is full of discrepancies. The experts say you can’t rely on the detail. To take the simplest thing, was her attacker black or white? If she’s wrong on that, she’s going to be wrong on just about everything else. Look at her variation. …. At one point she says two or three times, later it’s three or four, later it’s four or five. Even during the video, the story is changing. … her memory is composed of fragments from years ago, things she’s read, things that have happened to her and she just pulls them out without any logical connection, that she is suggestible and unreliable and you should disregard her video.” 67. And finally, when dealing with the issue for the jury of the appellant’s belief in the complainant’s consent, the Judge said: “… you have looked at that video. You know what … she was like 24 hours later, when she’s secure back in the home. You know that both psychiatrists said she had no real concept of … what was going on … [in] that … interview or the seriousness of it. I have read out to you her behaviour and the reaction of the ordinary lay people, the policemen and Miss Jackson, who saw her closer to it. The prosecution say that Mr Sed’s account of this woman talking rationally and making sexual advances to him, some three or perhaps four hours before she was found in that garden is patent nonsense.” 68. 68. Mr Carter-Stephenson’s main complaint about these directions was that the Judge did not direct the jury “in unequivocal terms” that none of the complainant’s allegations in the interview could be relied on. He submitted that the Judge should have directed the jury that, at the most, when considered with the medical evidence, the only safe inference to be drawn from the video-film was that the complainant had been involved in a sexual encounter while she had been away from her care home. He also complained that the Judge had wrongly suggested to the jury that various of her answers in interview could be supportive of other evidence of the prosecution’s case. 69. 69. Mr Rook submitted that the Judge gave sufficient directions and warnings to the jury about the complainant’s evidence in interview that it was a matter for them to evaluate the evidence and whether and to what extent to heed his warnings. He challenged the notion that the Judge should have directed the jury that the only safe inference from the video-taped evidence was that that the complainant had been involved in a sexual encounter whilst away from her care home. 70. 70. In our view, the Judge did all that could have been required of him in the directions that we have set out to direct them as to the use they could properly make of the video-taped evidence of the complainant, its limitations and its dangers. We specifically reject the suggestion that the Judge should have directed the jury that none of the complainant’s allegations in interview could be relied on or that the only safe inference they could draw was that she had been involved in some sexual encounter while away from the care home. To have so directed the jury would have been to usurp their function. Subject to the warnings that he amply gave, the reliability of her evidence was essentially a matter for them. 71. Accordingly, we refuse permission to appeal under this ground. Proposed ground 8 - The second interview of the appellant : para 11.4 of Code C, PACE 72. We have referred, in paragraphs 14 and 15 of this judgment, to the attempt of the police to re-interview the appellant in the presence of his solicitor after disclosure to him of the DNA match, to the prepared statement presented by his solicitor at the start of the interview acknowledging an incident in which he had had “consensual sex” with an un-named woman, and to his “no comment” answers to all his questions. 73. 73. At the trial Mr Carter-Stephenson applied to the Judge to exclude the evidence of that interview on the ground that it involved substantial breaches of Code 11-4 of the Codes of Practice of PACE, which provided: “As soon as a police officer who is making enquiries of any person about an offence believes that a prosecution should be brought against him and that there is sufficient evidence for it to succeed, he shall ask the person if he has anything further to say. If the person indicates that he has nothing more to say the officer shall without delay cease to question him about that offence.” 74. The Judge ruled against that application, holding that the officers were entitled to re-interview the appellant to give him an opportunity to comment on the DNA match, an opportunity of which he might wish to avail himself given his assertion in the prepared statement of “consensual sex” with an un-named woman. The Judge was also of the view that it was proper in the circumstances for them to continue to question the appellant in the way they did after his solicitor had read the prepared statement. He said that if he was wrong about that, it was in the circumstances “a technical breach” and one that was “insubstantial, slight and not affecting the fairness of admitting” the evidence. 75. Mr Carter-Stephenson submitted that the Judge wrongly concluded that there was no breach of the Code and wrongly held that, if there were, it would not be unfair in the terms of section 78 of PACE to admit the evidence. As to the former, he said that it was plain that the officers, in the light of the DNA evidence, believed, before the interview, that the appellant should be prosecuted and that there was sufficient evidence for a prosecution to succeed. He submitted that, therefore, in accordance with Code 11-4, they should have limited the interview to asking him whether he had anything further to say and then charged him. As to the latter, he maintained that such a contravention of the Code should not, in the circumstances, have been dismissed by the Judge as insubstantial as a justification for not excluding it as unfair under section 78 . 76. Mr Rook had two main submissions The first was that the police officers, notwithstanding the evidence of the DNA match, were entitled to re-interview the appellant to consider whether he had any explanation for that evidence, relying on R v. Ioannou [1999] Crim LR 586, CA. Second, he submitted that the solicitor’s introduction of the exculpatory prepared statement at the start of the interview, asserting “consensual sex” with an un-named woman was a new factor that might explain the DNA match, and the officers were, therefore, entitled to explore it to see whether any belief they might have had that the appellant should be prosecuted was well based. 77. On the issue of breach of the Code provision, Mr Rook’s submissions make good sense as well as according with the law. Where there is some new evidence, not previously put to an accused in interview, on which an explanation from him might throw light and influence on whether the matter is to proceed to prosecution, it is plainly not in breach of the Code to ask him whether he has anything to say on that new matter. Where, as here, the accused volunteers immediately before the interview some explanation which, when considered with the new evidence disclosed to him, might allow of an exculpatory explanation for it, further questioning to explore that possibility would not, in our view, breach the Code. It is a matter of judgment how far such questioning should go, particularly where, as in this case, the accused has made plain on his solicitor’s advice, that he should not answer any questions, even by way of elaboration of his prepared statement to explain away the new evidence. As the Court said in Prouse v. DPP [1999] Archbold New 2, CA, such a decision is a qualitative one for the officer and, it follows, also for the Judge in determining the threshold question whether there has been a breach of the Code. In our view, the Judge was entitled to find on the facts of this case to conclude that the officers were entitled, not only to start the interview, but to continue with it in the way they did after the appellant’s half revelation in his prepared statement. 78. But the ultimate question for the Judge was whether - breach of the Code or no - there was any unfairness in admitting the evidence of this interview. None, for the reasons we have given, can be ascribed to the start of it, including the volunteered prepared statement of the appellant. And, because all the appellant’s subsequent contributions to the exchanges were “no comment” answers, it is difficult to see what prejudice, unfair or otherwise, he could have suffered from its introduction. The only possible prejudice that Mr Carter-Stephenson was able to identify was the ability of the jury, on a proper direction from the judge, to draw an adverse inference from the appellant’s silence. The Judge gave a model direction in that respect, drawing particular attention to the appellant’s solicitor’s advice to him to remain silent. There is no complaint about that direction. If the jury, faithfully taking account of the Judge’s direction, did draw an adverse inference against him for his failure to mention his case as he was to put it later at trial, then prejudice to him there may have been, but prejudice for which the law provides, not unfair prejudice. Like the Single Judge, we are of the view that the Judge was entitled to admit the evidence for the reasons that he gave, and we refuse leave under this proposed ground of appeal. 79. The appeal against conviction is, therefore, dismissed.

2004_05_26-251.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/1294/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/1294

4daa7662a6c40866921cf8d977046efaf7d2e3bb99c252fb94614052c3d11c9c

[2020] EWCA Crim 1313

EWCA_Crim_1313

2020-10-06

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 1313 CASE NO 202000568/B1 Royal Courts of Justice Strand London WC2A 2LL Tuesday 6 October 2020 LORD JUSTICE HOLROYDE MR JUSTICE KNOWLES MR JUSTICE CHAMBERLAIN REGINA V SAHIT FERATI Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) MR R FITT appeared on behalf of the Appellant J U D G M E N T 1. LORD JUSTICE HOLROYDE: This is an appeal, by leave of the single judge, against convictions for five offences of fraudulent evasion of tax. 2. The appellant, a man of previous good character, was the proprietor of a small restaurant in Ashton-under-Lyne, Greater Manchester. He engaged an accountant, Mr Asmar Ali, to draw up annual profit and loss accounts and to prepare quarterly VAT returns and annual income tax returns. 3. The figures stated in the income tax returns resulted, after taking into account the appellant's personal allowance, in a liability to pay modest amounts of National Insurance contributions but no liability to pay income tax. 4. Officers of Her Majesty's Revenue and Customs (hereafter "HMRC") made a test visit to the restaurant in January 2016, followed by a further visit in February 2016, when the appellant was asked a number of questions about his business, including as to the proportion of cash sales and sales paid by card. The appellant said that about 20% of his sales were in cash. Subsequent investigation by HMRC revealed evidence that sales at the restaurant were significantly higher than the figures declared in the tax returns. 5. On 18 April 2017 the appellant was interviewed under caution. He denied that he had made any under declaration of his takings and said that Mr Ali dealt with all his tax affairs. He said that he recorded the takings in daybooks and he produced one such daybook, which related to the year in which there was the least underdeclaration of takings. He said that he had all the other daybooks at his home, which was nearby, and invited the officers to come and collect them after the interview. The officers did not act upon that invitation until the following day, at which time the appellant's daughter declined to hand over the books. 6. The appellant was charged on an indictment containing seven counts. Counts 1 to 6 charged him with offences of being knowingly concerned in the fraudulent evasion of income tax, covering the tax years between 2011/12 and 2015/16. Counts 7 charged him with an offence of being knowingly concerned in the fraudulent evasion of VAT, between January 2012 and January 2017, that charge relating to the quarterly VAT returns submitted during that period. 7. The appellant stood trial in the Crown Court at Manchester, Minshull Street before HHJ Lever and a jury. Expert accountancy witnesses had been employed on both sides and they had cooperated in preparing an agreed joint statement. It was common ground that the profits of the restaurant business had been undeclared and that the correct level of tax had therefore not been paid by the appellant. 8. The findings of the expert witnesses were summarised in agreed facts which were read to the jury at the start of the trial. The witnesses differed in their estimate of the amount of the shortfall in tax paid, because their respective calculations were drawn up on the basis of different assumptions as to the proportion of takings which were paid in cash. The shortfall calculated by the defence expert, Mr Fanshawe, was the lesser of the two. 9. After the agreed facts had been read, and whilst waiting for the first witness to come into court, the judge said that it would be helpful know "by what percentage in each year the profits have turned out to be larger than they were claimed to be to the Inland Revenue at the material time". He indicated that he would like that to be done on the basis of Mr Fanshawe's figures, which were the more favourable to the appellant. He pointed out that it was an essential ingredient of each of the charges that the appellant had been knowing concerned in the fraudulent evasion of tax. He commented to the jury that: i. "... if the understatement is five percent or ten percent, then it’s more difficult isn’t it for the prosecution to even start to convince you that it was deliberately and fraudulently and dishonestly done. If in fact – I don’t know because I’ve not done the calculation – if in fact the statement to the Inland Revenue was half or a third of the actual profits, then it’s a matter for you, but you may think that it is more clear or potentially clear that the owner of a business would know that it was making more money than has been stated." 10. That intervention by the judge is the subject of the first ground of appeal, which is that the judge erred in suggesting to the jury an incorrect approach to the case. 11. The prosecution then called a number of witnesses including Mr Ali. He said that he drew up the accounts of the business and submitted tax returns on the basis of the information supplied to him by the appellant. He said that the appellant did not provide him with any proper takings books, save for one year in which there was an inquiry by the Inland Revenue. Mr Ali said that generally the appellant brought in sheets of paper bearing figures, and sometimes he supplied figures orally during their meetings. Mr Ali said that he threw away the pieces of paper after he had taken the information from them. The judge, understandably, regarded that, and other features of Mr Ali's evidence, as very unprofessional and shoddy. It appears to be common ground in this appeal that Mr Ali was an unimpressive witness. 12. Mr Fitt, counsel then as now representing the appellant, made successful submissions of no case to answer on counts 1 and 2. 13. The appellant then gave evidence. He stated that he was in charge of the food and Mr Ali was in charge of the accounts. He provided Mr Ali with invoices, receipts and his taking books. If the figures were wrong, that was solely down to Mr Ali and not to him. He knew nothing of any underdeclaration of profits. If anyone should be in the dock, it was Mr Ali and not he. The appellant relied on his good character and on his handing over of the takings book for one year. He said he had acted on legal advice in deciding not to provide HMRC with the other books and he had instructed his daughter accordingly. 14. It appears that the evidence as a whole showed that the initial advice not to hand over the books had come from Mr Ali, and it was at a later stage that legal advice was given to a similar effect. 15. Mr Fanshawe gave evidence to the effect that because the VAT quarters applicable to the business did not coincide with the fiscal year, it would have required considerable sophistication on the appellant's part to provide false turnover figures each quarter which would result in adjusted profits at the year end which were roughly equivalent to his personal allowance. In answer to a question by the judge Mr Fanshawe accepted that one possible explanation was that Mr Ali had colluded with the appellant to provide false figures to HMRC. That enquiry by the judge is the subject of ground 2, which contends that the judge erred in suggesting to the jury an incorrect approach to the case, namely that the appellant and the principal prosecution witness may have collided in committing the alleged offences. 16. In the course of his summing-up the judge reminded the jury of the evidence relating to the appellant's initial offer to provide all his daybooks to HMRC, including the appellant's evidence that he had acted on legal advice in not providing them. The judge confirmed that that was the appellant's legal entitlement, emphasising, as he had already directed the jury, that it was for the prosecution to prove guilt. He pointed out that HMRC could have obtained a warrant to search the appellant's home for the daybooks but had not done so. 17. The judge then reminded the jury of a direction he had given them in this regard earlier in the trial, saying: i. "The defendant’s refusal to hand over the takings books can in no way, shape or form, actually prove his guilt. The only potential relevance they have, and only if you think it right and only to the extent you think it right, is affecting his credibility, whether you believe him or not." 18. That direction is the subject of ground 3, which contends that the judge erred in directing the jury that they could use evidence that the appellant failed to provide documents to HMRC as evidence that adversely affected his credibility. 19. The jury convicted the appellant of counts 3 to 7. 20. In his written and oral submissions in support of ground 1, Mr Fitt submits that the prosecution case was that the appellant had knowingly provided inaccurate turnover figures to Mr Ali but the judge's remarks distracted the jury from that issue. It was common ground that it was Mr Ali who calculated the inaccurate profit figures, and an adjusted profit figure may bear little resemblance to the turnover figure. The judge wrongly indicated to the jury that, regardless of whether the appellant had provided correct turnover figures, he could be found guilty if Mr Ali's calculation of the profit was inaccurate by more than about 10%. 21. Mr Russell, representing the respondent in this court as he did below, submits that the judge did no more than raise a common sense point that it may assist the jury to know how significant was the difference between the actual and the declared profit, because the greater the discrepancy the more likely it might be that the sole proprietor of the business would know that he was providing incorrect information. The appellant, in his evidence-in-chief, indicated that he had a working grasp of the level of turnover. Mr Russell submits that as the proprietor of the business, who derived his living from it, he could reasonably be expected to know what level of profit he would expect from that turnover. 22. As to the second ground, Mr Fitt acknowledges that the judge when summing up did not say anything about possible collusion between the appellant and Mr Ali. He submits however, that it was not open to the prosecution to put its case on that basis, since to do so would be to impugn its own witness. Neither Mr Ali nor the appellant had been cross-examined on that basis. He submits that the judge, by asking the question he did of Mr Fanshawe, was effectively suggesting that the jury could convict on a speculative version of events for which the prosecution did not contend. Having done so, he should in summing up have given the jury a specific direction that it was not open to them to convict on the basis that the appellant had colluded with Mr Ali to provide false figures to HMRC. 23. In response, Mr Russell accepts that he could not and did not put the prosecution case on this basis, but he submits that the judge was not subject to a similar constraint. The defence had adduced evidence from its expert witness to the effect that it was a remarkable feature that the figures provided each year by the appellant resulted in a declared profit which placed him just under the tax threshold. Mr Russell submits that when that evidence was given, it was obvious to everyone that it was possible that it was the professional accountant Mr Ali who had adjusted the figures to produce those results. 24. As to ground 3, Mr Fitt submits that the judge should have directed the jury to ignore the evidence as to the offer to provide the takings books and the subsequent non-provision of them. His direction to the jury invited them to adopt an approach similar to that which would be appropriate under section 34 of the Criminal Justice and Public Order Act 1994 , but it was not in the full terms of the direction which should be given when that section applies. The appellant had the right not to incriminate himself, and the judge's direction both deprived him of that right and invited speculation as to the contents of the books. The jury were effectively invited to assume that the books were withheld because they did not assist the appellant's case. That was a reversal of the burden of proof, particularly when the prosecution had chosen not to take any steps to search for the daybooks. 25. Mr Russell tells us that in discussions between counsel during the trial, he had warned that he might raise this issue in cross-examination. He decided he would do so when the appellant, in the course of his examination-in-chief, gave evidence in the terms which we have summarised. There was no objection raised to Mr Russell cross-examination. Mr Ali's evidence had been that he had only ever been provided with the one daybook to which we have referred earlier in this judgment. In those circumstances, Mr Russell submits that he was entitled to ask the appellant whether the takings recorded in the daybooks were correct. The appellant said that they were. Those questions having been asked without objection and answered, it is unrealistic to suggest that the jury should have been directed to ignore that evidence. 26. Mr Russell adds that there was subsequent discussions between counsel and the judge, which resulted in agreement as to the form of direction which the judge should give and did give. The jury were rightly directed that the only relevance of the non-production of the books was as to the appellant's credibility. 27. We are grateful to both counsel for their helpful, written and oral submissions. Having reflected upon them our conclusions are as follows. 28. In relation to ground 1, the judge requested information which was likely to be helpful to the jury. The extent of the disparity between actual profit and declared profit was relevant. The jury would be entitled to think that the greater the disparity, the more likely it was that a business proprietor in the position of the appellant might be aware that the declared profit was inaccurate. Equally, as the judge pointed out, the prosecution might be in difficulties if the disparity were small. Mr Fitt is of course correct to draw attention to the distinction between turnover and profit. However, the judge's comments came at the beginning of the trial, and he made clear that he did not know what the information he had requested would reveal. There was ample opportunity for the defence to make any relevant point based on the distinction between turnover and profit, and for any necessary direction to be given if there was an important point to be made in that regard. It is however apparent from the transcript of the summing-up that the appellant, in his evidence-in-chief, said that every month he looked at his daybook, looked at the bank statements and made a mental check to see what his profit would be. In the event, the jury were later in the case provided, by agreement, with a table which showed that in the three fiscal years between 2013 and 2016 the profits declared to HMRC were respectively 41%, 56% and 28% of the actual profits as estimated by the defence accountant Mr Fanshawe. 29. The judge cannot, in our view, be criticised for making the enquiry he did and for identifying the potential significance of the information to be obtained. We agree with Mr Russell that he was doing no more than raising a common sense point. We think, with respect, it would have been better if the judge had avoided referring to specific percentages or proportions. But we cannot accept Mr Fitt's submission that the jury were effectively told that they could convict if the disparity was any greater than 10%. In our judgment, no unfair prejudice was caused to the appellant by the judge's remarks. 30. In relation to ground 2, it is relevant to note that the defence case was that the appellant had provided correct figures to Mr Ali, and Mr Ali was solely responsible for any understatement of profit in the tax returns. In presenting that case, the defence chose to adduce, through Mr Fanshawe, evidence to the effect that someone in the appellant's position would be hard pressed to produce false figures which consistently resulted in a net profit roughly equal to his personal allowance. We understand of course why that point, potentially helpful to the appellant, was made. It must however have been obvious to the jury that the declaration of false figures to HMRC might be explained, not only by dishonesty on the part of the appellant alone, as the prosecution alleged, or by dishonesty on the part of Mr Ali alone, as the defence alleged, but also by dishonesty on the part of both men. We do not accept that the question asked by the judge, which Mr Fanshawe answered by confirming that third possibility, either invited speculation or caused unfair prejudice to the appellant. 31. Moreover, the direction which it is said the judge should thereafter have given would have been wrong in law. The prosecution had not put its case on a basis of collusive dishonesty, but if the jury were sure that the appellant acted dishonestly, and was knowingly concerned in the fraudulent evasion of tax, then in law the appellant was guilty whether he had acted alone or in collusion with Mr Ali. 32. We turn to ground 3. As we have indicated, the appellant's case was that he provided Mr Ali with daybooks in which, to the best of his knowledge and belief, he had accurately recorded his takings. That evidence was the foundation of his assertion that any understatement in the tax teturns was down to Mr Ali and not to him. In interview, he volunteered to provide all of his daybooks to HMRC. He then did not do so. He was asked in cross-examination whether the daybooks contained accurate records of the takings of the business. No objection was, or could be, taken to that question. He asserted that they did. The fact that he had nonetheless declined, and still declined, to provide those books to HMRC was relevant to the jury's assessment of the credibility of that assertion. 33. Also relevant were the fact that the appellant was under no obligation to make the books available, as the jury were directed, and that he said he had acted on legal advice in retaining them. Those were all matters for the jury to consider in considering his credibility. 34. The judge, in directing the jury as he did after discussion with counsel, emphasised that the only relevance of the failure to hand over the books was as to the credibility of the appellant and only to the extent that the jury felt it right. 35. We do not accept the submission that the appellant was deprived of his right against self-incrimination. He chose not to make available books which he asserted contained accurate records of the takings of the business. 36. Nor do we accept the submission that the burden of proof was reversed. The appellant was not being called upon to prove his innocence. He was being asked about an offer which he had made to provide the books, which he had subsequently withdrawn. The comparison with circumstances such as those covered by section 34 of the 1994 Act , when an adverse inference can be drawn in certain circumstances, is not, in our view, an apt one. 37. For those reasons, we are satisfied that none of the matters raised in the grounds of appeal, whether considered individually or collectively, cast doubt on the safety of these convictions. 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_06-4981.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2020/1313/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2020/1313

f487647960705ac1b1f39c23abcc5e0eb7f058757a158ff98a52f3e2e8ccf102

[2023] EWCA Crim 70

EWCA_Crim_70

2023-01-19

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 70 IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO: 202203434 A1 Royal Courts of Justice Strand London WC2A 2LL Thursday 19 January 2023 Before: LADY JUSTICE CARR MR JUSTICE JACOBS HIS HONOUR JUDGE THOMAS KC REFERENCE BY THE ATTORNEY-GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 REX v HARRY McCUSKER __________ 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 CATHERINE PATTISON appeared on behalf of the Solicitor General MR SIMRAN GARCHA appeared on behalf of the Offender _________ J U D G M E N T LADY JUSTICE CARR: Introduction 1. We have before us an application by His Majesty's Solicitor General for leave to refer a sentence which he considers to be unduly lenient. On 8 June 2022 in the Crown Court at Lewes the offender pleaded guilty to two offences contrary to s.1(1) of the Criminal Law Act 1977: conspiracy to supply a Class A controlled drug, namely cocaine (count 1), and conspiracy to convert criminal property (count 2). On 28 October 2022 the offender was sentenced by His Honour Judge Stephen Mooney (“the Judge”) to an overall sentence of 4 years and 9 months' imprisonment, made up of a custodial term of 4 years and 9 months on count 1 and a concurrent sentence of 3 years on count 2. 2. The offender is Harry McCusker. He is aged 28. In summary, between 31 December 2019 and 19 May 2021, when he was between 24 and 26 years old, he conspired with James Hurrell, Paul Robson, Charlie Salisbury and others to supply cocaine to various destinations in the South of England. The conspiracy was large scale and sophisticated. The offender's role involved being the custodian and courier of significant quantities of cocaine, and the conspiracy generated a significant quantity of cash. The conspiracy to convert involved not only the offender’s original co-defendants on count 1, but also the offender's partner, Tyler Hawley, and Nicolle Burns, who was Robson's stepdaughter and Salisbury's partner. 3. For the Solicitor General it is submitted that the Judge fell into error by concluding that a sentence of 4 years and 9 months' imprisonment sufficiently reflected the seriousness of the offender's role, the presence of the aggravating factors, and the overall seriousness of the offending. For the offender it is said that, whilst the sentence could be said to be lenient, it cannot be said to be unduly so. 4. We grant leave. The Facts 5. We turn first to count 1. The conspirators took receipt of imported cocaine in quantities of up to 20 kgs at any one time. The cocaine was distributed to various destinations across the South of England, including London, Dorset, Devon and Cornwall. Significant sums of money were generated. The conspirators used encrypted mobile telephones using apps such as EncroPhone and EncroChat. As is common, they used various “handles” to contact one another. They took a number of steps to ensure the security of their operation, including the use of EncroPhones to arrange deliveries; when multiple deliveries were made on the same day, the courier would only collect what was required for the individual drop and then deposit the cash received (if received) before collecting the drugs for the next delivery; if multiple deliveries were being made, the drugs would be collected from different locations on each occasion; passwords were used to ensure that the courier and the recipient could identify each other; Robson sometimes wore a high-visibility jacket in order to avoid arousing the suspicion of police at a time when movement was restricted due to Covid measures; the conspirators used rental vehicles often, and there were discussions between them as to the modification of a vehicle in order to have a hidden compartment built. 6. Hurrell and Salisbury each played a leading role in the conspiracies. The offender and Robson were each couriers involved in the supply and distribution exercise. Both were known to Salisbury, who acted as a conduit and relayed messages between Hurrell and them, the offender and Robson. The offender was more involved than Robson. He was also a custodian who took receipt of the cocaine, stored it, distributed it and took receipt of cash. On one occasion he divided a kilogram block of cocaine into smaller quantities in preparation for onward distribution. Between April 2020 and July 2020 the offender was involved in the delivery of a kilogramme of cocaine on 19 April, taking possession of £64,000, possession of a kilogramme of cocaine and the delivery of 9 ounces of cocaine on 11 May 2020. On 14 May 2020 he supplied 4.5 ounces of cocaine and was in possession of £5,000. On 19 May he delivered £10,000. On 21 May he was in possession of 20 kgs of cocaine, 10 kgs being subsequently supplied onwards to another. On the same day he was involved in the supply of another kilogramme of cocaine. On 27 May he was involved in the supply of 10 kgs of cocaine. On 1 June he was involved in trying to source a kilogram of cocaine. On 23 July 2020, £20,000 was paid into his bank account. 7. At the time the offender was also working as a carpet fitter. His workload reduced because of the Covid pandemic and national lockdown but, as restrictions came to be lifted, he sought to increase his carpet-fitting work and to reduce his involvement as a drugs courier. 8. He was arrested on 25 May 2021 and when interviewed answered “no comment”. The sentencing process 9. The offender pleaded not guilty at the PTPH and a trial date was fixed for 14 September 2022. He served a defence statement in November 2021 denying being party to any conspiracy. That stance was maintained until 8 June 2022, when the case was listed for mention and he entered guilty pleas. A basis of plea was proffered in October 2022 but not accepted by the prosecution. 10. The offender had no previous convictions for drugs or criminal property offences and had not been sentenced to a term of imprisonment before. There were character references, which we have read, speaking highly of him as a good person, with a strong work ethic. There was some indication that he needed treatment for mental health problems, with references to suicidal thoughts, depression and anxiety, but no apparent formal diagnosis or treatment plan. 11. The Judge determined that a Newton hearing was not required. The matters in dispute between the prosecution and the offender were of little significance and would not have made a significant difference to the sentencing outcome. He considered that there were elements of significant role offending, but he would sentence the offender on the basis of lesser role in category 1 offending. The elements of lesser role offending outweighed the elements of significant role offending. He accepted that the offender was operating under the instruction of others and had chosen to remain involved as someone who was prepared to assist when required. He maintained that level of involvement even when he genuinely tried to leave. The lure of the money that he was generating was just too great. He was, in the Judge's words, “enthusiastically involved". The Judge did not accept that the offender had been pressured into his involvement in the conspiracy, and that was a position accepted on the offender's behalf. 12. When passing sentence, the Judge identified the starting point for lesser role category 1 offending within the Sentencing Council Guideline for Drugs Offences (“the Guideline”) of 7 years' custody. He referred to the absence of relevant previous convictions and to the offender's mental health problems, which would make prison life difficult for him. He arrived at a term of 6 years after taking into account the offender's available mitigation, which term he then reduced by 20% to reflect the offender's guilty plea. The parties' submissions 13. For the Solicitor General, Ms Pattinson challenges the Judge's assessment that a starting point of 7 years' imprisonment for the offence of conspiracy to supply cocaine fairly reflected the seriousness of the offender's role in the conspiracy, the presence of aggravating factors and the overall seriousness of the offending. Whether as a lesser role category 1 offence or straddling the boundary between lesser and significant role category 1 offending, it is said that the following factors relevant to culpability and harm merited a starting point significantly higher than 7 years' imprisonment: first, the overlap between the significant and lesser features in play; secondly, the quantity of cocaine involved being substantially greater than 5 kgs, being the basis for the starting point of 7 years for category 1 harm. The offender knew at least in general terms that he was taking custody of and supplying very large amounts of cocaine. 14. It is submitted then that an upwards adjustment was merited to reflect the following aggravating factors: the fact that this was a conspiracy spanning several months rather than a one-off offence; the totality of the offending; and the need for deterrence, given the prevalence and culture of drug supply, in particular on a commercial scale. 15. In summary, whilst it is accepted that there were mitigating factors meriting a downward adjustment, taking into account that mitigation, the offender's age and the 20% credit for guilty plea to be afforded, the overall sentence is said to be substantially too short, indeed unduly lenient. 16. For the respondent, Ms Garcha submits that the Judge sentenced on the correct factual basis, and that the sentence, whilst perhaps lenient, was not unduly lenient. The Judge reviewed the evidence and had a full grasp of the facts. Amongst other things, he had presided over the trial of Robson. He was fully entitled to conclude that the features of lesser role outweighed the features of significant role. She also updates the court in relation to the offender's personal circumstances. At the time of sentencing the offender had a 1-year-old child and was expecting twins with Ms Hawley. Those twins were born last night. Ms Garcha tells us that the offender finds his time in prison very difficult and points, amongst other things, to a very positive recent custody report. The offender is currently working in the laundry section of the prison and appears to be generally behaving well. We commend him for that and encourage him to continue that positive path forwards. Discussion 17. References under s.36 of the Criminal Justice Act 1988 are made for the purpose of the avoidance of gross error, the allaying of wide-spread public concern at what may appear to be an unduly lenient sentence and the preservation of public confidence in cases where a judge appears to have departed to a substantial extent from the norms of sentencing generally applied by the courts in cases of a particular type: see, for example, Attorney-General's Reference No 132 of 2001 (R v Johnson) [2002] EWCA Crim 148; [2003] 1 Cr App R (S) 41 at [25]. We remind ourselves that the hurdle is a high one. For appellate interference to be justified the sentence in question must be not only lenient but unduly so. 18. As the Solicitor General submits, it is important to recognise at the outset that the offences here being charged were conspiracies, not single substantive offences: see R v Reed [2015] EWCA Crim 171 at [40]. In sentencing for conspiracies, caution should be exercised against a slavish following of the guidelines on the basis of drug weight. It is also right that deterrence plays an important factor when considering what is and is not an appropriate sentence for serious drug offending such as this. 19. The starting point within the Guideline for category 1 lesser role offending is 7 years’ imprisonment, with a range of 6-9 years. The starting point for category 1 significant role offending is 10 years’ imprisonment, with a range of 9-12 years. Having carefully considered the submissions before us, we consider that the Judge was bound to take a term of significantly more than 7 years' imprisonment before making a downward adjustment for mitigation and credit for guilty plea. 20. 7 years is the starting point within the Guideline for a single offence of category 1 lesser role offending. It is based on a quantity of 5 kgs of cocaine. Here, first, there were elements of significant role offending, as Ms Garcha herself rightly acknowledged before the Judge: for example, the offender had an expectation of significant financial gain, having received £20,000 into his account in July 2020; he had some awareness and understanding of the scale of the operation. It was offending at the top end of lesser role. Secondly, the amount of cocaine involved far exceeded 5 kgs - indeed it was up to ten times that amount. The offender had personally taken custody of 20 kgs of cocaine and overseen its distribution, making deliveries and collecting payments. This was a very large-scale conspiracy; thirdly, the overall sentence had to reflect the totality of the offender's offending, including the second serious conspiracy to convert, which involved very large sums of money. 21. In these circumstances, a term of not less than 9 years' custody before downward adjustment was necessary. After reduction for the offender's mitigation of around a year, and 20% credit for guilty plea, the result is a custodial term of 6 years and 4 months. Seen in this light, the custodial sentence imposed by the Judge of 4 years and 9 months was not only lenient, but unduly so. Conclusion 22. For these reasons, we allow the Reference. The sentence of 4 years and 9 months' imprisonment on count 1 will be quashed. In its place will be substituted a term of 6 years and 4 months' imprisonment. The concurrent sentence on count 2 remains undisturbed. As before, the offender will serve half of that period of time in custody before being released on licence. 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_01_19-5551.xml

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[2017] EWCA Crim 775

EWCA_Crim_775

2017-05-24

crown_court

No. 2017/01500/A3 Neutral Citation Number: [2017] EWCA Crim 775 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Wednesday 24 th May 2017 B e f o r e: LORD JUSTICE DAVIS MR JUSTICE KING and MRS JUSTICE ANDREWS DBE - - - - - - - - - - - - - - - - - - - - - ATTORNEY GENERAL'S REFERENCE UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A - v - JOSHUA MARK DOBBY - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcri

No. 2017/01500/A3 Neutral Citation Number: [2017] EWCA Crim 775 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Wednesday 24 th May 2017 B e f o r e: LORD JUSTICE DAVIS MR JUSTICE KING and MRS JUSTICE ANDREWS DBE - - - - - - - - - - - - - - - - - - - - - ATTORNEY GENERAL'S REFERENCE UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A - v - JOSHUA MARK DOBBY - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd trading as DTI 165 Fleet Street, London EC4A 2DY Telephone 020-7404 1400 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr M Heywood QC appeared on behalf of the Attorney General Mr T Smith QC and Mr M Stevens appeared on behalf of the Offender - - - - - - - - - - - - - - - - - - - - - J U D G M E N T Wednesday 24 th May 2017 LORD JUSTICE DAVIS: 1. This is an application on behalf of Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 seeking leave to refer to this court a sentence on the ground that it is unduly lenient. 2. The offender is Joshua Mark Dobby. He was born on 5 th June 1993. He pleaded guilty at various stages to various counts on an indictment which he faced at the Central Criminal Court: two counts of manslaughter (counts 1 and 2), a count of causing serious injury by dangerous driving (count 3), and a count of dangerous driving (count 4). So far as the manslaughter counts were concerned, he had previously offered a plea of guilty on alternative counts of causing death by dangerous driving. 3. The conduct of the offender caused the death of two entirely innocent people, a mother and a young boy. In addition, another young child was seriously injured and another child also suffered unpleasant injuries. The case is in many ways shocking as to its facts and has certainly been tragic as to its consequences. 4. At the outset of this sentencing remarks delivered on 10 th March 2017, the Recorder of London, Judge Hilliard QC, said this: "Let me make clear straightaway that the sentence I am going to pass is not intended to equate to the value of the precious lives that were taken that day. No sentence could ever do that. Nor can any sentence I pass put right the dreadful consequences of your actions on 31 st August of last year. … that is not possible." Those remarks can only be repeated in this court. 5. When he came to pass sentence, the judge imposed an extended sentence of fifteen years on each of the two counts of manslaughter; a concurrent sentence of three years and four months' imprisonment on the count of causing serious injury by dangerous driving; and a further concurrent term of one year and four months' imprisonment on the count of dangerous driving. The total sentence, therefore, overall was an extended sentence of fifteen years, which comprised a total custodial term of twelve years' imprisonment and an extension period of three years. It is that sentence which the Attorney General seeks to challenge before this court. 6. The background facts are these. On 4 th June 2016, the offender had been sentenced to a term of 18 weeks' imprisonment for various offences of dishonesty. He was released on licence on 5 th August 2016. 7. On Sunday 26 th August 2016, whilst subject to licence conditions, he stole a Ford Focus car parked at an address in Orpington. Later that day, he filled the car up with petrol at a service station near Tonbridge and drove off without paying. The police were informed. Shortly thereafter, specialist traffic officers were deployed to intercept him. However, the offender failed to stop when required to do so by lights and sirens. What followed was, in effect, a high speed chase which was captured by a camera mounted in the police car. It appeared from that that there was a passenger in the car who seems to have been the offender's girlfriend. 8. Amongst other things, the driving of the offender involved travelling at around 80mph on a 40mph dual carriageway; crossing at high speed a pedestrian crossing on the wrong side of the road; driving at very high speed in a 30mph speed limit; driving on the wrong side of a dual carriageway, having entered by an exit slip road; driving along the wrong side of a dual carriageway at high speed, forcing oncoming traffic to scatter; overtaking at high speed in a 30mph speed limit, forcing oncoming vehicles to swerve to avoid a collision; and crossing a junction whilst on the wrong side of the carriageway. This went on for 4 minutes and 40 seconds. In the result, the pursuing police officers were directed by their control room to discontinue the pursuit due to the very high level of risk created by the offender's driving. The driving was such that, as the sentencing judge said: "It was a mercy the offender did not kill or seriously injury someone on that day by driving in the way he did". 9. A few days later, on Wednesday 31 st August 2016, and when the offender was still on licence, the Ford Focus car triggered a camera in Penge High Street. Officers located the car, which was being driven by the offender, shortly before 2pm. Again, the police required the offender to stop by using their flashing lights and sirens; but he ignored them. 10. In the subsequent six minute period of his driving, which was captured by a camera mounted in a police car, the following was demonstrated: he travelled at speeds of up to 60mph in a residential area where the speed limit was 20mph, and again on a high street where the speed limit was 30mph; he travelled on the wrong side of "Keep Left" bollards; he travelled at excess speeds on unmade residential roads; he travelled on the wrong side of the road through a red traffic light at a busy crossroad, narrowly missing a pedestrian; he swerved into oncoming traffic; he drove at speed over mini roundabouts; he overtook a bus on the wrong side of the road; he defied "No Entry" signs on four occasions; on one occasion, he drove the wrong way down a one-way street at up to 50mph; and he clipped a parked vehicle. 11. Following the evidence given at the sentencing hearing, the judge found that he was sure that the offender had driven in the way that he did, with no regard for the safety of pedestrians and other motorists, in order to try to force the police to abandon the pursuit of him, just as they had five days earlier. 12. At all events, towards the end of this driving, the offender entered Parish Lane in Penge, a residential street with cars parked on either side. At this time he was travelling at speeds estimated at up to 52 or 53mph. He crossed to the opposite carriageway to overtake a white van. He did so as both vehicles approached a T-junction with Lennard Road. There were two moped riders waiting at the junction just before he approached. Further, a double decker bus had just pulled away. The rider of one of the mopeds turned left, just ahead of the offender in the Ford Focus car; the rider was clearly visible. The offender overtook the white van immediately before the "Give Way" lines, and then turned the car hard to the left on to Lennard Road. At first, he braked briefly, but was also heard to apply the throttle. This caused the rear of the Ford Focus to yaw to the right as he oversteered. His purpose clearly was to seek to overtake the motorcycle rider and also the double decker bus, both now just ahead on Lennard Road. These vehicles were moving near to the centre line of the carriageway because of a line of cars parked on the left-hand side of the road. 13. The offender had therefore sought to negotiate the junction under-braking but at speed, with audible throttle input, and had approached at much too high a speed. He then attempted to overtake the two vehicles whilst joining the road, without any real forward visibility. At first he oversteered, causing the rear of the car to yaw to the right, and then he sought to correct the oversteer. In the event, the car went further forward towards the other side of the road. His attempt was to overtake but he was not in a position to do so. There was a line of tall metal pavement bollards sited along the pavement edge. By now the offender had lost control of the Ford Focus car so that it had travelled fully across the opposite side of the carriageway. 14. At that very moment in time grandparents, Mr Martin and Mrs Diana Cooper, their 34 year old daughter Rosanne Cooper and four of their grandchildren, Makayah (aged 10), twins Niyah and Yahla (aged 13) (all children of their daughter Danielle Cooper), and Eva (aged 8) (the daughter of Rosanne Cooper) were walking along the side of the road. They were walking to the local park so that the children could play and buy ice cream. 15. The offender's vehicle mounted the pavement and struck one of the bollards. This launched the front of the car into the air. It landed on top of Rosanne Cooper and the children. 16. The offender got out of the car and ran off almost immediately after it came to rest. He was chased and caught. 17. Rosanne Cooper and Makayah McDermott suffered catastrophic injury and died at the scene. Yahla spent 26 days in hospital undergoing operations to save her left leg. She is left with severe scarring on both legs. Eva had been wedged under the vehicle. She suffered grazes to her legs and burns from the exhaust pipe. 18. When the offender was arrested and detained, he admitted driving. He said, "I should have just stopped. I don't want to go back to jail, and now I might have killed innocent people". These comments were recorded and confirmed by his signature. He also said: "I don't know what I was doing today. I wish I'd just pulled over. I came round the corner and just knocked these two women over". When formally interviewed, he declined to comment. 19. A blood sample was taken from the applicant about seven hours after the collision. It was analysed for the presence of commonly used drugs. It showed traces of drugs which the offender must have taken previously; it was consistent with previous use of cocaine, morphine and heroin. It was not possible accurately to back-calculate to determine the level of such drugs. Having considered the evidence at the hearing, the judge found, as he was entitled to, that he could not be sure that the offender was significantly impaired by drugs at the time of the collision, although nevertheless there was a significant quantity of benzoylecgonine within the offender's blood system. The judge sentenced on the footing that such drugs as the offender had previously taken had had no causative impact in terms of what happened that afternoon. 20. We have seen various moving statements made by family members of the victims. We do not need to read them out or to cite them here. The profound impact upon the members of the family will be permanent and will be obvious to all. 21. In his submissions, Mr Heywood QC, appearing on behalf of the Attorney General, has drawn attention to the significant aggravating features of this case. He submitted that on each occasion the offender's driving was very highly dangerous, which created a high and not simply a serious and obvious risk of death, and had been sustained. Further, he submitted that the creation of such a high level of risk was deliberate, in the sense that the offender had consciously driven in this way in order to discourage the police from continuing pursuit, as he had succeeded in doing on the first occasion. Further, the driving on 31 st August 2016 had resulted in two fatalities and also in serious injury. He also pointed out that the Ford Focus had been previously stolen and that the driving on each occasion was to evade lawful capture and to avoid police instructions to stop. Further, the offender had no licence or third party insurance. Indeed, it is not obvious that he had had any formal driver training. It was also noted that the driving was undertaken whilst the offender was over the legal limit for benzoylecgonine (one of the breakdown products of cocaine). It was further noted that it appears that the intention of the offender was to seek to sell the stolen Ford Focus car for the purposes of funding his drug addiction. 22. Moreover, and notwithstanding his relatively young age, the offender has a very bad record. He has appeared before courts on 24 occasions and has been convicted of 53 offences, starting from the age of 13. He has, for example, been convicted of offences of robbery, theft, burglary, handling, common assault, aggravated vehicle taking, vehicle interference, failing to surrender, and various breaches of court orders. Furthermore, he was, as we have said, on licence at the time of all this offending. 23. The following were acknowledged to be mitigating features: (1) The offender had pleaded guilty. The judge gave him appropriate credit for that; in particular, he gave him credit of 20 per cent for the guilty pleas to the counts of manslaughter. No challenge is made as to the discount for plea taken by the judge. (2) The offender was still relatively young. It also suffices to say that he has had a very troubled and difficult childhood and general background. (3) The offender has shown genuine remorse for all that happened. Indeed, it also appears that he apologised when he gave evidence at the sentencing hearing. 24. The judge also had before him a careful and thorough pre-sentence report. It indicated that there was a serious pattern of escalating offending. The author expressed the view that the offender represented a significant risk of serious harm to the public from similar offending. 25. No one disputes that the Recorder of London approached this extremely difficult sentencing task with conspicuous thoroughness and care. He had engaged in discussion with leading counsel before the hearing commenced, to establish the basis on which the sentencing was to proceed and to satisfy himself that the offences had properly been charged as manslaughter and not as causing death by dangerous driving. 26. There followed a lengthy hearing before the judge that day. The judge then took time to consider his sentencing remarks, which are clear, thorough and well-prepared. The judge set out the facts in very great detail. He found that the initial driving had been without regard for the safety of pedestrians and other motorists. He was sure that the intention of the offender had been to force the police to abandon their pursuit, if that is what he could achieve. 27. The judge also stated that he had asked for an explanation from the prosecution as to why the offences had been charged as manslaughter, by reference to the charging standards. The judge set out the charging standards in his sentencing remarks. It is appropriate that we should also do so. In the relevant respects, they say this: "In cases where death has occurred as a result of the manner of the driving and it is clear from the available evidence that the standard of driving has been grossly negligent on the part of the driver, a charge of gross negligence manslaughter will be the correct charge. Gross negligence manslaughter will not be charged unless there is something to set the case apart from those cases where a statutory offence such as causing death be dangerous driving or causing death by careless driving could be proved. There will normally be evidence to show a very high risk of death making the case one of the utmost gravity." 28. In this regard, the judge noted the prosecution point, which has been repeated before us today by Mr Heywood, that the offender must have taken the decision on 31 st August to drive in the most dangerous of ways in order to force the police to abandon their pursuit, as they had done before. That was a point which, as we have said, the judge accepted. The judge further noted that the defence had not itself sought to say that charges of manslaughter were inappropriate. 29. The judge then referred to the guidelines relating to causing death by dangerous driving – guidelines to which we will come. He rightly and inevitably concluded that, by reference to an offence of causing death by dangerous driving, this would have been a level 1 offence. The judge also went on to rule out the imposition of a life sentence on these counts of manslaughter. We should record that it is expressly accepted on behalf of the Attorney General that he was justified in ruling out the imposition of a life sentence. However, considering all the matters, the judge was satisfied that it was appropriate to make a finding of dangerousness against the offender and decided that an extended sentence was appropriate. 30. Having further considered the facts and having given an indication that in this particular context he did not see any great gulf between an appropriate sentence for gross negligence manslaughter and an appropriate sentence for causing death by dangerous driving, the judge imposed the sentence we have indicated. 31. It may be noted that, by comparison with the available statutory maximum of fourteen years' imprisonment for the statutory offence of causing death by dangerous driving, the judge went above that figure on these counts of manslaughter. He indicated that he would have taken a starting point of fifteen years before giving credit for the guilty plea, albeit factoring in the other offences on the indictment. Indeed, an extended sentence of fifteen years was itself only appropriate on counts 1 and 2 on the footing that the judge went above the fourteen year limit otherwise available for the offences of causing death by dangerous driving. It is, of course, the case that for offences of manslaughter the sentence is at large: the maximum available is one of life imprisonment. 32. That, then, was the sentencing exercise undertaken by the judge in, we repeat, his scrupulously thorough and carefully considered sentencing remarks. 33. Mr Heywood has submitted that this sentence was unduly lenient. He submits that a custodial terms of twelve years' imprisonment for the totality of this offending was simply too low. He makes two particular points. First, it was submitted in writing, albeit it was not much emphasised before us orally this morning, that the judge had failed to give sufficient regard to there having been two entirely separate occasions of dangerous driving and thus had failed sufficiently to factor in an appropriate sentence for count 4 on the indictment. Second, he submits that the judge had failed to have sufficient regard to the fact that this had been charged as an offence of manslaughter, to which the offender had pleaded guilty, in circumstances where throughout the offender had been driving so as to cause the police to desist from their pursuit. More generally, it is said overall that the aggravating features were such that a sentence significantly in excess of the maximum otherwise available for an offence of causing death by dangerous driving was here appropriate. 34. On behalf of the offender, Mr Tyrone Smith QC disputes these submissions. He submitted that this sentence was not even lenient, let alone unduly lenient. He noted that the judge had made a finding of dangerousness for the purposes of the Criminal Justice Act 2003 , and had imposed an extended sentence in consequence. That means that the offender will be entitled to release only after serving two-thirds of his sentence; whereas, had the judge imposed a determinate term of custody, he stood to be released after serving one-half of his sentence. That is correct; but it is to be understood that, in assessing dangerousness and in deciding on the imposition of the appropriate sentence, the judge could not permit himself to be influenced by the release dates upon which Parliament has settled. 35. More obviously to the point, Mr Smith submitted first that the judge had considered the case with scrupulous care and had left no relevant factor out of account; second, the fact that this case had been charged by the Crown Prosecution Service as manslaughter should not be allowed to dictate the outcome and should not detract attention away from appropriate regard to the guidelines relating to causing death by dangerous driving: which he submitted were properly taken into consideration by the judge. 36. The judge, as we have indicated, clearly had been to a degree troubled by the way in which this case had been charged as manslaughter. But the fact remains that it was charged as manslaughter and the offender had pleaded guilty to manslaughter in circumstances where it was accepted that his appalling driving had given rise to a very high risk of death to other drivers or pedestrians. It was also, however, to be accepted that what the offender did was not deliberate; in the sense that he had not targeted or aimed at the family group walking along the pavement. But what he had done, deliberately, was to drive in this appalling manner in the way that he did, thereby giving rise to the risk of death. Thus it was that the case was charged as gross negligence manslaughter; although it has to be said that the actual words "gross negligence" hardly reflect all that happened that day. 37. There has been ongoing debate as to whether the maximum available sentence of fourteen years' imprisonment currently set for the statutory offence of causing death by dangerous driving is appropriate and whether such maximum should be increased. That, however, is a matter for Parliament; it is not a matter for the courts. Nevertheless, it is clearly important that the sentence that Parliament has decreed as appropriate by way of a maximum for offences of causing death by dangerous driving is not to be circumvented simply and solely by means of the charge that the prosecution choose to bring. As Mr Smith pointed out, many cases falling within level 1 of the guideline relating to causing death by dangerous driving could, on the argument of the Crown, potentially be charged as manslaughter. For example, level 1 is described in the guideline as "the most serious offences encompassing driving that involved a deliberate decision to ignore, or a flagrant disregard for, the rules of the road and an apparent disregard for the great danger being caused to others". The starting point given in the guideline for level 1 offending (that is, the most serious kind of offending) is eight years' custody, with a sentencing range of seven to fourteen years' custody. Aggravating factors, which may take a sentence towards the top of the range, include more than one person being killed and serious injury to others. 38. Whilst these points were properly made by Mr Smith, we must repeat that the fact remains that this case was charged as manslaughter and the offender had pleaded guilty to such charges. 39. We were referred to Attorney General's Reference No 93 of 2006 (R v Hussain) [2007] 2 Cr App R(S) 26, a case of gross negligence motor manslaughter on rather unusual facts. Counsel was unable, however, to cite either to the judge or to us any case directly in point where driving of this particular kind had resulted in a gross negligence manslaughter conviction giving rise to a sentence exceeding the maximum available for causing death by dangerous driving. Nevertheless, we were presented with a considerable number of other legal authorities, as indeed was the judge. Many of them are of limited assistance, not least because the sentences were passed at a time of a different sentencing regime, and most related to instances of wrongful act manslaughter. In any case, and as Mr Heywood rightly emphasised, all these cases ultimately depend on their own facts. However, we did derive some assistance from three of the more recent authorities cited to us by counsel. In R v Willett [2012] 2 Cr App R(S) 18 the position was that the appellant had been convicted of manslaughter on an indictment charging him with murder. He and his brother had been in a car park intending to steal from vehicles. As he was trying to break into a van, the owner of the van saw the attempt and stood in front of the car as the appellant's brother drove to the exit of the car park. The appellant's brother drove over the owner causing fatal injuries. The brother was convicted of murder. The appellant, who was a passenger in the car, was sentenced to sixteen years' imprisonment for manslaughter – a sentence which was reduced by the Court of Appeal to one of fourteen years' imprisonment. That sentence arose in circumstances where the car had been driven deliberately, in effect as though being used as a weapon, at the victim. 40. We were also referred to R v Etherington [2014] EWCA Crim 1867 . That was a case where, although manslaughter had been charged, pleas were accepted to an alternative count of causing death by dangerous driving. The position there was that the appellant, who had relevant previous convictions, had deliberately driven at two young girls standing in the middle of the road, seemingly intending either to frighten them or to show off. He had killed both of them. A sentence of nine years' detention was described as "not excessive" by a constitution of this court. 41. Much more recently, the decision in R v Clayton Williams [2017] EWCA Crim 305 was handed down by a constitution of this court on 15 th March 2017 (that is, after the sentence imposed in the present case in the Central Criminal Court). In that case the appellant had been charged with murder but was convicted of manslaughter. He had been driving a stolen car, seeking to escape from a burglary in which he had participated. The police had sought to intervene. In the event, Williams had driven the car deliberately across the central reservation of the road at one of the police officers who had sought to stop the car. The police officer was killed. Following his conviction after trial, Williams was sentenced on the footing that he had deliberately driven at the police officer and had recognised that in doing so he had inevitably subjected the officer to the risk of injury. The sentence imposed by the trial judge of 20 years' detention in a young offender institution, described as "severe", was upheld by a constitution of this court. 42. In the course of giving the court's judgment in Williams , the President of the Queen's Bench Division reviewed a number of authorities at considerable length. The importance attached to death as the outcome, and the increase in minimum terms for murder cases was noted. The President also noted that in cases of death caused by a motor car there was a spectrum of cases and a spectrum of sentencing options available which may vary depending on how the case was charged. At [29] he said this: "It is clear that killing another person on the road can be the result of conduct which, in terms of culpability, lies above that contained within the definition of causing death by dangerous driving but short of establishing the intention required for murder. It is in that space that is found the crime of manslaughter. On the authorities, the risk of death involved in such an offence must be very high. …" 43. The outcome of Williams in terms of sentence, namely a sentence of 20 years' detention, bears thinking about. In that case, in contrast to the present case, there had been no guilty plea; there had been a contested trial. Indeed, there seems to have been precious little in the way of remorse on the part of the defendant in that case. Second, whilst (and importantly) there was one death in Williams , not two as in the present case, a police officer acting in the course of his duty had been killed. Third, and very significantly in our view and consistently also with the position in Willett , the driver (Williams) had entirely deliberately driven at the police constable in an attempt to flee from the scene of a crime when he realised that he would inevitably be subjecting the police constable to the risk of serious injury. That cannot be said in the present case. Here the offender had not deliberately driven at this family group, targeting them. On the contrary, his intention was to escape from the police. He then lost control of his car when driving in the heedlessly reckless way as he had done. 44. At all events, what these various authorities do indicate is that the proposition may be endorsed that where manslaughter is properly charged a different approach to that available when sentencing for a statutory driving offence may be justified, depending on the facts and circumstances. 45. In the present case the judge had indicated a starting point of fifteen years' custody on counts 1 and 2, taking into account also the other offences, before allowing credit for the guilty plea. As we have said, that starting point was in excess of the maximum permitted for causing death by dangerous driving. Contrary to Mr Heywood's argument, given the particular facts and circumstances of this case and given that the offender had not deliberately driven at the victims, we think that the judge was entitled to have regard as he did to the sentencing regime for causing death by dangerous driving: although of course he was not bound by it and indeed he self-evidently did not regard himself as bound by it because he went above the maximum available for such offending. 46. Accordingly, we conclude that overall the judge was entitled to address this sentencing exercise in the way that he did. We are not overinfluenced by Mr Heywood's insistence on the point that here the offender had driven as he did in order to cause the police to give up the chase, just as he had succeeded in doing on the first occasion. We agree that that is a relevant point. But we do not think that it has the degree of force to which Mr Heywood would ascribe it, not least because the overall aim of the offender was in truth to evade the police. Regrettably, that is a common enough occurrence in many cases of dangerous driving which result in death or serious injury. 47. Given that we can see no error in the judge's approach, we have to consider whether, nevertheless, he simply got it wrong when he imposed an extended sentence of fifteen years, comprising a custodial term of twelve years and an extended licence period of three years. The judge was, in this regard, entitled to order all of the sentences to run concurrently; and he plainly had regard to the totality of the offending. 48. What this court has to ask itself is whether or not the sentence arrived at was unduly lenient. The fact, if it be a fact, that some judges perhaps might have passed a slightly longer sentence will not suffice. We can only ask ourselves: was this sentence unduly lenient? This court is only empowered to interfere if it concludes that a sentence was unduly lenient. 49. Given all the circumstances, we are not able to conclude that this was an unduly lenient sentence. The judge properly considered every available point and reached a conclusion which was properly open to him to reach. 50. In the result, we will grant leave because of the considerable importance attached to this case and because of its unusual circumstances, and in particular because it was charged as gross negligence manslaughter. Nevertheless, although we grant leave, we dismiss this appeal.

2017_05_24-3979.xml

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[2010] EWCA Crim 1692

EWCA_Crim_1692

2010-07-16

crown_court

Case No: 2009/02036/B1; 200902047B1; 200902178B1 Neutral Citation Number: [2010] EWCA Crim 1692 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/07/2010 Before : LORD JUSTICE MAURICE KAY MR JUSTICE CALVERT-SMITH and MR JUSTICE CRANSTON - - - - - - - - - - - - - - - - - - - - - Between : R - and - SHAFIQ KHAN, NAZEER KHAN & MASKEEN KHAN - - - - - - - - - - - - - - - - - - - - - Mr Andrew Stubbs QC for Shafiq Khan Mr Michael

Case No: 2009/02036/B1; 200902047B1; 200902178B1 Neutral Citation Number: [2010] EWCA Crim 1692 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/07/2010 Before : LORD JUSTICE MAURICE KAY MR JUSTICE CALVERT-SMITH and MR JUSTICE CRANSTON - - - - - - - - - - - - - - - - - - - - - Between : R - and - SHAFIQ KHAN, NAZEER KHAN & MASKEEN KHAN - - - - - - - - - - - - - - - - - - - - - Mr Andrew Stubbs QC for Shafiq Khan Mr Michael Harrison QC for Nazeer Khan Miss Frida Hussain for Maskeen Khan Mr David Hatton QC and Mr Elyas Patel for the Crown Hearing date : 29 June 2010 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Maurice Kay : 1. On 23 March 2009, in the Crown Court at Bradford, Shafiq Khan and Nazeer Khan were each convicted of offences of murder and wounding with intent arising out of an incident on 26 May 2008 in Highfield Place, Bradford. Shafiq Khan was also convicted of an offence of violent disorder in respect of a separate but related incident earlier the same day. Maskeen Khan was also convicted in relation to the Highfield Place incident. He was acquitted of murder but convicted of manslaughter and wounding with intent. For the offences of murder Shafiq Khan and Nazeer Khan each received sentences of life imprisonment with a minimum term of 12 years. For the offences of wounding with intent they each received concurrent sentences of 4 years imprisonment. Shafiq Khan also received a sentence of 4 years imprisonment concurrent in relation to the violent disorder. Maskeen Khan was sentenced to 5 years imprisonment for the offence of manslaughter with a concurrent sentence of 2 years imprisonment for the wounding with intent. Nazeer Khan was acquitted of the offence of violent disorder and both Shafiq Khan and Nazeer Khan were acquitted of offences in relation to a yet earlier but allegedly related incident on 18 May 2008. 2. Shafiq Khan and Nazeer Khan now appeal against conviction by leave of the single judge. They also renew applications for leave to appeal against conviction on grounds that were refused by the single judge. All three men were refused leave to appeal against sentence by the single judge but seek to renew their applications. We shall refer to them respectively as Shafiq, Nazeer and Maskeen. The prosecution case at trial was that all the offences were committed over a period of time when there was considerable ill feeling between two groups. The indictment and the evidence related to three incidents. The first occurred on 18 May 2008 in Manningham Park; the second on 26 May 2008 in Durham Road; and the third later on 26 May in Highfield Place. The third incident ended with the killing of Shoaib Khan (the Deceased) and the serious wounding of Zahoor Hussain. These two men were part of the opposing group. 3. Even before the incident in Manningham Park, trouble had been brewing between the two groups. Indeed, it seems to have originated out of an earlier relationship when members of both groups had together been convicted of drugs offences. The Manningham Park incident occurred after some of those convicted in relation to the drugs offences had been released from prison. The prosecution case was that Shafiq and Nazeer had gone to Manningham Park and, whilst there, each had handled a gun with which Yasser Nawaz was threatened. It was also said that Shafiq had fired the gun. However, as we have said, Shafiq and Nazeer were both acquitted in relation to the Manningham Park incident. 4. So far as the Durham Road incident is concerned, the allegation was that Shafiq, Nazeer and another man had been involved in an attack upon Eyas Khan and his vehicle. Eyas Khan was a neighbour and associate of Yasser Nawaz. 5. All this culminated in the events in Highfield Place later the same day. The case for the prosecution was that, following the incident in Durham Road, Eyas Khan organised a revenge attack which resulted in about 20 men going to the home of Shafiq and Nazeer at Highfield Place, where windows were broken and there was considerable shouting and unpleasantness. Eyas Khan’s foot soldiers then withdrew, whereupon a Volkswagen Golf arrived at the scene. It was driven by Zahoor Hussain. The Deceased (Eyas’ brother) was in the front passenger seat, wearing a balaclava. Mohammed Ravat was in the rear. The Deceased fired shots from a hand gun in the direction of 8 Highfield Place. The vehicle was then reversed into a wall whereupon it was attacked. In the course of the attack the Deceased was fatally stabbed and Zahoor Hussain also received two penetrating stab wounds to his back. 6. An eye witness was called by the prosecution and was permitted to give evidence anonymously. She was given the name of “June Waterhouse”. She said that she had been nearby when she had heard the sound of a lot of glass being broken and an outbreak of screaming. A group of six or seven Asian males were screaming and shouting at a house in Highfield Place. They appeared to be intimidating the people inside and were screaming for someone to come out. Females were screaming inside. She kept the group outside under observation for 2 or 3 minutes but did not see that any had weapons. She walked away. The noise and screaming continued to such an extent that some 5 to 10 minutes later she returned to investigate. On this occasion, from a point in Highfield Place which she identified, she saw three Asian males standing in the street. These were not the ones she had seen earlier but were “new people”. They were facing a car which was approaching and they appeared to be readying themselves. They appeared to be holding something by their sides and were staring very seriously. The car approached the three men and went past them at a crawling pace. She was less than 5 to 10 feet away. She heard a lot of noise from the car. There was a driver, a front seat passenger and at least one other. The front passenger wore a balaclava. All three were “dumped down” in their seats. The front passenger window came down and the front passenger pulled out a hand gun which he pointed at the men in the street. She felt frightened and proceeded to walk and then ran down Highfield Place. As she did so she heard a number of shots, possibly between five and seven in rapid succession. She also heard something said. By this time she was about 20 to 30 metres away. She could not recall the language but the words were to the effect: “Move forward, let’s get them”. In her police interview she had said that the words were “Come on, let’s go forward”. She said that this was more likely to be accurate as it was closer in time to the event. She could not recall if the language was English or “Pushto”. She would not have understood if it had been the latter. However, the words spoken made complete sense to her and she had understood what had been said. She had also heard the sound of a car screeching and hitting something. This was just after the words from the individuals urging each other to go forward. Then she heard glass breaking, like a car windscreen being crunched. There was screaming and shouting from many different voices, high pitched as if people were in pain. As she left, the noise seemed to escalate. It all happened very quickly, within a minute and a half. At the bottom of Highfield Place she slowed down and called the police. Of the three Asian men in the street she said that she did not know them by name but had seen them previously. She later identified Shafiq and Nazeer as being two of the men and said that Shafiq had been holding a weapon. She had not seen where they had come from but had assumed that they had come from the house at the end of Highfield Place because she understood that they lived there. 7. Following phone calls to the police from that witness and from people within 8 Highfield Place, police officers attended the area. They found the Deceased wounded and unconscious beside the car and Zahoor Hussain a short distance away. Another officer spoke to Shafiq and Nazeer in East Squire Lane. They gave their details and said that they lived at 8 Highfield Place. They were polite but agitated and nervous. They were arrested a short time later. 8. Shafiq said in interview that he had been in the house when he had heard windows being smashed. He had seen a large group outside attacking the house with bricks, sticks and hammers. He went outside. He saw about ten lads fighting in the street. He saw a car coming towards him and his brothers. A gun came from the passenger window and started firing so he hid behind a wall. After a few minutes he went back out and saw the car smashed up and three to four lads running off. In his interview, Nazeer described the attack on 8 Highfield Place. He had heard gunshots. He had gone outside with Shafiq. He saw four or five cars, one of which tried to run him over. He had had contact with that vehicle, possibly with the side mirror. The car had reversed, the windows opened and someone fired a gun at him from the passenger window. He ran back into the house and went upstairs to get a better view. When he saw the police arriving, he went out again. Maskeen gave an account which began with his hearing the windows breaking and shots being fired. He said he went out of the house into the street with his three cousins (including Shafiq and Nazeer). Shots were fired and a car came at him. There were people behind the car. He ran indoors and told his wife to call the police. 9. The prosecution relied on forensic evidence. An expert in glass analysis examined clothing from Shafiq, Nazeer and Maskeen. Nazeer’s top contained 20 glass fragments matching four categories of glass from the windows of the Golf. This provided extremely strong support for the proposition that Nazeer had been in contact with breaking or broken glass from the car. Maskeen’s clothing revealed 15 fragments of glass, providing very strong support for the proposition that he had been in contact with breaking or broken glass from the Golf. It was possible that the fragments were the result of secondary transfer but primary contact was more likely in both his and Nazeer’s case. Shafiq’s trousers revealed one fragment of glass and his top revealed two further fragments from the Golf. However, because there were only three fragments secondary transfer could not be ruled out in his case. 10. There was also expert evidence about blood. The Deceased’s clothing was extensively soaked in his own blood which caused the expert witness to conclude that he had suffered a prolonged stabbing and slashing attack. Much of the blood was inside his clothing and there was accordingly a low probability of it having been transferred to the assailants. Shafiq’s clothing was examined. His tracksuit bottoms revealed DNA matches to both Maskeen and Zahoor Hussain. Blood on his trainers matched DNA from the Deceased and also from Maskeen, Shafiq and Zahoor Hussain. Four spots of blood on the side of his shoe supported the view that he had been within a metre or so of the Deceased whilst his blood was airborne. As to whether this could be from having trodden in a pool of blood, the expert favoured the proposition that the blood had projected from an impact or exhalation because the spots were tiny and perpendicular. The blood on his tracksuit bottoms was consistent with his having been in close proximity to an assault upon Zahoor Hussain. Nazeer’s top bore smeared a contact blood stain on the cuff which had come from the Deceased. It was most likely to have resulted from direct contact with the Deceased because there was not much blood at the scene. His waist band matched blood from Shafiq. Blood on his trainers matched that of Maskeen and Zahoor Hussain. Maskeen’s clothing contained some of his own blood and his blood was also found on Shafiq and Nazeer. 11. The Volkswagen Golf was examined. Shafiq’s blood was on the door post between the seatbelt housing and the ceiling on the driver’s side and this was consistent with airborne blood, for example with his having been injured within a metre of the car and having flicked the blood from his fingers. His blood was not present on the passenger’s side. Maskeen’s blood was on the outside of the car, halfway up the metal part of the driver’s door. 12. A ballistics’ expert referred to four bullets found at the scene. They had been fired from the same gun. He concluded that the gun had been fired from the nearside of the car, adjacent to or behind the windscreen, consistent with the firer having been in the front passenger seat but holding the gun outside the window. A high level of primer residue was found on Shafiq’s clothing, suggesting that he had been very close to a gun when it was fired. Very high levels of metallic primer residues were found on Nazeer’s clothing, suggesting that he had been within two to three metres of a gun when fired. 13. All three defendants gave evidence at trial. Shafiq’s evidence varied from what he had said in interview. In evidence he described going outside the house with a broomstick for protection. He saw a vehicle coming towards him very quickly with the front passenger hanging out. The car passed him and stopped with him on the driver’s side. He thought the driver was going to get out so he started to hit him with the broom handle. He saw the passenger had a gun which was pointed towards him so he ran back into the house, hearing two or three shots as he went. When he went back outside someone was running towards him, covered in blood. He believed the man was going to attack him so he started to hit him again with the broomstick. The man then ran away. By inference, this was Zahoor Hussain. He saw a man lying in the street which turned out to be the Deceased. He said that he had lied in interview because he had been scared. 14. Nazeer’s evidence was broadly consistent with his account in interview. 15. Maskeen’s evidence was that he had left the house with a stick to protect himself and his family. His intention had been to bring his brothers back into the house. He saw a car travelling fast towards him. The front seat passenger was hanging out. Maskeen went one way and Shafiq went the other. He did not see Shafiq hit the driver of the car with a piece of wood. He did not see a gun although the front seat passenger did fire three shots when he was close to the car. He ran back to the house. He did not see the car reverse or crash. In the house he told his wife to call the police. When he went back out into the street, he saw a person lying on the ground. The appeals against conviction 16. Shafiq and Nazeer have leave to appeal against conviction in relation to the anonymous witness, June Waterhouse. They were refused leave to appeal against conviction on other grounds but have renewed their applications before us. Maskeen does not seek to challenge his conviction for manslaughter or wounding with intent. (1) The anonymous witness order 17. At one stage the Crown had given notice that they would seek orders under the Criminal Evidence Witness Anonymity Act 2008 in relation to eight witnesses. However, at trial they limited their application to one witness, having decided not to call the other seven. We shall have to return to that decision when we come to the renewed applications for leave to appeal. 18. We have already described the evidence given by June Waterhouse. It was derived from what she had said in a transcribed interview. She had made a later witness statement describing her fear about giving evidence and the reasons for it. 19. At the time of the trial, applications for a witness anonymity order fell to be considered under the Criminal Evidence (Witness Anonymity) Act 2008 . By section 1(2) of the Act, the previous common law rules, which had been set out in the case of Davis (2008) UKHL 36 shortly before the passage of the Act, were abolished. In their place, the Act provided a statutory code. Section 2 defined a witness anonymity order as an order “that requires such specified measures to be taken in relation to a witness in criminal proceedings as the Court considers appropriate to ensure that the identity of the witness is not disclosed in or in connection with the proceedings.” 20. The central provisions were set out in sections 4 and 5, which read as follows. “4 (1) This section applies where an application is made for a witness anonymity order to be made in relation to a witness in criminal proceedings. (2) The court may make such an order only if it is satisfied that Conditions A to C below are met. (3) Condition A is that the measures to be specified in the order are necessary – (a) in order to protect the safety of the witness or another person or to prevent any serious damage to property, or (b) in order to prevent real harm to the public interest (whether affecting the carrying on of any activities in the public interest or the safety of a person involved in carrying on such activities, or otherwise). (4) Condition B is that, having regard to all the circumstances, the taking of those measures would be consistent with the defendant receiving a fair trial. (5) Condition C is that it is necessary to make the order in the interests of justice by reason of the fact that it appears to the court that – (a) it is important that the witness should testify, and (b) the witness would not testify if the order were not made. (6) In determining whether the measures to be specified in the order are necessary for the purpose mentioned in sub-section (3)(a), the court must have regard (in particular) to any reasonable fear on the part of the witness – (a) that the witness or another person would suffer death or injury, or (b) that there would be serious damage to property, if the witness were to be identified. 5 (1) When deciding whether Conditions A to C in section 4 are met in the case of an application or a witness anonymity order, the court must have regard to – (a) the considerations mentioned in sub-section (2) below, and (b) such other matters as the court considers relevant. (2) The considerations are – (a) the general right of a defendant in criminal proceedings to know the identity of a witness in the proceedings; (b) the extent to which the credibility of the witness concerned would be a relevant factor when the weight of his or her evidence comes to be assessed; (c) whether evidence given by the witness might the sole or decisive evidence implicating the defendant; (d) whether the witness’s evidence could be properly tested (whether on grounds of credibility or otherwise) without his or her identity being disclosed; (e) whether there is any reason to believe that the witness – (i) has a tendency to be dishonest, or (ii) has any motive to be dishonest in the circumstances of the case, having regard (in particular) to any previous convictions of the witness and to any relationship between the witness and the defendant or any associate of the defendant; (f) whether it would be reasonably practicable to protect the witness’s identity by any means other than making a witness anonymity order specifying the measures that are under consideration by the court.” 21. In Mayers and others [2008] EWCA Crim 2989 Lord Judge CJ said of section 5 (at paragraph 19): “None of these considerations outweighs any of the others, and the order in which they appear does not represent an order of priority or importance. They are not exhaustive or restricted to those expressly mentioned, and they leave open the possibility that in an individual case some further point may properly arise for consideration. Equally, none is conclusive on the question whether the individual defendant will receive a fair trial. Moreover, none precludes the possibility of an anonymity order, but these considerations do not diminish or minimise the crucial requirement that before an order may be made conditions A to C in section 4 must be met. It is nevertheless clear from even a cursory glance that the focus of the considerations in section 5 is protection of the interests of the defendant.” 22. For a time, in the light of the judgment of the Fourth Section of the European Court of Human Rights in Al-Khawaja and Tahery v United Kingdom [2009] 49 EHRR 1 , doubt was cast on the compatibility of the statutory provisions with Article 6 of the ECHR. However, it is now clear from the decision of the Supreme Court in Horncastle and others [2009] UKSC 14 that our task is to apply the statutory provisions, as explained in Mayers . 23. In a ruling given on 9 February 2009, the trial judge, Teare J, granted the application for witness anonymity in relation to June Waterhouse. He ordered the following measures: “(a) The witness’s true details be removed from disclosable material. (b) The pseudonym ‘June Waterhouse’ be used. (c) Her true identity be withheld. (d) She give evidence via video link. (e) She not be asked questions that might lead to her identification. (f) Her voice be disguised except from the judge and jury. (g) Her image be pixilated, except from the view of the judge and jury.” 24. The reason why only the judge and jury were to be permitted to see the natural appearance of the witness on the video-link and hear her natural voice was that initially defence counsel were not able to give an undertaking that, if they were to see the natural appearance and hear the natural voice, they would not reveal what they had seen or heard to their professional or lay clients. However, they were later able to give such an undertaking and measures (f) and (g) were relaxed for their benefit. 25. On any view, the ruling of the trial judge was expressed with clarity and care. It occupies 28 pages of transcript. Nevertheless, the first question we have to consider is whether, as Mr Stubbs QC and Mr Harrison QC submit, the judge was wrong to make the witness anonymity order. In this court, the issue is focused on Condition B, that is whether, having regard to all the circumstances, the specified measures “would be consistent with the defendant receiving a fair trial”. It is not suggested that the judge fell into any error in relation to Conditions A or C. 26. Mr Stubbs prefaces his submissions on this issue with a reference to a comment by the Lord Chief Justice at an early stage in the judgment in Mayers (at paragraph 10): “As we shall see when we examine the statutory considerations a detailed investigation into the background of each potential anonymous witness will almost inevitably be required.” 27. Mr Stubbs submits that this did not take place and that, as a consequence, the defendant did not receive a fair trial. He further submits that the lack of a sufficient enquiry is evidenced by the readiness of the judge to allow the witness to “self-certify” her impartiality. 28. In his ruling, the judge observed that the defence had been informed that the witness had been asked whether she knew the Deceased, Zahoor Hussain or Eyas Khan but had replied in the negative. The judge said: “In these circumstances, if the witness is asked whether she knows, or is connected with those who attacked the house and answers ‘No’ the defendants will not – it seems to me – be prejudiced in not knowing the identity of the witness. … Of course, if the witness answers ‘Yes’ to any such question, then the matter would have to be immediately reviewed … At present, therefore, I consider that the witness’s evidence can properly be tested in this regard without her identity being revealed.” 29. The judge then addressed the question of possible bias against the defendants, but rejected it on the same grounds. He then said: “The [next] issue is whether there is reason to believe that the witness is hostile to the defendants because of what the witness knows of them and may, therefore, give dishonest evidence. … In what has been described as her fear statement she said that she ‘kind of knows what those individuals are like and she knows the sort of things they get up to’. In January of this year, after counsel had given certain advice, she was asked whether she had an axe to grind against the defendants. She said she did not and she barely knew the defendants and did not know them by name. The defendants have not identified any event or events concerning them which may have caused others to have such a damaging view of them that such persons might have a motive to give dishonest evidence against them. In those circumstances, if the witness is asked whether she has a reason to be hostile to the defendants and answers ‘No’, the defendants will not, it seems to me, be prejudiced in not knowing the identity of the witness. They have not identified any event which might have caused those who are aware of such event to have such a hostile view of them that it might make it necessary to know who the witness is. Of course if the witness answered ‘Yes’ to any question, then the matter would have to be immediately reviewed.” 30. In other words, the judge satisfied himself that enquiries had been made of the witness with a negative result. It is apparent from the way in which he expressed himself, that he anticipated that defence counsel might themselves cross-examine her about these matters, without of course doing so in a way which might lead to her identification. In the event, no such cross-examination ensued. 31. As regards the complaint of “self-certification”, the investigating officers would have been failing in their duty if they had not asked the witness questions designed to flush out any suggestion of partiality. In addition to asking her, they checked her criminal record and other police data bases. She is a person of good character. We have seen the material that was placed before the judge. It contains no basis for suspecting partiality. Moreover, one is bound to ask: what else were the police to do? Mr Stubbs and Mr Harrison suggest that they should have conducted enquiries in the local community to ascertain whether the witness might be adversely disposed towards the defendants. However, it is difficult to see how this could be done without risking the disclosure of her identity to people who might pass it on to the appellants or their associates. It is also important to keep in mind the content of her evidence. In her account she did not seek to minimise the wrongdoing of those who attacked the house in Highfield Place nor that of the occupants of the Volkswagen Golf. In her account in relation to the appellants, she did not claim to have seen them resort to violence, nor did she refer to a knife. In our judgment, the judge committed no error in his approach to bias, partiality or improper motive. 32. In his prospective evaluation of June Waterhouse’s evidence, the judge concluded that it was not the “sole” evidence relied upon by the prosecution, not least because of the cogent scientific evidence. He considered that her evidence “might well be decisive in causing a jury to be sure that the defendants approached the car and its occupants as party to a joint enterprise to attack them”. As the “sole or decisive” test is not determinative in English law but simply one of several matters to be considered, it cannot be said that the judge erred in his approach to it. The judge was entitled to conclude, as he did, that when counsel came to cross-examine the witness about what she actually saw and heard, they were not unduly disadvantaged. They proceeded to cross-examine her rather as they would have cross-examined an identified witness who gave the same evidence. 33. All this leads us to the conclusion that the judge’s ruling was correct. Condition B was satisfied. We do not forget that counsel made broader submissions about the fairness of the trial. We shall return to these later in the judgment. (2) The surviving occupants of the Volkswagen Golf 34. Zahoor Hussain and Mohammed Ravat survived the attack on the car although Zahoor Hussain was seriously injured. Both were interviewed by the police and gave detailed accounts. At no stage did the Crown wish to call them as witnesses. What they had to say was served as unused material. The reason why the Crown did not wish to call them is obvious. They gave mendacious accounts as to the reasons for their arrival in the area and they denied that the Deceased had fired a gun and that he was wearing a balaclava. Indeed, Ravat asserted that Shafiq was in possession of and fired a gun in the incident. Mr Stubbs and Mr Harrison submit that it was quite wrong for the Crown not to call or at least to tender the two men. Their complaint is that, although Hussain and Ravat gave accounts at variance with and adverse to the cases of the appellants, parts of their accounts were favourable to them. In particular, they did not describe any of the defendants as carrying a knife. Both described a man with a knife but the description did not match Shafiq (who, in any event, was wrongly identified by Ravat as having been in possession of a gun). Moreover, both men suggested that the number of assailants was greater than the number in the dock. Hussain said “might have been six or seven” and Ravat said “between four to five roughly, it could be more”. Mr Stubbs and Mr Harrison contend that the identity of the man with the knife and the number of assailants were matters of fundamental importance to the defence because the case for the Crown was one of joint enterprise on the part of the three men in the dock, one of whom was the man with the knife. 35. In support of this submission they refer to Russell-Jones [1995] 1Cr App R 538 , in which Kennedy LJ set out the principles which govern the duty of the Crown in relation to the calling of witnesses. The touchstone is, of course, fairness, but the principles (set out at pages 544–545) give more specific guidance including: “The prosecution ought normally to call or offer to call all the witnesses who give direct evidence of the primary facts of the case, unless for good reason, in any instance, the prosecutor regards the witness’s evidence as unworthy of belief … If what a witness of the primary facts has to say is properly regarded by the prosecution as being incapable of belief, or as some of the authorities say ‘incredible’, then his evidence cannot help the jury assess the overall picture of the crucial events; hence, it is not unfair that he should not be called.” 36. In our judgment, it was not unfair of the Crown in the present case to refuse to call or tender Hussain and Ravat. Having reasonably concluded that the witnesses were telling obvious lies about themselves and the deceased, their decision was a proper exercise of discretion. 37. Whilst it was open to the defence to call Hussain or Ravat, we accept that no competent defence counsel would have done so. It is not unusual for a witness to a crime not to be called to give evidence because, for good reason, neither party chooses to call him. In the present case, the Crown offered at trial to read or to make admissions as to what Hussain and Ravat had said about the man with the knife and the number of assailants, without accepting the accuracy of the passages in question. However, the Crown were only willing to do so if they were also permitted to read or make admissions in relation to the passages which tended to establish their untruthfulness and the passages which implicated the appellants as being present during the attack. Counsel for the defendants, on instructions, would not agree to such a course but would only agree to the jury knowing about those passages which were helpful to the defence case. In our judgment, they had no right to such cherrypicking. Moreover, we question whether the well-intentioned offer of the Crown could have had a proper lawful foundation. Whilst it is the experience of all of us that things are sometimes done by agreement in the course of a criminal trial which might lack a proper legal foundation, the position here was somewhat complex. Admitting what a non-witness has said whilst denying the accuracy of it and without any disclosable explanation to the jury of why such a course was being taken is hardly desirable. Of course, and as happened here, it was open to the defence to apply to the judge to allow the statements of Hussain and Ravat to be read as hearsay in the interests of justice pursuant to section 114(1)(d) of the Criminal Justice Act 2003 . However, the judge rightly ruled against the application following a rigorous application of the criteria set out in section 114(2). The application was highly selective, being confined to those passages helpful to the defence. Exchanges between the Bar and the Bench in the course of the hearing before us demonstrated the difficulties which may arise where, for good reason, neither party wishes to call the witness but one party wishes to adduce part of what the witness has said which is helpful to his case but adverse to the other party. In the absence of agreement (or the judge calling the witness, which neither side has suggested as appropriate in the present case), the evidence may have to remain incomplete. That, it seems to us, is an acceptable consequence of an adversarial procedure. A fair trial denotes fairness to both sides. To have taken the course sought by the defence in the present case in relation to these two potential witnesses would have been grossly unfair to the Crown. (3) The uncalled anonymous witnesses 38. Mr Stubbs and Mr Harrison next turn their attention to the seven uncalled anonymous witnesses – that is to say, witnesses whom the Crown had originally intended to call anonymously but in respect of whom they did not press the application for anonymous witness orders. The debate focused on two of the seven who have the pseudonyms “Justin Rose” and “William Price”. The reason why the Crown did not pursue their application in relation to these two witnesses was that they took the view that their evidence could not be properly cross-examined without their identities being revealed. Accordingly, their statements became unused material with a cloak of anonymity. Rose described people coming out of the appellants’ house “having sticks in their hands … three or four of them … had sticks in their hands”. He also repeatedly expressed himself in terms of what “we” could hear or see. At one point he was describing “about five or six of them”. Price, who also used the pronoun “we” at one point referred to “three or four lads” and later “at least four”. 39. If the defence had known the identities of Rose and Price it is unthinkable that they would have called them as defence witnesses. The reason is that both men clearly know the appellants and their detailed accounts describe them as the assailants after the Volkswagen Golf arrived. We are entirely satisfied that no competent counsel would have called them when they would be open to cross-examination in a way which would provide significant contradiction of the defence case. Mr Stubbs and Mr Harrison do not leave the matter there. They submit that if the defence team had had access to these witnesses it might have led them to other witnesses who might have been helpful to the defence. This submission is predicated partly on the recurrent use of the word “we”. 40. Again, at trial, there was an investigation as to how material from the statements of Rose and Price might be placed before the jury for the benefit of the defendants but the consideration ran aground on the same rocks as had impacted upon Hussain and Ravat. We regard that as inevitable. The only question is whether, by being kept in the dark about the identity of Rose and Price, the defence were unfairly denied access to other possible witnesses. The judge regarded this as being in the realm of speculation. In our view, he was right. Counsel were not able to place before us any material suggesting that there might be some crock of gold or even baser metal at the end of this particular rainbow. In addition, Mr Hatton QC, on behalf of the Crown addressed us briefly in private and imparted to us information which underwrites this conclusion. (4) Overview of fairness 41. The matters we have been considering so far also fall to be considered on a holistic basis. It is submitted on behalf of the appellants that, even if the grounds do not find favour individually, taken together they should cause us to doubt the fairness of the trial and, as a consequence, the safety of the convictions. We reject this submission. The evidence of June Waterhouse was properly admitted and now, with the benefit of hindsight, we are wholly unpersuaded that, having been admitted, it gave rise to unfairness. The judge dealt with it appropriately in his summing-up. No-one suggests otherwise. The specific complaints about it amount to little more than can be advanced in relation to the evidence of any anonymous witness whose evidence is disputed. The grounds relating to Mohammed and Ravat and to Rose and Price have found no favour with us whatsoever. The complaints are the result of the natural operation of an adversarial procedure and of decisions made by counsel at trial as to how to present the defence case. That is not intended to imply a criticism. We think that the decisions were entirely understandable. However, many of them were made in the hope of securing advantages without incurring reciprocal disadvantages. This is not always possible and fine judgments have to be made. We think that there are questions that counsel could have asked of June Waterhouse to probe her reliability and impartiality without putting her anonymity at risk. Counsel chose not to ask them. That was a matter for them. We simply do not accept that they or their clients were put in an impossible position by any ruling of the judge or by the approach of the Crown. We do not consider, taking a holistic view, the trial was unfair. (5) Inconsistent verdicts 42. The complaints here are that the convictions of Shafiq and Nazeer are inconsistent with the acquittal of Maskeen on the charge of murder, he having been convicted of manslaughter by reason of provocation. Mr Stubbs advanced this proposed ground of appeal with appropriate diffidence; Mr Harrison less so. In truth, it is unarguable. The test is a demanding one: see Archbold, paragraph 7-70. The threshold is logical inconsistency. The evidence in relation to the three defendants inevitably differed. In relation to each of them the jury had to consider what they did and whether they lost their self-control. The accounts of the three defendants differed, as did the forensic evidence in relation to them. We do not consider that there is an arguable case of logical inconsistency. Conclusion on appeals against conviction 43. It follows from what we have said that we reject the grounds of appeal for which leave was granted by the single judge. So far as the renewed applications are concerned, we grant leave in relation to all grounds except inconsistent verdicts. We think that the grounds in relation to the uncalled witnesses and overall unfairness overlapped with the ground relating to June Waterhouse. Having granted leave in relation to them, we dismiss the appeals against conviction. We refuse leave on inconsistent verdicts. Appeals against sentence 44. Shafiq, Nazeer and Maskeen renew their applications for leave to appeal against the sentences imposed following refusal by the single judge. We grant leave. 45. As we have said, on the count of murder both Shafiq and Nazeer were sentenced to serve a minimum of 12 years less the period they had each spent in custody before trial before they may be considered for release. Both submit that the degree of provocation to which they had been subject prior to the attack upon the Deceased and Zahoor Hussain justified a greater reduction from what they agree was the correct starting point of 15 years. They draw support from the Sentencing Guidelines Council Guidelines on sentences in cases of manslaughter by reason of provocation. They submit that the provocation to which they were both subjected was “high” as opposed to “substantial” as found by the judge. 46. In sentencing these 2 appellants the judge considered whether there were aggravating features which should increase the starting point. He found none. He then turned to mitigating features. He indicated that both fell to be sentenced as secondary parties, and that they would be sentenced on the basis of an intent to cause really serious injury rather than an intent to kill and that there had been no premeditation. He then said “Fourthly, for the same reasons, there was provocation, though not such as to amount to a defence to murder and there was an element of self-defence, though not such as to amount to a defence to murder. The degree of provocation was substantial. The house had been attacked by at least 23 people and you had been shot at. Furthermore your attack on the car and its occupants occurred very shortly after these events, in particular the shooting.” 47. There were therefore four mitigating features of the seven listed in paragraph 11 of Schedule 21 to the Criminal justice Act 2003 . 48. The sentence had to reflect the fact that a second serious offence had been committed at the same time, which, because of the mandatory life sentence for the murder, could not be ordered to run consecutively to it. Although not wholly irrelevant, the guidelines on sentence for those who have been acquitted of murder but convicted of manslaughter are of little assistance. 49. On behalf of Maskeen, Ms Hussain, who was junior counsel at the trial, submits that his sentence of 5 years imprisonment was too long in view of the matters already referred to and strong personal mitigation. In particular he had only recently arrived in this country. He was staying at 8 Highfield Place with his pregnant wife and was there, as a favour to his father in law, looking after the women and children of a large extended family at the address. He was a man of good character. He had no connexion to the feud which had preceded the night of the murder. 50. It is submitted that he fell to be sentenced in the lowest category of case in which the provocation is “high”, rather than, as the judge found, “substantial”. Alternatively it is submitted that the judge should have sentenced at or below the bottom of the middle range. In that connexion she submits, correctly in our judgment, that four of the five “additional mitigating factors” in the guidelines were present. The offender was acting to protect others. The offences were spontaneous. The victims presented an ongoing danger to others, and the applicant reasonably anticipated further violence from them. The starting point for the lowest category is three years imprisonment with a range from community penalty to four years and for the middle range eight years with a range from four to nine years. He too was being sentenced for an offence under section 18 of the Offences against the Person Act 1861 . 51. Having considered the three cases, we believe that there should be some reduction to reflect the degree of provocation and the other features correctly identified by the sentencing judge in respect of the murder and to us on behalf of Maskeen. 52. We allow the appeals of Shafiq and Nazeer by substituting minimum terms in both cases of 10 years. We allow the appeal of Maskeen and reduce the sentence to 4 years. The remaining orders as to time spent in custody awaiting trial remain. 53. We grant a certificate to counsel for Maskeen to cover her preparation and appearance at court.

2010_07_16-2453.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/1692/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/1692

c35bfa415365dca48519a1742622870fd29417e88a2aed02b88abf796c9dee97

[2023] EWCA Crim 735

EWCA_Crim_735

2023-06-28

crown_court

Neutral Citation Number: [2023] EWCA Crim 735 Case No: 202103723 B3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT BRISTOL HIS HONOUR JUDGE PICTON T20217041 Royal Courts of Justice Strand, London, WC2A 2LL Date: 28 June 2023 Before: LORD BURNETT OF MALDON, LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE BUTCHER and MRS JUSTICE CUTTS DBE - - - - - - - - - - - - - - - - - - - - - Between: REX Appellant - and - PENELOPE JACKSON Respondent - - - - - - - - - - - - - -

Neutral Citation Number: [2023] EWCA Crim 735 Case No: 202103723 B3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT BRISTOL HIS HONOUR JUDGE PICTON T20217041 Royal Courts of Justice Strand, London, WC2A 2LL Date: 28 June 2023 Before: LORD BURNETT OF MALDON, LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE BUTCHER and MRS JUSTICE CUTTS DBE - - - - - - - - - - - - - - - - - - - - - Between: REX Appellant - and - PENELOPE JACKSON Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Clare Wade KC (instructed by Arif & Co ) for the Appellant Christopher Quinlan KC (instructed by The Crown Prosecution Service ) for the Respondent Hearing date: 21 June 2023 - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment was handed down remotely at 10.00am on 28 June 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives. ............................. Mrs Justice Cutts DBE: 1. On 29 October 2021 the applicant, then aged 66 years, was convicted after her trial in the Crown Court at Bristol of murder by a majority of 10:2. She was sentenced to imprisonment for life with a minimum term of 18 years pursuant to s.322 of the Sentencing Act 2020 . 2. She renews her application for leave to appeal conviction following refusal by the single judge. 3. There was no dispute at trial that the applicant killed her husband, David Jackson, on 13 February 2021. The issues were ones of intent and, if proved, loss of control. 4. The principal issue on this renewed application concerns the adequacy of the judge’s direction on loss of control in circumstances where the applicant alleged a long history of coercive control by the deceased in their relationship. There are further issues in the duty of the prosecution to call witnesses disclosed rather than served as part of their case and the release to the press of digital evidence produced in the trial before the end of the trial. The facts 5. At the time of the killing the applicant had been married to the deceased, aged 78 years, for 24 years. On 13 February 2021, when the country was in lock down, there was a birthday meal for the applicant. The applicant and deceased were present together at their home address. Their daughter, Isabelle, and son-in-law Tom Potterton attended by Zoom. During the meal there was a disagreement between the applicant and deceased which upset her and the meal ended. 6. Shortly afterwards, the applicant sent a message to her daughter which read: “Have tried all the websites, useless. If this goes tits, you have this message. No idea what is going on? I love you to the ends of the earth. God blessing.” 7. Almost exactly an hour later, the deceased called the emergency services and stated that he had been stabbed by the applicant in the chest. The applicant took over the call from him and informed the emergency operator that she had stabbed her husband. During the call, she stabbed him twice more. She inflicted a total of four stab wounds upon him. Two were to his chest. One was to his abdomen and the other to his thigh. The wounds to the torso caused a catastrophic loss of blood which the deceased could not survive. The prosecution case 8. The prosecution case was that the applicant had intended to kill the deceased and that there had been no loss of control. She had intended to kill him when she went to his bedroom and inflicted the wound to his chest whilst he lay in bed and when she inflicted the further wounds which proved fatal. 9. Her comments and conduct whilst the deceased was on the phone seeking help, together with comments she made when arrested at the scene and in the custody suite demonstrated her intent and that she had retained her self-control. 10. There was no serious threat of violence to the applicant when she inflicted the wounds. She had invented or exaggerated her claims of domestic abuse in the form of controlling and coercive behaviour during the marriage and her evidence that he had taunted her when she inflicted the first wound did not justify a sense of being seriously wronged. 11. The applicant knew what she had done and why she had done it. At no point did she suggest in a confession note, the 999 call or the conversation with police officers after her arrest that she had lost self-control. 12. To prove the case against the applicant, the prosecution relied on the following: i) The 999 call made initially by the deceased in which he said that the applicant had stabbed him. The call was taken over by the applicant who said that she had done so and had done it again. She said “ I have killed my husband, or tried to, because I’ve had enough.” She was calm and resolute during the call and able to give her address and telephone number before stabbing the deceased again. She repeatedly stated that she was “compos mentis”. She refused to follow the instructions of the operator to assist her husband whilst waiting for the ambulance. She said that she knew that the call was being recorded but had had enough of the abuse and nastiness. She told the operator that the deceased was in the kitchen “ bleeding to death with any luck.” She said that she wanted him to die. She said that she had stabbed him three times, once to the shoulder and twice to the abdomen. She said that his death was a dreadful solution for her but was her only way out. ii) Second, the prosecution relied on comments made by the applicant to police officers who attended the address. These were recorded on body worn cameras. On her arrest for attempted murder, she replied “ Hopefully it’s not attempted.” She repeated comments that she hoped her husband was dead. iii) Third, the prosecution relied on the evidence of the officers at the scene who, amongst other things found a notepad which contained a note written by the applicant headed “confession” and “to whom it may concern”. In that note, the applicant said that she had taken so much abuse over the years. The deceased was a good father, but the mask slipped that night. She concluded that she accepted her punishment and “ may he rot in hell.” The prosecution alleged that this was written before she had stabbed the deceased and was a prediction of what she was about to do. iv) Fourth, the comments made by the applicant following her arrest and on her arrival in the custody area of the police station. She was assessed there by a mental health nurse and was calm, able to engage appropriately and answer questions clearly. v) Fifth, evidence from the pathologist as to the number of stab wounds, their depth and the force with which they were inflicted. It was the Crown’s case that they were not inflicted as a result of loss of control. vi) Evidence from family and friends which provided insight into the character, personalities, relationship and marriage of the applicant and deceased. They had witnessed no more than bickering between them. None had witnessed physical violence or considered the deceased to be controlling. 13. The applicant provided a prepared statement in her police interview in which she gave the background of her relationship with the deceased. She spoke of an incident when she had been threatened with violence by the deceased on 23 December 2020 and the meal on 13 February 2021. She denied any intention to kill or cause harm to the deceased. Thereafter she made no comment to questions asked of her. The defence case 14. The applicant accepted that she was guilty of manslaughter. It was her case that she did not have the intent for murder. 15. Further the applicant said that she had lost control in the context of her being a long-term victim of domestic abuse at the hands of the deceased who had become increasingly more controlling, isolating, violent and abusive during the course of the marriage and it was this, together with the combination of words used by him on 13 February 2021 whilst thrusting his face towards her which had triggered her eventual loss of self-control. 16. In her evidence, the applicant said that she did not know what she was doing when she killed her husband. She said that she loved him and did not want to hurt him. She had been babbling when she spoke to the emergency services and did not know what she was saying. She said that she had not meant to kill the deceased. 17. On 13 February, she had gone to bed following the meal, upset because the deceased had ruined it. She was in despair, thinking about all she had given up for him. She decided to kill herself, using a knife she had taken to the bedroom to protect herself against the deceased. She confronted him with it in the spare room and told him he could not do “this” anymore. He goaded and belittled her, telling her that she was pathetic. At this point she lost self-control and inflicted the first wound to his chest with the knife. 18. She left the bedroom, put the knife down in the kitchen and wrote the confession note. She described it as her confession for having stabbed the deceased in the chest. She had lost all self-control and had not intended to cause him really serious harm. 19. When the deceased telephoned the emergency services, she said he taunted her saying she could not even get that right and was pathetic. His face was close to hers with his neck extended. The appearance of his eyes was indicative of him being horrible and she stabbed him again, this time to the abdomen. She had not helped him when asked to do so by the paramedic on the 999 call; neither had she stemmed the bleeding or got towels when asked to do so as she was scared of him and physically could not move. 20. In support of her defence that she had lost self-control, the applicant described the deceased as being at times an abusive husband who had physically and mentally mistreated her. She had concealed his controlling and abusive behaviour from others. She relied on the following examples of his controlling and coercive behaviour: i) There had been jealousy from the deceased from the outset. He required her to demonstrate an unwavering commitment; ii) He insisted that the applicant’s youngest daughter, Isabelle, was presented to everyone as his biological daughter so they presented as a family unit. This isolated the applicant from friends and family who knew the truth. There could be no reference to the applicant’s past. The deceased cultivated a “them” and “us” mentality which alienated others outside of the relationship. She was not permitted her own friends. They socialised only jointly; iii) The evidence of Charlotte Revelly who had hidden letters and photographs of the applicant’s previous husband, Isabelle’s biological father, at her request; iv) The deceased had caused criminal damage to property in their home; v) Following the suicide of the deceased’s son, there were a series of incidents of violence by the deceased towards the applicant. These included her being thrown down a set of stone stairs, being punched in the face and, at a family barbeque, being headbutted with a knife being held to her throat. The applicant had counselling about his violence; vi) The deceased frequently made threats that he would wake Isabelle at night and tell her of her true paternity which terrified the applicant; vii) The deceased was violent to her in front of Isabelle, waking her on one occasion when she was aged 7 or 8. He broke a mother’s day gift that she had bought the applicant in front of her; viii) Incidents of sexual violence had taken place about which the applicant had been too ashamed to tell anyone; ix) The deceased was verbally aggressive, demanding and demeaning towards the applicant. He belittled her in front of her friends. On occasions he grabbed and shook her, calling her a thing. He became irritated if she was considered by him to be too loud or annoying for expressing her opinions. She would be subjected to periods of silence where the deceased would ignore her; x) On 23 December 2020, the applicant recorded on her phone an incident where, following an argument over the remote control, the deceased told the applicant to “ fuck off to bed before I throw this (a wine glass) at you. ” He threatened her with a poker and broke the conservatory window where she had locked him in because she was frightened. The applicant called the police after the deceased left the house as she was worried about him. When the police arrived and noticed bruising to her arms, she minimised what had happened and did not wish to pursue a prosecution; xi) On 13 February 2021, the applicant had bruising to her upper arms when brought into custody. These were caused when the deceased grabbed and shook her because she had been talking to Isabelle about him; xii) The deceased had medical issues and treatment which the applicant linked to his behaviour. She spoke of the burden placed on her whilst she cared for him including cleaning him if he soiled himself and clearing up when he threw food that she had cooked onto the floor, made appointments for the deceased including contacting hospitals on his behalf and ran her life according to his needs. This involved cooking his meals at certain times, all the housework, shopping and gardening whilst being told she could not do anything right. She was not permitted to do anything on her own and had to be with the deceased at all times. 21. The applicant had not appreciated that she was being coercively controlled until after she had been remanded in custody where she felt safe and could speak about her experiences without feeling ashamed. 22. She further relied on her good character. Issues for the jury 23. The issues for the jury were whether they were sure that the applicant had intended to kill the deceased or cause him really serious harm. In deciding whether she had such intent, the jury were directed by the judge to consider what she did and said at the time of the killing as well as before and afterwards. For example, they had to consider the significance of the confession note. 24. If they accepted that the applicant had such intent, the jury had then to consider the defence of loss of self-control. In this regard, the jury had to consider first whether the applicant had in fact lost her self-control, second, if so, what the trigger was for any loss of self-control and third whether someone in her circumstances might have lost her self-control. In this context, a significant issue in the trial was the degree to which the applicant was or was not the subject of domestic abuse on the part of the deceased. Ruling on the calling or tendering of witnesses 25. In advance of the trial, the prosecution disclosed the witness statements of Isabelle and Tom Potterton, Patricia Jackson and Karen Fisher, to the defence as unused material. 26. The defence applied during the trial for these witnesses to be called by the prosecution or tendered for cross-examination or, alternatively, for the judge to call the witnesses himself. It was submitted that they were all credible and capable of belief. The defence should be allowed to cross-examine them as opposed to calling them, avoiding an unfair advantage to the prosecution of being able to cross examine them. 27. Ms Wade KC, who acted for the applicant as now, submitted that Isabelle and Tom Potterton were direct witnesses to the lead up to the offence as they were present at the Zoom meal. Further, Isabelle could give an account of the bickering between her parents, the events of 23 December 2020 and of the domestic violence towards her mother. She supported her mother’s account in relation to the threats made by the deceased to reveal her true paternity, an aspect of the deceased’s controlling and coercive behaviour. 28. Ms Wade submitted that Patricia Jackson, the deceased’s first wife, could give relevant evidence as to the deceased’s behaviour towards her whilst married and that he was controlling. Without this evidence, the jury only had the evidence of Sheila Taylor, the deceased’s second wife, and were deprived of the whole picture. 29. She submitted that Karen Fisher, the deceased’s eldest daughter, could give relevant background evidence of threats made to the applicant with a knife in Germany in the early stages of their relationship. 30. Ms Wade accepted that many of the authorities on the subject of the Crown’s duty to call witnesses concerned a refusal to call those whose statements had been served upon the defence as opposed to those which had been provided by way of unused material. She submitted however that it is by no means clear that the principles at common law do not apply to both served and unused witnesses. Further, she submitted that these authorities predated the Criminal Procedure Rules and the overriding objective to achieve justice which they have imported. 31. The issue in this case was one of domestic abuse in the form of controlling and coercive behaviour which had been hidden from family and friends. Any evidence which went to that issue should have been called by the prosecution. In the event that the prosecution refused to call these witnesses, the judge should exercise his discretion and power to do so. 32. The prosecution submitted that the judge could not order the prosecution to serve, then call any witness whose statement had been disclosed as unused material. Neither the Criminal Procedure Rules nor the Criminal Practice Direction empowered the court to do so. There was a distinction between witness statements served and those disclosed. The defence application concerned disclosed statements. The prosecution had a discretion about which witnesses to call and there was no obligation to call witnesses whose statements had been disclosed but never relied upon as part of the prosecution case. The defence were free to call the witnesses themselves and were not prejudiced by so doing. 33. The judge ruled that there was no legal foundation for the assertion that the court could compel the prosecution to call the witnesses. Even if the court did have the authority to order the prosecution to call the witnesses, the judge would not do so. They had not been served as part of the prosecution case. They were available to the defence and there was no impropriety in the prosecution choosing not to call them. The discretion exercised by the prosecution appeared reasonable. The witnesses were available and compellable. It was not necessary for the court to call the witnesses to ensure a fair trial. This was not an unusual case where the court should do so. It was a matter for the defence to decide whether to call the witnesses at the relevant stage of proceedings. 34. In the event the defence called Isabelle and Tom Potterton as witnesses during the presentation of their case. Ruling on the release of digital footage to the Press 35. On 18 October 2021, the press made an application to the court for the audio and video footage which had been played to the jury to be released to them. This was considered by the court on 19 October, just before the applicant was due to give evidence. 36. The defence objected to the release of this material at this time. Ms Wade submitted that these would not normally be released until after the end of the trial. The principle of fair and accurate reporting could be confined to what had been said in court and there was no need to release the material to the media. There would be no control over the use of it which could affect the fairness of the trial. 37. The prosecution did not object to material which had been shown in evidence in the trial being reported and released to the media. 38. The judge ruled that footage limited to what had been seen in the trial could be released to the media. The jury would be told that video footage may come into the public domain via the press and that they should only review that material in the context of the trial when they were alone in their room once they had gone into retirement. 39. On 21 October 2021, the defence raised with the judge that the footage released to the media had appeared on YouTube with various comments posted, prejudicing the administration of justice, not just in relation to the jury but also the witnesses to be called. The judge confirmed that an advisory had been sent by the Press Office for the comments on that platform to be removed and that the jury, in accordance with the directions given, would not look at them. The summing up on loss of control 40. During his summing up on this issue, the judge set out the test which the jury had to apply and the questions the jury had to ask themselves in coming to their verdict. In relation to each question, the judge set out the case of both the prosecution and defence. 41. When it came to consideration of the qualifying trigger, the judge told the jury that the defence contended that this was a marriage during which the applicant was regularly the victim of violence at the hands of the deceased and that the jury must view the events on the night in question in that context. He told them that the defence case was that the applicant had grounds to fear serious violence from her husband particularly in light of the threats he had made with the poker on 23 December 2021. The account from the applicant should be assessed in the context of the marriage as a whole, during which the applicant claimed to have regularly been the victim of violence at the hands of her husband, controlling and isolating behaviour on his part and efforts at belittling her and mistreating her in the various ways she described in her evidence. 42. The judge said this: “The defence argument is that domestic abuse, both physical and mental, as the defendant related that to you, the cumulative impact of that history, the laying on of the final straw, as the events of that night have to be assessed by reference to the history of it might be termed, had the effect of causing her to lose it, either by reason of a fear of serious violence and/or by reason of what David Jackson said and did that night, assessed in the context of the relationship as a whole. As she put it many times in evidence, she had coped until she could not.” 43. The judge set out the defence case in similar terms on the issue of whether someone in the same circumstances of the applicant might have lost self-control. Again, he reminded them of the defence argument, specifically that the jury needed to consider the years of domestic abuse and incremental harm that was caused by being treated in the way that the applicant described – controlled, throttled, pushed, belittled, sworn at, subjected to silence, dehumanised by being referred to as a thing and threatened as recently as 23 December 2021 with a poker. 44. The judge specifically directed the jury on the question of domestic abuse. He directed them that one of the issues in the trial was the degree to which the applicant was or was not the subject of domestic abuse on the part of the deceased. He summarised the prosecution case on this topic as “ insofar as there was friction in the marriage the defendant is choosing to exaggerate and/or invent behaviour on the part of David Jackson in order to support a defence of loss of control.” The judge went on to summarise the defence case that the deceased was at times an abusive husband who mistreated the applicant both physically and mentally, that she was a victim of what is now termed coercive and controlling behaviour. The defence also suggested that the applicant adopted a strategy of seeking to conceal from others, even those closest to her, the reality of her life and how her husband was behaving towards her. 45. The judge directed the jury not to approach the question of domestic abuse with any misguided stereotypical thinking; for example, thinking that a partner who is assaulted by the other in a relationship would immediately walk out. He gave them further examples of such misguided thinking. 46. When he came to sum up the evidence, the judge reminded the jury of the applicant’s evidence in full, including her evidence about her life and her relationship with the deceased. Grounds of appeal 47. Ms Wade relies on four grounds of appeal to support her contention that the applicant’s conviction is unsafe: i) First that the judge erred in not directing the jury on the individual and cumulative nature of matters which went to the gravity of the trigger for the purpose of the partial defence of loss of control. This is the principle ground upon which the applicant relies. ii) Second that the judge erred in directing the jury that the Crown’s case was that the applicant had invented and exaggerated the domestic abuse in order to support her defence of loss of control in circumstances where such an allegation had not been put to the applicant in the course of cross-examination. iii) Third that the judge erred in not acceding to the defence application for the witnesses we have identified at [25] to be tendered by the prosecution or, alternatively, in not exercising his discretion to call the witness himself and; iv) Fourth that the judge was wrong to order that the digital footage of the 999 call, arrest and detention of the applicant on 13 February 2021 should be released to the press during the course of the trial rather than postponing it until after the verdict. This had the effect of prejudicing the administration of justice, in particular because witnesses yet to give evidence could or would have had sight of it and/or causing the perception of bias. As such it rendered the trial unfair. 48. As to the first, Ms Wade points out that for the partial defence of loss of control to succeed, the loss of control does not have to be sudden. Matters with no temporal nexus to the index offence but which have a cumulative impact can go to comprise the trigger of things done or said which constitute circumstances of an extremely grave character and cause the accused to have a justifiable sense of being seriously wronged. She submits that in a case such as this, where the defence relied on the overall pattern of abuse as opposed to the effect of individual incidents, it is incumbent on the judge to analyse each individual component of the cumulative history of the matters going to s.55(4) of the Act . The judge’s approach in reciting the applicant’s evidence was insufficient. 49. Further, Ms Wade submits that such an analysis was important for the purpose of the jury’s understanding of the loss of control itself. The important feature of this case was the entrapment which the applicant felt from years of coercive control and from which she found it impossible to find a way out. It was important to look at why this seemingly surprising and meaningless killing came at the end of what appeared to be a happy marriage. 50. Ms Wade submits that the direction of the judge in this case placed undue emphasis on violence when the reality was that the previous acts of violence had served as a function of control as opposed to harm in its own right. She submits that without the analysis required, the jury could not appreciate that the circumstances of entrapment through coercive and controlling behaviour were of an extremely grave character which caused the applicant to have a justifiable sense of being seriously wronged. 51. As to the second ground, Ms Wade submits that it was never put to the applicant through a lengthy cross-examination that she had exaggerated or invented the extent of the domestic abuse to support the defence of loss of control. The judge was therefore wrong to summarise the prosecution case in this way. 52. As to the third ground, Ms Wade essentially repeats the submissions that she made to the trial judge set out at [27]-[32] above. She invites the court to give guidance on how the Criminal Procedure Rules have impacted on the prosecutor’s duty to call witnesses. 53. On ground 4, Ms Wade accepts that there is no evidence that any of the jury were exposed to the footage or public postings upon it. Her primary submission is that the judge has the power under s.4(2) of the Contempt of Court Act 1981 to order that publication of any report of the proceedings be postponed where it appears to be necessary to avoid a substantial risk of injustice in those proceedings. In this case, the effect of the decision not to withhold the release of the footage meant that the defence witnesses, which included the daughter of the applicant and deceased, were exposed to it. Respondent’s Grounds of Opposition 54. In written submissions on Ground 1, the respondent submits that the judge’s directions were impeccable and conspicuously fair to the applicant. They accurately reflected the live issue between the prosecution and defence as to the true nature of her relationship with the deceased. It was for the jury to determine that issue and apply the legal directions to that factual issue. Specifically, the judge made it clear that it was open to the jury to consider the events of the night in question in the context of the marriage as the applicant portrayed it. Thereby the judge did direct the jury to assess the gravity of the trigger by reference to the cumulative nature of her treatment at the deceased’s hands as they found it to be. 55. On Ground 2, the respondent submits that the judge was correct to summarise the prosecution case in the way that he did. It reflected the way that the case was opened, the fact that the prosecution had called witnesses whose evidence of the relationship as they saw it differed from the applicant’s evidence and the way that she was cross-examined. It was obvious to all that the prosecution did not accept her portrayal of the marriage. 56. As to Ground 3, the respondent’s position remains the same as that before the judge – that the judge had no power to compel the prosecution to call or tender the named individuals as witnesses. The respondent had a discretion which witnesses it relied upon. These individuals had never been served as part of the prosecution case. Deciding not to rely upon them was within the reasonable range of decision making by a prosecutor. In the event the jury heard evidence from two of them. No unfairness flows from the decision not to call them as part of the prosecution case. 57. As to Ground 4, the respondent submits that the material in question had been adduced in the trial and was in the public domain. The media were entitled to report what the applicant said and did in the 999 call and body worn footage. There was no lawful prohibition to the material being released at this stage. The judge was entitled to conclude that there was nothing to prevent reporting of this material. He correctly directed the jury about their approach to it. There is no evidence that the jury saw the footage and any complaint of prejudice is pure speculation. 58. The respondent submits that the evidence of murder in this case was overwhelming. Individually or collectively the grounds do not demonstrate that the convictions was even arguably unsafe. Discussion and conclusion 59. We have reflected on the submissions ably made by Ms Wade, but we find ourselves unable to accept that this applicant’s conviction is arguably unsafe. 60. We accept the submission that a loss of control does not need to be sudden for the defence to succeed and that it can be triggered by the cumulative impact of a pattern of events, specifically in a relationship which has been characterised by coercion and control. That was plainly understood by the judge who directed the jury accordingly. We agree with the Respondent that in so doing the judge was scrupulous in connecting the events of the 13 February 2021 with the much longer history of abuse alleged by the applicant. 61. On the question of the qualifying trigger, he could not in our view have been clearer in telling the jury of the defence case that the applicant had lost her control against the background of a coercive and controlling relationship. We do not accept that the judge over-emphasised the violent aspect of the deceased’s behaviour. On repeated occasions, he spoke of the alleged abuse being both physical and mental and made reference to the allegations of controlling and isolating behaviour, belittling and mistreating her. 62. The judge properly summed up the applicant’s evidence about her relationship and the context in which she said that she had lost her self-control. It was ultimately a matter for the jury as to whether they accepted that evidence and if so, having been properly directed, whether this amounted to a defence of loss of control. 63. On Ground 2, we cannot accept that the judge wrongly summarised the prosecution case on the issue of the level of domestic abuse within the applicant’s marriage. The prosecution had in opening identified as an issue for the jury to decide as the evidence unfolded whether the applicant was accurate in how she characterised her relationship with the deceased. It was abundantly clear from the cross-examination as a whole that the prosecution asserted that the applicant had exaggerated the level and frequency of the abuse she had suffered. This can only have been to support the defence that she put before the jury. The judge was in our view entitled to summarise the Crown’s case in the way that he did. He then fairly set out the defence case on this point. 64. We find no merit in Ground 3. In this case, as a proper exercise of its discretion, the prosecution chose not to rely on the statements of the individuals concerned. As all the case law helpfully set out in Ms Wade’s written submissions makes clear, the prosecution is under no duty to call witnesses whose statements have never formed part of its case. The long-standing legal principles governing the calling of witnesses set out in R v Russell-Jones [1995] 1 Cr App R 538, if followed, ensure a fair trial and are entirely compatible with the overriding objective of the Criminal Procedure Rules to deal with cases justly. In this case, the principles were followed and the prosecution, in accordance with their obligations, properly disclosed their statements to the defence. The defence thereby had the opportunity to call the witnesses themselves and indeed did call Isabelle and Tom Potterton. No unfairness ensued. 65. We consider the judge right not to have called the witnesses himself. As this court made clear in R v Roberts (1985) 80 Cr App R 89 this is a power which should be carefully and sparingly exercised. We see no reason for him to have done so in circumstances where the defence could call the witnesses themselves. 66. We are also unpersuaded that the judge’s decision in relation to the release of digital evidence to the media renders the applicant’s conviction arguably unsafe. As Ms Wade concedes, the press regularly report evidence during a criminal trial including what can be heard and seen in digital footage. It is always possible that the jury and any witness yet to be called could read such reports. Such a risk is routinely dealt with by judicial directions to the jury. It is open to any party to advise their witnesses to the same effect. 67. It may be that in some cases a judge will determine that the provisions of s.4(2) of the Contempt of Court Act 1981 are met and that material should not be released and published until the conclusion of the case. However, each application must be determined on its own facts. 68. On the facts of this case, we consider that the judge was entitled to permit release of the footage concerned. Only that which had already been played in court was released. The judge properly directed the jury about it and there is no evidence that any juror saw any post adverse to the applicant, still less that they were influenced as a result. Similarly, there is no evidence that any defence witnesses saw or were influenced by the footage. Any assertion of prejudice on the part of the applicant is in our view entirely speculative. 69. We find ourselves in complete agreement with the single judge that there is no merit in any of the grounds advanced nor in the combination of grounds. There is no material irregularity and no basis upon which the safety of the conviction could be challenged. This application is accordingly dismissed.

2023_06_28-5726.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/735/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/735

d82a664f365d53ca90161efe1a112d803c450ebbf07325e65dfbb4ee51c25483

[2022] EWCA Crim 827

EWCA_Crim_827

2022-05-13

crown_court

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION [2022] EWCA Crim 827 No. 202200010 A4 Royal Courts of Justice Friday, 13 May 2022 Before: LADY JUSTICE NICOLA DAVIES MR JUSTICE TURNER HIS HONOUR JUDGE SLOAN QC ( THE RECORDER OF NEWCASTLE ) REGINA V ARDZIS CICIS REPORTING RESTRICTIONS APPLY: THE SEXUAL OFFENCES (AMENDMENT) ACT 1992 __________ Computer-aided Transcript prepared from the Stenographic Notes of Opus 2 International Ltd. Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 CACD.ACO@opus2.digital _________ MR C. WILDE appeared on behalf of the Appellant. ________ JUDGMENT MR JUSTICE TURNER: 1 The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provision where a sexual offence has been committed against a person, no matter relating to that person shall, during that person's lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with s.3 of the Act. 2 On 6 December 2021 at the Crown Court in Liverpool before Ms Recorder Tanya Griffiths QC the appellant (then aged 23) was sentenced for an offence of sexual assault contrary to s.3 of the Sexual Offences Act 2003 to two years and eight months' imprisonment. In addition, he was sentenced to a further period of two months' imprisonment to be served consecutively for breach of a community order earlier imposed by Cheshire Magistrates' Court for an offence of driving a motor vehicle with excess alcohol: thus making a total of two years and ten months' imprisonment. 3 He appeals against sentence by leave of the single judge. 4 Before turning to the facts of the case, we need to make a minor change to the amount of the victim surcharge order which fell to be made in this case. When calculating the victim surcharge the figure should be based on the date of the commission of the earliest offence before the court, which includes the date of offence for a breached order that has been resentenced. In this case, the earliest date was 4 May 2018, the date of the driving offences. According to the Criminal Justice Act 2003 (Surcharge) (Amendment) Order 2016, the amount should therefore have been £170 and not £180, as specified by the learned recorder, who therefore varied the amount to reflect that. 5 We now turn to the facts of the substantive offence. On 13 October 2021 the appellant's victim had been out in Warrington celebrating a friend's birthday. At about 2 o'clock in the morning she left the nightclub where she had been with her friends to get a taxi to go to her boyfriend's home in Norwich. She had had quite a lot to drink. While on the telephone to her boyfriend, she took a shortcut through an alleyway when she felt the appellant grab her shoulder from behind. He said "I want to lick your pussy". She told him she had a boyfriend and tried to walk away. Undeterred, the appellant grabbed her left arm and pulled at her coat. She asked him to let her go, but he continued to hold onto her for a couple of minutes. Her boyfriend, who had heard some of what was going on, was temporarily disconnected. She pulled herself free and ran towards the nearby taxi rank. Her boyfriend called the police and then asked her to stay on the line as she made her way to the rank. The appellant was still behind her and, again, tried to grab her. She asked two men nearby for help. 6 The police arrived at the scene soon after and spoke to the appellant's victim who was still with the two men she had approached for help. One of the officers saw the appellant lingering nearby and his victim confirmed that he was the one who had followed her. The appellant lied to the officers, saying that he was waiting for a friend and had been drinking with his landlord. However, some of the appellant's behaviour had been captured on CCTV which showed that he had been untruthful. 7 He was arrested on 17 October 2021 and was interviewed the following day. He admitted having spoken with his victim, but denied having committed any offence against her. When charges were brought, however, he pleaded guilty at the first opportunity. 8 In her sentencing remarks the Recorder reached the conclusion that the defendant's offending fell between Categories 1A and 2A of the Sexual Offences Guideline. The sentence she passed was one of four years before deducting one-third to reflect his prompt guilty plea. 9 The relevant grounds of appeal are: 1. The learned recorder erred in concluding that the offence fell between Category 1A and 2A in the sentencing guidelines. The learned recorder took a starting point of four years, which was consistent with Category 1A and not in between the categories, as has been indicated. 2. In any event, the offence should have been placed within Category 2B of the Sentencing Guidelines. 3. Insufficient regard was had to the principle of totality. 4. Insufficient regard was had to the appellant's limited convictions, absence of offending for two years, and the contents of the pre-sentence report. 5. Had the sentence been under two years, consideration could have been given to a suspended sentence order. 10 We consider that there is some force in the first two grounds of appeal, but not in those which follow. 11 Category 1 harm encompasses the following potentially material features: severe psychological or physical harm; abduction; violence or threats of violence. We agree that the appellant did inflict a level of violence on his victim by manhandling her in what must have been terrifying circumstances. For a lone woman to be accosted in an alleyway in the early hours of the morning by an intoxicated and persistent stranger with a clear sexual agenda is the stuff of nightmares. However, we are unpersuaded that the recorder was right to characterise his actions as being “so similar to an abduction” as to introduce a further element of Category 1 harm. 12 Furthermore, the victim declined to provide an impact statement, as she was fully entitled to do. But without seeking to trivialise the seriousness of the attack, the circumstances of the incident could not in the absence of other evidence be assumed to have had any lasting impact of that degree of severity which would be needed to satisfy the criterion of severe psychological harm. 13 It is necessary also to bear in mind that the offending did not involve any actual sexual touching and fell within the scope of being a sexual offence because of what the appellant had said, chilling as the implications were, rather than what he later did. Accordingly, the serious element of physically intimate violation necessarily involved in the touching of genitalia or naked breasts as referred to as an element of the lower Category 2 harm was absent, as indeed was any other sexual contact. Category 2 harm, however, also includes offending which involves a sustained incident. It is this element of the appellant's persistence in physically harassing his victim which in our view best characterises his offending and which more accurately reflects the sort of harm to which the guideline was directed. 14 The recorder went on to consider that the offence fell into Category A culpability, because of the element of "a significant element of planning". We are unable to agree with this analysis. Despite the fact that the appellant had on his own admission followed her from the club and into the alleyway, this remained an essentially opportunistic offence and any element of planning could not in our view comfortably be categorised as significant. In the absence of any other qualifying factors, we would therefore place this offence within Category B. The characterisation of the offending as Category B, which happens to accord with the basis upon which the prosecution sought to present the case below, provides for a starting point of one year and a range of high level Community Order to two years' custody. 15 We consider that there were significantly aggravating features here which mean that there was no alternative to passing a non-custodial sentence. This may not have been a carefully planned attack, but by leaving the club to follow his victim out and into the alleyway the appellant was specifically targeting a particularly vulnerable victim. The location of the offence in an alleyway in the early hours of the morning fulfilled the aggravating features of location and timing as identified in the Guideline, as also does the fact that the appellant had been drinking. It is a further aggravating feature that this molestation took place while the victim's boyfriend was witnessing over the phone the development of events. It must have been a horrifying experience for him too. 16 Despite the appellant having no previous relevant convictions, we will place the offence at the top of the bracket at two years. Had the appellant had relevant previous convictions, it is likely he would have moved beyond the relevant category range. With one-third discount for his plea, the total is 16 months. Having regard to the imposition of community and custodial sentence guidelines, we are satisfied that the appropriate punishment can only be achieved by immediate custody. The seriousness of the offence precludes the option of suspending it. The imposition of a consecutive sentence of two months in respect of the breach is unobjectionable, which gives a total of 18 months. 17 The judge's sentence, however, was far in excesses of the top of the range for a 2B offence and in fact represented the starting point for a 1A offence. We regard this as being manifestly excessive and substitute a total sentence of 18 months and, to that extent, this appeal succeeds. _______________

2022_05_13-5332.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/827/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/827

90d8743d90d7e2ef44bd60bacc9f66a18f94e80c5840dd9b71386eb6acd46e7a

[2007] EWCA Crim 2053

EWCA_Crim_2053

2007-06-18

crown_court

No: 200605982/D3 Neutral Citation Number: [2007] EWCA Crim 2053 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Monday, 18th June 2007 B E F O R E: LORD JUSTICE TOULSON MR JUSTICE BUTTERFIELD HIS HONOUR JUDGE WADSWORTH QC (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - R E G I N A -v- PAUL DARREN PASSMORE - - - - - - - Computer Aided Transcript of the Stenograph Notes of A Merrill Communications Company Smith Bernal Wordwave L

No: 200605982/D3 Neutral Citation Number: [2007] EWCA Crim 2053 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Monday, 18th June 2007 B E F O R E: LORD JUSTICE TOULSON MR JUSTICE BUTTERFIELD HIS HONOUR JUDGE WADSWORTH QC (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - R E G I N A -v- PAUL DARREN PASSMORE - - - - - - - Computer Aided Transcript of the Stenograph Notes of A Merrill Communications Company Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR A HARRISON appeared on behalf of the APPELLANT MISS B ROBERTS appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. LORD JUSTICE TOULSON: The Social Security Administration Act 1992 creates various offences to do with obtaining or retaining benefits under social security legislation to which the recipient is not entitled. This appeal involves a question about the meaning of the phrase "a change of circumstances affecting" a person's "entitlement to any benefit" in paragraph (a) of (1)A of section 111A of the Act. The subsection reads as follows: "A person shall be guilty of an offence if -- (a) there has been a change of circumstances affecting any entitlement of his to any benefit or other payment or advantage under any provision of the relevant social security legislation; (b) the change is not a change that is excluded by regulations from the changes that are required to be notified; (c) he knows that the change affects an entitlement of his to such a benefit or other payment or advantage; and (d) he dishonestly fails to give a prompt notification of that change in the prescribed manner to the prescribed person." 2. An offence under this subsection is punishable by a fine or by imprisonment up to a maximum of seven years, or both. 3. Section 111A(1)(a) is one of a matched pair of offences. 112(1)(a) creates an offence in identical terms, except that it omits the word "dishonestly" in paragraph (d). That offence is punishable by a fine up to level 5, or imprisonment up to a maximum of three months, or both. 4. Mr Harrison on behalf of the appellant submits that the language of paragraphs (a) to (c), being identical, must bear the same meaning in both sections. Miss Roberts for the prosecution does not dispute that proposition which we consider must be right. The issue arises in this way. On 13th October 2006 at Isleworth Crown Court before His Honour Judge Powles, Paul Passmore was convicted of four offences under section 111A(1)(a) and also of three offences under section 111(1). Section 111(1) makes it an offence if a person makes a false statement or representation, or produces or furnishes any document or information which is false in a material particular with a view to obtaining any benefit or other payment or advantage under the relevant social security legislation. The appellant was acquitted of a number of other counts. The argument before the court has concentrated entirely on the case against the appellant under section 111A(1)(a). It is accepted by the prosecution that in the particular circumstances of this case, if the appeal in relation to the appellant's convictions under section 111A(1)(a) is well founded, then his convictions under the other counts would be unsafe because of the manner in which the case was presented to the jury. There is therefore a single issue for us to address, which is the proper interpretation of the words of section 111A(1)(a). At the relevant time the appellant was in receipt of housing and council tax benefit. He formed a company called Obagong Limited in September 2000. He did not disclose to the benefit authority that he had formed this company. He was prosecuted for his failure to do so. It was his contention that his formation of the company was not a discloseable circumstance because it made no difference to the amount of benefit which he was entitled to receive, since he was not receiving any income from the company. The judge directed the jury in these terms: "Well, is setting up a company something which affects his entitlement to any benefit? You can see those words in the count. The evidence from Miss Murphy ... is that it does affect it because it triggers further questions and investigation by the assessing officer and as a matter of law, I direct you that that is something which affects entitlement, whether or not at the end of the day, the amount of the benefit paid goes up, down or stays the same ..." The issue was whether the judge was right in so directing the jury. The appellant submits that a change of circumstances can only be said on its ordinary and natural meaning to affect a person's entitlement to benefit if it would cause a difference in the computation of that person's entitlement to benefit. The prosecution submits that the phrase has a wider meaning. Miss Roberts submitted that a change of circumstance affects a person's entitlement to benefit if it is something which a benefit officer would properly wish to know in order to compute or check that person's entitlement to the relevant benefit, whether or not at the end of such enquiries and computations as the benefit officer carried out the amount of the entitlement was found to be the same. The construction of the relevant words was considered by the Divisional Court in the case of King v Kerrier District Council [2006] EWHC 500 Admin. That case arose from a decision of the Truro Magistrates' Court who convicted the appellant of two offences under section 112(1)(a). According to the case stated, the magistrates found that the appellant either knew that there had been a change in circumstances which affected her entitlement to benefit, or closed her eyes to the obvious, but they went on also to find that the lack of information from the appellant "could have" affected the amount of benefit paid. In allowing the appeal Newman J said: "It has been submitted, in my judgment correctly, that if the magistrates had merely concluded that the lack of information from the appellant could have affected the amount of benefit paid, it must follow that despite their stated conclusion to the contrary, they could not have reached the conclusion to the criminal standard of proof that the change in circumstances had affected the appellant's entitlement to benefit." He then went on to set out the question, which had been stated for the opinion of the High Court, as being: "The prosecution having conceded that before the justice could convict they had to be satisfied that the change of circumstances which the defendant failed to notify would have affected her entitlement to benefits, whether the justices were right to convict in view of their finding that the change of circumstances could have affected her entitlement for benefits." Newman J said that in his judgment the answer to the question was plainly no. He added: "... proof of the offence [under section 112(1)(a)] requires more than the possibility that the change could have affected the benefit." Miss Roberts submits that that decision was per incuriam and wrong because it proceeded on a wrong concession. In this case that was the approach taken by the trial judge. He said, in giving a ruling on the interpretation of section 111(1)(a) before he came to sum up, as follows: "He [that is counsel for the defendant] relies on the case of King [2006] EWHC 500 Admin. This was a case where a concession was made before the justices that they could only convict if they were satisfied that the change of circumstances, which the defendant failed to notify, would have affected her entitlement to benefit. That concession is not made in this case. In the case of R v King , the concession having been made, it is unsurprising that the Divisional Court found the Magistrates who had only made a finding that the information not reported could have or might have affected the benefit, said that was not good enough and they should not have convicted." We find it difficult to identify what is said to be the material erroneous concession. The concession quoted from the question posed in that case for the opinion of the court was that: "Before the justices could convict they had to be satisfied that the change of circumstances which the defendant failed to notify would have affected her entitlement to benefits." That language reflected and repeated the wording of the statute itself, which uses the term "a change of circumstances affecting any entitlement to any benefit". The question is what is the meaning and effect of those words. The Divisional Court plainly read the words in the sense contended for by the appellant in the present case, namely that the change of circumstances must have made a difference to the amount of benefit which the recipient was entitled to claim in order for it to be characterised properly as a change of circumstances affecting his entitlement to benefit. A decision of the Divisional Court is not binding on this court, but it is of persuasive authority. Moreover, we agree with it. We think that the meaning advanced by the appellant is the natural and ordinary meaning of the phrase. Further, if we were in serious doubt about that matter, we remind ourselves that this is a penal statute. It is a well established principle that if a penal statute is reasonably open to rival constructions it should be construed in the defendant's favour. Miss Roberts strongly pressed the argument that the appellant's construction would make the section in practice unworkable and would fail to protect the public adequately against non-disclosure. We are not persuaded either of the premise or of the conclusion. Section 111(1)(a) and section 112(1)(a) are part of the armoury available for the protection of the public. We have already made reference in passing to the provisions also of section 111(1). These are not the only provisions in the complex scheme of social security legislation designed to ensure disclosure of matters which ought properly to be disclosed. Reference has been made in the course of the argument to the Housing Benefit (General) Regulations 1987 SI No 1971. These regulations were made by the Secretary of State for Social Services under powers conferred by the Social Security Acts 1975 and 1986. Part 10 of the Regulations deals with benefit claims. Regulation 75, which forms part of Part 10, provides as follows: "(1) Subject to paragraph (2), if at any time between the making of a claim and its determination, or during the benefit period, there is a change of circumstances which the claimant, or any person by whom or on whose behalf sums payable by way of housing benefit are receivable, might reasonably be expected to know might affect the claimant's right to, the amount of or the receipt of housing benefit, that person shall be under a duty to notify that change of circumstances by giving notice in writing to the designated office." We are told that in practice claimants for social security benefits of one kind or another are given a list of circumstances, change of which may affect their right to benefit and ought therefore to be disclosed. Such notification would obviously be material when considering what a claimant "might reasonably be expected to know might affect the claimant's right" to benefit. Regulation 75 of the 1987 Regulations does not carry penal consequences, but non-compliance can trigger a right on the part of the Benefit Agency to recovery of any resulting over payment. The relevance of the regulation in the context of the present argument is two-fold. First, it is wrong to look at section 111(1)(a), or even section 111(1)(a) and 112(1)(a), in isolation from the wider statutory framework and therefore wrong to conclude that, because particular conduct may not fit within section 111(1)(a), the public is insufficiently protected unless an extended interpretation is given to the wording of the statute. Second, it is interesting to compare and contrast the express language of Regulation 75 with the interpretation which the prosecution asks this court to put on section 111(1)(a) by way of reading into the section words which are not there. The prosecution's argument requires the court to read the words "change of circumstances affecting any benefit" as not limited to a change of circumstance which would make a difference to the amount of the benefit, nor even limited to a change of circumstance which a person in the claimant's position ought to realise might make a difference to the computation of their benefit. It extends to disclosure of anything which might cause a benefits officer to make enquiries in order to satisfy himself or herself as to the claimant's entitlement to benefit. So we are asked as a process of interpretation to read in a duty enforced by criminal sanctions more extensive than the express duty imposed by Regulation 75 which carries only a civil sanction. This would go beyond any ordinary process of statutory construction. For those reasons we reject the prosecution's argument on the construction of the section. We conclude that the judge's direction to the jury was wrong. It follows that the appeal must be allowed and the convictions quashed.

2007_06_18-1138.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/2053/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/2053

f2ad90e36d1a275c018d4281c538588826754705b7533026aa5ca4a3c6e1aaeb

[2010] EWCA Crim 238

EWCA_Crim_238

2010-02-10

crown_court

Case No: 2009/6456/A9 Neutral Citation Number: [2010] EWCA Crim 238 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 10 February 2010 B e f o r e : THE VICE PRESIDENT (LORD JUSTICE HUGHES) MR JUSTICE MACKAY MR JUSTICE LLOYD JONES - - - - - - - - - - - - - - - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL'S REFERENCE NO 101 OF 2009 - - - - - - - - - - - - - - - - - - - - - Compute

Case No: 2009/6456/A9 Neutral Citation Number: [2010] EWCA Crim 238 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 10 February 2010 B e f o r e : THE VICE PRESIDENT (LORD JUSTICE HUGHES) MR JUSTICE MACKAY MR JUSTICE LLOYD JONES - - - - - - - - - - - - - - - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL'S REFERENCE NO 101 OF 2009 - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr D Atkinson appeared on behalf of the Attorney General Mr J Boyd appeared on behalf of the Offender - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: Her Majesty's Solicitor General seeks leave to refer under section 36 of the Criminal Justice Act 1988 a sentence imposed following late pleas of guilty to two offences of possession of drugs with intent to supply. The sentences were, in total, 12 months' imprisonment suspended for two years, coupled with a supervision requirement and a drug rehabilitation requirement in each case of 12 months' duration. We give leave. 2. The defendant is 27. He has been convicted previously since the age of 18 on fifteen different occasions. One of those was for possession of cocaine and cannabis with intent to supply and another was for producing cannabis. The latter of those convictions had resulted in the only previous custodial sentence, which was a total of eight months for that offence and also for driving whilst disqualified; that had been in September 2007. 3. On a Monday evening in November 2008 he was found with three others standing in an alcove or shop doorway in Penwortham. On him, hidden in one case in his sock and in the other in his closed hand, were two roughly one gram deals of cocaine in plastic bags. At home the police found a further 28 grams or thereabouts of cocaine, together with about ten grams of skunk cannabis divided into four separate plastic bags. There were also three small pieces of cannabis resin. Amongst his possessions at home were lists which appeared to be lists of supplies and a set of scales. The defendant had two mobile phones. When they were interrogated they revealed numerous text messages to him which are clearly requests for supplies of individual deals of either cocaine or cannabis. On some occasions there were several such requests in a day or indeed in the same evening. In the case of cannabis they are requests for up to half an ounce at a time. One of them reads: "Get in touch; got orders; need green". 4. The defendant told the police that all the drugs that had been found were for his own personal use. He said he bought in bulk to achieve a lower price. The bags, he said, were simply means of convenient storage for what he was going to use himself rather than indications of potential supply. However, at the end of his interview he made what appeared to be tantamount to an assertion that although he was not a dealer he was a collector of money for others. That is not consistent with the telephone messages. That stance, advanced in interview, whatever exactly it was, was maintained until the morning of his trial for possession with intent to supply. At that point, however, belatedly, he pleaded guilty. 5. He advanced a written basis of plea which it is important to observe was not challenged by the Crown. It read as follows: "The defendant had developed a chronic drug habit up to the point of his arrest, in which he was using large amounts of cocaine and cannabis. This involved occasionally purchasing up to £500 of drugs at a time. Although this was primarily to fund his own habit he accepts that there were a small number of other drug abusers well-known to him, who knew that he sometimes had significant supplies of cocaine and/or cannabis and would ask if they could obtain some from him. He accepts that he would be paid for this, although his supply would only be to people well known to him, and he did [not] profit by this arrangement significantly." 6. The mitigation advanced on his behalf with no little ability by Mr Boyd was twofold. First it was that this was only social dealing designed to feed an addiction and accordingly should be treated differently from other forms of street dealing. Secondly, it was contended that the defendant was at a turning point in his life. He had a new opportunity opening before him to put his addiction to drugs behind him and the Recorder was invited to take advantage of that opportunity by passing a constructive sentence aimed at his rehabilitation. The combination of those submissions persuaded the Recorder to pass the sentence that he did. The Recorder was well aware that what he was doing was a departure from what might be expected in the ordinary run of supplying cases. 7. As to those two propositions, both of which have been repeated to us today, we ought to say this. The first proposition is on the facts of this case founded on a false basis. We accept that it may be yet more serious if a defendant is in drug dealing only for the money and made no personal use of drugs itself so that his peddling of them was entirely cynical. That said, a very large number of those involved in drug supply at street level are themselves habitual users. 8. The proposition appears to have been advanced to the Recorder that this was a case within the decision of this court in R v Afonso [2005] 1 Cr.App.R (S) 99 at 560, [2004] EWCA Crim. 2342 . This is a case, in our experience, which is frequently misused, misunderstood and misquoted in submissions in the Crown Court and that may have been the position here. 9. The relevant part of Afonso begins by endorsing the general level of sentence for small-scale street dealers of class A drugs as established by cases such as Djahit [1999] 2 Cr.App.R (S) 142 and Twisse [2001] 2 Cr.App.R (S) 9 at 37. The court, in the judgment of Rose LJ, explicitly said: "Nothing which we say is intended to affect the level of sentence indicated by Djahit and Twisse for offenders, whether or not themselves addicts , who, for largely commercial motives, stock and repeatedly supply to drug users small quantities of class A drugs." When the case is cited that observation is, in our experience, frequently ignored. Rose LJ went on to say this: "But there is a group of offenders who supply class A drugs to whom we believe that the level of sentence indicated by Djahit and Twisse , namely in the region of six years following a trial, is disproportionately high and we think some review is called for. These are the offenders who are out-of-work drug addicts, whose motive is solely to finance the feeding of their own addiction, who hold no stock of drugs and who are shown to have made a few retail supplies of the drug to which they are addicted to undercover police officers only." He went on to indicate why that can properly be regarded as a different case. The only conditions in which that decision applies accordingly are those in which (1) the defendant is himself an addict, (2) he is out of work so he has no honest possibility of income (3) he holds no stock and (4) the only supply that he has made has been in the course of a test purchase by a police officer so that his actions have not in fact increased the circulation of dangerous drugs. 10. This was not on any arguable basis an Afonso case. It is not clear whether the defendant was out of work, but all the indications were that he was perfectly capable of work and of acquiring an honest income. He had an addiction, or at least an habitual use, but he did hold stock and his sales were not by way of test purchases; they did foster the general circulation of class A drugs with all the potential consequences for crime that that circulation sadly but inevitably brings. We have not the slightest doubt that absent some unusual consideration this was after trial a five or six year case and after a late plea it was four-and-a-half to five-and-a-half years. 11. We wish to make it clear that it makes little difference that a street dealer operating on a commercial basis, as this man undoubtedly was, uses the profit that he makes to buy drugs for his own use rather than for some other form of consumption. As we have said, very large numbers of those engaged in street dealing are themselves users of drugs. That is often how they get involved in it. 12. This case depends not on the level of ordinary sentence for street dealers but on the second proposition advanced to the learned Recorder. We want to say absolutely nothing which is capable of discouraging sentencing judges in the Crown Court from passing in a suitable case sentences of either drug treatment and testing orders (where still available) or community orders or sometimes (as here) suspended sentences with a drug rehabilitation requirement. Such orders are capable of being constructive, of capitalising on motivation to change and thus they are capable of being very much in the public interest. If a drug addict who is also in consequence a criminal can indeed be helped to put his use and abuse of drugs behind him, with the prospect that with that will pass habitual criminal offending, that is in everybody's interest. 13. There are two principal conditions in which such a course can properly be taken and they were helpfully set out, again by Rose LJ, in Attorney General's Reference No 64 of 2003 (Boujettif and Harrison) , [2003] EWCA Crim. 3514 . In summary, first the offence must be of a kind where it will not undermine public confidence in the criminal justice system if a non-custodial sentence is passed. Secondly, and more relevantly for the present case, there must be a proper basis justifying a real reason to believe the defendant wants to rid himself of drugs. Without that there is no prospect of success. Courts need to be aware that many defendants, and perhaps particularly drug abusers, find it easy to make promises when they are otherwise confronted with the prospect of a long sentence of imprisonment. Simple optimism is not enough. 14. Sentencers contemplating a drug rehabilitation requirement should be alive to the differing powers available to the court in the event of breach. If the order is a community order the court can re-sentence ab initio : Criminal Justice Act 2003, Schedule 8 paragraph 10. If the order is a suspended sentence it can activate that sentence but neither increase it nor sentence ab initio : Schedule 12 paragraph 8. If the present offence would call for a substantial sentence but for the decision to make a drug rehabilitation requirement, the more flexible option is likely to be a community order rather than a suspended sentence which cannot be longer than 51 weeks. 15. In the present case the offence was not one which although it normally carries a substantial sentence of imprisonment was outside those for which a rehabilitation requirement was put out of court by the impact that it would have on the public. In a proper case of this kind such an order could be made. 16. If the judge in an appropriate case is persuaded on proper material that such an order should be made he is always to an extent taking a risk. He is certainly passing a sentence which in a sense is a lenient one, although the demands of a drug treatment and testing order or drug rehabilitation requirement are not to be underestimated; they are not easy to comply with. But such a sentence, if properly founded on material before the judge, is certainly not unduly lenient and it will not be appropriate for reference by the Attorney General. As it seems to us, the really difficult question in this case is whether the judge did have the material on which to pass the sentence that he did. 17. The pre-sentence report disclosed, first, that most of the defendant's associates were drug users and he did not see supplying them as particularly serious. Secondly, it disclosed that drug use was "normalised within his circle" and that he was not proposing any significant change in his circle of friends. Thirdly, it reported that he professed a hope to either reduce or eliminate his use of cocaine but in the assessment of the probation officer it was not at all clear that he really wanted to. So far as the use of cannabis was concerned it recorded that he could see no problem with that. It was also apparent that during his criminal history before the courts there had been a number of non-custodial sentences passed, none of which had had the desired effect and in at least one case the offence of producing cannabis had been committed whilst he was subject to a suspended sentence. Those might have been thought by many to be powerful contra-indications to a sentence of the kind that the judge was persuaded to pass, however superficially attractive the drug addict's promises to reform might have appeared to be. 18. However, there was also some other material. The defendant had for some months by then been in a new relationship with a woman who was thoroughly respectable, with a highly responsible professional job. She was, we understand, in court but in any event she had written a letter which clearly had a considerable impact on the Recorder. She wrote that the defendant was completely different from when she had first met him: calmer, headstrong and ambitious, he had always displayed a high degree of integrity and responsibility towards her and his work had improved his confidence a great deal. She and he intended to settle down and continue their lives together. She added: "I do believe that people can change" and she indicated that in her judgment that was happening to this defendant and she was there to help him. 19. In addition, the defendant is not a man, as so many defendants are, without education. He has the qualifications to work in the field of health and safety in the work place. Also in court and also the author of a letter to the judge, was the managing director of a local firm who was impressed by the defendant as fully committed to the professional aspects of his work, found him reliable, punctual, an excellent communicator and eager to expand and build on what was already a substantial knowledge of the area of work. That firm was in a position to offer, and the managing director confirmed that he did offer the defendant, a permanent albeit part-time position within the company. 20. It is plain to us that it was those two pieces of information from highly reputable sources which persuaded the judge to take the course that he did. It has sadly to be said that it turns out that the risk was not justified. Up-to-date reports indicate that the relationship with the promising girlfriend has broken down, the defendant has as yet failed to test negative for cocaine and whilst he has been attending for most of the time the many appointments that are necessary, the point has now been reached at which he appears to be in breach and he will be brought back before the court very shortly. 21. But the task of this court is not to second-guess the judge with hindsight. The task of this court is to ask whether at the time the judge was persuaded to pass the sentence he did he was wrong in principle to do so. We are a very long way from saying that any of us would have done it ourselves, but there was material there on which the judge could make this decision and it is of the first importance that judges must accept the responsibility and be trusted to accept the responsibility for making difficult judgment calls. That is what the judge did in this case. It was not wrong in principle. We have already adverted to possible errors of principle not by the judge but elsewhere in the earlier part of the case, but this judge was clearly aware that if he had not taken the course that he did a sentence of a substantial number of years would otherwise have followed. 22. For all those reasons, which we have endeavoured to explain in a little detail, we give leave to the Solicitor General but in this case do not alter the sentence which was passed in the court below. What happens to the defendant hereafter must be for the courts with up-to-date information and is not for us.

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https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/238/data.xml

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[2023] EWCA Crim 309

EWCA_Crim_309

2023-02-28

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 The 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. N THE COURT OF APPEAL (CRIMINAL DIVISION) CASE No. 2022 03418 A1 [2023] EWCA Crim 309 Royal Courts of Justice Strand, London, WC2A 2LL Date: 28 February 2023 Before: LADY JUSTICE SIMLER LORD JUSTICE WILLIAM DAVIS HER HONOUR JUDGE DHIR KC (Sitting as a Judge of the CACD REX V CHRISTOPHER CLARK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 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) - - - - - - - - - - - - - - - - - - - - JUDGMENT MR A ROXBOROUGH appeared on behalf of the Appellant MR K LAIRD appeared on behalf of the Crown . . Lady Justice Simler: Introduction 1. This is an appeal against sentence with leave of the single judge. 2. In addition, a question has been raised by the Registrar about the lawfulness of the sentence passed in the Crown Court because of apparent irregularities in the committal or sending by the Magistrates’ Court to the Crown Court. We shall describe these in more detail below. For now it is sufficient to record that following his guilty plea on 4 July 2022 in the Magistrates' Court to the offence of breach of a restraining order contrary to section 363(1) and (2) of the Sentencing Act 2020 , the Magistrates' Court nonetheless purported to send Mr Clark for trial in relation to that offence, alongside an offence of assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861 , to which he had pleaded not guilty. 3. Subsequently, on 18 August 2022, in the Crown Court at Minshull Street in Manchester Mr Clark pleaded guilty to common assault. He was then sentenced on 21 November 2022 in respect of both offences. HHJ Savill imposed a sentence of two years’ immediate imprisonment for the breach offence with a concurrent sentence of three months' imprisonment for the common assault. A further restraining order was made and a statutory victim surcharge order was imposed. 4. We have had the benefit of written and oral submissions from Mr Roxborough for Mr Clark and from Mr Laird for the prosecution. We are grateful to both counsel for the assistance they have provided us with. The facts 5. Mr Clark and the victim, Emma Westwood, had been in an on-off relationship for a period of about four years. In 2019 Mr Clark was convicted of battery against her when he bit her, causing injuries to her face. A restraining order was made against him. Under the terms of the order he was prohibited from contacting Emma Westwood directly or indirectly and prohibited from entering a number of identified named roads including the road on which she lived. He breached that order on six occasions between 2019 and 2021. In addition to serving a number of short custodial sentences for those breaches, the restraining order was extended until 22 December 2023. 6. On 1 July 2022 Mr Clark was released from serving a custodial sentence in respect of breach of that restraining order. He contacted Emma Westwood by email on the same day, asking her if he could come over to her address. She refused. He turned up regardless, asking Emma Westwood for money for a taxi. In the hope that he would leave her alone, she gave him some money. He left but returned to her address some ten minutes later with a bottle of vodka. 7. During the second visit an argument ensued and he questioned her loyalty to him whilst he had been in prison. He struck her to the face with the back of his hand. This caused her to fall to the floor. He pulled her hair extension off and threw a drink over her. During the incident he took her mobile phone and locked the front door so that she could not get out. She ran upstairs to bang on the windows. He followed her. She managed to shout for help out of her son's bedroom window before he dragged her away from the window by her neck and arms. There were photographs of her injuries provided to the judge and we too have seen those. The incident lasted for approximately 20 minutes. 8. Ms Westwood fled the address and contacted 999. Officers attended at the address. Whilst they were taking her statement Mr Clark appeared at the back door of her home address holding a bottle of vodka. He was arrested and cautioned. He was then taken to Pendleton Police Station where he was interviewed. He largely answered “no comment” to questions asked of him but said that the injury to Emma Westwood's eye was already there when he arrived and that the injury to her neck was from having consensual sexual intercourse with her the night before. The procedural irregularities 9. Before addressing the appeal itself it is necessary to consider and address the question raised by the Registrar as to whether there was a valid committal to the Crown Court and whether the sentence that followed was lawful. The chronology of what occurred can be summarised as follows. 10. On 4 July 2022, Mr Clark appeared before the Greater Manchester Magistrates' Court charged with assault occasioning actual bodily harm and breach of a restraining order. Both offences are either-way offences and therefore subject to the procedure contained in section 17 A of the Magistrates' Courts Act 1980 . This procedure is mandatory and contains important safeguards for a person appearing in the Magistrates' Court in relation to an offence that is triable either way. It requires the court to communicate directly with the individual in ordinary language so that it is clear in open court that he or she understands the procedure and the consequences of indicating a guilty plea. The procedure taken as a whole is designed to ensure that the right to trial by jury is not lost through misunderstanding or ignorance. It is important that it is complied with for this reason and also, so that in the event that there is a committal for sentence, the Crown Court knows that the guilty plea was properly taken if any issue should arise about it. 11. As Edis LJ explained, presiding in this court in R v Gould [2021] EWCA Crim 447 , there is no transcript of proceedings before the justices and one purpose of the statute is to achieve a situation where the Crown Court can safely assume that this important procedure has been properly undertaken. A failure to follow the procedure by the Magistrates' Court renders what follows a nullity and liable to be quashed. 12. Despite pleading guilty to breach of a restraining order, the sending sheet for Mr Clark states that both offences were sent for trial pursuant to section 51(1) and (2)(b) of the Crime and Disorder Act 1998 . The case lawyer in the Magistrates' Court has confirmed that the court record shows that a not guilty plea was entered in respect of the assault offence, but no plea is recorded against the breach of a restraining order and both matters were sent for trial. It appears that this error was later identified and there was an attempt to correct the error by amending the paperwork afterwards to give rise to a committal for sentence. However, it remains the case that the sending sheet which is the primary record reflects that the breach offence was sent for trial. We note also that the wrong legislation was referred to, namely section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 and not, as it should have been, section 14 of the Sentencing Act 2020 . (A copy of the memorandum of conviction has been requested but has not yet been received.) The point was not further explored or addressed in the Crown Court. 13. It is common ground, as both counsel have made clear, that when the charges were put to Mr Clark he did in fact plead guilty to the offence of breach of a restraining order. Upon that plea of guilty the proper course would have been for the Magistrates' Court to follow the procedure prescribed by section 17 A(6) of the Magistrates' Court Act 1980 . That would have resulted in the conviction being entered in the Magistrates' Court. It would then have been open to the court to commit Mr Clark to the Crown Court for sentence pursuant to sections 14 , 18 or 20 of the Sentencing Act 2020 . 14. In relation to the assault offence, in respect of which there was a not guilty plea, the Magistrates' Court would have had to determine whether the offence was more suitable for summary trial or trial on indictment (see section 19 of the Magistrates' Court 1980). Instead however the Magistrates' Court record states, as we have indicated, that Mr Clark was sent for trial in respect of both offences pursuant to section 51 of the Crime and Disorder Act 1998 . 15. Under section 66 of the Courts Act 2003 a Crown Court judge and other judges listed in that section may make orders and pass sentence in relation to cases normally reserved to Magistrates' Court when disposing of related cases in the Crown Court. The scope of the section 66 power, as amended in 2013, and the potential perils of Crown Court judges using it, were considered in R v Gould . This court concluded that a judge of the Crown Court, or indeed this court, is vested with all the powers of a DJ(MC) in relation to criminal causes or matters by virtue of holding that office. That includes sitting as a Magistrates' Court and includes any power which a Magistrates' Court can lawfully exercise. However, this court also identified that the important parameters within which the section 66 powers have been used may have been overlooked in some cases. Edis LJ restated them as follows: “80. These important parameters within which the section 66 powers may be used have been overlooked in some of the present cases and perhaps elsewhere. It is worth restating them:- (i) When the Magistrates' Court make an order which gives jurisdiction in the case to the Crown Court, whether by committal for sentence or sending for trial, that is the end of their jurisdiction in the case. In technical language they are functus officio. The Crown Court judge cannot use section 66 to make any order which the Magistrates' Court could no longer make. (ii) There is no power in the Crown Court to quash an irregular order. Where it is plainly bad on its face, the Crown Court may hold that nothing has occurred which is capable of conferring any jurisdiction to deal with it. We shall return to these points. We appreciate that this consequence of the decision in R. v. Sheffield Crown Court limits the power under section 66 to correct errors in committals for sentence, but it is unavoidable. If quashing is required this can only be done by a Divisional Court. We have held above that it is open to the judge in the Crown Court, as a DJ(MC), to lay and commit a new charge in the correct form. The relevant Rules Committees should consider whether an expedited and summary procedure could be adopted for the quashing by consent of unlawful committals and sendings which have been overtaken by events.” 16. Both counsel in this case suggest that the error was simply an administrative error in the failure accurately to record Mr Clark's guilty plea and the correct statutory basis pursuant to which this case was sent to the Crown Court. Mr Roxborough submitted that the evidence, in particular the Better Case Management form, clearly demonstrates that a valid guilty plea was entered in the Magistrates' Court but that the Magistrates' Court failed properly to record that plea. That failure does not however, he submitted, alter the fact of the plea. The Magistrates' Court had the requisite power to commit the matter for sentence either alone or with the assault matter to which Mr Clark had pleaded not guilty. The error was not fundamental but was simply administrative. There was nothing contrary to the interests of Mr Clark and he suffered no injustice or prejudice. 17. Mr Laird emphasised that there can be no doubt that it was the intention of the Magistrates’ Court to commit Mr Clark for sentence in respect of the breach of a restraining order following his guilty plea. In the circumstances this error can be treated as a mere error in recording so that the sentences passed were valid and passed with the jurisdiction to do so. In the alternative, Mr Laird submitted that the most efficient way of dealing with this case, should the court take a different view, would be for the court to quash the sentence imposed by the Crown Court, for one of the members of the constitution to sit as a Crown Court judge, take a plea on indictment if that is necessary, and sentence accordingly. Alternatively, a member of the court could commit the conviction for breach sitting as a DJ(MC). Out of an abundance of caution Mr Laird made clear that a fresh indictment and an application with a draft restraining order have been prepared by the prosecution and served on Mr Clark. 18. Both counsel referred us to R v Duigan [ 2022] EWCA Crim 1452 , where this court held: “14. Unless the sending is obviously invalid, the Crown Court should not be unduly unconcerned about a mistake in recording the statutory basis for the sending. Care must be taken though to ensure that any sentence subsequently imposed falls within the jurisdiction that would have been available if the basis of sending was correctly recorded: see R v Ayhan [2011] EWCA Crim 3184 . 15. If the sending is obviously bad on the face of it, such that the Crown Court concludes that it cannot proceed on the basis of it, the prosecution may have to consider the position carefully. …” They invited us to proceed on the basis identified in paragraph 14. 19. We have considered counsel’s submissions with care, but have concluded, contrary to their submissions, that this is not a case where a mere administrative error occurred. It would have been an administrative error if the committal for sentence was made under the wrong statutory provision. It is that sort of case that the Crown Court need not be unduly concerned by and can proceed with by treating the error as an administrative one. In this case, by contrast, the sending by the Magistrates' Court was a sending for trial. That was obviously invalid because a guilty plea had been entered and there was therefore no jurisdiction in the Magistrates' Court to send the breach offence for trial. The only evidence of what the Magistrates did is the sending sheet itself and this does not support or confirm that the procedure set out in section 17 A of the Magistrates’ Court Act 1980 was followed. Counsel relied on the Better Case Management form but that does not assist us. That form would have reflected a guilty plea if Mr Clark had merely indicated a plea before venue on an either-way offence. As we have said, it is the sending sheet that is the primary record, and it is the sending sheet that matters. 20. Moreover, having made the decision to send for trial and recorded it in the sending sheet, the Magistrates' Court was functus officio and the attempts afterwards (even by the Magistrates' Court itself) to correct the error were a nullity. Any attempt by the Crown Court to exercise the section 66 powers would have been equally invalid since that power does not extend to correcting errors in committals for sentence once the Magistrates’ Court is functus officio and no longer has jurisdiction to act as R v Gould has explained. 21. For those reasons, we have concluded that the sending for trial had to be quashed and a lawful committal effected before the Crown Court could sentence in this case. The quashing order could only be made by the Divisional Court. Once the sending is quashed the case would then in effect never have left the Magistrates' Court and the Magistrates' Court's jurisdiction would remain. The section 66 power could then potentially be exercised subject to the constraints identified so clearly in R v Gould. 22. As counsel have emphasised, a guilty plea was entered by Mr Clark in the Magistrates' Court. That was a lawful plea and conveyed his desire to admit what he had done. The failure was in the sending of that charge for trial when there should have been a committal for sentence. The failure meant, as we have said, there was no valid committal. It seems to us, in those circumstances, that the following steps must and will be taken. We will sit as a Divisional Court. We grant permission to apply for judicial review. We extend all time limits as necessary. We dispense with service requirements. We quash the original sending by the Magistrates' Court in respect of the breach offence. The sending of the assault offence is unaffected. The sentence passed in the Crown Court for the breach offence was without jurisdiction in the circumstances and must fall away. 23. In light of the lawful guilty plea entered in the Magistrates' Court, Mr Roxborough has conceded that the justices would inevitably have committed this case to the Crown Court had the proper procedure been followed. That concession is properly made. On the facts of this case, it is clear to us that the use of the section 66 power could not deprive Mr Clark of any procedural protection or cause him any prejudice. We are satisfied accordingly that the section 66 power can be used in this court to regularise the position. Having quashed the sending of the breach offence as a Divisional Court, I shall now sit as a DJ(MC) to correct what is plainly an error of omission, namely the failure by the Magistrates' Court to take the next step in the committal for sentence process. As already indicated, it is inevitable that the case would have been committed for sentence because of Mr Clark's history and the inevitable conclusion that the Magistrates' Court would not have sufficient power to sentence him for the breach offence. I accordingly commit the breach offence to the Crown Court for sentencing under section 14 of the Sentencing Act 2020 following his guilty plea and acknowledging that the Magistrates' Court powers are insufficient in this case. The breach falls to be sentenced alongside the assault offence to which Mr Clark pleaded guilty in the Crown Court. This court can act under the 1968 Act with all the powers of the Crown Court. 24. At this point, we are therefore in effect sentencing Mr Clark for the first time under the powers of that Act rather than considering this appeal. However, in the course of doing so we will reflect on all the submissions made by Mr Roxborough in support of his ultimate contention that the sentence passed by the judge was manifestly excessive and that a shorter sentence should now be passed. The sentence 25. Mr Clark was aged 37 at the date of sentence (born 27 April 1985). He had nine convictions for 12 offences spanning the period 13 September 2019 to 23 December 2021. Significantly he had convictions in 2019 for battery and for breach of a restraining order. In 2020 he had two convictions for breach of a restraining order and in 2021 three convictions for breach of a restraining order. The convictions all involved the same victim and the same restraining order. 26. There was a pre-sentence report available to the judge and we have read that with care. The report author assessed Mr Clark's risk as not manageable in the community. The updated report maintains that view. The evidence indicates that Mr Clark is unable to comply with court orders and lacks the internal regulation necessary or the insight to do so. He was assessed by his community probation officer and the pre-sentence report author as presenting a very high risk of serious harm to Ms Westwood. If released it was thought highly likely that he would approach her or attend her home and cause her physical or emotional harm of a serious nature. The judge also had a victim personal statement from Emma Westwood dated 2 July 2022. We too have read that statement. 27. In his sentencing remarks the judge said this was a very serious breach of its kind, therefore culpability was A within the Sentencing Council Guideline. In terms of harm, HHJ Savill concluded that this was a category 2 case based on the actual and intended harm. He rejected the submission that harm fell at the bottom end of that category. He said that Mr Clark made Ms Westwood's life a real misery over the years and did so once again with six previous breaches in the background. The judge's conclusion that this was an A2 offence meant a starting point of 12 months. However, he said that the facts of the offence itself justified a starting point at the top of the category, namely 24 months' imprisonment. The judge then went on to consider aggravating and mitigating features. He referred to the high likelihood of reoffending, the serious risk presented by Mr Clark, the fact that he was not manageable in the community and the offender manager's report which said he had really only paid lip service to community orders in the past and was a very manipulative individual. The judge continued: “(iii) The aggravating features in this case are these: this was committed against the background of numerous previous convictions for breach and violence against this victim. I have mentioned that I am taking into account the assault as part and parcel of that as well, and it was committed while you were on licence, the very day that you had been released from custody. Accordingly, it seems to me that I am entitled to on the facts and circumstances of this case to go beyond and I do so deliberately, the upper limit of a Category A2 offence, to a starting point, had you contested the matter, at 36 months. You are entitled to a full one-third reduction. That reduces the sentence to one of 24 months.” 28. The judge went on to explain why the sentence that he passed had to be one of immediate custody and that conclusion is not challenged on this appeal. The appeal and the re-sentence 29. Mr Roxborough contends that the sentence passed by the judge was manifestly excessive. He accepts that there were aggravating features that permitted the judge to increase the sentence from the starting point of 12 months in the agreed category A2 for this offence, but submits that the judge went too far in taking the sentence outside the range for an A2 offence and up to three years. This was well into the category range for an A1 offence. Mr Roxborough invited this court to sentence on an appropriate category A2 basis. 30. He developed those points submitting that the range of a high-level community order to two years' imprisonment for A2 offences was sufficient to reflect the seriousness of the offence, the persistent nature of the breach and the common assault. He submitted that to aggravate in respect of the previous breaches, characterised as persistent by the judge, was in effect to double count. Mr Clark has served sentences for those previous breaches and they should not have been treated as aggravating the sentence to the extent that they were. Moreover, he submitted that the facts of the index offence itself did not indicate any particular persistence. The incident lasted a mere 20 minutes and the question of persistence can only have come from the frequency of the other breaches overall. Moreover, to elevate the starting point to three years was simply not justified on the facts. If the judge felt that this was a category 1 case, he should have made that clear and the matter could then have been ventilated in open court. 31. In his submissions Mr Laird maintains that the sentence was just and proportionate. The offence was both persistent in and of itself and also reflected a very serious breach. The Guideline makes clear that once aggravating features are considered, it may well be appropriate to move outside the category range and that was entirely justified in this case. 32. We have considered the submissions made by Mr Roxborough with care. He has said all that could have been said on behalf of Mr Clark. 33. We start with the Sentencing Council Guidelines for breach of a restraining order. We agree with the judge's assessment that this was a high culpability offence because it was a very serious breach. Having contacted Emma Westwood by email in breach of the restraining order, Mr Clark went to her home address at night. While he was there in her home, where she was entitled to feel safe, he interacted with her and asked her for money. She gave him money no doubt to get rid of him and he left. But he returned a little while later with a bottle of vodka (itself a concerning feature of this case given the apparent link between alcohol and offending by him). On his return, he went into her home once again. He again interacted with Emma Westwood. He sought to humiliate her. It seems to us that this sequence of actions by Mr Clark demonstrates persistence in the offence itself and reflects high culpability with a very serious breach. 34. As for harm, while Mr Clark did not cause very serious physical harm, there can be no doubt that harm of at least category 2 was caused. We are sure, having read the victim impact statement, that there was emotional harm caused not only by the constant anticipation of harm that Ms Westwood no doubt experienced, but also by what he did while he was at her address that night. This was undoubtedly an A2 offence, and the seriousness of the breach and the multiple culpability factors were sufficient to justify movement to the top of the category range. We are sure that the judge was correct to reach those conclusions and they are the conclusions we ourselves have reached. 35. The Guideline makes clear that it is then necessary to consider aggravating and mitigating features. Further, if and to the extent that aggravating features are identified, the Guideline states that it may well be appropriate to make an upward adjustment in the sentence and move outside the category range. Here there were a number of aggravating features. There were the previous convictions reflecting similar behaviour towards this very victim. Significantly there was the commission of this serious offence within a matter of hours of Mr Clark's release on licence. Ms Westwood had barely any respite from Mr Clark's unwelcome attention from 2019 onwards. The assault had also to be reflected. There were no mitigating factors apart from his guilty plea. The judge increased the sentence before discount to three years and was amply entitled to do so. Doing so involved no double counting of the same factor and nor did it involve resentencing for previous breaches as Mr Roxborough suggested. The features identified are all features that the judge was entitled to rely on as increasing the seriousness of the offence. We consider that they are features we should rely on too. In the result, we do not consider that the judge went wrong in any part of this sentencing process and cannot see any basis for departing from the judge's approach. In our judgment, the sentence was not arguably manifestly excessive in light of the facts of the breach offence itself, together with the aggravating features we have identified. 36. The result is that we reject the contentions advanced by Mr Roxborough on this appeal and by way of submissions in relation to the sentencing process we are now conducting. We agree with the judge that the index offence was very serious. It involved not only direct contact on two occasions but a nasty assault, committed on the very day of his release from his last sentence. Not only had previous prison sentences for breaches of the order in relation to the same victim not deterred him, but they were part of an established pattern of complete disregard for orders of the court. This too had to be reflected. After credit, a sentence of two years for the breach offence was entirely justified and proportionate and it is the sentence that I shall invite my lady, HHJ Dhir KC, to pass. 37. HER HONOUR JUDGE DHIR KC: For the reasons given by Simler LJ, the sentence that I pass for the offence of breach of a restraining order contrary to section 363(1) and (2) of the Sentencing Act 2020 is two years’ imprisonment. For the offence of common assault, the sentence is three months’ imprisonment. These sentences are to run concurrently to each other, making a total sentence of two years’ imprisonment. These sentences are to be treated as if they were passed on 21 November 2022 when this case was listed at the Crown Court in Minshull Street Manchester. The restraining order passed by the judge, which was a restraining order made for an indefinite period falls away and is replaced with the new restraining order which shall be treated as if imposed on 21 November 2022. The victim surcharge of £187 applies. Conclusion 38. The result is that the appeal is dismissed for the reasons we have given. We are grateful to both counsel for the assistance they have given us. We invite Mr Roxborough to explain to Mr Clark the effect of the sentence that has now been imposed.

2023_02_28-5594.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/309/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/309

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[2006] EWCA Crim 1996

EWCA_Crim_1996

2006-07-18

crown_court

No: 200600056 A3, 200602014 A3 Neutral Citation Number: [2006] EWCA Crim 1996 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Tuesday, 18th July 2006 B E F O R E: LORD JUSTICE GAGE LORD JUSTICE NELSON MR JUSTICE LEVESON - - - - - - - R E G I N A -v- CRAIG WILLIAM BROWN R E G I N A -v- JAMES BUTTERWORTH - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 F

No: 200600056 A3, 200602014 A3 Neutral Citation Number: [2006] EWCA Crim 1996 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Tuesday, 18th July 2006 B E F O R E: LORD JUSTICE GAGE LORD JUSTICE NELSON MR JUSTICE LEVESON - - - - - - - R E G I N A -v- CRAIG WILLIAM BROWN R E G I N A -v- JAMES BUTTERWORTH - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR J CLOSE appeared on behalf of the Applicant, Brown MR A BASSANO appeared on behalf of the Applicant, Brown MR P HOLDEN appeared on behalf of the Applicant, Butterworth MR A BASSANO appeared on behalf of the Defendant, Butterworth - - - - - - - J U D G M E N T 1. LORD JUSTICE GAGE: As far as Butterworth is concerned, we make it clear that this was an important matter and we grant the extension and leave. 2. The court has before it an appeal against sentence and an application for leave to appeal against sentence, which raise important issues concerning extended sentences passed pursuant to section 227 of the Criminal Justice Act 2003 ( the 2003 Act ). We have heard both matters together and in this judgment we set out our decision in both cases. We start with the appeal of Craig William Robert Brown. Brown is aged 22. On 8 November 2005, at Preston Crown Court he pleaded guilty to 4 counts on an indictment containing five counts. On 29 November 2005, in respect of the counts to which he pleaded he was sentenced as follows: count 1, affray, an extended sentence of 36 months pursuant to section 227 comprising a custodial term of 22 months' imprisonment and an extension period of 14 months; count 3, breach of an ASBO, no separate penalty; count 4, intimidation of a witness, 18 months' imprisonment consecutive; count 5, breach on an ASBO, no separate penalty. The total sentence was therefore an extended sentence of 3 years, pursuant to section 227 , comprising a custodial term of 22 months' imprisonment and an extension period of 14 months, with 18 months' imprisonment consecutive. 3. On 7 December 2005, the sentencing judge varied the sentence of 18 months' consecutive on count 4 to a sentence of four-and-a-half years' imprisonment concurrent to the sentence on count 1. The appellant appeals against sentence by leave of the single judge. 4. The facts can be shortly stated. On Friday 15 July 2005, Anne Kelly was at her home in Raikes Road when she heard an argument taking place outside the appellant's address across the road. She heard the appellant shout: "I'm going to smash your face in" and a man reply: "I'll ring up and get my lads down here". The appellant went into his house and came out with a sword two-and-a-half feet long and started to swing it towards another man. As the other man backed off the appellant followed him still swinging the sword. The man left the area. 5. The police were called. When the police officers arrived the appellant told them: "It's not me but the sword is in there". The police took possession of the sword and arrested the appellant. When he was interviewed the appellant said that it was a case of mistaken identity. He said there was another Craig Brown who looked just like him but was not him. He was released on bail. 6. On 5 August 2005, Miss Kelly picked out the appellant at an identity parade. Over the next two days she heard the appellant outside her home shouting "grass". Other people were with Miss Kelly when these incidents took place. At 12.40pm on 7 August 2005 the appellant shouted across the road to Miss Kelly that her house was going to be petrol bombed. In respect of these matters the appellant was arrested and interviewed on 8 August 2005. He denied that he had called Miss Kelly a grass and denied that he had threatened to petrol bomb her home. However, as we have said, he pleaded guilty to these offences. 7. The appellant has a large number of previous convictions. They consist of 33 convictions for 56 offences. They include four offences of possessing an offensive weapon; one offence of having a bladed article in public; one of threatening behaviour and one of assault occasioning actual bodily harm. There was before the court a pre-sentence report, which indicated that the appellant's offending started at the age of 16. The author of the report stated that since the age of 17 alcohol abuse by the appellant had become a problem. His offending had been persistent for a number of years and he had shown a capacity for violence. The author of the report was of the opinion that until there was a fundamental change in his attitude there was a high risk of the appellant re-offending. 8. In sentencing the appellant on 29 November 2005 the judge referred to the seriousness of the offences. He said that the history of involvement with weapons and violence meant that there was a substantial risk in the appellant's case that he would cause serious harm to others by the commission of further specified offences. He concluded that the court was bound to pass an extended sentence. The sentence had to reflect the fact that brandishing swords in public was unacceptable and that those who sought to intimidate witnesses would receive severe punishment. 9. On 7 December 2005, the judge reviewed the sentence which he had passed on 29 November. He said that taking into account observations of the court in R v Lang and Others [2005] EWCA Crim 2864 it was undesirable to impose a sentence consecutive to an extended sentence. Accordingly he varied the sentence in the terms to which we have referred. 10. Two issues of some importance arise in this appeal. They are, firstly, whether the judge in this case was right to follow guidance given in R v Lang that a determinate custodial sentence should not normally be made consecutive to an extended sentence. Secondly, whether it was appropriate to direct that a determinate sentence in length longer than the custodial element of an extended sentence should be served concurrently. 11. We turn to the case of James Butterworth now aged 23. His application for leave to appeal was referred to this court by the registrar. On 6 July 2005, he fell to be sentenced at the Preston Crown Court for offences to which he had pleaded guilty in the Hyndburn Magistrates' Court (the Magistrates' Court offences) and been committed for sentence; and sentences on indictment (the indictment offences), to which he had previously pleaded guilty in Preston Crown Court. In respect of the indictment offences he was sentenced to 20 months' imprisonment for a count of attempted robbery and six months' imprisonment concurrent for a count of theft. For the magistrates' court offences he was sentenced to eight months' imprisonment for assault occasioning actual bodily harm and eight months' imprisonment for an offence of affray. Those two sentences were consecutive to each other and consecutive to the sentence on indictment. The total custodial sentence was therefore three years. In addition the judge in his sentencing remarks said that applying section 227 of the 2003 Act the applicant would be subject to an extension period of two years in respect of the assault and a concurrent period of two years in respect of the affray. 12. The facts are as follows. First, the indictment offences: on 20 February 2005 the complainant, Graham Hughes, was on a bus travelling from Clayton le Moors to Blackburn. The appellant and a co-accused, Clough, got into the bus. They sat in the rear of the bus near to Hughes. Clough took Hughes' baseball cap and put it on his head. Hughes had a mobile telephone in his hand and Clough demanded that Hughes gave it to him. Hughes refused whereupon the appellant said: "Give me the phone or we'll leather you". Hughes again refused. Clough then hit Hughes with the back of his hand and tried unsuccessfully to take the telephone from his pocket. Clough slapped Hughes again and the appellant again threatened him with being leathered. Hughes managed to attract the attention of the driver who stopped the bus and ejected the appellant and Clough. Before being ejected the appellant took a bag of sweets valued at £8 from Hughes and said: "Watch your back". Clough left with the baseball cap, which he had taken from Hughes. CCTV footage from a bus led to the appellant and Clough being identified and arrested. At interview the appellant admitted being present but denied stealing anything from Hughes. 13. So far as the offences of assault and affray are concerned, they were committed when the appellant was on bail for the indictment offences. At about 9.15pm on 31 May 2005 the appellant was at a friend's house. Whilst heavily under the influence of alcohol he became involved in an argument with the residents of that house. This resulted in him head-butting Abigail Garrity-Phillips. The police were called. On arrival police officers found the appellant screaming, shouting, growling like an animal and waving his arms in the air. He ran away from the police officers but was found after a short chase. The appellant continued to be aggressive. He picked up a triangular red sign, held it above his head and threatened the police officers with it. The appellant then walked off with the road sign and took it into a public house. When the police officers entered the public house they found that the appellant had discarded the road sign and was holding a wooden stool above his head. He was threatening people with the stool. The appellant threw the stool at the police officers and had to be incapacitated by the use of CS gas spray. He was restrained and arrested. When interviewed he admitted making threats to the police and members of the public. He denied head-butting Miss Garrity-Phillips. He said he had been arguing with people at the house but did not assault anyone. 14. The appellant has a substantial criminal record consisting of 18 previous convictions for 23 offences. They include three offences of battery, one of affray, one of section 20 wounding, one of assault occasioning actual bodily harm, one of assault with intent to resist arrest and one of theft from the person. Before the sentencing judge there was a pre-sentence report which referred to the appellant's lengthy and unenviable record of previous offences. It was said that most of his offences occurred whilst he was under the influence of alcohol. He was impulsive and responded aggressively to confrontational situations and the author of the report was of the opinion that there was a high risk of him re-offending. 15. In his sentencing remarks the judge referred to the appellant's bad record and the fact that the offences of affray and assault had been committed when he was on bail. He concluded that the appellant presented a significant risk to the public as demonstrated by the facts of the offences of assault and his previous convictions for violence for specified offences. Accordingly, he passed the sentences to which we have referred. 16. The Registrar referred this case to the court because it appeared to him that the extended sentence was an unlawful sentence. It is common ground between counsel for the appellant and counsel for the respondent that, for reasons which we will explain, the extended sentence is unlawful. Accordingly, as we have said, we extended time and granted leave to appeal. 17. This case also raises difficulties in relation to the application of section 227 of the 2003 Act particularly in relation to offences committed before the provisions of the Act came into force. We should say at once that we have great sympathy with judges of the crown court who have to wrestle with the labyrinth of the sentencing provisions of the 2003 Act which are further complicated by the transitional provisions related to offences still subject to the Powers of Criminal Courts (Sentencing) Act 2000 . 18. Before approaching the specific issues in each of these appeals we start by setting out the relevant statutory provisions. Chapter 5 of the 2003 Act is headed "Dangerous Offenders". Section 227 is headed "Extended Sentence for certain violent or sexual offences: persons 18 or over". We set it out in full: "This section applies where- (a) a person aged 18 or over is convicted of a specified offence, other than a serious offence, committed after the commencement of this section, and (b) the court considers that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences. (2) The court must impose on the offender an extended sentence of imprisonment, that is to say, a sentence of imprisonment the term of which is equal to the aggregate of- (a) the appropriate custodial term, and (b) a further period ("the extension period") for which the offender is to be subject to a licence and which is of such length as the court considers necessary for the purpose of protecting members of the public from serious harm occasioned by the commission by him of further specified offences. (3) In subsection (2) "the appropriate custodial term" means a term of imprisonment (not exceeding the maximum term permitted for the offence) which- (a) is the term that would (apart from this section) be imposed in compliance with section 153(2), or (b) where the term that would be so imposed is a term of less than 12 months, is a term of 12 months. (4) The extension period must not exceed- (a) five years in the case of a specified violent offence, and (b) eight years in the case of a specified sexual offence. (5) The term of an extended sentence of imprisonment passed under this section in respect of an offence must not exceed the maximum term permitted for the offence." 19. Section 229 deals with the assessment of dangerousness. It provides that where a person has been convicted of a "specified offence" and the court must assess whether there is a significant risk to members of the public of serious harm from an offender over 18, it is subject to the assumption provided by section 229(3), which reads: "(3) If at the time when that offence was committed the offender was aged 18 or over and had been convicted in any part of the United Kingdom of one or more relevant offences, the court must assume that there is such a risk as is mentioned in subsection (1)(b) unless, after taking into account- (a) all such information as is available to it about the nature and circumstances of each of the offences, (b) where appropriate, any information which is before it about any pattern of behaviour of which any of the offences forms part, and (c) any information about the offender which is before it, the court considers that it would be unreasonable to conclude that there is such a risk." 20. It follows that, as is now well recognised, a defendant convicted of a specified offence, who has previous convictions for relevant offences, must be assumed to be a significant risk to members of the public of serious harm, unless the court considers that it would be unreasonable to conclude there is such a risk. The first task of the sentencing judge is, therefore, to assess the risk of dangerousness according to the provisions of section 229. 21. The section 247 deals with the release on licence of prisoners serving extended sentences and provides in the material parts: "(2) As soon as- (a) a prisoner to whom this section applies has served one-half of the appropriate custodial term, and (b) the Parole Board has directed his release under this section, it is the duty of the Secretary of State to release him on licence. (3) The Parole Board may not give a direction under subsection (2) unless the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. (4) As soon as a prisoner to whom this section applies has served the appropriate custodial term, it is the duty of the Secretary of State to release him on licence unless the prisoner has previously been recalled under section 254." 22. Finally sections 263 and 264 deal with concurrent and consecutive sections and further explain early release provisions. Section 264 has some relevance to the appeal in Butterworth. 23. It will be apparent from the above that whereas an offender, the subject of an extended sentence, may not be released after serving half of the custodial term until the Parole Board is satisfied it is no longer necessary for the protection of the public to confine him, an offender serving a fixed term or determinate custodial sentence of 12 months or more will be released after serving half of his sentence (see section 244(3)(a)). It follows that if a consecutive determinate sentence is passed to an extended sentence it may be difficult to determine when the custodial element of the extended term ends and the determinate sentence begins. 24. In our judgment these difficulties do not arise if an extended sentence is made consecutive to a determinate sentence. Mr Close, on behalf of Brown, argued that section 264(2) may be interpreted as permitting the Secretary of State to refrain from releasing an offender where a consecutive extended sentence is passed until such time as the aggregate length of the determinate sentence, and the custodial term of the extended sentence, has expired. We do not believe that this is so. It seems to us that this would be inconsistent with the clear terms of section 247(2). 25. In these appeals we have received considerable assistance from all counsel and particularly from Mr Bassano who represents the respondent in each appeal. Mr Bassano has helped highlight some of the difficulties which sentencing judges face when passing extended sentences where the defendant falls to be sentenced for other non-specified offences. 26. At the outset we feel it may be helpful to make some short points of general application. Firstly we conclude that the court has power to pass consecutive extended sentences. We have no doubt that the court has power to pass an extended sentence consecutive to a determinate custodial sentence. It may very well be that the court has power to pass a determinate sentence consecutive to an extended sentence. As Mr Bassano points out, nothing in the statutory provisions seems to forbid any of these combinations of sentence and section 264 would appear to contemplate such sentences. 27. However, when the release provisions of section 247 are factored in difficulties may very well arise in respect of the calculation of dates for release and the start of the periods on licence. In those circumstances in our judgment the following points should be observed. First, consecutive extended sentences appear to provide considerable problems in determining the application of the appropriate licence period once the custodial element has been served. Secondly, similar problems will arise if a determinate sentence is made consecutive to an extended sentence. Accordingly we take the view that consecutive extended sentences and a determinate sentence consecutive to an extended sentence are, in general terms, not appropriate and should be avoided. However, we see no reason to suggest that such problems will arise if the extended sentence is made consecutive to the determinate sentence. 28. There is no reason to suppose that concurrent extended sentences raise any of the above problems, nor that an extended sentence concurrent with a determinate sentence will cause insuperable difficulties. However in the latter case a concurrent determinate sentence, longer than the custodial element of an extended sentence, may well have the effect of the extension being subsumed in the longer determinate sentence. It is therefore sensible where possible to avoid such a combination of sentences since it will defeat the purpose of the mandatory extended sentence. 29. Finally nothing that we have said is in any way intended to dilute the guidance given by the court in Lang and R v S [2005] EWCA Crim 3616 . We observe that as these two appeals demonstrate extended sentences in combination with other offences can pose difficult sentencing problems and advocates should be alert to assist judges navigate their way through the complex statutory provisions. 30. We return to the instant appeals starting with Brown. The first ground of appeal challenges the judge's assessment of dangerousness. It is conceded that the statutory assumption in section 229(3) applies, but the appellant relies on a number of factors that, it is submitted, militate against a finding of dangerousness. They are firstly, the offences themselves did not result in any injury to any person, let alone any serious physical injury or psychological harm. Secondly, the man threatened with the sword goaded the appellant throughout the incident and made no complaint to the police. Although violence was threatened none was used. Thirdly, the appellant's records contains offences of violence towards the bottom end, it is submitted, of the scale of violent offences, and do not demonstrate that the appellant poses a risk of causing serious harm. Fourthly, no details of the fact of the offences were placed before the court without which it is difficult to assess the seriousness of them. As to this the court has now details of the offences. Fifthly, the pre-sentence report refers to the high risk of offending but not of causing serious harm. In support of this submission counsel relies on the guidance given by this court in R v Lang . 31. In sentencing this appellant the judge said: "In deciding the main issue - so in deciding whether there is a significant risk of harm from the commission by you of further specified offences, a significant risk of 'serious' harm I should say - I must look at all the information. I am not precluded from taking into account all of your previous convictions whether for specified offences or not. I regard as irrelevant any conviction you have for matters relating to driving or dishonesty. I only look at matters relating to violence or disorder. But I must take into account that you threatened serious violence to the witness by arson which is itself a specified offence. I note you have been convicted on three occasions of possessing an offensive weapon a knuckleduster on one occasion and, in January of this year, three baseball bats and a weightlifting bar, and you also have a conviction for possession of a bladed article in a public place you also have two convictions for common assault, and for those offences you have received a variety of punishments ranging from a community punishment order to short terms of detention in a young offender's institution. You pleaded guilty at the first opportunity and I accept you have some real remorse. I have read the probation officer's pre-sentence report and take into account. But I am driven to conclude that you do represent a danger to others of the commission of further offences. Your history of involvement with weapons and violence means that there is a substantial risk in your case that you will cause serious harm to others by the commission of further specified offences. So, in the case of the affray, I am bound to pass an extended sentence." 32. It is in our judgment quite clear that the judge properly directed himself on the test applicable to assessing dangerousness. In our judgment the factors to which he referred were such as to enable him properly to conclude that the statutory assumption was not displaced. Accordingly that ground of appeal fails. 33. The next ground of appeal challenges the length of sentence. It is submitted that the four-and-a-half years' custodial sentence was too long. Counsel relies on a number of decisions of this court, to which we have been referred in his skeleton argument. He refers to the fact that the appellant was entitled to a discount of one third for his guilty pleas entered at the earliest opportunity, and to the general pattern of sentencing for offences of affray. Next he relies on the guidance given in Lang in which the court said that when the court imposes an extended sentence, generally it should impose a shorter concurrent sentence for other offences: see paragraph 20 of the judgment. Finally, Mr Close points to the fact that the appellant must spend at least 27 months, half of four-and-a-half years, in custody whereas under the sentence passed initially by the judge, before it was varied, the time spent in custody might have been less. 34. Mr Close submitted that if this court were to adopt the course of passing a determinate sentence and a consecutive extended sentence, the custodial term of the extended sentence should be less than 22 months. He submitted that the court should have in mind that extended sentences place an offender at risk of serving a much longer custodial sentence if the licence is breached. He referred to the fact that there may be an element of double counting as to seriousness, which should be avoided. That is correct, but it is an inherent part of the extended sentence regime. However, these are factors to be given some, albeit not considerable, weight. 35. In our judgment there was nothing unlawful in the judge sentencing the appellant to an extended sentence concurrent with the determinate sentence, which is longer than the custodial term of the extended sentence. However, the sentence of four-and-a-half years for intimidation is much longer than the extended sentence and offends against the guidance by the court given in Lang , to which we have referred. As we have already said, the general guidance in Lang should, where possible, be adhered to. 36. We think that in this case the judge could properly have achieved the desired structuring of the offence by passing the extended sentence for the affray consecutive to the sentence for intimidation. As we have said in our general comments, we see no reason to suggest that a sentence would be wrong in law or in principle on that basis. We accept that it is unusual and generally should be avoided where possible, but there will be cases where a non-specified offence will require consecutive sentences. In our judgment this is just such a case. 37. We conclude that the way that the judge first approached the sentence was correct, save that he ought to have made the extended sentence consecutive to the determinate sentence. We see nothing wrong or excessive in either of the custodial terms. Accordingly we propose to quash the sentences which he passed as varied and, for the avoidance of doubt, we substitute 18 months in respect of count 4 and the 36 months extended sentence consecutive in respect of count 1. The latter comprised of 22 months custodial and 14 months extension. To that extent and for these reasons this appeal is allowed. 38. We turn to the appeal in Butterworth. In an amended notice of appeal and skeleton argument submitted yesterday counsel seeks to challenge the judge's finding of dangerousness. This has been done no doubt prompted by the skeleton argument of the respondent. The submissions made on this further ground are that the sentencing judge did not have the material before him upon which properly to assess dangerousness. Further reliance is placed on the fact that the judge concluded only that the appellant presented a significant risk to the public. He did not state that he concluded that the appellant posed a risk of serious harm to the public. 39. We have the information before us in respect of the appellant's previous convictions. They are set out helpfully in Mr Bassano's skeleton argument. As we have said, the appellant has convictions for affray, unlawful wounding, assault occasioning actual bodily harm and an assault with intent to resist arrest. He also has three convictions for battery. 40. Mr Bassano makes reference to the pre-sentence report in which the author of the report records the appellant's impulsive behaviour in drink. The author of the report expressed the opinion that the risk of re-offending was high. As is pointed out by both counsel, the report does not consider the risk of serious harm if the appellant re-offends. 41. With commendable fairness Mr Bassano in his skeleton argument set out the factors which might favour the appellant on this issue and those which favour a finding of dangerousness. We have carefully considered these factors. The ones that impress us are those in paragraph 14 of Mr Bassano's skeleton argument. We do not set them all out. He refers to the instant offences, which did not cause serious harm; the fact that there is no evidence that any of the previous offences of violence involved serious harm; and the fact that the previous specified violent offences were committed some time ago when the appellant was aged 16 to 18. 42. The judge in his sentencing remarks does, as we have said, appeared not properly to have directed himself on the crucial test as whether or not the offender represented a significant risk to members of the public of serious harm occasioned by the commission by him of further offences. He said this at page 3E: "I consider that you do present a significant risk to the public, as shown by the facts of the assault occasioning actual bodily harm and the affray, and I have regard also to the fact that you have a series of convictions for violence for specified offences." 43. Taking into account all the factors, we are quite satisfied that the appellant represented a significant risk of committing further offences. But bearing in mind what was said in Lang by the vice-president at paragraph 11, in our view his past offending and these offences do not give rise to a risk of serious harm. In our judgment the material before the judge, the risk of serious harm, was not demonstrated and may account for the judge's failure to mention such a risk in his sentencing remarks. It follows that we allow the appeal in respect of the ground that challenges the judge's finding of dangerousness. It follows also that the extended sentences must therefore be quashed. However, we see nothing wrong with the custodial elements of these sentences and we propose to leave them unaltered. For the avoidance of doubt these will be sentences on each of the magistrates' courts offences of eight months' imprisonment consecutive to each other and consecutive to the indictment offences. 44. Having reached this conclusion, it may however help others if we say what our conclusions would have been if we had concluded that the test of dangerousness had been established. There can be no doubt that the extended sentences passed by the judge were unlawful. This is so for two reasons. First the sentences, which made up the custodial element, were in each case for periods of less than 12 months. Section 227(3) makes it clear that an extended sentence can only be passed in respect of a custodial term of not less than 12 months. The judge subsequently recognised this but by the time it was drawn to his attention it was too late for him to vary the sentence. Secondly, an extended sentence is a two-part sentence comprising a custodial element and an extended licence period, the extension. 45. In our judgment Mr Bassano's submission that the extension cannot be tacked on to two separate custodial terms is correct. The problem, however, is that the judge assessed the appellant as dangerous and in accordance with section 229(3) he therefore was obliged to pass an extended sentence. In our view the way in which he could have achieved that which he intended, provided he was right to pass an extended sentence, is the way in which Mr Bassano suggests in his skeleton argument. It is that the judge should have passed an extended sentence in respect of the first of the magistrates' courts' offences of three years and four months with a custodial term of 16 months and an extension of two years, that for the assault occasioning actual bodily harm. 46. For the offence of affray the sentence should have been 12 months with an extension of two years. The custodial element so far as the affray sentence cannot be longer than 12 months, because it would then be longer than the maximum sentence for the offence, namely three years once the extension period of two years is passed. In the circumstances the sentences would then have been lawful and would have achieved the purpose which the judge required. Nevertheless, in accordance with our finding in relation to dangerousness, that matter does not arise. 47. For the reasons which we have endeavoured to explain, the appeal in Butterworth is allowed to the extent set out.

2006_07_18-879.xml

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01c4439d0298ae819ec8dde8c02e0bd5ada846514c4f8e71318184deb225802d

[2021] EWCA Crim 477

EWCA_Crim_477

2021-03-12

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. 202002875 A1 IN THE COURT OF APPEAL A1 CRIMINAL DIVISION [2021] EWCA Crim 477 Royal Courts of Justice Friday, 12 March 2021 Before: LADY JUSTICE CARR MR JUSTICE JAY HER HONOUR DEBORAH TAYLOR ( RECORDER OF WESTMINSTER ) REGINA V JAMES MICHAEL HUGHES PETER POWELL __________ 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 R. BOAG appeared on behalf of the Appellants. The Crown were not represented. _________ J U D G M E N T LADY JUSTICE CARR: Introduction 1 These are two appeals against sentence brought by James Hughes (“Hughes”), now 39 years old, and Peter Powell (“Powell”), now 53 years old. Both pleaded guilty in the Crown Court at Mold to conspiracies to supply cocaine and heroin (counts 3 and 4 of the indictment). On 11 September 2020 HHJ Parry ("the Judge") imposed on each of them two sentences of four years and six months' imprisonment to run concurrently. 2 The appellants were sentenced alongside some sixteen further co-accused, who received custodial terms ranging between 4 and 21 years' imprisonment. 3 Both Hughes and Powell have had the benefit of representation from Mr Boag. We express our gratitude for his clear and able submissions on this appeal. The Facts 4 The overall offending of these conspiracies came to light as a result of a police operation called Operation Tide. This was an investigation into a sophisticated and well-organised criminal network that had been responsible for the large-scale commercial supply of cocaine, heroin and class B drugs into North Wales, Scotland and the South of England. The criminality involved high purity cocaine and heroin. A huge amount of cutting agents had been recovered during the police investigation and it was estimated that the conspirators had traded in drugs worth in excess of £2 million. Colin Jones (“Jones”) had been at the head of the organised crime group and had controlled operations from the Liverpool area. Although arrests and seizures had been made during the course of the conspiracies, the organised crime group had continued with its activities. 5 There was, as is common, a sophisticated hierarchy in place, dealing with procurement and logistics. Powell was said to have played an important part in the distribution side of the operation in Connah's Quay in North East Wales. He had been responsible for vehicle logistics and had on occasion travelled in his own vehicle to meet or facilitate meetings between upstream suppliers and Liverpool. Hughes' role was described as a low level runner, who physically dealt the drugs to the end customer. Hughes had been one of the conspirators who had been regularly dealing drugs on behalf of the organised crime group as part of the Connah's Quay operation as well. He had been seen frequently travelling to and from the address of another co-accused Anthony Stagg (“Stagg”), and had been collecting drugs from that address which he then sold on behalf of the organised crime group. 6 Jones had controlled the Echo Line which was the top-up mobile telephone line used in the conspiracies, and he made sure that that line had been active and operational seven days a week. Powell had been seen to purchase a top-up for Echo Line. In a three-month period in 2018 the line had 160,000 calls and text messages to it. The line was, therefore, of critical importance to the conspirators. When it was analysed by the police, Powell and Hughes were amongst its top ten contacts. 7 After a thorough police investigation, the conspirators were arrested by the police. Hughes and Powell made no comment in response to questions asked by the police. 8 Hughes had five convictions for seven unrelated offences, spanning between October 1999 and September 2016. Powell had 17 convictions for 27 unrelated offences, spanning OPUS 2 DIGITAL TRANSCRIPTION between December 1987 and December 2018. 9 Both Hughes and Powell pleaded guilty on a basis. Hughes' basis was that he had acted as a street level dealer for about a month in November/December 2018. He was a regular user of heroin and crack cocaine himself and had agreed to act as a street level dealer when the person previously active in that role had been arrested. He lost his position after being admitted to hospital shortly before Christmas 2018. 10 Powell's basis on his guilty plea (which was entered only after trial had started) was that his involvement was limited to two specific occasions in September 2018, once when he purchased the top-up drug for the Echo Line on 17 September 2018, and secondly, when he gave Stagg a lift to Liverpool, but he himself had not attended the meeting when drugs were passed. Sentence 11 The Judge prepared detailed and lengthy written sentencing remarks relevant to each of the 18 defendants before him. This was a sophisticated, well-organised, criminal enterprise responsible for large scale commercial supply into North Wales, Scotland and the South of England, one of the large scale, so-called county lines organised crime groups. The conspirators were highly sophisticated, extremely surveillance conscious and aware, and adopted counter measures to frustrate detection. 12 The Judge reminded himself that the Sentencing Council Guidelines, which he had considered carefully, embodied a good deal of flexibility. Calculation of harm had to be reflective of the reality of the overall facts. He commented — and no criticism is made of this — that the assistance of the Guidelines was, however, of some limitation in a case such as this of conspiracy, being relative to single offences by single offenders. The Judge set out his approach to the sentencing exercise under the Guidelines, amongst other things commenting that the court was entitled to take into account that each individual was part of a wider, more serious criminal activity. Involvement in a wider conspiracy was in itself an aggravating feature, each defendant playing a part which supported others. The court was entitled to, and indeed, should reflect in any sentence the bigger and more serious picture. 13 Turning to the sentencing exercise specific to Hughes and Powell, the Judge described counts 3 and 4 as relating to the operation of a widespread conspiracy in North East Wales. Each of the conspirators had been damaging their local community, a part of Wales that each of them knew had been suffering the dreadful consequences of class A dependency. Each of the conspirators had played a significant role in the conspiracy. Each of the conspirators, from the mobile telephone contact that had been analysed, had clearly been important contacts for the county line phones based in the north-east of England. 14 In relation to Powell, his role had been a lesser role than others, but he was nevertheless on the very cusp of level 2 and level 3 in relation to harm. His role had been to provide Stagg with transport. He had also bought top-up mobile telephones for the county lines enterprise, which had made detection of the main conspirators more difficult. He had a poor record of previous convictions, and had foolishly left it very late after a trial had started, before pleading guilty. The Judge would exceptionally give Powell 10 % credit in this regard. He would sentence Powell faithfully on his basis of plea. In terms of mitigation, Powell had no previous convictions for drug trafficking offences, and a good work ethic. The Judge said that he took into account the mitigation urged on his behalf. 15 In relation to Hughes, Hughes also stood to be sentenced in relation to counts 3 and 4. He had been a street dealer, selling the product with what he had known was a county lines drug operation. Hughes had played a significant role, having personally been handed a mobile telephone by Stagg, someone whom Hughes had known well. Hughes would also have known that Stagg had been involved in something far bigger. Hughes' position was aggravated by his previous convictions, but Hughes had had the good sense to plead guilty to counts 3 and 4, and would be afforded 25 % credit accordingly. He had no previous convictions for drug related offending. The Judge said in terms that he took into account the basis of plea for Hughes, and in particular, the aspect that confirmed that Hughes's involvement in the conspiracy was for a very short period. The Judge also took into account the fact that Hughes had been drug dependent at the relevant time. 16 He then passed the sentences to which we have already referred, namely sentences of four years and six months overall on each appellant. Grounds of appeal 17 For Hughes, Mr Boag submits that Hughes should have been treated as a street level dealer, category 3, significant role, with a starting point of four and a half years. Hughes had originally been a customer. He had been recruited only to take over from somebody who had been arrested. His services were terminated after a month. There was no basis for treating Hughes as providing anything other than end of line street dealing. Hughes' basis of plea, the prosecution opening and sentencing grid all made it clear that his role was as a street level dealer for a period of about four weeks in November and December 2018. A term of six years, before 25% credit for guilty plea in those circumstances was manifestly excessive. An appropriate sentence would have been around three to three and a half years, after credit. That would be based on a term of four and a half years, taking into account the aggravating features of Hughes' previous convictions balanced out by the impact of the pandemic on prison conditions. 18 For Powell, Mr Boag submits that, whilst the prosecution sentencing grid was consistent with Powell's basis of plea, allocating him a lesser role, albeit by reference to category 2/3 harm, the prosecution oral opening for sentence was at odd odds with it. It was stated that Powell had played an important role in the distribution side of the operation, his involvement on 9 September 2018 being but an example. Mr Boag suggests that this may have caused the Judge to pass a harsher sentence than was justified. Powell should have been placed in lesser role, category 3, with a starting point of three years’ custody, it is submitted. His basis of plea indicated that there were only two occasions when Powell was involved. That basis was accepted. There had been no trial of issues. The term of five years before credit for guilty plea in these circumstances was manifestly excessive. Powell's previous convictions were relatively minor and spread over a lengthy period. Further, Mr Boag informs the court that there are, uniquely so far as Powell is concerned, no proceedings under the Proceeds of Crime Act 2002 against him. There are such proceedings against all other 17 defendants. This, suggests Mr Boag, emphasises the lesser role that Powell played by reference to which he ought to have been, but was not, sentenced. Discussion 19 As identified in R v Williams (Declan Craig) [2019] EWCA Crim 279 ; [2019] Cr App R (S) 15 at [3] and [4], this court will not usually review the approach of a sentencing judge sentencing many defendants for their various roles in a large conspiracy to supply drugs. In such a case the judge will usually have heard read or heard the prosecution evidence as it relates to all of the defendants and will be uniquely well placed to consider the different roles of the various conspirators and the nature and extent of each person's involvement. He or she is, thus, also uniquely well placed to calibrate the sentences imposed so as to achieve parity among the defendants and reflect their various levels of responsibility. Only if it can be shown that in sentencing a particular defendant the judge did so on a factual basis which is obviously mistaken or made an error of principle, or when assessing weight formed a view which no reasonable judge acting reasonably could have formed, is this court likely to think it right to interfere. Arguments based on misappraisal or level of role or disparity will seldom have any realistic prospect of success. 20 We respectfully adopt those remarks. Here, the Judge undoubtedly had a material advantage over this court with an in-depth understanding of the conspiracies as a whole and the role and involvement of each of the 18 co-accused. He carried out a three-day sentencing exercise. There would need to be a clear, established error of fact or principle before there would be a proper basis for intervention by us. 21 As for Hughes, we are not persuaded that there are any such proper grounds to interfere with the Judge's conclusion as to the appropriate custodial term of six years before granting credit for guilty plea. The Judge was fully aware of the relevant facts and took into account Hughes' basis of plea and his available mitigation alongside his poor offending record. Hughes was being sentenced for two class A drug conspiracies. As the Judge was entitled to conclude, he was not dealing with any end of the line street dealing but more serious offending. Even if Hughes was only involved for a relatively short period, he played an important role and he was linked closely to Stagg. His involvement only ceased because of his ill-health. Moreover, as the Judge indicated, he was entitled to sentence Hughes by reference to the wider picture, whilst remaining faithful to Hughes' basis of plea. Hughes was, as we have already indicated, one of the top ten contacts on the Echo Line. 22 Nor are we persuaded that there is established a clear error of fact or principle giving rise to proper grounds for us to interfere with the Judge's conclusion as to the appropriate custodial term of five years before credit for guilty plea for Powell. Again, the Judge was fully aware of the relevant facts and took into account Powell's basis of plea and available mitigation alongside his poor offending record. Powell purchased the top-up of the Echo Line to support the activities of the organised crime group. The Echo Line was a critical part of the group's activities. Powell also was in the top ten contacts on that telephone. He was a friend of Stagg, someone who was in or close to the inner circle of those allowed to visit Jones's base in Liverpool, and again, even if Powell's direct involvement was limited to two instances, the Judge was entitled to sentence him by reference to the wider picture. Each defendant, albeit to varying degrees, knew that he or she was assisting many others in his or her criminality. Further, it can be said that Powell could consider himself extremely fortunate to have received the credit that he did for the guilty pleas that he entered after the commencement of trial. 23 In conclusion, whilst we consider that the sentences passed on Hughes and Powell can be said to be severe, we are unable to conclude that they are manifestly excessive. For these reasons both appeals will be dismissed. ______________ 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_12-5134.xml

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[2015] EWCA Crim 1079

EWCA_Crim_1079

2015-06-09

crown_court

Neutral Citation Number: [2015] EWCA Crim 1079 Case No: 2014/5110/B1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 9 June 2015 B e f o r e : LADY JUSTICE RAFFERTY DBE MR JUSTICE WILLIAM DAVIS THE RECORDER OF BIRMINGHAM HIS HONOUR JUDGE INMAN QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v STEPHEN GOUGH - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of

Neutral Citation Number: [2015] EWCA Crim 1079 Case No: 2014/5110/B1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 9 June 2015 B e f o r e : LADY JUSTICE RAFFERTY DBE MR JUSTICE WILLIAM DAVIS THE RECORDER OF BIRMINGHAM HIS HONOUR JUDGE INMAN QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v STEPHEN GOUGH - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr M Scott appeared on behalf of the Applicant Mr J Hallam appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LADY JUSTICE RAFFERTY: On 6th October 2014 in the Crown Court sitting at Winchester Stephen Peter Gough, 56, was convicted of breaching an Anti-social Behaviour Order, colloquially known as an ASBO, contrary to section 1(10) of the Crime and Disorder Act 1998 and sentenced to 30 months' imprisonment. He had been unrepresented. He had told the court that he wished to represent himself, but as a consequence of his refusal to wear any clothes at all in court he was tried in absentia . 2. By leave of the single judge he challenges the safety of his conviction. The Registrar referred to this court an application for an extension of four months so as to seek leave to appeal against sentence. 3. On 13th August 2013 the applicant was made subject to an Anti-social Behaviour Order which prohibited him from appearing in public without clothing to cover his genitalia and buttocks. At its imposition he was serving a prison sentence from which, on 15th April 2014, he was released, naked save socks and boots. He had declined the offer of clothing. He was arrested immediately outside prison. Interviewed under caution he asserted as a reasonable excuse for his nakedness that he did not agree with the contents of the Order so was not prepared to obey it. 4. At the close of the case for the Crown, the judge was handed a letter from people in the public gallery which included concerns that the jury was denied knowledge of matters the author suggested were of some significance. They included that nudity was no crime; that Gough had spent some eight years in jail already; that guidelines on public nudity seemed at odds with the harshness of his treatment; and that he held a sincere and deep belief in the philosophical approach to living life naked. 5. His case was that since he considered the Order wrong, his refusal to abide by it provided him with a reasonable excuse. He suggested the Order was not reasonable. He sought to live his life following his own reason and with integrity. He was not prepared to accept that he should simply follow what someone else said merely because that someone was in a position of authority. He sought to appear in court naked so as to support his own case, as evidence of the appearance of his body in a public place. 6. The issue was reasonable excuse for breach. 7. There was on the nursery slopes of the trial dialogue about whether if he were in court he would sit or stand. We are grateful to Mr Scott (who did not appear below) for explaining to us that any point arising from it falls away. By videolink from prison today he sat unclothed from the torso upwards, his lower body obscured by a table. For all we know he was clothed other than above the waist. 8. He confirmed before his trial began that he took no issue with the case for the Crown, nor did he want to take up the judge on her offer to put questions on his behalf were he not in court. He had no objection to content of the note from the public gallery which we have summarised and he firmly declined to put on clothes so as to present to the jury his own case. 9. The Crown suggested to the judge that he had had every opportunity to participate in the discussion of his presence during the trial and as a consequence of his unwillingness to put on clothes she was entitled to be satisfied that he was unable to participate. She gave him a final opportunity to appear clothed which he rejected. He was explicit that he understood the consequences. 10. Sentencing him, the judge said that whilst there was a guideline of assistance on breach of Orders, this was a wholly exceptional case. The Applicant had flagrantly breached the Anti-social Behaviour Order. If there were a way out of the cycle of endless prison it should be found, but at the moment she saw little option but imprisonment. 11. Born on 13th May 1959, Gough had 30 convictions comprising 48 offences committed between 2003 and 2014, predominantly breaches of public order or failing to comply with Court Orders. His first custodial sentence was three months' imprisonment in 2004 for breach of the peace. In June 2013 he was sentenced to 48 weeks' imprisonment (upheld on appeal) and in January 2014 to 16 months for breaching Anti-social Behaviour Orders. 12. In grounds of appeal against conviction, the first complaint is that the judge fell into error in excluding the appellant from his trial when he confirmed his wish to appear naked. His nakedness was not likely to interfere with the proper course of the trial. The judge should have been slow to set conditions about how he should dress. Requiring him to dress had a powerful effect on the ability of the court to deal justly with the case, contrary to the over-riding objective, and it impeded his participation. Even were she right to insist that he should not be naked, the judge failed to consider other options falling short of exclusion from the court. 13. Finally, and advanced with a lighter touch, were criticisms that the judge failed to give sufficient weight both to the applicant's right to a fair trial under Article 6 of the European Convention on Human Rights ("the Convention") and to manifest his belief under Article 9. 14. As to sentence, the complaint is that no serious harm was caused by the breach which was brief in time, harmed no one and was not characterised by evidence that any member of the public was there to observe in any event. The only certain observers were police officers waiting. Consequently the sentence was not commensurate with the seriousness of the breach. The sentence was double the length of the last sentence. Lengthening periods of imprisonment are pointless, excessive and oppressive. The applicant's right to freedom of expression under Article 10 of the Convention is engaged and a significantly shorter sentence would have met the justice of the case. 15. The respondent Crown argues that the judge's decision on nakedness was reasonable and lawful. She had a discretion to exclude a defendant who did not conduct himself decently: Jones (Anthony) [2003] 1 AC and Gough (this Appellant) [2013] EWCA Crim. 1418. The purposes of requiring the him to dress included ensuring respect for the court and protection for the jury or the public from shock or offence. Strasbourg jurisprudence, the Crown submits, does not suggest a criminal trial, absent a defendant, is inconsistent with the Convention. His Article 9 right to manifest his belief is unlikely to extend to refusing to wear clothes in public. If, which is not admitted, it were engaged the Crown suggests the refusal to allow him to appear naked in court was a response both necessary and proportionate: Gough v United Kingdom (49327/11). 16. In our judgment, were the Appellant to have appeared naked in front of the jury it would have been a further breach of the Anti-social Behaviour Order and that is the end of the argument. That a court should contemplate concurrence with the commission of a criminal offence during proceedings is a bizarre notion and, without more, fatal to the Appellant’s submissions. The suggestion that the judge "ought to have been very slow, in the absence of any disruptive behaviour, to set any conditions about how he should dress" misses the point. The judge could not with propriety have put herself in the position of agreeing to the commission of a crime. The Anti-social Behaviour Order was in place and it prohibited behaviour the applicant sought to legitimise. 17. The judge's rejection of the suggestion of an ad hoc arrangement involving a screen, or perhaps more accurately the absence of consideration of such, does not render her decision irrational. An appearance in court was always open to the applicant. Had he clothed himself he could, as he and all those listening knew, have come up and taken a part or no part in proceedings. That he opted by his response to the court's inevitable ruling to stay out of court was his decision. He cannot now hope that his complaint about the consequences he set in motion will succeed and it does not. 18. Was the trial unfair? He had no challenge to the Crown's evidence. His case was that he had a reasonable excuse to breach the Order. The judge's direction in the summing-up, that in law he did not, is unimpugned and unimpugnable. She judge did not direct the jury to convict. That is why this is not a case in the same category as Wang [2005] UKHL 9 ; [2005] 2 Cr.App.R 8 where the judge did impermissibly so direct the jury. It was always open to this jury, should it choose, to return a verdict which was not adverse to the appellant. The jury had his argument, foreshadowed in interview and appropriately summarised by the judge. Any consequences of an inability to advance a case in person he had elected to visit upon himself. As we have made plain, he was entitled to advance his arguments orally so long as he abided by the terms of the Court Order and behaved appropriately in the court setting, conditions which, on these facts, are in harmony. 19. He wished to flout an Order of the Court and thus, by his own decision-making process, detached himself from proceedings and he knew before he did so what the outcome would be. 20. The Divisional Court has already considered whether the imposition and/or the terms of the Anti-social Behaviour Order were disproportionate, the President of the Queen's Bench Division presiding. The European Court of Human Rights has reviewed the effect of prosecutions of the Appellant in Scotland for breach of the peace. Where relevant its judgment reads: "176. ... [the] applicant’s imprisonment is the consequence of his repeated violation of the criminal law in full knowledge of the consequences, through conduct which he knew full well not only goes against the standards of accepted public behaviour in any modern democratic society but also is liable to be alarming and morally and otherwise offensive to other, unwarned members of the public going about their ordinary business. ... the reasons for the measures adopted ... were 'relevant and sufficient' and ... met a pressing social need in response to repeated anti-social conduct by the applicant. It cannot be said that the repressive measures taken in reaction to the particular, repeated form of expression chosen by the applicant to communicate his opinion on nudity were, even if considered cumulatively, disproportionate to the legitimate aim being pursued, namely the prevention of disorder and crime. In particular, Article 10 does not go so far as to enable individuals, even those sincerely convinced of the virtue of their own beliefs, to repeatedly impose their antisocial conduct on other, unwilling members of society and then to claim a disproportionate interference with the exercise of their freedom of expression ... " The appeal against conviction is dismissed. 21. We turn to the application for an extension of time, which we grant, for leave to appeal against sentence. Although we acknowledge that two-and-a-half years for breach of an Anti-social Behaviour Order might, absent narrative, appear manifestly excessive, this case must be read in context. That context reveals that it is the persistence of the conduct which leads to longer and longer sentences. The applicant had 26 previous convictions and a history of failure to comply with orders of the court. Additionally, he chose to breach his Anti-social Behaviour Order immediately upon release from prison. No guidelines were likely to assist the judge in these unusual circumstances, as she rightly identified. A combination of those factors we have identified more than justifies the course she adopted. Consequently the application for leave to appeal against sentence is rejected.

2015_06_09-3617.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2015/1079/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2015/1079

09e56869e13f173bead88823b0486746b1178fa5a0d449f573ca1d4bb687e951

[2009] EWCA Crim 2745

EWCA_Crim_2745

2009-11-25

crown_court

No: 200904243/A2 Neutral Citation Number: [2009] EWCA Crim 2745 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 25th November 2009 B e f o r e : MR JUSTICE HOOPER MR JUSTICE LANGSTAFF MR JUSTICE WYN WILLIAMS - - - - - - - - - - - - - - - - R E G I N A v GARY STEPHEN JOHNSON - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London

No: 200904243/A2 Neutral Citation Number: [2009] EWCA Crim 2745 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 25th November 2009 B e f o r e : MR JUSTICE HOOPER MR JUSTICE LANGSTAFF MR JUSTICE WYN WILLIAMS - - - - - - - - - - - - - - - - R E G I N A v GARY STEPHEN JOHNSON - - - - - - - - - - - - - - - - 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 Lyons appeared on behalf of the Applicant Miss A England appeared on behalf of the Crown - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE LANGSTAFF: On 25th June the appellant was convicted of possessing ketamine with intent to supply before His Honour Judge Lee and a jury, in the Crown Court at Dorchester. 2. At the outset of the trial he had pleaded guilty to a count of simple possession, which had been for that purpose added to the indictment. It follows that the jury rejected his defence that he had the drugs for his personal use. He was sentenced by His Honour Judge Lee to a term of 18 months' imprisonment. Against that sentence he appeals by leave of the single judge. 3. It is argued on his behalf that the starting point was simply too high for this drug, as to sentences for supply of which there is very little authority. There is a good reason for that. It was not until the Misuse of Drugs Act 1971 Amendment Order of 2005, which came into force on 1st January 2006, that ketamine was classed as a Class C drug. 4. The reasons why it is a Class C drug and was reclassified upward so to be are not material to our consideration of this sentence because it was for Parliament to classify the drug and not for us. But it is worth observing that ketamine is an anaesthetic drug which was originally used for veterinary and occasionally dental purposes. It is a dissociative anaesthetic which has the effect of blocking signals to the conscious mind from other parts of the brain. That can cause a state of reduced bodily sensation; it may prompt hallucinations. It is those psychedelic properties to which its present popularity on the clubbing scene can be attributed. It is known as a drug associated with drug assisted sexual assault. It has dangers in that higher doses can render the taker paralysed. It can affect memory. The serious health effects are however amply demonstrated in the case of this appellant who is a self-confessed user of ketamine over some time. One effect is to shrink the bladder and the urinary tract. The effect is to lead to a vastly increased frequency and discomfort of urination to the extent that this appellant requires to relieve himself very often, as much as twice an hour. 5. The essential facts of the case are these. The police conducted a search under warrant of the appellant's home in Weymouth. They discovered 25 litre jerry cans which were partly filled with colourless liquid. They discovered drinks bottles also containing a colourless liquid. One way of transporting ketamine is to mix it in solvent, and then when needed to evaporate the solvent so as to leave the dry white pure powder. There were traces of dry white pure powder in the appellant's microwave. A further search discovered £785 worth of cash. When the liquid was analysed, it was found to contain 785 grams of ketamine at 86 per cent purity. That is equivalent to 612 grams of pure ketamine. That is sufficient, it is accepted, to make just over 2,600 deals. Such is the retail price of those deals that the highest achievable price on the street would come to a total of some £11,000. Although Mr Lyons who appeared before us as he did below was at pains to emphasise that the appellant has himself a substantial drug habit, we felt unable to accept that he was anything other than a significant retailer. He has, in our view, to be treated as that. It does not seem to us particularly helpful to analyse the precise amount that he would have retained for himself, as opposed to that which he would have sold on the streets. 6. The judge in sentencing said very little. He reflected the growing concern among drug agencies and health care professionals about the long-term effects of regular ketamine use and told the appellant that he was living proof of the danger of the drug. He took into account the health problems from which the appellant suffered. He imposed, without further reasoning, a sentence of 18 months' imprisonment. It may be that he had in mind a broad equivalence with cannabis, (a Class B but not a Class C drug) and was seeking to apply the guidelines in the Aramah case, which would suggest that for a retailer such as this, a sentence of between 1 to 4 years would be appropriate, with the top end of the bracket being used for the wholesaler and a lesser sentence for those who retail smaller amounts. It may be that he had in mind a broad equivalence with amphetamine, which again is a Class B drug, for which, again, the sentencing range might be thought to be similar. 7. But we have been very helpfully referred to such few cases as there have been which have had specific regard to this drug. Normally one would find a report which would look at the possession of this drug, among others of greater seriousness and from which it would be very difficult to extract anything helpful to act as a reliable precedent. However, we have been particularly helped by looking at the case of R v Yucel [2007] EWCA Crim 3122 , in which this court had to consider a much larger quantity of ketamine, nearly 9 kilos of pure ketamine, with a street value of just over 20 times the value here, namely £250,000. 8. The sentence imposed by the court on a plea of guilty was one of 6 years' imprisonment, suggesting in the circumstances of that case a starting point for that quantity and for a significant wholesale dealer of seven-and-a-half years. That was reduced to 5 years' imprisonment. The case of R v Milan Kosanovic [2008] EWCA Crim 103 followed, Kosanovic having been one of the defendants involved in the case which Yucel was also indicted. His appeal came on separately. The court felt constrained by the success of the appeal in the case of Yucel to reduce the sentence which had been imposed upon Kosanovic for possession of 8.94 kilogrammes of pure ketamine to the value we have described. The sentence which had been imposed upon him, given his role in the events, was 4 years. That was reduced to 3 years. Thus, it would indicate that in the view of the court, a sentence of something of the region of four-and-a-half years would be appropriate for that quantity of ketamine, in the hands of someone who is plainly a more significant and serious dealer than was the defendant in this case. 9. It is, as it seems to us, very difficult to draw any particular help from examining specific quantities and carrying out any form of mathematical exercise by reference to those cases such as R v Aramah , which concern cannabis or those cases such as R v Wijs which concern amphetamine, not simply because they refer to Class B rather than Class C but because it is also far from clear what if any correspondence there is between particular values or particular weights of ketamine and those other drugs. 10. We, for our part, are not in any position nor do we wish to lay down any guidelines, though invited to do so. We say only this. The Sentencing Advisory Panel are considering guidelines in respect of the sentencing of drugs. We hope and indeed anticipate that in the near future they will give guidelines which will provide the guidance, which has hitherto been so thin, as almost to be lacking, for courts when they come to deal with cases which involve ketamine on its own. 11. We think that in the circumstances of this case, what we must do is have regard to those cases which we have mentioned as giving a broad indication of the level of sentence in a ketamine case such as this, and we have to ensure that the sentence here is consistent with, or at least not out of step with, the sentences imposed in the cases of Yucel and Kosanovic . The previous convictions of the appellant are lengthy. There were 12 offences committed on six occasions but only one drug offence amongst them. That was possession of methyldiethylamphetamine on 18th January 2000 where a community service order was imposed. There is therefore very little in his record to aggravate the circumstances of this particular case. 12. Taking all that into account, we have resolved that the sentence here began with too high a starting point. In our view, the correct sentence for this offence and its particular circumstances guided, as we have been, by Kosanovic and Yucel to the extent indicated, should have been one of 12 months. We do not criticise the trial judge in any way since he lacked the guidance that we have been able to obtain from counsel. The appeal will therefore be allowed to that extent. A sentence of 12 months' imprisonment is substituted for that of 18 months originally imposed.

2009_11_25-2169.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/2745/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/2745

746d0042e433762116e6ee06da2000e70faf108c3f5622ff1057863f7dd1560a

[2019] EWCA Crim 58

EWCA_Crim_58

2019-01-31

crown_court

Neutral Citation Number: [2019] EWCA Crim 58 Case No: 2018 04796 C5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT IN BASILDON Her Honour Judge Leigh T2018 7149 Royal Courts of Justice Strand, London, WC2A 2LL Date: 31 January 2019 Before: LORD JUSTICE SIMON MRS JUSTICE MCGOWAN DBE and HIS HONOUR JUDGE BURBIDGE QC - - - - - - - - - - - - - - - - - - - - - Between: Regina Applicant and LT Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2019] EWCA Crim 58 Case No: 2018 04796 C5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT IN BASILDON Her Honour Judge Leigh T2018 7149 Royal Courts of Justice Strand, London, WC2A 2LL Date: 31 January 2019 Before: LORD JUSTICE SIMON MRS JUSTICE MCGOWAN DBE and HIS HONOUR JUDGE BURBIDGE QC - - - - - - - - - - - - - - - - - - - - - Between: Regina Applicant and LT Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Dan Taylor for the prosecution Ms Lucy Sweetland for the respondent Hearing date: 22 January 2019 - - - - - - - - - - - - - - - - - - - - - Approved Judgment The provisions of s.71 of the Criminal Justice Act 2003 apply to these proceedings. No publication may report these proceedings, save for specified basic facts, until the conclusion of the trial unless the Court orders that the provisions are not to apply. Since an issue of law arises we will direct that the restrictions be lifted so that the case may be reported anonymously, and with the material personnel anonymised. Lord Justice Simon: Introduction 1. This is a prosecution application under Part 9 of the Criminal Justice Act 2003 (‘CJA 2003’) for leave to appeal a ruling of Her Honour Judge Leigh, in which she excluded identification evidence relied on by the prosecution, following an application by the defence under s.78 of the Police and Criminal Evidence Act 1984. 2. The respondent, whom we will refer to as the defendant, had pleaded not guilty to a single count of Possessing an Imitation Firearm with Intent to Cause Fear of Violence. 3. The trial was listed to begin at Basildon Crown Court on 14 November 2018; and that day was taken up with a defence application to exclude the evidence of the complainant (PJ). Having heard the evidence of PJ on a voir dire , and argument from prosecution and defence, the Judge gave her ruling on 15 November. 4. The prosecution argued that the ruling amounted to a terminating ruling; and having been granted an adjournment to consider the position, indicated its intention to appeal and gave the necessary undertaking. We proceed on the basis that an evidentiary ruling which results in the termination of proceedings (as here) constitutes a terminating ruling for the purposes of s.58 of the Criminal Justice Act 2003. 5. The Registrar of Criminal Appeals referred the application for leave to appeal to the Full Court; and we grant leave. The facts 6. The facts on which the prosecution relied were as follows. On 4 June 2018, PJ, was reversing his car in a private car park in Basildon, when he became aware of a man who seemed reluctant to move out of the way. The man stood staring at PJ through the window as the car passed him. PJ got out of the car and a verbal altercation ensued, during which the man pulled from his backpack, a dark-coloured handgun and pointed it at PJ. 7. At some point, a second man, driving a moped, turned up. PJ felt in fear of his life and drove off at once to report the matter to the police. 8. He told the police that the man with the gun was a white male, around 5 foot 9 inches tall, with a round face, of medium build and of Mediterranean appearance. He added that he was wearing a top, with a hood pulled fairly tightly around his face. At the closest point the man was approximately 8 feet away. It was daylight and there was nothing obstructing his view. 9. He concluded his statement by stating that he believed he would be able to identify the man again, although the opening words of the statement were: ‘I had a handgun pointing at me by a male that I cannot identify’. In its context, it is clear that he meant that he did not know the man’s identity and not that he would be incapable of identifying him. He described the second man as wearing a motorcycle helmet with an open visor. He was slimmer than the man with the gun and had distinctive facial features, including a moustache. 10. PJ said that the incident had also been witnessed by a neighbour; and he had formed the impression, although it was no more than that, that the neighbour knew the people involved. 11. On the next day (5 June) PJ received a message from someone, whom he eventually disclosed as being a man named AH, the ex-husband of a woman to whom PJ had spoken about the incident. AH’s identity was only disclosed to the defence on the first day of trial; and he declined to provide a statement to the police. According to information disclosed verbally to the defence, AH was unwilling to co-operate with the prosecution for fear of repercussions. The voir dire 12. PJ’s evidence was that, insofar as he could recall, the message from AH had asked him to come over and see him. He had suspected, although he could not be sure, that the request related to the incident the previous day. 13. He went to AH’s house, where he also found AH’s ex-wife. The first thing that AH did was to show him a single Facebook image on a large-screen smart phone. AH asked, ‘Is this him?’ The image was of two men and PJ immediately recognised the man on the right as the person who had threatened him with the gun. He said he was ‘100 per cent sure’ that this was the man. There was no issue before the Judge or before us that PJ had identified the defendant. 14. AH and his ex-wife then told him that they had been, ‘doing some digging on Facebook’, and had found the person they thought might be responsible. PJ initially provided an uncertain account as to what AH had meant by the phrase, ‘doing some digging’; but he clarified this by saying that he did not know, or could not be certain, what AH had been meant by the word ‘digging’, and he had in fact taken a guess as to what ‘digging’ had been done. AH had sent the image to PJ’s phone tagged with LT’s name. 15. PJ told the Judge that he had not been influenced, either consciously or subconsciously, by anything he had been told. He did not need to look at any other photographs to know that he had identified the man with the gun. He had taken a screenshot of the image on AH’s phone and provided this to the police on the same day. 16. He had told the police that he had also recognised the second man in the photo as the driver of the moped. However, in his voir dire evidence, he qualified this by saying that he could not be 100% sure that it was the same man, as he had been wearing a helmet, but his best guess was that it was. Later events 17. On 7 June, the defendant was arrested and interviewed. In a full comment interview, he denied that he was the man who had threatened PJ. He told the police that on the afternoon of 4 June he was with his brother who lived approximately 1½ miles away from where the incident occurred. Later on that day, PJ participated in VIPER identification process and positively identified the defendant as the man responsible, stating that he was ‘100% sure’ of his identification. 18. The defendant had three previous convictions for possessing offensive weapons in 2017 and 2018. The prosecution had intended to make a bad character application to adduce these convictions in evidence. 19. In the Defence Statement dated 29 September 2018 and in subsequent correspondence, the defence gave notice of a proposed application to exclude the identification evidence once secondary disclosure was complete. It was contended that the prosecution disclosure obligations were not complete until the disclosure of AH’s identity on the first day of trial. 20. In any event, on the first day of trial, a skeleton argument was submitted by the defence in support of the application to exclude JP’s identification evidence. The Ruling 21. The Judge recorded the submissions on each side. 22. The defence had applied under s.78 PACE to exclude PJ’s identification of the defendant both at AH’s house on 5 June, and at the subsequent identification parade. Ms Sweetland (then as now counsel for the defence) had submitted that there was a very significant risk that PJ’s identification was influenced by AH. It was entirely unknown on what information AH had acted when he had done his researches, and this could not be investigated at trial. PJ was shown only a single photograph. The circumstances in which he came to be shown the image of the defendant amounted to inadmissible hearsay. There were real difficulties with the evidence being placed before the jury, since the defence was unable to challenge it properly. At the subsequent identification procedure, PJ was simply identifying the man he had seen in the Facebook image rather than the gunman. 23. Mr Taylor for the prosecution, had relied on two decisions of this court: in McCullough [2011] EWCA Crim 1413 and Alexander & McGill [2012] EWCA Crim 2768 ; [2013] 1 Cr App R 26 . These, he submitted, provided clear guidance on how the court should approach the application; and the present case was a stronger case for the admission of the identification evidence than was the position in those cases. The identification should be left to the jury since the issue raised went to the reliability of the evidence rather than its admissibility; and the defence had identified no relevant matters that could not be explored during the trial process. The evidence of AH’s involvement was limited to explaining how PJ came to see the image. It was not sought to place any reliance on the truth of any matter stated to him by AH. In these circumstances (submitted Mr Taylor) it was questionable whether a hearsay issue arose at all. The identification evidence was supported by the defendant’s admission that he was in the vicinity and by evidence of his previous convictions for possession of an offensive weapon. Section 78 should be used sparingly, and PJ’s identification was very far from being so prejudicial that it ought to be excluded as a matter of fairness. 24. Having recorded the arguments the Judge noted that the basis of the defence application was that the initial identification of the LT by AH could not be challenged, since AH had not provided a statement, and ‘there was a very … significant risk that [PJ’s] identification was influenced by [AH]’. 25. She then set out the evidence on the voir dire , as summarised above, and observed that it was well known that, when a person was presented with only one photograph, there were real risks in any identification that flowed from it. She acknowledged that it was now common for witnesses to seek out offenders using social media, with Facebook being the main source of information. She had been referred to two cases dealing with Facebook identification: Alexander & McGill and McCullough ; and no one had submitted that identifications made from Facebook were inadmissible. However, each was case specific. 26. The Judge noted that in McCullough an unidentified third person had told the complainant that the criminal conduct in question sounded like something that McCullough would do, rather than asserting that he had done some ‘digging’. When someone said that they had done some ‘digging’ then an inference could properly be drawn that they had specific information of some sort. She concluded that Alexander & McGill was different to the present case since PJ had been presented with a single photograph by someone who was implicitly claiming to have knowledge of the defendant. In any event, she noted that in Alexander & McGill there had been significant supporting evidence. 27. The Judge acknowledged that flawed identification procedures did not in themselves automatically render identifications inadmissible. When, however, the only evidence against a defendant was ‘a flawed identification’ then it ought to be excluded. It was not just a question of weight for the jury to assess with robust directions as contended for by the prosecution. The present case was not the same as cases in which there was other available material. In the present case there was nothing else. The argument on the application 28. Mr Taylor argued that the Judge erred in excluding the identification evidence. The decision was inconsistent with McCullough and Alexander and McGill, which both supported the admission of the identification in in this case. Those authorities made clear that the inherent flaws of any social media identification were matters which went to the reliability of an identification rather than its admissibility. In the present case flaws in the identification process, to the extent they existed, were capable of being dealt with through the trial process. 29. The crucial point in the present case was that PJ had recognised the man on the screen the moment he was shown it, and before anything had been said by AH; and there was nothing in his evidence on the voir dire to render the admission of the evidence so unfair that it ought not to be admitted. On the contrary, it was a good identification that was subsequently confirmed at a formal identification procedure. 30. The Judge had been wrong to accept the defence submission that the proper focus should be on how AH came to light on the image of the defendant and what AH had known about him. PJ had made it clear in evidence that he did not know the answers to these questions; but it was not AH who was making the identification. There was no proper basis for concluding that PJ had been influenced by anything AH may or may not have been discovered so as to contaminate his subsequent identification of the defendant. PJ was available to be cross-examined on both the conditions and circumstances in which the identification was made and his dealings with AH. 31. In all the circumstances, the decision to exclude the evidence was one that was wholly unreasonable. 32. Ms Sweetland submitted that the ruling was a reasonable exercise of the Judge’s wide discretion under s.78. The Judge had directed herself correctly in law, taken account of the relevant matters, and had come to a conclusion that was not unreasonable. 33. The prosecution’s submissions failed to recognise the essential fact-specific nature of the Judge’s ruling. She had made clear that she was not applying any general principle of law; but had rightly had regard to all the circumstances in which the identification evidence had been obtained. She could not be said to have erred in placing emphasis on what had been said by AH to PJ, the method of showing the image to PJ and the fact that only one image had been shown to him. 34. She repeated the submission that she had made before the Judge that the admission of the identification evidence was unfair because a jury would need to understand and evaluate what ‘digging’ AH and his partner had done and the basis on which they had proffered the image to PJ. Without that evidence the jury would not be able to evaluate the quality of PJ’s identification of the defendant. Conclusion 35. Section 78 of the Police and Criminal Evidence Act 1984 is headed, ‘Exclusion of unfair evidence and provides: (1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given, if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. 36. Whether the court hearing an application under s.78 is exercising a discretion or a judgement, is a matter of debate. However, it is not a matter that needs to be resolved in this case. If it is a discretion it is a broad discretion, and if it is a judgement it is the judgement which the Court of Appeal recognises is primarily a matter for the judge in the Crown Court. In either case, this Court is reluctant to interfere with such decisions in relation to these matters. For a discussion of the law, see for example, Blackstone Criminal Practice 2019 §F2.7. 37. The issue of whether PJ’s identification of the defendant had been influenced by AH or contaminated by AH’s knowledge had been fully canvassed in the voir dire and there was no proper basis for the Judge’s conclusion that there was a ‘very significant risk’ that it had been. The crucial evidence was that PJ made the identification before AH had said anything to him. PJ had been shown the image on AH’s mobile phone and as soon as he saw it he was 100 per cent sure that it was the image of the man who had accosted him with the gun on the previous day. It was only after this that he was told that AH had done some ‘digging.’ There had been no discussion about how AH had found the image; and we do not accept that the question of how AH came to present the photo of the defendant and what AH may have discovered about him bears on the admissibility of PJ’s identification, or that it amounted to hearsay. AH never told PJ what had led him to the image of the defendant. The position was effectively the same as if he had come across the image adventitiously. 38. The cases of McCullough and Alexander & McGill provided assistance on the issues facing the Judge. 39. In McCullough , two men (Marsland and Beattie) were robbed of their off-road motor cycles. One of the defendants, Roberts, admitted theft, but denied robbery. The issue on the appeal was whether the trial judge erred in allowing certain identification evidence to be adduced against the other defendant, McCullough. There were stills of McCullough in the company of Roberts before the robbery; but McCullough did not give evidence at trial and Roberts told the jury that McCullough was not involved later when the motorcycles were taken. The identification of McCullough as one of those involved in the robbery depended entirely on the identification of him by Marsland. That identification had come about in the circumstances set out in [6] of the judgment of the Court. Marsland was told by a friend of his brother, in effect, that what had happened ‘sounded like the sort of thing’ that McCullough would do. This prompted Marsland, his brother and the brother’s friend to go on Facebook. Marsland had looked at a number of photographs which included a photograph of McCullough. He was satisfied from seeing this photograph that McCullough had been present at the time of the robbery and had driven his motorcycle away. He subsequently identified him in a video identification process. 40. The trial judge ruled that the identification evidence was admissible and that it was for the jury to decide what weight to give it. He added that the position might have been different if it had been the only evidence, but it was not, since there were the stills of McCullough in the company of Roberts before the robbery. The Judge had allowed the defence in a voir dire to explore with Marsland, the circumstances of the Facebook search. He was however, unwilling to divulge the name of his brother’s friend or the Facebook account used to access the appellant’s account or his photograph (see judgment at [8]); and there was no print-out for the jury of the photograph that Marsland said he had seen. 41. The Court (Richards LJ, Rafferty J and HHJ Paget QC) addressed the issue of the Facebook identification at [13]: No one doubts that the Facebook identification here was far from ideal. Plainly it was capable of having a substantial effect on the weight of Marsland’s subsequent identification of the appellant in the formal identification procedure. It seems to us, however, that the various specific points made about weaknesses in the identification process went to weight and were not sufficient to render the identification inadmissible or to call for its exclusion in the interests of fairness. In saying that, we include within the weaknesses the fact that obvious limitations arise out of the nature of the Facebook exercise carried out here and the witness’s unwillingness to provide further details about it. It meant that the precise nature of the Facebook entry looked at was not known and that neither the entry nor the particular photograph had been seen by the jury. Despite that, it seems to us that the identification evidence given by Marsland was properly placed before the jury for them to make an appropriate assessment of it. All the weaknesses or deficiencies to which we have referred could be, and no doubt were, drawn to the attention of the jury. They may indeed have worked to the advantage of the appellant, who could make considerable play of them. They did not make it unfair for the identification evidence to be adduced. 42. In Alexander and McGill , the Court (Sir John Thomas PQBD, Irwin J and Sir Kenneth Parker) were referred to a number of previous decisions of this Court (including the case of McCullough ); and provided general guidance on Facebook identification. 43. In that case Daniel Kaye had been robbed in his car by three men, whose faces he had seen clearly. His evidence was that on the following day, he was looking at the Facebook profiles of his sister’s friends who lived in the area and, in doing so, identified two of the men who had robbed him. The name of one of them was attached to the photograph, and his sister told him that the name of the other was McGill. A month later, he went to the police and told them the names of the men who had robbed him. Police officers viewed the Facebook pages in the company of Daniel Kaye and his sister, but no record was made of what was said and, although the police officers asked for the images to be emailed to them, none were sent. Subsequently, Daniel Kaye had identified both assailants in a video identification procedure. 44. Prior to the trial, the defence requested disclosure of the Facebook pages that had originally been examined. That request was not met. At the conclusion of the prosecution case, the defence submitted that the proceedings should be stayed as an abuse of process, since the police had wholly failed to find the Facebook images, which were essential if the identification issue, which was the only real issue in the case, was to be properly and fairly tried. The trial judge dismissed the application, while holding that the police had been seriously at fault. 45. On the appeal, the Court set out its general observations about Facebook identification. 46. First, the importance of the Police obtaining, in as much detail as possible, evidence in relation to the initial identification. For example, the images that were looked at, and a statement explaining how the identification came to be made, [22]. That was done here in the present case. 47. Second, the Court made clear that a Facebook identification was permissible; but the Jury should have as much material as possible, so as to enable them to assess the circumstances in which the identification was made, [26]. 48. Third, the court should consider, and the jury be directed, as to how the identification was made. In Alexander & McGill , the judge had not warned the jury of the danger that a remark might have been made by the victim’s sister or others. The Court found that such a warning was not necessary since it was clear that Daniel Kaye had made the identification without prompting and consequently there was no need to give a warning [33]. It was implicit that such a warning might need to be given if the circumstances had called for it; as they plainly would in the present case. 49. In our view, these two cases clearly point to the admission of PJ’s identification evidence. We accept that it largely stood alone, and we reject the prosecution argument that LT’s presence 1½ miles away, or his previous convictions (if admitted), would necessarily have added weight to the prosecution case. However, the identification evidence was clear: the man who had stood a short distance away from PJ with a gun was the man whose image PJ saw and recognised on AH’s phone the next day. 50. Unlike the case of Alexander & McGill , the image that the identifying witness saw, and which led to his recognising the defendant, was available for the Jury to assess. Unlike the case of McCullough , the identifying witness was willing to say whose Facebook account he had used to see the photograph, he was able to explain the circumstances in which the image was handed to him and AH had not said words such as ‘it sounds like the sort of thing he would do,’ before presenting the image of LT, to which objection might have been taken. 51. We accept of course, that this still left open how it was that AH had come to proffer the image to PJ; but in our view that omission did not render the identification by means of the photograph or his subsequent identification of the defendant inadmissible, nor justify its exclusion as a matter of fairness. 52. It follows that in our view the Judge’s ruling involved an error of principle, see s.67(b) of the CJA 2003, which resulted in a decision that was not reasonable for her to have made, see s.67(c) of the CJA 2003. In these circumstances, we will order a resumption of the proceedings in the Crown Court.

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https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/58/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/58

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[2006] EWCA Crim 415

EWCA_Crim_415

2006-03-03

supreme_court

Case No: 200502182 D4 /200600776 D4 Neutral Citation Number: [2006] EWCA Crim 415 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SHREWSBURY HIS HONOUR JUDGE MITCHELL NC. No. T20047001 Royal Courts of Justice Strand, London, WC2A 2LL Date: Friday, 3 rd March 2006 Before : LORD JUSTICE MOSES MR JUSTICE JACK and MR JUSTICE ROYCE - - - - - - - - - - - - - - - - - - - - - Between : PETER DAVID WEBSTER Appellant - and - THE CROWN Respondent - -

Case No: 200502182 D4 /200600776 D4 Neutral Citation Number: [2006] EWCA Crim 415 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SHREWSBURY HIS HONOUR JUDGE MITCHELL NC. No. T20047001 Royal Courts of Justice Strand, London, WC2A 2LL Date: Friday, 3 rd March 2006 Before : LORD JUSTICE MOSES MR JUSTICE JACK and MR JUSTICE ROYCE - - - - - - - - - - - - - - - - - - - - - Between : PETER DAVID WEBSTER Appellant - and - THE CROWN Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of Smith Bernal WordWave Limited 190 Fleet Street, London EC4A 2AG Tel No: 020 7421 4040 Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Edward Fitzgerald QC & Leonard Webster for the Appellant Stephen Linehan QC (instructed by The CPS ) for the Respondent - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Moses : 1. On 17 February 2006 we allowed this appeal against conviction for aiding and abetting causing death by dangerous driving. These are our reasons. This appeal against conviction raises issues as to the ingredients of such an offence. In March 2005 at Shrewsbury Crown Court the appellant was convicted of aiding and abetting his co-accused, Westbrook, of causing the death of Mark Tansey by dangerous driving. Westbrook, the driver, had pleaded guilty to causing death by dangerous driving. The evidence showed that the driver had been drinking all day. Late in the evening, the appellant gave him and other passengers, including the appellant’s wife, a lift home. At some point during that fatal journey the appellant permitted Westbrook to drive. He then drove erratically and at excessive speed; the vehicle left the road and, tragically, Mark Tansey was thrown from the vehicle and died. 2. The prosecution put the case against the appellant in two ways, firstly, that the appellant knew that it was dangerous to permit Westbrook to drive because of Westbrook’s state of intoxication; secondly, that the appellant appreciated during the fatal journey that Westbrook was driving at a dangerous speed, that he ought to have intervened but failed to do so. The summing-up reflected those alternative bases. The appellant contends that the first basis was an insufficient explanation of that which the Crown was bound to prove before the jury could convict. He contends that the judge’s directions as to the second failed adequately to focus on the factors which had to be proved to found a conviction. Facts 3. There was plenty of evidence that Westbrook had been drinking both in the afternoon and evening of Saturday 23 August 2003. He, the deceased, and another friend, Lewis Emmons, had visited a number of public houses in Wellington. It was apparent to others that by about 5 o’clock Westbrook and his friends were drunk. The deceased’s mother saw them at about 6 o’clock; she could see that they had been drinking and it appeared to her that it was not safe for her son to drive. Her husband thought that they appeared to be the worse for drink. 4. After a shower and some food the friends went out again, and continued to drink at a hotel. There they were joined by the appellant and his wife at about 10.30pm. The appellant did not drink. He offered to drive the deceased and Emmons back to the village of Little Wenlock where the deceased and Emmons were spending the night. Emmons said they had been drinking all evening and that neither he nor Westbrook were in a fit condition to drive. He described Westbrook as being “very drunk”. Another friend, Roberts, gave evidence that Westbrook seemed drunk. 5. The appellant said, in interview, that Westbrook “liked a drink” but that he was unable to judge how much he had drunk that night. Kulwender Kaur, however, gave evidence that the appellant had said to her, on the telephone, that the driver was “very drunk. They had been drinking all afternoon.” 6. When he gave evidence, the appellant said that he did not know how much the driver had had to drink before he let him drive the car but thought that he had probably had at least two pints. He said that Westbrook did not appear to him to be drunk and that he was happy to let him drive. His telephone conversation with Kulwender Kaur related to what he had learnt after the accident. 7. The rest of the evidence related to the speed at which Westbrook had driven once Webster had handed over the driving. It is difficult to understand the relevant distances from the summing-up. But we were told, by reference to a map, that the total journey from Little Wenlock to the scene of the accident was about 2½ miles. At Forest Glen, for reasons that seem not to have been fully canvassed in evidence, the appellant handed over the keys to Westbrook and permitted him to drive. For the first part of the journey, we were told, the driver drove at no more than 30mph. Expert evidence subsequently revealed that it was not possible, on that part of the road, to drive any faster. The road was narrow and would barely permit two vehicles to pass. But at the top of a hill, described both by the judge, and the appellant in interview, as Withimoor Bank, Westbrook drove at speeds of between 65-70mph. He then slowed down near a kink in the road to a speed between 40-50mph. Thereafter, he accelerated to a speed of about 75mph by an old quarry plantation. Shortly after, the car left the road, went through a hedge and landed in a field. Both the deceased, Mark Tansey, and Emmons, sitting in the back of the vehicle, were thrown out and, as we have recalled, Mark Tansey was killed. Dangerous driving 8. Since much of the dispute in the instant appeal related to the meaning to be given to the statutory definition of “dangerous driving”, we should start by setting out the relevant provisions of Section 2 of the Road Traffic Act 1988 , as substituted by Section 1 of the Road Traffic Act 1991 (“ the 1988 Act ”). Section 2 A provides:- “ (1) For the purposes of Sections 1 and 2 above a person is to be regarded as driving dangerously if (and, subject to sub section (2 ) below, only if)— (a) the way he drives falls far below what would be expected of a competent and careful driver, and (b) it would be obvious to a competent and careful driver that driving in that way would be dangerous. (2) A person is also to be regarded as driving dangerously for the purposes of Sections 1 and 2 above if it would be obvious to a competent and careful driver that driving the vehicle in its current state would be dangerous. (3) In sub sections (1 ) and (2) above "dangerous" refers to danger either of injury to any person or of serious damage to property; and in determining for the purposes of those subsections what would be expected of, or obvious to, a competent and careful driver in a particular case, regard shall be had not only to the circumstances of which he could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused. (4) In determining for the purposes of sub section (2 ) above the state of a vehicle, regard may be had to anything attached to or carried on or in it and to the manner in which it is attached or carried.” 9. As we have said, the prosecution advanced its case against the appellant in two distinct ways. The first related to the time immediately before Westbrook started to drive from Forest Glen. The prosecution alleged that the appellant was guilty because he permitted Westbrook to drive at a time when the appellant knew that it was dangerous to permit him to do so because of his state of intoxication. There was no dispute but that the appellant had stopped the car and had permitted Westbrook to drive. The dispute focussed upon the appellant’s state of mind at the time he allowed Westbrook to drive. The prosecution asserted that it was sufficient to prove that the appellant:- “knew that it was dangerous to authorise Westbrook to drive because of Westbrook’s state of intoxication…” That contention derived from the proposition that:- “The person who drives a vehicle in a state of intoxication is to be regarded as driving dangerously if it would be obvious to a competent and careful driver that to drive a vehicle in that state would be dangerous.” We have set out the proposition ipsimissis verbis to demonstrate the stark and unequivocal nature of the prosecution case. A person is guilty of aiding and abetting dangerous driving, and if death is the result of that dangerous driving, of aiding and abetting causing death by dangerous driving if he permits someone else to drive a car when he knows the driver is intoxicated. We shall consider later the imprecision of that description of the state of the driver. 10. The question thus arises as to whether it is sufficient, in order to prove the offence of aiding and abetting causing death by dangerous driving to prove knowledge of the intoxicated state of the driver at the time permission is given. That question turns on whether a driver can be guilty of dangerous driving when the reason for danger is the state of the driver rather than the manner of his driving. 11. In order to determine whether the drunken condition of a driver is, of itself, sufficient to establish the offence of dangerous driving, it is as well to start with the wording of the statute itself. Section 2 A poses two questions:- 1. Did the defendant’s driving fall far below the standard of a competent and careful driver? and 2. Would it have been obvious to a careful and competent driver that driving in that way would be dangerous? It is of note that Section 2 A underlines the proposition that those two questions provide the limitations of the offence in the use of the words “only if”. Those statutory questions direct attention only to the manner of driving in their references in both (a) and (b) to the way he drives and that way . 12. Section 2 A(2) provides an additional test in the use of the words also to be regarded . Section 2 A(2) plainly refers to the defective state of the vehicle and not to the defective state of the driver. 13. If the argument finished there it would be plain that Section 2 A(1) refers only to the manner of driving. The extension of the definition of dangerous driving in Section 2 A(2) is limited to the dangerous consequences of driving a defective vehicle. There is nothing in the wording of the statute to justify extending the offence to danger occasioned merely by reason of the defective condition of the driver. 14. The argument does not stop there. The prosecution’s case derived from a dictum of this court in R v Woodward [1995] 3 All ER 79 . The issue in that appeal, against conviction for causing death by driving, was whether the evidence, that the defendant had been drinking before he drove, was admissible (see page 85(b)). Lord Taylor CJ, in giving the judgment of the court, concluded that evidence that the defendant had been drinking before he drove, was admissible on the issue of whether the defendant was driving dangerously. His reasoning started with previous decisions of the court to that effect such as R v McBride [1962] 2 QB 167 at 172. The Lord Chief Justice then considered whether the introduction of the definition of dangerous driving by Section 2 A of the 1988 Act as amended ousted the principle laid down in McBride . He concluded that it did not and that, as he put it, McBride was still good law in relation to the offence of dangerous driving or causing death by dangerous driving following the amendments to the 1988 Act (see page 85(j)). But in the course of considering that question of admissibility the Lord Chief Justice referred to Section 2 A(3) and said:- “The fact (if it be so) that an accused has ingested a large quantity of alcoholic drink is a circumstance within the knowledge of the accused. Accordingly, the statute requires that “regard shall be had” to it.” Section 2 A(3) supports the proposition that evidence of drinking is admissible. The Lord Chief Justice also relied upon Section 2 A(2). He said:- “It would be strange if Parliament intended to make driving a vehicle in a dangerously defective state an offence under the section but not driving when the driver is in a dangerously defective state due to drink.” (see page 85(g)). 15. It is that single sentence which forms the basis of the prosecution’s case that in order to prove dangerous driving it is sufficient to rely upon the defective condition of the driver. As Mr Linehan QC, for the prosecution, pointed out, a driver’s ability to judge the condition of the road, his speed, the actions of other road users, and reaction to dangers and emergencies will be gravely impaired. He cannot drive safely and accordingly drives in a way which falls far below that which would be expected of a competent and careful driver. It would be obvious to a competent and careful driver that driving in that condition would be dangerous. 16. As a submission of good sense, that cannot be faulted. Even if, from time to time, one who has been drinking, manages to drive without causing danger during the course of his journey it is none the less “dangerous” to drive if one has been drinking. One cannot foresee whether a sudden emergency might arise with which the driver, his faculties blunted through drink, is unable to deal. 17. However, in our view, the closely drafted definition of “dangerous driving” does not permit proof of that offence to be limited to the danger occasioned by the condition of the driver. Firstly, the wording of the statute excludes such a possibility. Section 2 A(1) refers only to the manner of driving. The definition is broadened by Section 2 A(2) which eschews reference to the state of the driver and is confined to the defective condition of the vehicle. Section 2 A(3) permits regard to circumstances which may well include the condition of the driver. But that condition is not dispositive of the question whether the person was driving dangerously. His condition will, by virtue of subsection (3) be relevant to whether there was danger of injury or serious damage but no more. 18. Secondly, the authority on which the prosecution relied is not authority for the proposition that dangerous driving may be established merely by reference to the condition of the driver. The sentence on which the prosecution relied must be read in the context of the decision as a whole. That case decided that evidence of drink taken before driving was admissible. It did not decide that evidence of drinking before driving was sufficient to prove the offence. Although, the Lord Chief Justice’s reference to the statute has been praised as improving on the law laid down by Parliament but criticised for misreading that law (see e.g. Archbold News Issue 2, 1 March 1995 and Smith & Hogan 11 th Edn., page 1014), that single sentence is not the basis of the decision. The decision in R v Marison [1996 Crim. L.R. 909] which followed Woodward can be regarded as a decision that the defence of automatism was not available to an hypoglycaemic driver who clearly drove in a dangerous manner when he drove the vehicle on to the wrong side of the road. It was not, in any event, the subject of any submissions before us. 19. Thirdly, despite the recommendation in the Road Traffic Law Review Report (1988) the White Paper, The Road User and The Law (1989), Cm. 576 paragraph 2.9 demonstrated that the Government was not prepared to accept the recommendation that a new “very bad” driving offence should include reference to unfit drivers. It is unnecessary, in order to make that good, to refer to Hansard extracts in the House of Lords in relation to the Road Traffic Bill. 20. We conclude, for those three reasons, that it is not sufficient merely to rely upon the condition of the driver in order to prove the offence of dangerous driving or of causing death by dangerous driving. The condition of the driver, in the instant case attributable to drink, is relevant and admissible. But it does not determine whether the way in which the defendant drove was dangerous. Aiding and abetting causing death by dangerous driving 21. In relation to the first way in which the prosecution put the case against this defendant there was no issue but that the prosecution had proved a sufficient actus reus for secondary liability. The appellant had permitted Westbrook to drive and had stopped the car and let Westbrook take over the driving. The dispute concerned what knowledge the prosecution had to prove before the appellant could be convicted. It was accepted that the prosecution had to prove knowledge of the “essential matters” which constituted the offence of dangerous driving (see e.g. Johnson v Youden [1951] KB 544 at 546). 22. If the prosecution is correct in the submission that a person who drives a vehicle when he has been drinking is to be regarded as driving dangerously, then there would be little difficulty in establishing knowledge of the essential matters which constitute the offence of dangerous driving. Accordingly, if the prosecution could prove that the appellant knew that Westbrook had been drinking at the time the appellant permitted him to drive then the appellant was guilty of the offence, there being no dispute that Westbrook’s dangerous driving caused the death of Mark Tansey. But for the reasons we have given, the prosecution is not correct in its submission. The driver’s state of intoxication was relevant to whether he was driving dangerously but not conclusive evidence. To establish secondary liability against the appellant it is important to appreciate that the real question as to the appellant’s state of mind is whether he foresaw the likelihood that the driver would drive in a dangerous manner. Mr Fitzgerald QC, on behalf of the appellant, was at first disposed to contend that the prosecution had to prove that the appellant foresaw that the driver was bound to drive dangerously, that it was inevitable. But during the course of argument he was, at least, prepared to accept that it was not necessary to prove the inevitability of dangerous driving. 23. He was right to adopt that stance. The very foundation of the decision in R v Powell & English [1999] AC 1 is acceptance of the principle that a secondary party is criminally liable for the acts of the principal if he foresees those acts even though he does not necessarily intend them to occur (see e.g. Lord Hutton at page 27 to page 28). Evidence that the appellant knew that Westbrook had not only been drinking but appeared to be intoxicated was powerful evidence that he foresaw Westbrook was likely to drive in a dangerous manner at the time he permitted him to drive. But evidence of Westbrook’s apparent intoxication did not determine the issue. It was merely evidence which tended to prove the conclusion which the jury had to reach before it convicted him. In short, the more drunk Westbrook appeared to be, the easier it was for the prosecution to prove that the appellant foresaw that he was likely to drive dangerously if he permitted him to drive. 24. We do jib, somewhat, at the prosecution’s expression “state of intoxication”. Anyone familiar with the variety of expressions used in criminal courts to indicate drunkenness will be aware how inexact such a phrase proves to be. It invites interminable cross-examination leading to no precise conclusion. The essential point, however, is whether the driver appears, by reason of the amount of drink he has taken, to be incapable of driving safely and thus likely to drive dangerously. Such appearance is just as likely to be proved by ponderous insertion of the ignition key as by reference to unsteady gait or slurring of words. 25. Further, we must emphasise what the prosecution had to prove in relation to the appellant’s state of mind. It accepted that it was not sufficient to prove that the appellant ought to have foreseen that Westbrook would drive dangerously. The prosecution had to prove that the appellant did foresee that Westbrook was likely to drive dangerously when he permitted him to get into the driver’s seat (see Blakely, Sutton v DPP [1991] Crim LR 763). We stress the need to focus upon the appellant’s state of mind because of certain criticisms made in relation to the wording of the judge’s directions to the jury on this issue. Generally the prosecution will be able to prove the actual state of mind of the defendant, absent any confession, by reference to what must have been obvious to him from all the surrounding circumstances. But it is important to distinguish between that which must have been obvious to a defendant and what the defendant foresaw. In most cases there will be no space between the two concepts; if the prosecution can prove what must have been obvious, it will generally be able to prove what the defendant did foresee. But the danger of eliding the two concepts, namely what the defendant did foresee and what he must have foreseen, is that it might suggest that it is sufficient to prove what the defendant ought to have foreseen. That is not enough. It is the defendant’s foresight that the principal was likely to commit the offence which must be proved and not merely that he ought to have foreseen that the principal was likely to commit the offence. 26. We conclude that in order to prove that the appellant was guilty of aiding and abetting Westbrook to drive dangerously, the prosecution had to prove that at the time he permitted him to drive he foresaw that Westbrook was likely to drive in a dangerous manner. Liability for failure to intervene 27. The alternative way in which the prosecution put its case against the appellant related to the course of the journey. The prosecution said that there came a time during the course of the journey, when the appellant knew that Westbrook was driving dangerously at a speed of 75mph before he lost control and the car left the road. He should have intervened and attempted either to make him slow down or to stop. His failure to do so demonstrated his participation in the dangerous driving. On this approach there is no difficulty as to what the prosecution had to prove in relation to the appellant’s state of mind. It was not foresight as to what was likely to happen but rather knowledge of what was actually happening at the time. The real issue related to the act of assistance or encouragement. The prosecution had to prove that there was an opportunity to intervene and that his failure to take the opportunity to exercise his right as owner of the car demonstrated the appellant’s encouragement or assistance. 28. There was no dispute about the law in relation to this approach. Du Cros v Lambourne [1907] 1 KB 40 establishes that a defendant might be convicted of aiding abetting dangerous driving if the driver drives dangerously in the owner’s presence and with the owner’s consent and approval. The owner was in control and ought to have prevented or attempted to prevent the driver driving in a dangerous manner. We derived assistance from the decision of Smithers J. in Dennis v Pite [1968] 11 FLR 458 . This concerned an appeal in the Australian Capital Territory against a conviction for aiding and abetting the driving of a motor vehicle in a dangerous manner. The appellant was joint owner with the driver of the motor vehicle. It appeared from his evidence that he may not have appreciated, until it was too late to prevent, the dangerous manner in which the vehicle was driven. The court concluded it could not be satisfied that he had sufficient awareness that the manner of the driver’s handling of the vehicle was dangerous to conclude that he assented or concurred in the dangerous driving. Smithers J. emphasised that mere presence with knowledge was not enough. The joint owner did not appreciate, until it was too late, that there was any need for him to take action to intervene (see in particular page 465). Dennis v Pite is a powerful demonstration of the need to establish not only knowledge of the dangerous driving but knowledge at a time when there was an opportunity to intervene. 29. In pursuance of this second approach, we conclude that the prosecution had to prove that the appellant knew that Westbrook was, by virtue of the speed the vehicle was travelling, driving dangerously at a time when there was an opportunity to intervene. It was the appellant’s failure to take that opportunity and, exercise his right as owner of the vehicle, which would lead to the inference that he was associating himself with the dangerous driving. The judge’s summing up 30. With those principles in mind we turn to the judge’s directions. The judge warned the jury in his summing up that the mere fact that someone has had a drink:- “…does not of itself mean that he is unfit and that it would be dangerous for him to drive.” He made a similar comment in relation to speeding, pointing out that the mere fact of exceeding the speed limit does not of itself mean that the driving is dangerous. He continued that there was no issue but that Westbrook was driving dangerously and that he caused the death of Mark Tansey. Further, he pointed out that the appellant admitted inviting Westbrook to drive his car and:- “…he sat in it without demur, whilst Westbrook drove as he did.” The judge continued:- “What the prosecution have to prove is that at the time he did either or both of those things he recognised or that it would have been obvious to him that it would be dangerous to allow Westbrook to drive the car at all or to allow him to go on driving at the speed he was without attempting to stop him or at least slow him down. We now know that Westbrook was nearly three times over the drink/drive limit. It is not, of course, suggested Mr Webster could have been aware precisely how much Westbrook had drunk, but what the prosecution says is that all the circumstances would have made it obvious that Westbrook was not fit to drive. So far as the speed is concerned, so the prosecution say, it was known or would have been obvious to Mr Webster that the speed was excessive and dangerous and that he should have intervened.” (page 7) 31. The judge then, after consultation with counsel, handed to the jury written questions based on those directions. The written directions read as follows:- “(1) Do you find it proved that it was dangerous for Westbrook to be permitted to drive and that the defendant either recognised that or that it would have been obvious to him before he invited Westbrook to take the wheel? (2) Do you find it proved that the speed at which Westbrook was driving was dangerous and that the defendant either recognised that or that it would have been obvious to him and that he should have attempted to intervene? (3) If your answers to both the above questions is “No”, then you must find the defendant not guilty – so if you answer “No” to the first two questions that is the end of the matter – but if the answer of all of you – and I’ll come back to that in a moment – to either or both is “Yes”, if you find it proved that that was a contributory cause to the death of Tansey? If your answer is “No” you must find the defendant not guilty, but if your answer is “Yes” the defendant is guilty.” 32. Applying those principles of law which we have concluded are applicable, it appears to us that the directions as to the first way in which the prosecution put its case against the defendant were incorrect. Twice the judge had referred to the issue as whether it was dangerous to allow Westbrook to drive the car at all, both in the earlier passage (at page 7) and in question (1). But putting the question in that way was ambiguous. Few would deny that it was dangerous to allow a man who had been drinking to drive. But that is not the question posed by Section 2 A of the 1988 Act as amended. The question was whether the appellant recognised, by virtue of what he saw to be Westbrook’s drunken condition, that Westbrook was likely to drive dangerously. It is one thing to set out to prove that it was dangerous to permit Westbrook to drive because he had been drinking or was drunk. It is a quite different question whether, by virtue of the amount it was apparent to the appellant that Westbrook had drunk, the appellant realised Westbrook was likely to drive dangerously. The defect in the judge’s direction at (1) is that it fails to distinguish between those two questions. The prosecution must prove that, by reason of the amount Westbrook appeared to have drunk, the appellant realised he was likely to drive dangerously. Only the second question is correct in applying Section 2 A of the 1988 Act . It permits the jury to find the appellant guilty merely because he realised Westbrook had been drinking. That was part of the prosecution’s case against the appellant but it was not conclusive. 33. There was a further defect in the way the judge directed the jury under question (1). He rightly directed the jury as to the appellant’s state of mind “either recognised” but he posed as an alternative the question whether it “would have been obvious to him”. The danger with that way of putting it was that it might suggest to the jury that it was sufficient to prove that the appellant ought to have recognised the danger rather than the need to prove that he did recognise the danger. As we have already observed, if the prosecution could prove that it must have been obvious to the appellant that by reason of his condition Westbrook was likely to drive dangerously the jury would have had little difficulty in concluding that the appellant did recognise that it was likely Westbrook would drive in that way. But, without being unduly prescriptive, the judge ought to have directed the jury in such a way that the jury did not confuse the two propositions, namely whether the defendant did recognise the danger or whether he must have recognised the danger. The only question for the jury was whether the appellant did recognise the danger; if the facts demonstrated that he must have done, then the jury would have no difficulty in concluding that he did recognise that danger. 34. In relation to the second way in which the prosecution put its case against the appellant, we take the view that the judge also fell into error. Both in the earlier passage at 7C to D and in question (2) the judge did not leave to the jury the issue as to whether, at the time the appellant recognised that Westbrook was driving at a dangerous speed, he had an opportunity to intervene but failed to take that opportunity. The question whether the appellant should have attempted to intervene assumes that he had an opportunity to do so. But the issue of opportunity was an issue which should have been left to the jury. The way the judge directed the jury did not sufficiently draw the jury’s attention to that issue, which had to be resolved, before the jury could convict. The second question also discloses a similar defect in the reference to what “would have been obvious” to the appellant. We commend the decision of the judge to give short written questions to the jury. Perhaps this case demonstrates, like so many others, the need to spend sufficient time in discussing the law before speeches and summing-up. As the adjutant used to say, “time spent in reconnaissance is seldom time wasted”. There was a discussion but the points now taken were not canvassed by counsel. The safety of the verdict 35. Mr Linehan QC rightly pointed out that the questions to the jury had been the subject of submission and, in their final form, laid before the jury without protest. In those circumstances he contended that there was really no issue but that if the appellant saw Westbrook’s condition he recognised he was likely to drive dangerously. We do not agree. Although there was an abundance of evidence as to Westbrook’s state of intoxication, it must be recalled that both the appellant and his wife were willing to stay in the car when he drove. The appellant’s own evidence was that Westbrook did not appear so drunk that it was likely he would drive dangerously. If he had thought he was in that condition, it remains inexplicable why he should let Westbrook drive, since he himself had not been drinking, still less permit his wife to travel in the back of the car as a passenger. It was, accordingly, for a jury to assess the significance of the fact that the appellant let his wife travel in the back of the car and permitted Westbrook to take the wheel. We are unable to say that the resolution of the issues, if they had been laid before the jury correctly, would have inevitably been resolved against the appellant. One jury disagreed. The second jury was not unanimous. We take the view that the errors in the directions in relation to the first way the prosecution put its case against the defendant did affect the safety of the verdict. Since we cannot know on what basis the jury did convict, that is sufficient to dispose of this appeal. 36. However, we should consider whether a conviction on the second basis was inevitable. The evidence of the speed at which Westbrook was driving on a narrow country road was overwhelming. But the question whether or when the appellant had an opportunity to intervene is less clear. We did not see the police video of the journey. True it is that it would only have taken a moment for the appellant to shout out a command to stop or to slow down, as was his right as owner of the car. But when he ought to have done so cannot be solved by us. It was a matter for the jury to assess and we repeat that the jury never seems to have found the matter free from difficulty. In those circumstances we allow the appeal. 37. We also indicated that we would not order a re-trial. We appreciate how distressing this resolution of the appeal must be to those whose impact statement we have read and for whom we have every sympathy. They, as the impact statement revealed, have had to relive this tragedy during two trials and now during this appeal. However, we have to bear in mind that this appellant has already served ten months out of a sentence of imprisonment of five years. Had the appeal been dismissed we would have had to consider the propriety of a sentence of five years. The driver, who pleaded guilty, was sentenced to 3½ years imprisonment. Despite the fact that this appellant pleaded not guilty, there was a serious argument as to whether the five years imprisonment was wrong in principle, let alone manifestly excessive. We cannot and do not resolve that issue but we do take the view that there was a real prospect of a substantial reduction in that sentence even if the appeal against conviction was dismissed. In those circumstances the appellant might be regarded as having served a substantial proportion of the appropriate sentence. It is for that reason, together with the fact that he has already been tried twice in respect of this offence, that we did not order a re-trial. 38. In reaching our conclusion we do not in any way intend to discourage prosecution for an offence of aiding and abetting causing death by dangerous driving. It seems to us an important and powerful weapon in the armoury deployed to discourage owners of vehicles permitting those who have been drinking from driving. Anyone who does so runs the risk of not merely a prosecution for aiding and abetting driving with excess alcohol but, should tragedy occur, for a far more serious offence.

2006_03_03-741.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/415/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/415

ea67b0110578df90389126697e97eaf46004cdce3bcfe6e1a0d6678b98ca5a44

[2009] EWCA Crim 1033

EWCA_Crim_1033

2009-03-19

crown_court

Neutral Citation Number: [2009] EWCA Crim 1033 Case No. 2008/03752/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Thursday 19 March 2009 B e f o r e: LORD JUSTICE GOLDRING MR JUSTICE KEITH and MR JUSTICE NICOL __________________ R E G I N A - v - JOHN NEVINS __________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official

Neutral Citation Number: [2009] EWCA Crim 1033 Case No. 2008/03752/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Thursday 19 March 2009 B e f o r e: LORD JUSTICE GOLDRING MR JUSTICE KEITH and MR JUSTICE NICOL __________________ R E G I N A - v - JOHN NEVINS __________________ 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 D Heraghty appeared on behalf of the Applicant Mr H Rowland appeared on behalf of the Crown ____________________ J U D G M E N T LORD JUSTICE GOLDRING: I shall ask Mr Justice Keith to give the judgment of the court. MR JUSTICE KEITH: 1. On 20 May 2008 at Ipswich Crown Court, the applicant pleaded guilty to four counts relating to his failure to comply with various obligations imposed on him by the Fire Precautions Act 1971 (" the Act "). He asked for two further offences to be taken into consideration. On 17 June 2008, he was sentenced by Judge Holt to fines totalling £145,000. He was ordered to pay the fines within 28 days, with a total of 54 months' imprisonment in default of payment. He was also ordered to pay a sum to the Legal Services Commission in respect of his own costs under a recovery of defence costs order. In addition, he was ordered to pay the sum of £49,988 towards the costs of the prosecution also within 28 days. He now renews his application for leave to appeal against the level of the fines and the order for the payment of the costs of the prosecution, leave to appeal having been refused by the single judge. 2. The offences all relate to a hotel which the applicant acquired in the early part of 2003. In July 2003, an application under the Building Regulations was lodged on behalf of the applicant with the Building Control Department of the local planning authority. That application sought approval to convert the function room on the ground floor of the hotel into three bedrooms. There was to be a fire escape corridor. Although the Building Control Department consults with the local fire authority over such an application, there was nevertheless an obligation on the applicant to give notice of the proposal to the local fire authority. He did not do so. 3. That would have been only a technical breach of the Act , as the advice on appeal rightly points out, but a subsequent inspection of the hotel in January 2004 revealed that the function room had been converted otherwise than in accordance with the original proposal. It had been converted into two bedrooms. There was no corridor. There was no means of escape from one of those bedrooms, except through the other bedroom. It was the applicant's failure to notify the fire authority of that proposal which formed the basis of count 1. The advice on appeal does not address that issue. On this count, the applicant was fined £10,000. 4. Following this inspection, the local fire authority wrote to the applicant reminding him of his obligation to notify it before any building works took place in the hotel in the future. However, on a further inspection of the hotel in May 2006, it was observed that part of the landing on the second floor had been converted into a bedroom. The local fire authority had not been notified of the proposal to carry out those works. The inspection revealed that there was no fire detector in the bedroom; that the walls between the bedroom and the adjacent corridor were unlikely to be fire resistant for the 30 minutes required; and that the door to the bedroom was not fire resistant to the required standard either. This new bedroom also affected the means of escape from five bedrooms on the second floor. That was regarded as so potentially dangerous that a prohibition notice was served prohibiting the use of the whole of the second floor. The prohibition notice was withdrawn only after remedial steps had been taken, although the defence say that it was withdrawn as soon as combustible materials had been removed from the bedroom, and that the prosecution have exaggerated the dangers created by the construction of the additional bedroom. It was the applicant's failure to notify the local fire authority of his proposal to carry out these works which formed the basis of count 2. On this count, the applicant was fined £75,000. 5. The two other counts to which the applicant pleaded guilty were counts 4 and 7. Unlike counts 1 and 2, they did not relate to the applicant's failure to notify the local fire authority of his proposal to carry out works. They related to his failure to comply with the requirements imposed by the fire certificate issued by the local fire authority. During the inspection of the hotel in January 2004, it was noted that the rear stairs, which comprised part of the escape route from the first and second floors, did not have any artificial lighting to allow people to leave the building safely in the event of a fire, and that although a light fitting with a bulb had been installed on the ground floor where the unauthorised conversion of the function room had taken place, there was no light switch to operate it. 6. The mitigation here was that the inadequacy of the lighting had not been mentioned before, even though the hotel had frequently been inspected, and that the inadequacies of the lighting system were swiftly rectified. It is also said (although it is difficult to see how this can mitigate the actual breaches of the fire certificate) that the hotel was equipped with an emergency lighting system which was activated in the event of a disruption to the power supply. Those breaches of the fire certificate formed the basis of count 4. On that count, the applicant was fined £10,000. 7. Finally, during a period of almost two years between March 2004 and January 2006, the fire alarm system was not tested adequately. It is true that the alarm records showed that from October 2004 at any rate the system was tested quarterly, but to comply with the fire certificate it had to be tested weekly. Again, although fire extinguisher checks were carried out annually, they had to be checked monthly to comply with the fire certificate. The mitigation here was that there was no evidence that the fire alarm system was not working. Those breaches of the fire certificate formed the subject of count 7. On that count, the applicant was fined £50,000. 8. The two offences which the applicant asked to be taken into consideration related to other breaches of the fire certificate. The door to the boiler room was not fire resistant, and the door to the kitchen, which provided a means of escape in the event of a fire, was not kept unlocked. 9. There were a number of aggravating features about this series of offences. First and foremost, people were put at risk. It is no answer to say, as is said on the applicant's behalf, that there never was a fire, nor even an increased risk of fire as a result of these breaches. That, no doubt, is true, but the case against the applicant was never put on the basis that there was an increased risk of fire as a result of these breaches, but that the breaches made it less easy for people to escape safely in the event of a fire. In addition, the offences were not about things which the applicant had overlooked through carelessness. The judge found that these were deliberate failures to comply with the requirements in order to save costs. In particular, the offence which the judge rightly regarded as the most serious in terms of putting the hotel's guests at risk (count 2) was committed despite a recent reminder from the local fire authority of the applicant's obligation to notify it before embarking on any building works. Indeed, it is acknowledged that one of the unattractive features of the applicant's behaviour was his reluctance to co-operate with the local fire authority. 10. The applicant was not without previous convictions. He is now 60 years old. He received a suspended sentence in his thirties for an offence of conspiracy to defraud. He went to prison for two years in his forties for offences of deception. In 2006, he received a suspended sentence for being involved in the management of a company when disqualified from doing so. Nor did the applicant have the mitigation of timely pleas of guilty. He had originally pleaded guilty at the magistrates' court, but had then successfully applied to change his pleas to not guilty and had elected to be tried at the Crown Court. The subsequent pleas of guilty at the Crown Court came very late in the day. 11. There is no question but that these were very substantial fines for offences of this kind. But the applicant is a man of considerable wealth. The net value of assets which he jointly owns with his wife was put at over £13,000,000, and his own assets were estimated to be in excess of £10,000,000. As the single judge said when refusing the applicant leave to appeal, there is no point in imposing fines on the rich unless they are large enough to hurt. 12. However, the mere fact that the applicant had the ability to pay substantial fines did not mean that they had to be calculated by reference to his assets. The authorities, in particular R v ESB Hotels Ltd [2005] 2 Cr App R(S) 56, show that in the case of corporate defendants, it is their pre-tax profits rather than the company's turnover which should be taken into account, and therefore presumably rather than their assets as disclosed on the balance sheet. The pre-tax profits for the applicant's business for the two previous years were £218,557 and £240,000. The judge is criticised for not taking the pre-tax profits of the business into account, but looking at his sentencing remarks, it is apparent that he did just that. It is also said in the supplementary grounds of appeal that the judge failed to reflect in the fines which he imposed the fact that the applicant's wife had a share in the business, and that something less than the whole of the pre-tax profits of the business should have been attributed to the applicant. But it is not said that the judge was told what his share of the business was. In any event, as we shall see, the applicant was prosecuted because he was the occupier of the premises for the purpose of the Act . 13. At the end of the day, as was said in R v F Howe & Son (Engineers) Ltd [1999] 2 Cr App R(S) 37 at p. 43, "the important thing is to assess the gravity of the breach", and in that context "it is often helpful to look at how far short of the appropriate standard the defendant fell". In this case the sentencing judge said: "In my judgment, your failing to meet what you should have done was woeful over a period of more than two years, and the potential for risk of serious injury to your guests whilst they slept in your hotel was considerable." 14. We have looked at comparable cases to see whether these fines were so out of kilter with what a man with the resources of the applicant, running a business with the sort of pre-tax profits which his business had, might expect to pay by way of fines for breaches which fell so far short of the appropriate standard. There is, of course, a real danger in comparing the facts of one case with the facts of another, especially as the overwhelming majority of the reported cases relate to companies and not individuals. In any event, the cases in which an appellate court has reduced the fines imposed by the lower court have tended to be where the lower court was thought to have taken something immaterial into account, or not to have taken something material into account, or to have got the facts wrong. That cannot be said of this case. In the end, we have concluded that the fines here, though very heavy, were not manifestly excessive. 15. We turn to the order for costs. That was challenged on a variety of grounds in the original grounds of appeal and in the supplementary grounds, but we need only address one because it is the only one that was advanced today. It is said that the costs claimed by the prosecution represented its entire costs, despite the fact that the applicant's wife and daughter had originally been charged as well, only for the prosecution ultimately to offer no evidence against them. 16. The prosecution's explanation for not continuing to proceed against the applicant's wife and daughter is that the person said to be liable for failing to comply with the obligations imposed by the Act is the occupier of the premises to which the requirements of the Act related. Since the hotel had been run "by different vehicles at different times", the officers responsible for this prosecution were uncertain who the occupier was for the purposes of the Act . That uncertainty could have been removed if the applicant had volunteered that which he was later to admit, namely that he was the occupier of the premises for the purposes of the Act . However, he did not attend the interview at which questions designed to elicit who the occupier was were asked. Indeed, when his daughter was interviewed, she did not say that he alone was the occupier. She said that he and his wife were. Accordingly, it had been necessary for the applicant's wife and daughter, as well as the applicant, to have been charged initially. The case was withdrawn against the applicant's wife and daughter when the applicant pleaded guilty at the magistrates' court. But when he successfully applied to change his pleas and elected trial at the Crown Court, the proceedings had to be recommenced against the applicant's wife and daughter because it was not then known whether or not the applicant would in due course acknowledge that he alone was the occupier of the premises. In the circumstances, we see no basis for saying that the judge was wrong to conclude that the applicant should have to pay the whole of the prosecution's costs. 17. For these reasons, therefore, this renewed application for leave to appeal against sentence and the order for costs must be refused. MR ROWLAND: My Lord, I hesitate to ask, but may I mention the question of costs in relation to this application? LORD JUSTICE GOLDRING: Yes. MR ROWLAND: There are costs and they amount to quite a lot of money. LORD JUSTICE GOLDRING: Would you first of all like to tell us what our powers are, please, and where it is set out? MR JUSTICE KEITH: It is section 18(2)(a) of the Prosecution of Offences Act 1985 . MR ROWLAND: I am grateful. MR JUSTICE NICOL: It does require you to specify a figure -- or rather if we are to accede, it requires us to specify a figure. MR ROWLAND: My Lord, yes. On a time basis alone, bearing in mind the preparation work -- which has not been doubled up -- on a time basis alone and with the costs of the officers involved as well, it comes to £5,477. LORD JUSTICE GOLDRING: Do you have a document setting that out? MR ROWLAND: My Lord, I have. LORD JUSTICE GOLDRING: It does not set out your hours at all, does it? MR ROWLAND: My Lord, no, it does not. MR JUSTICE NICOL: Why are fire officers' costs appropriate as part of the appeal to this court? MR ROWLAND: My Lord, the position as far as the fire officers involved is concerned is that there was an advice on appeal submitted and grounds submitted. MR JUSTICE KEITH: I am sorry, I did not catch that. MR ROWLAND: There was an advice on appeal submitted and grounds submitted. Instructions had to be taken in relation to those to allow preparation of the documents that you have seen. They also liaised with the court office here, and it is in respect of those matters that they have shown the time. MR JUSTICE KEITH: What were the grounds of appeal on which the instructions of individual fire officers needed to be taken? MR ROWLAND: My Lord, in relation to the nature of the risk that had been identified and specific matters which are set out in the skeleton argument relating to the specifics of the allegations. MR JUSTICE KEITH: All of that would have had to have been done for the hearing before the judge. MR ROWLAND: My Lord, not quite because, with respect, the way in which the grounds were put needed specifically to be answered because those were matters which had not been raised before the judge. MR JUSTICE NICOL: But if they are not raised before the judge and there is not an application to adduce fresh evidence, is the fact that they were not raised before the judge and there is not an application to adduce fresh evidence not the end of the matter? MR ROWLAND: My Lord, it is not a question of fresh evidence. It is more a question of the interpretation of the way in which the matter was being put by the applicant at that time. LORD JUSTICE GOLDRING: How many hours of legal work does this involve? What is the hourly rate that this involved? MR ROWLAND: The hourly rate is £150 an hour. LORD JUSTICE GOLDRING: And the number of hours? MR ROWLAND: I am afraid I did not prepare the schedule myself. LORD JUSTICE GOLDRING: No doubt there are some disbursements in this as well. MR ROWLAND: No, there are not. LORD JUSTICE GOLDRING: There are not? It is all time? MR ROWLAND: Yes. LORD JUSTICE GOLDRING: The number of hours? MR ROWLAND: It would be seventeen hours approximately -- something like that. LORD JUSTICE GOLDRING: Including, no doubt, the taking of instructions and the drafting of the skeleton in relation to factual matters to which you have just referred? MR ROWLAND: My Lord, yes. There was the preparation of the case summary for the appeal, which I think was heavily relied on. MR JUSTICE KEITH: There were two documents that you produced. One was in response to the original grounds of appeal. The other was in response to the supplementary grounds of appeal. Are there any other documents which have been produced which you could show us? MR ROWLAND: My Lord, yes. There was a detailed case summary which was sent both to the defence and to the Court of Appeal. MR JUSTICE KEITH: The Registrar sought a document from you for the purposes of preparing a case summary for us? MR ROWLAND: My Lord, I cannot say that he sought it from me. I sent it to him. MR JUSTICE KEITH: You volunteered it? MR ROWLAND: I did, because of the technical nature of the allegations. MR JUSTICE KEITH: Yes, I understand that, though in fact the case summary prepared by the court really comes from the transcript of your opening. Everything that I saw in the case summary prepared by the Registrar came from the opening. I have not seen anything in the summary which came from another document, which I now know was the document you provided. MR ROWLAND: I do not know, my Lord. That may be the case. LORD JUSTICE GOLDRING: Thank you very much. Let us see what Mr Heraghty has to say about it? MR HERAGHTY: My Lords have made a number of the points I would have made. As far as I am aware, the Criminal Appeal Office did not require the involvement of the respondent in the proceedings thus far. Thus far it has solely been an application for leave to appeal, and of course the court had everything it needed to decide the issues. Whilst there are technical aspects to this, the fact is that there was a sentencing hearing and a transcript of it and nobody can go behind that. My Lord, it is helpful to have the respondent here, of course, but, as I understand it, it was not absolutely necessary. LORD JUSTICE GOLDRING: It is often extremely helpful, though, to the court. MR HERAGHTY: Yes, of course. MR JUSTICE NICOL: And the statutory power does expressly extend to an application for leave. MR HERAGHTY: The statutory power to order prosecution costs? MR JUSTICE NICOL: To order prosecution costs. MR HERAGHTY: Of course it does. LORD JUSTICE GOLDRING: Thank you very much. ( The court conferred ) LORD JUSTICE GOLDRING: As it seems to us, taking into account today's hearing, the fact that some of what was done was unnecessary and that some of what was done was fire officers' costs which are not appropriate, the overall figure of £2,000 seems to us to be an appropriate figure and a figure that we consider to be just. MR ROWLAND: My Lord, thank you. _________________________________

2009_03_19-1878.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/1033/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/1033

d8fbf98dc99c03da949ce0dcc71b83b5d0df55f42b763b55fcb1b6a424cdb96a

[2019] EWCA Crim 1461

EWCA_Crim_1461

2019-08-07

crown_court

Neutral Citation Number: [2019] EWCA Crim 1461 No: 201800322/C2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday 7 August 2019 B e f o r e : LORD JUSTICE HOLROYDE MR JUSTICE GOSS MR JUSTICE KNOWLES R E G I N A v MARK ANTHONY JACKSON 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) Th

Neutral Citation Number: [2019] EWCA Crim 1461 No: 201800322/C2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday 7 August 2019 B e f o r e : LORD JUSTICE HOLROYDE MR JUSTICE GOSS MR JUSTICE KNOWLES R E G I N A v MARK ANTHONY JACKSON Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. Non-Counsel Application J U D G M E N T (Approved) 1. LORD JUSTICE HOLROYDE: In January 2012, after a trial in the Crown Court at Sheffield before McCombe J (as he then was) and a jury, this applicant and three others were convicted of the murder of Adam Vincent. The applicant was also convicted of conspiracy to pervert the course of justice. He was acquitted of a charge alleging conspiracy to supply controlled drugs of class A. 2. He was sentenced for the offence of murder to life imprisonment with a minimum term of 29 years. A concurrent sentence of eight years' imprisonment was imposed for the other offence. 3. No appeal against conviction was brought at the time, although the applicant did bring an appeal against sentence which succeeded to the extent that his minimum term was reduced to 25 years. 4. In January 2018 he lodged an application for an extension of time of nearly six years to apply for leave to appeal against his conviction for murder, relying on the decision of the Supreme Court in R v Jogee [2016] UKSC 8 . His application was refused by the single judge. It is now renewed to the full court. 5. The deceased was 33 years old at the date of his death. He was addicted to drugs. He had lived in the same house as the applicant and the other accused. The cause of his death was blunt force trauma to his head. The evidence of a pathologist was that the deceased had been struck with severe force at least three times with a weapon such as an axe or golf club to the head. He had sustained other head and facial injuries, and also broken ribs and contusion to the spleen, probably caused by stamping. Five pellet shot wounds were found which had been inflicted with an air rifle. 6. The prosecution case was that all of the accused had been engaged in the supply of drugs, specifically heroin, and that they had jointly murdered the deceased as part of a joint enterprise to silence him and/or as revenge for their belief that he had provided assistance to the police resulting in the accused being arrested and/or had stolen money or drugs from them. The prosecution case was that the deceased had been subjected to violence and physical abuse, behind the closed doors of the house in which they were all living, for a period of about two weeks before he died. His body was then taken to another location where it was dismembered and the parts disposed of in an attempt to conceal the crime. Two particular vehicles, a Ford Escort and a van had been respectively purchased and hired by some of the accused to assist in disposing of the body. 7. It is unnecessary for present purposes to go into the details of the evidence against this applicant. It is sufficient to say that a number of witnesses gave evidence of things said to them by the applicant which plainly implicated him in the killing of the deceased. There was undoubtedly evidence on which the jury could properly convict if they were satisfied so as to be sure that the evidence was truthful, accurate and reliable. It is to be noted that no submission of no case to answer was or could be made. Neither the applicant nor any of his co-accused gave evidence. 8. In his directions of law to the jury, the learned judge emphasised the need for them to give separate consideration to each of the accused and to each of the different charges. He explained in conventional terms that two or more persons may commit an offence jointly. At page 8A to C of the transcript, he said this: i. "You must ... carefully examine the evidence against and for each defendant separately on this charge and must consider whether or not the prosecution has, indeed, made you sure that the defendant intended to kill or seriously to injure Mr Vincent and that he took some part in the carrying out of that intention either directly by assisting or encouraging the others. If you are not sure of that in the case of any individual defendant, you will acquit that defendant on the charge of murder." 9. In the light of the law as it stood at the time of the trial, the judge went on to add that the direction just quoted was subject to a further point which he explained as follows: i. "As I have said, participation in or encouragement of the fatal attack upon Mr Vincent with the intention to kill or to cause him really serious bodily injury are the elements of the offence of murder in the case of an alleged joint enterprise offence. If you are sure that the defendant whom you are considering participated or encouraged such an attack with the intention that Mr Vincent should be killed, then he is guilty of murder. If you are not sure that the defendant intended that Mr Vincent should be killed but only that he should be really seriously injured, you must ask yourselves whether the use of a lethal instrument -- such as an axe or other heavy, blunt object, such as the head of a golf club -- of the type that you may think inflicted fatal blows was within the scope of the criminal enterprise in which he took part." 10. The judge later summarised his directions by saying at page 9E: i. "So your approach to the matter in respect of each of the five defendants to the murder charge in turn is this: 'Are we sure that this defendant took some part in the fatal attack on Mr Vincent either by: (1) himself unlawfully assaulting Mr Vincent and causing him fatal injuries, intending to kill him or cause him really serious bodily injury; or (2) participating in some way with another or others in a deliberate plan to kill and that Mr Vincent was killed as a result; or (3) participated in a deliberate plan to assault Mr Vincent in which this defendant intended to cause him really serious harm and that Mr Vincent was killed as a result, subject, again, to the one point?' If you sure of any of these three alternatives in respect of any individual defendant, then, subject to this next point, that defendant is guilty of murder." 11. Towards the end of his summing-up, the judge provided the jury with a written route to verdict consistent with the directions which he had given. 12. In his applications for an extension of time and for leave to appeal against conviction, the applicant makes clear that he was advised at the time of his trial that he had no grounds of appeal against conviction. He says however that the law relating to joint enterprise has now been redefined by the Supreme Court in Jogee . In his grounds of appeal, he says: i. "I believe that if I had been tried under the law as it now stands I would not have been convicted. This is on the grounds that there is no evidence that I was present at the time of Adam Vincent's death or that I participated in any way which directly led to his death or that I offered any assistance or encouragement knowing that this might lead to his death. ii. The prosecution put its case saying that I was jointly involved in the drugs and in the murder of Adam Vincent. The not guilty verdict to the drugs charge demonstrates that I was not nearly so heavily involved as they suggested. iii. In the judge's sentencing remarks he found that there was no intention to murder, just to inflict grievous bodily harm and that the motivation for that was the perceived need to exact retribution from Mr Vincent for having damaged the gang's interests and to enforce primitive discipline within it. The jury verdict takes away any motive which the prosecution say I had to punish Adam Vincent." 13. The applicant relies on essentially the same points as being exceptional circumstances justifying the grant of leave to appeal so long out of time. The need for that long extension of time arises, he submits, simply because the appeal is based on a comparatively recent development in the law. 14. The applications are opposed by the Crown in a Respondent's Notice which submits that Jogee does not assist the applicant in the circumstances of this case. 15. The court in Jogee considered cases of what had become known as parasitic accessory liability. In a series of decisions, including the decisions of the House of Lords in Powell, English and Daniels [1999] 1 AC 1 and Rahman [2008] UKHL 45 , it had been held that if D1 and D2 agreed to commit crime A, and in the course of that joint enterprise D1 commits a different crime B, D2 is guilty as an accessory to crime B if he had foreseen the possibility that D1 might act as he did. The case law had however recognised an exception to this principle where offence B involved a "fundamental departure" from what had been agreed in relation to offence A. It was in that context that in cases of murder issues arose as to whether D1 had unexpectedly used a much more dangerous weapon than anything which D2 had foreseen as a possibility. Hence the direction which McCombe J gave in this case as to foresight of the possibility that a deadly weapon might be used. 16. In Jogee it was held that the law had previously taken a wrong turning. Although foresight of what might happen could be evidence from which a jury might infer the necessary intention, it could not be the test for the mental element of secondary participation in murder. Murder requires an intention to kill or to cause really serious injury and a secondary party must intend to assist the principal to act with such intent. It will generally be sufficient if the secondary party himself intends to kill or to cause really serious injury. In the light of this restatement of the principles, the Supreme Court indicated that questions of "fundamental departure" will rarely arise for consideration. 17. The Supreme Court went on to state at paragraph 100 that where a court had correctly applied the law as it previously stood, exceptional leave must be sought to appeal out of time against conviction and exceptional leave will only be granted if there would otherwise be a substantial injustice. 18. In Johnson [2016] EWCA Crim. 1613, the Court of Appeal stated that it is for the applicant to demonstrate substantial injustice, which is a high threshold. At paragraph 21 the court said: i. "In determining whether that high threshold has been met, the court will primarily and ordinarily have regard to the strength of the case advanced that the change in the law would, in fact, have made a difference. If crime A is a crime of violence which the jury concluded must have involved the use of a weapon so that the inference of participation with an intention to cause really serious harm is strong, that is likely to be very difficult." 19. In the passages which we have quoted from the learned judge's summing-up, he repeatedly emphasised the need for the jury to be sure that a defendant intended to kill or to cause really serious injury. His direction relating to the use of a heavy weapon was set in the context of the jury being sure that a defendant intended at least to cause really serious injury. The jury's verdicts therefore show that they were sure that the applicant himself intended that the deceased should be killed or seriously injured. The decision in Jogee cannot assist a defendant who has been convicted on that basis. 20. The applicant's submission that there was no evidence that he was present when the deceased met his death cannot assist him either. As a matter of law, his guilt did not depend on whether or not he was present at that time. 21. The applicant submits, as we have said, that he had no motive to harm the deceased and that there was no evidence sufficient to prove that he participated in the killing. But those were issues which the jury had to consider at trial and which they resolved against the applicant. There is, in our judgment, no basis for saying that the jury would have reached any different decision if they had been directed in accordance with Jogee . The only difference would be that if the jury were sure, as they must have been, that the applicant assisted or encouraged the killing of the deceased with the intent that he be killed or seriously injured, then questions as to whether he foresaw the use of a particular type of weapon would be irrelevant. In short, the only effect of Jogee would be to make the applicant's case weaker not stronger. 22. We are therefore satisfied that there is no arguable ground for granting exceptional leave to appeal out of time. The renewed application accordingly fails and 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

2019_08_07-4695.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/1461/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/1461

2e7cc7b3d393ee69ff3f13bde2dabffd159fa31b6d9c9d6447b3dafbfa5e13f0

[2011] EWCA Crim 2665

EWCA_Crim_2665

2011-11-03

crown_court

Neutral Citation Number: [2011] EWCA Crim 2665 Case No. 2011/04619/B2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Thursday 3 November 2011 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) MR JUSTICE BUTTERFIELD and MR JUSTICE HENRIQUES __________________ R E G I N A - v - YURI CICCARELLI __________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Stree

Neutral Citation Number: [2011] EWCA Crim 2665 Case No. 2011/04619/B2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Thursday 3 November 2011 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) MR JUSTICE BUTTERFIELD and MR JUSTICE HENRIQUES __________________ R E G I N A - v - YURI CICCARELLI __________________ 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 K Mallison appeared on behalf of the Applicant Miss P Page appeared on behalf of the Crown ____________________ J U D G M E N T THE LORD CHIEF JUSTICE: Introduction 1. On 27 July 2011, in the Crown Court at Reading, before Her Honour Judge Mowat, the applicant was convicted of sexual assault. The applicant's application for leave to appeal against conviction has been referred to the full court by the Registrar. We grant leave. 2. The appeal raises a short point about the evidential presumptions relating to consent to be found in section 75 of the Sexual Offences Act 2003 (" the 2003 Act "). 3. "Consent" is defined by section 74 of the 2003 Act . It provides: "For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice." It is in this context that section 75 comes to be considered. Section 75 , which deals with "Evidential Presumptions about Consent, provides: "(1) If in proceedings for an offence to which this section applies [and these were such proceedings] it is proved -- (a) that the defendant did the relevant act, (b) that any of the circumstances specified in subsection (2) existed, and (c) that the defendant knew that those circumstances existed, the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it." The circumstances are explained in subsection (2). As will be seen in a moment there is nothing fanciful or unrealistic about the circumstances. They identify situations in which a complainant will be vulnerable or disadvantaged, and as a matter of reality, unlikely to be consenting. The circumstances are that: " (a) any person was, at the time of the relevant act or immediately before it began, using violence against the complainant or causing the complainant to fear that immediate violence would be used against him; (b) any person was, at the time of the relevant act or immediately before it began, causing the complainant to fear that violence was being used, or that immediate violence would be used, against another person; (c) the complainant was, and the defendant was not, unlawfully detained at the time of the relevant act; (d) [which applies here] the complainant was asleep or otherwise unconscious at the time of the relevant act; (e) because of the complainant's physical disability, the complainant would not have been able at the time of the relevant act to communicate to the defendant whether the complainant consented; (f) any person had administered to or caused to be taken by the complainant, without the complainant's consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act." All those circumstances have to be seen in the context of the meaning of "consent" in this Part of the Act . Consent is an agreement by choice made in circumstances where the individual had the freedom and the capacity to make that choice. The Facts 4. One night in October 2010 the appellant touched in a sexual way a young woman who was fast asleep or unconscious through drink, and possibly drugs, without her consent. The only issue was whether he might reasonably have believed that she was consenting. At the end of the evidence, including the evidence the appellant had given, the judge concluded that no sufficient evidence had been adduced in accordance with section 75(1) to raise the issue. Accordingly, she indicated that she would give appropriate directions to the jury. Following her ruling, the appellant pleaded guilty. He appeals against conviction on the basis that the ruling was wrong and that his guilty plea was tendered in the context of an incorrect ruling. 5. It is important to emphasise at the very outset that we do not here consider the situation which arises between couples in an established relationship, who understand each other and what is and what is not appropriate and acceptable to them in their sexual relationship. We are not considering even a relatively short sexual relationship. The appellant and the complainant had met on about three previous occasions, when nothing romantic or sexual had occurred between them. There was nothing to suggest that there was any attraction by one for the other, and in particular by the complainant for the appellant. The appellant was the boyfriend, as the complainant knew, of another young woman. 6. On the evening of 15 October 2010 the appellant, who had been working, joined a gathering of about seven people at the house of a mutual friend. His girlfriend was there, as was the complainant. The complainant was "pretty drunk" by any assessment. There was evidence of some drug-taking that evening by her and by others. As they sat around the table she fell asleep. She then woke up and felt very embarrassed. In a gesture of friendship she was taken in a taxi back to a flat shared by the appellant and his girlfriend. It was common ground that the arrangement was that she would sleep that night in their spare room. She went to bed tired and drunk. She fell fast asleep in the spare room before the appellant went to his own bed. 7. According to the appellant's evidence at trial, when the party was gathered around the table before he, his girlfriend and the complainant were driven back to the flat he shared with his girlfriend, the complainant put a hand on his upper thigh between his legs, pulled him towards her and appeared to try to kiss him. At any rate she pursed her lips into such a gesture. He found this disagreeable, so he moved away. In other words, on his account, when the group of friends were all together the complainant made an advance to him. Thereafter, she fell asleep, was taken back to the flat, and went to bed in order to sleep before he went to bed with his girlfriend. 8. The appellant told the jury that he was unable to sleep and so he got up to fetch a drink. He decided to go into the spare room where the complainant was asleep to check that she was all right "because she had not said good night to me. This time I did nothing. I did not touch her sexually". That was his evidence to the jury. 9. In his earlier interview with the police he had said that on the first occasion he went into the spare bedroom, stayed for about a minute, got into bed with the complainant, "but just sort of gave her a stroke and a small kiss". He then went to the lavatory before returning to the spare room. In the interview he said that the complainant did not wake up at all on that first occasion. 10. When the inconsistency between the evidence he had given at trial and his interview was pointed out, he explained that he had become confused and tired in the interview, but conceded that what he had said shortly after the event in the interview was likely to be right. 11. On any view, however, the appellant returned to the spare bedroom on a second occasion. The complainant was still fast asleep. She did not respond to his activities. Indeed, for a while she did not move at all. 12. Reminding ourselves of the issue, that in accordance with section 75(1) , given all the proved facts, the question was whether sufficient evidence was adduced to raise an issue as to whether the appellant reasonably believed that the complainant consented, the appellant told the jury that he went back a second time to "try it on" with the complainant to see if he was "lucky". He lay down in the bed next to her and started to kiss her face. She remained asleep. He said that he cuddled her, kissed her and tried to see if she could be awakened. He did this "to understand if she was awake or not -- whether she wanted to wake up". Apparently she did not. Nevertheless, in his evidence he said that he lay very close to her, behind her back. He had an erection. He removed his erect penis from his trousers and touched her with it over her knickers from behind. She was still asleep. She was wearing knickers, not trousers. In cross-examination he said that he had only lowered the knickers and not removed them. He said that he was unable to remove them because she moved. Indeed she did. She woke up just before he got on top of her. When she awoke her response was immediate. She told him to get out and to get off, and that is what he did. 13. The complainant's evidence was that she was aware of waking up with the appellant on top of her in bed, clearly looking for sexual intercourse. She believed that her knickers were removed, but whether they were or not, as soon as she realised what was going on she yelled at him to get off, and indeed he did. 14. In his evidence the appellant said that he had "felt a bit let down" by his girlfriend that evening because she did not make him happy. He thought she was flirting with people she had known from a long time earlier. That was one reason for going to the complainant's room. The second was that she had "tried it on" with him when the group was gathered together around the table before the three left for the flat. 15. It was not in dispute that the appellant sexually assaulted the complainant when she was asleep and when he knew that she was asleep. Further, it was not in dispute that the complainant did not, in fact, ever consent to be touched sexually by the appellant in any way. The only question was whether sufficient evidence had been adduced for the issue whether he reasonably believed that the complainant consented to him touching her sexually to be raised. If there was, the issue would be left to the jury. 16. The judge rightly addressed her attention to section 75 of the 2003 Act , both the evidential presumption about consent and the circumstances in which issues about the evidential presumption arose for consideration. She concluded that the requirements of section 75(1) (a) to (c) were established. She then asked herself how the evidence, taken at its highest in the appellant's favour, could possibly suggest "that he could reasonably have believed this woman was consenting to sexual touching while she was asleep and therefore incapable of giving contemporaneous consent". She concluded that there was no evidence on which the appellant could advance an argument on the basis that he reasonably believed the complainant would have consented to him touching her while she was asleep, and said that he could not be heard to say, "I believe she would have consented if she had been awake. Therefore it was reasonable for me to believe she consented while she was asleep". The judge said that could not conceivably be a reasonable belief "if that was what was being argued" on the appellant's behalf. 17. Having reached that conclusion, the judge told counsel for the appellant that she would direct the jury accordingly. She did not suggest that she would direct the jury to convict. In the light of the indication she had given, an application was made for the appellant to be re-arraigned. He vacated his "not guilty" plea and pleaded guilty. 18. It is submitted that the judge's ruling was wrong. It was suggested that section 75 of the 2003 Act reverses the ordinary principles relating to the burden of proof in criminal cases. We do not agree. Section 75 is an evidential provision. It relates to matters of evidence, and in particular evidential presumptions about consent in circumstances where, as we have already indicated, as a matter of reality and common sense, the strong likelihood is that the complainant will not, in fact, be consenting. If, however, in those circumstances there is sufficient evidence for the jury to consider, then the burden of disproving them remains on the prosecution. Therefore, before the question of the appellant's reasonable belief in the complainant's consent could be left to the jury, some evidence beyond the fanciful or speculative had to be adduced to support the reasonableness of his belief in her consent to him touching her sexually when and although she was fast asleep, and remained so, both when he went in to see her on the first occasion and again when he went in on the second occasion. 19. We remind ourselves that effectively these were two strangers. As far as both were concerned, the appellant had a girlfriend with whom he shared the flat in which she was sleeping at the time of the sexual touching of the complainant. Moreover, before he touched her sexually, he made no attempt to awaken her by talking to her or indeed by touching her in a non-sexual way, for example, by shaking her by the shoulder. Taking the appellant's case at its highest, it came to no more than this. The reasonableness of his belief that the sleeping complainant was consenting was based on the single advance she had made to him (according to his account) at an earlier stage in the evening when she was awake, in a different place, before she was taken to the flat he shared with his girlfriend and put to bed in the spare room to sleep off her drunken stupor. 20. The basis of the submission that the judge's ruling was wrong is encapsulated in the proposition that it was enough for the appellant to have given the evidence which he gave, that he believed that the complainant was consenting. Thereafter, whether or not that belief was reasonable was a question for the jury. In other words, his asserted belief was sufficient to raise the issue. The difficulty with this submission is readily identified. It is not what section 75 provides. The belief must be reasonable, or putting it more precisely, there must be some evidence that the belief was reasonable. 21. The issues of the appellant's reasonable belief in the complainant's consent, either when she was asleep or in any other of the situations identified in section 75(2) (in what we describe as a position of disadvantage) will be considered by the jury provided that there is evidence which is sufficient to raise that issue. That involves a careful evaluation of the evidence. That exercise was carried out by Judge Mowat. On the facts of this case her conclusion was entirely justified. The evidence did not raise any issue for the consideration of the jury. 22. Accordingly this appeal is dismissed. ___________________________________________

2011_11_03-2853.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/2665/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/2665

181dde1c8ea8631cbf3e2f9541fa1304784e321a1476ff3d4a2c6131168d6111

[2005] EWCA Crim 3001

EWCA_Crim_3001

2005-11-24

supreme_court

Case No: 200207268 D2 Neutral Citation Number: [2005] EWCA Crim 3001 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM His Honour Judge Mellor Sitting at Ipswich Crown Court Royal Courts of Justice Strand, London, WC2A 2LL Thursday, 24 November 2005 Before : THE RIGHT HONOURABLE LORD JUSTICE HOOPER THE HONOURABLE MR JUSTICE JACK and HIS HONOUR JUDGE GORDON - - - - - - - - - - - - - - - - - - - - - Between : REGINA - and - STEVEN PUACA - - - - - - - - - - - - -

Case No: 200207268 D2 Neutral Citation Number: [2005] EWCA Crim 3001 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM His Honour Judge Mellor Sitting at Ipswich Crown Court Royal Courts of Justice Strand, London, WC2A 2LL Thursday, 24 November 2005 Before : THE RIGHT HONOURABLE LORD JUSTICE HOOPER THE HONOURABLE MR JUSTICE JACK and HIS HONOUR JUDGE GORDON - - - - - - - - - - - - - - - - - - - - - Between : REGINA - and - STEVEN PUACA - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of Smith Bernal Wordwave Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr P Katz QC and Miss A Ward (instructed by Fosters Solicitors) for the Appellant Mr W Coker QC and Mr C Morgan (instructed by CPS) for the Respondent - - - - - - - - - - - - - - - - - - - - - Judgment LORD JUSTICE HOOPER : 1. On 22 November 2002 in the Crown Court at Ipswich the appellant, Steven Puaca, was convicted of the murder of Jacqueline Tindsley on 28 February or 1 March earlier that year. On 9 and 10 November 2005 we heard his appeal. At the conclusion of the hearing we announced that the appeal would be allowed and the conviction quashed. We reserved our reasons, and we now provide them. Introduction 2. The primary issue at the trial was the cause of Miss Tindsley’s death. At 6.41 am on Friday 1 March 2002 the appellant made a 999 call. Paramedics arrived at the flat where he and Miss Tindsley lived at 6.49. They found Miss Tindsley lying on her bed. She was dead and some rigor mortis was present. It was the prosecution case that at some point during the preceding night the appellant had smothered her by pressing her face into the bedclothes so she could not breath. The appellant did not give evidence. It was his case, supported by a written statement he had provided to the police when he was interviewed, that he had gone to sleep during the afternoon or evening of the 28th February, that he had woken at 9.30 pm to go to the lavatory, that Miss Tindsley was asleep in her bed, snoring, and that he had next awoken at 6.40 am when he had gone into her room and found her dead. It was accepted that, if Miss Tindsley had been smothered, the appellant was the only person who could have done it. 3. The issue of cause of death turned very largely, perhaps wholly, on the pathological evidence. We will revert to the question of the other evidence relied on by the prosecution. To establish smothering the prosecution relied on the evidence of Dr Michael Heath, who had conducted a post-mortem examination during the afternoon of 1 March 2001 having earlier that day gone to the flat where the body had remained very largely as the paramedics had found it. The prosecution also relied on the evidence of Dr William Michael, a neurologist, who gave evidence on a subsidiary issue. The defence relied on the evidence of Dr Nathaniel Cary who had carried out a post-mortem examination on 14 March 2001. The defence also relied on the evidence of Professor Crane, the State Pathologist for Northern Ireland. 4. At the trial two possible causes of death were identified for the jury. Dr Heath stated that Miss Tindsley had been smothered whilst on her bed. The other possibility was by reason of an overdose of drugs perhaps coupled with a fit. That was advanced by Dr Crane and Professor Carey. They did not, however, rule out the possibility of smothering. But what they did say, and say most forcefully, was that there was no pathological evidence to support Dr Heath’s view. They have subsequently had the backing of five further pathologists who either gave evidence before us at the request of the appellant or who provided reports which were before us. That further evidence and the reports were accepted before us by the prosecution as credible. Those pathologists said that they would not have given suffocation as the cause of death. They strongly challenged a number of matters on which Dr Heath relied in order to reach his conclusion. The prosecution did not seek at the hearing of the appeal to rely on any further pathological evidence to support Dr Heath. 5. Before we can come to the grounds of appeal it is necessary to refer to the damage done to the infraspinatus muscles which was observed by Dr Heath and Dr Carey. This was described by Dr Heath as marked tearing with extensive haemorrhaging within the torn muscles. The infraspinatus muscle is a muscle about the size of an adult finger, which is part of the muscle system in the area of the shoulder. One of its purposes is, with other muscles, to retain the humerus in the shoulder socket. It also enables the arm to be turned outward. The damage to the muscles was symmetrical, that is to say, it was the same on each side of the body. Dr Heath’s view was that the damage to these muscles was caused by Miss Tindsley straining up as she resisted being smothered. Dr Carey’s view was that the damage was more likely to have occurred during a fit. The position of Dr Heath 6. Dr Heath is an accredited pathologist appointed to the Home Office Register of Forensic Pathologists on 24 April 1991. In June 2006 he will appear before the Home Office Policy Advisory Board of Forensic Pathology facing disciplinary charges relating to his conduct in both the present case and in another ( R v Fraser ). The complaints in those cases were made as long ago as July 2002 in respect of Fraser and in February 2003 in the present case. The complaints in the present case were made by Dr Carey, Professor Crane and Dr White. Dr Carey was also a complainant in the case of Fraser . The complaints have resulted in two charges. It was agreed that, if the Board were to find against Dr Heath in his handling of the present case and if we were to dismiss the appeal, then there would be a request for a review by the Criminal Cases Review Commission. Given the delay in both this case and in the hearing of the disciplinary charges, we took the view that we should proceed with the hearing of the appeal rather than awaiting the outcome of the disciplinary proceedings. The grounds of appeal 7. Six grounds of appeal in all have been advanced on behalf of the appellant. The first related to the Lucas direction given to the jury in respect of alleged lies told by the appellant. Leave was refused by the single judge. No renewed application was made before us, and we need say no more about it. The second ground related to the summing up to the jury of the issues which arose on the pathological evidence. Leave was also refused on this ground by the single judge. Although it was not formally renewed before us, it was a matter which caused us concern. The third ground related to an issue which arose late at the trial as to whether Dr Heath had dissected the shoulders and what he had said when he was recalled to deal with that. This had led to the instruction of Dr Hugh White, a pathologist agreed by the prosecution, to examine the body to see if the shoulders had been dissected. Leave was given on the dissection issue. It turned on the meaning of what Dr Heath had said when he was recalled. In the light of our other conclusions we did not find it necessary to consider this ground. 8. Dr White’s report, however, went far beyond the issue as to the dissection of the shoulders. For he was asked also to consider the conclusions of Dr Heath and Dr Carey, and to consider part of Dr Heath’s oral evidence. His view was that there was no pathological evidence to indicate suffocation, and he was very critical of Dr Heath. He was the first of the five further pathologists to whom we have referred. The reports of two (Professor Ferris, Professor Emeritus at Auckland, New Zealand and Professor Hougen, a Danish forensic pathologist) came about by reason of the complaint concerning Dr Heath’s conduct in connection with the present case made to the Policy Advisory Board for Forensic Pathology. Two further reports were prepared by Dr Anscombe and Professor Milroy. Both gave up their time to prepare their reports “pro bono”, so concerned were they also about Dr Heath’s conclusions. These further reports gave rise to grounds four and five. Leave was granted in respect of these grounds by the Full Court on 4 November 2004. Ground four was, in effect, that Dr Heath’s evidence could not be relied on. Closely combined with it was a second new ground (five) which related to the evidence about whether the infraspinatus muscles were actually torn. Leave was also granted in respect of that ground on 4 November 2000. In the context of the appeal that became very much a subsidiary issue. It was not pressed before us and we need say no more about it. 9. The second report prepared by Professor Ferris dated 20 January 2005 stated that on microscopic examination of slides of tissue taken from the infraspinatus muscle he had found that the haemorrhage in the muscle appeared to show early inflammation. If that was so, it followed that the damage was not simultaneous with the death. That would negative smothering as a cause. Professor Ferris’s view was supported by Professor Christopher Milroy among others. This provided a sixth ground of appeal, and we formally grant leave in respect of it. 10. On reading the papers in advance of the hearing we had a number of concerns about the trial, including in particular concerns relating to Dr Heath’s evidence. Counsel were informed that we wished to hear submissions as to whether Dr Heath’s conclusion as to the cause of death was properly reached and, in that sense, one that he was qualified to give. In the light of our concerns as to the safety of the conviction the appeal was conducted on a somewhat wider basis than the grounds of appeal themselves. Ground 6 – an interval between muscle damage and death 11. We take this first because it was a short and discrete issue, which led to it being conceded on behalf of the prosecution that the conviction was unsafe. The point is stated in paragraph 9 above. 12. In his evidence to us Professor Ferris said that he was cautious as to the time that must have elapsed between the injury and death: the view of many was that inflammation could be detected between 6 and 12 hours after injury but he and his colleagues accustomed to taking slides would identify it within two hours of the injury occurring. In the light of this fresh evidence Mr William Coker Q.C. conceded on behalf of the prosecution that the conviction could not be upheld. He accepted that the evidence satisfied the requirements of section 23 of the Criminal Appeal Act 1968 . Mr Coker was plainly right to make these concessions. If the injury might have been caused a period of hours before the death, it could not be relied on as an indication of smothering and the main, perhaps only, basis for Dr Heath’s view had gone. We should record that Dr White was less sure in his oral evidence as to inflammation, as was also the author of another report served on behalf of the prosecution. Given that the samples had only been taken at the second post-mortem (by Dr Carey), there was a risk that the results were affected by deterioration. The safety of the conviction – the evidence at the trial and the part of Dr Heath 13. We will first set out what the uncontradicted evidence called by the prosecution showed. 14. The appellant and Miss Tindsley shared a flat in Lowestoft. Although they did not share a bedroom they were dependent on each other. It was agreed by the parties that: “The relationship … was stormy. Both drank heavily. From time to time the defendant would hit the deceased. Sometimes her friends and members of her family saw bruises on her face and body. Twice she reported the violence to the police and as a result the defendant was convicted of common assault on 19/10/2000 and placed on probation and on 18/12/2001 was convicted of assault occasioning actual bodily harm and made subject to a community rehabilitation order.” We record that Miss Tindsley was 175 centimetres high and weighed 53 kilos. The appellant was about the same height and weighed 82.5 kilos. 15. Miss Tindsley abused both prescription drugs and alcohol. She was described as a binge drinker. Nonetheless her level of alcohol at her death was insignificant. She accumulated a large variety of tablets over the years: tranquillisers, sleeping pills, antidepressants, diuretics and other medicines. Her daughter said that she would take one or two extra tablets from time to time, that she would take sleeping tablets along with anti-depressants. She had seen her on several occasions when she was very sleepy with slurred speech. She had a history of over-doses. The post-mortem toxicological evidence showed that when she died she had ingested alcohol, amitriptyline, dothiepin, dihydrocodeine, codeine and probably diazepam. The level of alcohol in the blood was subclinincal. But the levels of dothiepin and amitriptyline were higher than would normally be expected for therapeutic concentration of both drugs. In particular the level of amitriptyline was approaching levels associated with fatalities due to amitriptyline poisoning. Likewise the levels of both opiates, codeine and dihydrocodeine are higher than would be expected for normal therapeutic values. 16. Nothing untoward or unusual happened on the day before Miss Tindsley was found dead on 28 February, nor in the days preceding that. On 28 February the appellant cashed his Giro cheque and drank, perhaps heavily, in the company of Miss Tindsley during the morning. They both returned home at about 4 pm, possibly earlier according to the appellant’s account to the police. On 1 March at 6.10 am a neighbour heard the appellant shout “Where is my fucking shoes?”. The neighbour said she could hear footsteps running backwards across the floor above her. 17. At 6.41 am the appellant made a 999 call. Having identified his address, he told the operator that his girlfriend was not well and had been sick. He said that there was blood around her mouth. He told the operator that he had been asleep all night. When asked whether she was conscious he said that she was cold. When asked whether she was breathing he said he would go and have a look. He was then heard to call out her name. He said that he had just been to wake her because he always does wake her and had seen the blood coming out of her face. He was asked where she was and the appellant said that she was lying on the bed and “she’s all curled up, I, I, can’t straighten her”. He confirmed that again to the ambulance operator. The operator then asked whether there was any chance that the appellant could get her onto the floor and he said that he said he would try that. He went away. Crying was then heard. He came back and said that he didn’t know what to do. The operator said: “Have you got her onto the floor?” To which he replied: “I have laid her on the bed as much as….. but I can’t lift her”. The paramedics arrived at 06.49am. They found evidence of rigor mortis. One paramedic recalled kicking or nudging with his foot the lens of some spectacles and then that he put the lens onto a cupboard. The paramedics did not disturb the body although they did put electrodes on the chest to check for signs of life. 18. The deceased was fully dressed and there was no sign of any damage to her clothes. She was lying on her back with both arms in an angled position to the right and left of the head. One knee was bent and the other was hanging off the bed. Underneath her was a duvet which had some blood on it in the area of her mouth. There was a second duvet which was partly over her. 19. The appellant told the officer that they had come home and that he was tired. He said that he had taken some sleeping tablets and gone to bed. He had left the deceased drinking coffee. He had woken up the following morning to find her with vomit on her sheets. He said that he could not move the deceased to the floor because she was stiff. He said that he had tried rousing her by slapping her face, something which is also recorded by the 999 operator. At about 9am he voluntarily went to the police station. Whilst he was being comforted, he told the police that when he had found her she was “curled up like a baby”. 20. When interviewed he handed in a prepared statement. In that he said that he and Jacqui had left at 1pm to go home. He said that he had gone to bed and slept and that Jacqui was still up. He said that he had woken up at about 9.30pm and gone to the toilet. He said that Jacqui was asleep, snoring with her bedroom door open. He had gone back to bed and woken again at 6.40am and he knew that because he checked his watch. He had gone into her room and found her crouched over with blood and vomit coming from her mouth. He then described, again, his attempts to move the body and how it was stiff and heavy. He denied any assault on Miss Tindsley. 21. As we have said, the appellant did not give evidence at the trial. The jury were directed that they were entitled to draw an adverse inference from that providing that the prosecution had shown a “very strong prosecution case for him to answer.” 22. By reason of post-mortem changes (hypostasis and blanching), Dr Heath was able to reconstruct the deceased’s position at the time of death. Subject to a minor disagreement, Dr Cary agreed with Dr Heath’s evidence on this. Dr Heath reconstructed what he thought her position was in the mortuary and then took photographs of that reconstruction. It was the position that she would have taken if she had knelt facing the bed head and had then leant forward bringing her chest and head towards the bed and her face onto the bed. Thus the knees were right under the body, the face was down on the table and the hands were close to and either side of the face. That position was conveniently called a “foetal” position. It reflects in broad outline the description given by the appellant during the 999 call and later. Dr Heath, in evidence, said that she would have voluntarily assumed that position, a position which he described as “defensive”. It was the prosecution’s theory that something done by the appellant had made her adopt that defensive position. 23. Dr Heath also told the jury how in his opinion the attacker (who, as we have said, can only have been the appellant) had smothered her. According to Dr Heath he had lain on top of her in this foetal position and his weight had pressed her face into the bed. She had then tried to push up in order to be able to breath and in so doing had torn the two infraspinatus muscles. He did not and could not suggest that the attacker had taken a hold of her, or had used his knee, for example, to hold her down. There was a complete absence of any bruises, pressure marks or contact points on her back, arms, wrists and on the back of her legs. We confess to a certain surprise that the deceased could have been suffocated in this way, but that was the evidence which Dr Heath gave. 24. We turn now to his post-mortem conducted during the afternoon of 1 March. He concluded there and then, without having had access to the report of the forensic toxicologist and without any reference to GP or other medical records, that death was due to asphyxia due to upper airway obstruction. In Suratan [2004] EWCA Crim 1246 , paragraph 38, this court stressed the need in certain cases to refer to ante-mortem records. He said that the upper airway obstruction was caused by the mouth and nose having been forced into a yielding surface such as the bedding material. He went on to say that “the tearing and haemorrhaging within the muscles of the scapulae were consistent with having been caused during forceful movement of the upper limbs during the upper airway obstruction.” This was a reference to the damage to the infraspinatus muscles. As Dr Heath was to say in evidence, she had tried to push up and in so doing had suffered the muscle injuries. Dr Heath averted to no other possible cause. He gave no reasons for reaching the conclusion that he did. 25. During the post-mortem, he found no identifiable external injuries. He recorded that he found no pathological evidence of defence wounds, restraint wounds, scuffle injuries, offensive injuries or of sexual interference. He found blood in the mouth and in the aspect of the right hand. The eyes were congested. There was no pathological injury to the inner aspect of the mouth. He found what he described as a 1.3cm compression mark to the right side of the lower jaw. He found coarse petechial haemorrhages over the front of the neck, upper aspect of the front of the chest and right flank of the chest. Miss Tindsley had long fingernails which were undamaged. She was also wearing a substantial quantity of jewellery. 26. On the internal examination he found that the leptomeninges were congested. The tongue showed no evidence of bruising or bite marks. The lungs were congested. The blood was liquid. Her kidneys were also found to be congested. He dissected the scalp and found fine petechial haemorrhages over the scalp. The section of the face showed no significant abnormality, likewise the forearms, wrists and hands. 27. We have already set out his finding of damage to the infraspinatus muscles. 28. Dr Heath found three small bruises in the area of the right shin, the left tibial tuberosity and the outer aspect of the left ankle. These were only observable on dissection. 29. Dr Heath did not refer in his report to any information which he had received about the deceased and the appellant. Nonetheless it is clear that he had received some information. 30. Although Dr Heath made a manuscript report in the terms to which we have referred on March 1, he did not make a typed report until two weeks later after he had received the statement of the forensic toxicologist, Dr Williams. In the typed report he referred to having reviewed Dr Williams’ statement but he made no mention of its contents nor to how it might or could effect his conclusion. Professor Crane wrote in his report that he was “particularly concerned that in reaching his conclusions he [Dr Heath] has not alluded to the significance of the toxological findings”. 31. Dr Heath has also been criticised for his failure to refer to the absence of findings which would have provided support for his theory, even though their absence is not conclusive against it. They include petechiae in the face, eyelids, whites of the eyes and mouth, fibres in mouth, injury to mouth or tongue and bruises or contact/pressure marks on the back and arms. It is said that Dr Heath should, have set out the reasons which could tend to show that his theory was wrong. That would not have prevented him from giving reasons (as he was to do in part later) why the absence of these findings was not inconsistent with his theory. He should also have drawn the attention to the significance of the absence of any pathological indication that there had been a violent struggle other than the damage to the muscles. 32. We agree with these criticisms. In our view this unusual case called for a properly reasoned post-mortem report from Dr Heath. A post-mortem report fulfils a number of functions. It guides the police in their investigations. It is likely that it will be considered in pre-trial proceedings and applications such as an application for bail or legal assistance. It is the basis of the expert’s evidence at trial. As such the opinion of the pathologist must, as the Practice Guidelines of the Policy Advisory Board for Forensic Pathology make clear, be “objectively reached” and have “scientific validity”. The duty of all pathologists, whoever instructs them, is, in our view, to comply with the obligations imposed on expert witnesses from the start. It is wholly wrong for a pathologist carrying out the first post-mortem at the request of the police or Coroner merely to leave it to the defence to instruct a pathologist to prepare a report setting out contrary arguments. The case law as to the duties and responsibilities of experts is clear. As Cresswell J said in a much cited passage in National Justice Compania Naviera SA v. Prudential Assurance Co Ltd (The “Ikarian Reefer”) [1993] 2 Lloyd’s Rep. 68: “3. An expert witness should state the facts or assumption on which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.” 33. Criticism is also made of Dr Heath’s failure to take samples for microscopic histological examination. We note the reference in the Practice Guidelines to the need for samples and we have noted in paragraph 12 the problems caused in this case by the failure to take such samples at the first post-mortem. One witness before us doubted whether that criticism is well-founded. In the light of that, it would be wrong for us to reach any conclusion on this point. It is not necessary to do so for the purposes of the appeal. 34. On 14 March Dr Cary conducted a second post-mortem and that was followed by the preparation of a report. He confirmed most of the factual findings of Dr Heath. He confirmed that there was bleeding relating to muscle fibres of both shoulder blade regions. He concluded: “There is no pathological evidence, or any other evidence to suggest death was due to asphyxia due to upper airway obstruction.” As to the coarse haemorrhages he said that they were a feature of hypostasis rather than an indication of asphyxia. He said that there was no evidence of injuries around the face and nose to suggest that there had been any forced upper airway obstruction. In his view: “Therefore there is no basis whatsoever for Dr Heath to conclude that the mouth and nose have been forced into a yielding surface such as, the bedding material.” He wrote: “The only abnormality present is extensive tearing and haemorrhaging in the muscles in the region of both shoulder blades. Dr Heath’s view that this has been caused by forceful movement of the upper limbs during airway obstruction borderlines on the fanciful. In my opinion the muscle tearing seen has most likely originated from a terminal epileptiform seizure where tearing of the muscles of this kind is not uncommon.” He went on to say that the toxilogical report of Dr Williams provides clear evidence of a mixed drug substance overdose and: “In my opinion the only reasonable conclusion to come to in relation of the cause of death is mixed drug substance overdose.” 35. Dr Carey said that it was recognised that the two anti-depressants which had been consumed, namely amitriptyline and dothiepin, may cause epileptiform seizures in overdose. In his opinion that was the most likely explanation for the tearing of the shoulder blade muscles. He said that in his opinion there was quite sufficient evidence of a mixed drug substance overdose contained within the report of Dr Williams in relation to one drug alone, let alone in relation to a combination. He noted that Dr Williams concluded that the level was approaching levels associated with fatality due to poisoning. 36. In paragraph 8 of his report Dr Cary said that there was no evidence whatsoever for third party involvement. Mr Coker was critical of this paragraph during the course of the hearing before us. He was seeking to meet arguments critical of the manner in which Dr Heath had conducted the post-mortem by showing that Dr Cary was not above criticism either. Mr Coker submitted that Dr Cary could not say this without considering the evidence of the relationship or of the surrounding circumstances of the relationship and what had happened on the day before and on the morning of the death. It seems clear to us that Dr Cary was referring to pathological evidence. 37. The judge made the criticism of Dr Cary that he had blown a little hot and cold about the extent of the injuries to the infraspinatus muscles. What appears to have happened is that Dr Cary became so concerned about the conclusions reached by Dr Heath that it made him doubt the other conclusions which he had accented in his first report. We add that neither of the two experts had met together. It may be that as a result of their encounter at the Fraser trial four months before there was bad feeling between them. If so, that did not help the proper presentation of the issues to the jury. What is now clear is that there was some damage to the two muscles and that that damage occurred before death. 38. Having reviewed Dr Cary’s report Dr Heath made a further report dated 24 July 2002. Dr Heath wrote as follows : “1.2.1 …. When taking into consideration the following observations made at the scene of death and at the post-mortem examination, it is my opinion that the death of Jacqueline Tindsley was not due to mixed substance abuse but an upper airway obstruction. All the following observations had to be accounted for in order for the full assessment to be made. Scene findings : The extensive blood staining over the duvet. The position of Jaqueline Tindsley’s body after her death. The broken glasses where the lens had become dislodged. Post-mortem findings Fine petechial haemorrhages over the front of the scalp. The marked tearing of the infraspinal muscles associated with the extent of haemorrhages. The liquid blood. The bruises over the front of the shins and left ankle. 1.2.2 The above observations do not reflect a death due to mixed substance abuse. 1.3 …. an epileptiform seizure would not account for the degree and symmetry of the infraspinal damage or the final posture obtained by Jacqueline Tindsley. “ He stated that the posture at death and the amount of blood staining was not accounted for by drugs overdose or epileptiform seizure. He said that he would not expect soft tissue damage to the face or nose to be caused by being pressed into bedding material. 39. In a third statement dated 11 November 2002 (the day before the trial began) Dr Heath stated that the petechial haemorrhages found by him on dissection of the scalp were caused in about 20 seconds during the asphyxia stage and he explained why one found that kind of haemorrhage. He said severe force was required to tear the infraspinatus muscles. He said that “moderate to severe force” would have been required to restrain Miss Tindsley. He then referred to a new further support for his view - namely the pressure mark on the chin. That, he wrote, was caused by the position of jewellery on the finger during the restraining process. He stressed that the blood on the “hands” (in fact it was only one hand) and on the sleeves of the jumper and on the duvet indicated that the vessels in the nose had ruptured during, as he was to make clear later, the restraining process: during that process blood had been expelled from the nose, which Dr Heath wrote, was not an uncommon finding in asphyxial cases. 40. There was a fourth statement dated 13 November 2002 which related to slides which Dr Cary had taken and which had unfortunately only been produced at a late stage. Dr Heath said that both the appearance of the lungs and “the post-mortem finding” negatived death from asthma; the oedema and the intra-alveolar haemorrhage within the lungs were consistent with having been caused during an asphyxial process; a heart rhythm disturbance would not cause the changes he had observed. 41. We turn now to the evidence given by Dr Heath during the course of the trial. Before looking at the detail we set out our strong criticism of the way in which his evidence was given. We shall see that over and over again Dr Heath said that various post-mortem findings were consistent with, or were signs of, asphyxia. He was cross-examined about his evidence, often vehemently. That challenge continued before us. What unfortunately was not made clear during most of his evidence was whether Dr Heath was referring to asphyxia generally or asphyxia by upper airway obstruction. We return to that later. What gives us even greater concern is a concession which was made by Dr Heath in re-examination (although the answer was anticipated in cross-examination). In re-examination he said that the findings which he described as consistent with, or signs of, asphyxia (other than the muscle damage) were also consistent with the cause of death being an overdose (Transcript 14 November 2002, pages 84-85). In the light of that answer, the evidence about his findings, excluding the evidence of damage to the muscles, was, in our view, largely irrelevant. It could have been relevant to a rigor mortis theory of the cause of the injuries to the muscles advanced tentatively by Dr Carey, but no more. If before the start of the evidence, Mr Coker had known the answer which Dr Heath was to give during the course of re-examination, a great deal of time would have been saved and the risk of jury confusion would have been substantially reduced. This is another very troubling feature of this case. 42. Mr Coker submitted that an expert is entitled to say what he has found is consistent with something and that has probative value. Whereas “inconsistency” is often probative, the fact of consistency is quite often of no probative value at all. In this case his evidence of consistency had no probative value, assuming the correctness of this answer in re-examination. We consider that there is a very real danger in adducing before a jury dealing with a case such as the present evidence of matters which are “consistent” with a conclusion, at least unless it is to be made very clear to them that such matters do not help them to reach the conclusion. If it is introduced in evidence, and particularly if it is given some emphasis, a jury may well think that it assists them in reaching a conclusion : for why otherwise are they being told about it? We are also not convinced that the summing-up was as clear as it could have been on this point (see pages 29-30). 43. We shall next look at Dr Heath’s evidence topic by topic in the order in which they arose in his evidence. The first relates to the staining of Miss Tindsley’s knickers with urine. Dr Heath had made no point about that in his earlier reports. He said in evidence that he noted that the crotch region of the knickers was urine stained. He was asked whether that, in itself, was unusual when finding a dead body. He replied (Transcript 13 November, page 9): “Surprisingly enough you do not see people who are dying who are incontinent of urine and faeces as often as one might imagine. So it is an observation and we see it quite a lot in a sort of criminal setting.” That comment inevitably led to cross-examination (Transcript 14 November, page 35). His answer was put to him and it was suggested that one sees this feature in a lot of settings. He repeated what he normally observed saying that very few people are incontinent during the dying process. He continued: “But in the criminal setting I think I see it more often where there has been some sort of fear process going on and I am not in any way going to say that this indicates that there is a fear process present but that is the answer that I would give. I do not see why it happens but people who have been stabbed or people who have died in traumatic environments, they seem to void their urine more often. But that is just my observation. I am not saying that it is significant. It is [?not] 100% or anything like …..” It was then pointed out to him that the deceased was taking diuretics and he then went on to say: “I am not making any conclusions [from] the fact that her knickers were wet at all.” A few answers later he said that he was not aware of all the details of what she was taking. 44. Mr Coker rightly does not seek to defend what Dr Heath said. In our view it was improper for him to refer to finding urine in a criminal setting. The evidence of a pathologist can always be traumatic for a jury and in our view there was a risk here of the jury attaching significance to something which in cross-examination Dr Heath accepted had no significance. The comment should never have been made. 45. Dr Heath was asked about the pressure mark on the side of the lower jaw. He said that possibly one of the rings had caused that mark on the chin whilst she had been lying face down. In the light of the alternative scenario being advanced by the defence pathologists and in view of the fact that it could simply have been caused by the weight of her head resting on her hand or arm before or after death, we see no probative value in the finding of the mark . 46. A little later, Dr Heath raised a new point. It was new in the sense that it had not been referred to in the previous statements. He said that he had found a number of the internal organs to be congested (Transcript 13 November, page 17) and that is one of the signs of death by an asphyxia. He accepted that the same feature could be found when other causes of death were involved such as cardiac failure. He was then asked whether it was conclusive or just a sign and he said: “Oh no if you just saw that alone you could not make a particular diagnosis of a particular cause of death.” He accepted in cross-examination that he had never mentioned this in the reports. He said that he had been writing reports concerning death by asphyxia for 25 years and had never once indicated, in his conclusions or summary, the changes of asphyxia unless specifically asked to do so (Transcript 14 November, page 63). He was asked whether this was one of the changes of asphyxia that was so obvious that it did not really need to be put it into a report. He agreed and went on: “All the text books describe asphyxia and the cardinal signs of it, thus implying that this was a cardinal sign of asphyxia.” In cross-examination he was asked whether the fact that the eyes were congested should be taken into account. He replied: “I personally think that that is important but I would not because she has been laying face down indicating that it is a diagnostic feature. Although I personally think that it is important. I would not use that to advance my argument.” This is not an easy answer to follow and, at least with the benefit of hindsight, it would have been better if Dr Heath had simply said that the congestion in the eyes was of no relevance to the issue of the cause of death (if that is what he thought). 47. As to the other findings of congestion, he was asked whether these were found in cases where there has been an asphyxial death. He said that they were and when asked whether they are found in cases where there has been a death by a different cause, he said that they can be. Once again the heart attack example was given to him. Again it is unfortunate that it was not made clear at this stage (as it was going to be made clear later), that this finding was of no probative value in the light of the fact that it could be found in the cause of death for which the defence pathologists were contending, namely an overdose accompanied by fitting. 48. We insert at this point our concern at the use of the word “asphyxia”. Its medical meaning is very broad. Black’s Medical Dictionary: “Asphyxia means literally absence of pulse, but it is the name given to the whole series of symptoms which follow stoppage of breathing and the heart’s action.” But in common usage it indicates the deprivation of oxygen to the lungs by external means such as smothering, exhaust gasses in a car, and so on. It is important that a medical witness makes clear the sense in which he is using the word. Thus in his evidence to us Dr Anscombe referred to “asphyxia by airway obstruction”. Dr Anscombe also agreed that in a death by reason of a drug over-dose it is almost inevitable that there will be an asphyxial element as the body receives less and less oxygen. In this part of his evidence and elsewhere Dr Heath seems to have been using the word “asphyxia” to refer to death by smothering. 49. In examination in chief Dr Heath said that the finding of blood in the lungs and the oedema, which he described as water logging, “strongly indicates that this is another sign of asphyxia”, adding that you can also get this in other conditions. He went on to say that: “To get haemorrhaging in the lungs that is normally associated with the asphyxial process.” (Transcript 13 November, page 22) He said to Mr Coker that one could get this in other sorts of deaths and that it was not a conclusive sign. 50. Referring to his finding that the blood was “liquid” he explained the mechanics and went on to say that it was not a conclusive sign of asphyxia but was another sign. He was referred to a standard text book in which the following appears: “Descriptions of an abnormal fluidity of the blood seen at autopsy in asphyxia deaths are part of the forensic mythology and can be dismissed with little discussion…it is irrelevant in the diagnosis of asphyxia.” Dr Heath then made reference to the Dover tragedy in which 58 Chinese illegal immigrants died in a container and said that fluid blood was present in their bodies. Later in re-examination (Transcript 14 November, page 83) he was asked what else could have caused the finding of liquid blood and replied: “That has to be some asphyxial process.” 51. He referred to the petechial haemorrhages which he said that he had found within the scalp itself. In relation to those he said (Transcript 13 November, page 29): “They are in my opinion important observations and they indicate again some of the observations you get in an asphyxial process, the development of the petechial haemorrhages. You get a number of processes in asphyxia, petechial haemorrhage formation; you get congestion of organs, oedema in the lungs, the fluidity of blood and also separately described congestion on the external surface of the body.” Petechial haemorrhages, he said, were caused by the rupturing of the blood vessels. He explained the mechanics and on a number of occasions he repeated that one must look at the totality of findings. As to the petechial haemorrhages in the skull he refused to accept that they were connected with his reflection (peeling back) of the scalp. He said there were haemorrhages within the softest tissue in the scalp as opposed to torn end vessels and he supported that with photographs (Transcript 14 November, page 50). Dr Heath’s ability to distinguish between haemorrhages caused by his reflection of the scalp and genuine petechial haemorrhages is another matter of challenge: but it is not something on which we are able to form any view. 52. Dr Heath dealt with the issue of the bruises on the shin which he had said in his second report was one of the observations leading to his conclusion that death was due to upper airway obstruction. When asked when the bruises could have occurred he said it could have been around the time of death or it could have been a number of hours beforehand, maybe four or six hours. When asked whether or not the bruising had anything to do with her death he replied: “I could not make that association”. This conclusion was quite at odds with the conclusion he reached in his second report. The inclusion of the bruises there and their rejection in the course of his evidence cast doubt on the professionalism of Dr Heath. 53. In evidence he returned to the issue of the blood which had featured in his third report. He was asked about the findings of blood on the duvet. He said he found no damage or injury to the nose that might have caused the nose bleed and went on to say this (Transcript 13 November, page 49): “It is quite common, that may not be a fair description, but on occasions during the asphyxial process, because of the build up of blood pressure and the loss of the integrity of the blood vessels where they become more permeable, you get the petechial haemorrhages, that I described, present in the nose and the mucus membrane of the nose and these rupture. On occasion these can rupture in such a way it can aerosol blood and it would aerosol to the distance of the gentleman in the chair in front of me so that she [sic] shoots quite a long way away from the body. If you are on bedding that would pass into the material that is closest to the face which, in my opinion, is the way it has got there. So we have a build up of pressure, rupture of these haemorrhages and again exuding blood and again a finding within asphyxial cases.” It was put to him that the purging of blood from a person who dies in a face down position is common. He said that it was not. 54. He was asked about the petechial haemorrhaging which he had found on the front of the neck and which he had described as “coarse”. It was put to him that that had nothing to do with asphyxia or nothing specific to do with asphyxia. He replied that he strongly suspected that “you get these changes because of the build up of carbon dioxide”. He said: “We see that in a lot of cases”. It was then put to him that these findings could only really be related to her posture after death. To which he replied: “Yes, I have done nothing more than … I have not used that as a criteria for the asphyxia process in this case.” Again Dr Heath was saying something was relevant and then discarding it after a further question. 55. He was asked about the absence of petechial haemorrhages over the face and in the eyes. He said: “Particularly in cases of suffocation, you tend to get very few petechial haemorrhages and in some cases you get none whatsoever.” 56. He was asked, in cross examination, to assume that there had been no tearing of the muscles in the shoulder area then asked whether this would still be “death by asphyxia in this way”. He replied (Transcript 14 November, page 50): “I would certainly have said it was death by asphyxia.” There was then the following exchange : “Q. You might be concluding there postural asphyxia or any of these other forms which do not involve somebody deliberately restraining somebody in that way? The whole thing is founded on that, is it not? A. I think that is an important finding, yes, and I have indicated that all the time. You might well be right on that assessment you have given.” We already remarked on the ambiguity which can arise as to “asphyxia”. This important passage left it unclear to the jury whether Dr Heath was saying that without the damage to the infra spinatus muscles he would still have said that this was a death by asphyxia through upper airway obstruction. 57. There was a real risk that the jury would have understood the evidence being given by Dr Heath as evidence consistent with asphyxia by upper airway obstruction. It is unfortunate that all those involved in this case did not find out whether Dr Heath was referring only to asphyxia in general rather than to asphyxia by upper airway obstruction. If that had been done then much of his lengthy examination-in-chief and cross-examination about the signs of asphyxia would have been unnecessary given the answer during re-examination that the signs were consistent with any death by asphyxia, including death by overdose. 58. We have noted Dr Heath’s reliance in his second report on the broken glasses. When asked about this, he said in cross-examination: “I would certainly not put it at the highest level”. We find it difficult to see how any relevance could be attached to the fact that the glasses were broken given the competing possible causes of death. 59. Dr Heath repeated in his evidence what he said in his second report, namely that the foetal position adopted by the deceased was incompatible with fitting/overdose (see e.g. Transcript 13 November, page 50). Dr White in his evidence before us made what seemed to be a telling comment on this evidence. He said that experience shows that if a body is found in a funny position, a pathologist immediately thinks of a drugs overdose. We cannot resolve this issue. It is sufficient to say that it seems uncertain whether Dr Heath’s reliance on the posture of the deceased at death had any scientific basis. 60. Dr Heath also said in evidence, as he had said in his second report, that the bilateral nature of the damage was inconsistent with fitting (Transcript 13 November, page 45). He accepted that there could be muscle damage during a fit (Transcript 13 November, pages 45-46) but not of this bilateral nature. This was also disputed by the defence pathologists. Professor Crane, for example, did not follow how the damage to the muscles could have been caused in the way for which Dr Heath was contending (see Transcript 20 November, page 118) and gave his opinion that the damage could have occurred in a fit (page 122). Like Dr Cary he doubted how much reliance could be placed on the evidence of Dr Michael that, as a neurologist, he had never come across this kind of damage. Professor Crane pointed out the obvious - namely how would Dr Michael know whether a live patient had suffered muscle damage of the kind found by Dr Heath (page 134). 61. By reason of his opinion on the posture and on the inconsistency of the muscle damage with fitting, Dr Heath eliminated the possibility of death by drug overdose combined with fitting. Whereas Professor Crane, for example, did not exclude the possibility that Dr Heath was right as to the cause of death, Dr Heath excluded the possibility that the defence pathologists were right. 62. In his second report dated 12 November 2002 Professor Crane wrote: i) Extensive blood staining on the duvet has no significance in assisting in the determination of the cause of death in this case. It is indicative of the deceased having been lying in a face-down position on the bed for a period of time after death. In such a position it is quite common for blood and bloodstained fluid to leak or purge from the mouth and nose and thus stain the bedding beneath. In referring to this in his statement of 11 November 2002, he comments ‘that vessels in the nose had ruptured and blood had been expelled from the nose. This is not an uncommon finding in asphyxial cases’. I agree with this but equally the leakage of blood from the mouth and nose is not uncommon in a variety of types of death including natural and drug over dosage, where the deceased had been lying face-downwards after death for a period of time. ii) The position of the body after death does not assist in the ascertainment of the cause of death. It is clear that the deceased must have been in a face-down position on the bed, possibly crouching in a foetal position, and that subsequently she was turned over onto her back. The position of her arms and hands in the photographs, if fixed by rigor mortis in a flexed (elbows bent) attitude, would suggest that she had been lying in a crouched face down position for some hours after death. iii) It is no more than speculation to comment on how the glasses of the deceased became broken and the lens dislodged. iv) The ‘fine petechial haemorrhages’ on the under surface of the scalp are of no significance whatsoever. They are usually caused artefactually by peeling back the scalp from the pericranium of the skull at autopsy causing tearing of small blood vessels. They do not represent an indicator of asphyxia. Furthermore, in the face-down position, congestive haemorrhages, such as those seen on the skin, would be likely to occur in the post-mortem interval due to the position and posture of the deceased. v) The tearing and associated haemorrhage in the infraspinatus muscles was, according to Dr Heath ‘consistent with having been caused by forceful movements of the upper limbs during the upper airway obstruction’. This, in my view, is a speculative, if not fanciful, opinion. There was no evidence of bruising of the skin of the upper arms, such as might have been expected if they had been forcibly grasped in an attempt to restrain the deceased. Furthermore, there was no skin or subcutaneous bruising on the back, over or between the shoulders, which might also have been expected if the deceased had been forcibly held down. In his statement of 11 November 2002, Dr Heath opines that ‘moderate to severe force would have been required to restrain Jacqueline Tindsley’ yet in his original report he comments on the lack of restraint injuries or more specifically restraint ‘wounds’. vi) If a body is moved after death and after rigor mortis has become established, then the repositioning of the body may result in tearing of the muscles. In fact this is the only way that rigor can be broken, e.g. to extend an arm bent at the elbow. A consequence of this muscle damage would inevitably be that there would be some leakage of blood into the muscles. This bleeding would be exaggerated if the affected area is a dependant part of the body and affected by gravity, e.g. the back. vii) Having dealt with a number of cases of suffocation due to upper airway obstruction I have never come across a case where tearing and bleeding into the muscles of the back had occurred. viii) The fluidity of the blood is not an indicator of asphyxia. There is absolutely no scientific basis on which this can be asserted. It is a matter of concern that an experienced forensic pathologist would rely on such a finding, even to a limited extent, when it has been completely discredited and dismissed for many years. ix) The bruises on the shins and left ankle are trivial and non-specific. They could have occurred as a result of minor knocks, bumps or falls. 63. This long review of the development and bases of Dr Heath’s views and evidence in our view establishes first that his conclusions were not founded in such a way that they could be safely relied on by the jury. Secondly, we consider that the way his evidence was presented and the points which he made and the manner of making them may well have caused the jury to have given inappropriate weight to aspects of his evidence. We refer to the “consistent” signs and to the matters which he raised and abandoned – the urine stain, the bruises, the glasses. Together these provide a second ground for concluding that the verdict of the jury is unsafe and cannot stand. The summing-up 64. We turn to the summing-up. Mr Coker before us conceded, rightly in our view, that (in the particular facts of this case) in the light of the dispute between the experts, the jury could not properly convict in reliance on the evidence of Dr Heath alone. That is because they were faced with a conflict between the experts which, in the absence of other evidence, they could not resolve. In the absence of supporting evidence, Mr Coker accepted, the appellant should have been acquitted. Unfortunately, that was not how the judge left the issue to the jury. Alternatively if he meant to leave it in that way, the passage is not sufficiently clear. The judge said: “The prosecution case is that on the evidence that you have heard you can be sure that smothering, suffocation, was the cause of death. The defence put forward as alternative propositions mixed drug toxicity and epileptiform seizure or damage in breaking the rigor mortis. If, members of the jury, having considered all the evidence and how it fits together you were to conclude that either or both of those alternatives was a possibility on the evidence, so it is leaving it purely on the expert level then the prosecution could only displace that by making you sure that suffocation is indeed smothering, is indeed the answer. Dr Heath remains of the view that this particular muscle damage that he saw that did not involve dislocation can only be explained by, in effect, the desperate efforts of Jacqui Tindsley to escape the effects of the restraint upon her. The defence put forward the other explanation as to which I have referred. If you conclude, members of the jury, that you could not be sure that the bilateral muscle damage could only be explained in the way in which Dr Heath has sought to explain it, then it would follow that on the pathological evidence suffocation becomes no more than something that may be more or less likely according to your findings, but in effect in the words of Professor Crane, something that cannot be ruled out, as Professor Crane certainly does not, unlike, perhaps, Dr Cary, rule it out as the cause of death in this case. Unless, members of the jury, there is in the rest of the evidence, the non-expert evidence, that which makes you sure that death by smothering is not merely something that might be or could be so, but something that actually is so, so that you can be sure about it. It is for you to put the evidence together and see how it fits and where it takes you, what it makes you sure about, what it leaves you in doubt about.” [We have removed one paragraph break before the word “Unless” to reflect what we believe the judge was saying.] That passage combined with Mr Coker’s concession would provide a third ground sufficient to dispose of the appeal in favour of the appellant. 65. Mr Coker did, however, submit that there was such supporting evidence. He pointed to the events of the day before, which do not suggest that there was anything wrong with the deceased. He pointed to the fact that she died fully clothed and had not done the neighbour’s washing as she had said she would do. This might be a good point but for the deceased’s life style. Given his drinking habits and the fact that money was available for drinking, the appellant would not have gone to bed, so Mr Coker argued, when he says he did. He pointed to the failure of the appellant in interview or in evidence to give a coherent and detailed account of what had happened during the fateful evening and night. He must, Mr Coker said, have known more than he was saying. There is no explanation for the leg injuries, he submitted. However, given the deceased’s life style, we see no evidential significance in that as far as the appellant is concerned. He also makes a point about the evidence from the neighbour about 6.10 am, a point about the size of the flat and a further point, which we found difficult to follow, about the moving of the body by the appellant. He said there was no history of fitting, a point which we reject in the light of the evidence of the defence pathologists as to the cause of death. Whilst accepting that the appellant is much to blame for not co-operating with the police during the investigation stage and by failing to give evidence, we do not accept Mr Coker’s argument. Without any clear evidence as to when death occurred, the jury could not, in our view, be sure that death did not occur whilst the appellant was asleep. In short, the other evidence was not such as would enable the jury to be sure that Dr Heath’s view was correct : compare Kai-Whitewind [2005] 2 Cr. App. R.31. Outcome 66. In conclusion, this is a case in which the evidence at trial, the manner in which the trial proceeded and the fresh evidence which we have received leave us wholly satisfied that the conviction must be regarded as unsafe. As we announced at the conclusion of the hearing, the appeal is therefore allowed and the conviction quashed. 67. It would be wrong to leave this appeal without commenting on the length of time, nearly three years, which has passed between the conviction and the hearing of the appeal. An outline of the history is as follows. The appellant was convicted on 22 November 2002, the trial having commenced within the comparatively short time of 8 months from the death. The original grounds of appeal were dated 5 February 2003, and comprised the first three grounds we have referred to. The third ground was supported by the report of Dr White, dated 4 February 2003. The application for leave was considered by the single judge in March 2003 and leave was granted in respect of the third ground only. Further reports were prepared as follows: Dr Anscombe, dated 17 March 2003, Professor Hougen, dated 10 August 2003, Professor Milroy, dated 12 August 2003 and Professor Ferris, dated 23 September 2003. They were served on 26 September 2003. Further material became available on 11 December 2003 and there was a further hearing on 18 December. There was next a directions hearing before the court on 11 February 2004. Following this amended grounds of appeal were prepared dated 9 March 2004 which added grounds four and five. The prosecution prepared a substantial written argument in answer which was dated 1 April 2004. The appeal was again listed for directions on 27 May 2004 but was taken out of the list because not enough time had been allowed. It was re-listed for directions on 4 November 2004 and came before a court presided over by Potter LJ who in a short judgment analysed the issues. Directions were given, and leave was granted in respect of grounds four and five. There was to be a report on progress to the Registrar by 10 February 2005 and the appeal was then to be set down for hearing with an estimate of 2 days. The appeal was listed to be heard on 14 July 2005. Shortly before the hearing Mr Katz had a consultation with Professors Ferris and Milroy and Doctors White and Anscombe. The point as to the interval between the damage to the infraspinatus muscle and death, and its significance was discussed. This led to the raising of the sixth ground of appeal, and in consequence to the abandoning of the hearing of the appeal on 14 July, when instead further directions were given. It was then heard before us on 9 and 10 November. 68. This history shows how the appeal has taken so long to be heard. There is some explanation for each delay. It has to be borne in mind that the appeal turned on expert evidence and involved substantial new evidence. Further some of the medical issues were complex. The case contrasts very strongly with Yethinseherci v United Kingdom , European Court of Human Rights, 20 October 2005, The Times, 14 November 2005. There was a 3 year delay in hearing a simple appeal against sentence. In that case there was no explanation – at least none which the European Court found acceptable, and a breach of Article 6.1 of the Convention was held to have been established. The present case is very different. Nonetheless, if one stands back and considers the three year period by itself, it is most regrettable that the appeal took so long to be heard.

2005_11_24-646.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/3001/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/3001

16067aa8b2600ecf0831b900b0fe310f3b2b1899507208ddfa0371c70840e8e0

[2009] EWCA Crim 1249

EWCA_Crim_1249

2009-05-18

crown_court

Case no: 201000540 B5 Neutral Citation Number: [2009] EWCA Crim 1249 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 18 May 2009 B e f o r e : LORD JUSTICE TOULSON MR JUSTICE BEATSON MRS JUSTICE SWIFT - - - - - - - - - - - - - - R E G I N A v L - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2AY Tel No: 020 7404 1400 Fax

Case no: 201000540 B5 Neutral Citation Number: [2009] EWCA Crim 1249 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 18 May 2009 B e f o r e : LORD JUSTICE TOULSON MR JUSTICE BEATSON MRS JUSTICE SWIFT - - - - - - - - - - - - - - R E G I N A v L - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2AY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - Mr TZ Khan appeared on behalf of the Applicant Mr G Gray QC and Mr MT Khan appeared on behalf of the Crown - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE TOULSON: A motorist drives carelessly and crashes his car. Nobody else is involved in the incident, but the car is undriveable and partially obstructs the highway. After an interval another motorist suffers a fatal accident while swerving around the crashed vehicle. Is the first motorist guilty of the offence of causing the death of the second motorist by careless driving, and what are the criteria for determining the answer? There are some significant factual details to be added, but that, in essence, is the conundrum at the heart of the present case. It comes before the court on an application by the prosecution for leave to appeal against the trial judge's decision to uphold a submission by the defence of no case to answer. 2. The accident occurred in the early hours of 5 October 2008. The respondent, a man in his mid 20s, was driving his father's Vauxhall Astra along the A642 from Wakefield towards Huddersfield. The road had a 40 mph speed limit. He was driving at an average speed of 43 to 47 mph. It was raining hard. 3. As he went around a left-hand curve he lost control and his vehicle collided head on with a traffic island in the middle of the road. The island was there because at that point there was a turning into the forecourt of a garage. On either side of the traffic island the centre of the road had crossed hatchings. On the island were two bollards and between them a beacon with a light on top. 4. The respondent demolished the beacons and broke the pole with the beacon, leaving the stump of the pole protruding from the traffic island. The Vauxhall Astra continued across the other side of the road, and embedded itself in a stone wall on the Wakefield bound side of the road. The front of the vehicle was protruding 1.25 metres into the carriageway, facing in the direction of Wakefield. The collision caused severe damage to the front of the vehicle. The front lights were inoperable, but the rear lights and rear number plate remained illuminated for a time. 5. According to CCTV footage, three minutes after the crash two vehicles approached in the Wakefield bound lane, slowed down, passed the crashed Vauxhall Astra, and then moved across the carriageway to pass the traffic island on the wrong side of the road. At that stage the rear lights of the Vauxhall Astra were still lit. About six minutes after the crash the deceased, Mr Deo, approached in the Wakefield bound lane driving a Skoda taxi with two passengers. By this time the lights on the crashed vehicle were off. Mr Deo was travelling at 40 to 43 mph and the passengers, both of whom were called as witnesses, expressed no concern as to his speed or manner of driving. 6. As he swerved to avoid the crashed car he drove on to the central hatch markings, hit the now unlit traffic island, making contact with the stump of the pole, and at that point tragically the taxi rolled over twice and came to rest on its roof. Mr Deo was not wearing a seat belt (the law did not require him to do so as a taxi driver) and tragically he was killed instantly. 7. The respondent was initially charged with the simple offence of careless driving, but subsequently the charge was extended to a charge of causing death by careless driving. The matter came to trial in January 2010 at Bradford Crown Court before HHJ Benson. At the close of the prosecution's case the judge ruled that there was no case to answer, and it is against that ruling that the prosecution now seeks leave to appeal. 8. We have been referred to three authorities on the more serious offence of causing death by dangerous driving: R v Henningan [1971] 55 Cr App R 262, R v Skelton [1995] Crim LR 635 and R v Barnes [2008] EWCA Crim 2726 . Mr Khan, on behalf of the prosecution, submits that the judge erred in stopping the case because his decision stood in conflict with the principles established by those authorities. 9. Those authorities establish or recognise these principles: First, the defendant's driving must have played a part not simply in creating the occasion for the fatal accident, ie causation in the "but for" sense, but in bringing it about; secondly, no particular degree of contribution is required beyond a negligible one; thirdly, there may be cases in which the judge should rule that the driving is too remote from the later event to have been the cause of it, and should accordingly withdraw the case from the jury. 10. In the perfected notice and grounds of appeal Mr Khan set out the reasons why, in his submission, the judge was wrong to distinguish the previous authorities, and in particular, Skelton and Barnes on the facts of those cases. Skelton and Barnes were both cases involving two episodes separated in time. In both cases the judge rejected the submission of no case to answer at the close of the prosecution's case, and the defendant's conviction was upheld. 11. We do not find it of real assistance to compare the facts of this case with the facts of those cases in matters of detail, because it is the principles which matter. In the application of those principles to the facts of a particular case, much may depend on having a full feel for the evidence. 12. As an intellectual exercise the first and second principles are not at all easy. That is no great surprise because at a theoretical level the concepts of causation and remoteness have challenged the finest minds. In the civil field no comprehensive test has been devised for distinguishing situations where the intervening cause extinguishes the defendant's responsibility from those where it does not: see Charlesworth and Perry on Negligence 11th Edition 2006, paragraph 5-55. Sometimes foreseeability is used as an aid. Was what happened subsequent to the defendant's negligence something which he should have expected? However, the correlation between foreseeability and remoteness is itself a subject on which much ink has flowed. 13. We would not press an analogy with civil claims too far, because in many tort cases the court is essentially concerned with issues of apportionment, whereas a criminal verdict permits no degree of apportionment. We simply observe that the question of remoteness, where the court has two successive incidents to consider, is theoretically difficult. The approach of the courts has therefore been pragmatic and heavily influenced by the context in which the question has to be answered. 14. In Barnes Hallett LJ commented that: "...in principle, the distinction between dangerous driving which creates the circumstances of a fatal collision and dangerous driving which is the actual cause of a death may not be an easy concept to grasp." We agree. 15. Nor is it made easier by saying that the degree of contribution is immaterial, provided that it is non-negligible, ie not to be disregarded. That principle was laid down in Henningan , where the court was not concerned with successive incidents or the question of remoteness. Nobody disputes that a defendant's negligence need not be the sole cause of the fatality. However, in a case of successive incidents the question whether the defendant's conduct crossed the notional dividing line between creating the circumstances in which the second incident occurred and causing the fatality, is, by its nature, a fact-sensitive exercise and one which is essentially a question of degree, whatever language is used to describe it. 16. In short, it is ultimately for the jury to decide whether, considering all the evidence, they are sure that the defendant should fairly be regarded as having brought about the death of the victim by his careless driving. That is a question of fact for them. As in so many areas, this part of the criminal law depends on the collective good sense and fairness of the jury. 17. In the present case the judge was strongly influenced by three factors. The first was that the degree of intrusion of the defendant's crashed vehicle into the road was only 1.25 metres, and on the evidence of a vehicle examiner called by the prosecution there was sufficient width for traffic to pass between it and the central traffic island without difficulty. 18. The second was the evidence of the front-seat passenger in the taxi, who saw the crashed car from a distance of about 200 metres and at a time when the road was quite quiet. At that stage he expected the taxi driver to drive around the central reservation, and could see no reason why the taxi could not have safely negotiated the area of the previous accident. Thirdly, although there was damage to the traffic island, and the beacon on top of the pole had been broken, the judge was satisfied from the evidence that there was sufficient illumination for it to be visible to vehicles travelling in the direction of Wakefield. 19. That conclusion was supported by the evidence of the taxi passenger, and the judge was able to see photographs which demonstrated that the road was generally well lit. Mr Khan submitted that it would have been difficult to have seen the traffic island, and he invites us to form our own view from our study of the photographs, but we are not in a position to do that. The judge, as it seems to us, was entitled to form the view that he did on the evidence which he had heard. In truth the prosecution's case was not assisted by the evidence of the passenger in the taxi, or the concessions made by the independent vehicle examiner. 20. Collectively the points which influenced the judge in reaching his decision, described by him as a "borderline decision", were good jury points, but with respect to the judge whose feel for the evidence was necessarily better than ours, they do not appear to us to have been so strong that any properly directed jury must have found the respondent not guilty. We consider that he should have left the matter to the jury, because it was essentially a question of fact for their resolution. 21. The question then arises under section 61(5) of the Criminal Justice Act 2003 whether it is necessary, in the interests of justice, that there should be a retrial. We conclude that it is not. A substantial period of time elapsed before the respondent was charged with the relevant offence. We were told that this was because authorisation was required from the Director of Public Prosecutions in view of the nature of the charge. At all events, nearly a year passed before the matter came to the Crown Court, and the incident itself was a very short one. At a retrial prosecution witnesses would be giving evidence about matters which happened a considerable time ago. 22. We cannot tell whether the jury's reaction to the evidence would have been the same as that of the judge, but, looking at the matter overall, we are not persuaded that the strength and gravity of the prosecution's case is such that the interests of justice require a retrial with witnesses having to give evidence for the second time about a brief incident when their memories are less fresh. In those circumstances we grant the application for leave to appeal, but dismiss the appeal. 23. The question now arises of what order the court should make. The prosecution gave the usual undertaking to the Crown Court when it sought to make this application. One order which can be made under section 61(4)(c) is an order that the defendant be acquitted of the offence. In the light of the undertaking given, is there any reason why we should not make that order? 24. MR KHAN: I do not believe so, but might I just take a moment? ( Instructions taken ) My Lord, there is a slight complication in that there was always the possibility that if the jury rejected the causation argument, that they could have returned a verdict of guilty of simple careless driving. 25. LORD JUSTICE TOULSON: What undertaking did you give? 26. MR KHAN: That in the event the appeal was unsuccessful that a not guilty verdict would be entered. 27. LORD JUSTICE TOULSON: Is that not the right course to take? Do take further instructions? 28. MR KHAN: In the circumstances I think we are required to invite the court to enter a not guilty verdict. 29. LORD JUSTICE TOULSON: So be it. Then pursuant to section 61(4)(c) of the 2003 Act we will order that the defendant be acquitted. Thank you for your arguments.

2009_05_18-1944.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/1249/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/1249

5a3d1b744ac38af3d5694f627ebc2ba26a1fce338c4d40cc660cdc28ef728ac5

[2016] EWCA Crim 890

EWCA_Crim_890

2016-07-08

crown_court

Case No: 2014/03539 C4, 2014/03554 C4, 2014/03542 C4 and 2014/03541 C4 Neutral Citation Number: [2016] EWCA Crim 890 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT BRADFORD MR JUSTICE GLOBE Royal Courts of Justice Strand, London, WC2A 2LL Date: 08/07/2016 Before: LORD JUSTICE DAVIS MRS JUSTICE CARR DBE and HIS HONOUR JUDGE COOKE QC (SITTING AS A JUDGE OF THE CACD) - - - - - - - - - - - - - - - - - - - - - Between: REGINA Respondent - and - LEE CALVERT JOSEPH LOWTHER ROB

Case No: 2014/03539 C4, 2014/03554 C4, 2014/03542 C4 and 2014/03541 C4 Neutral Citation Number: [2016] EWCA Crim 890 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT BRADFORD MR JUSTICE GLOBE Royal Courts of Justice Strand, London, WC2A 2LL Date: 08/07/2016 Before: LORD JUSTICE DAVIS MRS JUSTICE CARR DBE and HIS HONOUR JUDGE COOKE QC (SITTING AS A JUDGE OF THE CACD) - - - - - - - - - - - - - - - - - - - - - Between: REGINA Respondent - and - LEE CALVERT JOSEPH LOWTHER ROBERT WOODHEAD ANDREW FEATHER Applicants - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Simon Myerson QC for the Crown Michael Wolkind QC for Applicant Calvert Richard Wright QC for Applicant Lowther Nigel Power QC for Applicant Woodhead Matthew Stanbury for Applicant Feather Hearing date: 21 ST June 2016 - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Davis: Introduction 1. The four applicants seek leave to renew their applications for leave to appeal against their convictions for murder; in the case of three of the applicants they also renew their applications for leave to appeal against their convictions for possessing a firearm with intent to endanger life (the fourth applicant was acquitted on such count). The applicants were convicted of those offences on 26 June 2014 following a trial at Bradford Crown Court before Globe J and a jury. 2. The grounds of challenge are these. It is said that the trial Judge was wrong to grant anonymity orders in respect of two witnesses under the provisions of sections 88 and 89 of the Coroners and Justice Act 2009 . It is also said that the Judge was wrong to reject submissions of no case to answer at the close of the prosecution case. In addition (and following the refusal of leave on these grounds by the Single Judge) the applicants Calvert and Feather separately apply for leave to adduce fresh evidence and for leave to appeal on that ground. Any previous criticisms of the summing-up itself as advanced in the written grounds have not been pursued. 3. The applicants also renew their applications for leave to appeal against sentence. All the applicants necessarily were sentenced to life imprisonment. In the case of Calvert the specified minimum term was 36 years (less time spent on remand), with a concurrent sentence of 15 years imprisonment for the firearms offence; in the case of each of Lowther and Woodhead, the specified minimum term was 32 years (less time spent on remand), with concurrent sentences of 15 years imprisonment for the firearms offence. In the case of Feather, the specified minimum term was 26 years (less time spent on remand). 4. Before us, Calvert was represented by Mr Wolkind QC; Lowther was represented by Mr Wright QC; Woodhead was represented by Mr Power QC; Feather was represented by Mr Stanbury; and the Crown was represented by Mr Myerson QC. Mr Wright and Mr Myerson had appeared at the trial below. The others had not. Background facts 5. As these are renewed applications, and since the background facts are well known to the parties, fully set out in the summing-up and also fully summarised in the Criminal Appeals’ Office summary, we need only give a broad outline. 6. Barry Selby was viciously attacked by a group of masked men in the bedroom of his home at 11 Rayleigh Street, East Bowling, Bradford at around 2 am on 14 October 2013. His wife, Donna Selby, was present and witnessed what happened. He was first shot in the knee with a handgun. He then had acid poured over him. He subsequently died in hospital. The agreed medical evidence was that the gunshot wound was not causative of the death; death was the consequence of the acid attack. 7. There had been three men involved in the bedroom attack: although neighbours were to say they observed five (as they thought) men leaving the vicinity of the house. They left in a dark Mitsubishi 4x4 vehicle. In addition, a light coloured Astra was also caught on CCTV leaving the East Bowling area shortly afterwards. It was later found parked at Dorchester Court in Holmewood: a neighbour noted it being parked there at around 2.20 am. CCTV captured four men, dressed in dark clothes, running away. It was the Crown’s case that Calvert, Lowther and Woodhead had been involved in the attack on Barry Selby; and that Feather (the owner of the Astra) had been there to assist as a get-away driver. The Crown’s case also had initially been that Feather was the “armourer”, either providing or storing the gun; but that aspect fell away at trial. 8. Some four hours earlier there had been a shooting incident at 48 Farway, Holmewood in Bradford. A shotgun and a handgun were fired at a house, which was the home of Anne-Marie Haigh and her family. A dark Mitsubishi 4x4 vehicle had drawn up and a number of men, wearing dark clothing and balaclavas, emerged. The guns were then fired at the house and the group departed. 9. In the light of the forensic evidence relating to the bullets that were found, it was common ground that the same handgun – which was not itself ever found - was used in both instances. It was also common ground that the same Mitsubishi - also never found - had been used. What most emphatically was not common ground was whether the same people were involved. 10. Anne-Marie Haigh was an associate of the Selby family (she was also a cousin of Lowther). The applicants themselves were friends. There were agreed background facts that a group of young men on the Holmewood estate in Bradford, of which Calvert was a leading member, had been involved in a series of violent incidents with another group of which Liam Selby, Barry Selby’s son, was a leading member. Guns had on occasion been used. There also had been agreed instances of physical violence between Liam Selby and Calvert (there was no evidence that Lowther, Woodhead or Feather had been involved in any such violence). 11. It was the Crown’s case that the two attacks represented a continuation of the feud: the background hostility providing the motive for the attacks. Calvert was said to be the ringleader. 12. There was no direct evidence linking Calvert to the first attack at 48 Farway. Anne-Marie Haigh gave evidence that, observing the incident from the kitchen window of her next-door neighbour, she recognised Lowther, her cousin whom she knew well. She also recognised Woodhead whom she also knew and whose face she said she saw before his balaclava was pulled down. Two other individuals had observed what happened. They were given the names “Charlie” and “Sam” at trial. These were the two witnesses in respect of whom anonymity orders were made. The defendants were not permitted to know their identities: and their evidence was given in a manner such that they could only be seen by Judge and jury and with voice distortion techniques. Each of those two witnesses gave evidence that they recognised Lowther as one of the men. They also said that one of the other men, whom they did not claim to identify, was taller than the others. Woodhead is significantly taller than Calvert and Lowther. 13. As to the attack at 11 Rayleigh Street, there was no identification evidence of either Lowther or Woodhead. However Donna Selby gave evidence that, although the men in the room were masked, she recognised Calvert. Witnesses who saw the group leaving the scene described one of the men as taller than the others. A description of the jacket that man was wearing was given. Such a jacket (albeit one of a common kind) was later found at Woodhead’s house. 14. There was no forensic evidence linking any of the applicants to the scene of either incident. There was some telephone and cell-site evidence capable of being consistent with the Crown’s case but by no means in itself conclusive. 15. In addition to the evidence of motive and the identification evidence of Donna Selby, the prosecution also relied as a central plank of its case against Calvert on what was said to be in effect a cell confession made by Calvert, while on remand, to another prisoner called Cowan: a man with numerous previous convictions, including for dishonesty. Clearly his evidence was to be viewed with great caution, as the Judge stressed to the jury. The defence case was that no credence whatsoever could be given to Cowan (one possible inference, among others, posed was that he had been suborned on behalf of the Selby family). However, the prosecution were able to point to a seemingly contemporaneous note made by Cowan containing Feather’s phone number and Feather’s nick-name “Bogard”: Cowan said that Calvert had given him these details to enable Cowan, who hoped to be released on bail, to contact “Bogard” - whom Cowan did not know - about disposal of a gun. 16. None of the applicants chose to give or call evidence at trial. The anonymity ruling 17. The Crown at trial put in detailed grounds seeking anonymity directions – which are of course a form of special measures – in respect of Charlie and Sam. The applications were strongly opposed. It was said that their evidence was critical and, not least because this was purported recognition evidence, there should be no restriction on identifying those witnesses or on the questioning of them. 18. The Judge considered the matter with exemplary thoroughness. He did not simply assess the Crown’s summaries provided to him. He assessed all the underlying materials for himself. He found, among other things, that there was nothing to suggest a motive to tell lies or to suggest partiality. 19. In his detailed written ruling the Judge went meticulously through all the relevant statutory provisions, and statutory conditions, of the 2009 Act . He had regard to the relevant prosecutorial guidelines and relevant authorities such as Mayers [2009] 1 CAR 30 and Donovan [2012] EWCA Crim 2749 . He fully appreciated that any such order, if to be made, was one of last resort. He fully appreciated the paramount importance of the fairness of the trial. He had regard to all the defence submissions, including the question of contact and discussion between the two witnesses and also between them and Anne-Marie Haigh. The Judge permitted questioning to cover those aspects, as well as on other topics which the Judge considered “essential” for the defence to be able to raise with the witnesses. 20. Counsel before us acknowledged the meticulous care with which the Judge approached the matter (in such circumstances this court had declined, at an earlier hearing, to review again for itself all the underlying materials which the Judge had assessed). But what Mr Wright, on behalf of Lowther, submitted was that the Judge was wrong to reject the submission that the evidence of Charlie and Sam was, even if not the sole evidence, potentially decisive. He submitted that the evidence of identification of Anne-Marie Haigh could not stand on its own as sufficient without the supporting witnesses, Charlie and Sam. The Judge however, had found that their evidence, while “extremely important”, was not “sole or decisive” evidence. Mr Wright submitted that the Judge was wrong in that. Mr Wright accepted that, under the statutory provisions, even if the evidence is sole or decisive that is not necessarily a bar to making an anonymity order. But it clearly is a consideration of the greatest importance; and the Judge’s exercise of discretion was, he said, vitiated by his failure to acknowledge the evidence as potentially decisive. 21. Mr Wright went on to say that the Judge’s assessment – made at an early stage of the trial – rested on various other matters advanced by the prosecution as indicating that this evidence was not of itself decisive. Those included, amongst other things, matters such as alleged telephone contact between Lowther and the others at material times and the finding of a green balaclava said to be linked to Lowther. But as the trial thereafter progressed those various points fell away. Thus, he said, the Judge’s assessment had been made on a basis which had become displaced; and the Judge had had a continuous duty of review throughout the trial to ensure the fairness of the proceedings. 22. We are certainly prepared to accept for present purposes that there is such an obligation of review. If the original basis for making anonymity directions is displaced during the trial, such that the trial may potentially become unfair, the matter needs to be revisited. That approach would be consistent with general Article 6 considerations which are of themselves consistent with the need to view the proceedings as a whole. 23. But that does not, in our judgment, avail Mr Wright in this case. Some aspects of the prosecution case did fall away as the trial proceeded. But in other aspects it either was sustained or improved. For example, through fear, Anne-Marie Haigh had not been prepared before trial to name Lowther in any witness statement (although she had given his name to the police) as one of the men she saw. But during the trial, and after the Judge’s anonymity ruling, she decided that she was prepared to name him. She then gave a further witness statement, and evidence before the jury, to that effect. 24. In our view, the Judge’s approach to the anonymity application was in accordance with the applicable legal principles. He took all relevant matters into account. The exercise of his discretion when he gave his anonymity ruling is not open, even arguably, to challenge. Thereafter nothing which occurred during trial, looked at overall, sufficed to render invalid the previous decision. We add in any event that we have no doubt that so experienced a Judge as Globe J would have kept the matter under review. We also note that no trial counsel had subsequently suggested that the matter should be revisited or the jury discharged. Further, the Judge gave scrupulously fair and detailed instructions to the jury as to how they were to approach this evidence. 25. In agreement with the reasons of the Single Judge, we reject this ground. Submission of no case to answer 26. At the close of the prosecution case, it was submitted on behalf of Calvert that there was no case for him to answer on the firearms offence relating to 48 Farway (Count 1 and the alternative Count 2). The like submission was made on behalf of Feather. Both realistically accepted on the evidence that there was a case to answer on the murder count (Count 3). For Lowther, on the other hand, while it was accepted that there was a case to answer on Counts 1 and 2 it was submitted that there was no case for him to answer on Count 3. For Woodhead it was submitted that there was no case for him to answer on all three counts. 27. At the heart of the respective submissions was the proposition that, even if the same handgun and same Mitsubishi vehicle had been involved in both incidents, it was simply speculation that the same people were involved in both incidents: indeed, in the case of Feather the Judge was to accept that there was no sufficient evidence to link Feather to the Farway incident and that not guilty verdicts were to be directed accordingly. Various other points were made which the Judge fully reviewed. It was in addition submitted on behalf of Woodhead that the evidence of recognition of Anne-Marie Haigh (which was not supported in this regard by the evidence of Charlie or Sam) was of a fleeting glimpse kind and was too unsatisfactory to be left to the jury. The entire case against Woodhead depended on her identification of him at Farway. 28. As to this latter point made on behalf of Woodhead, the Judge found that “insofar as the identification [of Anne-Marie Haigh] is to be regarded as a poor identification within Turnbull terms” there were four matters providing support: that Woodhead was significantly taller than Calvert and Sam and Charlie had given evidence of the presence of a taller man; that one of the men seen running away from Rayleigh Street was wearing a distinctive jacket similar to one found later at Woodhead’s house; that a witness had seen a tall man running away from Rayleigh Street towards the Mitsubishi; and if the jury were sure with regard to Calvert and/or Lowther that Woodhead was a friend and associate of theirs. 29. In our view, and rejecting Mr Power’s submissions, the Judge was entitled to conclude that the evidence of identification of Woodhead at Farway was not such that the case against him should be withdrawn from the jury. 30. As to the overarching common submission relating to the link between the two incidents, and whether it could properly be inferred that each of Calvert, Lowther and Woodhead was involved in both, the Judge reminded himself of the relevant legal authorities and principles. He concluded, on the primary facts, that there was sufficient evidence from which, applying the criminal standard, a reasonable jury could properly conclude that those three defendants were involved in both incidents. He identified seven primary factors (expanded to eight in the summing-up) in that regard at pages 12-13 of his ruling, which we need not replicate here. 31. In our view, and having assessed the position for ourselves, the Judge’s overall conclusion on this was justified. His evaluation was one properly open to him. In agreement again with the Single Judge, we can see no arguable error in his approach or in his conclusion. Fresh evidence 32. We turn to the fresh evidence applications. (a) Feather 33. Feather initially put in an application for leave to appeal – out of time – based solely on the prospective outcome of the proposed appeals of the other three applicants. Since we have rejected those, this point likewise fails for Feather. Mr Stanbury, on our query, also made explicit to us that no challenge to the Judge’s joint enterprise directions, in the light of recent Supreme Court authority, is made. 34. No other ground with regard to conviction had at the time been advanced on behalf of Feather. Nor had any other ground been advanced at the previous hearing before this court of these renewed applications on 28 April 2016: which hearing had been intended to deal substantively with the renewed applications but which had to be adjourned because of a muddle about the need for Mr Myerson’s attendance. 35. In the interim, however, there have been produced on behalf of Feather two expert reports, of a Mr Burgess and a Mr Kennedy, with an application for leave to adduce them as fresh evidence. The context appears to be that Feather’s parents, since the trial, have been endeavouring to establish a basis for setting aside their son’s conviction. They have had an amount of contact with the Criminal Appeal Office. There have been various attempts to get Legal Aid. Their efforts, and their funding difficulties, are to be acknowledged and respected. The fact remains that this application is made, for the first time, nearly two years after trial. 36. We do not know the full extent or ambit of the parents’ investigations. But they certainly extended to a close review of the CCTV evidence deployed by the Crown at trial, designed to show the movements of Feather’s gold Astra that night. Detailed CCTV evidence and charts – purporting to show the continuity of such movements of that Astra – were produced at trial. In summing-up to the jury the Judge invited the jury, as had the prosecution, to have regard to the totality of such evidence. 37. The present proposed fresh evidence is directed at alleged sightings of the Astra as recorded on clips 15 and 16, derived from CCTV footage at the Gold Shop and the Gallopers’ pub. This footage was relied upon to place the Astra in the vicinity of Wakefield Road at 1.24 am on the night in question (Feather had previously said to the police that he was driving round the Holmewood Estate at that time). It is said that in such footage a Volvo lorry, with a company name on it, can also be clearly seen. Feather’s father has since tracked down the company and the vehicle. 38. A report from Mr Burgess, an expert in tachograph analysis, was obtained. It is dated 23 May 2016. Mr Burgess has analysed the Volvo lorry’s tachograph for the night of 14 October 2013. He had no reason for thinking the tachograph faulty, allowing for a tolerance of ± 2 minutes. Analysing the tachograph and the vehicle movements, he places the lorry at the Gold Shop at between 1.43 am and 1.47 am. 39. Mr Stanbury submits that this evidence, if admitted, casts grave doubt on the accuracy of the Crown’s case on the movements of Feather’s Astra car that night. He further, although to a lesser extent, relies on a report dated 3 June 2016 from Mr Kennedy, a senior forensic scientist. This suggests “serious doubts” as to the accuracy of the Crown’s case on timings and movements of the Astra, including at the Gold Shop and at the Gallopers’ pub. With all respect, Mr Kennedy’s report is framed in rather partisan and tendentions language. In any event, it is plainly a preliminary report: Mr Kennedy himself says, on the basis of the information available to him, that “I am unable to provide an authoritative opinion in relation to the accuracy or otherwise of the time information.” He suggests that “this is an issue worthy of proper investigation.” 40. In our view, it is far too late to seek to adduce any of this evidence and it would be contrary to the interest of justice to permit such a step. Even allowing, as we do, for all the difficulties an overall delay of nearly two years cannot be accepted. Further, the whole issue of the accuracy of the various purported CCTV sightings and timings was hotly debated at trial. The defence team had strongly attacked the prosecution case on this. It had been disputed that clips 15 and 16 identified the Astra of Feather and the calibration of the CCTV timings was also part of the dispute. Moreover, if some reliance was to be placed on any deduction to be drawn from the presence of the Volvo lorry then it should have been investigated at the time; although in any case the defence had other arguments at trial to deploy. 41. In any event, as Mr Myerson pointed out, the Crown’s case in no way depended on the purported sightings at the Gold Shop and the Gallopers. Even on the prosecution case, there was an absence of sightings of the Astra after 1.24 am up to the time the incident at Rayleigh Road. But there was CCTV evidence of the Astra (clips 18 and 19) that indicated that the Astra was in the East Bowling area at just after 2.13 am, heading towards Holmewood. It is correct that the Judge had told the jury to look at the CCTV evidence, and related movement charts, as a matter of totality. But, as Mr Myerson put it, the use of clips 15 and 16 was to explain how Feather may have got there. The important fact on the prosecution case was that he was there. Thus the latest evidence, if admitted, would in any event not have afforded a ground for allowing the appeal. 42. Overall, in our judgment there is no proper basis for giving leave to adduce this fresh evidence, designed to bolster a point which the defence had already advanced at trial; and in any event there is no reasonable justification for such matters not having been investigated and deployed at trial. This is not technicality. It is fundamental to the way the appeal system works. A defendant ordinarily must advance his best case at trial. If he is convicted he cannot be permitted thereafter (at all events absent special circumstances, which on the materials before us do not apply here) in effect to have another go and to cast around for other materials which might have supported his case. (b) Calvert 43. The proposed fresh evidence Calvert seeks leave to adduce is of a different kind. 44. The first is evidence from Kelly Calvert. She is Calvert’s sister. She attended the trial. Since the trial she has been very active in publicly asserting Calvert’s innocence and in seeking to gain public support. 45. In a witness statement dated 20 February 2015 she says that Calvert was at her house on the night of 14 October 2013 (reflected in the defence statement). She says that she does not know why she was not permitted to give her evidence to this effect: she says that she pressed the solicitors at trial but was “ignored”. Calvert himself in a witness statement dated 5 March 2015 says that at trial he and Kelly both wished to give evidence of alibi to this effect. He says that his legal team were negligent in failing to advise him that he and Kelly should give evidence, as well as in other respects. 46. Privilege thus having been waived, the comments of the defence legal team have been obtained. They conclusively rebut the criticisms. It is evident that the matter was carefully considered at several discussions and an informed decision (evidenced in writing) was made not to call such evidence. The solicitors in fact also say that Kelly stated to them that she was relieved not to have given evidence. We need not say more, since Mr Wolkind expressly disclaimed pursuing any criticisms of the trial legal team. But the very fact that such allegations were made by Kelly Calvert is, with all respect, indicative of a rather distorted and subjective outlook - even if understandable - when it comes to her brother’s conviction. 47. The other aspects of Kelly Calvert’s proposed evidence relate primarily to discussions she had with a woman after trial, introduced to her as a result of her Facebook campaign. According to Kelly Calvert, this woman - whom she names - told her, in conversations which she secretly recorded, that she had been told that a (named) member of the Selby family had arranged for “somebody” (whom Kelly took to be Cowan) to come forward to incriminate Calvert. These various assertions are based on inadmissible multiple hearsay. The various named individuals have not themselves given any statements. This evidence in this form is not capable of belief nor would it give a ground for allowing the appeal. There is no arguable basis for saying that it should be permitted to be adduced in evidence. 48. The remaining aspects of the proposed fresh evidence likewise all relate to Cowan. It appears that Calvert’s legal team at trial had available to them Calvert’s and Cowan’s prison records. At trial various positive suggestions had been put to Cowan in cross-examination: for example, that he was a known “grass” and that he had been paid to give false evidence. Cowan denied that. As the Judge rightly told the jury, questions from counsel are not evidence. The proposed fresh evidence is clearly directed to meet that point and to seek to show that Cowan is indeed a liar and had been suborned to give misleading evidence at trial (which indeed was part of the defence case at trial). Possibly one can deduce that Calvert and his family remain aggrieved that the prosecution case – accepted by the jury – to an extent depended on a witness such as Cowan. 49. Calvert himself has put in two further witness statements in this regard since trial. In them he denies ever having spoken whilst in prison to Cowan, let alone confessing to him (although in cross-examination at trial Calvert’s counsel in fact had put it to Cowan that Cowan spoke at least once to Calvert). He seeks to give other evidence designed to show that Cowan would have had no, or very limited, opportunity to speak to him whilst in prison at HMP Armley, Leeds. 50. There is in our judgment no arguable basis for allowing this evidence of Calvert to be adduced either. Calvert had elected to give no evidence at trial. That was a tactical choice. He could, for example, have denied ever meeting or talking to Cowan; he could have given such explanation as he had for Cowan having written down Bogard’s name and telephone number. He did not. He cannot now – having been convicted – seek to put in his own account of events with regard to Cowan, whose evidence had been, and had been described by the Judge as, “crucial.” That point cannot be overcome by his seeking now also to adduce other evidence (to which we will turn) also designed to undermine Cowan’s evidence. It would overall, in our judgment, be contrary to the interests of justice to allow Calvert’s new evidence to be adduced and there is no arguable basis, having regard to s. 23 of the Criminal Appeal Act 1968 , for doing so. 51. The remaining proposed fresh evidence is in the form of witness statements from three proposed witnesses: Trotter, Green and Loftus. The Gogana statement is not satisfactory as to when or in what circumstances this evidence became available. 52. Trotter is Calvert’s first cousin. His witness statement is dated 20 January 2015. He says that he was remanded in HMP Armley from 1 November 2013 for an offence of violence. He says that he was in due course placed in a cell, with Calvert. Lowther and Woodhead shared a cell next door. He claims that Calvert, and the others, were locked up for 24 hours a day because of reports of threats on their lives. He says that, for reasons which are wholly unexplained by him, he (Trotter) also shared the same regime. The same routine continued, he says, when he was placed in a cell with Lowther. His conclusion is that it was impossible, during that time at HMP Armley, for Calvert to have spoken to Cowan: although in fact the contents of his statement do not bear out so generalised a proposition. 53. This statement is not capable of belief nor would it afford a ground for allowing the appeal. Trotter is Calvert’s cousin and has an interest in supporting him. Further Trotter in fact says that he offered to give evidence at trial for Woodhead (the offer was not taken up). There is also no explanation as to why Trotter himself would be detained 24 hours a day. In any event, there was evidence from prison staff disclosed before trial that staff shortages at the prison were such that prisoners did frequently fraternise with each other even when they were intended to be locked up. Yet further, what Trotter says is inconsistent with Green’s evidence. We also observe that in the Gogana statement it is said that Calvert gave instructions that he told his former solicitors about Trotter before trial. Those solicitors deny that they were so told; but the Gogana statement at least indicates that Calvert himself indeed knew about Trotter and potential “assistance” he might afford. There is, overall, no arguable basis for this evidence now being received. 54. As for Green, he had also been in HMP Armley. He made a statement after the trial dated 28 October 2014. He says that he had made contact with Calvert’s (new) solicitors on 26 August 2014. 55. Green says that he had been at HMP Armley from July 2013 until 10 January 2014 (he is an experienced criminal). Green states that for part of that time he was given the role of a prison listener. He says that on one day, the date of which he cannot recall, Cowan came in to speak to him about having given a statement to the police about Calvert. Green knew Calvert and had spoken to him on a number of occasions in prison when on association together (this of course is inconsistent with Trotter’s statement if not also Calvert’s statement). Cowan said to Green that he was scared of repercussions. He said that he had given the statement after a visit of Calvert to his cell (Calvert, of course, now maintains that he never spoke to Cowan) because he “had been approached by another prisoner and asked to give the statement saying Lee Calvert had told him [about killing somebody] and in return he had been paid drugs and money”. Green says he did not believe Cowan had even spoken to Calvert and told him so but Cowan maintained that he had. Green says he completed a form recording the fact of the visit. (It is, we note, the case that counsel then acting for Calvert had, following the trial, advised that Green’s prison records be obtained; but they have not been disclosed in the evidence.) Further, Green states, it has to be said wholly implausibly, that after his release from prison he came across the “Free the Bradford Four” Facebook entry set up by Kelly Calvert after the trial, took an interest and “then recalled my conversation with Cowan on D-wing and realised that he must have given evidence which was a surprise as he had said to me that he was going to retract his statement”. Green then contacted Calvert’s solicitors. 56. It may be noted that there was evidence obtained before trial by the prosecution and disclosed in the schedule of unused material in the form of a statement dated 14 May 2014 from a man called Gatenby (an associate of the Selby family and a former friend of Feather). Gatenby said that in about April 2014 he had met Green in prison, he having been recalled for breach of his licence. According to Gatenby, Green had said to Gatenby that, while out of prison, Calvert’s mother and another person had approached him. He (Green) had been told by them that someone had put in a statement saying Calvert had confessed while in prison to murder; and Green had been offered £10,000 to give a statement saying that Calvert was with Green all the time and had not confessed and that Gatenby had put this other person up to making the statement. Police thereafter before trial, as was evidenced, tried to pursue these allegations further with Green, in connection with the case; but Green failed to meet appointments. 57. It is also to be noted that in their letter of 1 April 2015 (privilege having been waived) the former solicitors of Calvert say that they had written to Green on 14 March 2014 asking him to contact them “in order to assist with Mr Calvert’s case”. It thus is clear that Calvert’s solicitors themselves prior to trial had been made aware of Green and of possible assistance he could give. There was no response from Green until 21 August 2014, after the trial, when Green’s partner contacted the solicitors to say that he would provide a statement. 58. No explanation is given as to why further steps were not taken by the defence team to contact Green after 14 March 2014 and before trial. It is at all events clear that Calvert and his legal team had been on notice of this prospective witness. In such circumstances, his evidence could with due diligence have been made available at trial, unless it was deliberately decided not to follow up the matter with Green. At all events, no reasonable explanation has been provided. That is not necessarily always conclusive in all cases – the identified requirements of s. 23 of the Criminal Appeal Act 1963 are all subordinate to the overriding requirement of the interests of justice – but in the circumstances of this case we consider that it is. There is no proper basis for permitting this evidence to be received in all the circumstances. It has all the marks of having a second go when the tactic of conducting the trial without calling evidence failed to achieve the desired outcome. 59. That leaves the evidence of Loftus. It is not properly explained, either by Loftus or anyone else, in what circumstances he came to give his statement dated 7 October 2014. He had been at HMP Armley between 11 November 2013 and March 2014. The waiver of privilege letter indicates that Calvert had drawn the attention of his solicitors to Loftus when draft Grounds of Appeal were being prepared in the immediate aftermath of the trial. In his subsequent statement Calvert had himself referred to asking his solicitors to “follow up any leads”, following his conviction. All this indicates – and is not sufficiently rebutted by any statement – that the evidence of Loftus could have been obtained before trial. 60. Loftus’ evidence is to the effect that during that period he heard a prisoner in the showers abusing Cowan – who was denying it - for making a prosecution statement (that is suggestive of it being common knowledge in the prison, as Mr Myerson observed). According to Loftus, Cowan – whom he did not then know – then told Loftus that he had given a statement and had been paid. Cowan also said that he had retracted the statement. According to Loftus he spoke to Cowan “several times” subsequently about this statement – why, is unexplained – and that each time Cowan said that he had withdrawn it. 61. In particular in view of the position about Green, the failure to explain how it was that Loftus’ statement was not sought earlier and how it eventually emerged is most disconcerting. It is unexplained why Calvert was in a position to tell his solicitors about Loftus shortly after the trial but not before. It is unexplained how or when Loftus came to be in contact with Calvert. Moreover, as Mr Myerson pointed out, nowhere does Loftus (any more than Green) record Cowan actually saying that the statement he made was in fact false. 62. Given the circumstances, and given the lack of explanation as to how Lotfus’ statement came to be provided as it was, there is in our judgment no properly arguable basis for permitting it now to be received in evidence. 63. Mr Wolkind conceded that a defendant cannot simply have a second go and change tactics when the original trial tactics of not calling evidence did not procure an acquittal. However, he submitted that we should consider the proposed evidence cumulatively in assessing this application to adduce fresh evidence and whether leave to appeal should be granted. We have done. Mr Wolkind also accepted that there were discrepancies and inconsistencies between the various statements. He submitted nevertheless that it was proper for the full court hereafter at least to hear de bene esse the oral evidence of these witnesses (or some of them), as a test of Cowan’s evidence, before deciding whether or not formally to receive the evidence and whether or not to allow the appeal. That course may be appropriate in some cases: and if we were to decide to grant leave to appeal in this case we would then leave it to the full court to assess the outcome of the appeal and whether or not formally to receive the evidence (see Cross [2014] EWCA Crim 96 ). 64. But at this stage it has been the function of this court on the renewed application to decide whether or not there is a properly arguable case, on the proposed evidence thus far presented, for that proposed evidence to be received, having regard to the provisions of s. 23 . This court takes the view that it is not so arguable. This proposed evidence should not be permitted to be the subject of further oral examination in the hope that something might “turn up”. It would be contrary to the proper functioning of the criminal appellate process and not in accordance with the interests of justice to allow any of this evidence to be adduced, in the circumstances of this particular case. 65. Consequently this application relating to the proposed fresh evidence is also refused. Sentence 66. All parties have renewed their applications for leave to appeal against sentence. Having reflected on the matter, we grant leave in all cases. 67. This was a shocking case of murder, preceded by a most serious incident of discharge of firearms with intent. 68. The statutory starting point for the minimum term would be one of at least 25 years: the acid which was the cause of death – as well as the gun, which was not – being brought to the scene. It was not seriously disputed, however, that the combination of circumstances was such as to entitle the Judge to go to a starting point of 30 years, as he said that he did, on the ground that the seriousness of the murder offence (in combination with the other offence) was “particularly high.” 69. At the time of the offending Calvert was aged 22; Woodhead was aged 28; Lowther was aged 21; Feather was aged 23. Leaving aside what was set out in the agreed background facts, Calvert had a number of previous convictions and reprimands for relatively minor matters, many committed while he was a juvenile. He was, however, sentenced in 2010 to 6 months detention for assault occasioning actual bodily harm. Lowther had one previous conviction in 2011 for attempted burglary (for which he received a community order). Woodhead received a substantial custodial term in 2006 for offences of robbery, burglary and aggravated vehicle taking. Feather was of effective previous good character. 70. The complaints advanced by all appellants overlap. These are, on any view, enormously long sentences for relatively young men. Further, there is no history of very serious violence in their antecedents. Yet further, while the Judge indicated that he was alive to the risk of double counting, the sentences ultimately imposed fail, it is said, to acknowledge the factors that had already moved the sentences properly up from a starting point of 25 years to one of 30 years on the basis that the seriousness of the offences was particularly high. It is therefore suggested that there in reality has been an element of double counting. Further, whilst the first incident of course had to be reflected in the overall sentence it is said that it did not justify the overall sentence ultimately imposed. 71. On behalf of Feather, it is emphasised that he was acquitted on Count 1 and 2 and so did not fall to be sentenced for that incident. Moreover, whilst he had an important role in assisting the get-away he had had no actual participation in the events occurring inside 11 Rayleigh Street. 72. A further point taken by all counsel is that the Judge gave, it is said, insufficient weight to the fact that, as he accepted, there was no intent to kill. In the circumstances of this case, it is submitted, that factor was significant mitigation and merited a significant reduction. 73. In passing sentence, the Judge inevitably dwelt at some length on the shocking features of both incidents. He regarded the Farway incident as “separate offending”, justifying adding four years on to the minimum terms, applying the principle of totality. He with justification described the murder as “vicious, cowardly and truly wicked.” 74. We consider nevertheless, that there is, overall, a degree of force in the appellant’s submissions. Calvert was clearly assessed as the ring-leader: and his was the lead sentence. We think that, notwithstanding the appalling and terrorising nature of this criminality, extended over two grave incidents, a minimum term of 36 years imprisonment for someone of his age, and lacking intent to kill, was too long. We quash it and substitute a sentence of 32 years as the minimum term. 75. This necessarily impacts also on the sentence on Lowther. We quash the sentence in his case relating to the minimum term and substitute a minimum term of 27 years. Woodhead was older and has a worse record than Lowther. That would justify a rather longer minimum term in his case. However, the Judge did not differentiate between him and Lowther; and we will respect that. The minimum term in his case will thus also be 27 years. 76. Feather is in a rather different position again. He was not involved in the first incident. Further, the sentencing Judge in terms acknowledged the “lesser involvement” of the three others as compared to Calvert: and it can fairly be said that – although Feather’s involvement in assisting in the getaway was very important – his overall involvement was the least of the three. In his case, the minimum term will be 20 years. 77. The appeals against sentence are allowed to the extent indicated. Time spent on remand will continue to count towards sentence.

2016_07_08-3802.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2016/890/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2016/890

fcf693e4d7a5ba42686468b41fc0fe746b0dd0184bd4ec19117ea2b804361b4e

[2005] EWCA Crim 1157

EWCA_Crim_1157

2005-05-10

crown_court

Case No: 200404331 C5 Neutral Citation Number: [2005] EWCA Crim 1157 IN THE COURTS-MARTIAL APPEAL COURT_ Royal Courts of Justice Strand, London, WC2A 2LL Tuesday, 10 May 2005 Before : LORD JUSTICE KEENE MR JUSTICE TREACY and MR JUSTICE WILKIE - - - - - - - - - - - - - - - - - - - - - Regina -v- Matthew Gary Stow - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Tregilgas-Davey appeared on behalf of the appellant Lieutenant Commander Towler appeared on behalf

Case No: 200404331 C5 Neutral Citation Number: [2005] EWCA Crim 1157 IN THE COURTS-MARTIAL APPEAL COURT_ Royal Courts of Justice Strand, London, WC2A 2LL Tuesday, 10 May 2005 Before : LORD JUSTICE KEENE MR JUSTICE TREACY and MR JUSTICE WILKIE - - - - - - - - - - - - - - - - - - - - - Regina -v- Matthew Gary Stow - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Tregilgas-Davey appeared on behalf of the appellant Lieutenant Commander Towler appeared on behalf of the Crown (Naval Prosecuting Authority) - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Keene: 1. This is another case in which the issue arises as to how far the structures and procedures of courts-martial in this country are compatible with an accused person’s rights under Article 6 of the European Convention on Human Rights. 2. The facts which give rise to the issue are not complicated. The appellant was at the relevant time an Operator Mechanic in the Royal Navy. On 23 February 2004 at a court-martial held at HMS Nelson before District Judge Cooper sitting as Judge Advocate the appellant pleaded guilty to two offences of drunkenness and using insubordinate language to a superior officer. He was dismissed from the service, sentenced to be kept in detention for 42 days and to suffer the consequential penalties involved. His plea was entered after the Judge Advocate had rejected a defence application for a stay of the proceedings as an abuse of process, that application being founded upon an argument that the naval court-martial system breached Article 6. 3. On 11 March 2004 he presented a petition against conviction which was refused by the Reviewing Authority on 19 July 2004. He now appeals against conviction by leave of the single judge. 4. There was, as his subsequent plea indicated, no real dispute that on the day of the alleged offences, 10 March 2003, the appellant had been drinking at a number of public houses and behaving in a way indicative of drunkenness. There was also evidence from a superior officer that the appellant had used abusive language towards her. We need not take the facts at any greater length, in so far as they concern the offences themselves. 5. Procedurally what happened was as follows. On 2 September 2003 the appellant was seen by his commanding officer when he elected trial by court-martial. The matter was referred to the naval Prosecuting Authority by Higher Authority on 19 September 2003. The court-martial took place on 23 February 2004. A naval lawyer, Commander S Taylor, represented the appellant. At the outset of the proceedings defence counsel submitted that the appellant could not receive a fair trial because of the insufficient independence of the naval Prosecuting Authority which breached Article 6 of the European Convention on Human Rights and that continuance of the prosecution would constitute an abuse of process of the court. The court-martial was referred to the judgments of the European Court of Human Rights at Strasbourg in Grieves v. United Kingdom and Cooper v. United Kingdom reported respectively at [2004] 39 EHRR 51 and [2004] 39 EHRR 171 . In rejecting the submission the Judge Advocate ruled that the application was tantamount to an invitation to dis-apply section 52H of the Naval Discipline Act 1957 which he had no power to do. 6. The statutory context is this. Naval courts-martial are provided for by Part II of the Naval Discipline Act 1957 . The relevant provisions of that Act were amended by the Armed Forces Act 1996 which came after the adverse opinions on the original courts-martial system expressed by the European Commission of Human Rights in its report of 5 September 1995 in Findlay v. United Kingdom, opinions subsequently endorsed by the European Court of Human Rights in that case: [1997] 24 EHRR 221 . In particular the 1996 Act inserted sections 52H , 52I and 52J into the 1957 Act . 7. Section 52H provides as follows: “(1) Her Majesty may appoint a qualified officer of Her naval forces to be the prosecuting authority for the Royal Navy; and in this Act “the prosecuting authority” means the officer so appointed. (2) An officer shall not be qualified to be appointed as the prosecuting authority unless he is- (a) a person who has a five year general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990 ; (b) an advocate or solicitor in Scotland of at least five years’ standing; or (c) a member of the Bar of Northern Ireland, or a solicitor of the Supreme Court of Northern Ireland, of at least five years’ standing.” 8. Section 52I deals with the functions of the Prosecuting Authority. By section 52I(4), “(4) If the prosecuting authority considers that court-martial proceedings under this Act should be instituted, he shall determine any charge to be preferred and (subject to section 52II of this Act) prefer any such charge.” 9. Sub sections (6) and (7) of that section are also relevant for present purposes. They provide as follows: “(6) The prosecuting authority shall have the conduct of any court-martial proceedings under this Act against the accused. (7) Without prejudice to any other power of his in relation to the conduct of the proceedings, the prosecuting authority may, in accordance with rules under section 58 of this Act- (a) amend, or substitute another charge or charges for, any charge preferred; (b) prefer an additional charge, or additional charges, against the accused; (c) discontinue proceedings on any charge.” 10. Section 52J empowers the Prosecuting Authority to delegate any of his functions to officers appointed by him as prosecuting officers, who must also be legally qualified. 11. Under the system prior to the amendments contained in the 1996 Act , the power to order a naval court-martial rested with the same authorised officer as appointed the members of the court-martial and the Judge Advocate. A similar combination of functions in the convening officer within army courts-martial was at the heart of the Strasbourg Court’s conclusion in Findlay that the system violated the accused’s Article 6 rights, because the members of the court-martial were not sufficiently independent of the convening officer and the trial system did not offer adequate guarantees of the impartiality of the tribunal. Those functions have now been separated in the post-1996 Act system. 12. The appellant makes a number of criticisms of the way in which the naval Prosecuting Authority functions. None of these criticisms concern matters which are to be found in the terms of section 52H . In those circumstances we find it difficult to accept the Judge Advocate’s reasoning that he was in effect being asked to make a declaration of incompatibility under section 4 of the Human Rights Act 1998 and that only higher courts were empowered so to do. The challenge by the appellant was not to the institution of the Prosecuting Authority as such nor to his powers, but to certain features of his position which are not set out in the primary legislation. In our judgment, it was open to him to stay the proceedings, as he was being invited to do, if he had come to the conclusion that those features resulted in a breach of Article 6. The issue, therefore, was and is just that: do those features mean that the appellant’s Article 6 rights were breached? 13. There are three matters relied on by the appellant in his argument that there was such a breach, because the Prosecuting Authority was not sufficiently impartial, when judged objectively, to exclude the fear of prejudice or bias. The first of those is that the Prosecuting Authority at the time of this trial, Commander Crozier, was reported upon within the service. He was in fact the subject of one report by the Chief of Staff to the Second Sea Lord. It is said that the report on him covered, amongst other things, his prosecuting duties and how he performed them, and that this meant that he could be put under pressure by his superiors. Mr Tregilgas-Davey, who appears for the appellant, submits that this undermined the Prosecuting Authority’s objective independence. His position is contrasted with that of the prosecuting authorities in the Army and Royal Air Force. In those services there is no reporting on the RAF and Army prosecuting authorities, in order to prevent any fear of the chain of command having a hand in decisions about the trial process or there being any appearance of such a possibility. It is submitted that the lack of such a clear break between the naval Prosecuting Authority and the chain of command was a significant failing in terms of his objective independence as required by Article 6. The point is made that, since the appellant’s trial, the practice of the Prosecuting Authority being reported on has ceased. This change, it is submitted, is an acknowledgment that the previous practice fell foul of objective independence. 14. Secondly, the appellant points to the fact that Commander Crozier was not in his final posting, again unlike his Army and RAF counterparts. This could mean that he was susceptible to pressure by way of inducements, enticements or threats. He was actively pursuing career advancement and promotion within the navy. The lack of any such insulation against such potential pressure deprived the naval courts-martial of a valuable and much needed safeguard. Again, Mr Tregilgas-Davey places reliance on the fact that, since this trial, the naval practice has changed. The new Prosecuting Authority is in his final posting. 15. Thirdly, the appellant points to the rank of Commander Crozier, significantly more junior than his Army or Air Force equivalents, where the post of Prosecuting Authority is in both cases held by two star officers. This too, it is argued, makes the naval Prosecuting Authority less immune from pressure or influence. 16. These three considerations are, says the appellant, to be looked at cumulatively. When taken together the appellant’s court-martial lacked objective independence. 17. For the respondent, Lieutenant Commander Towler submits that those shortcomings identified in the past by the Strasbourg court in the court-martial system have now been rectified. The lack of separation between the prosecuting and adjudicating functions identified in Findlay has been remedied by the 1996 Act , as the European Court of Human Rights acknowledged in Morris v. United Kingdom [2002] 34 EHRR 52 at paragraph 62. Furthermore the structure of a naval court-martial was specifically scrutinised by that court in Grieves v. United Kingdom . The main concern of the court there was the position at that time of the Judge Advocate who was a serving naval officer only sitting some of the time in courts-martial and carrying out regular naval duties at other times. That position has since changed and at the appellant’s court-martial the Judge Advocate was a civilian. 18. Lieutenant Commander Towler emphasises that what is required by Article 6 is that the tribunal be independent and impartial. It is the tribunal which determines the innocence or guilt of the accused. The Prosecuting Authority is party to the proceedings before the tribunal but is not itself part of the tribunal which determines the innocence or guilt of the accused. Consequently the Prosecuting Authority is not obliged to attain independence to the same extent as the tribunal itself. The respondent submits that there are sufficient guarantees to ensure that the Prosecuting Authority is sufficiently independent and impartial to prosecute cases fairly and without interference from outside bodies. It is also submitted that these guarantees permit the Prosecuting Authority to participate in courts-martial in a way that provides the appellant with a hearing which, viewed as a whole, satisfied Article 6. 19. Reliance is placed by the respondent on the following features of the position of the Prosecuting Authority: 1. He is appointed independently by the Sovereign under section 52H . 2. He has to be legally qualified and was in fact an employed member of the Bar of England and Wales. As such he was and is subject to the professional and ethical duties of the Bar Code of Conduct, including the duty to act with independence and the duty to the court. 3. He has an absolute discretion as to what charges should be preferred, which he exercises applying similar criteria to those applied in civilian cases by the Crown Prosecution Service. He and those who prosecute under him apply the principles of the Code for Crown Prosecutors, supplemented and adapted slightly to incorporate factors peculiar to the Armed Forces. Those principles are contained in a draft Code for Service Prosecutors which has been agreed by the Attorney-General. The decision to prosecute is thus based on legal criteria similar to those applied by the Crown Prosecution Service and in accordance with the Bar Code of Conduct. 4. He and his prosecuting staff are employed full time and exclusively on prosecution duties. 5. Like the other Prosecuting Authorities in the other branches of the Armed Forces he is under the general superintendence of the Attorney-General. Lieutenant Commander Towler has put in evidence, which we give leave for, in the shape of an extract from Hansard for 28 October 2004 in which the Solicitor-General states that: “The service Prosecuting Authorities are subject to the general superintendence of the Attorney-General”. 20. The respondent accepts that Commander Crozier was reported upon within the service, being the subject of one report already referred to. It is said that this report mainly related to his management and administrative functions, and only dealt with his prosecuting activities in a general way, rather than commenting on individual decisions to institute proceedings or to discontinue them. It is submitted that the fact that the practice of the Prosecuting Authority being reported on has now ceased should not be seen as an acknowledgment that the practice undermined the Prosecuting Authority’s independence. Rather it was a prudent improvement in the system, which reflected changing standards. 21. The report by the Chief of Staff to the Second Sea Lord on Commander Crozier has, very helpfully, being produced in the course of this hearing. It indicates that Commander Crozier had certain career aspirations, not necessarily confined to the legal branch of the Royal Navy. The most crucial part of the document is the assessment of his performance as Prosecuting Authority. That reads as follows: “CROZIER has made a most promising start to this appointment. He was already very experienced as a naval prosecutor and quickly brought his considerable expertise to bear during a busy period for his organisation which has seen the successful resolution of some long-running and complex cases. I understand that his advocacy in court is of the highest order and he has successfully appeared in the Court of Appeal as the respondent. He leads with considerable enthusiasm, exhibiting sensitive but most effective management style that manifests itself in a team of happy, well-motivated individuals who turn in consistently good results. He is an articulate and good-humoured officer with a deep commitment to the Service that reflected in his impeccable reliability and invariably good judgment.” 22. Lieutenant Commander Towler points out that this contains no comment on any individual decision made by the Prosecuting Authority to prosecute or not and is in general terms, referring to broad characteristics. Nor would the Chief of Staff, the reporting officer, see individual decisions by the Prosecuting Authority or any record of them, though he might have been aware of any very high profile case which took place. However, Lieutenant Commander Towler acknowledges that there was no written guidance in existence at that time about how such appraisal reports were to be written and nothing Commander Crozier would have seen to indicate to him what would and what would not have been covered in such a report. 23. As for Commander Crozier not being in his last posting, it is contended that this did not render him susceptible to pressure, since he reported to no one in his chain of command regarding his day to day prosecution function. As any appraisal report about him did not comment on his conduct of individual cases, those deciding on promotion or further posting could not be influenced by a decision which he had made in any individual case. 24. The respondent accepts that the naval Prosecuting Authority at the time of the appellant’s trial was not of as high a rank as his counterparts in the RAF or Army. However, within the Royal Navy, Commander Crozier was of greater or equal rank to all Staff Legal Advisors advising Higher Authorities on the conduct of potential prosecutions. It is therefore submitted that he was of sufficiently high rank to withstand any pressure from those Higher Authorities or anyone else who might seek to influence him. It is argued that the rank of Commander is a senior officer rank, there being only eight hundred at such rank within the Royal Navy. Reliance is also placed on statistical evidence, which indicates that the Prosecuting Authority decided to discontinue certain cases which had been referred to him by the Higher Authority. This, it is said, is a clear demonstration of his independence. 25. We are grateful to both parties for their co-operation in enabling the facts about the Prosecuting Authority’s position, as it was at the relevant time, to be put before this court. Insofar as any such material was not before the court-martial below, we give leave for its admission. Without it, it would have been impossible to have determined this issue in any substantive way. 26. Article 6(1) of the European Convention on Human Rights, in the part most relevant for present purposes, provides that: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” There is no dispute that the appellant faced a criminal charge. Article 6(1) was clearly engaged. The crucial words for present purposes in that paragraph are “an independent and impartial tribunal”. It is not suggested that the procedures adopted at the court-martial themselves prevented a fair trial. The main issue in this appeal, as is evident, is the position at that time of the naval Prosecuting Authority. 27. The Strasbourg court summarised what was required for this part of Article 6(1) at paragraph 58 of its decision in the Morris case. It said: “The Court recalls that in order to establish whether a tribunal can be considered as “independent”, regard must be had inter alia , to the manner of appointment of its members and its terms of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence. As to the question of “impartiality”, there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect (see aforementioned Findlay v. the United Kingdom judgment). The concept of independence and objective impartiality are closely linked and, as in the Findlay case, the Court will consider them together as they relate to the present case.” 28. It is clear that there is an important objective element to the test. One is concerned with more than just whether there was actual bias, for example, on the occasion in question. The Strasbourg jurisprudence indicates that there have to be sufficient safeguards to ensure that there is not an appearance of a lack of independence or impartiality on the part of the tribunal. 29. What that principally requires one to focus on is, unsurprisingly, the tribunal itself, that is to say the decision-makers. In the case of a court-martial, as in criminal trials in a Crown Court, there are two parties to the making of the decision: the tribunal members, who as Lord Bingham of Cornhill pointed out in R v. Spear [2003] 1 A.C. 734 at paragraph 7(2) have a role closely analogous to that of jurors, and the judge advocate, whose role, in Lord Bingham’s words “is essentially that of the judge at a criminal trial on indictment in the Crown Court.” Most of the concerns about courts-martial expressed by the European Court of Human Rights have related to the position of these two elements in the tribunal. Their role is patently crucial to the concept of an independent and impartial tribunal. Thus in Findlay , as we have already described, the Strasbourg court’s main concern related to the conflicting roles of the “convening officer” in the proceedings, since he had a key prosecuting role but at the same time appointed the members of the court-martial who were subordinate in rank to him and fell within his chain of command. There was an insufficient separation of the prosecution, convening and adjudication elements. 30. In Morris , the principal criticism accepted by the court was as to the ad hoc nature of the appointment of the two non-presiding members of the tribunal. In Grieves , a naval court-martial case, it was as to the status of the judge advocate at that time, since he was a serving naval officer who, when not sitting, carried out regular naval duties and whose court-martial performance could be the subject of reports to a senior naval officer. In the case of Cooper v. United Kingdom , the Strasbourg court found that there was no breach of Article 6(1) in the case of the Royal Air Force court-martial. Again, the court largely concentrated on the independence and impartiality of the tribunal members and the judge advocate and on those features which provided safeguards to that effect. 31. None of this is surprising. It is the independence and impartiality of those involved in the decision-making process which is fundamental to a fair trial. Having said that, however, this court notes that the Strasbourg court has in several of these cases considered the position of the prosecutor when examining the fairness of the court-martial. Thus in Cooper , it assessed the independence and impartiality of the bodies involved in the proceedings prior to the court-martial hearing, including the Royal Air Force Prosecuting Authority. Similarly, in Grieves , a naval court-martial case, it was prepared to look at the position of the naval Prosecuting Authority. Consequently, while the independence and impartiality of the tribunal members and the judge-advocate are of fundamental importance, it seems to us that the Strasbourg jurisprudence does require attention to be paid, when considering Article 6(1), to the extent to which those attributes are to be found in the Prosecuting Authority. 32. We are bound by section 2(1) of the Human Rights Act, 1998 to take into account decisions of the European Court of Human Rights and in any event our own jurisprudence recognises the importance of integrity on the part of the prosecutor. In his foreward to the 2002 guidelines for prosecution advocates, the Lord Chief Justice, Lord Woolf, refers to the prosecution advocate as “ a cornerstone of an open and fair criminal justice system”, and the Code for Crown Prosecutors, paragraph 2.2 states: “Crown Prosecutors must be fair independent and objective … They must not be affected by improper or undue pressure from any source.” They are also required to act in the interests of justice. The reality is that a prosecutor has the ability to influence and even mislead the court. Consequently, we accept that his independence and impartiality are matters to be considered when assessing whether or not there has been proper compliance with Article 6(1). 33. The Strasbourg court has itself commented on the characteristics of the military prosecuting authorities. In Cooper, it was argued by the applicant at paragraph 86 that “the Prosecuting Authority was part of the “legal branch” which gave “general advice” to the service authorities so that that Authority’s officers were subjected to pressure in relation to career prospects and discipline. The officers carrying out the functions of the Prosecuting Authority were also likely to be subordinate in rank to, and subjected to pressure from, the Higher Authority.” That related to the Prosecuting Authority of the Royal Air Force. The Grand Chamber rejected the criticism, stating at paragraph 113: “The Prosecuting Authority is appointed by the Queen and is legally qualified. Members of his staff are legally qualified and are employed exclusively on prosecution duties. The decision to prosecute is made on the basis of legal criteria similar to those applied by the Crown Prosecution Service and in accordance with the Codes of Conduct of the respective branches of the legal profession. While the Prosecuting Authority is also the RAF Director of Legal Services, he is answerable to the Attorney General only, and is not reported upon within the service, on his prosecution duties . There being no chain of command or service connection between the Higher and Prosecuting Authorities either claimed or apparent, any seniority in rank of the Higher Authority over the Prosecuting Authority would not be sufficient to conclude, as the applicant suggests, that the latter is “likely to” be influenced by the former.” (our emphasis) There are differences between the position of the Prosecuting Authority in the Royal Air Force and that of the naval Prosecuting Authority. Even so, as Lieutenant Commander Towler emphasises, the Strasbourg court considered the position of the naval Prosecuting Authority in the case of Grieves and made no adverse comment about that position. We do, however, accept the appellant’s point that the matters now being raised, such as the system of reporting upon the naval Prosecuting Authority’s performance, do not seem to have been raised during Grieves and may not have been drawn to the Court’s attention. 34. With that background we now turn to consider those matters, bearing in mind that they are to be seen in context. That context has to include such features of the Prosecuting Authority’s position as provide safeguards of his independence and impartiality. It is the total picture which needs to be considered. Thus it is important that he is engaged full-time, exclusively, in his role as a prosecutor. He does not have other naval duties to perform at other times. He is a qualified barrister, as are the prosecutors on his staff. As such, he is bound by the Bar Code of Conduct and the Code for Crown Prosecutors, with the result that he must act independently, not allow himself to be affected by any improper pressure from any source and must observe his duty to the court. He has an absolute discretion as to how he performs his duties in deciding whether or not to prosecute and what charges should be preferred. 35. The three matters raised by the appellant all go to suggest that he might, objectively speaking, be influenced in his decisions by pressures from above or at least by a desire to impress his superiors within the Royal Navy. The point about his rank and about him not being in his final posting are closely related, but in our judgment add only a little to the first point about the fact that he was reported upon. Were he not reported upon, there would be no real significance in his rank or prospect of further advancement. We do not attach great weight to the fact that the system had since been changed, so that the Prosecuting Authority is now more senior and in his final posting. Those are desirable changes, but the absence of them does not of itself indicate any lack of independence or impartiality. 36. The main feature which has caused us concern is the reporting within the service on Commander Crozier’s performance as Prosecuting Authority. It is all very well to contend that he is answerable only to the Attorney-General. If the appraisal of him within the service comments upon his performance as the Prosecuting Authority and reflects the decisions he has made in that capacity, then an objective observer could be concerned that those decisions might influence his prospects of promotion. We note that the report to the Second Sea Lord on Commander Crozier refers in its appraisal of him to his period in office as having “seen the successful resolution of some long-running and complex cases.” His advocacy skills and his success in the Court of Appeal are commented on, and the appraisal refers to his team having turned in “consistently good results.” 37. It is not easy to interpret what was meant by such comments. They may be, as Lieutenant Commander Towler suggested, merely saying that prosecutions were run effectively, rather than that they were successful in the sense of achieving convictions. But we have to bear in mind two considerations: the first is that there was no written guidance in being to indicate what should and should not be covered in the appraisal of Commander Crozier, with the result that he may not have been confident that his decisions in individual cases would not be held against him. Secondly, in that situation an objective observer might well have taken the view that Commander Crozier could be influenced in his decisions by what he thought his superiors within the Royal Navy would think about his decisions. 38. In the case of Spear , Lord Bingham of Cornhill took into account the fact that none of the annual reports on the President of a Royal Air Force court-martial alluded to the quality or outcome of his judicial decisions. We do not feel that the same can be said about the report on the naval Prosecuting Authority: it does seem to comment on the outcome of his or his team’s prosecutions. No individual decision is referred to in the appraisal, but the comments made do seem to be based on an overall assessment of those decisions as a whole. 39. We have not found this an easy case to determine. There were undoubted safeguards in existence, as set out earlier in this judgment. Certainly the Prosecuting Authority should have acted independently and impartially and there is no evidence that he did not. But merely because he was under such an obligation is not enough. He has to be in such a position that an objective observer would regard him as free from potential pressure in his decision-making. Given the system of reporting on him which existed at that time within the Royal Navy, we have concluded that such an observer would not have seen him as sufficiently protected from such pressure. That then has to be combined with the other factors referred to, namely his rank and scope for further promotion within the service. When we put all those together, we are forced to conclude that the naval Prosecuting Authority at the time of this court-martial did not enjoy necessary safeguards of his independence and impartiality. We are glad to know that the shortcomings we have referred to have since been removed. 40. While the Prosecuting Authority may not enjoy such a pivotal role as the Judge Advocate, his independence and impartiality is of great importance to a fair trial. It seems to this court that the court-martial of the appellant cannot, in these circumstances, be held to have observed the appellant’s rights under Article 6(1). If his trial was not fair, then in our judgment his conviction cannot be regarded as safe. 41. There is a subsidiary argument raised by the appellant about the absence of a Permanent President of Courts-Martial within navy courts-martial. In the light of our conclusion about the Prosecuting Authority, it is unnecessary to address that subsidiary argument. This appeal is allowed and the appellant’s conviction is quashed.

2005_05_10-509.xml

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29dec151d54217ee07010efe7169e05eefaea344537f4248bdfe6429c96930bd

[2018] EWCA Crim 424

EWCA_Crim_424

2018-02-16

crown_court

Neutral Citation Number [2018] EWCA 424 (Crim) Case No: 201702881/C3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 16 February 2018 B e f o r e : LORD JUSTICE HOLROYDE MRS JUSTICE ELISABETH LAING DBE HIS HONOUR JUDGE AUBREY QC (Sitting as a Judge of the CACD ) - - - - - - - - - - - - - - - - R E G I N A v BENJAMIN JAMES EDWARDS - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd t

Neutral Citation Number [2018] EWCA 424 (Crim) Case No: 201702881/C3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 16 February 2018 B e f o r e : LORD JUSTICE HOLROYDE MRS JUSTICE ELISABETH LAING DBE HIS HONOUR JUDGE AUBREY QC (Sitting as a Judge of the CACD ) - - - - - - - - - - - - - - - - R E G I N A v BENJAMIN JAMES EDWARDS - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - Mr A Langdale appeared on behalf of the Appellant Mr A Vout appeared on behalf of the Crown - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. LORD JUSTICE HOLROYDE: On 30th May 2017 in the Crown Court at Nottingham this appellant was convicted of the manslaughter of Christopher Henchcliffe. He was sentenced to 5 years 6 months' imprisonment. He now appeals against his conviction by limited leave of the single judge. 2. The events which led to the death of Mr Henchcliffe occurred in the early hours of the morning of 3rd July 2016 outside a bar in the centre of Chesterfield. The appellant, then aged 21 and with no previous convictions, had been in the bar with friends including James Wisternoff. 3. The deceased Mr Henchcliffe, a tall and powerfully built man then aged 26, had been asked to leave the bar after he had thrown a drink in the direction of James Wisternoff's sister Clarissa, a member of the bar staff. 4. The street outside the bar was covered by a CCTV camera. Footage from that camera was played as part of the prosecution evidence. It was of good quality but was recorded from a fixed position and therefore inevitably did not show every detail. It was not accompanied by any soundtrack. 5. The CCTV footage showed that shortly after Mr Henchcliffe left the bar he was followed by James Wisternoff. The two men stood in the middle of the carriageway and appeared to be talking to one another. Over the next minute or two they were joined by other persons including the appellant and Clarissa Wisternoff. They were then joined by a doorman, Mr Goodwin. 6. Clarissa Wisternoff was a prosecution witness. Her evidence, which was supportive of an aspect of the appellant's case, was that Christopher Henchcliffe was drunkenly and aggressively telling her brother James that she, Clarissa, was "a lying bitch". The appellant later gave evidence to similar effect and added that he had also heard Mr Henchcliffe boasting about having military training. 7. The CCTV footage then showed that James Wisternoff threw two or three punches at Mr Henchcliffe, knocking him backwards. Mr Goodwin quickly intervened, taking hold of Mr Wisternoff in a bear hug and moving him several paces way. Mr Henchcliffe then moved swiftly towards Mr Wisternoff with his arm raised. The manner in which he did so, as clearly shown on the footage, gave rise to a very strong inference that he had an aggressive intention towards Mr Wisternoff. He did not however make any attack on Mr Wisternoff, because Mr Goodwin, effectively acting as a human barrier between the two men, pushed Mr Henchcliffe back. Mr Henchcliffe at that point ceased his movement towards Mr Wisternoff and lowered his arm. There was an issue between the prosecution and defence as to whether Mr Henchcliffe simply let his harm fall to his side or whether, as the appellant asserted, Mr Henchcliffe still had his fist clenched. 8. At that point, as the CCTV footage showed, the appellant moved towards Mr Henchcliffe and swung a punch at him. Mr Henchcliffe fell backwards and, as the pathological evidence later showed, must have struck his head as he fell, sustaining injury which sadly resulted in his death on 12th July 2016. 9. In the course of his evidence the appellant initially said that he had merely swung his arm towards Mr Henchcliffe. In cross-examination he ultimately accepted that he had thrown a punch, but said that he did not know whether it landed. As Mr Langdale realistically recognises on the appellant's behalf, it matters not, for present purposes, whether the appellant landed a heavy punch or struck a glancing blow or even missed completely: on any view it was his throwing of the punch which either knocked Mr Henchcliffe off balance or caused him to lose balance as he tried to move out of the way. The real issue was whether the jury was sure that the appellant was acting unlawfully when he threw the punch. 10. The prosecution case was that he was acting unlawfully. Whatever Mr Henchcliffe's intention towards Mr Wisternoff had been moments earlier, he had been repelled by Mr Goodwin, was not making a further attempt to get at Mr Wisternoff and did not then present any threat of violence towards Mr Wisternoff. 11. The appellant's case was that he was not acting unlawfully; that he acted as he did because he honestly believed that Mr Henchcliffe was about to strike Mr Wisternoff; that he feared for the safety of Mr Wisternoff, who was facing the other way and therefore would not see an attack coming; and that he used no more than reasonable force in seeking to defend his friend. 12. In addition to the persons we have already mentioned the jury heard eyewitness evidence from a friend of Mr Henchcliffe, who spoke of events inside the bar, and from a young woman and a second doorman who had both seen events in the street. Mr Wisternoff was not called as a witness by either prosecution or defence. 13. The CCTV footage showed that shortly after Mr Henchcliffe had gone to ground the appellant and others ran away along the street. In evidence, the appellant said that he thought he heard Mr Henchcliffe getting back up and ran because he feared for his own safety. Footage recorded by a different camera, a few minute later, was relied upon by the prosecution as appearing to show the appellant demonstrating a punch to his companions. The appellant's evidence about this was that he was telling his friends he could not believe his actions could cause Mr Henchcliffe to go to the ground. 14. There was evidence before the jury, in the form of an agreed fact, that later on the same day the appellant exchanged a series of Facebook messages with a friend in whose company he had been shortly before the incident. The exchange began with the appellant sending his friend a screen shot of a Facebook page on which Mr Henchcliffe's sister reported to her friends that her brother was in a coma. The appellant urged his friend not to tell anyone about the previous night saying: "I might be getting sent down. No, literally don't tell anyone, delete the messages". His friend enquired what had happened, to which the appellant replied: "My name's not been mentioned. No one knows who it is". The friend advised the appellant that it would be best for him to own up, to which the appellant replied: "Let's see what happens". His friend ended the exchange by repeating his advice: "Seriously though, consider owning up because mate I'll tell you these things end up catching up." 15. The appellant did not follow that advice. When arrested and questioned about what had happened he said: "Well I got told in the morning that something had happened there, I mean I was out on the town but that is about it." 16. He made a short prepared statement in which he denied causing any injury to Mr Henchcliffe, but otherwise made no comment when questioned under caution. He was shown the CCTV footage to which he responded by saying: "I don't think that was me". 17. In his evidence the appellant explained his sending of the Facebook messages, his telling of what he admitted to have been lies to the police and his failure to mention when questioned most of the matters which he relied upon in his defence at trial, by saying he had been scared, did not want to be wrongly accused of something he did not think he had done and feared that words might be put into his mouth. 18. At a convenient point towards the end of the prosecution both prosecution and defence counsel – then, as now, Mr Vout and Mr Langdale - made applications to adduce evidence of bad character. The prosecution applied to adduce evidence about two occasions in 2015 when the appellant (who, as we have said, had no convictions) had been arrested for incidents of street violence. The first arrest led to a trial before a Magistrates' Court at which the appellant admitted having punched and injured the complainant, but said that he had acted in self-defence. The magistrates found the appellant not guilty, saying that they had heard conflicting accounts of the incident from a number witnesses, all of whom had consumed a considerable amount of drink, and that the court could not be sure what had happened. The second arrest would have resulted in a prosecution had it not been for the fact that the police appear to have overlooked the statutory time limit for the commencement of proceedings on the relevant charge. 19. The judge, plainly correctly, refused the prosecution’s application to adduce evidence of those incidents as evidence of a relevant propensity on the part of the appellant. He referred to the danger of introducing satellite issues and concluded that the evidence should be excluded pursuant to section 101(3) of the Criminal Justice Act 2003 because it would have an adverse effect on the fairness of the proceedings. 20. On behalf of the appellant, application was made to adduce evidence of two criminal convictions and one formal police caution of Mr Henchcliffe. In very short summary Mr Henchcliffe, at the age of 14, had committed a serious offence of causing grievous bodily harm with intent, for which, despite his youth, he was ordered to be detained for 3 years. The circumstances of the offence were that he, together with a 15-year-old boy, had carried out a serious assault on a man whom they believed to be a paedophile and who was said to have followed Mr Henchcliffe's younger brother. The second conviction was much more recent. It was for an offence of battery in early 2016, for which a community order had been imposed. The circumstances of that offence were said to be that Mr Henchcliffe, in drink, had picked a fight with an innocent member of the public in a bar and punched him a number of times. Mr Henchcliffe was subject to the community order at the time of this incident. 21. The police caution related to an offence of attempted possession of a controlled drug, which was relied upon as a basis for suggesting that Mr Henchcliffe may have been both drunk and drugged at the time of this incident. No complaint is made about the judge's refusal to admit that caution in evidence, and we need say no more about it. 22. Section 100 of the Criminal Justice Act 2003 is in the following terms: i. "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— i. (a)it is important explanatory evidence ii. (b)it has substantial probative value in relation to a matter which— iii. (i)is a matter in issue in the proceedings, and iv. (ii)is of substantial importance in the context of the case as a whole, or v. (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— i. (a)without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and ii. (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)— i. (a)the nature and number of the events, or other things, to which the evidence relates; ii. (b)when those events or things are alleged to have happened or existed; iii. (c)where— iv. (i)the evidence is evidence of a person’s misconduct, and v. (ii)it is suggested that the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct, the nature and extent of the similarities and the dissimilarities between each of the alleged instances of misconduct; vi. (d)where— vii. (i)the evidence is evidence of a person’s misconduct viii. (ii)it is suggested that that person is also responsible for the misconduct charged, and ix. (iii)the identity of the person responsible for the misconduct charged is disputed, the extent to which the evidence shows or tends to show that the same person was responsible each time. (4) Except where 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." 23. The application to adduce evidence of Mr Henchcliffe's previous convictions was made both on the basis that it was important explanatory evidence and on the basis that it had substantial probative value in relation to a matter in issue, namely whether the defendant acted in reasonable self-defence, and was of substantial importance in the context of the case as a whole. 24. We can deal briefly with the suggestion that the judge should have admitted the evidence of Mr Henchcliffe's previous convictions for violence as important explanatory evidence under section 100(1)(a). In our judgment, this submission - not today pursued actively but not formally abandoned at the outset - was and is wholly without merit. It is quite impossible to say, as section 100(2) requires, that without that evidence the jury would have found it impossible or difficult properly to understand other evidence in the case. Nor can it possibly be said that the value of the evidence of the previous convictions for understanding the case as a whole was substantial. The evidence and issues in the case were perfectly straightforward and the jury were well able to assess them. The jury neither needed nor would have gained any further "explanation" by reference to Mr Henchcliffe's previous convictions. 25. The application based on section 100(1)(b) requires more detailed analysis. The submission was that the issue in the trial was self-defence, that there were limits to the assistance as to details which the jury could derive from the CCTV footage, and that there were differences between the eyewitnesses as to whether Mr Henchcliffe was acting aggressively at the time when the appellant threw a punch at him. Mr Langdale argued that in those circumstances the evidence of previous convictions supported the defence contention that Mr Henchcliffe remained the aggressor throughout and was at the material time still trying to attack the appellant's friend. In that way, it was argued, the evidence of previous convictions went directly to the issue of how the appellant was likely to have perceived that there was a danger to his friend. 26. Although not spelled out in detail, it seems to us that the defence submission was in essence an argument that the previous convictions were capable of being regarded by the jury as evidence of a propensity on Mr Henchcliffe's part to commit crimes of violence and that such propensity made it more likely that on this occasion he was continuing to act aggressively as the appellant said he was. 27. The learned judge in his ruling on this application pointed out that the appellant had no previous knowledge of Mr Henchcliffe or of his convictions, and therefore was not influenced in his own actions by any such knowledge. As the judge put it, the appellant "simply had to judge the deceased from what he saw and heard from him on that night". What the appellant saw was largely captured on CCTV footage. What he heard had been the subject of evidence by prosecution witnesses and would have to be assessed by the jury. 28. The learned judge noted Mr Langdale's submission that the jury would be able to use the previous convictions of Mr Henchcliffe to determine whether or not Mr Henchcliffe had said those things on which the defence relied. At page 7F of his ruling the learned judge then said this: i. "Mr Langdale says that they will have a substantial effect. That is not the law but he is quite right. If the jury know that the deceased had these convictions, they may well reach the conclusion, that, in pursuing Mr Wisternoff, as he was, a) it was his intention to assault him and b) had he reached him, he would have assaulted him. That is something of course, about which there is no direct evidence, and it is something that none of us will ever know. The fact of the matter is, on the available evidence, as accepted by the doorman who placed his hand out for this purpose, having been pushed back the doorman, the deceased had stopped approaching Mr Wisternoff at the time he was struck by the defendant. Indeed, it is said by the doorman and by another witness that, at the time that the deceased was struck, his hands were no longer raised as fists but were by his side. ii. That is the evidence. Given that the behaviour of the deceased can be seen on the CCTV footage, given, as I said, that the defendant did not know the deceased and therefore could not factor into any decision he made that the deceased had previous convictions, and would therefore behave in the way that he did, in my judgment, it would be inappropriate to admit the convictions of the deceased. iii. Just as admitting the defendant's previous past behaviour would have given him an unfair disadvantage, in all of the circumstances of this case, admitting the convictions of the deceased, for the purpose that Mr Langdale contends for, would, in my judgment, be to give the defendant an unfair advantage. The convictions in these circumstances do not have the substantial probative value that is contended for by Mr Langdale." 29. The judge went on to refer, briefly, to the factors set out in section 100(3) of the 2003 Act, particularly noting that the more serious conviction had been 11 years ago when Mr Henchcliffe was himself a child. He concluded at page 8E: i. "In my judgment, just as admitting the past of the defendant would have distorted the process, so the admission of past of the deceased would do similarly. However I directed the jury regarding it, the jury in my judgment, would be unduly influenced by the knowledge of the previous convictions and would overlook the fact that the defendant himself did not have knowledge of them, however carefully I direct the jury in that respect. In that sense, therefore, and for those reasons, I reject the defence submission, content in the knowledge at least that now the equities are equally in the case." 30. Mr Langdale advanced two written grounds of appeal. The first challenged the learned judge's decision not to permit the defence to adduce evidence of Mr Henchcliffe's previous convictions. The second criticised the terms in which the judge had summed up aspects of the evidence, although no criticism was or could be made of the directions of law. 31. The learned single judge who considered the application for leave refused leave on the second of those grounds. No application has been made to renew the application for leave in that respect and we need say no more about it. As to the first ground of appeal, for the reasons which we have already explained, we focus on the argument based on section 100(1)(b). 32. The written submissions on each side have been amplified today in the oral submissions of counsel. We can summarise them briefly. Mr Langdale maintains his previous submission that the evidence was admissible pursuant to the statute, and he therefore argues that the judge was wrong to exclude it. He relies on the passages which we have quoted from the learned judge’s ruling, and on the terms in which the judge, towards the end of his summing-up, suggested a series of questions which the jury might wish to address, as each indicating that the judge himself recognised and accepted the probative value of Mr Henchcliffe's previous convictions. Mr Langdale further maintains his submission that the judge fell into significant error when he spoke of giving the appellant an unfair advantage and of making the equities equal by his decision on the application. 33. For the respondent, Mr Vout submits that the learned judge was clearly in full command of the relevant facts and made no error of law. He submits that the judge's decision was a proper application of the provisions of section 100 of the 2003 Act. In relation to the passages of the ruling on which Mr Langdale relies, Mr Vout submits that Mr Langdale has misunderstood them. He argues that in those passages the learned judge was distinguishing between the improper prejudicial effect, which he felt evidence of the previous convictions certainly would have, and the permissible substantial probative value, which he felt was absent from the case. 34. We have reflected on those submissions. In R v Phillips [2012] 1 Cr App R 25 , a case decided under section 101(1)(e), this court equated "substantial" probative value with "an enhanced capability" of proving or disproving a matter in issue in order to emphasise the point. 35. In R v Braithwaite [2010] 2 Cr App R 18 , this court said that the test of substantial probative value in section 100(1)(b) is the same as it is in 101(1)(e). At paragraph 15 of the judgment Hughes LJ (as he then was) said: i. "[That] expression has been referred to in some quarters as importing a test of 'enhanced probative value'. We can see why, although we ourselves prefer not to rephrase the statute, remembering only that the distinction we have mentioned exists between this test and that of simple relevance." 36. At paragraph 12 of the judgment in Braithwaite , the court pointed to an important difference between section 101 and section 100. On an application under section 101(1)(d) to adduce evidence of bad character of an accused, on the ground that it is relevant to an important matter in issue between the defendant and the prosecution, the court may find the evidence to be admissible, but has a discretion under section 101(3) to exclude it because it would have an adverse effect on the fairness of the proceedings. There is however no similar discretion where evidence of the bad character of a non-accused is admissible under section 100(1)(b). If the conditions of that subsection are met there is no residual statutory discretion whereby the judge can exclude it. That is one reason why, if evidence is to be admissible under the subsection, it must have substantial probative value in relation to a matter in issue which is of substantial importance in the context of the case as a whole. 37. In considering the submission that the judge was wrong in his application of section 100(1)(b), we think it important to begin by remembering that the jury had the evidence of the CCTV footage and of a number of eyewitnesses. From the footage, the jury would plainly be able to see that Mr Henchcliffe, having himself been struck, was heading towards Mr Wisternoff in a manner which gave rise to an obvious inference of aggressive intent. They could see that Mr Goodwin pushed him away and effectively separated the two men. It was admitted that at that point the appellant threw a punch which, whether it landed or not, caused Mr Henchcliffe to fall and sustained fatal head injury. The crucial issue was whether at the time he swung that punch the jury were sure the appellant was acting unlawfully because Mr Henchcliffe, notwithstanding his evident aggressive intent moments earlier, did not then present any threat. They had to consider whether the appellant may have been acting in lawful defence of his friend, Mr Wisternoff, in the honest belief that Mr Wisternoff was about to be attacked. 38. True it is that the CCTV footage was not of such quality as to permit the jury to see, for example, precisely where Mr Henchcliffe's hands or fists were at that moment. For our part however, we find it difficult to see how evidence of Mr Henchcliffe's previous convictions could really have helped the jury to determine those issues or could have assisted the appellant's case. First, in the circumstances of this case, we doubt whether a conviction for an offence of violence when Mr Henchcliffe was aged 14, albeit a serious offence, could be said to be capable of showing a propensity to engage in street violence 11 years later as an adult. Secondly, even if both convictions might be regarded as showing such a propensity, that propensity would, at most, have been capable of making it more likely that Mr Henchcliffe acted aggressively on this occasion. But he had already clearly shown himself to be acting aggressively when he moved quickly towards Mr Wisternoff with his arm raised. The real issue is whether the appellant may have thought that he was still acting aggressively even after he had been repelled by Mr Goodwin. We do not see any merit in the submission that Mr Henchcliffe's convictions could have substantial probative value in relation to that issue. 39. We therefore take the view that the application to adduce this evidence should have been refused on the ground that the evidence could not have the necessary substantial probative value. Mr Vout submits that is exactly what the learned judge decided. Mr Langdale however submits that the judge must have taken a different view in this regard: although at one point in the ruling the judge said that the convictions did not have the substantial probative value that is contended for by Mr Langdale, he at other points indicated plainly that evidence of the previous convictions may well cause the jury to find Mr Henchcliffe was intent on assaulting Mr Wisternoff. So, submits Mr Langdale, the judge himself clearly felt that substantial probative value was established. Not so, submits Mr Vout. He argues that the judge, although he did not spell it out as fully as perhaps he should have done, was drawing the distinction between improper prejudicial effect and proper probative value. 40. If Mr Langdale's submission were correct, there would be force in the submission that the judge should have admitted the evidence under section 100(1)(b). As to why he would not have done so, if his assessment of the evidence really was as Mr Langdale submits it was, one would perhaps have to look at a possible confusion between section 100(1)(b) and section 101(1)(d) as to the existence of a judicial discretion to exclude evidence on grounds of fairness. Part of Mr Langdale's submission, of course, is that such a confusion was demonstrated by the judge's references for example to "balancing the equities". 41. It seems to us, however, that Mr Vout's submissions are correct. Although the judge, with all respect to him, did not express himself as clearly as he might have done, the key sentence in the ruling, which we have already quoted, is the assessment by the judge that “the convictions in these circumstances do not have the substantial probative value that is contended for by Mr Langdale". We accept Mr Vout's submission that, whilst it would have been better for the judge to spell out that his earlier references were to the prejudicial rather than the probative effect of the evidence, that is what he meant. 42. There is force in Mr Langdale's submission that it is unsatisfactory for this court to be invited, in effect, to read words into a judge's ruling on admissibility in order to reach a conclusion upon it. We have therefore gone on to consider, notwithstanding the view we have indicated above, whether any error on the judge's part would have rendered the appellant's conviction unsafe. 43. Even if the learned judge did fall into error in the ruling that he gave, which for the reasons we have explained he did not, that error would not in our judgment have cast any doubt on the safety of this conviction. Because we do not regard the evidence of Mr Henchcliffe's previous convictions as having any real probative value on the central issue of the case, we are firmly of the view that the admission of that evidence could not properly have made any difference to the jury's verdict. Any possible effect it might have had would only have been in respect of improper prejudice. 44. Moreover, the CCTV footage provided clear and compelling evidence against the appellant because it showed plainly that Mr Henchcliffe was not moving towards Mr Wisternoff when the appellant threw a punch at him. The appellant's conduct after the incident, which we have summarised above, positively undermined his own defence. 45. For those reasons this appeal against conviction fails and is dismissed. WordWave International Ltd trading as DTI hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400

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Neutral Citation Number: [2008] EWCA Crim 483 Case No: 200705472/D5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 13th February 2008 B e f o r e : SIR IGOR JUDGE (PRESIDENT OF THE QUEEN'S BENCH DIVISION) MR JUSTICE DAVIS MR JUSTICE DAVID CLARKE - - - - - - - - - - - - - - - - - - - - - R E G I N A v H - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill C

Neutral Citation Number: [2008] EWCA Crim 483 Case No: 200705472/D5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 13th February 2008 B e f o r e : SIR IGOR JUDGE (PRESIDENT OF THE QUEEN'S BENCH DIVISION) MR JUSTICE DAVIS MR JUSTICE DAVID CLARKE - - - - - - - - - - - - - - - - - - - - - R E G I N A v H - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr B McGuire appeared on behalf of the Defendant (Respondent ) Ms G Higgins & Miss K Wilkinson appeared on behalf of the Crown (Appellant) - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE DAVIS: It is a relatively unusual case in which an appeal made to the Court of Appeal (Criminal Division) is said to be one that the Court has no jurisdiction to entertain. It is also a relatively unusual case in which an appeal to the Court of Appeal (Criminal Division) includes a detailed debate on principles of land law. This particular case before us today involves both features. 2. It arises in this way. The defendant (the respondent to this appeal) was charged on indictment with six counts of doing an act likely to interfere with the peace or comfort of residential occupiers, contrary to section 1 (3A)(a) of the Protection from Eviction Act 1977 (as amended). She pleaded not guilty. At the outset of the trial at Kingston Crown Court, on 3rd October 2007, before the jury was sworn, it was submitted on behalf of the respondent to Her Honour Judge Barnes, the trial judge, that even taking the prosecution evidence as unchallenged, counts 2 to 6 did not show sustainable counts in law. For its part the prosecution accepted, if that was right, the remaining count, count 1, taken on its own, could serve no useful further purpose. 3. On 4th October 2007 Her Honour Judge Barnes gave her ruling. She decided that, had the jury been sworn and the prosecution evidence been adduced in its then form, she would then have directed verdicts of not guilty on those counts. Counsel for the Crown accordingly, and at the invitation of the judge, offered no evidence on any of the counts and verdicts of not guilty were duly entered. 4. It was common ground before the judge and before us that the judge's ruling was a ruling within the ambit of section 58 of the Criminal Justice Act 2003 . It indeed had the effect of terminating the proceedings. This is where the jurisdictional point arises. 5. Immediately after the judge gave her ruling counsel then appearing for the prosecution indicated, by reference to section 58(4) of the 2003 Act , that the prosecution may wish to appeal. It was said that would need instructions from senior officials within the prosecuting authority (agents only being present in court) and consideration was also needed, it was said, of the wider implications of the judge's ruling and possible impact on other cases. 6. There was then this exchange. The judge having queried whether the matter before her was of any general application, then said: "... but, of course, those who instruct you are entitled to consider their position. How long do you request? [COUNSEL]: And I must so advise. Your Honour, again given the nature of the instruction and the agency involved, may I request a week. I know it is further time for [the respondent] to be awaiting the further development of this matter, but in the light of the long history that has already ensued in this case may I ask for seven days. [THE JUDGE] I think it is a very short period, of course. I thought you were going to ask for 28 and I was going to ask you to consider quicker then that. I don't think seven days is unreasonable." MR MCGUIRE: (counsel then appearing for the respondent): "I couldn't object to that." THE JUDGE: "Absolutely okay". 7. Within that seven day period the prosecution returned to Kingston Crown Court and informed the judge that the prosecution did intend to appeal; and an appeal was then promptly lodged. No suggestion was at that time made on behalf of the respondent that the appeal was being brought without jurisdiction, as being out of time or on any other basis. The suggestion was, we gather, first mooted by the Criminal Appeals Office. Having considered that suggestion Mr McGuire, on behalf of the respondent, has decided to adopt the point. 8. The provisions of the primary legislation, that is to say the Criminal Justice Act 2003 , impose no prescribed time limits for prosecution appeals in this context. On the contrary, within section 58 of the 2003 Act , which relates to prosecution appeals, it is provided: "(4) The prosecution may not appeal in respect of the ruling unless— (a) following the making of the ruling, it— (i) informs the court that it intends to appeal, or (ii) requests an adjournment to consider whether to appeal, and (b) if such an adjournment is granted, it informs the court following the adjournment that it intends to appeal. (5) If the prosecution requests an adjournment under subsection (4)(a)(ii), the judge may grant such an adjournment." 9. As it happened, just three days before the judge's ruling, on 1st October 2007, the relevant rules relating to section 58 of the 2003 Act contained in Criminal Procedure Rules was changed. The earlier version of the rules in Rule 66(2) had provided, in the context of adjournment sought under section 58(4) : "The adjournment shall be until the next business day after the day on which the ruling was given unless the interests of justice require a longer adjournment." The new rule is Rule 67.2. That applies to prosecutors wishing to appeal under section 58 of the Criminal Justice Act and Rule 67.2 says this: "(1) An appellant must tell the Crown Court judge of any decision to appeal- (a) immediately after the ruling against which the appellant wants to appeal; or (b) on the expiry of the time to decide whether to appeal allowed under paragraph (2). (2) If an appellant wants time to decide whether to appeal- (a) the appellant must ask the Crown Court judge immediately after the ruling; and (b) the general rule is that the judge must not require the appellant to decide there and then but instead must allow until the next business day." 10. The argument of Mr McGuire, on behalf of the respondent, is quite simply that under new rule, and by reason of the words "but instead must allow until the next business day" the court has no power to grant any greater extension of time. The court is required, it is submitted, if the court decides not to require the appellant to decide there and then, to allow the prosecution only until the next business day to make its decision. Accordingly, it is said, the purported adjournment of seven days to enable that decision to be made was invalid and the subsequent appeal was a nullity. 11. We are in no doubt that that argument is incorrect. First, the primary legislation ( section 58 of the 2003 Act ) imposes no set time limits. Second, so far as the subordinate legislation is concerned (that is to say, Rule 67.2) it is, in our view, incorrect to read rule 67.2(2)(b) as only and mandatorily permitting the would-be appellant until the next business day to decide. On the contrary, that sub-rule is prefaced, and significantly so as it seems to us, by the words "the general rule is...". General rules connote by their very nature exceptions. That is what the drafting here clearly contemplates. It is further to be noted that the words "the general rule" embrace the entirety of the subsequent words set out in 67.2(b). Third, and for good measure, it is very difficult to see why the rules should mandate so rigid and inflexible approach as advanced by Mr McGuire and there is good practical reason why it should not. It remains the case that the general approach is to ask whether it is the purpose of the legislation that an act done in breach of the relevant provision should be invalid (see R v Soneji [2006] 1 AC 340 , R v Clark & Day [2008] UKHL 8 ). One can readily and easily think of very good reasons why that should not be intended here. Indeed, that it was not so intended is borne out by the very wording of the sub-rule. Such an interpretation manifestly accords with the overriding objective, as set out in Rule 1.1 of the Criminal Procedure Rules, and the principles of interpretation by reference to the overriding objectives set out in Rule 1.3 of the Criminal Procedure Rules. 12. Mr McGuire objected that that would mean that a judge would be left with an unfettered discretion as to how long an adjournment was granted and that, he submitted, would subvert the scheme of Rule 67.2. But the practical reality is that judges well appreciate, both from the wording of the rule itself and from the general context of prosecution appeals, that there has to be a real justification for an extension of time at all and that expedition is always requisite: as indeed is illustrated by the judge's approach in this particular case. Accordingly, neither on a literal nor on a purposive interpretation of Rule 67.2 is the objection to jurisdiction well founded. That being so, Mr McGuire fairly concedes that, if he failed on the jurisdiction point, he could not raise any further challenge to the judge's decision in her discretion to extend the time in which the prosecution should indicate its decision for a period of seven days. 13. We turn, then, to the substance of the matter. The points raised with the judge in the court below were, it has to be said, rather esoteric. They derive from the language of the Protection from Eviction Act 1977 , as amended. The relevant provisions for present purpose are as follows. By section 1(1) : "In this section 'residential occupier', in relation to any premises means a person occupying the premises as a residence, whether under a contract or by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of any other person to recover possession of the premises." By subsection (3A): "Subject to subsection (3B) below, the landlord of a residential occupier or an agent of the landlord shall be guilty of an offence if-- (a) he does acts likely to interfere with the peace or comfort of the residential occupier or members of his household... and (in either case) he knows, or has reasonable cause to believe, that the conduct is likely to cause the residential occupier to give up the occupation of the whole or part of the premises or to refrain from exercising any right or pursuing any remedy in respect of the whole or part of the premises." Moving on to section 3 : "(1) Where any premises have been let as a dwelling under a tenancy which is [neither a statutorily protected tenancy nor excluded tenancy] and-- (a) the tenancy (in this section referred to as the former tenancy) has come to an end, but (b) the occupier continues to reside in the premises or part of them. it shall not be lawful for the owner to enforce against the occupier, otherwise than by proceedings in the court, his right to recover possession of the premises." Then subsection (2B): "Subsections (1) and (2) above apply in relation to any premises occupied as a dwelling under a licence, other than an excluded licence, as they apply in relation to premises let as a dwelling under a tenancy, and in those subsections expressions 'let' and 'tenancy' shall be construed accordingly." Then section 3A provides in part as follows: "(1) Any reference in this Act to an excluded tenancy or an excluded licence is a reference to a tenancy or licence which is excluded by virtue of any of the following provisions of this section. (2) A tenancy or licence is excluded if- (a) under its terms the occupier shares any accommodation with the landlord or licensor; and (b) immediately before the tenancy or licence was granted and also at the time it comes to an end, the landlord or licensor occupied and his only or principal home premises of which the whole or part of the shared accommodation formed part... (4) For the purposes of subsections (2) and (3) above, an occupier shares accommodation with another person if he has the use of it in common with that person... any reference in those subsections to shared accommodation shall be construed accordingly, and if, in any relation to any tenancy or licence, there is at any time more than one person who is the landlord or licensor, any reference in those subsections to the landlord or licensor shall be construed as a reference to any one of those persons." It is common ground before us, by reference to the facts which we shall come on to mention, that here either there was an excluded tenancy or there was an excluded licence. 14. The background facts on the prosecution evidence in summary were these. Mr O'Brien and his partner, Miss Matassa, in autumn 2004 were looking for accommodation. The respondent owned a house in Chillerton Road, Tooting, living there in attic rooms with her partner. She permitted others to occupy bedrooms on the ground and first floors. All the occupants shared the use of communal kitchen, drying room and living room/dining room on the ground floor and a bathroom and separate WC on the first floor. 15. Mr O'Brien and Miss Matassa saw an advertisement indicating a vacancy at the house. They were, in due course, told that it would be for a rent of £495 per calender month including all bills. They inspected the house and orally agreed with the respondent to take the room, a furnished double room on the first floor. They were told of the other occupants in the house, a couple and a single man, as well as the respondent and the respondent's partner. According to them, they said to the respondent that they wanted the room indefinitely and the respondent made no reference to any time limit for their stay. 16. They moved in on 8th October 2004. They paid £990 to cover an initial month's rent and a deposit. Shortly thereafter they were presented by the respondent with a typed agreement to sign. It was in its final form dated 8th October 2004. The agreement was headed: "For letting furnished dwelling apartment on an Assured Shorthold tenancy under Part 1 of the Housing Act 1988 ." There was then the typed date of 8th October 2004. The landlord was described as [the respondent] and the tenant as Miss Matassa and Mr O'Brien. The property was described in this way. "The dwellinghouse situated at and being Bedroom and use of Amenities 26 Chillerton Road, Tooting, London SW17 9BG, together with the fixtures and fittings therein. Term: A term certain of SIX MONTHS from 8th October 2004." There was then set out the provision as to rent, £490 per month and payable; on the 8th Jan of each month and it was then expressly provided that the landlord let and tenant took the property for the term at the rent payable as above. By paragraph 2, the agreement purported to create an assured shorthold tenancy. By paragraph 4, a number of obligations were imposed upon the tenant, including the obligation to pay rent, to keep certain drains, gutters and pipes in repair and so on. By 4 4) it was agreed: "That the Landlord or any person authorised by the Landlord in writing may at reasonable times of the day on giving 24 hours' notice in writing to the occupier to enter the Property for the purpose of viewing its condition and state of repair." 17. 4 7) provided that the lounge area was to remain private to the landlord and should be used for personal dining by the tenant and not for entertaining. By 4 10), there was an obligation not to assign, sublet or otherwise part with the possession of the property without the prior written consent of the Landlord and so on. 18. Paragraph 5 of the agreement set out a provision to the affect that the landlord, if the rent was in arear or if there was any breach of the agreement, could re-enter upon the property and the tenancy would thereupon immediately determine. By paragraph 6, the landlord in effect gave a covenant for quiet enjoyment in relatively orthodox terms; and there were then other provisions, including a provision at the end that the landlord and the tenant agreed to provide written notice of the intention to leave the property either a minimum of one month prior to the end of the agreed term, or, should the tenancy continue on as a statutory periodic tenancy, one month before their intended departure. 19. Mr O'Brien and Miss Matassa studied this agreement. They noted that it now included a term of 6 months, which had not previously been mentioned. They had concerns about the lounge area now being said to be a private area other than for dining purposes; and they also noted the repairing obligations which they thought inappropriate. In the event, however, they decided not to object and to sign the agreement and they did so without querying the terms with the respondent. Mr O'Brien, according to his witness statement, did say to the respondent when doing so that it was questionable practice to wait for tenants to move in before presenting them with a written agreement. 20. Quite soon thereafter difficulties arose between Mr O'Brien and Miss Matassa, on the one hand, and the respondent on the other hand. It is not necessary to go into details. At all events by letter dated 22nd December 2004, the respondent gave written notice, or purported notice, requiring the complainants to vacate on or before 8th February 2005. The document is, to put it mildly, somewhat unusual. It says this: "With reference to the above, I [the respondent's name] give you S Matassa and JM O'Brien notice to vacate the above address premises. The termination of agreement is carried out under section 48 of the Landlord and Tenant Act 1987 , as specified giving you the agreed one months' notice to the departure period. I hereby notify you that your date of departure to vacate the premises will come into effect on Tuesday 8th February 2005. Therefore your notice will commence from Saturday 8th January 2005. Reasons for termination: Incompatibility." 21. Mr O'Brien and Miss Matassa then took advice from a local legal advice centre. The legal advice centre wrote on 13th January 2005 to the respondent, saying that the purported notice was not valid, as a tenancy was in existence and there were no grounds of breach. By this time at all events Mr O'Brien and Miss Matassa were evidently becoming rather fed up. They decided that they had had enough and did not want to carry on with the property any longer than was necessary. By letter, also dated 13th January 2005, they gave notice that they would leave the property on 8th April 2005, on termination of the tenancy. We add that in the event they left rather before then. 22. There was then further correspondence and on 4th February 2005, before the expiry of the previous purported notice, solicitors acting on behalf of the respondent wrote enclosing a further notice, purportedly under section 21(1)(b) of the Housing Act 1988 , relating to assured shorthold tenancies, requiring possession on 7th April 2005. (That, we comment, indicates an intention not to rely further on the previous purported notice.) 23. It was after that that the incidents alleged to constitute counts 2 to 6 occurred. In short, it was alleged that the respondent on 15th February 2005 attempted forcibly to enter the complainants' bedroom and remove pictures and picture hooks (count 2). Count 3 alleged that on or about 4th March 2005 the respondent disconnected the communal washing machine. On about 15th March 2005, it was alleged, the respondent removed the occupiers' food and kitchen utensils from the communal kitchen and locked it so as to deny access (count 4). On about 15th March it was alleged that the respondent disconnected the hot water used by the occupiers (count 5). On 24th March 2005 it is alleged that the respondent removed the shower head and pipe fittings from the bathroom shower (count 6). All this was done, it was alleged, to cause the complainants to give up their residential occupation at the house. Count 1, we should add, related to an incident on 14th January 2005, whereby the respondent, it was alleged, excluded the complainants from the communal living room. 24. The arguments advanced by Mr McGuire to the judge were in summary that by the time of the incidents which were the subject of counts 2 to 6, the complainants were not entitled to be in occupation. They had occupied the premises as licensees under what was an excluded licence under the provisions of section 3A of the 1977 Act . That licence was, it was said, validly terminated by the notice contained in the letter dated 22nd December 2004, with effect from 8th February 2005; and accordingly the complainants thereafter had no protection by reason of the wording of section 3 of the 1977 Act , this being an excluded licence or excluded tenancy. 25. Those arguments were accepted by the judge. In the course of her ruling she said this: "I have to decide what did [the respondent] intend to create when she allowed the two complainants to live in her home, occupy a room in which she lived, sharing with them all living facilities? Having looked through the authorities, I am confident that I have to look at the substance and not the form of the agreement... On basic principles - and I did in fact go back to basic principles of offer and acceptance and consideration - it seems to me that she made an offer of the use of a room in her home on certain terms while it remained in her possession and under her control. They paid and they moved in. I am further with Mr McGuire that the subsequent written document does not reflect the true legal relationship between the parties. In the light of my finding, the complainants were never more than licensees excluded under the Act. They had received notice and were at the time of these incidents and counts 2 to 6 trespassers. There is therefore no occupation under contract, rule or law nor enactment of law." 26. In our judgment the judge was persuaded into error and her conclusion cannot be sustained in law. 27. The principal reason can be quite shortly stated and is this. The notice to quit, purporting to terminate the right of possession or occupation as from 8th February 2005 was, in our judgment, of no effect: just because under the written agreement dated 8th October 2004 the complainants were entitled to occupation for 6 months under the written agreement, until 8th April 2005. 28. Mr McGuire sought to argue before us, as he had before the judge, that the initial oral agreement was for indefinite occupation and that, on ordinary principles, carried with it a right to terminate on notice being one months' notice in this case. 29. But that argument necessarily involves completely suppressing the written agreement and deprives it of any effect. Indeed it is somewhat remarkable that the argument of Mr McGuire connotes denying any validity at all to a written agreement which it was the respondent herself who had requested the complainants to sign. Moreover, as Miss Higgins pointed out in the course of her excellent argument, the respondent herself, as did the complainants, acted in accordance with the terms of the written agreement: for example, by the respondent on occasion giving 24 hours' notice before asking to inspect the bedroom. 30. It may be that that written agreement was concluded after the initial oral agreement and after Mr O'Brien and Miss Matassa had moved in. But a concluded agreement it was; it being freely entered into and also being entered into for mutual consideration - the mutual consideration, among other things, lying in the agreement to grant and agreement to take the premises question for a term of 6 months, for payment of rent and also lying in the mutual obligations that were set out in the document. 31. It is common ground before us that notwithstanding the labelling used in the written agreement, there could not here be an assured shorthold tenancy, if only by reason of the fact of the shared accommodation and the landlord being resident on the premises. But it does not follow at all from that that the agreement did not create a contract. That contract, replacing the prior oral contract, gave a right of occupation for 6 months and only permitted prior termination or re-entry in the event of a breach of that contract. That this is so, as a matter of ordinary contractual law set in the context of land law, is supported (if authority is needed) by the decision in Foster & Robinson [1951] 1 KB 149 . 32. The judge gave no reasons at all for her assertion that the subsequent written document did not reflect the true relationship between the parties. It is not a sustainable proposition. There was no evidence before the judge, on the prosecution case, to justify any argument that the agreement was a sham. Whether or not the agreement, in the context of the actual position for prevailing, gave rise to a licence or tenancy and whether or not it gave rise to an assured tenancy could certainly be debated. But what could not be debated is that the agreement gave rise to a contractual entitlement to occupation, consensually and bilaterally agreed for a term of 6 months with a payment of £495 a month. To that extent the written agreement superseded the previous oral agreement. 33. It follows that the respondent had no legal right to serve the remarkably worded notice to quit requiring possession on 8th February 2005. That notice was invalid and of no effect, as the complainants' solicitors rightly said at the time in correspondence. We add there has been no evidence that there was any breach on the part of the complainant, entitling the respondent to re-enter. As to the asserted ground in the notice of "incompatibility" that, it may be, has a role to play, or at least historically had, in the family courts; but it has no role at all to play in the law relating to re-entry. 34. It follows from all that that for the purposes of section 1(1) of the 1977 Act the complainants were occupying the premises as a residence under a contract; and so, at the time of the alleged offences, were "residential occupiers" entitled to the protection of the 1977 Act . The right of occupation has not come to any end. The counts therefore, on the prosecution evidence, disclosed a case to answer and the judge erred in law in not so deciding. 35. Having reached that conclusion, we think it is unnecessary to deal with Miss Higgins' other points or to decide whether or not what was created here was a tenancy or licence. Having regard to the terms of the written agreement (including, for example, the covenant for quiet enjoyment, the provisions relating to assignment and so on) and having regard to the actualities, we can see quite a lot of force in her submission that here there was a tenancy of the bedroom accompanied by a licence to use the other communal parts. But we need express no concluded view on that and we decline to do so. We think it is rather a pity that the debate in the court below, in focussing so heavily on the distinction between a tenancy and a licence, operated to distract the judge's attention away from what in truth was the central point here: which was that the complainants here had a contractual entitlement to occupation, absent any proven breach of contract, up until 8th April 2005. The appeal is therefore allowed on the basis that the ruling was wrong in law and that ruling must be reverses. 36. All the same, quite where that leaves this case for the future the prosecution may wish to consider. Harassment, if proved, designed to drive an occupier out, can be a very serious matter (although of course we stress nothing has yet been proved in this particular case). Moreover, occupiers in the position of these complainants are not always sufficiently equipped to obtain a remedy by bringing civil proceedings in a County Court. But the reality in this case is that a lot of water has by now flowed under the bridge. On no view can this case, on the facts alleged, be said to be one of the worst of its kind. Further, as matters now stand, these events occurred nearly 3 years ago. The prosecution may therefore wish to consider whether continued pursuit of these proceedings (the prosecution's legal position having now been vindicated in this particular case) will be of any true value. 37. MISS WILKINSON: May I deal with a matter that flows from the matter of the ruling. Paragraph 6 of the skeleton argument in respect of the issue of jurisdiction. The prosecution set out that what was being sought was a reversal of the ruling made by the Crown Court judge, and that an order being sought for the resumption of the proceedings in the Crown Court was therefore the relevant order. That is pursuant to section 61 of the Criminal Justice Act, which sets out the Court of Appeal's powers when dealing with prosecution appeals of this nature. Section 61(1)-- 38. SIR IGOR JUDGE: Are you looking at Archbold? 39. MISS WILKINSON: The 2008 version, page 1143, paragraph 7 - 247. 40. SIR IGOR JUDGE: Yes, thank you. 41. MISS WILKINSON: Section 61(1) provides: "On appeal under section 58 ..." which this of course is "...the Court of Appeal confirm, reverse or vary any ruling to which this appeal relates." Subsection (2) reads: "Subsections (3) to (5) apply where the appeal relates to a single ruling" which in this case it did. Subsection (3): "Where the Court of Appeal confirms the ruling it must..." and then go on with what should flow. Subsection (4): "Where the court reverses or varies the ruling it must in respect of the offence or each offence which is the subject of the appeal do any of the following:- (a) order that proceedings to that offence may be resumed in the Crown Court; (b) order that a fresh trial may take place in the Crown Court for that offence; and (c) order that the defendant in relation to that offence be acquitted of that offence." Subsection (5) reads: "But the Court of Appeal may not make an order under subsection 4(a) or (b) in respect of an offence unless it considers necessary in the interests of justice to do so." 42. So, my Lords, it seems that the ruling has reversed that of the court below and therefore the powers are those available in subparagraphs (a) to (c). 43. SIR IGOR JUDGE: Having had an opportunity to listen to my Lord's observations giving the judgment of the Court, I think it might be sensible for you to take instructions about what order we should be considering making under subsection (4) and subsection (5). 44. MISS WILKINSON: I can certainly do that momentary. 45. SIR IGOR JUDGE: Take your time. Miss Wilkinson, I do not want to put you under any pressure about this. If you want to go out to reflect on it -- I think you have a pretty clear hint of our view -- but if you want to take time to do it, we will get on with the next case and you can come back in half-an-hour to hear. 46. MR JUSTICE WILKIE: My Lord, my instructions are that in any event, making a decision from the Crown's prospective today would likely lead to no final conclusion. What had been the instruction and hence it was set out at paragraph 6 that was the order being sought, would be the resumption of the proceedings in the Crown Court. It would be however a matter for this Court's discretion if this Court felt that it was not in the interests of justice, despite having reversed the ruling in law, still not in the interests of justice there should be the resumption of proceeding, it can so order the defendant be acquitted. 47. SIR IGOR JUDGE: Let us hear what Mr McGuire has to say. 48. MR MCGUIRE: On the basis of the judgment given, the usual order would be for the matter to be resumed in the Crown Court. However the Court has given certain indications as to its overall view. For my part, I am content to wait to hear what the prosecution view is in the light of those observations and proceed from there. My position is that the interests of justice are not served on the facts of this particular case by resuming the trial in view of those final comments. I accept that in respect of the arguments run below, they did not have force. Notwithstanding all of those points, what is to be achieved by a Crown Court trial now? 49. SIR IGOR JUDGE: Do you want to add anything, Miss Wilkinson? I should just say I am not happy -- I have not consulted my colleagues, expressing my own view, a view which is shared by all of us -- by the idea that you come to the Court of Appeal as counsel for Crown, with your solicitors behind you, and between you and your solicitor cannot make up your mind about what we should be doing, what submissions should be made. 50. MISS WILKINSON: The reason for that is this. The complainants need to be consulted. 51. SIR IGOR JUDGE: Do they in a case like this? That is my question. If they should be, why were they not consulted before? 52. MISS WILKINSON: My Lord, what has changed since the initial stance from the prosecution point of view from this morning are comments from your Lordship. Absent those comments, the prosecution felt it was in the interests of justice to bring this case in the first place. Accumulative effects of the acts conducted allegedly by the now respondent in this matter warranted the prosecution of this offence, and it also warranted the bringing of this appeal. That had been our stance this morning, hence the seeking of resumption of the proceedings in the Crown Court. The only additional matter that has changed are the views expressed in respect of the long length of time since this matter arose, about which the complainants do need to be properly consulted. They are the victims of alleged crime in this matter and had patiently, through a long history of a number of trial dates being vacated, attended on each and every occasion-- 53. SIR IGOR JUDGE: I merely asked you why instructions had not been taken from the complainant before you came into court. That is all. 54. MISS WILKINSON: To the extent-- 55. SIR IGOR JUDGE: You must have anticipated the possibility that you might win. You must have anticipated the possibility that, given the time that had elapsed since the original allegation, the facts on which the allegation were based arose, the cost of proceeding in the Crown Court and the public issues generally that somebody might raise a question of whether the case should go on. Obviously you did not. Another time that will be considered. 56. MISS WILKINSON: My Lord, we did to the extent that if this Court felt it was inappropriate in the interests of justice, this Court has the power by virtue of subsection (5). The prosecution feel it is in the interests of justice to proceed and have done to this extant. (Short Adjournment) 57. SIR IGOR JUDGE: For the reasons given by my Lord in the judgment of the Court, we shall reverse the ruling below and to that extent therefore this appeal succeeds. 58. We have come to the conclusion that the interests of justice will not be served by ordering that the proceedings should now be resumed or that a fresh trial should take place. Our reasons are those explained by my Lord in the judgment of the Court. Dealing with it very briefly: first, there is of course the presumption of innocence; second, the delay that has taken place in the proceedings -- I am not blaming anybody for that, but that is the fact of it. Thirdly, there is the possible outcome of the case, if the defendant were successfully prosecuted and the likely sentence, bearing in mind that she is someone of previous good character and there is the overall public interest and the expense involved in this continued litigation.

2008_02_13-1371.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/483/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/483

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[2020] EWCA Crim 1340

EWCA_Crim_1340

2020-09-18

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: [2020] EWCA Crim 1340 CASE NO 202001690/A1 Royal Courts of Justice Strand London WC2A 2LL Friday 18 September 2020 Before: LORD JUSTICE SINGH MRS JUSTICE WHIPPLE DBE MRS JUSTICE MOULDER DBE REGINA V VARINDER SINGH CHANA __________ 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 POWIS appeared on behalf of the Appellant. _________ J U D G M E N T MRS JUSTICE WHIPPLE: On 16 April 2020, in the Crown Court at Wolverhampton, the appellant pleaded guilty to two offences of domestic burglary. On 4 June 2020 he was sentenced in the same court by HHJ Campbell to a period of 5 years and 2 months' imprisonment for each burglary to be served concurrently. He now appeals against that sentence with the leave of the single judge. The facts, in brief, are these. The two offences of burglary had taken place within minutes of each other on 11 February 2020. At 12.36 pm on that day the appellant was seen on CCTV to drive his BMW motor vehicle into the car park of property known as The Haven. This was an estate of sheltered housing for senior citizens and those with mobility problems. The appellant went to the door of No 27 The Haven and knocked on that door. The occupier of that property, named Mr Cartwright, was 80 years old. He answered the door. The appellant introduced himself as someone who was there to do work on the electricity supply and Mr Cartwright let the appellant into the property. The appellant asked Mr Cartwright to make him a cup of tea and while Mr Cartwright was in the kitchen the appellant stole £40 from his wallet along with a bankcard. Once Mr Cartwright returned from the kitchen the appellant had left the property. Mr Cartwright realised that money and a bankcard had been taken and immediately called the bank to cancel the card (count 1). When the appellant left Mr Cartwright's property he knocked on No 28 and the occupant of that property, a Ms Smith, who was 67 years age, answered the door. The appellant made the same excuse to gain access to Ms Smith's property and although she initially hesitated to let the appellant in, she eventually did let him in because the appellant stated there would be consequences if she did not. Once inside No 28 the appellant once again asked for a hot drink and once the drink had been made the appellant made his excuses and left the property. Subsequently Ms Smith discovered that her handbag had been tampered with and £190 in cash had been stolen (count 2). The matter was reported to the site office and the police were contacted. The appellant was thereafter traced as the registered keeper of the vehicle that had been seen on CCTV pulling into the car park of The Haven. He was arrested on 12 February 2020. In interview he denied committing the offences. He admitted being present at The Haven but denied taking anything and went "no comment" in interview. In passing sentence the judge remarked that the appellant had not pleaded guilty to the two offences of burglary at the plea and trial preparation hearing on 12 March but had subsequently changed his pleas to guilty a month or so later on 16 April after a trial date had been set for 10 August 2020. The judge further remarked that the offences had been a targeted and cynical series of offences on vulnerable members of the community, who had been a very easy target for the appellant to approach in a plainly directed and targeted manner. The judge then outlined the facts of the case. She read the victim impact statement of Ms Smith, which described the appellant's offending as "a despicable act" and what the appellant had taken had been a significant amount of money from Ms Smith. The judge said that the offences breached the security and the trust of the people whom the appellant had offended against and the judge concurred that the offences had been undermining and despicable. The judge had been informed that the offences had been committed out of desperation by the appellant due to his addiction to Class A drugs but the appellant had been well clothed and had been driving a BMW when the offences had been committed and had taken £190 belonging to Ms Smith which was a lot of money for her. That made the appellant's submission of desperation a bit difficult for the judge to accept. The appellant's antecedent history (which included 29 convictions for 51 offences) was very poor and included numerous offences of dishonesty. The judge accepted that the appellant's drug taking underpinned his offending and the loss of the appellant's grandfather may have impinged on the appellant's resilience. However, the judge had to look at the offending in the context of the sentencing guidelines. The offending plainly involved greater harm and culpability was also high. The victims had been deliberately targeted and the judge had no doubt that the appellant deliberately targeted them as it would have been easy to extract money from them. She said the offending was aggravated by the appellant's previous convictions and the judge had also taken into account that there had been two offences. Therefore although the starting point may be 3 years' imprisonment in relation to category 1 offending for one offence, that did not take into account the aggravation and the judge had to consider that in relation to the appellant's antecedent record. She would allow 20% credit for guilty pleas which was appropriate given the timing. The offences were very serious offences and the appropriate sentence after a trial would have been one of 6 years and 6 months' imprisonment. Allowing credit of 20% brought those sentences down to 5 years and 2 months on each count concurrent and that was the sentence she imposed. In grounds of appeal Ms Powis, who represented the appellant at the sentencing hearing as she did before us, argues that the judge's starting point for sentence was just too high, when considering the level of harm and the appellant's mitigation which included the fact that he had not been convicted since 2010. In consequence, she submits that the sentences of 5 years and 2 months' imprisonment were manifestly excessive because they were towards the top end of category 1 which is normally reserved for the most serious type of dwelling house burglaries, for example night-time burglaries in occupied dwellings. We thank Ms Powis for her succinct submissions today in advancing these grounds before us. In our judgment, this was plainly offending which fell within category 1 of the guideline. This was greater harm, given that the occupiers were at home. The money stolen from the victims, especially the second victim (Ms Smith) was a lot to them, as Ms Smith had made clear in her victim impact statement. Culpability was high. These were distraction burglaries, targeted at elderly people, living in a sheltered community and the appellant plainly regarded them as easy targets. The category 1 starting point is 3 years within a range of 2 to 6 years. In our judgment, the judge was justified in approaching sentence on the basis that the starting point should be increased to reflect two aggravating features in particular: the fact that there were two offences not one and the existence of significant previous convictions on the part of the appellant. However, in our judgment, the judge also had to reflect the totality in the sentence that she passed. We accept and confirm our view that this was really serious offending of a nature that targeted elderly and frail individuals. There was significant aggravation in the form of the appellant's previous convictions. He was 35 at sentence and had 29 convictions for 51 offences spanning the period from 2000 to 2010. Those convictions included 21 of theft and kindred offences but it is right to point out that there had been a period from 2010 where no offences were recorded, that being after a sentence of 3 years' imprisonment was imposed in May 2010 - that sentence itself being for another dwelling-house burglary. We note that his offending was connected with his long-term addiction to Class A drugs and connected also with personal difficulties suffered by the appellant. Those factors were taken into account by the judge. However, we have stood back from this sentence and asked ourselves whether the sentence passed reflected totality. Taking all factors into account, we conclude that the notional sentence after trial of six-and-a-half years imposed by the judge was too high. It was more than twice the category starting point. We, were we to undertake the sentencing exercise ourselves, would arrive at a sentence after the trial of around about five-and-a-half years. From that we deduct 20% credit for the guilty plea to arrive at a resulting sentence of 52 months. We therefore quash the sentence of 5 years and 2 months which was imposed by the judge and we substitute therefore a sentence of 52 months or 4 years and 4 months. 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_09_18-4974.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2020/1340/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2020/1340

3e04aa555e8969f22a7d427a32fe5d40c0d54826386a99b8c47f87cfdd6d9b77

[2016] EWCA Crim 19

EWCA_Crim_19

2016-02-25

crown_court

Neutral Citation Number: [2016] EWCA Crim 19 Case No: 201501963 B3, 201504636 B3 and 201504633 B3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT CARLISLE HHJ HUGHES QC 20150193 B3 Royal Courts of Justice Strand, London, WC2A 2LL Date: 25/02/2016 Before: LORD JUSTICE DAVIS MRS JUSTICE COX DBE and HIS HONOUR JUDGE KINCH QC (SITTING AS A JUDGE OF THE CACD) - - - - - - - - - - - - - - - Between: BOYLE TRANSPORT (NORTHERN IRELAND) LTD Appellant v R Respondent And Between

Neutral Citation Number: [2016] EWCA Crim 19 Case No: 201501963 B3, 201504636 B3 and 201504633 B3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT CARLISLE HHJ HUGHES QC 20150193 B3 Royal Courts of Justice Strand, London, WC2A 2LL Date: 25/02/2016 Before: LORD JUSTICE DAVIS MRS JUSTICE COX DBE and HIS HONOUR JUDGE KINCH QC (SITTING AS A JUDGE OF THE CACD) - - - - - - - - - - - - - - - Between: BOYLE TRANSPORT (NORTHERN IRELAND) LTD Appellant v R Respondent And Between PATRICK BOYLE MARK BOYLE Applicants v R 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) - - - - - - - - - - - - - - - Julian Knowles QC (instructed by McNamee McDonnell Solicitors LLP ) for the Appellant Simon Medland QC (instructed by the Crown Prosecution Service ) for the Respondent Andrew Bodnar ( instructed by Stephensons Solicitors) for the Applicants Hearing date: 26 TH January 2016 - - - - - - - - - - - - - - - Judgment Lord Justice Davis: Introduction 1. By an order of 27 March 2015 made in the Carlisle Crown Court an enforcement receiver was appointed over the realisable assets of Patrick Boyle and Mark Boyle. That order also extended to certain assets held in the name of Boyle Transport (Northern Ireland) Limited, the appellant in this case. This step was taken with a view to achieving recovery of the amounts of confiscation orders previously made in the Crown Court under the provisions of the Proceeds of Crime Act 2002 (“the 2002 Act”) as long ago as 25 March 2013, against Patrick and Mark Boyle. 2. This appeal involves considering the application of the doctrine of lifting or piercing the corporate veil (using, as a short hand, the ugly metaphorical language which has become established by use). In reaching his decision to extend the appointment of the enforcement receiver over assets of Boyle Transport (Northern Ireland) Limited (“the New Company”) the Judge lifted, or pierced, the corporate veil with regard to a company called Boyle Transport Limited (“the Old Company”), which had itself caused certain of its assets to be transferred on 1 July 2011 to the New Company. The Judge found that transfer not to be genuine. The Judge treated the turnover and assets of the Old Company, and hence the relevant assets ostensibly transferred to the New Company, as property obtained by and belonging to Patrick and Mark Boyle individually. The question on this appeal is whether he was justified in doing so. 3. In consequence of this appeal of the New Company, brought by leave of the Single Judge, Patrick and Mark Boyle themselves seek leave to appeal against the original confiscation orders made against them on 25 March 2013. They require a very lengthy extension of time if to be permitted to do so. It is made clear on their behalf that their applications are prompted by and dependent on the New Company’s appeal. If that fails then it is accepted that their applications necessarily must fail (subject to a point raised in the case of Patrick Boyle as to the length of the default period imposed, by reason of the present state of his health). If it succeeds, then it is said that the confiscation orders originally made against them will have been shown to have been made on an incorrect basis. 4. The points raised on this appeal among other things require consideration in the context of confiscation proceedings of the decision of the Supreme Court in the case of Prest v Petrodel Resources Limited [2013] 2 AC 415 , [2013] UKSC 34 and the subsequent decision of a constitution of this court in Sale [2014] 1 CAR(S) 60, [2014] EWCA Crim 1306 . 5. The appellant New Company was represented before us by Mr Julian Knowles QC. The Crown was represented before us by Mr Simon Medland QC. The applicants, who had not been represented by counsel at the enforcement receiver hearing below, were represented before us by Mr Andrew Bodnar. The case was well argued on all sides. Background facts 6. The background facts giving rise to the issues raised are these. 7. The Old Company was, as we were told, incorporated in Northern Ireland on 1 August 2003. It was established and operated as, in effect, a family business. At all relevant times, the sole directors were Patrick and Mark Boyle, father and son. 8. Between them, Patrick and Mark Boyle had a 50.1% shareholding in the Old Company, thus enabling them, if they acted together, to pass or defeat ordinary resolutions of the company. Patrick Boyle had a 30.1% shareholding. Mark Boyle had a 20% shareholding. The remaining shareholders were Mary Boyle, the wife of Patrick Boyle, who (ignoring exact percentages) held 20% of the shares and their other two sons, Neil and John Boyle, who each had, 15% of the shares. 9. It is to be noted that in the proceedings below it was not suggested, and no evidence was put in to the effect, that Mary Boyle, Neil Boyle and John Boyle held their shares as nominees or bare trustees for Patrick and/or Mark Boyle. However, the Judge was to find as a fact that with regard to the actual operations of the Old Company Patrick and Mark Boyle were the “operating minds” of the Old Company. 10. We were not shown any of the accounts of either the Old Company or the New Company. However, we were supplied with copies of two section 16 statements put in on behalf of the Crown Prosecution Service in the course of the confiscation proceedings. From those it appears that the Old Company was set up to take over a pre-existing road haulage business established and run by the Boyle family. Its turnover was substantial. It operated a fleet of Heavy Goods Vehicles undertaking commercial journeys both in the United Kingdom and in Europe. In each year after incorporation (save one) up to 31 July 2009 the turnover of the Old Company, according to its accounts, very significantly exceeded £3 million. Gross profits significantly exceeded £1 million in each year. 11. The business of the Old Company was based in Newry, County Down. It operated from premises adjoining the home belonging to Patrick and Mary Boyle. 12. The nature of the business was such as to require the Old Company to comply with the relevant Regulations relating to the use of tachographs and drivers’ hours. In 2006 and 2008 the Old Company had in fact been fined for failure to keep proper records. The indications are that fines were also sometimes incurred by drivers of such vehicles whilst travelling on the Continent. 13. In October 2008 a number of the Old Company’s lorries were stopped by police on the motorway near Penrith, Cumbria. Investigations showed that the tachographs had been cunningly tampered with and false records also kept. A subsequent attempt by Patrick Boyle to get rid of incriminating evidence failed. The truth emerged. Charges were in due course laid against Patrick and Mark Boyle for conspiring to make false instruments. Some of the drivers were also charged, as was Neil Boyle who himself worked for the Old Company. The period of the conspiracy was particularised as between 30 November 2007 and 30 November 2008. In addition, there were charges of doing acts tending and intended to pervert the course of justice brought against Patrick and Mark Boyle: as well as various charges of forgery brought against them and Neil Boyle and individual lorry drivers. In due course, a number of the drivers were to make statements incriminating Patrick and Mark Boyle. 14. Each of Patrick and Mark Boyle eventually pleaded guilty on 18 February 2011 to the count of conspiracy. (In the meantime a Restraint Order had been made against them on 30 September 2010.) Shortly thereafter each of Patrick and Mark Boyle resigned as a director of the Old Company. Neil Boyle was appointed its sole director. In the light of the pleas the Crown had elected, it is said on pragmatic grounds, not to proceed further against Neil Boyle and not guilty verdicts had been directed in his case. 15. They were sentenced in the Carlisle Crown Court by Judge Peter Hughes QC on 28 April 2011. Patrick Boyle was sentenced to a term of 2 years imprisonment. Mark Boyle was sentenced to a term of 18 months imprisonment. Both were disqualified from acting as company directors for a term of five years. 16. In his sentencing remarks of 28 April 2011 the Judge clearly and concisely summarised the position in this way: “In my judgment you flagrantly and persistently circumvented the driver hour regulations for your own commercial purposes. Together you operated a system of deception. You equipped your vehicles and provided your employees with the means to alter what the tachograph recorded. You imposed unreasonable expectations upon your drivers, expecting them to undertake journeys that would be simply impossible without breaking the regulations, and you required them to undertake alone journeys, for example to Frankfurt and Paris, which should have been operated by two drivers working in turns. You placed them under pressure to do your bidding by paying them not by the hour but by the trip and dealt with any objection by the blunt reminder that you can always find someone else willing to do the work. Quite simply your recruited them to your dishonest practices and made them instruments of it. This was not done for their benefit, save that it provided them with employment. It was, though, done for yours in that by illegal means you were enabled to run a profitable business and make monies for yourselves and your families. In 2008 one driver had had enough. In simple but eloquent terms he summed up what was so wrong about your way of business. He used these words, “I am not a hero, and I am not prepared to risk my life, other people’s lives or jail sentence for you to make profit and still pay poor wages for the amount of hours you expect people to work.” That driver said that after he had been required by you to drive for nearly 37 hours without a daily rest to make his ferry crossing and deliver a load to Heysham.” The Judge went on to record that there had also been a policy of not keeping records. He noted the attempts of Patrick Boyle to destroy incriminating evidence. He found that the drivers had painted “a graphic and consistent picture of how you ran the business.” He understandably emphasised the underpinning rationale of the relevant Regulations and the dangers occasioned to road users and others by failure to comply with them. 17. The Judge in his sentencing remarks found that the alterations to the vehicles’ tachographs (accompanied by falsification of records) were sophisticated. He then said: “…it is perfectly plain that it was done purely and simply with a view to increased profits, which had behind it as well not only the dangers that I have referred to but the unfairness of competition to fair traders.” The Judge found that Patrick Boyle had “primary responsibility” as the head of the family business and as the one who was in “overall charge”. The Judge found that Mark Boyle was “closely involved in the management of the business.” The confiscation proceedings 18. A confiscation timetable was set at the date of the sentencing hearing. Voluminous statements appear thereafter to have been filed although we were not shown all of them. 19. The Crown Prosecution Service had retained the services of an expert forensic accountant, Mr Winch. He analysed what was considered by him to be a representative sample of the Old Company’s invoices in the period 1 January 2008 to 12 October 2008. His assessment was that some 91% of those invoices related to journeys which had at some stage involved breach of the relevant Regulations. His conclusion, unsurprisingly, was that contraventions of the Regulations were “prevalent” throughout the mainstream commercial haulage operations of the Old Company during the period examined. Accordingly, the Crown asserted in its section 16 statements that company drivers were “routinely” breaching such Regulations. 20. In its initial section 16 statement, the Crown placed reliance on observations made by a constitution of this court in the case of Seager & Blatch [2010] 1 CAR(S) 60, [2009] EWCA Crim 1303 : a case to which we will come in due course. Basing itself on that case the Crown asserted that the benefit obtained by Patrick and Mark Boyle corresponded to 91% of the adjusted turnover of the Old Company. Further, this was – as was and is common ground – a criminal lifestyle case for the purposes of the confiscation proceedings. By reference to the 6 year period to be taken into account accordingly, the benefit was initially assessed as £17,835,513, attributed to both jointly. 21. In a subsequent section 16 statement it was asserted on behalf of the Crown that the inference was that the Old Company could not have continued in business had the offences not been committed. In the earlier statement, however, it was noted that for the year ending 30 July 2009 (that is, after the criminality had been detected) the gross profit rate declined sharply from over 50% to around 38%: “presumably a reflection of the additional cost of legitimacy.” 22. The first section 16 statement also ascribed a value to the shareholdings of Patrick and Mark Boyle of (in round terms) £150,750 and £100,500 respectively. 23. The response of the expert instructed by the defence appears to have been, as subsequently recounted by the Judge, not to dispute the prosecution’s methodology in attributing company turnover to the defendants as benefit. Rather what was asserted was that, of the representative sample of journeys taken, some 51.78% were capable of having been conducted so as to comply with the Regulations. On that basis, the benefit figure produced was £10,016,810. 24. The Crown did not formally accept this approach. But in the result the amounts of benefit were agreed at the confiscation hearing. The value of benefit was in each case accepted as £10,016,810 (it was said by the Crown that to argue the matter would have been pointless, in view of the size of the available amounts). 25. As to the available amounts, these were agreed at £1,097,622 and £738,171 (as subsequently varied) respectively. Confiscation orders were made on 25 March 2013, certifying such sums as the recoverable amounts, payable within 6 months (subsequently extended), with default periods of 5½ years imprisonment and 4 years imprisonment respectively. It is of importance to note that the available and realisable assets of Patrick Boyle as scheduled to the confiscation order were stated to include, among other items, £306,365 representing assets of the Old Company and £216,000 representing vehicles and trailers transferred to the New Company. The like items were included in the scheduled available and realisable assets of Mark Boyle. 26. Thus far there has been recovered from Patrick Boyle the sum of £145,944 and from Mark Boyle the sum of £25,090. Each has in the course of 2015 been returned to prison by the Magistrates Court in order to serve the default sentence. The transfer of assets to the New Company 27. How the New Company came to be involved is explained in this way. 28. As we have said, each of Patrick and Mark Boyle resigned as directors of the Old Company in February 2011 (and were subsequently disqualified in any event when sentenced on 28 April 2011) and Neil Boyle then was appointed the sole director of the Old Company. 29. On 9 May 2011, shortly after the sentencing hearing, the New Company was incorporated in Northern Ireland. This was at a time when it was known that the Freight Operator’s licence of the Old Company was about to be revoked and when it was known what the outcome of the sentencing hearing had been. The directors of the New Company were Neil Boyle and a Mr McGovern, who had apparently been the business’s transport manager. We were not told who the shareholders in the New Company were. 30. What then happened was this. 31. The entire fleet of vehicles and trailers of the Old Company, and other assets, were transferred to the New Company, as evidenced by an invoice dated 1 July 2011. It does not appear that there was any written Sale and Purchase Agreement. We have not been shown any minute or written resolution of the directors or shareholders of either company approving such sale and purchase. No money, at all events, apparently changed hands, although the invoice stated the consideration as £597,000 plus VAT of £119,400: a total of £716,400. The matter was treated as an accounting transaction. An operator’s licence was then obtained by the New Company. It has since continued to trade from the same premises as before and, it seems, with essentially the same customer base as that of the Old Company. 32. It was the Crown’s case that this transaction was not genuine but a mere device, designed not only to deal with the forthcoming revocation of the Old Company’s licence (a point not disputed by the New Company) but also to circumvent the anticipated confiscation orders (a point which was disputed): and being thereby tainted. 33. This issue was one of those that had to be decided by the Judge on the application by the prosecution for the appointment of an enforcement receiver. He heard evidence, including evidence from Mr Gerald Boyle, called by the New Company as an expert forensic accountant although scarcely independent, as he is related to Patrick, Mark and Neil Boyle. Mr Winch gave evidence for the Crown. The Crown was saying that this was in effect a phoenix fraud. 34. The Judge was to find on the evidence - saying that he had “no hesitation” in doing so – that this was not a genuine transaction. He gave ample reasons for so concluding. The “true reality of the situation”, in the words of the Judge, was exposed by the accounts. Further, no cash had changed hands: and the accounting exercise advanced showed no proper correlation between the figures and the invoice figure. There was also no evidence that the VAT was ever paid; the treatment of directors’ loan accounts could not be reconciled or explained satisfactorily; and the treatment of goodwill was also not explained. (The Judge, incidentally, made no finding as to the precise knowledge and involvement of Patrick and Mark Boyle in the transaction.) 35. As the Judge put it: “The vehicles were simply put in [the New Company’s] name and the business carried on. The only outward sign of any change was the inclusion of (NI) in the company name.” 36. We need not, however, give any more detail: since Mr Knowles realistically accepted that he could not on this appeal challenge the Judge’s factual assessment and conclusion on this aspect of the case. The legal background 37. In order to explain the Judge’s reasoning and conclusion on the central issue and in order to explain the parties’ respective arguments before this court it is necessary to refer to the relevant statutory provisions of the 2002 Act and to the principal relevant authorities relating to confiscation and to lifting or piercing the corporate veil in this context. 38. For his purposes, Mr Knowles was in effect able to put to one side the Judge’s finding that the transfer of the assets to the New Company was not genuine. His point came to this. If an enforcement receiver was to be appointed over assets of the New Company that could only be with a view to recovering the amounts of the confiscation orders. Those assets, however, necessarily had to represent realisable property of each of Patrick and Mark Boyle. But the amount of those realisable assets, as had been the amount of the benefit, had been calculated by reference to the inclusion of turnover and assets formerly obtained by and held in the name of the Old Company. Accordingly, if the assets in the name of the New Company as purportedly transferred from the Old Company were to be the subject of the appointment of an enforcement receiver that could only properly be achievable if such assets were not, in law and in fact, the property of the Old Company but were, in law and in fact, the property of Patrick and Mark Boyle. The logic of this approach is impeccable. Nor did Mr Medland seek to controvert it. 39. It follows that, as the Judge accepted and as this court accepts, the inquiry had and has to be whether the turnover and assets ostensibly belonging to the Old Company in truth were to be regarded as the property of Patrick and Mark Boyle. If the turnover of the Old Company did not belong to them as individuals then such turnover could not represent benefit obtained by them. If the assets held in the name of the Old Company did not belong to them as individuals then such assets could not represent part of the available amounts. That is precisely where the arguments relating to lifting or piercing the corporate veil kick in. (1) The 2002 Act 40. The scheme of the 2002 Act is all too familiar to those practising in this field. It therefore does not require any detailed exposition here. 41. Section 6 sets out the circumstances in which a confiscation order in the recoverable amount may be made by the Crown Court. Section 7 relates to the calculation of the recoverable amount: in broad terms, the lower of the benefit or the available amount. Section 8 relates to the calculation of the benefit. Section 9 relates to the calculation of the available amount. Section 10 relates to the rebuttable presumptions required to be made in criminal lifestyle cases. 42. The overall scheme was summarised by Lord Bingham in the case of May [2008] 1 AC 1028 , [2008] UKHL 28 and in the well-known three stage test he formulated. (1) Has the defendant benefited from relevant criminal conduct? (2) If so, what is the value of the benefit so obtained? (3) What sum is recoverable from the defendant? 43. Section 76 relates to conduct and benefit. Sub-sections 76(4)(6) and (7) provide: “(4) A person benefits from conduct if he obtains property as a result of or in connection with the conduct. ………… (6) References to property ….obtained in connection with conduct includes references to property…. obtained both in that connection and some other.” (7) If a person benefits from conduct his benefit is the value of the property obtained.” In the present case, of course the court had to assess general criminal conduct (defined in s. 76(2) as “all his criminal conduct”): not particular criminal conduct. There is a wide definition of “property”. 44. Section 50 of the 2002 Act empowers a court to appoint a receiver in respect of realisable property. Section 93 provides that realisable property is “any free property held by the defendant”, as well as any free property held by the recipient of a tainted gift. (2) The previous authorities 45. The starting point here has to be the famous case of Salomon v A. Salomon & Co. Limited [1897] AC 222 . It may be suspected that, although this case is often referred to, it is rarely formally cited and, perhaps, nowadays rarely even actually read. But the case established some core propositions which continue to be at the heart of English company law. These are, in sum, that a limited liability, or joint stock, company has a legal status and existence which is separate from that of its shareholders and directors. In consequence, the liabilities of such a company are not the liabilities of its shareholders and directors individually; and, correspondingly, the assets of the company belong to neither the directors nor the shareholders individually. And that is so whether or not the shareholder wholly controls, and wholly owns 100% of the shares in, the company. 46. In the Court of Appeal in Salomon [1895] 2 Ch. 323 , it had been held, in very strong terms, that the formation of the company and the issue of debentures to investors had been a mere “scheme” - indeed a “device to defraud creditors” - and that the companies’ legislation had “never contemplated” an extension of limited liability to sole traders. The company thus was taken to be the agent or trustee of Mr Salomon himself. 47. The House of Lords, in no less strong terms, disagreed. The principle relating to the separate legal status of a limited liability company – a central aim of the companies’ legislation – was proclaimed. But for present purposes it is also important to note that this was asserted as much with regard to “one man” companies as to companies with several directors or shareholders. This is made explicit in the speeches of Lord Halsbury at page 43, Lord Herschell at pages 44-45, Lord McNaghten at page 53 and Lord Davey at pages 54-55: and was stated to be so even where the other shareholders on the register (at that time it was a statutory requirement that there be several shareholders on the register) were nominees or “dummies” for the incorporator. 48. Reflecting that decision, and the fundamental role which limited liability companies play in commerce, there have subsequently been numerous authorities which have rebutted any notion that an exception can be carved out to the principle of the separate legal status of a limited company by reliance on what was asserted in any given case to be “just.” That has been affirmed by the Court of Appeal in, for example, Adams v Cape Industries Plc [1990] Ch. 43 ; re-affirmed, in the context of a criminal confiscation case, in Seager & Blatch ; and confirmed in Prest itself. 49. Much cited in the particular context of confiscation cases is the trilogy of decisions of the House of Lords in May ; Jennings v Crown Prosecution Service [2008] 1AC 1046 , [2008] UKHL 30 ; and Green [2008] 1 AC 1953 , [2008] UKHL 30 . Of particular potential relevance for present purposes is Jennings . 50. In Jennings , an advance fee fraud was carried on through the medium of a limited company called UK Finance (Europe) Limited over a period of 9 months. The sole director and sole shareholder was a Mr Phillips. He, with others, pleaded guilty to the fraud. Jennings was neither a director nor a shareholder: he was an employee, albeit alleged by the prosecution to be a “prime mover” in the conspiracy. (Jennings was in the event ultimately convicted after a trial.) In restraint proceedings brought prior to the trial under the legislation preceding the 2002 Act Jennings had argued that his benefit was confined to his salary and related payments and that it should not be assessed by reference to the total amount of money obtained in the name of the company by the alleged fraud. He thus had opposed the making of a restraint order over all his assets pending his trial. The matter arrived in the House of Lords after the trial. Under the heading “Piercing the corporate veil” the committee, in an opinion delivered by Lord Bingham, said this at paragraph 16: “16. In the ordinary way acts done in the name of and on behalf of a limited company are treated in law as the acts of the company, not of the individuals who do them. That is the veil which incorporation confers. But here the acts done by the appellant and his associate Mr Phillips in the name of the company have led to the conviction of one and a plea of guilty by the other. Thus the veil of incorporation has been not so much pierced as rudely torn away. The crux of the appellant's case, moreover, is that the prime mover in the company was Mr Phillips, not himself, a case which can only be explored by examining the internal management of the company, an examination inconsistent with the treatment of the relevant acts as those of the company. There is no merit in this point.” 51. Mr Medland placed reliance on this passage. Mr Knowles disputed its importance for the present case, as we shall come on to explain. 52. Mr Knowles cited to us the decision of a constitution of this court in Xu [2008] EWCA Crim 2372 . In that case, the two appellants ran a restaurant business through a limited company, of which each was a 50% shareholder. It was established that three of the company’s employees were illegal immigrants, to the knowledge of the appellants. They were convicted of immigration offences accordingly. It was accepted that the business would have been viable even without use of these illegal immigrants, albeit at reduced capacity and, no doubt, reduced profit. The trial judge, for the purposes of the confiscation proceedings, treated the entire proceeds of the business as the benefit of the appellants resulting from the criminality. 53. In an ex tempore judgement of the court delivered by Toulson LJ it was accepted that the question was “essentially one of fact.” It was held that it was not realistic or just to conclude that the entirety of the receipts from each customer flowed from the employment of the illegal immigrants. Nevertheless, and in the absence of better evidence, it was decided that one–quarter of the receipts of the business over the relevant period came from the employment of the three illegal immigrants. That was the benefit figure substituted, as so calculated, and it represented the amount of the confiscation orders. 54. What is not altogether clearly explained in Xu, with respect, is how one - quarter of the receipts which ostensibly were to be attributed to the company came to be attributed to the appellants as individuals. But the point was specifically addressed in the important case of Seager & Blatch , as we mention below. 55. Mr Knowles also referred us to and relied on the case of Grainger [2008] EWCA Crim 2506 . In that case, in fact decided the day before Xu, the appellant was convicted of a number of counts of fraudulent trading. He had knowingly been party, with others, to carrying on the business of a company - in the face of looming liquidation - to obtain payment from a bank on fraudulent invoices presented under an invoice discounting facility. 56. The company (more accurately, a group of companies) was controlled by a man called Prudhoe. The appellant, Grainger, held a 5% shareholding and was the group finance director. As group finance director, he received a salary, expenses and other benefits. The prosecution invited the court to calculate benefit in a pro-rata amount (equally with the other accused) of the total sums dishonestly obtained from the bank. The trial judge acceded to that, finding that the appellant had “joint control”, with Prudhoe at the head, and “joint and fully active responsibility”. In an ex tempore judgment, again delivered by Toulson LJ, the Court of Appeal rejected that conclusion. It was stated that “it is necessary to examine what in reality the offender obtained.” It was held that the “true nature” of the benefit which Grainger obtained was the benefit from his continued employment by a company which otherwise would have gone into liquidation. But the trial judge had never valued the benefit on that basis, and so had erred. In the course of giving the judgment of the court, Toulson LJ also said this: “14. The moral is that in such cases it is essential, first, for the prosecution and then for the judge to look to see what real benefit the offender has obtained and to examine the evidence relating to it in order to arrive at a fair valuation. In our judgment, there is no obvious or indeed logical link between the benefit which the judge described and a twelfth share of the sums obtained by the companies. 15. The confiscation order based on treating the payments by the banks to the companies as equivalent to payments to the appellant cannot, in our judgment, stand. It should not be thought that it follows from this that offenders can shelter behind companies with impunity. If an offender chooses to use a company as a shield to hide his benefits from crime, it is open to the court to look behind the corporate veil in order to ascertain the true position. Again, it is necessary in each case for the prosecution in the first instance and then the judge to examine the facts in order to see what benefit the offender has in truth obtained and how it should be valued.” 57. The next case to which we were referred is the case of Seager & Blatch itself. That was a case where a constitution of this court had to consider whether individuals who, in two separate cases, had acted as directors of companies when disqualified under the Company Directors Disqualification Act 1986 had obtained benefit, for the purpose of confiscation proceedings, in an amount equating to the relevant company’s turnover. It was held that they had not. 58. The court considered a number of authorities, including Xu and Grainger . The court was evidently puzzled - and, if we may say so, with some reason - by the approach taken in Xu : in that one analysis of the reasoning in that case would suggest, as Aikens LJ put it, a failure to take into account “the basic legal distinction between the legal entity which is the company and its shareholders” and that “the property of the company is not the property of its shareholders” (paragraph 54). The court concluded that the court in Xu must have decided that the appellants had used the company as a shield to hide benefits from crime, thereby enabling the court to “look behind the corporate veil to ascertain the true position”. That certainly provides some kind of juridical explanation for the decision in Xu . But, we have to say, it is not altogether easy to align with the facts of Xu : where the company was, so it seems, operating a legitimate restaurant business to which the employment of illegal immigrants was but an ancillary, albeit profit enhancing, part. It also, in terms of apportioning one-quarter of the company’s turnover between the two appellants, perhaps may not be altogether easy to fit with the provisions of s.76(6) of the 2002 Act. It may be that the decision in Xu is in reality to be explained, in the absence (as the court there stressed) of adequate evidence and at a time when no power to remit to the Crown Court was available, by the adoption of a purely rough and ready (and pragmatic) basis by reference to a proportion of the company’s turnover. 59. Be that as it may, the court in Seager & Blatch engaged in an extensive review of the authorities and statutory provisions and of the competing arguments. Having done so, it said this at paragraph 76: “76. There was no major disagreement between counsel on the legal principles by reference to which a court is entitled to "pierce" or "rend" or "remove" the "corporate veil". It is "hornbook" law that a duly formed and registered company is a separate legal entity from those who are its shareholders and it has rights and liabilities that are separate from its shareholders: Salomon v A Salomon & Co Ltd [1897] AC 22 ; referred to by Rose LJ in Re H and others (restraint order: realisable property): [1996] 2 All ER 391 at 401F. A court can "pierce" the carapace of the corporate entity and look at what lies behind it only in certain circumstances. It cannot do so simply because it considers it might be just to do so. Each of these circumstances involves impropriety and dishonesty. The court will then be entitled to look for the legal substance, not just the form. In the context of criminal cases the courts have identified at least three situations when the corporate veil can be pierced. First if an offender attempts to shelter behind a corporate façade, or veil to hide his crime and his benefits from it: see Re H and others, per Rose LJ at 402A; Crown Prosecution Service v Compton and others [2002] All ER (D) 395, [2002] EWCA Civ 1720 , paragraph 44 – 48, per Simon Brown LJ; R v Grainger, paragraph 15, per Toulson LJ. Secondly, where an offender does acts in the name of a company which (with the necessary mens rea) constitute a criminal offence which leads to the offender's conviction, then " the veil of incorporation is not so much pierced as rudely torn away": per Lord Bingham in Jennings v CPS, paragraph 16. Thirdly, where the transaction or business structures constitute a "device", "cloak" or "sham", ie. an attempt to disguise the true nature of the transaction or structure so as to deceive third parties or the courts: R v Dimsey [2000] QB 744 at 772 (per Laws LJ), applying Snook v London and West Riding Investment Ltd [1967] 2 QB 786 at 802, per Diplock LJ.” 60. The court went on to allow the appeals of the individual appellants. In doing so, it placed emphasis on the fact that in each case the company had not been used for any illegal purpose from which the respective appellants themselves benefited. The companies were “legitimate legal entities” carrying on a “legitimate business” (paragraphs 78, 79 and 83). It was further pointed out in paragraph 80, May being cited for this purpose, that while legal ownership connotes a power of disposition or control the “converse is plainly not the case”: a power of disposition or control does not necessarily mean the person having such power is an owner. The court went on to hold that, in the circumstances of those cases, neither Mr Seager nor Mr Blatch owned the assets of the respective companies. The companies did. It may also be noted that Mr Blatch, at least, had been sole ultimate shareholder and effectively controlled the companies in question of which he had acted as a director. 61. That brings us to the case of Prest . The essential issue there was whether the corporate veil could be pierced or disregarded for the purposes of an ancillary relief application in matrimonial proceedings, in circumstances where the husband was sole shareholder of a number of companies holding valuable properties. It seems that at that time many judges of the Family Division, in part basing themselves on s. 24 of the Matrimonial Causes Act 1973 and by reference to what were said to be “the realities”, had considered that they had power in cases of this kind to disregard the corporate veil in order to achieve justice for the claimant spouse. One can have an amount of understanding for that approach: in the striking phrase of Thorpe LJ in the Court of Appeal (at paragraph 63) the contrary approach, on one view, could present “an open road and a fast car” to a spouse anxious to avoid a swingeing award. 62. But the majority of the Court of Appeal, and the Supreme Court unanimously, would have none of it. Whilst in the result the Supreme Court reached a conclusion in favour of the wife, it did so on the footing that the various properties were, on the facts, held by the companies on trust for the husband; and so, by that route, could be brought into account in the ancillary relief proceedings. But the basic principle of Salomon was most emphatically affirmed in this context. 63. It is of note that in their judgments Lord Sumption and Lord Neuberger – referring to what they considered were the rather imprecise formulations in previous cases where “piercing” the corporate veil had been discussed and also referring to academic comment and criticism – considered whether there should be any doctrine of piercing the corporate veil at all . In the result they concluded, as did all the other members of the court, that there should be. But it was emphasised that the power to “pierce” the corporate veil was “limited”. It was also said, by Lord Mance and by Lord Clarke, that situations giving rise to piercing the corporate veil as a fall-back were likely to be “rare” or “very rare”. 64. The principal judgment was given by Lord Sumption, with whose reasoning on piercing the corporate veil Lady Hale and Lord Wilson agreed (paragraph 96), as did Lord Mance (paragraph 97) and Lord Clarke (paragraph 103). 65. The judgment of Lord Sumption contains a very full review of the nature of the doctrine and of the authorities and a close analysis of the principles properly to be extracted from them: see paragraphs 16 to 35 of his judgment. In paragraph 27 he said this: “In my view, the principle that the court may be justified in piercing the corporate veil if a company’s separate legal personality is being abused for the purpose of some relevant wrongdoing is well established by the authorities….” In paragraph 28 he then identified two principles underlying the frequent references in the cases to piercing or disregarding the corporate veil where the company was said to be a “facade” or a “sham”. He said this: “28. The difficulty is to identify what is a relevant wrongdoing. References to a “facade” or “sham” beg too many questions to provide a satisfactory answer. It seems to me that two distinct principles lie behind these protean terms, and that much confusion has been caused by failing to distinguish between them. They can conveniently be called the concealment principle and the evasion principle. The concealment principle is legally banal and does not involve piercing the corporate veil at all. It is that the interposition of a company or perhaps several companies so as to conceal the identity of the real actors will not deter the courts from identifying them, assuming that their identity is legally relevant. In these cases the court is not disregarding the “facade”, but only looking behind it to discover the facts which the corporate structure is concealing. The evasion principle is different. It is that the court may disregard the corporate veil if there is a legal right against the person in control of it which exists independently of the company’s involvement, and a company is interposed so that the separate legal personality of the company will defeat the right or frustrate its enforcement. Many cases will fall into both categories, but in some circumstances the difference between them may be critical. This may be illustrated by reference to those cases in which the court has been thought, rightly or wrongly, to have pierced the corporate veil.” 66. After a review of those further authorities and after making reference to “the broader principle that the corporate veil may be pierced only to prevent the abuse of corporate legal personality”, he said this at paragraph 35: “I conclude that there is a limited principle of English law which applies when a person is under an existing legal obligation or liability or subject to an existing legal restriction which he deliberately evades or whose enforcement he deliberately frustrates by interposing a company under his control. The court may then pierce the corporate veil for the purpose, and only for the purpose, of depriving the company or its controller of the advantage that they would otherwise have obtained by the company’s separate legal personality. The principle is properly described as a limited one, because in almost every case where the test is satisfied, the facts will in practice disclose a legal relationship between the company and its controller which will make it unnecessary to pierce the corporate veil. Like Munby J in Ben Hashem , I consider that if it is not necessary to pierce the corporate veil, it is not appropriate to do so, because on that footing there is no public policy imperative which justifies that course. I therefore disagree with the Court of Appeal in VTB Capital who suggested otherwise at para 79. For all of these reasons, the principle has been recognised far more often than it has been applied. But the recognition of a small residual category of cases where the abuse of the corporate veil to evade or frustrate the law can be addressed only by disregarding the legal personality of the company is, I believe, consistent with authority and with long-standing principles of legal policy.” 67. Agreeing as to the outcome, Lord Neuberger, in the course of his judgment, said this at paragraph 61: “I also agree that cases concerned with concealment do not involve piercing the corporate veil at all. They simply involve the application of conventional legal principles to an arrangement which happens to include a company being interposed to disguise the true nature of that arrangement. Accordingly, if piercing the corporate veil has any role to play, it is in connection with evasion” Whilst not disagreeing with Lord Sumption, other members of the court were somewhat disinclined to accept the overall doctrine as necessarily limited to situations of “concealment” or “evasion”: whilst regarding it as neither necessary nor appropriate to identify any wider principle. It is, at all events, to be noted that the Supreme Court concluded that the ownership of the properties was not to be attributed to Mr Prest under the concealment principle, on the facts of that case. 68. In the context of confiscation proceedings the issue of lifting or piercing the corporate veil was then raised before a constitution of this court in S ale (cited above), which was decided shortly after the decision in Prest . 69. In Sale the appellant was sole shareholder and sole director of a company (which, as it happened, included his name in its own corporate name). The company had been incorporated in 2004 for the legitimate purpose of providing service and maintenance support to large organisations. It had many employees, had a very substantial annual turnover of nearly £10 million and traded with a wide range of reputable companies. It was, as found, a “legitimate business” (paragraph 12). However, between 2006 and 2008 Sale offered bribes and inducements to an employee of Network Rail in order to secure contracts from that particular organisation. Over £2 million worth of ensuing contracts were invoiced and some £1.9 million paid by Network Rail to the company. In due course he pleaded guilty to corruption. In the ensuing confiscation proceedings the criminal lifestyle provisions were not invoked. 70. A confiscation order was made in the sum of £1.9 million, representing the sums received from Network Rail. It had been argued, however, by leading counsel on behalf of Mr Sale that the corporate veil should not be lifted or pierced. The company was not a sham: it had a legitimate business. The contracted work had been carried out and Network Rail had in fact received full value. The appellant had in no way hidden behind the company to carry out his crimes. In such circumstances, it was argued, the benefit obtained by Mr Sale was limited to his personal benefit; representing increased salary and dividends and so on, appropriately apportioned: this amounting to a sum of £125,000. The arguments of leading counsel appearing for Mr Sale, as recorded in paragraphs 16, 22 - 24 and 31 of the judgment of the court delivered by Treacy LJ, in many ways replicate the arguments of Mr Knowles before us. Leading counsel in that case had, however, accepted that the matter was one of “fact and degree” in each case (paragraph 25): a point Mr Knowles, whilst querying the word “degree”, himself accepted. 71. The court in that case cited with broad approval paragraph 76 of Seager & Blatch which we have set out above. It however suggested that in the light of Prest the fifth sentence might be better adjusted so as to read: “In the context of criminal cases the courts have identified at least three situations when a benefit obtained by a company is also treated in law by POCA as a benefit obtained by the individual criminal.” 72. At paragraph 39, the court rejected the idea that the case fell within Lord Sumption’s evasion principle. But it held that it came within the concealment principle. The court said this (at paragraph 40): “We do, however, consider that in the circumstances of this case the effect of POCA is that this matter falls within the concealment principle. Thus, we accept the Crown's argument, rather than that put forward by Mr Goose, who himself accepted that the matter was one of fact and degree. In the circumstances of this case, where the Appellant was the sole controller of the company, and where there was a very close inter-relationship between the corrupt actions of the Appellant and steps taken by the company in advancing those corrupt acts and intentions, the reality is that the activities of both the Appellant and the company are so interlinked as to be indivisible. Both entities are acting together in the corruption.” 73. Having so stated, the court held that it was “entitled to look to see what were the realities of this Appellant’s criminal conduct” (paragraph 43). The court went on to draw this conclusion (at paragraph 45): “Applying the provisions of Sections 76(4) and (5), it seems to us that Section 76(4) is apt to capture the whole of the invoices paid (about £1.9 million) as benefit obtained as a result of or in connection with the admitted criminal conduct.” Although the court does not spell it out, it is plainly to be inferred that it found that the £1.9 million was to be regarded for confiscation purposes as having been obtained by Mr Sale personally. The court then went on to deal with issues of pecuniary advantage and proportionality: issues which have not been raised before us on the present appeal. It may be noted that, in applying principles of proportionality, the court in fact then reduced the amount of the confiscation order very significantly indeed. 74. The final authority to which we were referred was that of McDowell [2015] 2 CAR(S) 14, [2015] EWCA Crim 173 . The decision involved some important points relating to cases involving statutory, or “regulatory”, offences: points which have also not been raised in argument on this appeal. In each of the two cases before the court on that appeal (relating to Mr McDowell and Mr Singh) the individual who had been convicted and made the subject of confiscation proceedings had been sole director and shareholder of the company in whose name the unlawful acts had been committed. 75. The arguments of the appellants in that case about lifting or piercing the corporate veil followed a familiar pattern. The court observed that there was a need to identify the capacity in which a defendant had received the proceeds of crime (paragraph 36). It was among other things then said that: “Examination of true ownership or control of property is the bread and butter of confiscation proceedings, although it is correct to say that judges frequently speak of lifting or piercing the corporate veil when doing so” (paragraph 40). The court then went on to cite paragraph 16 of Jennings , saying that it was: “…powerful authority for the proposition that when a company is manipulated for the purposes of fraud the court will not be restrained by the knowledge that in law the fruits of the fraud were received by the company. The corporate veil will be lifted for the purpose of ascertaining who was in control and who “obtained” the benefit.” Jennings was in fact regarded as a “classic case” of the concealment principle (paragraph 41). 76. In the case of Mr McDowell the court expressed its conclusion on “lifting” the corporate veil in this way at paragraph 55: “We do not consider that it is necessary to lift the corporate veil to ascertain whether and to what extent the appellant has benefited. The appellant did not attempt to hide his trading behind the cloak of his company, Wellfind, or seek to evade responsibility for his criminal acts by interposing the company between himself and those criminal acts. He was, however, the company's sole controller. As the judge put it he was the alter ego of the company. He used it openly as his trading vehicle in these transactions. We agree with the court in Sale that the Crown Court was entitled to examine the receipts and profits of the company for the purpose of ascertaining the benefit obtained from the criminal conduct of the appellant personally. He was the beneficial owner. The court would be justified in treating the company's receipts as the appellant's benefit subject to the issue of proportionality.” The like conclusion as to receipts was indicated as one that would have been also made with regard to the appellant Singh: “since he also was the sole controller of his trading company” (paragraph 63). Judgment of Judge Hughes QC 77. The (reserved) decision of the judge was thorough and careful. 78. He set out the background in detail. He reviewed the authorities fully. The core of his reasoning is contained in paragraphs 57-59 of his judgment. After citing paragraph 76 of Seager & Blatch (as adjusted by the court in Sale ) the judge expressed these conclusions: “57. In my view this is a case which falls fair and square into second situation. Patrick and Mark ran the company. They were its operating minds. They operated the fraud and directed the drivers to falsify their tachograph records. Neil was also prosecuted but the prosecution decided not to proceed against him when Patrick and Mark pleaded guilty as he was not directly involved with the drivers in the operation of the business. The other shareholders, Patrick’s wife, and John, played no active part in the running of the business. It would be wrong if their presence as shareholders prevented the court from looking at the legal substance and not just the form, and examining the realities of the situation. 58. To hold otherwise would provide a charter for fraudsters to channel their dishonest profits through a company and protect them from confiscation by ensuring that a minority of the shares were held by close family members. As Lady Hale said in Prest the fundamental principle is that individuals who operate limited companies should not be allowed to take unconscionable advantage of the people with whom they do business. 59. It follows, in my judgment, that in the confiscation proceedings, the prosecution rightly sought to include the benefit to the company. Counsel representing Patrick and Mark was right not to challenge the principle but only the quantification.” 79. He then went on to reject the genuiness of the transfer of assets from the Old Company to the New Company: a conclusion from, which as we have said, there is no appeal. He accordingly proceeded to appoint an enforcement receiver extending to identified assets of the New Company (comprising vehicles and trailers) pursuant to the powers conferred by sections 50 and 51 of the 2002 Act. The arguments 80. In such circumstances the respective arguments before us predictably followed those advanced below. 81. Mr Knowles’ arguments, deployed in careful and thoughtful written and oral submissions, in essence were these. The Old Company was established as a legitimate company, carrying on a legitimate business: road haulage. It had substantial assets and many employees, all deployed for that legitimate purpose. True it was that business had been carried on, in a very significant way, in breach of the relevant Regulations. But that did not justify disregarding or piercing the corporate veil. The Old Company was not an “alter ego” company on any view: it was not within the concealment principle. Nor had the Old Company been established or operated in a way coming within the evasion principle. In the circumstances of this case it was a negation of well settled company law principles, as confirmed in Prest , and indeed a negation of realities to equate the turnover obtained by the Old Company with benefit obtained by Patrick and Mark Boyle and to designate assets held by the Old Company as assets held by Patrick and Mark Boyle. That they were the “operating minds” did not mean that they were the owners. The judge had placed too much emphasis on the wrongdoing and not enough emphasis on the actual benefit they as individuals had obtained. 82. He further submitted that cases such as Sale and McDowell could be distinguished on the facts: not least (although not only) because here the two directors who had been convicted were not the sole shareholders in the company. That did not mean, he made clear, that the two Boyles had not obtained a benefit: they had. But that benefit should have been assessed – but had not been assessed by the Judge - by reference to the extra renumeration, dividends and any other benefits or pecuniary advantages accruing to them personally, occasioned by the enhanced profitability and competitive advantage of the Old Company by reason of it being operated in this illegal way. The assets of the Old Company likewise were not realisable assets of Patrick and Mark Boyle: just because they belonged to the Old Company. In all the circumstances, there was simply no principled basis for the application in this case of the doctrine of lifting or piercing the corporate veil. 83. For his part, Mr Medland submitted that the judge’s findings and conclusions should be respected. He urged this court to look, as the judge had looked, to what Mr Medland said were the “realities” of the matter and urged that this court should not be diverted by labels or by what he styled “niceties of company law”. The separate status of a limited company conferred by company law was, he forcefully said, designed for the protection of legitimate commercial enterprise: not commercial enterprise which was operated illegally. He relied on Lady Hale’s observation in Prest , at paragraph 92, that the concealment principle and evasion principle “may simply be examples of the principle that individuals who operate limited companies should not be allowed to take unconscionable advantage of the people with whom they do business.” 84. Mr Medland accepted in argument that, in the circumstances of this case, he could not say that the Old Company was an alter ego for Patrick and Mark Boyle. But they, as found, were the “operating minds”. He said that the court should apply, as the Judge had applied, the second “situation” identified in paragraph 76 of Seager & Blatch , as approved (with minor revisions) by this court in Sale. He acknowledged that Sale was a different case on its facts – not least because Mr Sale was sole director and shareholder. But, as against that, the proportion of illegally obtained business as compared to legitimate business in Sale was, he observed, less than the proportion of illegally tainted business as compared to legitimate business of the Old Company. Whilst not maintaining that this was an alter ego company, he also asked rhetorically: what was this company without Patrick and Mark Boyle? Thus the (agreed) approach taken at the time the confiscation orders were originally made on 25 March 2013 had, he submitted, been justified. Discussion and disposition 85. In our view, a consideration of the facts as set out in the judge’s judgment as summarised above and a consideration of the case law as summarised above provide the answer to this appeal. That answer is to the effect that it is not justified to treat the turnover of the Old Company, or the major part of it, as benefit obtained by Patrick and Mark Boyle individually; and it is not justified to treat the assets of the Old Company (and hence of the New Company) as realisable property of Patrick and Mark Boyle individually. To conclude otherwise would involve an unjustified departure, on the facts of this case, from established principles of company law and an unjustified application of the doctrine of lifting or piercing the corporate veil. We consider that Mr Knowles’ arguments are, in their essentials, correct. Initial points 86. Two initial points need to be made: (1) The fact that the original confiscation orders were made by consent is no bar to the present arguments of the New Company: which was not even a party or represented on the earlier occasion. That point was rightly accepted by the Judge. It was and is not disputed before us. (2) No argument had or has been sought to be raised, either below or before us, on proportionality by reference to the decision of the Supreme Court in Waya [2013] 1 AC 294 , [2012] UKSC 51 , and as now reflected in the 2002 Act as amended. Nor has there been any argument raised that the conduct in question - which, in fundamentals, involved abuse of the relevant drivers’ hours and working time Regulations, although we note that the charge in fact was one of criminal conspiracy - was not criminal conduct of a kind which could attract a confiscation order (as in the example of Mr Singh in McDowell ). Relevant wider considerations 87. While all such cases ultimately are fact specific, the reasons for our conclusion to an extent rest on a number of different, albeit overlapping, general propositions, some negative and some positive. It may be that hereafter Crown Courts will wish to take into account these general propositions – although they are not put forward by us as an exhaustive list of relevant considerations - in any confiscation case where an issue of lifting or piercing the corporate veil is raised. 88. (1) First, the test is not simply one of "justice". So vague an approach would be unprincipled and would give rise to great uncertainty and inconsistency in decision making. That that is so as a proposition is evidenced by the decision in Salomon and by the statements of principle to like effect in cases such as Seager & Blatch (at paragraph 76) and Prest itself. In this regard Mr Medland had relied, as we have said, on the statement of Lady Hale in Prest set out above. But it is clear that Lady Hale was not purporting to set out a definitive legal test governing this kind of case (which would, indeed, otherwise come close to reintroducing some kind of legal test of "justice"). Rather, she was explaining the rationale for why there is a doctrine of piercing the corporate veil at all. 89. (2) Second, a Crown Court is of course required in each case to assess the "reality of the matter". That is central. But that cannot be permitted in itself to confer a licence on a court to depart from established principles relating to the separate legal status of a limited company. Were it otherwise, courts would simply be circumventing the prohibition on deciding issues relating to the corporate veil through invoking the notion of "justice" by resorting to a different label, namely the “reality of the matter." That is not in itself permissible. The realities are of course essential matters to be taken into account: but they do not of themselves provide some principle. Indeed, as Mr Knowles himself forcefully submitted, the realities often will indeed be supportive of a conclusion that the corporate veil should not be lifted. He in fact would say, and did say, that this is just such a case. 90. (3) Third, it is essential to bear in mind the principle that the confiscation process under the 2002 Act is not of itself aimed at punishment . On the contrary, it is aimed at recovery of benefit: to ensure that criminals do not retain for themselves their ill-gotten gains. As stated by Lord Bingham in Jennings at paragraph 13: “The rationale of the confiscation regime is that the defendant is deprived of what he has gained or its equivalent. He cannot, and should not, be deprived of what he has never obtained or its equivalent, because that is a fine. That must ordinarily mean that he has obtained property so as to own it….. ” Necessarily judges in confiscation cases are dealing with persons who have been criminally convicted after a trial or on a plea. But appropriate punishment for the criminality is to be addressed and will have been addressed by the sentence. That punishment is not thereafter to be, as it were, topped up by the confiscation process. 91. (4) Fourth, it can be taken as confirmed by Prest that the actual principles relating to the doctrine of lifting or piercing the corporate veil in the confiscation context are the same (albeit always, of course, to be applied on a fact and circumstance - specific basis in each case) as in the civil courts. 92 . In this regard, it is true that the Supreme Court in Prest did not consider any of the cases arising in the criminal law context of confiscation. None of them had been cited to the Supreme Court. But that is not material. The judgments were evidently of general application. The principal issue in that case was whether the Family Division (which in broad terms, it can be said, is a heavily discretion based jurisdiction) was entitled, whether by reference to section 24 of the Matrimonial Causes Act 1973 or otherwise, to adopt an approach to lifting or piercing the corporate veil in a way which would not be sanctioned in, say, the Chancery Division. It was held that it could not. The same must, in our view, apply to the Crown Courts. In fact it is a fortiori: the Crown Court has no inherent jurisdiction of its own and the 2002 Act itself contains no provision purporting to sanction a departure from ordinary principles of company law. Accordingly a proper adherence to principles of company law, as enjoined by this court in Seager & Blatch and as accepted in Sale, is to be taken as confirmed as applicable in confiscation proceedings. 93. It also follows that Crown Courts in confiscation cases should treat with a degree of circumspection, when an issue of lifting or piercing the corporate veil has been raised, tempting invitations to adopt a "robust" or “broad brush” approach and tempting invitations to avoid being distracted by "niceties". Of course such arguments have their attractions - that is why they are advanced. But such arguments should not be permitted to distract attention away from the proper application of correct legal principles in this field. 94. It may be said that, contrary to the general observations and expectations of some of the members of the Supreme Court in Prest , the piercing of the corporate veil in confiscation cases in the Crown Court has not, historically, been "rare", let alone "very rare", even if not common. That may be so. But that can justify no argument that the relevant principles are somehow different in confiscation cases. In any event, we think there are clear explanations: (i) First, in reality in many of the cases of confiscation proceedings in the Crown Court the equation of the company with the criminal individual or individuals has been agreed. (For example, in the recent case of Harvey [2015] UKSC 73 it had been conceded in the Crown Court that the company had been the alter ego of Mr Harvey.) The arguments thus have often solely been directed to whether the benefit should be the turnover or gross profits or net profits or some pro rata share of them and so on. No point on lifting or piercing the corporate veil has even been argued. (ii)(a) Second, and doubtless explaining just why the point is often agreed, the reality is that in the Crown Courts – as in many other courts – the phrase “piercing” the corporate veil had been used broadly without focusing precisely on the two concepts of concealment and evasion as have now been identified by Lord Sumption in Prest . One must not forget the obvious point that the context of confiscation proceedings under the 2002 Act is always criminal . That, in factual terms, is a context very different from Salomon and is very different also from many of the reported decisions on lifting or piercing the corporate veil: although as it happens two of the most famous earlier cases in the field - Gilford Motor Co. Limited v Horne [1933] Ch 935 and Jones v Lipman [1962] 1 WLR 332 - were not even cases of dishonesty as such (as opposed to unconscionable sharp practice) at all. It is that criminal context which is capable of explaining why, in an appropriate case in confiscation proceedings, the involvement of a limited company quite frequently can, on the facts, be described as a mere facade or sham. The companies in such cases are properly treated as alter egos, or agents, of their criminal controllers. Many of the cases of this kind thus are clear examples of Lord Sumption's concealment principle and do not involve, in the sense explained by by Lord Sumption, "piercing" the corporate veil at all: and it is that latter doctrine which is the one of “limited” and “rare” application. b) Examples of lifting the corporate veil, in the sense of applying the concealment principle, are not at all difficult to find in this criminal context. For instance, that approach would, in appropriate circumstances, be capable of applying to a limited company ostensibly set up to carry on a fruit importing business and which does carry on such a business but where the true purpose in operating the company is to use it as a front to smuggle in cocaine hidden in boxes of oranges. Likewise, where the purpose of operating the company is to use it as a means to carry out money laundering or tax or duty evasion or fraudulent trading. That in fact was precisely the case in Jennings and, as Mr Knowles pointed out, is the context for Lord Bingham's trenchant remarks at paragraph 16 of his opinion in that case. As the court said in Seager & Blatch itself (at paragraph 78), the company in Jennings was a vehicle to carry out the fraud and the corporate structure was effectively a sham; in other words it was an example of the concealment principle. A further familiar example is the deployment of a limited company in a missing trader, or carousel, VAT fraud – in fact that particular example may also fall within both the concealment principle and the evasion principle. As Lord Sumption had himself observed, there will be cases where the concealment principle and evasion principle are both involved. 95. (5) Fifth, regard should be had to the nature and extent of the criminality involved. We think that the approach taken by the court in the case of King (Scott) [2014] 2 CAR(S) 54, [2014] EWCA Crim 621 is informative. That was not, it should be said, a case itself concerning the doctrine of lifting or piercing the corporate veil: the question for decision, in the context of arguments on proportionality, was whether the benefit of an individual should be equated with the turnover or with the net profits of his (unincorporated) business. But, in that context, in the course of his judgment Fulford LJ said this at paragraph 42: “The authorities reveal there is a clear distinction to be drawn between cases in which the goods or services are provided by way of a lawful contract (or when payment is properly paid for legitimate services) but the transaction is tainted by associated illegality ( e.g. the overcharging in Shabir or the bribery in Sale) , and cases in which the entire undertaking is unlawful ( e.g. a business which is conducted illegally, as in Beazley ). When making a confiscation order, the court will need to consider, amongst other things, the difference between these two types of cases. It is to be stressed, however, that this divide is not necessarily determinative because cases differ to a great extent, but it is a relevant factor to be taken into account when deciding whether to make an order that reflects the gross takings of the business.” In our view, this sort of consideration, whilst not of itself determinative, is also likely to be relevant where an issue of lifting or piercing the corporate veil is raised in confiscation proceedings. 96. (6) Sixth, even where a company mixed up in relevant wrong doing is solely owned and solely controlled by the (criminal) defendant that does not of itself always necessitate a conclusion in a confiscation case that it is an alter ego company, whose turnover and assets are to be equated with being property of the defendant himself. We will come back to this point later in this judgment. 97. (7) Finally, all such decisions in the context of confiscation proceedings must be geared to the facts and circumstances of the particular case. Decision 98. Moving on then from those general propositions to the decision in this particular case, it cannot be said that the Judge did not have regard to the legal authorities. At no stage did he (wrongly) dismiss such matters as mere niceties or fail to address the approach required in law. Thus it is that Mr Medland submitted that the judge was entitled to come to the conclusion that he did: and that this court should not interfere. 99. The point is as attractive as it is simple. But, as will be gathered, we are not able to accept it. 100. The Judge was not in an altogether easy position. The original confiscation orders had been made by consent. At the subsequent hearing of the application for the appointment of the enforcement receiver neither Patrick nor Mark Boyle was represented by counsel. In fact we were told that they had not objected to the appointment of a receiver (no doubt calculating that this was the only means by which their confiscation orders could be discharged and so avoid triggering their default sentences). As we gather, the actual evidence adduced at that hearing related primarily, if not solely, to the genuineness of the transfer of assets from the Old Company to the New Company. 101. The Judge, at all events, in lifting or piercing the corporate veil did not in terms state that he was applying the concealment or evasion principle, albeit seemingly basing himself in substance on the concealment principle. He based his decision "fair and square", as he put it, on the second “situation” set out at paragraph 76 of Seager & Blatch (as slightly revised in Sale ). In doing so, he clearly considered that the fact that Patrick and Mark Boyle were the "operating minds" was of paramount importance. He also plainly was influenced by the fact that other shareholders, in particular Mary and John Boyle, played no active part in the business. 102. We think, with all respect, that he was wrong in his approach. It cannot be determinative that Patrick and Mark Boyle ran the company and were the "operating minds". On the contrary, they were the sole, legally appointed, directors. They were, in substance, executive directors, with very wide general powers and duties. As such directors, it was their delegated responsibility to operate the day to day affairs and business of the Old Company (although of course they had no authority to do so unlawfully). Under the companies’ legislation and conventional Memoranda and Articles of Association shareholders, generally speaking, have no right, as shareholders, to involve themselves in such matters: their ultimate control rests on their voting powers at company meetings. So to say, in the context of this case, that Patrick and Mark Boyle were the "operating minds” simply does not carry the almost conclusive force which the judge seems to have ascribed to it. 103. Moreover, while Mary and John Boyle played no active part in the business their status as shareholders could not be ignored on that account. There was, as we have said, no evidence or finding that they were mere nominees for Patrick and/or Mark Boyle. Further, Neil Boyle, also a shareholder, was actively involved in the business; and his position as shareholder could not be ignored, as the judge seemed to think, simply because he too had been prosecuted: in circumstances where the case against him had been dropped and a verdict of not guilty been directed. 104. The position can also be tested in this way. On the Judge’s conclusion, the turnover of the Old Company and the assets of the Old Company were to be attributed to Patrick and Mark Boyle personally. If that is so, the potential implication is that, after paying off all its creditors, they would have been free, if they so chose, if they so chose, to take all the assets of the Old Company for themselves with no right of redress, by unfair prejudice proceedings or otherwise, available to Mary, John or Neil, the minority shareholders. That, in the absence of a finding that they were mere nominees, seems improbable. 105. The position can also be tested in other ways. If the Judge is right, then creditors of the Old Company potentially might have a possible claim for unpaid liabilities incurred in the name of the Old Company against Patrick and Mark Boyle individually, applying principles of the law of principal and agent: without having to avail themselves of the usual remedy of securing the liquidation of the company and appointing an independent liquidator with wide statutory powers of recovery, for the benefit of all creditors, against errant directors. Further, if the Judge is right creditors of Patrick and Mark Boyle as individuals likewise potentially might have a possible claim against the assets held in the name of the Old Company in order to pay off Patrick and Mark Boyle's debts incurred as individuals. 106. In our view, with respect, what the Judge seems to have thought were “the realities of the situation” did not, on the evidence before him, justify his conclusion. He thought that such a conclusion represented the legal substance and not the form. We do not agree. In our view, in fact, on the evidence available the form here was the substance. The Old Company was properly set up as a limited company to carry on the existing Boyle family business and, indeed, under the Boyle family name. It was no sham. It was set up for a legitimate purpose – road haulage. Its substantial operations and assets were used for that purpose. That was its sole activity, over a long period. 107. Further, there was no finding that the Old Company would not have been viable in the absence of its persistent breach as of the relevant Regulations and of its associated destruction of records and tampering with tachographs. Although such a suggestion was mooted in the section 16 statements, it apparently was not pursued. On the contrary, even after the illegalities had been identified (and thereby, it is to be inferred, ceased) the Old Company continued to have a substantial turnover, as the first section 16 statement noted, even if with significantly decreased profit ratios. That it continued to be a viable business is further borne out by the very fact of the transfer, for a sizeable stated sum, to the New Company, which then in turn carried on the business. 108. As we have said, Mr Medland accepted, in the course of his argument, that on the evidence here the Old Company was not to be regarded as an alter ego of Patrick and Mark Boyle. We agree. Nor, as we consider, is this case an example of the evasion principle. Overall, we conclude that, on the facts, no case either for lifting or for piercing the corporate veil was made out. 109. The judge had, as appears from his judgment, essentially based himself on the second “situation” identified in paragraph 76 of Seager & Blatch . We have reservations about this as an approach. Such a “situation”, as there identified, is not to be taken out of context and cannot, in our view, be taken to identify some further free–standing wider legal principle whereby the court will always lift or pierce the corporate veil. That would be inconsistent with established principles of company law which Seager & Blatch itself had been at pains to affirm and inconsistent with the approach taken in Prest . It would also not be readily consistent, as Mr Knowles pointed out, with the outcome in cases such as Grainger and not readily consistent with the approach of the court in Seager & Blatch itself as to the previous case of Xu . One can also think of other examples, ostensibly coming within the literal wording of this second “situation”, involving illegal and unauthorised acts by, say, an employee of a reputable company. For instance, if a financial trader employed by a large and reputable company engages without authority in criminal trading activities generating large profits for the company (the motive being a hoped-for massive bonus for the trader) is it really to be said that the entire gross profit booked in the name of the company arising from that trading is invariably to be treated, in confiscation proceedings against the trader, as the benefit of the trader? It is, in fact, also revealing in itself that in formulating the second “situation” the court in Seager & Blatch referred to the decision in J ennings : just because Jennings was a case where the entire company was a sham, existing and operating solely for the purposes of carrying out the advance fee fraud. That indicates what the court had in mind in formulating the second “situation” – in effect, an acknowledgment of the concealment principle. 110. It follows that the second “situation” there identified is not to be regarded as a self-contained or free- standing further principle and the Judge was wrong to treat it as such. Putting it another way, and whilst we would not regard the first and third “situations” identified in paragraph 76 of Seager & Blatch as likely to be at all controversial, we think that paragraph 76 of that decision, as revised in Sale, may be further revised, in the aftermath of Prest , by further adjusting the preface as follows: “In the context of criminal cases the courts have identified at least three situations when a benefit obtained by a company may , depending on the facts , also be treated in law by POCA as a benefit obtained by the individual criminal….” This may, we accept, seem to be blander than the original formulation. But we think that such further revision reflects the essential need to focus on the whole facts and circumstances of each case. 111. We should also add that it is noticeable that the actual decision of the Court of Appeal in Sale itself was not founded on any purported application of the second “situation” identified in Seager & Blatch as some kind of governing principle . On the contrary, the decision in that case, by reference to its facts, was in terms founded on an application of the concealment principle. As such, it is in accord with the approach indicated in Prest . 87. For these reasons we consider that the decision of the Judge to appoint an enforcement receiver over the assets of the New Company was wrong; and we set aside his order in this regard. “ One man” companies 113. We add some further observations on the sixth general proposition identified by us in paragraph 96 above. We do so in the light of the cases of Sale and McDowell ; since this may have a bearing on the approach to be adopted by Crown Courts in confiscation cases in the future. 88. In Sale , it will be recalled, the company of which Mr Sale was sole shareholder and director had been for a number of years established for, and operated as, a legitimate business purpose. It achieved an annual turnover of around £10 million, with many customers; and the only corrupt aspects of Mr Sale’s latter activities related to one, albeit major, customer. In such circumstances, it might be queried how the benefit to be attributed to Mr Sale personally was adjudged to equate to (or to part of) the turnover of the company, by a process of lifting or piercing the corporate veil: precisely, indeed, the queries raised by leading counsel on Mr Sale’s behalf. Doubtless Mr Sale had benefited. But by an approach corresponding to that taken in cases such as Grainger such benefit might be readily assessed by reference to, say, his increased remuneration, dividends and any other benefits or pecuniary advantage resulting to him personally from his company’s enhanced profitability and competive advantage occasioned by his corrupt actions. 89. The Court of Appeal, nevertheless, plainly was heavily influenced by the fact that Mr Sale was the sole director and the sole shareholder. Obviously that was indeed a highly material fact. But it is rather hard to see why such a fact always would, of itself, be conclusive. To repeat, as Salomon makes clear, the fact that the incorporator is sole shareholder and director of a company does not mean that the company is thereby and for that reason alone to be treated as his alter ego. That criminality is somewhere involved (not the situation in Salomon ) does not of itself necessarily and conclusively and in all cases change that. The actual decision in Sale thus is to be explained as one on its own facts; as the court in that case itself made clear. 90. We do have concerns, however, that the emphasis given in Sale, in the circumstances of that particular case , to the fact that the defendant was sole director and shareholder may in future be used to achieve a conclusion which in other cases of confiscation proceedings may not necessarily be merited and which would not be consistent with the approach in Seager & Blatch . The present case may in fact be an illustration of that danger (the Judge having in effect decided that this was a “two man” company). 117. We say this in particular in the light of certain comments made in McDowell . It having been said in paragraph 40 of that case that "examination of true ownership or control of property is the bread and butter of confiscation proceedings", at paragraph 55 it was then accepted that Mr McDowell did not "hide his trading behind the cloak of the company". Nor, as was found, did Mr McDowell seek to evade responsibility for his criminal acts by interposing the company between himself and those criminal acts. How, then, could it be found in McDowell , as it was, that Mr McDowell was the alter ego of the company? The short answer given was that he was "the company's sole controller....he used [the company] openly in these trading transactions...... He was the beneficial owner." The court apparently would have taken the same approach, had the point arisen, with regard to Mr Singh in that same case: for it treated the receipts of the company as the receipts of Mr Singh personally "since he was the sole controller of this trading company" (paragraph 63). This, however, seems to be close to suggesting that the corporate veil could be disregarded simply because the defendant was sole controller and owner. Further, to say that someone is a beneficial owner of a company is no doubt convenient shorthand. But it can lead to the misleading conflation of two separate concepts: beneficial ownership of the shares in a company and beneficial ownership of the receipts and assets of a company. 118. We think that those observations in paragraphs 55 and 63 of McDowell have to be put in context. In the case of Mr McDowell it had been argued that the underlying weapons and arms trading was lawful but for the absence of a licence. But that was rejected: the underlying trading was unlawful: see paragraph 53 of the decision. Thus the entirety of the business at the relevant times had been carried on in knowing and criminal breach of the requirements of the relevant Order. Likewise (had there been a finding of criminal conduct) in the case of Mr Singh. The importance of each being sole owner and controller of the company in question has, we suggest, to be assessed against that background. 119. Thus, the decision in McDowell on these particular points is to be regarded as made on the facts of that case. It is not to be taken as an invitation to criminal courts in confiscation cases under the 2002 Act to regard sole ownership and control of a company as necessarily and always sufficient of itself to justify treating the company as an alter ego of the defendant. To say that is not to provide an open road and a fast car to crooks seeking to conceal their real activities and true benefits behind a one-man limited company. On the contrary, the application of the concealment principle, if not also evasion principle, is available on appropriate facts to deal with just such a scenario. The general observations of Toulson LJ in paragraphs 14 and 15 of Grainger continue to be relevant. Overall, to respect the principles of Salomon is consistent, not inconsistent, with a principled, proper and sensible application of the 2002 Act: for it is required that the court, in confiscation proceedings, focus on the benefit which the defendant has obtained and on the assets which the defendant holds. In this regard we think, where limited companies are involved in relevant wrongdoing, that words such as “façade” and “sham” will continue, even allowing for the reservations expressed by Lord Sumption as to their “protean” nature, to have a real and practical use in confiscation cases. Ultimately, any conclusion on lifting or piercing the corporate veil will require a careful examination of all the relevant facts before it may be reached. 120. We make one further observation. We have borne in mind that it seems not to be the usual practice for the prosecution to charge the company involved: re H [1996] 2 All ER 391 ; Sale at paragraph 32. But, as Mr Knowles himself accepted, had in this case the prosecution chosen to include the Old Company as one of the persons charged then the potential means of recovering the turnover or profits (or some part) as benefit obtained would have been available without resort to arguments on lifting or piercing the corporate veil at all. 121. We can accept that in many cases where a company is mixed up in the criminality it may be unnecessary or unduly complicated to include the company as a defendant. It should not be overlooked, in fact, that in some cases of, for example, criminal conspiracy or fraud the company in question may be not so much the instrument of the illegality as the victim of it. In other cases, there will be no practical purpose in joining the company: for example, where it is hopelessly insolvent. In other cases again, the company will so clearly be within the concealment and/or evasion principle on the facts alleged by the prosecution (for example, a carousel fraud) that to name it on the indictment may be wholly unnecessary. But there may be other cases - "regulatory" offences, so called, may be one example: there will be others - where the prosecution may be well advised, with an eye to any eventual confiscation proceedings, to consider whether the limited company involved should be included on the indictment or summons at the outset. 122. Whether or not that is done, the essential responsibility of the judge in confiscation proceedings in cases of this kind is to assess the benefit obtained by the actual defendant whose case he or she is considering (sections 8 and 76 (4)) and to calculate the free property (and any tainted gifts) held by that defendant (section 9). Such a task is not to be distorted by any failure to include the company on the indictment. The applications 123. It remains for this court to consider the applications of Patrick and Mark Boyle for an extension of time and leave to appeal against the confiscation orders made on 25 March 2013 (as varied). 124. The extension of time required is very extensive: over 17 months. Further, the proposed appeal relates to confiscation orders which were agreed. In such circumstances this court would ordinarily, and whether or not it is said that it has since been appreciated that an error of law may have been involved in the making of the original orders, not be inclined to grant leave. 125. Nevertheless, and notwithstanding that the confiscation orders had been agreed at the time, this court would at least have jurisdiction to entertain such appeals: Mackle [2014] AC 678 , [2014] UKSC 5 . 126. With some hesitation, we have decided that, in the particular circumstances of this case, we should grant the extensions of time sought by the applicants and should grant leave to appeal. Having done so, we also allow the appeals. 127. Our reason for doing so is simply this. The confiscation orders were made on the basis that the turnover and assets of the Old Company were benefit obtained by and available assets held by Patrick and Mark Boyle. But, on essentially the same evidence, this court has now held, on the appeal of the New Company, that this was incorrect. It would be wrong for there now to be an inconsistency in outcome between the New Company and the applicants. In such circumstances we consider that it would be unjust that the confiscation orders should stand. Accordingly we quash each of those confiscation orders; and, in consequence, we quash the order appointing the enforcement receiver. 128. Formerly, the Court of Appeal could be hamstrung by the lack of power to remit the matter to a Crown Court for rehearing. But by reason of s. 11(3A) of the Criminal Appeal Act 1968 it now has power to do so. It is plainly right in the circumstances, and as Mr Bodnar accepted, that it should do so here. The matter is therefore remitted to the Crown Court, so that the value of the benefit obtained by each of Patrick and Mark Boyle and the amount of the available assets held by them can be re-calculated. This, of course, will now be on the footing that they are not to be regarded as the owners of the turnover or assets of the Old Company or, hence, of the New Company. 129. Given the lapse of time and other intervening events it may be that a pragmatic solution can hereafter be agreed on the remitted confiscation proceedings. That is not for us, however. In the meantime, we do not direct that any sums thus far paid should be restored to either of these applicants. 130. Mr Bodnar did, as we have indicated, raise a further argument as to the default period imposed on Patrick Boyle, by reason of his present state of health. In the light of our conclusion we need not comment further on that matter. Conclusion 131. The appeal of the New Company is allowed and the appointment of the enforcement receiver with regard to its assets is quashed. We grant an extension of time and leave to appeal to the individual applicants, allow their appeals, quash the confiscation orders and order appointing the enforcement receiver made against them and remit the matter to the Crown Court for further hearing. 132. Counsel are to agree a Minute of Order to reflect this judgment. Any consequential matters, if not agreed, are to be addressed to the Court by written submissions.

2016_02_25-3712.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2016/19/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2016/19

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[2009] EWCA Crim 1721

EWCA_Crim_1721

2009-07-24

crown_court

Neutral Citation Number: [2009] EWCA Crim 1721 Case No: 200801047 C5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 24th July 2009 B e f o r e : LORD JUSTICE RICHARDS MR JUSTICE IRWIN HIS HONOUR JUDGE BAKER QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - R E G I N A v JAMIE HUBERTA RAMIREZ - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of

Neutral Citation Number: [2009] EWCA Crim 1721 Case No: 200801047 C5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 24th July 2009 B e f o r e : LORD JUSTICE RICHARDS MR JUSTICE IRWIN HIS HONOUR JUDGE BAKER QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - R E G I N A v JAMIE HUBERTA RAMIREZ - - - - - - - - - - - - - - - - - - - - - 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) - - - - - - - - - - - - - - - - - - - - - Ms EA Marsh QC and Mr SA Ivill appeared on behalf of the Appellant Ms Ester Schutzer-Weissman appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE RICHARDS: On 16th January 2007, in the Central Criminal Court, after a trial before HHJ Forrester and a jury, the appellant was convicted by a majority of 11 to 1 of the murder of Kennie Lee Williams. There were two co-accused. Hernan Ramirez, the appellant's brother, was convicted of murder by a unanimous verdict. Paul Day was acquitted. An appeal against conviction is now brought by the appellant with leave of the full court. The sole ground on which leave was granted relates to the consequences of the co-accused Day giving, without prior notice, evidence of the appellant's bad character. 2. The outline of the matter is as follows. The appellant (known as Grime) and his brother Hernan (known as Sparks) were alleged to be substantial drug dealers in the areas of Crawley and Redhill. Day acted as a runner for them. The deceased, Williams, also worked for them as a salesman and runner, assisting Day in particular in selling class A drugs to addicts. However, Williams had incurred the displeasure of the others by poaching customers. 3. On 20th February 2007, at about 11.00pm, the appellant, his brother Hernan and Day went to the home of Williams and Williams' girlfriend, Katrina Sinnick. They took with them a bottle of brandy. After the bottle had been consumed, Williams was attacked with it. It was a heavy bottle and he received at least 14 blows of severe force to the back of the head. The Crown alleged that Hernan started the attack and the appellant continued it. Williams was defenceless after the first blow. Ms Sinnick witnessed the attack while her child was asleep in the next room. The appellant and Hernan Ramirez threatened to harm her and her family if she informed on them, and advised her to say that three black strangers wearing balaclavas carried out the attack. They left, taking the bottle and glasses with them and without summoning medical assistance. 4. Ms Sinnick initially told the police that the attack was carried out by three men in balaclavas but in the afternoon of 21st February, while in a car with a police officer, she started to cry, said she knew who did it and named Day, Sparks and Grime. The appellant was arrested on 25th February but declined to answer questions in interview. 5. The prosecution case at trial was that the appellant, together with his brother Hernan, struck the blows intending to cause at least really serious injury. Day gave evidence admitting presence but accusing the Ramirez brothers of the murder. Hernan gave evidence, also admitting presence but blaming Day for the attack and denying that the appellant was there. The appellant himself did not give evidence. Thus there was a conflict between Day and the Ramirez brothers, with each side accusing the other; and as part of their defence each side attacked the character of the other. 6. In particular, Day's evidence included, without notice or compliance with the relevant procedural requirements, an attack on the character of the appellant. The judge subsequently held on an retrospective oral application that he would have admitted the evidence if an application had been made before the evidence was given. The appellant's contention is that the judge was wrong so to rule and to allow the trial to continue. It is said that the evidence given without notice at such a late stage caused irremediable prejudice to the appellant and rendered his trial unfair and his conviction unsafe. 7. We turn to consider the trial in greater detail. The principal prosecution witness was Katrina Sinnick. Her testimony included evidence that the Ramirez brothers had reputations as substantial suppliers of crack cocaine and heroin. She had only met the appellant, Grime, once but knew his brother Hernan (Sparks) better. She knew that Williams was involved in the drug dealing business, that he and Day worked together as runners for the appellant and Sparks, and that he had been poaching customers or dealing on his own in the days leading up to 20th February. 8. On that day the appellant came to her home with Sparks and Day to have a drink with Williams. The five of them sat down in the living room drinking brandy in glasses, three of which had a distinctive egg motif, until the bottle was empty. The appellant watched whilst Sparks stood up, said to Williams "Do you think I'm a fucking mug?" or words to that effect and hit Williams with the empty bottle with great force. The appellant then stood up, took the bottle from Sparks and struck Williams with the same or greater force. Sparks told Ms Sinnick to leave the room. She left, leaving the appellant and Sparks in the room with Williams. She saw Day in the passageway staring into the room. She asked him what was going on and he replied that it was nothing to do with her, Williams had been “mugging them off”; he repeated later that Williams had been taking their customers. She said she heard more than ten noises, like the sound of the bottle hitting Williams' head, coming from the room. 9. Sparks them came out of the kitchen and asked for a bin liner which he gave to Day. Day held it open while the appellant put in it the glasses and the bottle, which was covered in congealed blood. The appellant told Ms Sinnick to calm down as she was not going to get hurt. He said: "Call an ambulance. You haven't seen us. You don't know who we are. Say three men in balaclavas burst in". Sparks threatened to come back for her and her family if Williams was there the next day. She called an ambulance and gave the balaclava story until the following day when she told the police the three identities of the three men. She subsequently picked out all three defendants at identification procedures. She also said that the appellant had been wearing a distinctive jacket and there was evidence from police officers that this jacket was found in the washing machine at Sparks' address. 10. There was evidence from other prosecution witnesses that the appellant was involved in a drug dealing business with his brother Sparks and that Williams was involved in that business and had been poaching customers or dealing on his own. One of the witness, Sultan Gani, testified that Williams told him he had started working for another dealer. Gani had warned him that this could end with his being hit or killed and Williams told him that he was scared of Day, Sparks and the appellant. Williams repeated this fear to him over the telephone on 20th February. Williams sounded worried and scared and said he was waiting to have drinks with Day, Sparks and the appellant. 11. There was also prosecution evidence that men matching the description of the appellant and his brother had been in the area of Williams' home in the days running up to 20th February, supporting a prosecution allegation that they had carried out reconnaissance and that the offence was premeditated. 12. In the course of the trial, evidence of the appellant's bad character was put before the jury in an agreed form. It included: (a) a conviction for possession of heroin and crack cocaine in 2003; (b) a conviction for possession of heroin, cocaine and cannabis in 2003; (c) a conviction for possession of cocaine and heroin with intent to supply in 2004; (d) his having been found by police with Day in 2004 in a car in which an extendable baton was found; (e) a conviction for using threatening words or behaviour in 1996; and (f) a conviction for using threatening words or behaviour in 2007. The previous drug related convictions, (a) to (c), were agreed as the subject of admissions at an early stage of the trial. The other matters, (d) to (f), were admitted at a later stage, partly following an application by Day and partly in the light of information that Day was going to be giving in the course of his evidence an explanation about the discovery of a baton in the car in 2004. 13. We have not covered all aspects of the prosecution evidence but have concentrated on the central features of it. We should note that there was no forensic evidence linking the appellant with presence at the scene or with the murder weapon. Police found the bottle at an address associated with the three defendants and their drug dealing business but the bottle had been washed and the blood removed. With the bottle was found a clean glass with an egg motif matching the glasses described by Ms Sinnick in her evidence. 14. Following the close of the prosecution case, Day, as the first named defendant on the indictment, was the first to give evidence. In his evidence in chief, he gave evidence in accordance with his police interview. He said he had been present at Ms Sinnick's home when the appellant and Sparks made the attack but he did not know it would happen and he took no part in it. He gave an account of working for the appellant and Sparks in a drug dealing business. He explained that Williams worked for them also but there had been a recent problem with him taking customers. In relation to 20th February, he stated that Sparks had told them that there was an arrangement for him, the appellant, Day, Williams and Ms Sinnick to have a drink together. That evening, the three defendants drove together to where Williams was staying. They took a brandy bottle with them. Day's account of what happened at that address was in broadly similar terms to that given by Ms Sinnick. He explained his failure to intervene in the attack, and his decision to leave Williams injured, on the basis that he was scared that the other two would turn on him. 15. Day gave additional evidence concerning his own bad character. That was admitted following argument. It included the fact that he had been stopped by the police, together with the appellant, in a car in 2004 and that a baton had been found in the car. He said that the car had been used for selling drugs. He also gave further particulars of the basis for his fear of the appellant and Sparks. Those matters are conveniently summarised, so far as they are material, in the skeleton argument on behalf of the appellant as follows: (i) the appellant was banned from driving the day before the attack on Williams; (ii) the appellant had asked Day to steal cars, "whatever I could get my hands on"; (iii) the appellant had punched Day in the face and sat on his head, and "whacked my brother who was there as well, for no reason"; (iv) a person called "Wish" "got slapped because he was smoking their gear ... he got beaten up for something"; (v) a man called Gary Aitkens was beaten up by the appellant, who punched him in the face a few times for "smoking [their] crack and doing dodgy things behind his back"; (vi) the appellant had punched Day in the face a few times for taking a woman called Gracie round to Day's friend's house when drugs were being cut up; (vii) the appellant had punched Day in the face and "slapped me up" for sleeping with one of his customers, a girl called Leckie; (viii) the appellant had told Day that he would stab him and then he had actually stabbed Day with a knife in the back around Christmas 2006, in relation to which Day showed the jury a scar which he claimed was the result of that stabbing; (ix) a woman called Sky James had told Day that the appellant kept a shotgun in her loft and "beat the shit out of her" because she tried to sell the gun; (x) Day alleged that the appellant and his brother had "had so many people working for them ... and they have all been beaten up"; and (xi) Day alleged that he and the appellant had attended the police station on police bail in relation to a previous allegation relating to a stolen vehicle and travelled there in another stolen vehicle. 16. All of that evidence detailed in (i) to (xi) was introduced for the first time during the evidence in chief of Day. None of it had been the subject of a notice or application under the provisions to which we will come, and no warning as to this part of Day's evidence had been given to the appellant or his legal team in advance of the evidence itself. 17. During a break in the course of the evidence in chief, counsel for the appellant, namely Ms Marsh QC (who represented the appellant below as she has before us), raised the failure to provide advance notice of the allegations of bad character and the consequent inability of the judge to rule in advance on the admissibility of that evidence. The matter was raised, as it seems to us, not at the first opportunity that existed to raise it, and by the time it was raised most of the defendant's bad character evidence concerning the appellant had come out. The judge ruled at the time that the evidence should continue because Day had gone so far in it and was about to turn to the events of 19th February which were very much part of the facts of the case. In effect he ruled that any application in respect of what had occurred should follow once Day had completed his evidence. That ruling is not of itself the subject of challenge and we are not called upon to decide whether this was the right way to handle the matter or whether there might have been a better alternative. 18. Day then completed his evidence in chief. This was followed by cross-examination by all parties. In the course of cross-examination on behalf of Hernan Ramirez, he accepted that he had not told the police in his interview about the violence by Hernan or the appellant and that he had lied to the police in not explaining to them anything about the drugs background to his relationship to the people involved in the incident. Cross-examined on behalf of the appellant, he was challenged about the evidence of violence by the appellant that he had given in his evidence in chief. In particular, he was challenged about the scar on his back on the basis that he had given an account previously that a girl was responsible; it was said that before now he had never told anyone except Emma Cook that the appellant had stabbed him, and that he told Emma Cook this information after she had given evidence in the case. He agreed in the course of questioning that the girl called Leckie was Alexis Beckett, whose statement had been read to the court. He agreed that the first mention of the allegations against the appellant was when he gave evidence. He gave details of the address of Sky James and said her telephone number would be on the mobile phone taken from him on arrest. 19. Those matters were, as we say, covered in cross-examination of him on behalf of the appellant. Cross-examined by the Crown, Day repeated his allegations of violence on the part of the appellant and stated that he was more scared of the appellant than of Sparks. 20. What happened in relation to the giving of Day's evidence of bad character concerning the appellant may be contrasted with what happened in relation to his evidence of the bad character of the other defendant, Hernan Ramirez. That was the subject of an application on Day's behalf before the evidence was given. The application was opposed by counsel for Hernan but the judge ruled that the evidence could be adduced. 21. After Day's evidence, including cross-examination, had been completed, full argument was heard on the status and consequences of the evidence that Day had given about the appellant's bad character. The judge ruled first that the evidence did not fall within section 98 of the Criminal Justice Act 2003 , as had been submitted by counsel on the appellant's behalf. He held that the matter would have to be dealt with under section 101 of the Criminal Justice Act 2003 and that an application for it to be admitted under that section should have been made. He said that the evidence was new. Whilst evidence had previously been given about Hernan Ramirez's bad character and propensity for violence, Day was now making allegations not only against Hernan but for the first time also as against the appellant. 22. The judge considered how to deal with the problem that had arisen. He said that he should put himself in the position he would have been in had he heard an application under section 101 of the 2003 Act prior to Day giving evidence, and he should ask himself what his decision would have been if an application had been made at that stage. As to that, he had no doubt that he would have ruled the evidence admissible because it was relevant to Day's state of mind and the appellant's propensity to violence, which were important matters in issue as between Day and the appellant, in that each blamed the other for the murder, and it had substantial probative value in respect of who was telling the truth. He continued as follows: "And so what to do about that now? Well it has been admitted in the sense that the evidence has been given and I would have admitted it, so I now have to consider the position of the third defendant [the appellant] to ensure as best I can that he receives a fair trial. How can he deal with it? Well he can deal with it by giving evidence, he can deal with it by calling evidence, he can deal with it by any admissions if opposing counsel are prepared to make them, and it may be that they are not, but I am just canvassing possible routes. And so I do not think it is appropriate to discharge this jury, either in the case or in respect of the third defendant, I think the case can perfectly properly now continue, because after all the third defendant's case has not yet opened and there are avenues by which he can seek to put his own side of the story before the jury. And that is what he must do. In whatever way he chooses, but if he needs time for further inquiries why then it seems to me that reasonable further time should be given." The trial then proceeded. At the conclusion of the case, the judge dealt with Day's evidence in the summing-up in a manner about which no complaint is made. 23. There is no dispute about the relevant legal framework. We do not need to set out the provisions of sections 98 and following of the 2003 Act governing the admissibility of evidence of bad character. Under section 101(1)(e) evidence of a defendant's bad character is admissible if it has substantial probative value in relation to an important matter in issue between the defendant and the co-defendant. This gateway has obvious relevance to cutthroat defences such as that which Day was running against both his co-defendants at the trial. 24. Section 111 provides for the making of rules of the court as to, among other matters, the giving of notice where a party proposes to adduce evidence of a defendant's bad character. Under rule 35.5 of the Criminal Procedure Rules, a co-defendant who wants to introduce evidence of a defendant's bad character or to cross-examine a witness with a view to eliciting such evidence must give notice in a specified form to the court officer and all other parties to the proceedings not more than 14 days after the prosecution has complied or purported to comply with its initial disclosure obligation under section 3 of the Criminal Proceedings and Investigations Act 1996. Under rule 35.8, the court may allow notice or application required under the rules to be given in different form or shorten the time limit under the rule or extend it even after it has expired. 25. In R v Musone [2007] 2 Cr.App.R 29 at page 379, the court held that once evidence of a defendant's bad character meets the test in section 101(1)(e) there is no power under the 2003 Act or section 78 of the Police and Criminal Evidence Act 1984 to exclude that evidence on the grounds of unfairness. However, the rules made under section 111 confer an implied power to exclude such evidence in circumstances where there has been a breach of a prescribed requirement, and a judge is entitled to exercise that power where he concludes that a defendant has deliberately manipulated the trial process so as to give his co-defendant no opportunity of dealing properly with the allegation made. It was on that basis that the court in Musone upheld the trial judge's refusal to allow evidence to be given of a co-defendant's alleged confession or to cross-examine the co-defendant about it after the judge had concluded that the failure to give notice of the evidence or of the intention to cross-examination about it was due not to an oversight but to a deliberate intention to ambush the co-defendant. 26. Similarly, in R v Jarvis [2008] Crim LR 632, the court held that rule 35.8 gives a judge a wide discretion whether to allow or refuse a late application to adduce bad character evidence and, if an application is made so late that the target of the application would unfairly be unable to deal with it, the judge has ample power under the rules to refuse to admit it. 27. The present case of course concerns not just late notice but a failure to give any notice at all prior to the evidence being given: no application was made before the evidence was given and it was impossible for the judge to give a ruling in advance on whether the evidence could be admitted or not. But in dealing with the situation that arose as a result of the evidence being given in that way, the judge made clear, as we have said, that he would have ruled the evidence admissible had a late application been made before Day gave evidence. 28. The essential issues on the appeal are whether the judge was right so to rule and to allow the case to proceed as he did after Day's evidence of the appellant's bad character had been given. 29. On the appellant's behalf, it is submitted by Ms Marsh that the failure to give notice of Day's bad character evidence concerning the appellant caused prejudice to the appellant in a number of ways. First, none of the points raised with reference to the appellant, as we have set out, was put to the prosecution witnesses, including, most importantly, the deceased's girlfriend Ms Sinnick but also including other witnesses such as Emma Cook. The appellant was therefore unable to challenge the assertions by cross-examination of the relevant prosecution witnesses. 30. Ms Marsh has stressed to us in the course of her oral submissions that matters of character had been ventilated on several occasions in court at the earlier stages of the trial. Because, on the basis of what had happened on those occasions, it appeared that there was only a limited attack on the character of the appellant, limited essentially to his drug dealing activities, the appellant had been able to take a back seat as regards cross-examination during the course of the prosecution evidence. Ms Marsh said that the appellant and his team were lulled into a false sense of security. They had proceeded in the expectation that the appellant would not be called as a witness. A defence statement had therefore not been served. The view was taken that it would be possible to address the jury in terms of the non-violent nature of the appellant. All that, it is said, was destroyed by the way in which Day's additional evidence of the appellant's bad character came out. 31. Secondly, a number of potential witnesses were named in Day's assertions but it was not possible for the appellant's team to trace and interview those witnesses in the time available. Thus Leckie, Alexis Beckett, had been listed as a prosecution witness and, it is said, could have dealt with the material naming her, but she had in fact been de-warned by counsel for Day so had not given evidence and in the event the appellant's team were unable to obtain contact details for her and were simply told by the prosecution that when Alexis Beckett had been approached by a police officer she had declined to give evidence. The result was that the appellant's team were powerless to interview her. In cross-examination of Day, on the appellant's behalf, it was put to him that Alexis Beckett had done the stabbing of Day which Day attributed in evidence to the appellant. The absence of an opportunity to interview her was therefore a matter of real materiality. As to Sky James, she was unknown to the police and the appellant's team were unable to trace her. Emma Cook had been called as a prosecution witness and gave evidence but no questions were put to her by counsel for Day as to the alleged stabbing of Day by the appellant, of which Day asserted she was aware. Other witnesses, namely friends or relatives of Day, were named during his evidence but by this point the appellant's team could not realistically obtain details of them or conduct proper inquiries. 32. Thirdly, and more specifically, the allegation of stabbing and the injury allegedly caused by it, to which the appellant understandably attaches particular weight, were, it was said, revealed for the first time in Day's evidence, affording the appellant's team no proper opportunity to have the background investigated, including any witnesses to the incident and any alternative accounts of it. 33. Thus it is submitted that the manner and lateness of the admission of this evidence caused insurmountable difficulties for the appellant of such magnitude as to cause injustice to him and to render the continuation of the trial unfair and his resulting conviction unsafe. The damage simply could not be repaired, says Ms Marsh. She submits that the judge should have discharged the jury and aborted the trial. 34. We have received submissions on behalf of the prosecution in the form of an excellent written skeleton argument by Ms Schutzer-Weissman but we have not found it necessary to call on her for oral submissions. In her written skeleton argument, she submits, first, that the appeal put forward is technical and has little merit, especially as the judge allowed time for further inquiries to be made on the appellant's behalf prior to his defence case being opened. Secondly, the evidence given by Day, while prejudicial, was given at a time when the appellant and those representing him were able properly to deal with it and challenge it by cross-examining Day itself, by the appellant giving evidence, by calling or recalling prosecution witnesses and by seeking out and obtaining further evidence. In any event, in relation to the specific points raised by the Ms Marsh and to which we have already referred, it is said that the position of Alexis Beckett was covered by an admission that she was unwilling to assist, which did not damage the case for the appellant, particularly bearing in mind that it was his case that she was the one who had stabbed Day. Attempts were indeed made to establish who Sky James was and how she could be found. They were unsuccessful. There is, however, no suggestion that the intervening period between conviction and the present appeal has given rise to success in this regard or that the appellant would have been in a better position with longer notice of the allegation made. Emma Cook was known to all, having been tendered by the Crown, and she could have been recalled or called by the appellant. No such application was made and the fact that Day had not asked her to confirm allegations later made against the appellant reflected badly on Day's evidence, thereby assisting the case for the appellant. The other friends and relatives were known to the appellant when Day gave his evidence and some time could have been sought from the court to pursue inquiries as suggested by the judge. Here again there is no suggestion that inquiries have been subsequently made with any success or that the appellant would have been in any different position had more notice been given. 35. Further, it is submitted that Day was cross-examined extensively as to the scar on his back by counsel for the appellant, who appeared to have in her possession opposing accounts of how the injury had occurred. Furthermore, in the witness box Day was asked and agreed to sign a consent form for the release of his medical records, but, again, no material had been put forward to suggest that this provides anything of assistance to the appellant or such as would therefore have assisted him more had more notice been given. 36. A further strand in the submissions made on behalf of the prosecution is that the decision retrospectively made to admit the evidence, or that the evidence would have been held admissible if an application had been made before it was given, was a decision properly taken and that the judge gave proper consideration to the impact on the appellant's ability to have a fair trial of the evidence being given without notice at the time when it was. It is submitted that the judge exercised his discretion properly and that there are no grounds for interfering with his decision. It cannot be inferred that the giving of the evidence without notice was a deliberate manipulation of the rules on the part of Day or his legal team. His counsel argued that no application had been considered necessary, on the basis that the evidence fell within section 98 of the 2003 Act , albeit that that submission was then rejected by the judge. The judge was entitled to conclude that the situation was not one in which the appellant was unfairly unable to deal with the evidence. The retrospective admittance of the evidence therefore did not cause irremediable prejudice and the judge was right to deal with it as he did. 37. There is a final submission for the prosecution that, even if the judge was wrong to admit Day's evidence of the appellant's bad character, this would not render the conviction unsafe since the other evidence against the appellant was so strong that the only reasonable and proper verdict for the jury would nevertheless have been one of guilty. 38. In our judgment, the judge dealt correctly with the difficult situation that arose in this case from the failure of Day to give the requisite notice of his evidence of the appellant's bad character. The judge was clearly right that notice should have been given and an application made for the evidence to be admitted under section 101(1)(e) . The cases of Musone and Jarvis show that, where there has been a failure to comply with the notice provisions under the rules, the judge has a discretion to refuse the application if there has been a deliberate manipulation of the rules giving rise to unfairness (see Musone ) or simply where lateness of the application could give rise to unfairness through the target of the application being unable to deal with the evidence (see Jarvis ). Although, so far as we can see from the transcript, the judge's attention was not drawn to those authorities, he approached the matter in a way which met the substance of the principles laid down in them. The judge was right to conclude that the evidence would be admissible under section 101(1)(e) . The contrary is not in reality contended for by counsel for the appellant. The judge was right to go on to consider whether the appellant would have a fair trial following the admission of that evidence. He found that the appellant could, in that there were various avenues by which he could seek to put his side of the story before the jury. He also made clear that, if the appellant needed time for further inquiries, then reasonable further time would be given. 39. We acknowledge that some disadvantage may have been caused to the appellant through inability to trace and interview at such a late stage some of those to whom Day referred as part of his evidence on the appellant's bad character. But there is only limited force in that consideration. We accept the various points made by prosecution counsel, as already summarised. in relation to the named witnesses (Alexis Beckett, Sky James, Emma Cook) and the various other witnesses about whom it is said that the defence would have wished to make inquiries. It is not contended that the judge allowed an unreasonably short time for further inquiries. Moreover, there is even now nothing to suggest that due notice of Day's evidence would have put the appellant in a position to challenge it any more effectively than he could in the circumstances that arose at the trial. 40. An obvious way in which such evidence could have been challenged at the time was by the appellant himself giving evidence about it, but he chose not to go into the witness box. One can understand why, if he had previously decided not to give evidence, the additional matters raised by Day may not have been sufficient to cause him to do so, but in this respect he was in truth in no different a position than if full notice of that evidence had been given. 41. In our view, therefore, the judge was entitled to conclude that the giving of Day's evidence without proper notice did not prevent the appellant having a fair trial. Although the judge did not put it this way, his conclusion on that issue plainly meant that he would not have exercised his discretion, the discretion vouchsafed by Musone and Jarvis , to exclude the evidence on a late application on the grounds of unfairness to the appellant. 42. It is true that because Musone was not cited the judge did not consider the matter in terms of whether there had been a deliberate manipulation of the rules by Day. We cannot have the same feel for the matter as the judge would have had. We have borne in mind what Ms Marsh has told us about the development of the character issues in the course of the trial and the state of mind of the appellant's defence team, though we have to say that we are surprised, if this was regarded as such a critical issue when it arose, that there was not an earlier intervention which might have led to the matter being resolved before all the relevant evidence was given. We understand why it is said that what occurred amounted to an ambush. On the other hand, there was an argument, albeit rightly rejected by the judge, that the evidence fell under section 98 and did not go through section 101 gateways at all. In relation to Hernan Ramirez, an application had been made and allowed. An application in relation to the appellant was plainly going to be successful if made in good time and there was no obvious reason why the element of surprise should make Day's evidence substantially more effective. Moreover, it is not impossible that Day's oral evidence simply went further than his legal team may have expected from what was contained in his proof of evidence, but not necessarily because of a deliberate intention to cause the appellant prejudice by taking him by surprise. 43. In any event, if the judge was right, as we think he was, to conclude that the giving of the evidence, even without proper notice, would not prevent the appellant having a fair trial, the motivation of Day or indeed his legal team in failing to give proper notice of it - even if there was a deliberate intention to ambush - would not in our view provide a sufficient reason in this case for the judge refusing the application to admit the evidence. It follows that the judge was right in the ruling he made as to the admission of the evidence. It also follows that he was right not to discharge the jury. For these reasons, we do not accept that there was a material error in his handling of the issue or in his decision to allow the trial to proceed. 44. We should stress that that conclusion is reached on the particular facts of the present case. It is right to say, however, that we remain very concerned at the potential implications in other cases of what happened here. We make clear that in another case the giving of bad character evidence by one defendant in relation to a co-defendant without prior notice or application could well lead to the discharge of the jury and to a retrial, with the possibility of severe sanctions in the form at least of wasted costs orders against any legal representative found to have been involved in the deliberate manipulation of the rules leading to such a consequence. 45. Returning to the present case, however, we are not persuaded by Ms Marsh’s submissions. In our judgment, the conviction is safe and the appeal must be dismissed.

2009_07_24-2031.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/1721/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/1721

282855b06c9cc7e484b11aaa2e700cbba2439b2223a6dbd5980a1221651ffd34

[2013] EWCA Crim 368

EWCA_Crim_368

2013-03-28

crown_court

Neutral Citation Number: [2013] EWCA Crim 368 Case No: 2012/04537 ; 2012/05028 ; 2012/04539 ; 2012/04538 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LUTON CROWN COURT His Honour Judge Kay QC (1) T2011/7310; (2) T2011/7297; (3) T2011/7376; (4) T2011/7319 Royal Courts of Justice Strand, London, WC2A 2LL Date: 28/03/2013 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE SIMON and MR JUSTICE IRWIN - - - - - - - - - - - - - - - - - - - - - Between : (1) JC (2) JJC (3) PC (

Neutral Citation Number: [2013] EWCA Crim 368 Case No: 2012/04537 ; 2012/05028 ; 2012/04539 ; 2012/04538 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LUTON CROWN COURT His Honour Judge Kay QC (1) T2011/7310; (2) T2011/7297; (3) T2011/7376; (4) T2011/7319 Royal Courts of Justice Strand, London, WC2A 2LL Date: 28/03/2013 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE SIMON and MR JUSTICE IRWIN - - - - - - - - - - - - - - - - - - - - - Between : (1) JC (2) JJC (3) PC (4) TC (Senior) Appellant - and - R Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - (1) Miss K Walton and Mr M Himsworth for the Appellant J C (2) G Cockings and D Jameson for the Appellant JJC (3) P Crampin and Alex Di Francesco for the Appellant PC (4) L Power QC and A Selby for the Appellant TC (Senior) B Gumpert for the Crown Hearing dates: 14 th February 2013 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Chief Justice of England and Wales: 1. This is an appeal against conviction by JC, JJC, PC, and TC (Senior) following a lengthy trial in the Crown Court at Luton before His Honour Judge Kay QC and a jury of a multi-handed, multi-count indictment. There were seven defendants at trial. They were part of an extended family which originated from the Irish travelling community. TC (Senior) was the father of JC, JC, JC, PC and TC. JC was the wife of JJC. 2. In view of the main ground of appeal we must relate the individual counts in the indictment to the individual defendants where the verdict was left to the jury. Count Offence Defendants Jury Count 1 Conspiracy to hold a person in servitude (AL) TC (Snr) TC PC JC Not agreed N/A N/A N/A Count 2 Conspiracy to require forced labour (AL) TC (Snr) TC PC JC N/A N/A N/A N/A Count 3 Assault occasioning abh (AL) TC (Snr) G (11-1) Count 4 Conspiracy to hold a person in servitude (TB) TC (Snr) TC PC JC N/A N/A N/A N/A Count 5 Conspiracy to require forced labour (TB) TC (Snr) TC PC JC N/A N/A N/A N/A Count 6 Holding a person in servitude (CM) JJC JC G (Unanimous) G (Unanimous) Count 7 Requiring forced labour (CM) JJC JC G (Unanimous) G (Unanimous) Count 8 Assault occasioning abh (CM) JJC G (11-1) Count 9 Conspiracy to hold a person in servitude (SO’D) TC (Snr) TC PC G (11-1) N/A G (11-1) Count 10 Conspiracy to require false labour (SO’D) TC (Snr) TC PC G N/A G Count 11 Assault occasioning abh (SO’D) PC G Count 12 Conspiracy to hold a person in servitude (JR) JC TC PC JC NG NG NG NG Count 13 Conspiracy to require a person to perform forced labour (JR) JC TC PC JC N/A N/A N/A N/A Count 14 Conspiracy to hold a person in servitude (RC) TC (Snr) JC PC NG NG NG Count 15 Conspiracy to require a person to perform forced labour (RC) TC (Snr) JC PC N/A N/A N/A Count 16 Conspiracy to hold a person in servitude (JV) TC (Snr) JJC TC JC PC N/A NG N/A N/A N/A Count 17 Conspiracy to require a person to perform forced labour (JV) TC (Snr) JJC TC JC PC N/A NG N/A N/A N/A Count 18 Holding a person in servitude (DP) JJC JC G G (11-1) Count 19 Requiring a person to perform forced labour (DP) JJC JC G G(11-1) Count 20 Battery (DP) JJC N/A 3. For the avoidance of doubt we have not recorded verdicts which were returned following directions by the judge to acquit or on the counts where the prosecution offered no evidence. 4. These verdicts were reached by the jury after a retirement which lasted many days. After the majority direction had been given, they returned verdicts on count 3, 6, 7, 8, 9 and 10 (convicting TC Senior and PC, but not agreeing their verdict on TC), 11, 12, 14, 16 and 17, (acquitting JJC, and being unable to agree their verdicts on the four other defendants), 18 and 19. Thereafter they were unable to reach majority verdicts on the remaining counts. 5. The total sentences imposed on the defendants were: JC 4 years imprisonment. JJC 11 years imprisonment. Sentencing on PC and TC (Senior) was adjourned pending retrial of the counts on which the jury failed to return verdicts. TC Junior, JC and JC were not convicted of any offence. There will be retrials of some of the counts where the jury was unable to agree. 6. JC and JJC seek leave to appeal against conviction and sentence, and PC and TC (Senior) seek leave to appeal against conviction. The case has been referred to the court by the Registrar. Leave to appeal is granted on the main ground which we shall address immediately. A broad summary of the essential facts 7. The indictment addressed a broad prosecution case that TC Senior, his children and his son in law recruited vulnerable adults to work for them on the pretence that they would be paid, fed and housed. Once caught in the clutches of the appellants, many of them had no means of escape. They were forced to carry out hard physical labour, for extensive hours, without payment. They were subjected to physical violence and the threat of violence to secure compliance with the demands of the C’s family, and to instil fear of retribution into them if any one of them should try to leave the site of operations. In effect they were held against their will at a succession of travellers’ sites. It was not necessary to prove that the complainants were physically detained or imprisoned because they were controlled by threats, exploitation and indeed infantilisation so that each of them was deprived of the resources and will to get away. 8. By contrast the defence case was that the complainants and those who have worked for them had lied or exaggerated. They were properly employed, and free to leave if they did not like the arrangements. They were not compelled to work. No violence or threats were made to them. They were neither in servitude nor was their labour forced. Part of the defence case was that the complainants had encouraged each other, and had been encouraged by the police to believe or to say they had been the victims of slavery, and the defence contended that the police had acted improperly, on the basis of prejudice against travellers, and that the charges were, in effect, fabricated. The timing of the raid on the appellants’ homes was politically motivated, so as to create adverse media publicity prior to the now well known evictions from Dale Farm in Essex. The main ground of appeal – the jury letter 9. Before the trial began on 16 April 2012 a questionnaire was handed to the jury panel. It read: “This case concerns a travelling community. All the defendants are travellers or members of that community. Do any of you have views that would make it difficult or impossible to return verdicts based solely on the evidence?” In response one member of the eighteen potential jurors indicated that he did entertain such views and he was excused from service. Two other members asked whether their contact with travellers through work meant that they ought to be excused, although they made it clear that they themselves harboured no personal prejudice against travellers, they simply brought the facts to the attention of the judge out of an abundance of caution. There was no reason why they should not be selected to serve on the jury, and in due course they were duly sworn. 10. After the jury was sworn the judge directed the jury in what has now become conventional language that each member of the jury was equally responsible for their verdicts, the need for fairness, to approach their task without prejudice and focussing exclusively on the evidence; and that if any irregularity occurred within the jury it should immediately be brought to the attention of the judge. They were directed that while it was open to them to discuss the evidence while they were alone, they should not reach any concluded views until they had heard all the evidence, the submissions on behalf of both sides by counsel, and the judge’s summing up. Directions to this effect were repeated at a later stage of the trial, when the jury were provided with a room in which they could meet. 11. The evidence was called in the usual way. Some nine weeks or so after the trial began, the prosecution had closed its case. Counsel for TC Senior opened his case to the jury and put the issue of prejudice against travellers squarely in front of them, in effect at the forefront of the defence case. Thereafter TC Senior and another of the seven defendants gave evidence and closed their cases. The third defendant did not give or call evidence herself. Thereafter, subject to the recall of a prosecution witness, the case of JC, the fourth defendant, was about to start. 12. During the course of the trial the judge received a number of questions from the jury. For example, he was asked to provide a legal definition of servitude and forced labour, and while, making it clear that full directions would be given in his summing up, the judge, with the agreement of counsel, provided the jury with a working definition. Indeed, even after the jury was in retirement, one note asked him: “Does “agreement” mean that two of the defendants had to have actively committed the offence, e.g. coercion, or could one of them have actively have done it and the other just known about it? Are they both then guilty?” This question went to the heart of some of the issues for decision by the jury. 13. Throughout the trial a series of questions from the jury was also directed to the factual evidence. The judge was to note that a significant number of those questions were directed to the evidence of the witnesses for the prosecution and could “reasonably” be viewed as favourable to the defence. 14. On 13 June one member of the jury made a request to speak to a member of the court staff. That fact was reported to the judge, and he directed that if the juror wished to draw anything to the attention of the court, it should be communicated in writing. On the following day the judge received a letter which he immediately drew to the attention of all counsel. Until then there had not been the slightest indication of any jury problems. 15. The letter includes the following passage: “Throughout the trial and especially since we were given a room, it has become quite obvious that certain jurors, not all, are quite anti-traveller/prejudiced. These people have seemed to take on a ring leader role and are extremely strong characters. One in particular had admitted to knowing his verdicts were all guilty over a month ago and recently admitted this to the whole jury. I simply said this was exactly what we were told not to do and questioned him on how he could be so sure after not hearing both sides. I said I thought this was very unfair of him which obviously angered the juror and he started to quite aggressively fire questions my way like “how can you say that after what we have heard, how do you explain this then” and almost demanding I explain some of the things he was saying. By this point nobody was saying anything and I decided to just keep quiet as I felt quite embarrassed and slightly stupid. On occasions I have not been spoken to for the rest of the day if I expressed an opinion they do not agree with resulting to them shouting down at me. I speak for myself in this letter but a few others have been spoken to rudely and inappropriately too. I once sent a question up which I believe was a normal query but was told after it was not right, I make it obvious I am defending the defence and the family. I had not thought anything like that from the simple question I had asked, I explained I was not here to defend either, I just wanted to clear something up in my mind by asking the question regarding if witnesses were prepped ever before interview. They are stereotyping the family based on what they know or have heard about travellers in general, and the children going to school with traveller children or seeing one have an argument in the pub. Using the families past convictions (which have been disclosed in the course of this case) to back off on their thoughts on travellers by saying things like “that’s what they, travellers, are just like, well you can tell what type of family they are,” this came from one after hearing about the tax and fraud issues. Those few jurors like myself were trying so hard to look at them as people and not travellers it’s making it very hard. The room is used solely for convincing us now”. 16. This was a note or message from and signed by a single juror. No other juror suggested that there were any concerns about proceedings in the jury room. None of the others suggested that they had been bullied, or indeed that they had seen or perceived any bullying of the juror who wrote the note. 17. The judge himself remained acutely conscious of the risk of prejudice, and while considering the appropriate course of action with counsel in court, said that the letter had come as a shock to him. It was submitted on behalf of the defendants that once the court received a letter in the terms of this particular letter, then without any more ado, the jury should be discharged. That indeed was the submission made to this court. The judge rejected the proposition which, he suggested, did not represent the relevant legal principle. He examined the relevant authorities bearing on his decision. They are carefully analysed in his ruling, again, without any criticism directed at this analysis. 18. In his ruling the judge said that while observing the jury during the previous nine weeks he had formed the view that they were approaching their task with “real diligence and application and there have not been any signs of disharmony”. He warned himself that appearances might be deceptive, but added, and it was not challenged, that very many of the jurors were plainly “taking and continue to the present time to take copious notes of all the evidence” which, as the judge put it, “indicates that they have not formed a concluded view as to guilt, whether as a result of prejudice against travellers or otherwise”. The judge approached the problem on the basis that, although he should take the letter from the single juror at its face value, there was what he described as tangible evidence to suggest that it was not an accurate representation of what was happening. For example, if it was right, it meant that one or more members of the jury had given a false answer to the question asked before they were empanelled about possible prejudice against travellers. The continuing flow of questions from the jury, many of them favourable to the defence, and indeed a then very recent request for a definition of conspiracy did not, as the judge put it, “make much sense”, if the jury was not approaching its responsibilities in an appropriate way. After summarising all these considerations in his ruling that the trial should continue, the judge added that there were “many possible explanations as to why the letter has been written in those terms. Leaving aside sinister reasons of which there is no evidence, there can be innocent ones, such as over-sensitivity or misunderstandings or impressions gained in the cut and thrust of jury debate”. 19. The judge directed himself that the question was whether there was a real possibility or real danger of bias. He recognised that while a fair-minded and informed observer would read and take the letter he had received at face value, he or she would also have in mind the conduct and behaviour of the jury throughout the trial. These were inconsistent with the complaints made in the letter. He was satisfied that what he described as a “stern and clear direction to the jury was the right remedy in the circumstances, and this would dispel any reasonable impression that might have been formed of a lack of impartiality”. He went on that “If it is correct that there are one or more than one members of the jury who are misbehaving or prejudiced in the way that’s described in this letter then I have faith that the others within the jury, … who are not of that mind would bring the matter to my attention.” 20. Having made his decision, the judge then gave further directions to the jury. He reminded them of their continuing duties as jurors, and their obligation to consider the evidence as a whole before reaching their verdicts and keep open minds until the end of the summing up. He addressed the issue of prejudice directly. He warned them that “prejudice whether against travellers or other ethnic groups is a real issue in society. When you consider the evidence you must not bring any emotions or pre-conceived ideas into that process. You must not approach the task you have in considering the evidence with any degree of prejudice, whether against travellers or anyone else. You must not stereotype any one because of their culture or background, you must approach the task objectively and dispassionately and in your deliberations, whether they are preliminary as the evidence unfolds, or in deliberations when you are considering your verdicts, you must concentrate on the evidence.” He then went on to direct them that each member of the jury was equally responsible for the verdicts that would be delivered. “It may be that there are different views expressed about parts of the evidence or the evidence as a whole. … Each person must be permitted to express their views and must be listened to respectfully and attentively. There must be an exchange of views and even perhaps fierce debate, but all must remain within the proper bounds of discussion rather than improper pressure or bullying.” 21. Finally he directed them that if any member of the jury felt unable to deal with the case in accordance with those directions then it was their duty to say so. It was also the duty of any member of the jury to report behaviour by any other juror or jurors which he considered was irregular, and inconsistent with the directions he had just given and the oath or affirmation each one of them had taken. If there was anything of that nature it was the duty of each juror to say so and draw it to the attention of the judge, “confidentially in writing as soon as possible”. 22. The trial proceeded without any expression of concern by any of the twelve jurors. 23. When the judge came to sum up the case, his directions on the issue of possible prejudice were as clear and unequivocal as they had been throughout the trial. He directed the jury at the very outset about the requirement to exclude prejudice from their consideration, focussing objectively and dispassionately on the evidence and nothing more. Given the nature of the defence he had to address the issue of prejudice, pointing out that the defence case was that the prosecution was a conspiracy by the police, and that the evidence was false evidence gathered as a result of inappropriate or misconceived procedures. He directed the jury that if there was or maybe a conspiracy by the police to gather inappropriate evidence, or that the evidence gathering procedures might have been flawed, then the jury might conclude that the entire prosecution case would be undermined. He added that the jury should not be diverted from considering the evidence, and nothing else, on an objective and dispassionate basis, and that in law, “no racism or prejudice is acceptable, and that the law that combated discrimination and prejudice can be and was invoked by “many individuals from all ethnic groups”. These directions were not deficient in any respect. 24. The jury retired, and in due course returned the verdicts summarised at the beginning of this judgment. Although it would not be conclusive of the issue which we have to decide if the jury had convicted each and every defendant of every one of the offences the offences charged against them, the reality is that the verdicts of the jury show that each count against each defendant was approached with great care, exactly as directed by the judge considering each count and each defendant separately. Some “not guilty” verdicts were returned. Some of these acquittals related to the most serious incidents relied on by the Crown. Some “guilty” verdicts were returned, some unanimously, and some by a majority, and indeed in many cases the jury was unable conscientiously to agree even a majority verdict. 25. The submission on behalf of the appellants is simple. Once the letter had been received, the jury should have been discharged. No other course was or could have been appropriate. At the very least there was a real possibility that the defendants were not receiving a fair trial. Unless the judge examined the veracity of the writer of the letter, it had to be accepted on its face value. Moreover if the judge wrongly allowed the case to continue, his directions to the jury were inadequate. Any fair-minded and informed observer would conclude that there was a real danger that the jury was or would be biased, or at any rate, that one member of the jury was biased. 26. In support of the submission attention was drawn to a number of authorities including R v Mirza, R v Connor and Rollock [2004] 1 AC 1118 , R v Smith and Mercieca [2005] 2 Cr. App. R 10 and R v Thompson and Others [2010] 2 Cr. App. R 27 . We have reminded ourselves that in Smith and Mercieca , the reasoning of the European Court of Human Rights in Remli v France (1996) EHRR 16839/90 Gregory v UK [1998] 25 EHRR 577 and Sander v UK [2001] 31 EHRR 44 , and in Smith the reasoning in Gregory and Sander were addressed and fully reflected in the judgments. 27. The essence of the submission was summarised by a citation from R v Heward [2012] EWCA Crim. 890 at para 12 that: “If the fair minded observer would conclude on the available evidence that there was a real possibility of a real danger that the verdict was at least in part the produce of bias “the verdict should be regarded as unsafe”.” 28. Moreover it was argued, great care should be taken not to attach inappropriate weight to the verdicts eventually returned by the jury. Whatever else they may reveal, they do not exclude the possibility that one member of the jury was so profoundly prejudiced that he (or she) voted for a guilty verdict on every single count. In the end, much of the oral argument turned on the way to address the presence on the jury of a single member committed to conviction whatever the evidence. These considerations demonstrate that the judge had no available choice: he had to take the contents of the note as true, that is an accurate account of what was happening in the jury room, and the only proper course was the discharge of the jury. 29. This contention is problematic. It means, for example, that a member of the jury, finding himself or herself in a minority may bring the trial to a halt by writing a measured letter to the judge complaining of irregularities by the other members of the jury. The difficulty was addressed in the House of Lords in R v Smith and Mercieca . During retirement, a juror wrote a note to the judge complaining of the way that jurors were being “badgered, coerced and intimidated into changing their verdict”, and that they were being put under pressure to engage in what was described as “horse trading” with the “coercive” group of jurors, in effect, betraying their oaths by ignoring the evidence and the judge’s directions. The judge gave a “powerful” direction to the jury to bring any such misconduct to a halt. 30. The House of Lords concluded that on the facts of the particular case it would have been inappropriate for the judge to question the jurors about the content of the note, and underlined that, faced with the contents of the note, he was faced with the alternative, whether to discharge the jury or give them further instructions to underline and re-emphasise their responsibility to discuss the issues in a way which would lead them to “confine their deliberations within the proper bounds of discussion”. 31. It was submitted that Smith and Mercieca should be approached with caution, because the allegations made by the juror were not concerned with racial or ethnic bias. Seriously as such bias, or even potential bias, should be approached (a factor which the judge never minimised at any stage in this case), the irregularities complained of in Smith were serious irregularities and similar to the matters complained of here: that is jurors, for whatever reason, deliberately choosing to ignore the evidence on which their verdicts should be based. The problem was bias. The question for decision in Smith and Mercieca was whether “lawful and unbiased verdicts” could be reached, notwithstanding the bias alleged, and the decision of the judge to continue with the trial, with appropriate directions, was consistent with principle. 32. Precisely the same approach was adopted in Thompson and Others [2010] 2 Cr. App. R27 , where six unrelated cases, all concerned with issues of alleged jury irregularity, were considered. The principles derived from Smith and Mercieca were applied to a variety of different factual circumstances. Faced with any jury irregularity the judge was required to consider a range of options. None followed automatically. 33. The receipt of any communication by a juror or jurors complaining of possible irregularities by or among the other jurors demands rapid and close attention. It behoves the judge to decide whether the integrity of the trial process has been irretrievably damaged or whether the trial can continue notwithstanding the complaints. Depending on the individual facts it may be appropriate for the judge to discharge the jury as a whole, or one or more individual members of it, or to continue with the trial, with any necessary direction or warning sufficient to deal with the specific problem. The question for this court is whether the alternative adopted by the judge was correct, which, if the trial has been allowed to continue must be decided at its end, when the warning or directions of the judge, and their impact and any consequences can all be examined. 34. In this case the letter reflected the complaints of a single juror about the behaviour and approach of a number of her colleagues. The judge was, of course, not a party to what was happening in the privacy of the jury room, but he had been responsible for the proper conduct of a trial in which, from the very outset, he had addressed the issue of possible prejudice, and when the allegation of prejudice was at the very forefront of the defence case. From the outset therefore he was alert to all the potential problems and for nine weeks into the trial nothing gave him cause to suspect the possibility of prejudice among the jurors. Rather, the jury appeared to him to be attentive and careful, approaching its responsibilities with utmost seriousness, focussing on the evidence and seeking his assistance from time to time to enable them to focus properly on their responsibilities. He was not bound to discharge the jury because of the letter, however troublesome its contents signed by one juror. Equally it would have been inappropriate for him to try and conduct an investigation into what had been happening in the jury room, not least because the juror expressing her concern had done so after the allegation of prejudice had been raised in the course of what was no doubt a powerful opening speech to the jury at the start of the defence case when it might very well have been the subject of lengthy and serious discussion among jurors in their own room. Certainly it would have been unsurprising if such a crucial issue to the defence case had been ignored. The judge’s alternative was to let the trial proceed, first, by using the most unequivocal language to address issues raised by the complaint (which he did) and, second, by reminding every juror who was unhappy with the way proceedings were being conducted in their room, of their entitlement, indeed obligation, to draw his attention to any inappropriate jury observations or behaviour. This is what he did. 35. The trial continued. There was no further intimation to the jury bailiff of any concern by the juror who had written the troublesome letter. No juror thought it appropriate to add his or her concerns either in the light of the judge’s direction, or at any stage thereafter. The jury was in lengthy retirement, covering many days, during the course of which the judge received a carefully crafted question relating to the application of the legal principles relating to conspiracy as it might apply to the facts of the case, but nothing to suggest that there were any problems with the jury’s proper approach to their decisions. The verdicts themselves underline that far from a blanket series of verdicts suggestive of prejudice, the verdicts, and the inability of the jury to agree some of them, were all consistent with the conscientious and unimpeachable approach to the jury’s responsibilities. 36. Our conclusion is that Judge Kay handled the problem presented to him impeccably, and that his assessment of the integrity of this particular jury was amply justified. In the context of alleged jury bias, there is no reason to doubt the safety of the guilty verdicts returned by this jury. The remaining grounds of application 37. We must turn to the other matters raised in support of the application for leave to appeal. It was submitted on behalf of JJC and PC that, towards the end of his summing up, when dealing with some of the issues the jury might wish to consider, they were left in no doubt as to the adverse view formed by the judge of the defence case. 38. We have looked carefully at the part of the summing up on which our attention was focussed. (Vol. V p231-241). The judge was plainly concerned to draw some of the issues together. Among them was the defence contention that the police, motivated by the bias and prejudice against the travelling community to which we have referred, had engaged in a “witch hunt” based on false evidence. Having identified these issues, the judge summarised the evidence and the arguments. He directed the jury that if they thought there was or might have been, any such prejudice or bias, or that the evidence-gathering procedures were inappropriate, then these might well undermine the entire prosecution case. If however they excluded these considerations, then they might wish to consider why the allegations had been made and whether this might be because the defendants had a genuine, but mistaken, belief in what they were contending, or because they might be seeking to divert attention away from the real issues. If this last consideration applied, the jury should not allow themselves to be diverted from considering the evidence “on an objective and dispassionate basis”. He further directed them that there was no hierarchy of prejudice or racism, concluding, “in law, no racism or prejudice is acceptable”. 39. This did not constitute a misdirection, nor support the contention that the judge was being unfair or that he improperly sought to influence the verdict of the jury. 40. On behalf of JC two submissions are advanced. First, the judge was wrong to allow the admission in evidence from one of the witnesses, CT, and second, a distinct submission, that he erred in ruling that there was a case for her to answer on counts 7 and 19. 41. Dealing with the first point, the judge had ruled early in the trial that evidence about events which took place before the period covered by the indictment which amounted to servitude or ill-treatment if they had occurred within the indictment period, would be admissible. Dealing with it broadly the ruling is not challenged. Objection was taken to his evidence on the basis that although it provided evidence of the “general atmosphere” at the site, there was a risk, which it was said proved to be a real risk, that the jury would simply treat it as evidence of propensity to commit particular acts of violence. 42. In our judgment this evidence was relevant and admissible to the issues, and in particular whether prosecution witnesses who had given evidence of violent ill-treatment had been induced by the police, or other authorities, to provide what was suggested to be false evidence. Moreover, the judge was entitled to approach the problem on the basis that any concerns the defence might wish to advance about the evidence could be properly tested during the court process. 43. As to the submission that the judge was wrong to rule that there was a case for JC to answer, it was submitted that these counts related to work that was carried out away from the caravan sites, and that consequently, as JC was not present when the work was being done, she could not be fixed with criminal responsibility. In his ruling the judge observed that the counts were framed broadly and that there was clear evidence of her involvement in the arrangement by which workers were required to carry out forced domestic labour. The judge summarised the evidence. He ruled: “In any event, even if that is wrong, it seems to me that there is sufficient evidence on which a jury could properly convict … [on the basis that] JC knew full well why it was that those two workers were on her yard and what they were doing when they left the yard. There is evidence of her being involved in recruitment … and it seems to me that the evidence there was violence either committed by JC or violence committed by JJC, when JC reported matters to him, … sufficient to indicate that she has played a part in those physical or mental restraints which are alleged”. 44. In the summing up the extent of the evidence linking JC to the entire system of forced labour was underlined. She was instrumental in receiving M (count 7) off the street and reducing his drinking; she was present on a number of occasions when he was beaten, one of which arose after he broke one of her favourite vases; she was present in the car when he was stealing bricks and loading them into the car at her husband’s order. She directly reinforced his isolation from other workers on the site, reporting the fact that he had been in “forbidden” conversation with them. DP described how he was kept on the site by JJ and JC. The degree of dominance was extreme. She told him that if he ever used their toilet “they would break his arms and legs”, and on another occasion she told him, “I’ll get someone to murder you if you try to run off”. She was present in the family car on an occasion when DP was made to travel in the boot. 45. There was ample evidence called by the prosecution to establish that JC was a full and active participant in the system of forced labour, as alleged in these counts, whether or not the actual work was performed on the site or off it, or in his presence or her absence. 46. The appeal against conviction on the single ground on which leave to appeal was given is dismissed. The remaining applications for leave to appeal against conviction are refused. Sentence 47. The applications were adjourned pending the outcome of the retrials.

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[2023] EWCA Crim 397

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2023-03-22

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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 No. 202203482 A3 [2023] EWCA Crim 397 Royal Courts of Justice Wednesday, 22 March 2023 Before: LORD JUSTICE WARBY MR JUSTICE GOOSE HIS HONOUR JUDGE LOCKHART KC REX V KYLE ANTHONY STEVENS __________ Computer-aided Transcript prepared from the Stenographic Not

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 No. 202203482 A3 [2023] EWCA Crim 397 Royal Courts of Justice Wednesday, 22 March 2023 Before: LORD JUSTICE WARBY MR JUSTICE GOOSE HIS HONOUR JUDGE LOCKHART KC REX V KYLE ANTHONY STEVENS __________ Computer-aided Transcript prepared from the Stenographic Notes of Opus 2 International Ltd. Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 CACD.ACO@opus2.digital _________ MR N ROBINSON appeared on behalf of the Appellant. THE CROWN were not represented. _________ JUDGMENT LORD JUSTICE WARBY: 1 This is an appeal against sentence in a case of possession of indecent and pornographic images. 2 The appellant is Kyle Stevens, aged 24. On 29 September 2022 he pleaded guilty in the Crown Court at Bournemouth to three counts of possessing indecent photographs of children, contrary to section 160(1) of the Criminal Justice Act 1988, and one count of possessing extreme pornographic images, contrary to section 3(1) of the Criminal Justice and Immigration Act 2008. He was sentenced in the same court on 4 November 2022. 3 On each count the judge passed a three-year community order, concurrent, with a rehabilitation activity requirement, a programme requirement and 140 hours of unpaid work. He ordered the forfeiture of the iPhone on which the images had been discovered, and the usual consequences of a conviction of this nature followed. First, having been convicted of an offence listed in schedule 3 of the Sexual Offences Act 2003, the appellant was required to comply with the notification provisions of that Act. Secondly, having been convicted of an offence specified in regulations under the Safeguarding Vulnerable Groups Act 2006, the appellant was liable to inclusion in the relevant list by the Disclosure and Barring Service. 4 No complaint is made of any of the matters which we have mentioned, nor is any issue taken with the judge's decision to make a Sexual Harm Prevention Order (SHPO), as he did. The challenge is to his decision to make an SHPO lasting as long as 10 years. The single ground of appeal is that in all the circumstances the duration of the order was manifestly excessive or wrong in principle. The Facts 5 The brief facts of the case are that in April 2021, acting on a tip-off from the National Crime Agency, officers attended the appellant's home address where they arrested him and seized his iPhone. On the phone were found a total of 95 Category-A indecent images of children, 22 in Category B and 11 in Category C. All of them were moving images and all were in an accessible format. There were also 13 extreme pornographic images. 6 The appellant did not dispute possession of the images, but in interview he offered an explanation. He said he had two Twitter accounts, one of which was for everyday use and the other was used for looking at adult pornography. Someone had sent him a link and when he clicked on it what he called "dodgy stuff" had popped up, so he had closed the link. However, analysis of his phone showed that he had searched the internet for terms like "jailbait" and the latest images recovered had been downloaded in late March 2021, shortly before the appellant's arrest. Officers also recovered from the phone chats with others involving bestiality and a sexualised chat with someone who claimed to be 15 years of age. 7 The appellant in due course pleaded guilty at the plea and trial preparation hearing on a full-facts basis. Sentencing information 8 As is common in cases of this kind, the appellant was of previous good character. Character references were provided by his mother, father and brother. A pre-sentence report said that he had now admitted viewing the images after clicking the link he was sent, but reported that he had difficulty accepting that his motivation was sexual. He was said to present as "an introverted isolated individual" who lacked insight into his own motivation and suffered from persistent low mood. 9 He was assessed as posing a medium risk of contact sexual re-offending, of internet re-offending and of causing serious harm to children, and a medium risk of harm to himself, but a low risk of harm to other adults. He accepted, however, that his actions were not victimless. He displayed a willingness and capacity to increase his awareness further. According to the report, he had completed an online course designed to achieve this. It was suggested that his insight was likely to improve under the guidance of a professional. 10 The recommendation was for a 36-month community order which required some unpaid work as ultimately imposed by the sentencing judge. The officer wrote as follows: "The imposition of external requirements such as sex offender registration and the sexual harm prevention order which will allow for increased monitoring of his behaviour, including any online activity, if authorised” would be valuable. But nothing was said about the duration of the SHPO. The Sentencing Remarks 11 In careful well-structured sentencing remarks, the judge summarised the key facts and explained the reasons behind those aspects of the sentence that are not challenged. When it came to the imposition of and SHPO, he said this: "I make a Sexual Harm Prevention Order in terms of the draft provided on the digital case system. I make that for a period of ten years, that is to say until 3 November 2032. You will be subject to the notification requirements for a period of five years and what that means is this, you must notify the police of your address and any change of your address within three days of that happening, you must comply with the terms of the Sexual Harm Prevention Order. Were you to fail to comply with either order, you would be committing separate criminal offences which carry a sentence of up to 5 years' imprisonment." 12 This is all succinct and clear, but there was nothing said to explain why the judge had decided to impose a SHPO for 10 years rather than any other amount of time. 13 After the hearing the appellant's solicitors wrote to the judge seeking a reduction of the 10-year period to five years to mirror the notification period but this was refused by the judge. The appeal 14 In support of the appeal, Mr Robinson, who appeared below as well as in this court, said the test for making an order is necessity, that is whether making the order in the terms proposed is necessary to protect the public from the identified risk of sexual harm. Although he accepts that the threshold for linking it all was met and that an order for five years to deliver the duration allowed by the statute was apt. Mr Robinson argued that anything more was excessive, and that an order for 10 years was disproportionate to the risk posed by the appellant and to the seriousness of the offences bearing in mind the mitigation. 15 Mr Robinson places particular emphasis on the risk assessments in the pre-sentence report, the likelihood of success of the community order, and the length of time for which the automatic notifications would continue to apply in any event. He relies also on the probation assessment of the appellant's character and the references provided by his family members. 16 In support of his submissions Mr Robinson has referred us to a number of decisions of this court, including R v Smith (Steven) [2011] EWCA Crim 1772, [2012] 1 WLR 1316, [2012] 1 Cr.App.R (S) 82, R v Hammond (Paul Churchill) [2008] EWCA Crim 1358 and R v Beedle (Robert) [2019] EWCA Crim 1672. Assessment 17 Notification requirements and SHPOs are both important elements of the sentencing armoury in cases of this kind. They do, however, impose significant restrictions on the offender's freedom which need to be tailored, within the statutory framework, to the particular demands of case before the court. 18 The principles that emerge from the authorities we have mentioned include the following: (1) an SHPO should only be imposed if and to the extent of its terms, including the arrangements, are both necessary to protect against an identified risk of harm and proportionate to the nature and scale of that risk; (2) these issues should be the subject of careful consideration by the parties and judge; (3) having identified the appropriate period, the judge should give reasons for this decision on that issue; and (4) the appropriate period of an SHPO will be the same as the period for which the notification requirement needs to last; the two should be in line with one another. 19 On that last point we draw attention to the fact that by virtue of section 352 of the Sentencing Act 2020, an offender who is subject to the notification requirements of the Sexual Offences Act 2003 remains subject to those requirements until the SHPO is discharged. Putting that another way, the notification period is automatically extended to match the period of any longer SHPO. 20 In this case, these principles were not applied. There was, seemingly, no discussion about the duration of the order. It is certainly not apparent why the judge selected a 10-year period for the SHPO. He does not appear to have appreciated that the effect of the SHPO would be to impose a 10-year notification period. He mistakenly told the appellant that his notification requirement would last for five years. It may be that had the judge been alive to the true position he would at least have paused before imposing a 10-year SHPO. At any rate, we are satisfied that in doing that the judge fell into error. 21 This appellant had shown a degree of insight and some commitment to addressing the underlying reasons for his offending. There was reason to think that his understanding would improve in the short to medium term and that his risk of re-offending would reduce over time. In our judgment an SHPO was necessary, but the minimum period of five years was sufficient to cater for the risks posed by this appellant on the material before the sentencing judge. That period matched the statutory notification period. There was nothing in the facts of the offending, the appellant's antecedents, or the pre-sentence report to indicate a real need to go beyond that period. A 10-year period was disproportionate, and to that extent unnecessary. 22 We therefore, allow the appeal, quash that aspect of the order below, and substitute an SHPO in the same terms but for five years rather than 10. __________

2023_03_22-5615.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/397/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/397

21b8645878262ad80f484ee7bf3412b6dbef85ba3d0e39ea1af3baffd478649a

[2003] EWCA Crim 2169

EWCA_Crim_2169

2003-07-25

supreme_court

Case No: 200105907W2 Neutral Citation Number: [2003] EWCA Crim 2169 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CAMBRIDGE CROWN COURT (HHJ HAWORTH) Royal Courts of Justice Strand, London, WC2A 2LL Friday 25 July 2003 Before : LORD JUSTICE POTTER MR JUSTICE CURTIS and MR JUSTICE GAGE - - - - - - - - - - - - - - - - - - - - - Between : REGINA Respondent - and - VIVIAN DAVID BRIGHT Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Case No: 200105907W2 Neutral Citation Number: [2003] EWCA Crim 2169 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CAMBRIDGE CROWN COURT (HHJ HAWORTH) Royal Courts of Justice Strand, London, WC2A 2LL Friday 25 July 2003 Before : LORD JUSTICE POTTER MR JUSTICE CURTIS and MR JUSTICE GAGE - - - - - - - - - - - - - - - - - - - - - Between : REGINA Respondent - and - VIVIAN DAVID BRIGHT Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr R Harrison (instructed by Adams Harrison ) for the appellant Mr J Caudle (instructed by the Crown Prosecution Service ) for the respondent Hearing date : 1 July 2003 - - - - - - - - - - - - - - - - - - - - - JUDGMENT Lord Justice Potter: Introduction 1. On 27 September 2001 in the Crown Court in Cambridge before His Honour Judge Haworth and a jury the appellant was convicted on an amended indictment containing 11 counts relating variously to charges of indecent assault on a female and indecency with a child. In its original form the indictment had contained 15 counts, the original counts 1-4 relating to indecent assault on Lynne Herbert who, by the time of trial, was too ill to attend. As a result counts 1-4 of the original indictment were ordered to remain on the file on the usual terms, the matter proceeding on the basis of a renumbered indictment in relation to which the defendant was convicted on all 11 counts save count 10. 2. The appellant was sentenced as follows (the original count numbers appearing in brackets after the number of the count in the amended indictment). Indecent assault on a female Count 1 (5) : 6 months Count 2 (6) : 2 years Counts 5 (9) and 6 (10) : 3 years on each count Count 7 (11) : 3 years 6 months Count 11 (15) : 6 months Indecency with a child Counts 3 (7), 4 (8), 8 (12) and 9 (13) : 18 months on each count 3. The totality of the sentences on Counts 2 to 6, i.e. 3 years was ordered to run consecutive to Count 1 (6 months) and the totality of the sentences on Counts 7-9, i.e. 3½ years was ordered to run consecutively to the total on Counts 1 and 2 to 6. Thus the total sentence passed was one of 7 years’ imprisonment. The appellant was ordered to register indefinitely under the Sex Offenders Act 1997 and his licence was extended to the whole sentence under s.44 of the Criminal Justice Act 1991 . 4. The appellant appeals against conviction with leave of the single judge who referred his application for leave to appeal against sentence to the full court. The judge refused leave in respect of certain grounds of appeal and, in relation to those grounds, the appellant renews his application for leave. The facts 5. The appellant was charged with sexual offences committed between 1967 and 1982 against young girls who were variously related to him through marriage, including his own daughter, or were otherwise acquainted with him as the children of friends. Some were members of the Saxon Street Girls Brigade in Soham near Newmarket in which the appellant’s wife and her friend Brenda Jaggard were involved. 6. In 1999 the appellant was tried at the Cardiff Crown Court for various sexual offences against young girls and, following publicity in the local newspaper in Cambridge, further complaints were made to the local police. So far as the time-span of the instant offences is concerned, the appellant married his wife in 1967; however, they have since divorced and his former wife gave evidence for the prosecution at his trial. The appellant and his wife had two children, one of whom was a complainant, Marina, born on 10 February 1973. The appellant served in the Royal Air Force between 1962 and 1968, his period of service including a posting to Aden between January 1965 and January 1967. 7. We shall turn to the individual Counts in a moment. Meanwhile we record that Counts 1-4 of the original indictment concerned allegations by Lynne Herbert that, between 1962 and 1966 when she was aged between 9 and 12, the appellant on occasions would touch her private parts over her clothes. He also put his finger in her vagina, displayed his erect penis and once simulated intercourse with her. Following her becoming medically unfit to attend trial the indictment was amended, as we have already recorded, so that the Counts remaining related to five other young women; Julia Farley, Helen Wing, Alison Daines, Clare Muckley and the appellant’s own daughter Marina Baldock. The Crown’s case was that Counts 1, 2, 4 and 5 of the amended indictment were sample counts reflecting a course of conduct in respect of their subject and that Counts 3, 6, 7, 8, 9, 10 and 11 were specific incidents. The prosecution case Count 1 8. Julia Farley said she first met the appellant when he was the boyfriend of her cousin Dianne; she was Dianne’s bridesmaid when they married. She liked Dianne but was very nervous and frightened of the appellant because he put his hands inside her knickers. It had started in Twickenham before she was 10 years old and before the marriage. She tried not to be alone with the appellant which was difficult. Each time they were alone he had done it. She was frightened to tell anyone. He told her that it was a secret and that bad things would happen if secrets were told. She believed him and was terrified. Once, when she was "about eight" her mother found blood on her knickers and she feared that the secret would be revealed. The touching was done quickly each time when people were out of the room. 9. The last time it happened was in Hanworth when she had turned 10. The appellant visited their house with her aunt and uncle. They were in the front room. When they went to the front door the appellant pulled her back and put his hands down her knickers. Her sister Lynne walked in and ran out screaming "Vivien’s touching Julie." Her mother then appeared and, as the appellant left, he threatened her with "bad things" because she had told them what happened. 10. She did not see the appellant again when she was a child or teenager and did not say what had occurred until the trial. She had found the incidents frightening, just as it was frightening for her to give evidence. In May 1999 Lynne told her about the appellant being tried in Wales for indecent assaults and said that the appellant had done similar things to her as well. They were both shocked. She had not read any witness statement made by Lynne or been told what Lynne had said. She said they did not discuss it. It was possible that she had told her mother that the mother touched her once when she was 13 but she did not recollect that. She had not told any of the appellant’s family or others. Count 2 11. Helen Wing was the daughter of friends of the Brights and the Jaggards and a member of the Girls Brigade who said that the appellant helped there on occasions and was friendly and good fun. Sometimes she visited the Bright’s home in Newmarket. When she was between the ages of 9 and 11 she lived in Soham and the Brights visited her family. When they were saying goodbye in the hall the appellant picked her up and tried to put her legs round his waist as she faced him which she was reluctant to do. He held her inside her skirt and put his finger in her vagina. Nobody noticed what he was doing. It was a large hall. He kissed her cheek which she did not want. She said she disliked him. It happened on a number of occasions and stopped when she left Soham aged 11. 12. Once at Soham she was at the appellant’s home. Dianne Bright was putting the car away and the appellant entered the front room when she was sitting on the settee. She was frightened that he would touch her. He sat close to her and she got up, crying. He said "Don’t you like it?" She said "No" and left the room. Sometimes she and her cousin, Alison Daines, babysat for the Brights. She saw pornographic magazines there which she said were unknown to her previously and were horrible. She had not spoken to the appellant for many years. She told Alison what went on but no-one else. Alison told her that the appellant had masturbated but she did not understand what that meant at the time. She did not tell any of her family and became wary of all men. She remembered the ‘hall’ occasion with confidence and thought that similar incidents had happened on other times but said she could not recall with certainty. She read in the paper about the trial in Wales and discussed it with Alison. This made them realise that the appellant’s conduct was continuing and they decided to stop it for other people by making statements. Counts 3 - 6 13. Alison Daynes had lived at home in Saxon Street until she was 16. When she was about 7, the appellant and his wife had moved to Newmarket and sometimes she and her sister Caroline had slept at their home there. She said that they were lovely people and very nice to the girls, being closer to them than other members of their family. The appellant sometimes did babysitting at their house. However things changed so far as the appellant was concerned when she was about 8 or 9 and Caroline was about 6. They had stayed overnight with the Brights when their mother was in hospital. When they were in bed she saw the appellant standing in the open doorway with the landing light on wearing an open dressing-gown and masturbating. His heavy breathing got faster and he wiped himself with a handkerchief and walked away. Caroline asked what he was doing and Alison told her to shut her eyes. It happened on other occasions. When she was downstairs watching television he would enter the room either naked or wearing a dressing-gown and masturbate into a handkerchief breathing heavily. He would then leave the room. Later when she was about 11 he would show her pornographic magazines depicting intercourse before he masturbated. 14. Sometimes when the appellant had babysat at her house, he would go to her bedroom after she had gone to bed, pull up her nightdress and squeeze her breasts. He forced her legs apart put his fingers in her vagina which hurt her. This occurred several times. She tried to push him away and once he had tried to put her hand over his penis. Once he licked her body using orange juice. Sometimes he licked her vagina. He told her not to tell anybody and she did not do so. Finally, when he was babysitting at her home, he came to her bedroom and made several attempts to force her legs apart saying "You’ll enjoy it. Just relax." He was very determined. He then went towards Caroline’s room. She shouted towards Caroline but did not see him do anything to her. The appellant stopped babysitting before she was 13. She told nobody until she told her husband. She explained why she did not complain earlier but decided to do so when she saw the newspaper about the Welsh trial. She said that the appellant had been given a lenient sentence and she thought he should be punished for everything he had done to children. 15. Caroline, being Alison’s sister, gave supporting evidence. She said she had joined the Girls Brigade when she was 5. The appellant was sometimes involved and liked to handle the girls. She said at first she was very naïve and later kept clear of him. She recalled two specific occasions (Count 3) when the appellant was looking after her and Alison at his house. They stayed overnight and were in the same bedroom. She could see the appellant near the toilet, possibly naked, and he seemed to shake his penis with his hands for a long time. She thought he was going to the toilet and Alison told her not to look and she turned away. She said the appellant was physical with the girls but she kept out of his way, being often told to do so by Alison who did not give her details as to why. She said that in 1999 Alison had telephoned her and said the appellant had been imprisoned in Wales. They discussed the event and decided that they should speak up about their own experiences. She did not recall saying in her statement that it would increase his sentence. They continued talking about it since, but she did not know the details of Alison’s statement. They had discussed protecting their children and about perverts generally. She said she had spoken with Helen Wing twice. Counts 10 and 11 16. These Counts concerned Clare Muckley. Count 10 involved an alleged incident of indecent touching in the swimming pool, in relation to which the appellant was acquitted. So far as Count 11 was concerned, Clare said she was on a Girls Brigade outing at a summer fete when she was 13. The appellant approached her from behind and put his hands over her shoulders and down the front of her tee-shirt onto her chest. She was not sure if he touched her breasts which were then developing. She moved away feeling panic and discomfort. She had told a friend about the incidents a long time ago but spoken about them since until she spoke to the police. Counts 7, 8 and 9 17. Marina Baldock, the appellant’s daughter, said she got on well with her father when she was young but that changed when she was aged between 8 and 10 because of what he did to her during that time. Once, after a bath, he dried her with a towel in the front room and touched her private parts and inside her vagina. She did not know then what had happened was wrong and she trusted her father. She did not tell anyone. On another occasion she was in her parents’ bedroom when her mother was out and the appellant, who was naked, showed her how to masturbate him. He ejaculated. 18. At one time she was lying naked on her parents’ bed. The appellant stood close to the bed masturbating and ejaculated onto her stomach. He said "I want to come on your tummy" which she thought was disgusting, but she did not tell anyone. She said she was never close to the appellant after those events and tried to avoid being alone with him. She began to realise what he did was wrong. However she did not tell her mother because she thought it would break up the family. 19. Brenda Jaggard, the mother of Alison and Caroline, gave evidence. She was a friend of the appellant’s wife. He sometimes babysat for her daughters at their home. The two families also visited each other and the Brights helped at the Girls Brigade and their events. She had thought that the appellant was too friendly around girls though it appeared to be innocent. However she became concerned and mentioned it to Dianne Bright who was honest and responsible. She knew of Alison’s circumstances several years before the trial but had not discussed the allegations. She only heard that the appellant’s daughter Marina was involved when the police were investigating after she had made her statement in 1999. She did not know the details of the complaints. 20. Dianne Bright, the appellant’s wife gave evidence. She had first met the appellant in 1961. He joined the RAF and was posted to Aden and then back to the United Kingdom in November 1967, when they married. He was then posted to Newmarket, leaving the air force in 1968 when she joined the Saxon Street Girls’ Brigade and met Brenda Jaggard. She confirmed that the appellant babysat for Alison and Caroline at either home. She described the appellant’s assistance with charitable works and the way in which he mixed with other people. She said she did not know or suspect any wrongdoing with children although she had found pornography depicting adults in the house. Her relationship with the appellant had deteriorated about 1986. However they were still married at the time of the prosecution in Wales which was of acute concern to her and she had talked about it to friends including Brenda. The other matters then came to light. She had spoken to Lynne Herbert but not directly with Julia Farley. She did not know the details of the allegations. She had not spoken to Alison, Caroline or Helen Wing. She did not know Clare Muckley. She spoke to Marina just before the sentence in Cardiff and found out what had happened to her. She then divorced the appellant. She had noticed that Marina did not get on very well with the appellant from the age of 9 or 10 but had been quite unaware of the reasons. 21. Following his arrest on 16 March 2000, the appellant was interviewed at length. He denied each of the allegations or any sexual contact with any of the girls. He denied showing pornography to any of the complainants but said he might have had some magazines hidden at home or mixed up with other publications. 22. The appellant denied the offences in evidence. He said that between January 1967 and January 1969 he had visited the homes of Lynne Herbert and Julia Farley but had never gone without his wife. He denied indecently assaulting Julia Farley by putting his hand down her knickers. He said his relationship with her was excellent. There were kisses and hugs but no friction. He described the friendship with the Jaggards and said that they spent a lot of time together socially. He did not remember babysitting for Alison and Caroline although there were times when he was with them. They had stayed at his home when Brenda Jaggard went to hospital in March 1974. That evening his wife brought the two girls to the house. Alison was not feeling well and went to bed. He got ready for bed and assumed he wore pyjamas and a dressing-gown. He denied masturbating at the door in the girls’ sight or before Alison downstairs and said he did not produce pornography to her. Occasionally he had pin-up magazines such as Playboy and Mayfair which he took home in his briefcase keeping them in the spare room or in the loft. He did not recall his wife ever finding them and he did not show any such thing to either girl. He said his relationship to Alison was friendly. He treated her as an adult rather than a child and always got on well with her. He used to tease, chase and jump out on the girls and they screamed and ran away. However he never caught them. He never sexually assaulted Alison in her bedroom and he did not try to part her legs when she was in bed. 23. So far as Helen Wing was concerned, he and his wife were friendly with her family and visited them in their home. He denied the allegation that he had assaulted her in the hall. There was no truth in that allegation nor the allegation that he had tried to get close to her when his wife was parking the car. 24. So far as his daughter Marina was concerned, he described their relationship as excellent and denied that she had tried to avoid him from the age of 8 or 9. He said they were still close and denied any improper conduct with or towards her. 25. So far as Clare Muckley was concerned, he did not remember her and denied that he had ever assaulted her. 26. He said that he was arrested on 9 July 1998 and interviewed in respect of the Welsh matter. At that time his wife was very supportive. He pleaded guilty and was sentenced to imprisonment. His wife divorced him. By the time of his release from prison in June 2000 he had been charged in respect of the instant offences. The Grounds of Appeal 27. We shall deal first with the Grounds of Appeal in respect of which the single judge gave leave to appeal. Ground A. I 28. This ground arises from a ruling by the judge in relation to the witness statement of Lynne Herbert who had been the subject of Counts 1-4 of the indictment as originally drawn but who was too ill to attend trial. The Crown did not apply to read her statement or rely upon it in any way. Lynne Herbert was the elder sister of Julia Farley, who was the subject of Count 1 as amended. 29. It was the appellant’s contention that Julia Farley (like all the other complainants) was lying and that she had colluded with Lynne Herbert to make a false complaint. There were in the statement of Lynne Herbert two passages which, for the purposes of advancing the defence, counsel (Mr Harrison) was concerned to elicit if he could. The first was a statement of Julia Farley’s recollection that when, on the first occasion she saw the appellant’s penis it looked scarred "as if he had burnt it in Aden". The second was a statement that, at the age of 7, she had been indecently assaulted on a number of occasions by the head teacher of her school. In preparation for the trial, at a stage when it was understood that the evidence of Julia Farley would be relied on, the defence had obtained the report of a doctor to rebut the suggestion that the penis of the appellant was scarred, the only blemish in his genital area being a wart or cyst upon one of his testicles. In relation to the allegations of assault by the head teacher, it was proposed to suggest to the jury that such allegation, which had apparently never been the subject of any complaint, was inherently unlikely and therefore a lie. Lynne was thus susceptible to making false allegations which made collusion with, and falsehood on the part of, Julia the more likely. It was anticipated that by attacking the veracity of Lynne in making her complaint, the evidence of Julia and the other complainants could be attacked by association, it not being in issue that there had been a degree of discussion as between various of the complainants. The proceedings went as follows. 30. Julia Farley was cross-examined to elicit the fact that she had discussed matters with Lynne Herbert prior to making her own allegations and to seek to establish that this discussion had led to her own false allegations against the appellant. In the course of the cross-examination, Julia Farley revealed that Lynne Herbert had made allegations to her of a sexual nature against the appellant but said that Lynne did not disclose the details. She denied collusion and falsehood. She was asked whether she was aware that Lynne Herbert had made a statement to the police and whether she was aware that in that statement Lynne had stated that she had been sexually assaulted by her headmaster. The witness stated that she had no knowledge of such an allegation and that Lynne had not mentioned it to her. The matter was not pursued further with that witness nor explored with any other witness. Thus the state of the jury’s knowledge as a result of the cross-examination of Julia Farley was that they were aware of the simple fact that Lynne Herbert had made allegations of a sexual nature against the appellant, but neither of the two matters which counsel sought to establish in evidence were elicited. Nor were the jury aware from counsel’s questions of any suggestion that Lynne Herbert had described the appellant’s penis as being apparently "scarred". Nonetheless, in the hope of establishing this later from a police witness, when counsel cross-examined the appellant’s wife Dianne Bright, he elicited that the appellant did not have scarring on his penis, although it had a "slight blemish". 31. In those circumstances, before cross-examination of the relevant police officer, Mr Harrison applied for leave to ask questions in order to adduce before the jury the limited facts that (a) Lynne Herbert had referred to scarring on the appellant’s penis and (b) that she had made allegations of sexual assault by her head teacher when a young child. 32. He submitted to the judge, as he has submitted to this court, that the evidence sought to be adduced did not offend the rule against hearsay (as contended by the Crown in objecting to his application) because it fell within the broad exception to the rule articulated in the classic statement in Subramanian v Public Prosecutor [1956] 1LR 965 at 969: "Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by evidence, not the truth of the statement, but the fact that it was made ." (emphasis added) 33. Mr Harrison submitted that, far from seeking to prove the truth of the statements which he sought to elicit, (a) he simply sought to establish the fact that the statements were made with a view to (b) proving (in the case of the penis allegation) and inviting the jury to infer (in the case of the head teacher allegation) that the statements were false. 34. The Crown objected to the adducing of the evidence on the grounds that it was irrelevant to the issues facing the jury, which depended upon the evidence of the witnesses called. It was submitted that it was not permissible for the defence to adduce before the jury part of the contents of a third party non-witness statement solely for the purpose of thereafter knocking it down and that, even if relevance could be established, the only valid way for the rule against hearsay to be avoided was for the defence to introduce the statement under s.23 of the Criminal Justice Act 1988 . 35. The judge refused the defence application on two grounds. First, he held that the evidence sought to be adduced was in fact hearsay. He said that in order for the jury properly to draw an inference of untruthfulness or unreliability they had first to decide whether the assertion by the witness was true or not. He said: "It is not simply the fact that the words are said in the statement that is sought to be proved but the very truth, or untruth of those words. To say, as Mr Harrison does, that in these circumstances he is ascertaining neither their truth or untruth, or both, or only their untruth, is to compress those stages and elide the logical process in a way that is not susceptible to logical analysis. In fact, in each case he is asking the jury to consider the truth of what the witness asserts and not the mere fact that she said those words. I repeat, the whole process of inference drawing is dependent upon the jury reaching a conclusion as to the truth, or otherwise, of what the witness says in evidence. A jury cannot, in logic, draw any inference here unless they cross the forbidden line by embarking upon an assessment of the truth of what the person is saying. If asked to do that from the contents of a third party’s witness statement, and not from assessing the witness in person, that is the adducing of hearsay evidence in a very clear form for impermissible purposes." 36. He also accepted the submission of the Crown that the selective introduction via the officer of passages in the statement of a witness not giving evidence before the court was objectionable and that, if the unreliability of Lynne Herbert as an historian capable of contaminating a witness was to be asserted, the jury should be entitled to hear the whole of her statement. The judge said it was open to the defence, if it saw fit, to introduce that statement via s.23 of the 1988 Act on the basis that it would be the subject of specific cautions from the judge when summing up in respect of the remainder of its contents. 37. Whilst sympathetic to the judge’s reasoning, we think that it mischaracterized the purpose for which the defence sought to elicit the two pieces of evidence. It was not sought to call the evidence in order to establish the truth of the facts stated but rather the fact that particular complaints had been made which, by other means, were to be proved (or asserted) untrue, as a step towards establishing how (putatively) false complaints by colluding witnesses had come to be made. Further, we do not consider that it was a course either desirably or realistically open to the defence to seek to adduce the whole statement of Lynne Herbert under s.23 of the 1988 Act . 38. However, we are satisfied that the judge was right to accept the submission of the Crown that the evidence was, in the circumstances of the case, not relevant. 39. Whether or not Lynne Herbert was telling the truth in her statement was an issue which was simply not before the jury. No charges were proceeding in respect of her and the Crown was not relying upon her statement or evidence in any way. The relevant issue which the defence sought to put before the jury was whether or not the witnesses who were giving evidence in support of the counts being tried were telling the truth. In that respect, the fact that Lynne might herself have been untruthful in the complaint she had made to the police could not itself be probative of the issue whether or not the witnesses were to be believed in respect of their complaints and was, therefore, prima facie not relevant. In the circumstances, the particular question for the judge was whether, by reason of the defence of collusion and fabrication by the witnesses sought to be advanced, he should in his discretion permit the evidence of what Lynne Herbert had said to be adduced on the basis that the jury might infer from it that the testimony of the witnesses called required closer examination than it would otherwise have received: see R v David R [1999] Crim LR 909. 40. In R v Summers [1999] Crim LR 745, this court affirmed the general rule that evidence is not admissible to contradict answers given by a witness to questions put in cross-examination concerning ‘collateral matters’ i.e. matter going only to the credit of the witness which are otherwise irrelevant to the issues in the case. However it also recognised that, in cases where the disputed issue is a sexual one between two persons in private, a flexible approach to the rule is necessary so as not to defeat the interests of justice by an over-pedantic approach (see R v Funderburk (1990) 90 Cr App Rep 466 at 469). In this connection the court made clear that the issue of ‘sufficient relevance’ was one for the trial judge, with which the Court of Appeal would only interfere if it concluded that the decision to exclude the evidence as insufficiently relevant was either wrong in principle or plainly wrong as being outside the wide ambit of judicial discretion. 41. In our view the judge was plainly right in the view which he took in this case. 42. The application was made after the civilian witnesses had completed their evidence and before counsel cross-examined the police officer in the case. It was made when Julia Farley, Lynne Herbert’s sister, had denied collusion, making it clear that the question of sexual interference with Lynne had only been discussed in general terms and she had not been aware of the details. In particular, in respect of the allegation of abuse by Lynne’s headmaster, she had said "I was never aware of such an allegation and I recall nothing said to me about such a thing". No reason was advanced or apparent as to why she should be disbelieved. Other witnesses had similarly denied collusion. In order to attack the credit of those witnesses, Lynne Herbert’s reference to the appellant’s penis, and to her having been abused by her head teacher when very young, were ‘cherry picked’ from a statement in which she gave considerable detail of the sexual interference on the part of the appellant which had formed the subject of the original Counts 1-4. 43. So far as the first matter was concerned, it was a statement by a woman 30 years after the event, as to her recollections of the impression she had formed as a child. It was scarcely a benchmark as to the accuracy of the rest of her evidence; nor, indeed, was it an assertion reasonably capable of an inference of deliberate falsehood, as opposed to merely mistaken impression. As to the allegation against the headmaster, there was no evidence whatever available to the defence that this allegation was untrue or even that it was known to the witnesses. It was thus not apparent that it was relevant to the question of collusion or the veracity of the witnesses called. Furthermore, the Crown made clear its stance that it would be quite wrong to admit two short passages of Lynne Herbert’s statement for the purposes of inviting the jury to infer that the passages were deliberate lies, without such passages being considered in the context of the whole statement which, apart from those two passages, contained significant passages supportive of the evidence of the witnesses. It was inevitable that, if the questions were asked, the Crown would seek to have the full statement put in, albeit the original counts 1-4 were not before the jury. If admitted, it would give rise to a classic example of the mischief which the rule as to finality is designed to avoid, namely introduction of a multiplicity of essentially irrelevant issues. In this case it would have led to diversion of the jury’s attention from the issues directly before them into a side alley which was at best of dubious assistance and peripheral relevance for the purpose of advancing the defence. In our view the judge was right to exercise his discretion as he did and we see no grounds to interfere. Ground A. II 44. Count 1 of the indictment as amended was a specimen of indecent assault relating to the period between 7 November 1967 and 6 November 1968 when Julia Farley was around 10 years old. Julia spoke of a number of occasions when the appellant put his hand down her knickers and the judge correctly directed the jury that they would have to be satisfied that such an incident had occurred on at least one occasion during that period. 45. There was agreed evidence that between January 1965 and 1967 the appellant had been in Aden, returning in November 1967 to be married and thereafter to stay in England. He had returned to England for one month’s leave in the last three months of his tour of duty i.e. during the period August 1967 – November 1967. 46. In evidence, Julia said that the first time such an incident had happened, she thought she was 8 years old. However, she also said it had happened on several occasions, she having been a bridesmaid at the wedding and the last occasion being when she had ‘turned 10’. The judge fully re-canvassed her evidence when summing up. However, it is complained for the appellant that he failed to give an alibi direction to the jury in respect of the period of the appellant’s service in Aden, and gave no direction as to the effect on Julia’s credibility if they concluded she had lied in part of her evidence. 47. We are satisfied there is no substance in this ground of appeal. On the overall facts, an alibi direction was not necessary. There were ample opportunities for the offence or offences to have occurred over the period charged and the judge adequately directed the jury as to the burden of proof and upon the need for unanimity in relation to the verdict as to any particular incident. Ground A. VI: The Character Direction 48. The appellant has two previous convictions. The first was a conviction by a Court Martial in Aden on 4 March 1966 for indecent assault on a male over the age of 16. In evidence he stated that he had pleaded not guilty and denied touching the man sexually. He said that there was nothing sexual about what he did but the court did not believe him and found him guilty of the offence. On 22 January 1999 he pleaded guilty to offences of indecent assault on a female and on 2 March 1999 was sentenced to 2½ years imprisonment. The evidence of his convictions was adduced in his evidence in chief. In the summing-up the judge gave a character direction in what may be described as the conventional form. He said: "You have heard in evidence that the defendant has previous convictions for offences of indecent assault. Now, this has been given in evidence because he has attacked the prosecution witnesses, accusing them of deliberately lying. It is right in those circumstances that you should know the character of the person making the attack. He has given evidence of the good things he says he has done in his life. So, it is right that you should be aware of those convictions so that you have the full picture of his character. So, what is the relevance of the defendant’s convictions in this case? Apart from the introduction of the Cardiff case to explain why these allegations arose, the only reason why have heard of his previous convictions is that knowledge of the character of the defendant who has made this attack may assist you to judge the truthfulness of his evidence when you come to consider that issue." 49. The judge went on to direct the jury that previous convictions were only relevant to the credibility of the appellant. He warned the jury against using convictions as evidence of propensity. This passage of the summing-up ends: "His previous convictions are relevant only as to whether you can believe him. You do not have to allow these convictions to affect your judgment. It is for you to decide the extent to which, if at all, his previous convictions help you about his truthfulness." 50. Mr Harrison criticises the character direction on two grounds. First, he submits that the judge was wrong to tell the jury that the convictions had been adduced because of the attack made by the appellant on the prosecution complainant witnesses. He explained that they were led in evidence as part of the narrative necessary in order to introduce the issue of collusion. He accepts that an attack was made on the credit of the witnesses but he submits that it is by no means certain that, if an application had been made by the prosecution to cross-examine the appellant on his convictions, it would have succeeded. He submits that the convictions had no probative value and were so prejudicial as to make it more likely than not that the judge would have exercised his discretion to exclude such cross-examination. He further submits that, on this assumption, the judge should not have given the usual credibility direction. He should have restricted his direction to a warning against using previous convictions as evidence of propensity. 51. Secondly, Mr Harrison submits that, even if the prosecution had successfully applied to cross-examine the appellant on his convictions, the direction was unbalanced and unfair. He submits that there was no attempt to balance the "good things" that the appellant had done in his life against the prejudicial effect of the previous convictions. 52. We do not accept those submissions. We accept that it was factually inaccurate for the judge to state that evidence of previous convictions was adduced because the appellant had attacked the prosecution witnesses. However, the fact is that the appellant himself, for whatever reasons, adduced the evidence of his previous convictions and it was incumbent upon the judge to give the jury a direction in respect of those convictions. Had he only given a direction in respect of propensity, that would have been only half the proper direction. In our judgment, once there is evidence of a defendant’s previous convictions before a jury, it is necessary and proper for a judge to give a character direction which deals with both credibility and propensity. In our view a defendant, by adducing evidence of previous convictions, for whatever reason, should not ordinarily gain the benefit of a propensity warning while escaping the disadvantage of a credibility direction. In any event, we consider that, in the light of the attack upon the prosecution witnesses, if the appellant had not adduced such evidence in chief, an application by the prosecution to cross-examine on his previous convictions would have been almost bound to succeed. 53. Finally, we reject the submission that the direction was unbalanced and unfair. The judge was at pains to warn the jury against using the convictions as evidence of propensity. When summarising the evidence of the appellant elsewhere the judge referred to his service background, his work for the Red Cross and his assistance with holidays for the disabled. This ground of appeal therefore fails. 54. We now turn to deal briefly with the grounds upon which the single judge refused leave to appeal, but in relation to which the appellant has renewed his application before us. Ground A. III 55. It is submitted for the appellant that the judge was wrong not to leave the allegation of Helen Wing to the jury as a count relating to a single incident only. The judge said of the count: "It relates to when she was between the ages of nine and eleven approximately (1970-1973). Again, it is a specimen count. It relates to the goodbyes in the hall, you remember. You must be sure that on at least one occasion the defendant indecently assaulted Helen Wing by putting his finger inside her vagina when saying goodbye to the family – lifting her up, legs around him, holding her by her bottom, and working his fingers into her vagina." 56. The allegation was opened as a sample and Helen Wing gave evidence at first as if describing a course of conduct. However, as she progressed, her evidence related almost entirely to: "One incident [which] is clear in my mind. There is one that I remember and it is the first time that I can remember clearly. I don’t know why that is. As far as subsequent occasions, it possibly did happen again but I can’t recall that clearly." 57. It is said that, in the circumstances, the judge should not have left the incident in Count 2 as a sample and should have reminded the jury that the witness testified in a manner which tended to suggest that she was only alleging one incident. 58. We can see the force of the submission that, on the evidence, it was appropriate to leave the matter as a single count, rather than a sample. However, we see no real vice or any likelihood of an unsafe verdict in relation to the course taken. The judge faithfully recounted the evidence from which it was crystal clear that the account of the witness centred upon one incident which she said she recalled clearly. There does not seem to us any realistic possibility that the jury convicted on the basis of any other incident and there is no substance in this ground of appeal. Ground A.IV 59. It is said the judge erred in directing the jury that they should not approach the evidence of any particular complainant on the basis that, if they found fatal flaws in her evidence, they must necessarily reject it as a whole. Mr Harrison has pointed out that, save in relation to an allegation by Alison Daines, there was no corroboration of the allegations the subject of the various counts, which depended upon the credit of the individual witnesses concerned. There were a number of inconsistencies in the evidence of the various complainants which Mr Harrison submitted to the jury amounted to ‘fatal flaws’ in their evidence. It is further complained that the judge linked the direction to which we have just referred with a conventional direction on the effect of previous inconsistent statements. It is said he should not have done so, because the ‘fatal flaw’ points were not confined to examples of inconsistency with witnesses’ previous statements. In this context it is complained that the judge referred on occasion to the jury "deciding where the truth lies" or asked them to consider "who is telling the truth" in a manner which watered down the burden of proof. 60. Mr Harrison has conceded that this ground is in itself not enough to render the verdict of the jury unsafe, however he relies upon it as having a cumulative effect, with the other grounds of appeal, so as to render all the verdicts unsafe. Having carefully considered the summing up as a whole, we do not think that the judge was in error or that he left the jury in any doubt as to where the burden of proof lay. We do not consider that, on its own or taken cumulatively with the other grounds of appeal, Ground A.IV renders the verdicts unsafe. Ground A.V 61. This ground is a complaint about the judge’s directions as to the effect of delay upon the proceedings. It is submitted that the judge failed sufficiently to emphasis the prejudice or potential for prejudice so far as the appellant was concerned. In refusing leave to appeal, the single judge observed that the trial judge clearly directed the jury about the relevance of delay in relation to the appellant at page 10C-E and page 10H-11C of the transcript of his summing up; also in relation to witnesses "whoever they may be". His direction and comments were adequate to alert the jury to the dangers inherent in delay. We agree with the observations of the single judge and find no substance in this proposed ground of appeal. Conclusion on Appeal against conviction 62. We are satisfied that the verdicts of the jury were safe and the appeal against conviction is dismissed. Sentence 63. Mr Harrison has submitted to us that, despite the long and lamentable series of indecent assaults involved in this case, there are various features which render the total sentence of 7 years’ imprisonment excessive. There was extraordinary delay between the commission of the relevant offences and the trial of this appellant. By the time he was tried, he had already been convicted at Cardiff and sentenced to a total of 2½ years imprisonment in respect of other indecent assaults separated in time, place and victim from the instant offences. However, we do not consider that, had all matters been heard together, a sentence of more than 7 years would have been imposed. Although repeated and inexcusable, the assaults alleged over the years were not of the most serious kind in this category of offence. In all the circumstances we consider it right to reduce the total sentence imposed from one of 7 years to 4½ years imprisonment. To this end, we propose to reduce the sentences imposed from 3 years to 2 years imprisonment on each of Counts 2-6 and to reduce the sentences from 3½ to 2 years imprisonment on Counts 7-9, with a consequent reduction in the total sentence to one of 4½ years imprisonment. To that extent, the appeal against sentence is allowed.

2003_07_25-99.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2003/2169/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2003/2169

7ba8e21fb3d4b3000d41e16df1dc191ed7620d4d1ead4ace4d1ed3cba5fae76d

[2018] EWCA Crim 1155

EWCA_Crim_1155

2018-05-18

crown_court

Neutral Citation Number: [2018] EWCA Crim 1155 Case No: 2018/0363/B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SOUTHWARK CROWN COURT HIS HONOUR JUDGE BEDDOE T20177286 Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/05/2018 Before : LORD JUSTICE GROSS MR JUSTICE SWEENEY and HIS HONOUR JUDGE BURBIDGE QC - - - - - - - - - - - - - - - - - - - - - Between : GW Applicant - and - SERIOUS FRAUD OFFICE Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Hande

Neutral Citation Number: [2018] EWCA Crim 1155 Case No: 2018/0363/B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SOUTHWARK CROWN COURT HIS HONOUR JUDGE BEDDOE T20177286 Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/05/2018 Before : LORD JUSTICE GROSS MR JUSTICE SWEENEY and HIS HONOUR JUDGE BURBIDGE QC - - - - - - - - - - - - - - - - - - - - - Between : GW Applicant - and - SERIOUS FRAUD OFFICE 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) - - - - - - - - - - - - - - - - - - - - - Neil Hawes QC and Mr Paul Morgan (instructed by Birds Solicitors) for the Applicant Martin Evans QC and Ms Janet Weeks (instructed by The Serious Fraud Office ) for the Respondent Hearing dates : 13 February 2018 - - - - - - - - - - - - - - - - - - - - - Judgment As Approved by the Court LORD JUSTICE GROSS : INTRODUCTION 1. This matter concerns the specialty rule. The Applicant has been extradited to this country from Sweden. He faces here, in the event, a single Count of Conspiracy to Corrupt, contrary to s.1 of the Criminal Law Act 1977 . Insofar as relevant, Swedish Law has a 10-year limitation period on criminal liability. As is common ground, the Applicant cannot be tried here for offences time barred under Swedish Law. However, the Respondent (“the SFO”) seeks to rely on evidence dating back more than 10 years before the extradition. The principal issue in dispute before us is whether, in the context of a continuing offence, the rule of specialty precludes the SFO from adducing such evidence to prove the commission of an offence falling within the relevant time period. 2. The Applicant said “yes”; the SFO “no”. On the 15 th January 2018, in the Crown Court at Southwark, HHJ Beddoe, delivered a ruling (“the Ruling”), following a preparatory hearing held pursuant to s.7 of the Criminal Justice Act 1987 (“the CJA 1987 ”) - and, on this issue, agreed with the SFO. From that Ruling, the Applicant sought leave to appeal to this Court. 3. The Judge further held that the particulars of the offence set out in the indictment should be amended to reflect the limitations of Swedish Law in respect of the period for which he could be tried in Sweden. From that Ruling, the SFO sought leave to cross-appeal (“the cross-appeal”) to this Court. 4. The Registrar referred both the Applicant’s and the SFO’s applications to the Full Court. 5. At the conclusion of full argument on the 13 th February, we announced our decision. Leave to appeal would be refused, both in respect of the Applicant’s application and the SFO’s cross-appeal. However, as we heard full argument and now give the full (if relatively brief) judgment which follows, this judgment can be cited. 6. In the light of the forthcoming trial (of the Applicant and a co-defendant) in October 2018, the provisions of s.11 of the CJA 1987 apply to these proceedings, very largely restricting reporting. Given the issue in dispute relating to specialty, that would seem unfortunate. Accordingly, upon the judgment being anonymised, we shall lift the restrictions. 7. Before proceeding further, it is convenient to explain the meaning of specialty . For these purposes, it is very largely unnecessary to go beyond the observations of Hughes LJ (as he then was) in R v Seddon [2009] EWCA Crim 483 ; [2009] 1 WLR 2342 , at [4] – [5]: “4. Extradition is a process involving agreement between sovereign states. The requesting state has no power to send its policemen into the requested state to arrest a prisoner who has run away there. That would be a direct infringement of the sovereignty of the requested state. So the requesting state depend on the voluntary co-operation of the state where the fugitive is now to be found. Unsurprisingly states found that they generally had a common interest in A surrendering prisoners to B if B asked, providing that B entered into a reciprocal agreement to surrender those whom A wanted when the boot was on the other foot. On the other hand, states generally wished to retain the power to refuse to surrender in some circumstances….. 5. Historically, extradition was generally achieved through separate bilateral treaties between states. Commonly the power of the requested state to refuse extradition in some circumstances was preserved by the terms of such treaties. To give effect to that practice, the principle evolved that if A requested a prisoner from B, A would identify the offence for which the prisoner was wanted so that B could decide whether there was a sufficient reason to refuse to surrender him. With that went the practice that if surrendered the prisoner could only be dealt with for the offence for which he had been sought, otherwise plainly the surrendering state’s power to refuse would be circumvented. That principle is called specialty. It has been recognised in this country by successive statutes dealing with our local rules for extradition both inward and outward. The rationale for it may owe something to the protection of the individual, but it plainly lies principally in the international obligation between states.” (See too, Welsh v Home Secretary [2006] EWHC 156 (Admin) ; [2007] 1 WLR 1281 , at [37] – [38].) THE FACTUAL HISTORY 8. The factual background can be shortly summarised. A is a major engineering company with subsidiaries in many countries, including ‘A Limited’ (“APL”) based in the UK and ‘A Sweden AB’ (“APS”) based in Sweden. 9. The Applicant was an engineer employed as a Sales Manager and, later, a Sales Director of APS. From 2002 to 2010, he worked with NR and JV of APL. 10. The Applicant is accused of paying bribes to assist APL and APS win and execute valuable contracts with a power station in Lithuania (“LPP”). In 2005, A was awarded two contracts, totalling €239 million. The bribes were said to have been paid between 2004 and 2010 to power station officials, politicians and others, via a “consultant” company (“V”), a sub-contractor on one of the contracts and civil engineering works at a church in Lithuania. 11. The SFO alleges that the timing and amount of the bribes was set by reference to the contracts that APL and APS signed with LPP in 2005. APL/APS were paid by LPP on reaching contractual milestones. Payments to V were made by APL/APS according to the same timetable. 12. As already foreshadowed, the SFO only seeks to proceed against the Applicant on a single count of Conspiracy to Corrupt contrary to section 1 of the Criminal Law Act 1977 , which encompasses all the alleged criminality and conduct and spans the period between the 4 th day of January 2002 and the 31 st day of March 2010. 13. Extradition of the Applicant was sought by way of a European Arrest Warrant (“EAW”) issued on the 13 th April 2017 (“the EAW”). 14. In the light of questions from the Swedish authorities, arising from the Swedish 10 years’ limitation rule as to crimes taking place after May 2007 (and thus not time-barred), additional information was furnished by the SFO on a (standard) Form M, as follows: “ The following corrupt payments were made after May 2007, which amount to criminal offences under the Prevention of Corruption Act 1906 section 1 and Criminal Law Act 1977 section 1 : Dates Amount Handler 5-13 Sept 07 £ 47,500 V 23 Oct 07 €844,366 K 16-28 May 08 €250,000 V 23-30 July 09 £142,500 V 11 Sept 09 € 20,000 V 4-6 Nov 09 £ 47,500 V 11 Dec 09 €450,000 V 10 Feb 10 £ 47,500 V This is £285,000 + €1,564,366 The table above has three columns: date, amount…and handler. The handler is the company through which the bribe payments were channelled by GW/A. We do not allege that the companies in the table (V/K) were the final recipients of the bribes or that the bribes were finally dispersed on that date, but it is correct to say that these companies handled the bribes on behalf of [the Applicant], and that payment of the bribe monies were made by A on the date shown.” 15. The matter came before the Vaxjo District Court in Sweden (“the Swedish Court”) which, by its Decision dated 24 th May, 2017, granted the surrender of the Applicant to Great Britain for prosecution in accordance with the EAW, “ with the exception of the acts that have taken place prior to May 2007 ”. The acts which the Applicant is alleged to have committed would be characterised in Swedish Law as “gross bribery” or the “gross giving of bribes”. From the EAW, together with the additional information supplied, it was clearly evident that the Applicant was suspected of “passive bribery involving the payments that occurred during 2007-2010”. 16. In the reasons given for its Decision, the Swedish Court said this: “ As the District Court has understood the arrest warrant, it now cites that the alleged acts only concern the payments that have occurred after May 2007. According to the District Court, the acts in the arrest warrant are considered to correspond to the giving of bribes in accordance with Swedish law. Against the background of the circumstances that are stated in the arrest warrant and primarily with consideration of the significant sum that is alleged to have been paid the District Court considers the acts to be a gross crime. Swedish laws on limitation thereby do not constitute an obstacle for surrender according to the arrest warrant…… In summary, no circumstances have arisen to give reason to refuse surrender to Great Britain for prosecution in accordance with the European arrest warrant….This is with the exception of the alleged acts that were conducted prior to May 2007…” 17. Various subsequent exchanges took place, focusing on the meaning of the judgment of the Swedish Court. 18. On the 31 st August, 2017, the SFO’s File Note recorded a discussion with the Swedish Director of Public Prosecutions (a Mr Andrews) who handled the extradition of the Applicant. The File Note recorded Mr Andrews as saying this: “……Mr Andrews was very clear…on the telephone that [the Applicant’s] extradition was only in respect of conduct post-May 2007. He commented that in Sweden the evidence of the conduct prior to May 2007 would be admissible as important background as it contextualises why [the Applicant] did post May 2007 what he did.” 19. In a subsequent letter dated 13 th September, 2017 (“the 13 th September letter”), from the SFO to the Applicant’s solicitors (in this jurisdiction) and in response to those solicitors having raised specialty as an issue, the SFO said this: “ Having considered the judgment further, we accept that the Swedish court authorised extradition only in respect of your client’s conduct from May 2007. Given that your client is charged with conspiracy, it is our view that the jury can convict him on the basis of his acts in furtherance of the conspiracy from May 2007. However, this does not prevent the prosecution from adducing evidence of his acts prior to that date as explanatory evidence of his later acts. We also accept that the judge should be invited, in the event of a conviction, only to sentence him for his acts from May 2007 onwards.” 20. On the 18 th December, 2017, the Chief Prosecutor of the Swedish National Anti- Corruption Unit responded to a question from the SFO, saying this: “ ….Concerning your specific question: The statute of limitation does not prevent a prosecutor from submitting information as evidence that concerns facts or events that occurred under a period of time that has been statute barred (in light of the particular offence in question). What is statute barred is the offence, not the evidence that may be relevant for the understanding of another offence. Using your words, the prosecution can adduce evidence of what [the Applicant] said or did before May 2007 to prove that after that period he was still acting in furtherance of the said pre-existing conspiracy. ” 21. Further exchanges took place between those representing the Applicant in Sweden and the Swedish authorities. Thus, on the 19 th January 2018, (Swedish) counsel for the Applicant asked the Swedish prosecutor, “In what way will Sweden verify that the adjudication at the English court will not include deeds committed prior to May 2007?” The answer from the prosecutor was that “The UK is a state governed by law and I can not see any reason why the conditions in the decision will not be respected. The entire convention is based on a mutual recognition.” 22. Pausing here, it may at once be seen that the Applicant’s objection to the SFO adducing evidence pre-dating May 2007 on the ground that it did not respect the Swedish Law limitation period, is not one which (on the material before us) would have prevailed in Sweden. In our judgment, this serves as something of a “reality check” when assessing the Applicant’s arguments. THE RULING OF THE JUDGE 23. In his impressive Ruling, the Judge spoke of a “sustained conspiracy to corrupt” in which, on the evidence, the Applicant had played a major role. Although the Applicant was a citizen of Sweden and for the most part had conducted his activities there or in Lithuania, the Judge observed that “a substantial measure of the activities of the conspiracy occurred within this jurisdiction (at least prior to May 2007)…”. APL had pleaded Guilty to a Count similar to that on which the Applicant had been arraigned (Count 3 on the Indictment). NR had pleaded Not Guilty and was tried in October 2017 but the jury could not agree and his retrial had been fixed for October 2018. The SFO’s aim was a joint trial of the Applicant and NR at that time. (JV, it may be noted, has already pleaded Guilty to Count 2.) The Applicant had been invited to surrender voluntarily but declined to do so; the extradition proceedings had followed. 24. The supplementary material furnished by the SFO to the Swedish authorities (through Form M and an Addendum thereto) set out in detail “clear evidence of [the Applicant’s] continuing participation in the conspiracy within the period May 2007 and May 2010, and shows that the participation reflects discussions and arrangements by [the Applicant] and others including NR made before that opening date, and with others including JV [now contracted to both APL and APS but continuing to be resident in the UK and operational at APL’s Derby office] after that date.” 25. The Judge recorded that there was no offence in Swedish Law corresponding precisely to conspiracy to corrupt but substantive bribery offences would be actionable in Sweden, “would rank as gross crimes and would be potentially imprisonable with a maximum sentence of 8 years”. Accordingly, the limitation period under Swedish Law was 10 years. The Applicant had unsuccessfully appealed the Decision of the Swedish Court to the Swedish Court of Appeal and the Swedish Supreme Court. We interpose to say that the terms of the two Swedish Appellate judgments had (unaccountably) not been available to the Judge. After some pressure from us they were produced to this Court and take matters no further forward. The Judge further alluded to the exchanges subsequent to the judgment of the Swedish Court – set out above – and underlined that the view expressed by the Swedish authorities, namely, that Swedish Law did not restrict the evidence that could be adduced to prove the offence was not “challenged as an incorrect exposition of Swedish Law”. 26. Coming to his conclusions, the Judge said this: “ ….were I to decide on the Specialty argument that [the Applicant] could only be tried on an indictment limiting the conspiracy to the period May 2007 to March 2010, that the evidence of all that had gone before would (subject to any specific arguments as to the admissibility of individual parts of it) be admissible as relevant evidence showing a course of conduct by [the Applicant] in the furtherance of an agreement in existence with the 2007 to 2010 period. That not only accords with Swedish law as just recited but is of course consistent with English law….” Even were the Judge to have accepted that the Swedish Court had made its Decision in the belief that no evidence outside the limitation period would be relied upon, “that cannot intrude on relevant rules of evidence and admissibility of the court which subsequently comes to try the person extradited”. 27. The Judge rejected a suggested material distinction, advanced on behalf of the Applicant, between “evidence of guilt and evidence supportive of guilt”. “ If prosecution of [the Applicant] for conspiracy were limited on indictment to the period in question evidence that the agreement had been formed before the period particularised would be no bar to the admissibility of that evidence to establish the defendant’s continued participation in the event within the period particularised .” 28. The Judge next turned to consider s.146 of the Extradition Act 2003 (“ the 2003 Act ”) (see below), in order to determine whether the concept of specialty was breached by the terms of the Count presently advanced by the SFO. In this regard, the Judge concluded that if the charge on which it was intended to try the Applicant fell outside s.146(3)(a), it would offend the rule of specialty. It had not been the intention of the Swedish Court to surrender the Applicant “in circumstances that would put him at greater risk than he would be had his alleged offending been justiciable in Sweden”. 29. Accordingly, the Judge came to his conclusion, adverse to the SFO, as to the Particulars of Count 2 on the indictment: “ It follows that although the Count as drawn properly reflects the offence for which the defendant was extradited and falls within s.146(3)(a) I conclude that the concept of specialty would be breached if the particulars of the count did not reflect the limitations of Swedish law in respect of the period for which he could be tried in Sweden. Although the offence is a continuing one I am satisfied on the balance of probabilities that the specialty rule would be breached if the matter proceeded to trial on the current indictment and that it should be amended to read “between the 1 st day of May 2007 and” [instead of “between the 4 th day of January 2002] to confirm the point that [the Applicant] cannot be convicted of the offence unless he continued to be a party (or became a party) to the conspiracy identified after that date.” THE RIVAL CASES 30. For the Applicant, Mr Hawes QC submitted that the Judge had erred. The Applicant could not be “dealt with” ( i.e., tried or sentenced), within the meaning of s.146 of the 2003 Act , for conduct pre-dating May 2007. While it was not said that the Swedish Court had been misled, nonetheless Mr Hawes submitted that his approach reflected the manner in which the case had been put to the Swedish prosecutors and Swedish Court; it therefore honoured the United Kingdom’s international obligations. The Swedish Court had not consented to the “wider view of conduct”, permitting the adducing of evidence pre-dating May 2007 – and no retrospective consent had been sought. So far as reliance was placed by the SFO and the Judge on (English) authorities, Mr Hawes accepted that there was case law supporting the principle that the admissibility of evidence was controlled by the trial court, not the extraditing court; however, the authorities were all distinguishable. Mr Hawes submitted that, in the “unusual, possibly unique circumstances” of this case, it was only his approach that gave “effective” or “genuine” protection to the Applicant’s specialty rights. In summary, the Court should grant the Applicant leave to appeal and allow the appeal by finding: “(1) Only conduct/acts post May 2007 were the extradited offence, pursuant to s.146(3) (a) EA. (2) By reason of so finding, the evidence of acts pre- May 2007 was not conduct ….within s.146(3) (a), and accordingly the Applicant does not fall to be ‘dealt with’ for them pursuant to s.146(2) EA. (3) The s.146(2) EA protection can, and should, be enforced by prohibiting the admissibility of the evidence of acts prior to May 2007.” 31. For the SFO, Mr Evans QC submitted that the Judge was right and that the Applicant’s application for leave to appeal should be refused. It was better to focus in extradition law on conduct, rather than labels – labels were unhelpful, given that offences in different countries did not precisely correspond. Mr Evans explained that, in Swedish Law, a charge of conspiracy was only available for inchoate offences; if a “conspiracy” was carried into effect, then only the substantive offences were prosecuted. Here the conduct complained of began before May 2007 and continued after that date; what the Applicant did after May 2007 was in furtherance of an agreement entered into before then. The case accordingly concerned the application of the specialty rule in the context of a course of criminal conduct. As to the materials supplied by the SFO to the Swedish authorities, there was nothing unusual here. Form A and Form M were part of the EAW extradition system; Form A had a character limit – hence the use of Form M (and, subsequently an Addendum thereto). Mr Evans pointed to the linkage between the promise of bribes and their subsequent payment, involving a precise correspondence in amount and in accordance with an agreed timetable. If the Applicant’s submissions were well-founded, then the SFO would not be in a position to explain the timetable by reference to evidence as to the promise. Whatever had been said by the SFO in correspondence, there was no difference between “explanatory evidence” and evidence of Guilt; the evidence here, pre-dating May 2007, coloured the behaviour thereafter. It was bizarre to invite this Court, as the Applicant did, to introduce into the specialty rule an additional and novel evidential rule, when there was no justification for it and there was, moreover, no such rule in Swedish Law. The Applicant’s submissions betrayed a misunderstanding of the specialty rule which was not concerned with evidence. The Applicant’s specialty protection neither justified nor required the exclusion of evidence of acts prior to May 2007. The authorities were against the Applicant and could not be distinguished as he sought to do. Admissibility, relevance and other protections going to the fairness of the trial were for the trial Judge. 32. As to the cross-appeal, Mr Evans resisted the narrowing of the Particulars as ordered by the Judge. Such narrowing was unnecessary and, therefore, undesirable. Moreover, the intention was a joint trial and it would be preferable to avoid differing Particulars in respect of the different defendants. In any event, the Applicant’s specialty protection would be respected by way of clear direction and a restriction on sentencing. 33. In response to the SFO’s cross-appeal, the Applicant submits that it was technical and without merit; the Judge was right to order the narrowing of the Particulars which would cause the jury to focus on the conduct for which the Applicant could be convicted and would eliminate the risk of the jury convicting the Applicant for non-extradited conduct. DISCUSSION 34. (1) The Legal Framework: As explained by Hughes LJ in Seddon , at [6] and following, within the area of the European Union (“EU”), “the old profusion of bilateral treaties” covering extradition has been replaced by “what is in effect a general agreement between members states”, taking the form of a European Council Framework Decision (“the Framework Decision”), dated 13 June 2002 (2002/584/JHA)(OJ 2002 L190, p1). Within the limits set by the Framework Decision the process of extradition between EU member states is greatly simplified and the request for surrender takes the form of the issue of a common form EAW. By way of EU treaty provisions, the Framework Decision is binding upon EU member states and amounts to “a multilateral treaty creating international obligations binding upon each of the member states”. However, it is not directly effective as part of the law of individual member states. Thus, Parliament has given effect to the Framework Decision in English Law by way of the 2003 Act . That Act makes separate provision for extradition between the United Kingdom and other members of the EU, known in the Act as category 1 territories. “Inward extradition” to the United Kingdom, with which we are concerned, is dealt with in ss. 142 to 149 of the 2003 Act . 35. The specialty rule has been preserved by Art. 27(2) of the Framework Decision. In domestic law, the key provisions are contained in s.146 of the 2003 Act and, insofar as material, provide as follows: “ 146 Dealing with person for other offences (1) This section applies if a person is extradited to the United Kingdom from a category 1 territory in pursuance of a Part 3 warrant. (2) The person may be dealt with in the United Kingdom for an offence committed before his extradition only if – (a) the offence is one falling within subsection (3) …. (3) The offences are – (a) the offence in respect of which the person is extradited; (b) an offence disclosed by the information provided to the category 1 territory in respect of that offence; …..” 36. By reference to Seddon , the general nature of specialty will already be apparent: if surrendered the prisoner could only be dealt with for the offence for which he had been sought – otherwise, the requested state’s power to refuse would be circumvented; moreover, its principal rationale lies in the international obligations between states. Crucially, specialty is concerned with offences – as is indeed clear from the language of s.146 of the 2003 Act - not the evidence adduced in the requesting state to prove their commission. Furthermore, this distinction is well-established in authority, to which we next turn. 37. In R v Aubrey-Fletcher, Ex parte Ross-Munro [1968] 1 QB 620 , following extradition proceedings begun in England, the defendant was extradited from France on a warrant supported by depositions charging him with forging and uttering transfers and causing money to be transferred on forged transfers knowing them to be forged. In committal proceedings, the prosecution sought to adduce further evidence relating to the charges. The defendant objected, contending that the further evidence was inadmissible by virtue of s.19 of the Extradition Act 1870 which provided that the extradited person “…shall not….be triable…for any offence…other than such of the said crimes as may be proved by the facts on which the surrender is grounded”. As submitted on the defendant’s behalf (see, at p.626), the person surrendered to this country “cannot be committed or put in peril of conviction on any facts other than those put forward to secure his surrender”. 38. The defendant’s applications were dismissed. Lord Parker CJ said this (at p.627): “This is a novel point and, if it be right, it has an alarming consequence. It would mean that not only is this a restriction on the procedure on committal, a restriction on the receiving of evidence, but indeed logically it would affect the trial, because no evidence would be admissible at the trial unless it was in regard to facts raised in the surrender documents. Another alarming consequence would be that if, when the person concerned arrives in this country after being surrendered by the foreign state, he is arrested, cautioned and questioned by a police officer, evidence of what he said, whether for him or against him, would be quite inadmissible. …Parliament cannot have intended any such thing in this section. Two things are quite clear…. One is that the section is designed to prevent a man from being tried after his surrender for a crime other than that for which he has been extradited…..the object is to ascertain the type of crime for which he can be tried in this country after surrender…. Secondly…..the section is not in any way intended to interfere with the ordinary procedures and laws of evidence in this country whether in committal proceedings or at the trial…. ” 39. In our respectful view, Salmon LJ’s judgment went to the heart of the matter (at p.629): “….In my judgment section 19 of the Extradition Act 1870, is in no way concerned with procedure but solely with jurisdiction. It does not seek to limit or prescribe the evidence which may be called at a criminal trial. It is concerned solely with the type of crime for which our courts have the power to try a man who has been extradited to this country. The clear object of the section is to prevent, for example, a man who has been surrendered on a warrant charging him with forgery, being tried in this country for a murder that he is alleged to have committed before the surrender.” 40. Welsh v Home Secretary (supra) was concerned with an objection to extradition to the United States of America, on the ground that the US courts would permit the extradition offence to be proved by evidence relating to offences upon which extradition had been expressly refused. Ouseley J (giving the principal judgment) remarked (at [89]) that he had seen no authority from this jurisdiction which suggested that the specialty rule was breached in these circumstances. He continued, succinctly, in these terms: “The specialty rule does not limit ….the evidence which can be admitted to prove the extradition offence and the rules which govern the admissibility of evidence are those of the trial state. I see nothing in this point.” 41. The Scottish decision of Beggs v HM Advocate [2010] HCJAC 27, after a consideration of various authorities, including Aubrey-Fletcher, Seddon and Welsh , contains the following very helpful passage in the judgment of the Court: “184. …..we have come to the conclusion that the specialty principle prevents a State to which a person has been surrendered from prosecuting that person for an offence different in its essential nature from the charge, or any of the charges, upon which he or she was extradited. The rule does not however have any effect, or operate any restriction, upon the evidence which may be deployed by the prosecutor in proof of the commission of the criminal conduct in respect of which the person was surrendered; and that is so even if the evidence so deployed discloses or suggests the commission of a criminal offence for which extradition was not granted by the sending state. 185. We would add that these conclusions are, in our view, entirely consistent with the origins and rationale of the specialty rule. The rule is primarily one of international law. It is concerned with respecting the power of the extraditing State to refuse extradition and ensuring that in so far as that State has a discretion to refuse extradition, that discretion is not abused by the receiving State. Its principal purpose is thus to preserve comity between States, rather than effect a protection for the accused. Given that such is the primary purpose, it is in our view comprehensible that the rule should not be concerned with the nature of the evidence and procedure followed in prosecuting the extradition offence…. ” 42. Further citation from authority is unnecessary but there are helpful statements as to claiming specialty protection in this jurisdiction, in Nicholls, Montgomery and Knowles, The Law of Extradition and Mutual Assistance (12 th ed.), to which it is convenient to refer: “12.82 Whilst the prosecution is prevented from trying a defendant for offences other than those which comply with the rule, there is no bar to their obtaining and adducing additional evidence to support charges which do so comply….. 12.84 Restrictions imposed by foreign courts on the offences for which the defendant can be tried in the UK do not override the terms of domestic legislation….” 43. Pulling the threads together, we are satisfied that the following propositions are well-founded in principle, apparent from the statutory language of the 2003 Act and clearly established by authority: i) The specialty rule is concerned with offences , not evidence . Thus, the rule operates to prevent the requesting state from dealing with the defendant for an offence different in its essential nature from the charge/s upon which he was extradited. Provided the offences tried comply with the rule, the prosecution is not limited by the specialty rule with regard to the evidence (or additional evidence) it is entitled to adduce to establish the defendant’s guilt. ii) This conclusion as to the focus of the specialty rule is consistent with its origins and rationale in international law, respecting the power of the requested state to refuse extradition and ensuring that that power is not circumvented. iii) Questions of evidence and procedure are for the courts of the requesting state, as are fair trial protections. All such matters fall outside the specialty rule and are for the courts of the requesting state, not the courts of the requested state. 44. (2) Conclusions on the Applicant’s application: In the light of the conclusions to which we have come on the principle of specialty, the statutory language and the relevant authorities, we have no hesitation in concluding that the application is doomed to fail. The essential fallacy lies in the misplaced focus on evidence , whereas the specialty rule is concerned with the offence/s in question. The authorities are not distinguishable merely because the offence with which the Applicant is charged involves a course of conduct. There is no arguable case that the SFO’s reliance on evidence pre-dating May 2007 to assist in establishing the Applicant’s guilt on a charge of participating in a conspiracy post-dating May 2007 infringes the specialty rule. A telling example is the inhibition, if the Applicant’s case was well-founded, on the SFO’s ability to narrate the history of events, including the linkage between the promise of bribes and their later payment in accordance with an agreed timetable. That would be a striking constraint and a novel rule, to which we would not accede unless driven to do so. It would be still more startling in the present case, given that there is no such exclusionary rule in Swedish Law. We are wholly unpersuaded that the SFO’s approach to the evidence is inconsistent with the manner in which the matter was presented to, or dealt with by, the Swedish authorities and the Swedish Court. This Court takes the United Kingdom’s international obligations very seriously - but there is no arguable case that the SFO’s stance on this issue fails to honour those obligations. To repeat, offences form the subject-matter of the specialty rule and go to the international obligations between states; the focus on offences furnishes the specialty protection to which the Applicant is entitled. He has enjoyed the benefit of that protection here. Matters of evidence fall outside the specialty rule. Indeed, they are for the courts in the requesting state, not the courts in the requested state. For completeness and the avoidance of any doubt, whether particular items of evidence are admissible or not, will be a matter for the trial Judge as will be all questions going to the fairness of the trial. The Judge’s Ruling on this issue was plainly correct and the Applicant’s application for leave to appeal must be refused. 45. (3) Conclusions of the SFO’s cross-appeal: As will be recollected, the Judge required the SFO to confine the Particulars of the Count with which the Applicant is charged to the period for which he could be tried in Sweden. In our judgment, the Judge was plainly right to do so for the reasons he gave (summarised above) and there is no arguable case to the contrary. 46. The Particulars go to the offence for which the Applicant has been extradited, not the evidence the SFO seeks to adduce to prove it. As a matter of specialty protection, it seems self-evident that those Particulars should not fall outside the Swedish limitation period. Confining the Particulars in this fashion ensures that the jury’s focus will be on the conduct for which the Applicant could properly be convicted without offending the specialty rule; put another way, it would eliminate the risk of the jury inadvertently convicting the Applicant for conduct outside of the Swedish limitation period. As it seems to us, it may be inconvenient but is otherwise neither here nor there that the upshot in a joint trial would be different Particulars in respect of the Applicant and NR. Nor are we at all persuaded that the Applicant’s specialty protection would be adequately respected – if the Particulars remained as originally drafted – by a clear Judicial direction and a restriction on sentencing to acts falling within the limitation period. 47. Accordingly, the SFO’s application for leave to cross appeal is dismissed.

2018_05_18-4308.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/1155/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/1155

ffff69357c411bd7a15ad8f7ef454c4adbcfc312d526ebd9b18157d445ed8fbc

[2023] EWCA Crim 1182

EWCA_Crim_1182

2023-07-19

crown_court

IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202300307/B5 [2023] EWCA CRIM 1182 Royal Courts of Justice Strand London WC2A 2LL Wednesday 19 July 2023 Before: LADY JUSTICE SIMLER DBE MR JUSTICE GARNHAM MRS JUSTICE THORNTON DBE REX V ___ RS_______ 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 K SCARSBROOK appeared on behalf of the Ap

IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202300307/B5 [2023] EWCA CRIM 1182 Royal Courts of Justice Strand London WC2A 2LL Wednesday 19 July 2023 Before: LADY JUSTICE SIMLER DBE MR JUSTICE GARNHAM MRS JUSTICE THORNTON DBE REX V ___ RS_______ 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 K SCARSBROOK appeared on behalf of the Appellant. MR D SCUTT appeared on behalf of the Crown. _________ J U D G M E N T LADY JUSTICE SIMLER : 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 that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act . 2. Between 16 and 19 January 2023, the appellant was tried by HHJ Patrick and a jury at Bristol Crown Court on a three-count indictment. Counts 1 and 2 were attempts to choke, suffocate or strangle with intent, contrary to section 21 of the Offences Against the Person Act 1861 , while count 3 was assault by penetration, contrary to section 2 of the Sexual Offences Act 2003 . He was acquitted on 19 January 2023 on counts 1 and 2 but convicted on count 3, and now appeals that conviction with leave of the single judge. 3. There is a single ground of appeal that the judge failed properly to direct the jury in relation to their approach to considering counts separately, and the need for them to be sure of the absence of consent or the reasonable belief in consent in relation to count 3, assault by penetration. The appellant contends that the questions posed to the jury, in the Route to Verdict, had the effect of removing this consideration from their deliberations and, in the circumstances of this case, especially in the context of the jury note to which we shall refer, this conviction is unsafe. The appeal is resisted. 4. We are grateful to Mr Scarsbrook who appears for the appellant as he did below, and to Mr Scutt for the Crown, who also appeared at the trial, for their assistance on this appeal. The facts 5. The Crown's case at trial was that the complainant (to whom we shall refer as “CB”) had known the appellant for two years. They saw one another every so often. She lived in Bristol and he travelled there regularly to see family or friends. On these occasions he would sometimes meet her and sometimes sleep at her address. CB's evidence was that the first time they met one another they ended up returning to her address and having consensual anal sex. After that time, her evidence was that although he stayed with her on other occasions, and asked her to have sex, she refused. 6. On 14 June 2020, the appellant had been staying in Bristol with his brother but was asked to leave. He was then sofa surfing and called CB to ask if he could stay with her. She agreed and he was invited to her one-bedroom flat, arriving in the afternoon or early evening of 14 June. They spent the evening together. 7. CB's evidence was that he began to pester her for sex and that after some resistance she acceded. They had consensual anal sex during which the appellant wore a condom which he discarded in her bin. The next morning CB told him that she did not wish to have sex with him again as she did not feel respected, and when he asked her for sex later that evening, she initially said she did not wish to but later decided to allow sexual activity to start. She described the activity as consensual to begin with it. After a few minutes, she said that he lay behind her and as she reached back with her hand on his penis, he began to choke her with his arm around her neck. She described being choked hard and felt worried about losing consciousness. She was later to say in evidence that she made clear that she did not consent by saying “no” and by attempting to fight off his arm. Those are the facts of count 1. The appellant inserted a finger or fingers into her anus (count 3) and her evidence was that there was some scraping inside her anus, and she said “stop” and “no”. He then removed his finger or fingers from her anus. He was still behind her and she felt movement and assumed that he was masturbating. The appellant ejaculated and wiped a mixture of ejaculate and other matters on her body and attempted to slap it into her face. CB managed to get up and went to the bathroom to clean herself in distress. He attempted to follow her but she slammed the door in his face and asked him to leave. Once she had cleaned herself up, she said that he became apologetic, trying to hug her, and saying that he did not know why he had behaved in that way. She went to another room in the flat and settled down on the sofa to sleep and after a short period he came into that room and led her back to bed. She went with him voluntarily, but she said within seconds he became aroused again and choked her again. That was count 2. At that stage, she stopped him and went back to the sofa for the rest of the night and in the morning told him to leave, and he did. 8. Over the following days, she disclosed what had happened to four people, all of whom were called to give evidence at the subsequent trial. She took part in an ABE interview which was played as her evidence-in-chief at trial. 9. For his part, the appellant attended a voluntary interview on 8 October 2020. His case throughout was that CB had lied. He said they had known one another for about three years. They had had sex around 12 times during that period. He said that sex on 14 June was consensual vaginal sex using a condom and nothing was said about it the follow morning. They spent the day together, during the course of which, he had an angry argument with his then current girlfriend, and CB overheard the argument. She became angry at him and took him to task for calling that girlfriend names. CB accepted that this conversation and phone call took place in cross-examination. 10. After spending 15 June together at her flat the appellant said they started having consensual vaginal sex, again using a condom. During the sexual activity CB asked him to perform oral sex. He refused and said she should perform oral sex on him instead. He accepted that he had put his thumb slightly into her anus and rubbed it. He said she gave no indication that she did not consent to this. After he had inserted his thumb, she again asked him to perform oral sex. When he refused she said words to the effect of “well stop that then, I don't like it” referring to his thumb. At that alarm bells rang, and he ceased sexual activity stepping back from the bed. He removed the condom. She asked him to come back to bed. An argument started during which he swore at her and called her “a bitch”. This argument went on until CB left to sleep on the sofa. The appellant denied any strangulation occurring at any stage. He denied putting multiple fingers deep into CB's anus. He said he had worn a condom. He accepted that he may have said something like “I don't know why I’m like this” but it was referring to the language used in the argument. 11. Two condoms were recovered from her bedroom, one containing liquid which was semen and provided a full DNA profile of the appellant. On the exterior of this condom was a red/brown stain which tested positive for faeces. The second condom was not tested but contained liquid and on a visual inspection showed no evidence of the presence of faeces. 12. The defence, in due course, applied at the start of trial, to adduce evidence of prior sexual activity between CB and the appellant, pursuant to section 41 of the Youth Justice and Criminal Evidence Act 1999 . His case on count 3 was that he had a reasonable belief in consent founded on the fact that CB had, on previous occasions, licked his anus and inserted a finger into his anus. This, coupled with the history of the two performing anal sex, led him to believe that activity around the anus would be consented to on the night in question. This application was allowed. Questions were drafted and approved by the trial judge and no issue is taken with this aspect of the trial. 13. CB's ABE interview was played to the jury, and she gave evidence in accordance with its contents. She accepted that the appellant had had a phone call with another woman in her presence, and that she had told him off for his language. She maintained that he only wore a condom on the first night. 14. The four complaint witnesses were called by the prosecution, and gave broadly consistent accounts, albeit there were inconsistencies between their accounts and the account given by the complainant. The forensic evidence was presented by way of agreed facts. 15. The appellant gave evidence in accordance with what he had said in his police interview. He said that he had had anal sex with CB before but accepted he had not said that in interview. He gave his reasons for a belief in consent, as we have just indicated. He denied any strangulation. In cross-examination, he was challenged as to the length of time he knew CB and the number of times they had had sex and why he had not told the police about what he now said about her open mindedness about anal sexual activity. It was suggested to him that he was lying and that he had been manipulating CB into having sex with him. He denied those suggestions and did not call any other evidence in support of his own case. 16. Before the summing-up and once the evidence had concluded, the judge produced some proposed written directions which incorporated a Route to Verdict. These were given to both counsel to consider overnight and were discussed the following morning. The written directions included standard directions in relation to the role and responsibilities of judge and jury, the approach to the evidence and the burden and standard of proof. There was reference to the Route to Verdict and various other directions in relation to the evidence were given. 17. No criticism is levelled at the vast majority of those directions. The directions did not however contain any reference or instruction about the need to consider each count on the indictment separately, highlighting to the jury that the evidence in relation to each count was different and need not necessarily lead to the same conclusion. The Route to Verdict did not contain any questions for the jury about the need to decide on intent for any one of the three counts. 18. In the course of discussion between counsel and the judge on the morning of the summing-up, Mr Scarsbrook raised the lack of any direction about the appellant's reasonable belief in consent on count 3. The judge made clear that, in his view, the case involved a straightforward binary conflict of fact and, again in his view, counts 1 and 3 effectively stood or fell together, so that there was no need, in light of that factual position, for a separate direction on intent in relation to count 3. That was also the view, as we understand it, of Mr Scutt who prosecuted. 19. The result was that the Route to Verdict on count 1 was phrased as follows: “32. Are we sure that, just before [CB's] anus was penetrated, RS tried to choke or strangle her? If you answer yes, then he is guilty of count 1. If no, then he is not guilty.” Although, as we were told, both counsel were slightly uncomfortable about the lack of any question as to intent, both concluded that it was adequately covered in the earlier direction and, in any event, the appellant was acquitted on count 1. 20. So far as count 3 is concerned, the Route to Verdict read as follows: “34. Are we sure that [RS] penetrated [CB's] anus with his finger in the context of choking or strangulation? If you answer yes, then he is guilty of count 3. If no, then he is not guilty.” 21. That direction must of course be seen in the context of the other written directions given by the judge. These were as follows: “27. For the purposes of this trial, in law it is an offence if a person intentionally penetrates the anus of another with a part of his body where the penetration is sexual, where the other person does not consent to the penetration and where the defendant does not reasonably believe that she does consent. 28. Normally, it is necessary for me to go on to give you further directions about the different parts of the offence but in this case it is not necessary because the questions you need to decide are not about law, but are about the facts. Let me explain why. 29. I will start with counts 1 and 3. You know that the prosecution’s case is as follows. On the night we are concerned with, [CB] and [RS] started to have sex entirely consensually. However, RS then began to choke or strangle [CB] before taking his hand off her neck, and inserting fingers into her anus, before pulling out some faeces and slapping it on her face. It follows that on the prosecution’s case, there could be no possibility either that [CB] was consenting to what was happening, nor that the defendant could reasonably have believed she was consenting. 30. [RS’s] case is that he did not choke or strangle [CB] at all. Whilst he did put a thumb in her anus, he thought she would consent to it, but when she said no, he immediately took his thumb out. 31. If what he said is or might be true, he is not guilty. Only if you are sure that [CB's] account is true will you find him guilty. 32. It follows that you need start by thinking about the circumstances in which [CB’s] anus was penetrated. Then ask yourselves: Are we sure that, just before [CB's] anus was penetrated, [RS] tried to choke or strangle her? If you answer yes, then he is guilty of count 1. If no, then he is not guilty.” 22. In the judge's summing up of the evidence consent was again discussed. The judge said the following: “Now, pausing there. It’s important to remember, you, I’ve explained to you that ordinarily, one of the issues you might have to deal with is the issue of consent, and you heard Mr Scarsbrook talking about consent in his closing address to you. Consent doesn’t in reality, arise here, because it’s accepted that if what [RS] says in his evidence happened, then he had a reasonable belief in the consent of [CB]. And the Prosecution’s case is, well, if she was, if what happened, as she described it, then there’s no issue of [RS] knowing that she was not consenting. But it’s important to remember that consent is about freedom to make a choice and making a choice. There’s no such thing, as you will all understand, as a general consent to sex. Every person is entitled to consent or not to consent to every piece of sexual behaviour on every single occasion. That someone has done something once with a person or with someone else does not of itself mean that they want to have it with everybody always. I’m sure you understand that.” 23. Following their retirement, the jury sent a note to the judge, on 19 January, at 1.05pm. The note read as follows: "1. Why has the judge not mentioned intent on point 32 of the guidance? 2. We all understand that there are three separate charges. i. Point 34.2 of the guidance confuses us. ii. We feel it suggests we consider choking as part of the charge of Count 3. iii. It is not written in the charge. iv. Please reference judge's advice." 24. There was a discussion between counsel and the judge about that question as is to be expected. Mr Scarsbrook mentioned his earlier concern that the issue had been presented to the jury as a binary decision that counts 1 and 3 stood and fell together. Counsel then standing in for Mr Scutt on behalf of the prosecution, raised his concern at the lack of a direction as to reasonable belief in consent in the Route to Verdict itself. The judge said that he had dealt with the point at paragraph 25 of the legal directions. That direction did not of course deal with reasonable belief in consent. The jury's question was ultimately answered by the judge in the following way: “25. I deal with the issue of intent in paragraph 25, where I say: in law it’s an offence for a person to attempt to choke, suffocate, or strangle another person with the intention of enabling himself to commit an indictable offence. You decide what a person’s intention was from all the circumstances of the case, and in particular what he said and did before the alleged offence, at the time of the alleged offence, and immediately after the alleged offence is said to have been committed. A sexual assault is an indictable offence.’” 25. The judge continued: “And a sexual assault, pausing there, includes being against somebody when you’re naked and touching, if you are doing so without their consent. So that would be a sexual assault. I didn’t mention intent in respect of Count 1, because everyone accepts that, in, in this case there are effectively two conflicting versions of events, [CB’s] account and [RS’s] account. If what [CB] alleges actually happened, then it follows the choking or strangulation was with the intention of enabling him to commit an indictable offence, and in this case, a sexual assault or a sexual touching. So far as 34 and the second question is concerned: ‘Are we sure that [RS] penetrated [CB's] anus with his finger in the context of choking or strangulation?’ Again, I’ve been inviting you to concentrate on the factual account, because if you are not sure that it was in the context of strangulation, then you would not be sure of her account. And in those circumstances, you would find, be finding him not guilty. Does that assist you? You look puzzled. Who is, who is chairing your deliberations, please?" 26. A juror responded “Me” and the judge continued: "... all right. I can’t get involved in a to and fro. If you’ve got further questions, then you need to express those. But, the, the, the reality, going back, the, there’s, there’s a straight conflict of evidence here. You will bear in mind this. Firstly, that it’s for the Prosecution to make you sure of the Defendant’s guilt. It follows that on his account, if what he says is true or might be true, then he will be not guilty of the charges. It’s only if you are sure of [CB's] account that you would find the Defendant guilty. All right? But the reality is, you need to look at the evidence and the as, as, as I’ve said, there’s a straight conflict of fact here, really. It’s, and by which I mean [CB] says one version, the Defendant says another. Before you can commit the Defendant, you have to be sure that her evidence is true and accurate. If you’re not sure, then it follows that the Defendant’s account might be true. Therefore, you would find him not guilty in respect of that part of the case which you are not sure of her evidence on. I don’t know that I can put it any more straightforwardly or help you with the issues in a clearer way. But I’m very happy to consider any questions that you have. I’m concerned because you look puzzled." 27. At that point, the juror said: “Can I speak to you?” The judge made clear that there could not be a conversation between him and the jury and made clear that if the jury had any continuing concern that they should put it in writing and that it would be answered but that otherwise there could not be a continuing debate. Verdicts were returned later that afternoon, about an hour-and-a-half after those exchanges, in the terms to which we have already referred. The appeal 28. Mr Scarsbrook contends that the Route to Verdict did not contain the necessary requirement that the jury consider consent and reasonable belief in consent as a critical element of the offence in count 3. Furthermore, the directions did not include the guidance that is standard in cases of this kind on the approach to considering counts separately. In his submission, the judge had plainly decided that the case was a straightforward binary conflict of fact, that counts 1 and 3 effectively stood or fell together, and that there was therefore no need to direct the jury on intent in relation to ground 3, despite the concerns he had raised. 29. The effect of the judge's direction, in response to the jury note and the Route to Verdict, was that the jury were effectively being asked to consider counts 1 and 3 together. While the appellant accepts that the two verdicts on these counts are not so inconsistent that no reasonable jury could have arrived at them, nonetheless it meant that the jury was reaching a conclusion in relation to count 3 merely “in the context of choking or strangulation”. Mr Scarsbrook emphasised the fact that reasonable belief in consent was raised in the defence statement and in the closing submissions, but whilst there was a reference to it in the summing-up, it was not referred to in the Route to Verdict which is clearly where the jury's mind was focused. 30. The failure, in these circumstances, to direct on the elements of the offence, and to deal with the matters just mentioned, had the effect that the jury was approaching count 3 without a proper direction on consent reasonable belief as to consent. The further direction given by the judge to the jury following their question, only served to confuse the position and not to clarify. 31. For his part Mr Scutt submits that the directions provided by the judge were adequate. This was a case where the factual position was binary and everybody understood and expected that counts 1 and 3 would stand or fall together. That was the approach he too had adopted. Mr Scutt reminded us that the written directions provided to the jury were agreed: paragraph 25 sufficiently identified the elements of the count 1 offence, paragraph 27 set out the elements of the offence of assault by penetration, and in the round, these paragraphs clearly set out the contrast between the prosecution's case based on CB's account and the defence case based on [RS’s] account. They were diametrically opposed accounts and critically, he submitted, the jury were sufficiently directed to the issues of consent and reasonable belief in consent as they applied in light of the evidence in this case. 32. Moreover, it was idle to think that by the time the jury considered their verdicts, they were only focused on the Route to Verdict and not on the directions set out on the previous page of the document. The fact that the judge commented on jurors looking puzzled does not mean there were ongoing concerns and in fact that, there was no further note sent by the jury, nor any further request for clarification received. He submitted that the conviction on count 3 was consistent with the jury being sure that CB had been choked and strangled albeit not sure it was with the intention to penetrate, but sure of penetration, as she had described it. Inevitably, if they accepted her account, they must have concluded that the appellant's account was not reliable or to be accepted. In the result, although the jury found their way to separate verdicts in this case, the criticisms made by the appellant do not lead to the conclusion that the verdict is unsafe. To the contrary, it was wholly justified on the law and the evidence, and not unsafe. 33. The question for this court on any appeal against conviction is whether the conviction is safe or not. We have been persuaded by the submissions made on behalf of the appellant by Mr Scarsbrook that the appellant's conviction on count 3 is unsafe and must be quashed. Our reasons follow. 34. As the appellant submitted, paragraphs 33 and 34 of the written directions appear to merge the facts concerning counts 1 and 3 and do not, in our judgment, make clear that the jury was required to consider them separately. Despite the judge's failure to direct the jury about the need for separate consideration of the counts, and his apparent conclusion that counts 1 and 3 would stand or fall together because the strangling or choking was a precursor to the assault, the jury were plainly alert to the problem. Their note indicates that they understood the need to consider the counts separately. They correctly identified that paragraph 34 of the directions referred to choking when it should not have done, and they asked expressly about intention. Their verdicts confirm the view that they understood the difficulty. But the problem remained that the inclusion of the words “in the context of choking and strangulation” remained in the direction on count 3, without any clarification from the judge. 35. The judge presented the jury's task as a binary one. They had to decide which account to accept and that would be determinative. Consistently with that approach, the judge explained that the issue of consent did not arise because, on the complainant's account, it was clearly not present, nor could there have been any reasonable belief in consent having been given. The difficulty, however, is that on the appellant's account, he maintained that he had a reasonable belief in consent. The linkage of these counts on the facts in the Route to Verdict and directions suggested, and it was the expectation of all involved, that the jury would accept the whole account of one or other of the participants and that would lead inevitably to their verdicts on counts 1 and 3 together. 36. It is unfortunate, we think, that the judge repeated and compounded the errors in his answer to the jury and somewhat ironic that the judge's answer to their questions directed them, in effect, to acquit on count 3 in circumstances where they acquitted on count 1. But that is not what happened. Although, as recognised by the appellant, this is not a case of inconsistent verdicts, the result is that in circumstances where the jury decided to acquit on count 1, as they were entitled to do, the only direction they were effectively left with in relation to count 3 was paragraph 34 of the written Route to Verdict, which focuses only on the act of penetration and not on the question of intention or reasonable belief in consent. In other words, as Mr Scarsbrook submitted, having acquitted on count 1 because they were not sure about strangulation, the jury approached count 3, not in the context of strangulation as they were directed to do, not assessing consent or reasonable belief, but in some other unknown way. 37. It seems to us that absent an express direction that they could only consider count 3 if satisfied of the appellant's guilt on count 1, so that a verdict on count 3 would not even be taken if there was an acquittal on count 1, a separate consideration direction was essential. Moreover, in those circumstances, an express direction was also necessary to the effect that the intent direction in paragraph 25 applied to count 3 as well as count 1, and that the jury would have to consider the question of consent as referred to in paragraph 27. As matters stood, it seems to us that paragraph 27 of the directions, which did contain an appropriate direction on consent, was too distant and was undermined by what came afterwards, both in the Route to Verdict and in the discussion the judge had with the jury when they highlighted their concern. Despite its earlier mention, the Route to Verdict effectively asked the jury to ignore any assessment of consent or reasonable belief in consent and instead, to focus on the penetration in the context of strangulation. 38. In the circumstances of this case, we do not consider the fact that belief in consent was referred to in paragraphs 25 and 27 could rescue the position in light of what followed. The fact that the jury did not seek further clarification following the exchange that we have referred to does not, in our view, mean that the jury were clear about the relevant law. It seems to us that the evident confusion expressed and recognised by the judge, and the fact that the juror wished to ask further questions contradicts this submission. 39. Accordingly, we have concluded that we cannot be sure the jury were approaching count 3 by reference to any or proper directions on consent and/or the reasonable belief in consent given that the Route to Verdict in effect, invited them to ignore any assessment of those issues and to analyse the penetration in the context of strangulation. The further direction given by the judge reiterated his earlier binary view of the case and did not clarify matters for the jury. There is a real risk that the jury simply concluded that because the appellant accepted some penetration, he must be guilty and did not consider the question of intention or belief in consent at the appropriate time. 40. For all those reasons this appeal is allowed. The conviction is unsafe and must be quashed. We will hear counsel in relation to what should come next. Discussion and short break in proceedings LADY JUSTICE SIMLER: The directions we make are as follows. We allow the appeal. We quash the conviction on count 3. We order a retrial on count 3, the conviction that has been quashed. We direct that a fresh indictment be served in accordance with the Criminal Procedure Rules 10.8(2), and that means that the prosecution must serve a draft indictment on the Crown Court officer no more than 28 days after this order. We direct that the appellant then be rearraigned on the fresh indictment within 2 months, and that is a strict two month time limit, and I urge all those here to act with expedition. There is no power to specify a different period and there are very real difficulties in relation to extending time. We direct that the venue for retrial should be Bristol Crown Court, with the resident judge to determine who is responsible for the trial but that it should be a different judge. We make an order under section 4(2) of the Contempt of Court Act 1981 that restricts reporting of these proceedings until after the conclusion of the retrial. I think that concludes the directions that we need to make. Questions of bail shall be for the Crown Court. LADY JUSTICE SIMLER: I have dealt with cases where time had been allowed to run on and that has led to very real difficulties. MR SCUTT: If I have anything to do with it will not run. LADY JUSTICE SIMLER: Thank you, Mr Scutt. Very good. [RS], I hope you have understood what has been said. Your appeal has been allowed and your conviction on count 3 has been quashed. There will however be a retrial and that will be dealt with in due course. Have you understood that? THE APPELLANT: Yes, yes, I do. LADY JUSTICE SIMLER: It may be that your counsel will have a conference with you from the booth outside Court after we terminate this link, so do not go away. THE APPELLANT: Okay. 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

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https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1182/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1182

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[2003] EWCA Crim 3214

EWCA_Crim_3214

2003-11-14

supreme_court

Case No: 2003/01799/C2 Neutral Citation Number: [2003] EWCA Crim 3214 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM PORTSMOUTH CROWN COURT (HHJ HUGHES QC) Royal Courts of Justice Strand, London, WC2A 2LL Friday 14 November 2003 Before : LORD JUSTICE POTTER MR JUSTICE CRESSWELL and MR JUSTICE DAVIS - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - and - HAWAR HUSSEIN ALI Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Case No: 2003/01799/C2 Neutral Citation Number: [2003] EWCA Crim 3214 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM PORTSMOUTH CROWN COURT (HHJ HUGHES QC) Royal Courts of Justice Strand, London, WC2A 2LL Friday 14 November 2003 Before : LORD JUSTICE POTTER MR JUSTICE CRESSWELL and MR JUSTICE DAVIS - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - and - HAWAR HUSSEIN ALI Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr William Mousley instructed for the Appellant Ms Sally Carter for the Crown Hearing date : 6.11.2003 - - - - - - - - - - - - - - - - - - - - - JUDGMENT Lord Justice Potter: 1. On 28 February 2003 in the Crown Court at Portsmouth before His Honour Judge Hughes QC and a jury, the appellant was convicted and sentenced on four counts of indecent assault, Counts 1-3 related to an 11 year-old girl, T, and Count 4 to her mother, P. The appellant was sentenced to 2 years’ imprisonment on Counts 1-3, such sentences to run concurrently and to 1 year’s imprisonment on Count 4, such sentence to run consecutively to the 2 years imposed on Counts 1-3. Thus he was sentenced to a total of 3 years’ imprisonment. He was also recommended for deportation on completion of his sentence. He appeals against conviction and sentence by leave of the single judge. 2. The appellant, who is a Kurdish national, was living in shared local authority accommodation. T and her mother, together with her father, occupied a bedroom in the house. It was the prosecution case that on two occasions on the same day, one occasion shortly following the other, the appellant had touched T’s breasts and vagina over her clothing and that, on the first occasion, he had pressed his groin against her from behind. It was also alleged that on a further occasion next day, he behaved in a similar fashion. A few days later, he had touched P on her breasts and pulled her towards him. Each of the occasions mentioned was reflected in an individual count of the indictment. It was the defence case that the allegations had been invented by T and P. There had been no indecent assault by the appellant on either of them and he had not touched any of their intimate areas. 3. In relation to Counts 1-3, T gave evidence via a video-taped interview and television link. She said she had been sitting in the lounge and the appellant had come in and asked her to read him a story. She read him a story and he went out to the shops and bought her a small tin of ‘Pringles’ biscuits. He came back and grabbed her and started touching her. He touched her breasts with one hand and rubbed her vagina with his other hand over her clothing while “humping” her [i.e. repeatedly pressing his groin against her] from behind. (Count 1) 4. She said that the appellant then went to his room and, when he came back, was wearing red and white boxer shorts and a white top and he had his penis hanging out of his boxer shorts. Eventually he looked down and said “Oh my God” and then went to put on his jeans. T then ran upstairs to her mother. The appellant ran after her and touched her again on her breasts and vagina when she was halfway up the stairs. (Count 2) There was evidence that T subsequently identified the boxer shorts to the police. 5. She said that, next day, when she was in the upstairs passageway, the appellant had started touching her breasts and vagina again and pressing his groin against her. She kept on telling him to stop it and saying that she did not like it. (Count 3) 6. Thus T stated that there were three places within the house in which indecent assaults occurred: in the lounge (Count 1), on the stairs (Count 2) and the next day in the communal upstairs passageway (Count 3). 7. In cross-examination T was asked if she had seen the appellant (in innocent circumstances) in boxer shorts outside his room. She said “No”. She said “When he looked down and said “Oh, my God” it was as if he did not want me to see his man parts either. Perhaps they fell out of his boxer shorts”. She denied that there was any occasion, as put to her in cross-examination, when the appellant gave her a hug in the presence of her mother. 8. So far as Count 4 was concerned, P, T’s mother, gave evidence that they had moved to the address in question at the end of July 2002. She said that after about three weeks T spoke to her in the bathroom about the appellant having touched her in inappropriate places. She took T to their room and they spoke to T’s father. After that they tried to avoid the appellant. P did not confront the appellant but told a friend who spoke Kurdish to talk to him. About two days after her conversation with T, P heard the appellant calling for T down in the passage and went to see what he wanted. He asked if T was all right because he had not seen her. P said “She’s fine” and, when she turned round, the appellant grabbed her from behind, put both his hands on her breasts and pulled her towards him. She told him to “Fuck off” and went back into her room. 9. At this point it is to be noted that, whereas the prosecution were aware from P’s statement to the police that T had complained in detail to P of her alleged assaults soon after they occurred, the Crown did not seek to rely upon that evidence by way of ‘recent complaint’ as part of the prosecution case. Whereas its timing was of a nature which would have enabled it to be so presented, the prosecution was prepared to accept that it could not be relied on for that purpose because there were a number of inconsistencies in it. Counsel for the defence then cross-examined to elicit some inconsistencies in aid of the defence. 10. In cross-examination in respect of the offences concerning T, P stated that T had told her that the incidents occurred in three places: the appellant’s room, the kitchen and the passageway. She did not say that any incident had occurred in the lounge or on the stairs. She also said “[T] said that [T] had told her that “it had happened a lot of times and not just on two occasions on one day and on one occasion on a subsequent day”. Thus so far as T’s evidence was concerned, there was now before the jury evidence from her mother that, when complaining to her, T made statements as to the alleged assaults which were in those respects inconsistent with her own evidence to the jury. 11. So far as the offence against P was concerned, she said it would be wrong to say that she was touched by the appellant on the same day that T had spoken to her. When pressed she said “Well, I’m not too sure. When I made the statement to the police on 4 September I did say it was the same day”. P denied the suggestion put to her that she had invented a similar incident in her case in order to bolster the allegations of T. She said there was an occasion when the appellant gave her and T some sweets and clothes. T had given him a hug but he did not kiss her on the forehead as suggested. 12. In the light of the inconsistencies which had been opened up, quite properly, by the defence in relation to the evidence of T, prosecuting counsel sought to re-examine P as to the terms of T’s complaint in order to emphasise or establish that such complaint was in other respects consistent with the account T had given to the jury. Counsel asked: “What was your understanding, from what [T] said, had happened?” 13. At this point defence counsel made an objection which was dealt with in the absence of the jury. We shall turn to the substance of the argument which followed below. However, the judge ruled in favour of the prosecution and, upon the return of the jury, the following further evidence was given in re-examination. “ Q …I was about to ask you that you have been asked questions about how many times [T] had said things had happened and where. And I was asking you what in fact she had said to you had happened. Can you tell the court, please? A When I was in the bathroom with her, she was sitting on the floor crying, I said to her she must tell me exactly happened to her … She told me that Ali touched her in her private parts and on her vagina and … A Can I stop you there? What I want you to do is to tell the jury exactly, not paraphrasing, but from your recollection exactly what [T] said with the words that [T] asked. Alright? It is very important that you … if you cannot remember then say you cannot remember. A Alright. Q But do not paraphrase or say something which you interpreted. Say what she said. A Okay. She told me that he touched her boobs and he touched her flower and that he was standing behind her and he pulled her towards her [sic] and was humping her from the back … That’s all I can remember at this stage.” 14. The appellant gave evidence in his own defence. He said that he first met T’s family when asked by the landlord’s agent to help them by showing them their rooms when they arrived and helping them with their luggage. After that he used to see them from time to time. He did not see T without her mother and father and he never put his hands on T or her mother. When they first arrived he gave the family t-shirts, biscuits, some sweets and some slippers. He intended to help them and he had noticed that they had got nothing. They came and collected the items to take them upstairs. T hugged him and he kissed her on the forehead. He did not put his arms on her. He said he wore his boxer shorts when he went to the bathroom and T may have seen him when the door of his room was open or perhaps when he put his clothes on the bed when his door was open. He never showed T his private parts and he never talked to her – his English was not good enough. She only said “Thank you very much” to him for the gifts. He provided gifts for the family twice, but he could not remember the date of the second time. He did not go out and buy T a small tin of ‘Pringles’ as alleged and he did not ask her to read him a book. 15. In passing sentence following the appellant’s conviction, the judge observed that the offences involved were “serious offences of indecent assault”. He said that the courts had an important public duty to deter men from molesting children and that duty could only be discharged by passing severe sentences. He was satisfied that this was a proper case for a recommendation to be made by him to the Secretary of State for the appellant’s deportation. His reasons were that this was not an isolated act but a series of serious indecent assaults and that the appellant’s victims were an 11 year-old child and her mother. 16. The grounds of appeal are based on the ruling of the judge that the prosecution were entitled to re-examine T’s mother to demonstrate the degree of consistency as well as the inconsistencies in T’s complaint to her mother, defence counsel having cross-examined as he did, despite the strictures of this court against the legitimacy of such a course in R v Beattie [1989] 89 Cr App R 302 and the summary of the law and the authorities in Archbold 2003 at paras 8-102 to 8-110 the text of which was considered by the judge. 17. The judge said: “Mr Mousley was perfectly entitled to cross-examine [P] to establish the inconsistencies that there were in the complaint that had been made by T. If I misapply the analogy given by Mr Justice Turner, what Mr Mousley was able to do, and, I emphasise, perfectly properly, was extract the duff and spread it out before the jury. The prosecution now apply – and this application is opposed by Mr Mousley – to have my leave to re-examine [P] on the rest of the complaint that was made by [T] to her mother. The rest of the detail of the complaint is, of course, broadly speaking wholly consistent with the evidence that she gave. And again, misapplying the words of Mr Justice Turner, the prosecution therefore seek to put the plums on top of the duff so that the jury see the full picture. Mr Mousley makes a number of objections. The most forceful he makes … is that this re-examination is simply inadmissible in law. However, the fact of the matter is that the terms of the recent complaint were introduced in evidence by his own cross-examination. … Recent complaint is recognised as an exception to the general rule of evidence that prohibits evidence of previous consistent statements being adduced in evidence before the court. Part of the recent complaint having been adduced, I am quite satisfied that it is necessary, in the interests of justice and fairness to both parties, to allow the jury to form their own view on the reliability and consistency of [T] as a witness by considering the whole of the complaint that she made to her mother. The case of R v Riley (1866) 4 F&F 964, although not directly on the point, has an analysis which I would pray in aid. It is the words of Baron Channell. He describes the workings of the Criminal Procedure Act 1865 and he indicates that, once the whole of the deposition is before the jury, and I quote: … it will appear how far the suggested contradiction exists, and the absence of a particular statement may be explained by the context; or even if there is a discrepancy on the point, it may appear that it is only one minute point, and that in all the rest of the evidence there is perfect consistency, so that the general result of the comparison may be confirmation rather than contradiction. As I say, Baron Channell was talking about the operation of the Criminal Procedure Act. There is no suggestion that any deposition or witness statement should go before the jury in this case. The application is strictly limited to questions in re-examination. But, for the reasons that Baron Channell indicated, namely that it will allow the jury to see the whole picture, will allow them to see the contradictions in context, and allow them to give what weight the jury think fit to the contradictions, I am firmly of the view that it is appropriate that this re-examination should be allowed. If it were not to be allowed, the jury would only see the duff; they would not know about any plums, and the jury could not be invited to speculate about what else was in the terms of the complaint.” 18. The grounds of appeal complain that the judge erred in allowing the prosecution to re-examine P as to the complaint made by the daughter to demonstrate that there were also consistencies, in order that “a balanced picture was given”. It is said that the complaint did not fall into one of the three categories of exception available to render a previous consistent statement made by a witness admissible. It is said that the judge erred in not applying the law as laid down in Beattie , the words of Channell B in Riley not being applicable to the situation which arose in the instant trial. It is said that the case for the prosecution on Counts 1-3 rested entirely on the evidence of T and, there being no other supporting evidence, her credibility was crucial. Thus, by wrongly allowing the introduction of a previous consistent statement to bolster her credibility, the convictions on those counts were unsafe. Finally, although it is acknowledged that the remaining count relating to P had no obvious evidential overlap with Counts 1-3, and that the judge properly directed the jury to consider it separately, the ‘knock-on’ effect of P’s evidence of T’s complaint would not merely have been to bolster T’s evidence, but also the case in respect of P. 19. So far as the appeal against sentence is concerned it is said that, having regard to the nature and number of the assaults and the absence of any breach of trust, the sentences imposed were manifestly excessive and out of line with previous decisions of this court. 20. In our view the position on the law is as stated in Archbold at para 8-102. There is a well-settled “general rule of evidence that statements may be used against a witness as admissions but that you are not entitled to give evidence of statements on other occasions by the witness in confirmation of the testimony”: see Jones v S E and Chatham Railway (1918) 87 LJ KB 775 at 779. This is sometimes described as the general rule against previous consistent or self-serving statements and sometimes as the rule against narrative. It operates as a general rule, subject to three well-known exceptions, to prevent a witness being asked about a previous oral or written statement made by him and consistent with his evidence: see R v Roberts 28 Cr App R 102 ; R v Larkin [1943] 29 Cr App R 18 and R v Oyesiku (1971) 56 Cr App R 240 at 245-7. Similarly, evidence of the previous statement may not be given by any other witness: see Roberts supra. 21. The general rule applies in examination in chief, cross-examination and re-examination: “The evidence of a witness cannot be corroborated by proving statements to the same effect previously made by him; nor will the fact that his testimony is impeached in cross-examination render such evidence admissible. Even if the impeachment takes the form of showing a contradiction or inconsistency between the evidence given at the trial and something said by the witness on a former occasion.” See R v Coll (1889) 25 LR Ir 522 per Holmes J at 541, as approved in Oyesiku at 245. See also R v Weekes [1988] Crim LR 244 and R v P (GR) [1998] Crim LR 663 and the commentaries thereto. 22. The three well-known exceptions to this general rule as stated in Archbold , Blackstone’s Criminal Practice and other textbooks are recent complaints in sexual cases, statements forming part of the res gestae and statements rebutting an allegation of recent fabrication as identified in the case of Beattie . In that case, (at 307) Lane CJ clearly stated that “There is no general further fourth exception to the effect that where counsel cross-examined to show inconsistencies, the witness can be re-examined to show consistency”. 23. We add for completeness that, in addition to the three well-known exceptions identified in Beattie , there are three further exceptions which are generally recognised in practice, namely statements made by an accused upon arrest; statements made by an accused by way of explanation when found in possession of recently stolen goods or upon recovery of other incriminating articles; and the statements of witnesses made by way of identification of an accused outside court, all of which are admissible to demonstrate consistency with an account given in court. 24. In this case, it seems clear that none of the three exceptions identified in Beattie applied. It was not contended for the prosecution that it was necessary to elicit those parts of T’s complaint to her mother as were consistent with her evidence in court in order to rebut an allegation of recent fabrication (as for instance in the case of Oyesiku ). Such suggestion had not been made. In that connection, we observe that it is not necessary for such an allegation to be made expressly in order to let in rebutting evidence. It is for the judge to assess whether the challenge made in the course of the cross-examination amounts to or might be taken by the jury as an allegation of recent fabrication. The position in this regard is set out in the Australian case of Nominal Defendant v Clements (1961) 104 CLR 476 per Dixon CJ at 479, as quoted in Oyesiku at p.246): “The judge at the trial must determine for himself upon the conduct of the trial before him whether a case for applying the rule of evidence has arisen and, from the nature of the matter, if there be an appeal, great weight should be given to his opinion by the appellate court. It is evident however that the judge at the trial must exercise care in assuring himself not only that the account given by the witness in his testimony is attacked on the ground of recent invention or reconstruction or that a foundation for such an attack has been laid by the party, but also that the contents of the statement are in fact to the like effect as his account given in his evidence and that having regard to the time and circumstances in which it was made it rationally tends to answer the attack. It is obvious that it may not be easy sometimes to be sure that counsel is laying a foundation for impugning the witness’s account of a material incident or fact as a recently invented, devised or reconstructed story. Counsel himself may proceed with a subtlety which is the outcome of caution in pursuing what may prove a dangerous course.” 25. This was not such a case. At trial, the fact of T’s complaint to P had been dealt with in T’s evidence in chief by a formula agreed by counsel in recognition of the fact that, in the light of the inconsistencies, it would not be used by the prosecution as proof of consistency on T’s part. The solution adopted was that P simply agreed with a leading question put by prosecuting counsel that, in the bathroom, T had spoken to her about the appellant “touching her in inappropriate places”. In cross-examination, defence counsel had not challenged or sought to go behind that description, save to put to P that, when T had so complained, she had stated that the incidents occurred on more occasions and in places other than T had testified. 26. From the transcript of the argument which is before us, it appears that the judge took the view that the observations of Channell B which he quoted justified his ruling. However, in our view they did not do so. The passage quoted was concerned with the appropriate procedure to be followed in relation to cross-examination of witnesses as to previous statements in writing. In Beattie , a question arose in relation to the written statement of a witness which, following challenge on the question of consistency, the judge allowed to be exhibited and copied for the jury. The court held that, although it was open to the judge under s.5 of the 1865 Act to allow the whole of the statement to go before the jury, in the view of the court he would have been well advised to confine that portion of the statement shown to the jury to the two matters the subject of cross-examination. 27. In this case, the inconsistencies elicited as contradictions of the evidence of T were not denied by her mother in cross-examination and the situation which it was the purpose of s.5 to alleviate simply did not arise. 28. It has correctly been observed, e.g. in the commentary upon Weekes in the Criminal Law Review, that “On occasion, a strict application of the general rule excluding previous consistent statements may generate the appearance of unfairness in that the court is left with an unbalanced view of the overall consistency of the witness.” (1988 Crim LR 245) 29. Again, in the commentary upon R v P (GR) at 1998 Crim LR 664, it is stated that: “It might be thought a failing of the rules of evidence that an attack on a witness based on the making of an earlier inconsistent statement cannot be met by demonstrating in re-examination that on balance the witness’s previous statements show a high level of consistency. Instead, the cross-examiner has a relatively free hand in the use of inconsistent statements (subject to the provisions of sections 4 and 5 of the Criminal Procedure Act 1865 , of which more later) while the party calling the witness can only rely on previous consistency if the case falls within one of the three exceptions to the rule against the use of consistent statements … The overall effect is that a jury, given the information which the rules permit them to have, may be left with a wholly unbalanced picture of the witness’s previous statements. This may be a particular disaster where the witness is a child and the jury may be over-persuaded by inconsistencies which may seem significant to an adult, but which do not necessarily indicate lack of veracity in a child … That having been said, it is not the intention of the Law Commission materially to alter the imbalance between these rules, so for the time being we must, it seems, put up with them (Report No. 245, Evidence in Criminal Proceedings: Hearsay and Related Topics (1997))” 30. We cannot but agree with those observations. They are a recognition rather than a contradiction of the position as stated in Beattie that there is no general further fourth exception to the effect that, when counsel has cross-examined to show inconsistencies in the testimony of a witness, the witness can be re-examined to show consistency by reference to a previous statement. 31. That said, however, we would emphasise that in Beattie the court referred to absence of a general further exception. No doubt the matter was put in that way because we do not consider that in that case the court intended to detract from the existence of a residual discretion in the judge to permit re-examination to show consistency when there is “something either in the nature of the inconsistent statement, or in the use made of it by the cross-examiner, to enable such evidence to given” (see Oyesiku at 245 as already quoted). 32. It is this residual discretion, necessary in the interests of justice, which permits, and indeed requires, close examination of the position in relation to a suggestion of recent fabrication, as well as the need in all cases to ensure that, as a result of a question put in cross-examination, the jury is not positively misled as to the existence of some fact or the terms of an earlier statement. If, as a result of cross-examination, that is the situation which faces the judge, then, to the extent that it is necessary, he will be justified in his discretion in permitting questions in re-examination and/or use of s.5 of the 1865 Act where applicable, in order to correct the position. 33. In our view, no such correction was required in this case. The fact that T had made a complaint to P, dealt with by the formula we have mentioned, was not sought to be challenged by the defence. Counsel for the defence simply sought to establish inconsistencies on the part of T which were admitted to exist and which were not unfairly or inaccurately extracted from P. In seeking in re-examination to adduce evidence of the precise terms of the complaint, prosecuting counsel was seeking not to correct an evidential position which would otherwise be erroneous or misleading, but to add to the evidence in order to establish the consistency of T’s complaint with her testimony in a manner prohibited by the general rule and not within a recognised exception. We therefore consider that the judge was in error in ruling as he did. 34. That said, however, we do not consider that the convictions were thereby rendered unsafe. The judge directed the jury emphatically to the effect that the complaint made was not evidence, let alone independent evidence, of what actually happened and he highlighted the inconsistencies relied on by the defence. He also directed the jury that the charges must be considered separately. It is plain from the conviction on Count 4 that the jury accepted the evidence of the mother as to the indecent assault upon her, roundly rejecting the suggestion that she was complaining herself in order to bolster the complaints of her daughter. The manner of the assault described by P was almost precisely the same as that which T described in respect of Count 1. The jury reached a unanimous verdict in respect of Counts 1 and 4 upon the indictment following their retirement and provided a note to that effect. The verdicts were then taken on Counts 1 and 4. After further consideration, the jury were given a majority direction and speedily supplied a note to the effect that “We have given the two indictments [i.e. counts] due consideration and the majority has not changed and is not likely to change. Current Count 11:1 on both indictments.” 35. Verdicts of guilty by a majority of 11:1 were then returned. Having carefully considered the matter we consider that the convictions are safe and the appeal against conviction is therefore dismissed. 36. So far as the appeal against sentence is concerned, we have been referred to four authorities: Lennon [1999] 1 Cr App R (S) 19, L [1999] 1 Cr App R (S) 347, Attorney General’s Reference No 43 of 1999 (Glyn GM) [2000] 1 Cr App R (S) 398 and Attorney General’s Reference No 72 of 1999 (MG) [2000] 2 Cr App R (S) 79. All involved indecent assaults of a substantially more serious character than those in this case and involved persons in positions of trust. The closest to being comparable is the case of Glyn GM which involved somewhat more serious offences by a father upon his daughter. It was stated that, upon conviction on a plea of not guilty, the appropriate sentence would have been one of between 15 and 18 months’ imprisonment. It seems clear to us that, in the present case, the sentences imposed were manifestly excessive. We consider that the appropriate sentence on Counts 1 – 3 would have been concurrent terms of 15 months in respect of T and on Count 4 a consecutive term of 3 months in respect of P, i.e. 18 months imprisonment in all. 37. Accordingly, we quash the sentences imposed on each of the counts and substitute upon Counts 1-3 sentences of 15 months in each case, such sentences to run concurrently, and upon Count 4 a sentence of 3 months’ imprisonment to run consecutively to Counts 1-3. To that extent the appeal against sentence is successful.

2003_11_14-134.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2003/3214/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2003/3214

197fd5e243b5d1a2397a7b808a214e0a31df9321ab31980c180682dcbdb241b6

[2018] EWCA Crim 2073

EWCA_Crim_2073

2018-06-26

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 p

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. No: 201705225/C3/201705227/C3 Neutral Citation Number: [2018] EWCA Crim 2073 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 26 June 2018 B e f o r e : LORD JUSTICE DAVIS MR JUSTICE NICOL MRS JUSTICE CARR DBE - - - - - - - - - - - - - - - - - - - - R E G I N A v FESAL AIDARUS - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - Mr S Ward appeared on behalf of the Applicant Ms E Smith appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE DAVIS: The applicant was born on 8 August 1998 and is now aged 19. 2. His applications are for leave to appeal with regard both to conviction and sentence have been referred to this court by the Registrar. So far as the application for leave to appeal against conviction is concerned, essentially the grounds of challenge are by reference to the judge's declining to allow the question of evidence concerning sexual behaviour of the complainant. 3. The position is this. On 9 November 2017, after trial in the Crown Court at Birmingham before His Honour Judge Drew QC and a jury, the applicant was convicted of a count of rape and was thereafter sentenced to a term of 6 years' detention in a young offender institution. 4. The background facts leading up to this conviction are these. On the evening of Friday 30 October 2015 the complainant, who may be called "J" and then aged 14, was on her way to visit a friend. She was to say in her Achieving Best Evidence interview (ABE) she had that evening argued with her mother about going out and eventually her mother had relented and permitted her to go out. According to her evidence, on her way to meet her friend, she saw a man whom she knew as "Al" and joined him in his car with the applicant who was unknown to her. The car then drove away. She was seated in the back seat and was smoking a cigarette. It seems that the car visited various destinations but Al eventually stopped the car in an alleyway and then got out of the car, as he said, to take a telephone call. That left her in the car with the applicant. 5. On her evidence, the applicant then asked her to get out of the car and join him for a chat. She followed him to the front of the car when, according to her, he asked her to perform oral sex on him and she refused. He asked her to have sex with him and, again, she refused. Then, on her evidence, the applicant took hold of her arm and bent her over the bonnet of the car and took down her trousers and knickers, put on a condom and had vaginal sex with her, all without her consent. She was to say that she was crying when intercourse occurred. She said that when the applicant withdrew he asked her if she liked it. She told him that he was "sick". He then took off the condom and threw it on the ground and she noticed that he had ejaculated. 6. On her evidence, the applicant then walked over to speak to Al and when they returned Al asked her if she was still a virgin. She asked to be taken home but Al told her "no" and that he had things to do first. At all events after that they went on to some kind of firework party in a park where she spoke to some of Al's friends. Eventually she was dropped off home, she saying that the applicant said to her "Aren't you going to say thank you?". 7. When she got to home she went straight to bed. She washed her clothes and did not tell anyone of what had happened until she spoke to her sister the following day. 8. The sister's statement was read to the jury and stated that the complainant, J, had told her that she had been with Al and the applicant, that the applicant had asked her to perform oral sex and she had refused and then the applicant had bent her over the car bonnet and had sex with her against her wishes. The sister was to state that J had been very emotional when giving her account and the sister had urged J to tell their mother which eventually she did. 9. There was some CCTV material available, although to a great extent that was inconclusive and did not capture all that may or may not have occurred. At all events, although there was some material derived from the CCTV footage, the recording seemed to indicate that at one stage the applicant said to Al: "Al, stay there a sec", and perhaps indicating also that the complainant was saying "no", although that was obscure. At all events, the complainant accepted in cross-examination that she could not be heard on the CCTV footage crying or telling the applicant that he was "sick". She also accepted that she had gone to the park and spoken to some boys after the incident in question. 10. When spoken to by the police before being formally arrested the applicant gave the police a false name and address. When being taken to custody he was recorded as saying "my word against hers". When interviewed the applicant provided a prepared statement in which he stated that he had consensual vaginal sex with J, a girl who he understood to be 16 years old. He thereafter made no comment to questions asked. His case at trial, he giving evidence, was to the same effect as set out in his prepared statement. 11. In his evidence the applicant described how it was that the complainant had got into the car and how she had told him that she was 16. According to him, he asked her to sit beside him in the front of the car, after Al had got out, as it was easier to talk, then jokingly asked her if she would give him a "blow job" to which she responded: "I don't mind" and she then started to perform oral sex on him. He then asked her if she wanted to have sex but she told him the car was too small. They both got of the car. Again she performed oral sex on him and she then agreed to have sex. He then put on a condom and there was then vaginal sex, she not resisting or saying "no". After that he called over to Al. Al was still on the phone. They then walked back to the car together and the three drove away. When they met up with the other boys in the park he said that he stayed in the park while Al dropped the complainant home. It may be added that neither prosecution nor defence called Al as a witness. 12. No complaint whatsoever is made about the fairness or balance of the summing-up. Nor is any complaint made about the accuracy of the written route to verdict document provided to the jury and the judge's legal instructions to the jury. 13. The grounds of appeal are based entirely on rulings given by the judge, both before the trial and at the trial, with regard to applications made by the defence, for admission pursuant to section 41 of the Youth Justice and Criminal Evidence Act 1999 of sexual behaviour on the part of the complainant. 14. Section 41 in the relevant respects provides as follows: "Restriction on evidence or questions about complainant’s sexual history. (1) If at a trial a person is charged with a sexual offence, then, except with the leave of the court— (a) no evidence may be adduced, and (b) no question may be asked in cross-examination by or on behalf of any accused at the trial, about any sexual behaviour of the complainant. (2) The court may give leave in relation to any evidence or question only on an application made by or on behalf of an accused, and may not give such leave unless it is satisfied— (a) that subsection (3) or (5) applies, and (b) that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case. (3) This subsection applies if the evidence or question relates to a relevant issue in the case and either— (a) that issue is not an issue of consent; or (b) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused; or (c) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar— (i) to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused, or (ii) to any other sexual behaviour of the complainant which (according to such evidence) took place at or about the same time as that event that the similarity cannot reasonably be explained as a coincidence. (4) For the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness. (5) This subsection applies if the evidence or question— (a) relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant; and (b) in the opinion of the court, would go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained by or on behalf of the accused. (6) For the purposes of subsections (3) and (5) the evidence or question must relate to a specific instance (or specific instances) of alleged sexual behaviour on the part of the complainant (and accordingly nothing in those subsections is capable of applying in relation to the evidence or question to the extent that it does not so relate)." We also note the definitions set out in section 42 of the 1999 Act . 15. The sexual behaviour sought to be relied upon by the defence related to two different situations. The first related to an admission by the complainant, J, to police officers on 20 July 2015 that she had performed oral sex on a boy whom she knew when she was aged 13 and when the boy also was 13. This was a few months before the present alleged offence. 16. The police record of that in the relevant respects reads as follows: "I had visited [J]. Also present was her mother. [J] stated that she was sending [X], 13 years, on her phone. He sent an explicit picture which she deleted, she then sent a picture of her face and cleavage. She denied she sent any further text of naked photos. She then states she would give [X] a blow job as he said he would show people the photo. Mum was very vocal speaking over [J] and explaining how she was not allowed out of the house and the fact that she would not be returning to the centre... I asked mum if I could speak to [J] alone and she was happy for this. We spoke about what had happened. She again stated that she never sent a naked photo. She stated that the blow job was not a big thing and wished the whole thing was dropped. She states in relation to the messaging this was all bravado and she did not plan to give him a blow job." 17. The second situation sought to be relied upon occurred some 2 years after the present alleged offence when the complainant was 16 or 17. By this time she was living at a children's home. In August 2017 she told staff that she had, over a 3-week period, meeting men and getting into their cars. They had been providing her with drugs and drink and she owed them money. One of the men, that could be called "M", she had known for some years and she said that she had sex with him at a house party. She was to say that there were five men in all and on various occasions she had, separately, given them oral sex whilst in their cars, there only being one man in the car on each such occasion. All the men were older than her; one of them indeed was very significantly older, being aged about 40. 18. It is not entirely clear just how specific J had been as to these matters or precisely what she had actually accepted. But it is said that there was an amount of supporting evidence for this, both from phone numbers found and from observations of staff at the children's home. 19. What was submitted to the judge, and is submitted to us now, was that in each instance the described sexual behaviour being oral sex was "so similar" to that immediately preceding the alleged vaginal penetration on the bonnet of the car on 30 October 2015 that it should be admitted and that a refusal of leave to admit might have the result of rendering any conviction unsafe. It appears to have been common ground that the proposed evidence related to an issue of consent and reliance was placed principally on section 41(3) (c)(ii). 20. We consider that the judge was fully entitled to reject these two applications as he did. Mr Ward, appearing on behalf of the applicant, focused in particular on the words "in any respect" as contained in section 41(3) (c) and said that applied in particular to the incidence of oral sex. He drew attention to the remarks of Lord Clyde in the case of R v A (No 2) [2002] 1 AC 45 , at page 96. 21. We think however that, having regard to the circumstances of the present case, Mr Ward's approach, with respect, involves a wrong application of the provision of the section to the circumstances of this particular case. Here, the first previous incident, which had involved a 13-year-old boy whom she knew, occurred in circumstances where she had said that she felt pressured, indeed coerced, to submit to his demands given his threat to publicize the photo. The fact that oral sex was involved at a time when J was 13 cannot of itself, contrary to Mr Ward's submissions, provide in this case the necessary degree of similarity. Indeed, as the judge pointed out, there were very many dissimilarities. What the judge in fact said was this: "What I need to in particular to focus on is the degree of similarity. In my judgment the similarity is not so great that it could not reasonably be explained as a coincidence. The relationships between them and the complainant, the incidents took place in different as the incidents go. There is not alleged to be, for example, a car on the second occasion or another boy present, nor a drive around before the incident took place, or afterwards, or defendant is alleged to have then committed rape. It seems to me, therefore, that so far as the application is concerned it falls at the first hurdle. I do, however, of course, have to have in mind the provisions of subsection (2)(b) that a refusal with leave might have the result of rendering unsafe a conclusion of the jury on that by refusing leave it will not render unsafe any conclusion of the jury in relation to the issue in the case; namely, the one of consent." That was a conclusion, in our judgment, which the judge was entitled to reach. It cannot be said that such proposed evidence was so relevant that its exclusion would engender unfairness. 22. As to the second ground, Mr Ward has wisely not sought to place much emphasis on it. Not only did the second situation postdate the present alleged offence by a period of some 2 years, but the circumstances of that alleged sexual behaviour was in a wholly different context; that is J being under a degree of compulsion owing drug debts as she did, involving planned meetings and where the men were much older. There were a number of other differences as well. In our view, the judge was unquestionably entitled to reject this particular application as he did. Indeed, this particular application seems to have tested to the very limit the very rationale for enacting section 41 in the first place. Indeed that might also be said of the first application. 23. The third ground relied on is put on a somewhat different basis, albeit it too related to the first incident involving the 13-year-old boy. 24. In her Achieving Best Evidence interview the complainant, J, had at one stage said, towards the outset of the interview, that when the applicant was asking her for oral sex he had also said: "Have you gave head before and that?". She is recorded in the transcript of the ABE interview as saying "And I was like 'no I haven't'..." 25. What was and is submitted is that that answer was untrue and the defence should have been permitted to rebut it pursuant to section 41(5) of the 1999 Act . Otherwise the jury would, in a case where credibility was key, have been left with the false impression that the complainant had had no previous experience of oral sex. 26. Here too we think the judge was entitled to reject this application for the reasons that he gave. It may be noted that at no stage had the prosecution sought to advance a case that the complainant, J, had indeed had no previous experience of oral sex. Neither the questioning of prosecution counsel nor the closing speech of prosecution counsel even suggested as such. Nor had the judge sought to give any such suggestion or impression in his summing-up. 27. In truth, as the judge pointed out, the observation made briefly in Achieving Best Evidence interview went to what the complainant said as to what she had had said at the time not as to the truth of what she had said. Indeed, it was not the defence case to accept that she had indeed said as much. That indeed was not accepted at all. Rather the defence case was that she never said anything like that at all because everything was consensual. 28. What the judge said in essence was this in his ruling: "In my judgment this prosecution evidence that is to be adduced of her ABE interview is going before the jury because it is evidence that the victim said of what took place. In other words, she says, 'This is the exchange between the two of us in the car'. It is not being adduced in order to establish that what was said was in fact true. The defence case, so far as that conversation is concerned, is that the victim [J], is lying when she says it took place at all. In my judgment it is therefore not necessary to adduce this further evidence; that is of the fact that [J] performed oral sex on another boy. It neither rebuts nor explains whether or not [J] said these things. The truth of those assertions is an entirely separate matter and not being an issue in the case should not be admitted ..." 29. That, in our judgment, is entirely justifiable reasoning. To that it may perhaps be added that had the defence sought to make such a case, it could have been very two edged so far as the defence were concerned: because it may well be that then might have resulted in answers saying that she had told an untruth about a previous sexual experience in order to get him to desist from his sexual demands; a position not dissimilar from that which arose in the case of R v Soroya [2006] EWCA Crim 1884 . But we need say nothing further about that. 30. Accordingly, given the circumstances of this particular case, we think the judge's rulings were justified. The contrary is not realistically arguable and we refuse these applications with regard to conviction. 31. We turn then to the application with regard to sentence. In the light of the conviction by the jury, they having heard both the complainant and the applicant, this was a squalid and unpleasant case. Moreover, the judge made clear in his sentencing remarks, and he of course had the benefit of having conducted the trial, that he concluded that there was a degree of planning and of targeting J. Moreover, the judge was sure that Al was at the end of the alley keeping a lookout, giving the applicant the opportunity to see how far he could get with the complainant. 32. The judge categorised this, for purposes of the sentencing guideline relating to rape, as category 3A and that is not challenged. That connotes for an adult a starting point of 7 years, with a range of 6 to 9 years. Here, as the judge identified, there were a number of aggravating factors: there was ejaculation, albeit that there was a condom used; this was a dark alleyway and the offending occurred late at night; and there was an element of planning and targeting and Al was present to assist. Furthermore, of course, there was the fact that J was just 14 at the time. 33. As to mitigating features, leaving aside the age of the applicant, there was precious little in the way of mitigation. The applicant has a number of previous convictions, mainly for violence, although it is right to say none for sexual offending. It is also right to say that he had not been in immediate custody before. But there was no remorse and, in truth, no real mitigation apart from his age. 34. As to that, whilst he was 19 at the time of sentence, he had only just reached the age of 17 at the time of the offending. It is to be noted that he was in fact aged 18 at the time of conviction, so the relevant sentencing guideline and contained Overarching Principles do not directly apply to him. Nevertheless, clearly his age was a powerful factor in this context. 35. The submission of Mr Ward is that the judge failed sufficiently to factor in the point that the applicant was only just 17 at the time. He suggested that by reference to the Overarching Principles one would expect a discount of something like in between half and a third as compared to a sentence appropriate for an adult. He further submits that after balancing the aggravating and mitigating factors apart from age, the figure to be taken should have been that of 7 years, being the starting point contained in the guideline. On that footing he says a discount of 1 year for sentence simply insufficiently failed to reflect the fact that the applicant was only just 17 at the time. 36. Although the judge did not spell out at what figure he ended up after balancing aggravating and mitigating factors, it seems to us plain that he necessarily would have ended up at a figure somewhat above the starting point of 7 years taken in the guideline. This is because there were a significant number of aggravating features, as we have said, and hardly anything in the way of mitigation apart from age. Consequently, we think a figure, before making a reduction for age, of in the region of 8 years would have been entirely appropriate. In the result, the judge imposed a sentence of 6 years' detention in a young offender institution, connoting a discount of 25% from the notional ending point he had otherwise reached. Given that on any view this applicant had a degree of criminal maturity and given that the judge made no finding of there being any degree of immaturity, we think that was an entirely sufficient discount appropriate to the circumstances of this case. 37. It may be that, given the age of the applicant a sentence of 6 years' detention was a severe one; but we are not able to say that it was manifestly excessive and consequently we refuse this application also. 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_06_26-4338.xml

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[2018] EWCA Crim 1318

EWCA_Crim_1318

2018-03-22

crown_court

201703375 C1; 201703377 C1 Neutral Citation Number: [2018] EWCA Crim 1318 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Thursday 22 nd March 2018 B e f o r e: LORD JUSTICE SIMON MR JUSTICE GOOSE and HER HONOUR JUDGE TAYTON QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) - - - - - - - - - - - - - - - - R E G I N A - v - J G - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd trading

201703375 C1; 201703377 C1 Neutral Citation Number: [2018] EWCA Crim 1318 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Thursday 22 nd March 2018 B e f o r e: LORD JUSTICE SIMON MR JUSTICE GOOSE and HER HONOUR JUDGE TAYTON QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) - - - - - - - - - - - - - - - - R E G I N A - v - J G - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd trading as DTI 165 Fleet Street, London EC4A 2DY Telephone No: 020 7404 1400; Fax No 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - Mr J Swain appeared on behalf of the Appellant Miss R Shenton appeared on behalf of the Crown - - - - - - - - - - - - - - - - J U D G M E N T Thursday 22 nd March 2018 LORD JUSTICE SIMON: 1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to the offences with which this appeal is concerned. 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 those offences. This prohibition applies unless waived or lifted in accordance with section 3 of the Act . 2. On 7 th July 2017, in the Crown Court at Manchester before His Honour Judge Rudland and a jury, the appellant was convicted of three counts of rape (counts 5, 8 and 11), five counts of indecent assault (counts1, 2, 4, 7 and 10), four counts of indecency with a child (counts 3, 6, 9 and 12), and two counts of cruelty to a person under 16 (counts 13 and 14). On the same day he was sentenced to terms of imprisonment totalling 22 years. 3. The appellant appeals against conviction (except in relation to counts 13 and 14) and against sentence, by leave of the single judge. 4. The facts giving rise to the offences were as follows. The appellant had met a woman, "S", in early 1999. S was the mother of the first complainant "RE". The appellant moved in with S and married her later in 1999. By marrying her, he became the stepfather of S's two children by "CE": a girl, RE (the complainant in counts 1 to 12) and a son. RE was born in March 1987 and so was 11 when the appellant and her mother began their relationship. 5. The appellant and S subsequently had a child together: a daughter, "SG", born in November 1999. She was the complainant in counts 13 and 14. By early 2003, the marriage between the appellant and S had broken down. He left the matrimonial home in Manchester to live in London with his brother. 6. Approximately two weeks before RE's sixteenth birthday in March 2003, S contacted the appellant and asked him to have RE to stay for a couple of weeks because her behaviour had recently been difficult. He agreed. After three days, however, CE (her father) became concerned and RE was reported missing. 7. The appellant and RE subsequently made contact with the police in London and then travelled back to Manchester, where RE told the police (in the appellant's absence) that he had not had any sexual contact with her. She rejected the requests of her family (also made in his absence) to return home. Instead, she returned to London with the appellant. 8. It was common ground that the appellant and RE then had a relationship which lasted until 2014 and which brought them two daughters, born in 2007 and 2009 respectively. There were no counts in relation to the relationship between the appellant and RE after she had turned 16. 9. In 2007 or 2008, SG (the appellant's daughter with S, and RE's half-sister) went to stay with them in London. As a result of her allegation that she was being neglected by her mother (S), the appellant and RE applied for custody of her. In due course, full custody was granted to them. 10. In March 2013, there were issues which led to SG's arrest by the police in November 2013. Following police enquiries, a decision was made not to prosecute her and she was offered counselling. The prosecution case was that, during this counselling, concerns were raised with a clinical psychologist, Dr Louise Roberts. 11. On 9 th April 2014, at a meeting with them, both RE and SG made allegations against the appellant which led to the police being involved. RE alleged that her sexual relationship with the appellant began before she left Manchester and therefore before she was 16. SG alleged that she had been physically assaulted by the appellant on a number of occasions. These were allegations which founded the cruelty charges (counts 13 and 14). Count 13 reflected an occasion when the appellant assaulted SG by banging her head against the wall; and count 14 reflected the many occasions when the appellant wilfully ill-treated her. 12. The appellant was arrested and interviewed. He made no comment in interview but provided prepared statements in which he denied the allegations. The defence case was denial: the allegations, it was said, were false and malicious. 13. Since the defence case was that there had been no sexual contact between the appellant and RE before she was 16 (in March 2003), and that the prosecution case was that he had groomed her from early 1999, the parties agreed that it was irrelevant whether RE had had any previous sexual experience. It was also agreed that there was no basis for applying to introduce her previous sexual history, and reference to it was edited out of the Achieving Best Evidence interview which RE had given to the police. 14. The issue for the jury was whether they were sure that the incidents related by RE had taken place. 15. At trial, the prosecution evidence relied primarily on the evidence of RE and her mother, S. 16. RE told the jury that the appellant had not initially paid her much attention. Her mother, S, had suggested that she go out with him in order to "bond". He then began to buy her items, to tickle her and to act in a way that left her confused. He progressed to tickling her bottom and breasts (indecent assault, counts 1, 2, 4, 7 and 10). In July 2000, when she was 13, she said that the appellant took her hand and placed it under his shorts and on his genitals. She pulled away, but he told her it was "okay". That account was relied on in support of count 3 (indecency with a child). 17. At some time afterwards (RE could not recall when), they had full sexual intercourse (count 5, rape). He would penetrate her, but withdraw prior to ejaculation, and she would masturbate him. She thought she loved him, and he made her feel special. However, in 2001, after a car accident in which they were both injured, he began to be physically abusive to her. He also became possessive and controlling, cutting her off from her extended family and friends. This sexual relationship (reflected in the other counts of rape and indecency with a child) lasted until he left the matrimonial home in 2003. 18. RE's mother (S) gave an account of the history of her relationship with the appellant, including his controlling nature, her fear of him and the fact that she had not suspected at the time that there was any sexual relationship between him and RE. 19. Significantly, in the context of the conviction appeal, S said in response to questions from the judge that, at the time of the alleged offences, RE was not very sexually mature or flirtatious. We will return to this point later in the judgment. 20. The appellant gave evidence in his own defence. He said that there had been no sexual contact between RE and him before RE's sixteenth birthday (in March 2003); and that the allegations were subsequently concocted by RE. Their sexual relationship began some weeks after her sixteenth birthday, and they subsequently lived together and had two children. When they were born, his mother came to stay and this enabled RE to pursue her own interests. 21. In 2013, the appellant said that he wanted to try to emigrate to Australia. RE tried to qualify as a teaching assistant to help the emigration application. In view of the prospect of the appellant having to go to Australia alone for a six-month period, and the discovery of the fact that he had Facebook contact with other women, the defence contended that RE's allegations were in response to her fear that their relationship was about to end and that the appellant would be able to gain custody of their two daughters as well as SG. The Appeal against Conviction 22. The Grounds of Appeal are that the verdicts were rendered unsafe as a result of a misleading impression conveyed as a result of the judge's questioning of RE's mother, S. RE had told the police in her ABE interview that she had had sex with two other men when she was aged about 12 or 13. This was edited out of the ABE interview presented to the jury, so as to ensure that section 41 of the Youth Justice and Criminal Evidence Act 1999 was not contravened. 23. Towards the end of her evidence, the judge asked questions relating to RE's physical development at the age of 12 and 13, about any expressed interest in boys, and whether she was "flirty". The effect of S's evidence was that she was physically mature, did not express any interest in boys, and was not "flirty", but had mixed with local boys before the appellant prevented her from doing so. The judge's questions concluded in this way: Q. Sometimes children are sexually forward at a young age, or sometimes sexually backward, or just sometimes in the middle, neither one way or the other. How would you characterise [RE]? A. She was quiet. She was quiet. A quiet girl. 24. The appellant's complaint is that this evidence created a false impression that RE had no previous sexual experience prior to the appellant having sexual intercourse with her. We note, however, that no application in relation to this exchange was made at this stage. 25. During the course of the summing-up, the judge returned very briefly to S's evidence about RE. He said: She was not very sexually mature or flirtations wasn't [RE]. Her breasts were starting and she said they spoke about menstruation and things of that sort. 26. At the end of the summing-up, Mr Swain took issue with the judge over this aspect of the summing-up on the basis that it had potentially created a misleading impression in the mind of the jury that RE had hitherto been sexually inexperienced. The judge rejected the complaint. S had said that RE was not flirtatious and the fact that she was not flirtatious did not mean that she was not sexually experienced. Mr Swain asked the judge to admit the contents of RE's unedited ABE interview. The judge declined to do so. There was a difference, in his view, from RE's manner and bearing, as it appeared to others, and whether she was sexually experienced. The judge indicated that if Mr Swain did not like the ruling, he could take the point elsewhere. He has. 27. Mr Swain relies on section 41(2) of the Youth Justice and Criminal Evidence Act 1999 ("YJCEA"), which states that the court may give leave in relation to any evidence or question of previous sexual history if satisfied that section 41(5) applies and that a refusal of leave might have the result of rendering unsafe a conclusion of the jury. Section 41(5) applies if the evidence or question: (a) relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant, and (b) would go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained by the defence. Here, it is said, the evidence was adduced during re-examination by the prosecution (albeit the evidence was given in answer to questions posed by the trial judge). As Mr Swain expressed it during the course of argument, "the genie was let out of the bottle". 28. Mr Swain contends that section 41(5) should have applied in this case and that the defence should have been allowed to correct the erroneous impression created by S as to RE's sexual past. In particular, he argues that it would be wrong if a trial judge could ask such questions without the defence being able to rebut the answers; whereas, if the prosecution had asked exactly the same questions, it would have been able to do so. He relies on the decision of this court in R v Hamadi [2007] EWCA Crim 3048 at [21], in which the court stated that section 41(5) , like section 41(3) (c), needs to be interpreted more widely than its language might otherwise suggest so as to accommodate a situation where a prosecution witness has said something in cross-examination about the complainant's sexual behaviour which was not deliberately elicited by defence counsel and is potentially damaging to the accused's case. 29. In her written Response Miss Shenton, who appears on behalf of the prosecution, submits that the complaint is based entirely on the questions asked of S by judge. S was not a crucial witness for the prosecution and the questions asked by the judge and the answers to the questions were directed to RE's physical development, whether she was flirtatious, and whether she mixed with local boys before the appellant prevented that. The jury were already aware that RE went to parties, consumed drugs and alcohol, and mixed with "the wrong crowd". Furthermore, it was accepted on the part of the appellant that RE's previous sexual experience was irrelevant, bearing in mind the nature of the defence: that there was no prior sexual contact. 30. The prosecution also relies on the fact that the first time that an application was made to adduce the evidence of the ABE interview was part-way through the summing-up and that the application was based on the single section of the summing-up which dealt with S's evidence. It is contended by Miss Shenton that the previous sexual experience of RE was and remained wholly irrelevant in the circumstances of the case; and that was the reason why no application was made at the time. The judge's words in the summing-up did not change that position. 31. We have considered these submissions. In the trial of a defendant charged with a sexual offence, the provisions of section 41 of the YJCEA are intended to confine the circumstances in which a complainant may be asked questions on behalf of an accused about any prior sexual behaviour: see section 41(1) . The circumstances in which the court may grant leave to ask such questions are where sub sections (3 ) or (5) apply, and the court is also satisfied that refusing leave might render unsafe the conclusion of the jury "on any relevant issue in the case": see subsection (2). Sub sections (3 ) and (4) do not apply here because the issue of consent did not arise. Subsection (5) provides: (5) This section applies if the evidence or question – (a) relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant …; and (b) in the opinion of the court, would go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained by or on behalf of the accused. Subsection (6) further confines the evidence or question to a specific instance or instances of alleged sexual behaviour of the complainant. 32. We turn to the case of Hamadi. At [20] Moore-Bick LJ giving the judgment of the court said this: The starting point for the discussion is the natural meaning of the words used in subsection (5). In our view the expression 'evidence adduced by the prosecution' naturally refers in this context to evidence placed before the jury by prosecution witnesses in the course of their evidence in chief and by other witnesses in the course of cross-examination by prosecuting counsel. It does not naturally extend to evidence obtained from prosecution witnesses by the defence in the course of cross-examination. … We are unable to accept the submission that it extends to all evidence given by the prosecution witnesses, however it comes to be given. However, whether, as [counsel for the appellant] argued, it should be given a more liberal interpretation in this context is another matter. 33. The court continued at [21], in a passage relied on by the appellant: 21. … we think that in order to ensure a fair trial there may be cases in which the accused ought to be allowed to call evidence to explain or rebut something said by a prosecution witness in cross-examination about the complainant's sexual behaviour which was not deliberately elicited by defence counsel and is potentially damaging to the accused's case. For that reason we would accept that subsection (5) has to be read in the somewhat broader sense that its language might otherwise suggest in order to accommodate such cases. 34. In Hamadi , the court concluded that the complainant's evidence which gave rise to the application to ask questions or adduce evidence about her sexual behaviour was not adduced by the prosecution, but by the defence: see [22]. 35. A number of points may be noted in relation to the present case: (1) The appellant's defence was not that RE consented to sexual relations. His defence was that there had been no sexual contact whatsoever prior to RE's sixteenth birthday. Her past sexual history had no bearing on this defence. (2) The impression that was given from the exchange with the judge was generalised and related primarily to her physical development and personality, rather than her sexual behaviour. (3) The evidence did not prejudice the appellant's case, let alone provide a legitimate basis for introducing details of RE's previous sexual history. The jury was already aware that RE was someone who mixed with "the wrong crowd", attended parties, took drugs and consumed alcohol. The edited version of RE's ABE interview was before the jury and contained the following: RE: … At that time I was taking ecstasy tablets, I was on drugs and stuff like that, with, you know, with my friends and I was a bit … Yeah, I was with the wrong people. Q. And when did you start taking the ecstasy? RE: It was about the same time, twelve years old. Q. Okay. And how often would you take those? RE: Oh, I've only done it about three times. Q. Right, okay. So it wasn't a lot? RE: No, but I was drinking a lot, I would drink nearly every weekend. Q. Mmmm. RE: Like, vodka and … Erm, but like I said I was with the wrong group. It follows that nothing of what had been said by S in answer to the judge materially altered the impression of RE in the minds of the jury. (4) The answers were given not to questions from the prosecution, but to questions by the judge. It is not entirely clear why he asked those questions. However, importantly, they were not questions asked of the complainant, but of her mother. We would accept that if such questioning and such evidence was seriously prejudicial to the defence, and such as to impact on the fairness of the trial, it might lead to the discharge of the jury. However, we do not accept that it would lead to leave being given to question a complainant about previous sexual history or to adduce evidence of it. 36. For all these reasons we do not accept that the present case falls within the category of cases envisaged by [21] of Hamadi ; nor were the circumstances such as to affect the safety of the convictions. Accordingly, the appeal against conviction must be dismissed. The Appeal against Sentence 37. The appellant was aged 43 at the date of sentence. He had no material convictions. The judge passed sentence without the assistance of a pre-sentence report. We are satisfied that such a report was not, and is not, necessary. 38. There was a Victim Personal Statement from RE. We quote two passages from it: Since relocating outside the London area for the first year I seriously thought of returning back to [the appellant] because I was so worried that my close family would not believe me because [the appellant] always used to tell me, when I was with him, that I would not be able to cope on my own and that my family would not want me. [The appellant] would not allow me to have friends and I had no interaction with the outside world so when I had to fend for me and the kids I struggled. For example, I remember when I had to open my own bank account, my dad had to come with me because I didn't know what to say to the bank or what to ask for. I felt completely lacking in any self-confidence and worth. I felt like I was an alien. I felt completely different to anyone else. I felt numb. … I would hope that the court can acknowledge the impact this abuse has had on me and my two children. I have missed out on a normal teenage life because I wasn't allowed to attend school. I have had to start from scratch with my education. I missed out on my twenties because I wasn't allowed to have friends and I missed out on ten years of my family's life. I will always carry this abuse with me but I refuse to let it hold me or my children back from having a positive normal family life. 39. In passing sentence, the judge set out the facts as we have described them. He noted that the appellant was an aggressive, controlling individual who caused fear to all those around him. The grooming of RE started with tickling her bottom, but slowly and bit by bit his sexual attentions increased. He convinced her, a young, impressionable girl who had few secure landmarks in her life, that he was the solution to all her ills. Contrary to what she may have believed, it was not a relationship but a vehicle simply for his sexual gratification, which continued day in, day out, throughout her adolescent years. He robbed her of that adolescence and stole her young adulthood, by removing from her all those choices she could legitimately and quite appropriately have expected to make in relation to people of her own age. This was not only in the context of other relationships (her siblings and other relatives), but importantly in her ability to educate herself as she wished in accordance with her own legitimate desires. All this was stolen from her by the appellant's incessant, relentless, sustained control of her life. 40. Once he had left for London, he remained interested in what was happening to RE, not least because he was concerned that there should be no disclosures by her about his sexual abuse of her over the years of her sexual minority. When she came to live with him in London and she had her two much loved daughters, they appeared on the surface to be a family unit existing in a sensible and normal way; but all the time there was the insidious undercurrent of the control exercised by the appellant, as disclosed by the evidence. 41. When SG came to live with them, there was no evidence that the appellant was interested in her sexually; but her presence in the household began to annoy him. The way he treated her was a disgrace. She was someone of whom he should be proud. She was an impressive young witness and an intelligent girl with a good future before her, now that she was free with RE and her family in Manchester. But the way he treated her physically was quite appalling. She was utterly undeserving of such treatment. 42. So far as the offences of rape were concerned, the judge concluded that there were the following aggravating features: RE's age; the way in which she was groomed in her own home; the way in which the appellant "treated her like a doll" when it came to having sexual intercourse with her; and the secrecy he had urged upon her. It was a massive abuse of trust. It went beyond grooming; it was brainwashing; it was prolonged and it was sustained. It occurred over a very long time on many occasions and this had to be reflected in the sentence. 43. The judge decided that the offences of rape were category 2A (category A culpability and category 2 harm). So far as the cruelty charges were concerned, the offending fell within the middle band of the Guidelines on Assaults on Children and Cruelty to Children. 44. The judge then passed concurrent sentences of eighteen years' imprisonment on counts 5, 8 and 11 (rape); concurrent sentences of six years' imprisonment on counts 1-4, 6, 7, 9, 10 and 12 (where the victim was RE); and of four years' imprisonment on counts 13 and 14 (where the victim was SG). The four year terms were ordered to be served concurrently with each other, but consecutively to the sentences on counts 1 to 12. 45. In his submissions to this court, Mr Swain realistically accepted that these were extremely serious offences. It was a prolonged series of offending over three years, with a catalogue of sexual offences. However, he submitted that the sentence of eighteen years' imprisonment for the offences of rape was manifestly excessive. Although the judge did not indicate his starting point for the sentences for rape, he said that they were category 2A offences under the guidelines. This indicated a starting point of ten years' custody and a range of nine to thirteen years. The judge stated that the offences were "at the upper end of the tariff", but in doing so fell into error since he used the factors that placed the offending within 2A to increase the sentence beyond the category range to eighteen years: namely, that the victim was particularly vulnerable due to personal circumstances (harm), together with significant planning and abuse of trust (culpability). To this extent there was a degree of double counting. 46. The appellant also appeals against the sentences in relation to the offences of child cruelty. Mr Swain contended that these sentences were excessive in all the circumstances and that the seriousness of the appellant's conduct would have been properly reflected by sentences of two to three years' imprisonment. The appellant accepts that the judge was right to order the sentences to run consecutively, but Mr Swain submitted that the term of four years was manifestly excessive. He also argued that the overall sentence of 22 years' imprisonment passed on the appellant was too long as a matter of totality. 47. So far as the sentences for the offences of rape were concerned, counts 5, 8 and 11 were specimen counts which reflected repeated rapes in the years when RE was aged 13, 14 and 15. It follows that the indicated sentence under the guidelines had to be adjusted upwards to reflect not only those factors which took it into category 2A were engaged, but the time over which and the number of times the rapes were committed. 48. So far as counts 13 and 14 (child cruelty) were concerned, there was agreement that these offences should be categorised as "mid-band" (more accurately the second of four bands), with a starting point of three years' custody and a range of two to five years. However, count 14 reflected a course of deliberate ill-treatment over a period of more than five years. There is no issue that the judge was entitled to pass consecutive sentences in relation to the various offences against the two victims of his crimes. 49. In the light of these circumstances, we have reached the following conclusions. In respect of the offences against RE, the sentence of eighteen years' imprisonment for the repeated rapes of a child over a period of years cannot properly be described as manifestly excessive. The judge was entitled to take into account a number of aggravating factors: the young age of RE (only 13 at the time of the first serious offence); the way in which she was groomed in her own home; the fact that it was an abuse of trust; the sustained and relentless nature of the offending; and the appellant's "brainwashing" of her. 50. Counts 13 and 14 (committed against SG) were correctly placed at the higher end of the guidelines. Count 14 was sadistic conduct carried out over a long period of time to the appellant's daughter, who had moved to live with him following neglect at the hands of her mother. She was accordingly in a particularly vulnerable position, and this was exploited by the appellant. 51. In our view, all the sentences were unobjectionable, viewed in isolation. Nevertheless, viewed as a matter of totality, we are persuaded that the overall sentence of 22 years was too long by a factor that entitles this court to intervene. 52. Accordingly, we quash the sentences on counts 13 and 14 and substitute sentences of two years' imprisonment, to be served concurrently with each other, but consecutively to the sentences on counts 1 to 12. The total sentence will, accordingly, be a term of 20 years' imprisonment. To that extent only, the appeal against sentence is allowed.

2018_03_22-4234.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/1318/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/1318

954a92db89aa0c93980083e2e3551895f990a59b622cdfb4f317d2b0724f7442

[2010] EWCA Crim 2233

EWCA_Crim_2233

2010-10-13

crown_court

Case No: 201002935 and 6 B5 Neutral Citation Number: [2010] EWCA Crim 2233 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM the Crown Court sitting at Wood Green His Honour Judge Carr T2009 0945/0100 Royal Courts of Justice Strand, London, WC2A 2LL Date: 13/10/2010 Before : LORD JUSTICE HOOPER MR JUSTICE OWEN and MR JUSTICE RODERICK EVANS - - - - - - - - - - - - - - - - - - - - - Between : The Queen Appellant and O and H Respondents - - - - - - - - - - - - - - - -

Case No: 201002935 and 6 B5 Neutral Citation Number: [2010] EWCA Crim 2233 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM the Crown Court sitting at Wood Green His Honour Judge Carr T2009 0945/0100 Royal Courts of Justice Strand, London, WC2A 2LL Date: 13/10/2010 Before : LORD JUSTICE HOOPER MR JUSTICE OWEN and MR JUSTICE RODERICK EVANS - - - - - - - - - - - - - - - - - - - - - Between : The Queen Appellant and O and H Respondents - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. W. Cranston-Morris for the Appellant. Mr. I. Krolick for the Respondent “O” . Mr. P. Spreadborough for the Respondent “H”. Hearing dates : 24/09/2010 - - - - - - - - - - - - - - - - - - - - - Judgment LORD JUSTICE HOOPER : 1. The prosecution seek leave to appeal a terminating rule ruling made by HHJ Carr on 20 May 2010 that there was no case to answer on counts 1 to 11. We grant that leave. 2. Counts 1, 2, 4, 5, 7 charged the respondent O with furnishing false information contrary to section 17 (1) (b) of the Theft Act 1968 . Counts 3 and 7 charged H, O’s wife, with two similar offences. Counts 1-7 concern allegedly false but successful mortgage application forms. 3. Counts 8-11 charged offences in relation to criminal property pursuant to section 327 (1) of the Proceeds of Crime Act 2002 . If there was no case to answer on counts 1 to 7 there was no case to answer on counts 8-11 because the property would not have been criminal. 4. The particulars of offence in count 1 state: O on the 21 st July 1998 in furnishing information for a mortgage application to purchase 6 Hanover Lodge, Ruislip, dishonestly and with a view to gain for himself or another or with intent to cause loss to another produced a document made or required for an accounting purpose, namely a mortgage application form, which to his knowledge was or may have been misleading false or deceptive in a material particular in that he therein purported to be “F”, date of birth 10/10/62 with a national insurance number NZ 39 51 63 C 5. Although the count refers to “a document made or required for an accounting purpose”, it is agreed that the relevant word is “required” and that the prosecution had to show in this case that the document was “required” by the particular mortgage lender “for an accounting purpose”. 6. Counts 2-7 are in similar form albeit that the material particulars alleged to be misleading were different. Whereas in some counts it is alleged that the wrong names and accompanying details were used, in other counts it is alleged that false details relating to employment and previous history were used. 7. The charges came about following a routine stop of O whilst driving and the discovery then and later of various items linking the respondents with various properties the subject of mortgages. The unsuspecting mortgage lenders only became involved after the police had contacted them. 8. The judge held that there was no evidence that the mortgage lenders required the applications for an accounting purpose. Although the mortgage applications had been produced by employees of the mortgage lenders (who ritually said that the mortgages would not have been granted had it been known that the particularised details were false), none of them explained (nor were asked to explain) how if at all the applications were required for an accounting purpose. 9. Mr Cranston-Morris for the appellant submits that no such explanation was necessary. Counsel for the respondents submits that it was. 10. Section 17 of the Theft Act 1968 provides: (1) Where a person dishonestly, with a view to gain for himself or another or with intent to cause loss to another, - (a) destroys, defaces, conceals or falsifies any account or any record or document made or required for any accounting purpose; or (b) in furnishing information for any purpose produces or makes use of any account, or any such record or document as aforesaid, which to his knowledge is or may be misleading, false or deceptive in a material particular; he shall, on conviction on indictment, be liable to imprisonment for a term not exceeding seven years. (2) For purposes of this section a person who makes or concurs in making an account or other document an entry which is or may be misleading, false or deceptive in a material particular, or who omits or concurs in omitting a material particular from an account or other document, is to be treated as falsifying the account or document. 11. We add, in parenthesis, that the use of section 17 is likely to decline in the light of the Fraud Act 2006 . In the instant appeal all the alleged offences relating to the mortgage application forms were committed before the coming into force of this Act. 12. It will be noted that section 17 refers to “any accounting purpose.” 13. The enactment of section 17 followed the 8 th Report of the Criminal Law Revision Committee. The Report does not help on the issues which we have to decide. Although Mr Krolick has tracked down the debates in Parliament, there is, he tells us, nothing in them of significance for the purposes of this appeal. Whilst preparing the judgment, we have looked at passages in the textbooks including Smith’s Law of Theft 9 th Edition and Arlidge and Parry on Fraud, 3 rd Edition but, as helpful as they are in identifying the relevant case law, they do not further assist us in resolving the issues with which we are concerned. 14. The leading authority on section 17 is Reference by the Attorney-General under Section 36 of the Criminal Justice Act 1972 . (No 1 of 1980) (1981) 72 Cr. App. R. 60. We take the facts from the reserved judgment given by Lord Lane CJ: The accused man was engaged at the material times in selling domestic appliances to householders. For that purpose, he gave to householders personal loan proposal forms addressed to a finance company to enable the householders to borrow money to pay for the appliances. So that the proposals would be accepted by the finance company, he advised some of the householders to give false particulars on their proposal forms. Two examples were proved. In the first the householder, at the suggestion of the accused, understated the number of his dependants and falsely stated that he had no outstanding instalment commitments. In the second, the householder was induced by the accused man similarly to understate the number of his dependants and to state falsely that he had a National Savings Bank account. The proposal forms when received by the finance company were considered and accepted. The information set out on the reverse side of the forms was used by the company to make up its accounts on the computer. The relevant forms were exhibited at the trial and were similar to each other. They are headed with the name of the finance company and are entitled “Personal Loan Proposal Form.” There then follows a section entitled “Particulars of Proposer,” the particulars to be supplied including the name and address of the proposer, his nationality, personal details of his marital and family circumstances, including the number of his dependants, his employer's name and address and other personal details. Also included in this section on the form is a space in which the proposer is required to state the details of other hire purchase commitments then existing. It was this section of the form which contained the false answers in the present case. The next section requires details of the house in which the equipment is to be installed, including any relevant mortgage details. Finally, the form on its face contains a section “For office use only” in which the finance company would enter the details needed to be fed into their computer. At the bottom is a space designated “signature of witness.” At the head of the reverse side of the forms is a request signed by the proposer and addressed to the finance company requesting the loan “for the purpose described below” and certifying the truth of the particulars given. Beneath this request is a section in which the purpose for which the loan is required is stated. There then follow details of the cash price of the equipment and the amount of the initial payment, the amount of the advance, the interest charged and the total sum due and the number of the monthly instalments by which the loan is to be paid and the amount repayable on each instalment. Finally, there are blank forms for direct debit authority and promissory note. 15. The trial judge directed an acquittal. The Attorney-General referred a point of law for the opinion of the Court in the following terms: Whether a person who dishonestly falsifies a personal loan proposal form in material particulars which he sends thereafter to a Finance Company, and which they use in their accounting process, falsifies a document “required for an accounting purpose” contrary to section 17 (1) (a) of the Theft Act 1968 . 16. The trial judge had based his decision to direct an acquittal on the basis: (1) that the document was not required for an accounting purpose until after it had been received and considered by the finance company and after the decision had been reached to grant a loan; and (2) that there was no duty to account until after this decision had been made. 17. The Court rejected both reasons saying: As to the second ground, it does not seem to us that the moment at which any duty to account arose had any relevance to the question of whether the document was or was not required for an accounting purpose. As to the first ground, it is to be observed that section 17 (1) (a) in using the words “made or required” indicates that there is a distinction to be drawn between a document made specifically for the purpose of accounting and one made for some other purpose but which is required for an accounting purpose. Thus it is apparent that a document may fall within the ambit of the section if it is made for some purpose other than an accounting purpose but is required for an accounting purpose as a subsidiary consideration. In the present circumstances the borrower would be making the document for the purpose of his loan proposal to be considered, whereas, at the same time, the document might be “required” by the finance company for an accounting purpose. Can it be said that the document is so required when the proposal may upon consideration by the company be rejected? We think it can. 18. The Court went on to say that: The purpose, or at any rate one of the purposes, of the figures on the reverse side of the form was in due course to provide the necessary information for the computer. It was, as we have seen, on the reverse side of the form that were set out details of the cash price of the equipment and the amount of the initial payment, the amount of the advance, the interest charged and the total sum due and the number of the monthly instalments by which the loan is to be paid and the amount repayable on each instalment. It was this information which, on the evidence, was used by the company to make up its computerised accounts. 19. It was also submitted on behalf of the accused that ... that the part of the form which was falsified (that is the obverse side) was not in any way required for an accounting purpose. It was only the reverse side which was material for accounting, and consequently no offence was committed. We do not think that the words of the section permit of that interpretation. This was one entire document; it was as to part required for an accounting purpose; it was as to part falsified. The fact that these two parts were not the same does not exonerate the man who was responsible for the falsification. Indeed, the reverse side containing the figures also carries the borrower's signature and declaration. 20. The Court concluded its judgment in this way: It follows from what we have said that much will turn in a case of this sort upon the precise nature and content of the proposal form in question. In giving the answer “Yes” to the question posed in the Attorney-General's reference, we add the proviso that the answer might well be different were the form which has been falsified to be materially different from that which we are considering here. 21. The mortgage application forms with which we are concerned in this case did not include the kind of detail about repayments which we have described above in paragraph 17. 22. We turn to the earlier case of Mallett (1978) 67 Cr. App. R. 239. The appellant was charged with false accounting in a count which alleged that he and his co-defendant: ... dishonestly and with a view to gain for themselves in furnishing information to Lloyds and Scottish Finance Limited, produced a document required for an accounting purpose, namely a Hire Purchase Agreement which to their knowledge was misleading or false in a material particular in that it purported to show that Adrian Miller had been a Company Director ... for eight years. 23. The Court said: The material particular in question does not have to be one which is directly connected with the accounting purpose of the document. The document itself has to be made or required for an accounting purpose. But once the document qualifies in that relevant respect— and it has not been argued that this hire-purchase agreement was not such a document —then if that document contains a false statement in a material particular the person who is guilty of dishonestly furnishing that information for any purpose is, in our view, guilty of an offence against the section. In short, the purpose for which the information is furnished is not limited to an accounting purpose; the document itself has to be made or required for an accounting purpose but once that is satisfied then any statement that is false in a material particular is sufficient to justify a conviction once the other requirements of the section are also satisfied. (Emphasis added) In the light of the emphasised words Mallett is only of limited value as Potter LJ made clear in Okanta Court of Appeal Criminal Division, 20 December 1996, No: 9600161/W4; [1994] Crim. L.R. 451. 24. Okanta was one of a number of cases following the decision of the House of Lords in Preddy [1996] AC 895 (the effect of which was to place severe limitations on the use of the offence of obtaining property by deception in cases where funds were transferred as a result of a deception) in which the Court of Appeal Criminal Division considered whether it should substitute for a conviction for obtaining property by deception, a conviction for another offence. The facts in Okanta were, as set out by Potter LJ in the judgment: ... the appellant worked as a self-employed accountant. One of his clients was J. & D., the Managing Director of which was a man called Hodgetts, Miss Willetts being another employee. In September 1990 Hodgetts attempted to assist Elizabeth Willetts, with whom he was having an affair, to secure a mortgage with the [Building] Society. Miss Willetts, whose salary for the year beginning March 1990 was in reality £8,500, falsely stated on her application form that it was £21,750. Hodgetts confirmed this in writing on 3rd September 1990 but was unable thereafter to furnish the Society with a P60 form to show what her earnings had been in the previous year. The appellant became involved when, acting in his professional capacity at Hodgetts' request, he faxed a letter to the Society on 26th September 1990 which contained a representation to the effect set out above. Acting on that representation, on 4th October 1990 the Society released the sum of £56,955 to the solicitors acting on behalf of Elizabeth Willetts. 25. The only relevant evidence from the Building Society was that the Society would not have granted the mortgage had they known about the lie about her income. The Court refused to substitute a conviction for false accounting for a conviction for obtaining property by deception. ... we would be inclined to assume (in the absence of evidence on the topic) that, whereas a Building Society relies upon a “reference” or confirmatory letter of the kind signed by the appellant for the purpose of deciding whether to make a loan (which we do not think amounts in itself to an accounting purpose), the calculation of the instalments for repayment or the rates of interest to be charged are based simply on customary or “tariff” rates of the Society which have regard to the particular period and type of advance made. 26. Mr Cranston-Morris relies upon a short passage from the judgment of Lord Bingham CJ in Graham and others (1997) 1 Cr. App. R. 302 , the leading case in the Court of Appeal Criminal Division dealing with substitution following Preddy . The facts in Graham were very similar to the facts in the instant appeal. He points to the fact that Lord Bingham said that an offence of furnishing false information might have been charged on the facts of the case. But the Court in Graham went on to say: As to substitution of verdicts of guilty of furnishing false information, looking at the indictment in this case, we do not consider that the first requirement of Section 3 (that the jury could on the indictment have found the appellant guilty of furnishing false information) is satisfied. The allegation in the particular counts did not expressly or impliedly include an allegation of producing or making use of any record or document made or required for any accounting purpose. A count charging obtaining property by deception does not ordinarily involve such an allegation. Further, for completeness, we note that the second requirement of Section 3 (that the jury must have been satisfied of facts which proved the appellant guilty of furnishing false information) is not satisfied either. Although the verdicts of the jury necessarily embraced findings of dishonesty, the jury were not directed as to all the ingredients of furnishing false information. 27. He also relies on Hawkins [1997] 1 Cr. App. R. 234 another decision of this Court presided over by Lord Bingham. The facts are very similar to the facts of the instant appeal. The applicant had pleaded guilty to count 15 which charged him under section 17 (1) (b) with furnishing false information to a Building Society for a mortgage and another similar count (count 5). The false information alleged in count 15 consisted of a letter from a non-existent firm that certain work had been completed on the house the subject matter of the application, when it had not been. On the application for leave to appeal on the ground that there was a formal defect in the two counts, namely an omission to state that the document was required for an accounting purpose, Lord Bingham, rejecting the application, said that there was no suggestion that the letter was not a document required for an accounting purpose. 28. Both Hawkins and Graham , show, it can be said, that Lord Bingham had no “instinctive difficulty” in concluding that mortgage application forms are documents which can properly be described as being required by the lender for an accounting purpose in the absence of evidence as to the use made of them. 29. We turn to Cummings-John , Court of Appeal Criminal Division 28th February, 1997, [1997] EWCA Crim 594 the transcript of which (as Mr Krolick discovered) is available on BAILII. The solicitor appellant had submitted a Report on Title to a building society in connection with a client’s application for a re-mortgage and in count 7 was charged with false accounting in respect of the Report. The Report on Title omitted the fact that the property was subject to three charges, making the Report “defective” as the Court held. It was submitted in the Court of Appeal (albeit not at trial) that there was no evidence that the Report on Title was a document required for an accounting purpose. The Court rejected this argument saying: The submission in the present case is complicated by the fact that, as recorded in the passage from the summing-up already read, it was not suggested at the trial that this was not an accounting document within section 17 . There was evidence from a representative of the building society, Mr Fairclough, which was to the effect that the document was one which was required to "trigger payment" by the building society. Therefore, Mr Narayan [for the appellant] submits, bearing in mind the warning in Okanta's case that the evidence should be directed to the precise issue whether the document was required for an accounting purpose or not, this Court should set aside the conviction in the present case in the absence of any such evidence. He would add, if necessary, that evidence that the document triggered payment does not necessarily mean that the document was required for an accounting purpose also. We say that this is a complicating factor because it seems to us that this is not solely a question of law; it is a mixed question of law and fact which lies at the heart of Mr Narayan's submission. He says that the necessary evidence was not produced before the jury. Why was it not produced? The answer is that there was no issue taken. No doubt if issue had been taken on that issue of fact, then the evidence would have been expanded to deal with it accordingly. In those circumstances it seems to us singularly unmeritorious to suggest that the conviction on count 7 should be set aside on this ground. We can, however, go further and say that in the circumstances of this case it again seems wholly unreal to suggest that a document of this nature, having regard to the evidence as to the role which it played in a transaction of this sort, was not required for an accounting purpose. It is enough for us to say that we are entirely satisfied that the conviction on count 7 was safe, notwithstanding this suggested legal objection to it. 30. The next case is one upon which Mr Cranston-Morris places much reliance, Osinuga v Director of Public Prosecutions Divisional Court 21 October 1997 . [1997] EWHC Admin 902 (available on BAILII) cited with approval in Lancaster [2010] EWCA Crim 370 ; [2010] 2 Cr App R 7 . The appellant had been convicted in a Magistrates Court of dishonestly and with a view to gain for himself produced a housing benefit claim form, a document required for an accounting purpose, which to his knowledge was misleading, false or deceptive in a material particular, namely that his employment and income details were false contrary to s 17(1)(b) of the Theft Act 1968 . One of the issues on appeal was whether the form was, in the absence of any direct evidence, required for an accounting purpose. 31. In the words of Kennedy LJ, with whom Smith J agreed,: 4. The position here was that the housing benefit claim form submitted by the applicant was in a fairly familiar form. It was exhibited to the court and has been exhibited to us. It is a document covering several pages, and on that document the applicant is required to give a variety of types of information: his name, his address, his date of birth, and (on page 3 of the document) his employers, the amount of money which he earns gross each week, his net pay after deductions, whether or not he has any other forms of employment (to which the appellant's answer was "No", and it is not an issue but that that was a falsehood), and also the name of the person who is the owner of the property where he lives and the amount which he pays by way of total rent each week. He then signs the form, subject to a warning that if he gives false information he may be prosecuted. 32. Mr Fidler for the appellant advanced the proposition that the information in the housing benefit claim form was only required to enable the local authority to adjudicate and to determine whether or not the applicant was entitled to housing benefit but not to calculate what benefit he is entitled to. Kennedy LJ disagreed: In reality, the evidence before the justices, as is clear from that part of the case which I have already referred to, showed that so far as this claim form was concerned it was serving a dual purpose. In the first place, certainly the local authority had to decide whether or not the applicant was entitled to any housing benefit. But if it came to the conclusion that he was entitled to housing benefit, then (and I quote again from paragraph 7 of the Case Stated): "... to calculate whether a person is entitled to Housing Benefit, income must be compared to outgoings.." That is something which was done, it would seem, by reference to the form which was submitted, there being no other source of information. 33. Kennedy LJ concluded, after examining various authorities: 14. ... I for my part find it quite impossible to see how it can be said that the application form is not itself a document required for an accounting purpose. 34. Kennedy LJ appears to have concluded that the form was required for an accounting purpose because some of the information on the form was used to calculate whether the appellant was entitled to Housing Benefit. He did not say, as he might have done, that the form was required for an accounting purpose because (if successful) it would lead to the payment of the benefit and thus to the opening of an account to show what has been paid and when. 35. We turn to Manning [1998] 2 Cr. App. R. 461. Manning ran a maritime insurance business called Scott Lee Insurance. He was instructed by a Greek company, Concorde Marine, in which a Captain Tingas was the active force, to place insurance for one of the company's vessels. The prosecution case was that Manning placed insufficient cover, through a broker, and falsely stated to Tingas that certain respectable companies had accepted the full risk. Counts 1–3 charged false accounting in respect of the cover notes which contained this false information and which were given to Tingas. Buxton LJ, giving the judgment of the Court, said: The sole issue before us was whether it had been sufficiently established before the jury, in terms on which the jury could act, that the cover notes were required for an accounting purpose. It is well accepted that such purpose can be merely an incidental, and not necessarily the principal, purpose of the document: Attorney-General's Reference (No. 1 of 1980) ... 36. He continued: No evidence was called by the Crown to explain the actual use made of such cover notes by the persons to whom they were sent; nor was such evidence sought to be elicited from Mr Manning in cross-examination. In his summing-up the judge, after properly directing them that the present question was one of fact, for them to decide, carefully took the jury through the cover notes that had been exhibited, and indicated the elements in them from which they could conclude, if so minded, that they were indeed required for an accounting purpose. The cover notes set out the insured and the insurer, the period and the interest covered. They also, however, state the rate to be paid and the dates at which premiums have to be paid: “within 45 days of due dates as per Debit Notes”. We have no doubt that the cover notes would play a role in the accounting process of Scott Lee's clients: the question is whether the jury were entitled on the material before them to come to that conclusion. A similar problem has been considered in two recent unreported cases in this Court, Okanta (December 20, 1996) and Sundhers (January 23, 1998). We were particularly pressed with the latter case, since it involved an issue close to that before us. In Sundhers the dishonest document was a claim form under an insurance policy. The judge told the jury, as is the case, that such a form would on occasion be looked at by the auditors of the insurance company. There was, however, no evidence to that effect; and this court held that merely by looking at the claim form the jury could not be expected, by drawing on their general experience and knowledge of the world, to reach that conclusion for themselves. The cover note is a different sort of document from a claim form. As we have said, it clearly sets out what the client has to pay and how he has to pay it. Although we have not found this issue an easy one, and regard it as being close to the borderline, we think on balance that it would be open in this case to a reasonable juror to conclude, simply by looking at the document, that it was required for an accounting purpose, in that it sets out what the client owes. It differs from the claim form in Sundhers, from which any such conclusion could not be drawn without knowledge of audit practice: which the jury cannot be assumed to possess without evidence to that effect. We therefore reject this ground of appeal. We are bound to say, however, that such arguments can be avoided, and the use of court-time that they generate can be saved, by prosecutors calling evidence, of brief and probably unchallenged nature, as to how documents on which they rely under section 17(1)(a) are in fact used; and we hope that this prudent step will be taken in future cases of this type. 37. We have already looked at Okanta . 38. Sundhers , 23rd January 1998 No: 97/2435/Y2 (available on BAILII) , to which Buxton LJ refers in this passage, was a decision of the Court of Appeal Criminal Division also presided over by him. The appellant had allegedly taken out home insurance policies with three separate insurance companies and had submitted claim forms to each of those companies in respect of the same damage. The forms stated that he had not made a claim of a similar nature within the last five years and that he did not have other insurances for the items claimed: when in fact he already had insurance policies on which he had made claims in 1991, 1992 and 1994. At the end of the prosecution case the defence had unsuccessfully submitted that the claim forms upon which the prosecution relied had not been shown by the prosecution to be made or required for an accounting purpose. The Court held that the judge was wrong to have rejected the submission. Buxton LJ said: The learned Recorder ruled on that matter as follows, in his ruling at page 2F: "...it seems to me that the evidence that is before the jury, namely that claim forms were completed making claims in respect of certain amounts of money in relation to damaged good or other items of loss, and that those claims forms were at least part of the basis upon which the insurance companies decided whether to make payment and how much, of itself constitutes evidence to go before the jury and from which the jury could, if it is so minded, properly infer that the documents were required at least in part for an accounting purpose, and so for those reasons I am not able to withdraw these counts from the jury." It would seem that in making that ruling the Recorder considered at least at that stage of the trial, that the "accounting purpose" was a decision whether to make a payment in response to the claim forms. He did not have, because he could not have had, the benefit, of the unreported case in this court of R v Okanta decided on 20th December 1996. 39. Buxton LJ set out the facts of Okanta and the passage from the judgment which we have already set out above (paragraph 25). Buxton LJ continued: We cite that passage for two reasons. First, because the court drew attention to a need for evidence upon which the jury can act; and secondly, the court took the view that a decision whether to make a loan, which appears to be the matter to which the Recorder was referring in his ruling in our case, did not in itself amount to an accounting purpose. 40. Buxton LJ continued: That, however, is not the end of the matter because the Recorder necessarily had to return to this matter when he directed the jury. He properly directed them that it was a question for them, as a question of fact, whether the claim forms were required for an accounting purpose. He first of all said, as would no doubt be obvious, that from the policy holders' point of view they were the vehicle for claiming the amount allegedly owed under the policy. Then the Recorder said this at page 7D: "From the insurer's point of view who is in receipt of it, it is obviously evidence of a claim made on it by a policy holder. It would be the justification for beginning some kind of investigation of the incident alleged to have taken place, and ultimately it would be part of the history justifying the payment of the policy holder's loss entitlement. It forms part of the basis of the assessment of his loss." So far the Recorder had referred, as it seems to us, solely to the matters that he referred to in his ruling. He then went on, however: "And if auditors or accountants or others need some evidence or to look at some records of why payments had been made out, why debits had been made in an insurer's accounts, made out, paid out to policy holders, the claim form would be perhaps quite an important part of the history showing why those payments had been made out. It starts the ball rolling, does it not, which culminates in a payment if the claim is justified... I believe they all record the amounts claimed by the policy holder, sums of money, I think all four do." In his concise and very helpful submissions Mr Rickarby for the prosecution draws the court's attention to that passage. He says that the claim forms of themselves were evidence from which the jury could conclude that they were required for an accounting purpose. He draws attention to section 221 of the Companies Act, which requires a company to keep accounting records, and requires in particular a record of all monies expended by the company and the matters in respect of which that expenditure takes place. He conceded, however, and in our judgement rightly, that the claim forms were not themselves part, or could not be assumed themselves to be part, of those records as stipulated by the Companies Act. They were however material upon which those records would be based, and material that the auditors or accountants might well wish to scrutinise as and when they checked the accuracy of those accounts. For those reasons he said it could be assumed, and it was right to leave to the jury, the question of whether or not those claim forms were required for that accounting purpose, that is to say required for the purpose of making up the books of the company. That is a purpose quite different from deciding whether to make the loan in the first place, and therefore does not fall under the view of this court in the case of Okanta that deciding whether to make a loan is not in itself an accounting purpose. That was a sensible and robust submission which in common sense terms has a great deal to commend it. It also, in our judgement, represents what we believe - again without evidence but on the basis of experience - is in fact the case. It would be, it seems to us, almost certain that such records would be retained, one of the reasons for retaining them being to enable the books to be properly audited. The difficulty however is this. The question that the jury had to answer was, as is conceded, a question of fact, otherwise it would not be going to the jury at all. There was no actual evidence before the jury to demonstrate to them that that is what in fact is done with claim forms. We have to say that that is a matter that was put before them by the learned Recorder, and perhaps in one way understandably so. But it was not a matter that was based upon evidence, either evidence given by the representatives of the company concerned, who said no more than that the claim forms would be retained without stating for what purpose, nor of course was it the subject of any form of expert evidence. That means, therefore, that if the jury were to form a conclusion simply on the face of the claim form and of its nature, they could only form such a conclusion without specific evidence by drawing, as a jury often has to, on its general knowledge and experience of the world. That is something that juries can usefully do when they are dealing with matters that do fall and can be assumed to fall within the general experience of the members of the jury. But we regret to say that that assumption cannot be made in respect of a matter such as accounting practice. It no doubt seems self-evident to lawyers, and possibly to most of the people sitting in this court, but for this approach to be justified we would have to be satisfied, and simply as a matter of common sense we feel we cannot be satisfied, that this was a matter, this matter of accounting practice, that the jury could draw on from their own knowledge and experience rather than by dint of evidence. In our judgement therefore there was not evidence before the jury from which they could properly conclude that these documents were required for an accounting purpose, nor could they draw that conclusion from such evidence as they did have, that is to say the nature and form of the claim forms. We well understand the difficulty that this point caused below, and certainly would not seek to criticise the learned Recorder for the approach he took, but we have to say that with the benefit of the further reflection and the benefit of the submissions that we have received both orally and in writing we cannot agree that he took the right approach. 41. The decision in Sudhers was central to the (reluctant) decision of the trial judge in the instant appeal to direct an acquittal and is relied upon by counsel for the respondents. 42. The next case which we need to consider is R. (on the application of David Baxter) v. Governor of Brixton Prison, [2002] EWHC 300 (Admin) , an extradition case. Auld J gave the judgment of the Divisional Court with which Gage J agreed. 43. Auld J said; 17. Charge 4 concerns the alleged furnishing by Mr. Baxter on 14th November 1998 of misleading information giving rise to his investment, the subject of charge 3, made three days later. In summary, the charge is one of furnishing false information by providing a misleading document, namely the Certificate of Divisible Interest which referred to Zenith Insurance Limited as having issued a Letter of Credit for US$100 million. The appropriate offence in this country is provided by section 17(1)(b) of the Theft Act 1968 , of furnishing misleading information in a document “made or required for any accounting purpose”. 44. It was submitted that the document was not one made or required for an accounting purpose. Rejecting this argument Auld J said, in so far as relevant to the issues in this appeal: 21. There is no statutory definition of the term “document made or required for any accounting purpose”; nor, as Mr. Hardy submits, do the authorities indicate any exhaustive or all-purpose restrictive interpretation of it. It is not a technical term and should clearly be given its ordinary and natural meaning, according to the nature and contents of the document, the circumstances giving rise to its creation and/or the potential purpose for which it may be required. 22... 23. It follows, in my view, that a misleading document created by a fraudster, setting out the terms of an investment he is soliciting from private individuals, or which purports to record for their benefit the nature and status of the investment made by them, is capable of being a document required by them for potential use as an accounting document. I say “potential use” because it is not necessary for the prosecution to prove actual use by the maker or the recipient of the document as an accounting document. For an individual who receives it, say, in his personal capacity as a potential or established investor or lender, it may, as Mr. Hardy puts it, be the sort of document he might wish to put in his wall safe rather than the wastepaper basket. 24. There is therefore no basis, on the words themselves, for restricting accounting documents for this purpose to those having a forensic accounting purpose, as Mr. Knowles suggests; i.e. to those that an accountant or an auditor would require when investigating the matter. The matter is put beyond doubt by the words in section 17(1)(b) “for any purpose”, so as to make it an offence for a person to furnish another for any purpose with such a false accounting document. 25. In the end, the question whether a document is made or required for an accounting purpose is a mixed question of law and fact and will be significantly coloured by the surrounding circumstances. Nor is it always necessary for there to be direct evidence of a document's purpose in false accounting cases. It depends on the nature of the document and on the circumstances, as the Court of Appeal said in R. v. Manning [1999] Q.B. 980 at 986. ... 26. ... It is plain from the application package, of which the certificate formed part, and the circumstances in which it was sent, that it was a document of potential accounting importance to Mr. and Mrs. Orlosky, whether or not, as trustees, they proceeded with the transaction. Putting the matter at its lowest, I am satisfied that the available evidence is sufficient for a jury to conclude that it was made or required for an accounting purpose. 45. It is understandable why, having briefly discussed a number of these cases, the editors of Smith’s Law of Theft 9 th Edition say (para. 4.11): “Unfortunately, the Courts have failed to adopt a consistent approach.” 46. Mr Cranston-Morris submits that there is a simple solution to the issues raised in these cases. An application made by a person for a mortgage is a document required for an accounting purpose because, if successful, it will lead to the lender providing funds and thus the opening of a mortgage account in favour of the applicant in the books of the lender. That account will inevitably include the name and address of the applicant as set out on the form (whether truthfully or not) and any bank details supplied by the applicant. It will be inevitable (so the jury could find) that the account forms part of the accounting records of the lender. No direct evidence is required to prove that. 47. Counsel for the respondents submit, in effect, that, if this is right, then many of the cases which we have discussed would have led to a different result or to different and simpler reasons for those that were given. They refer to the A-Gs Reference (No 1 of 1980) (different reasons), Okanta (different result), Osinuga (different reasons) and Sundhers (different result) . 48. It is very difficult if not impossible to reconcile all the cases on the point. We see much force in the submission made by Mr Cranston-Morris. Support for it can be found in the decisions of Mallett , Graham , Hawkins and Cummings-John albeit that it all cases it was assumed without argument that documents such as applications for a loan or a mortgage can properly be treated as documents required for an accounting purpose without further evidence. Nothing to be found in the judgment in the A-G’s Reference is inconsistent with the submission. Applications for a mortgage or loan to commercial institutions will, if successful, lead to the opening of an account which will show as credits in favour of the borrower funds received from the borrower and as debits funds paid out by the lender to, or on behalf, of the borrower. 49. In our view and without any further direct evidence of the accounting practices of the lender, a jury is entitled to come to the conclusion that an application for a mortgage or a loan made to a commercial institution is a document required for an accounting purpose. We should add that it is important not to overlook the requirement of materiality: see Lancaster , above para. 30. 50. In these circumstances the appeal is allowed and we set aside the ruling made by HHJ Carr finding that there was no case to answer in the absence of direct evidence of the accounting practices of the mortgage company. 51. We add this. The judge in his ruling was critical of the manner in which counsel for the respondents had conducted the case in so far as the issue which we have been considering is concerned. We have not considered whether that criticism was justified or not.

2010_10_13-2523.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/2233/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/2233

3e7a911776e63894c60706a1b858d0b84b9f5ed427631bd147857bedf57cd243

[2015] EWCA Crim 502

EWCA_Crim_502

2015-03-03

crown_court

Neutral Citation Number: [2015] EWCA Crim 502 Case No: 2014/3684/C5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: ,Tuesday, 3 March 2015 B e f o r e : LORD JUSTICE BURNETT MR JUSTICE GILBART HIS HONOUR JUDGE GRIFFITH-JONES Sitting as a Judge of the CACD - - - - - - - - - - - - - - - - - - - - - R E G I N A v VICTOR VERDOL - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A

Neutral Citation Number: [2015] EWCA Crim 502 Case No: 2014/3684/C5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: ,Tuesday, 3 March 2015 B e f o r e : LORD JUSTICE BURNETT MR JUSTICE GILBART HIS HONOUR JUDGE GRIFFITH-JONES Sitting as a Judge of the CACD - - - - - - - - - - - - - - - - - - - - - R E G I N A v VICTOR VERDOL - - - - - - - - - - - - - - - - - - - - - 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 Milne and Mr D Lister appeared on behalf of the Applicant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE BURNETT: The applicant was prosecuted for offences of rape and child cruelty on an 18 count indictment relating to five children aged between two and 16 at the date of his four week trial in the summer of 2014. On 3rd and 4th July 2014 before His Honour Judge Katz QC at Woolwich Crown Court, the applicant was convicted on two counts of rape, relating to two of those children, and seven counts of child cruelty relating to four, including one of those he was convicted of raping. He was acquitted of cruelty charges relating to the youngest of the children and the jury were unable to agree on seven additional counts of rape. The applicant has since been retried on those seven counts and a further four counts of rape. Mr Milne has confirmed this morning that he was convicted on all those counts. 2. This is the applicant's renewed application for leave to appeal against conviction following refusal by the single judge. The provisions of the Sexual Offences (Amendment) Act 1992 apply to the rape counts to the effect that no matter relating to the complainants identified in counts 1 to 12 on the indictment shall during their 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 there identified. Furthermore, the provisions of section 39 of the Children and Young Persons Act 1933 are engaged in this case because all the victims were under 18 years old. An order under section 39 was made in the Crown Court. At the outset of this appeal we indicated that we were making a similar order. Its terms are as follows: "Pursuant to section 39 of the Children and Young Persons Act 1933 it is ordered that no news report or publication relating to these proceedings shall (a) reveal the name, address or school of any child or young person concerned in the proceedings as a complainant or witness, or (b) reproduce any picture of such a person, or (c) reveal any information calculated to lead to their identification." 3. It will not in fact be necessary to name the children in the course of this judgment. The grounds of appeal are such that it will also be unnecessary to rehearse the facts in great detail. We shall identify the children as A, B, C and D. As we shall discover, the grounds that are raised in support of this application relate to children A and D. 4. The applicant hails from a Caribbean country where he had lived with his extended family. We understand that he was a relatively well-known person in the community of that country. He also lived for some time in the United States. He travelled to Europe living at some point in Germany and thence to the United Kingdom. He arranged for a number of children to follow him from the Caribbean using false documents. 5. In short the prosecution case was that the applicant was a brutal and manipulative tyrant who had trafficked four girls to the United Kingdom and then systematically abused them and used them to satisfy his sexual desires. A was the oldest of the children referred to in the indictment. She was 16 at the time of trial. The applicant wished to cross-examine her about some events which had occurred in the Caribbean. We take the facts of the nature of the material that it was suggested should be put to her from a document filed on behalf of the applicant in the Crown Court. In quoting from it we have anonymised the child and removed some material that might lead to her identification: "In [the Caribbean] in 2006 [A] was on her way to school when she and another six or so children were kidnapped. She was held ransom for about five/six days to a week. The defendant was contacted by her mother who said that they needed to pay the ransom as the kidnappers had stated that they were sexually abusing the children and that if no ransom was paid the children would be killed. The defendant flew from Miami and paid $10,000 ransom money. The police were not informed. Straight after [A] was returned to the defendant and her mother she told them that she had been [sexually assaulted]. The defendant was suspicious. He did not believe [A's] account and so he hired a private detective. The private detective confirmed that none of the other children were saying that they had been sexually abused and that nothing had happened. It is the defendant's belief that [A's] mother made the whole kidnap up, to get money off the defendant and his family and that [A] went along with the deception." 6. A was only eight years old at the time. The application was made to enable the applicant to put to the child A that she had been party to a staged kidnapping in the Caribbean. There is some ambiguity in the use of the language of “staging”, because that might suggest that something that looked like a kidnapping had occurred. Mr Milne this morning accepted that it would be difficult to support a contention that an eight-year-old child's behaviour in going along with a plan hatched by her parent could really be described as reprehensible. If that were right, Mr Milne submitted the application need not have been made. He might have sought to cross-examine the child on the basis that she had previously gone along with false allegations, albeit of an entirely different nature, and had again done so in the course of these criminal proceedings. 7. Be that as it may, it was also suggested that it would be appropriate to put to this child that she had falsely claimed that she had been sexually assaulted. In fact the applicant himself was unable to say, even in giving instructions, whether it was the child's mother or the child who had suggested that there had been sexual assault. 8. The judge rejected the application. 9. There was no intention on the part of the applicant to call A's mother. That of course was not surprising. It would have been very unreal to suppose that it might have happened. Additionally, there was no intention to call the private detective whose brief account is set out in the quotation, nor to produce any primary material from the detective. That brief account is on any view ambiguous. It is not clear whether what is being suggested is that the other six children had been party to a staged kidnapping during which no sexual assault happened or whether no staged kidnapping happened at all. It is also unclear where statements of fact, albeit attributed to the other children, merge into the opinion of the private investigator. 10. In our judgment these instructions simply do not provide a sufficient evidential foundation upon which A could properly have been cross-examined on the subject. The evidence of anything untoward, unclear as it is, comes from a private detective. As we have noted there was not even a report from him, nor was there any basis upon which an application to adduce hearsay evidence could have been made. We emphasise that none was in fact planned. The applicant's subjective belief referred to in the quotation carries the matter no further. 11. Furthermore, this was advanced as an application to adduce bad character evidence against a child aged eight when it is alleged she went along with her mother in faking a kidnap to extract money from the applicant and in doing so made an allegation of sexual assault, that allegation it is said being false. As such it engaged the non defendant bad character provisions found in section 100 of the Criminal Justice Act 2003. The judge gave a detailed ruling explaining why he did not consider that it was appropriate to allow this cross-examination. Mr Milne took us to aspects of the ruling and advanced some criticism as to its detail. Nonetheless, the overall conclusion of the judge was that the statutory hurdles were simply not surmounted in this case. In our judgment that conclusion was correct. 12. The applicant also wished to put to A that D had made a complaint of sexual assault against A which was untrue. We have indicated that at the time of trial A was 16. D was eight. The purpose of seeking to introduce this material was to enable Mr Milne on behalf of the applicant in due course to submit to the jury that one or other must have lied about the matter. The evidence for this complaint was found in papers relating to Family Court proceedings. D is recorded as having made the allegation, A as having denied it. Both could not be right. We explored in the course of argument precisely how this course of questioning might proceed. It appeared that what was planned was no more than this. It would be put to A that D had made the allegation, in the expectation that A would agree that the allegation was made. It would be put in a single question to A what the nature of the allegation was. Again it was expected that A would agree. A would then be asked whether it was true. If she denied it then Mr Milne would seek to suggest that D must be lying. If she admitted it then he would suggest that she had previously lied. Plainly, in the event that the question were to be put in a way that positively suggested to A that she had sexually assaulted D, then all the difficulties that section 41 of the Youth Justice and Criminal Evdience Act 1999 engages in cases of this nature would have to be overcome. It would be a question asking about A’s sexual behaviour. 13. The source of the information was a social worker's statement. It was in the unused material for the purposes of this trial. The application was made after D had given her evidence. It was made explicitly on the basis that D should not be recalled. Indeed on behalf of the applicant it was submitted to the judge that it would be "wholly inappropriate" to investigate the matter at all beyond the few questions to A to which we have referred. No attempt had been made to seek leave to ask D any questions about it or otherwise to establish any evidential foundation for the questions at all. Mr Milne submitted this morning that the reality would have been that if leave had been given by the judge to pursue this line of questioning the prosecution would have been expected to make an admission as to the content of the social worker's report. There was no suggestion that any direct evidence should be adduced. 14. We note that there was no allegation on the indictment that D had been sexually abused by the applicant. The counts relating to her were limited to cruelty. 15. The judge ruled against the application on the basis that it was wrong to allow the matter to be put when all agreed that the jury would not have material before them to resolve any of the issues that arose. The jury would be invited to reach a conclusion not having heard from D at all and on the sketchiest of material. He also considered that the suggestion that A had sexually assaulted D amounted to an attempt to introduce bad character evidence either against D or A or both. He concluded that in that event it would not be right to allow it to be admitted because the necessary criteria for the purposes of the Criminal Justice Act 2003 were not satisfied. In particular, it did not have substantial probative value in relation to the credit of D. We agree that the judge was right to exclude that evidence for both the reasons he gave. 16. The final ground advanced this morning concerns evidence of the applicant's bad character which the judge allowed the prosecution to adduce. The circumstances were unusual. We have noted that the applicant accepted that he had flouted immigration law to get the children into the United Kingdom. In his evidence the applicant contended before the jury that, save in respect of immigration matters, he was of good character and that he was a God-fearing and law-abiding man. 17. For the first time in the course of his evidence he raised an alibi in respect of one of the rapes. No notice had been given, as it should have been. Understandably, the prosecution wished to investigate the alibi. The judge allowed a short break for the prosecution to do so. 18. The applicant suggested that his two mobile telephones would contain exchanges of various sorts which support the alibi. As it turns, out we understand that the phones did not do so. However, in his enthusiasm to establish the alibi, the applicant overlooked the fact that his phones contained a great deal of evidence to suggest that they had been used by someone dealing class A drugs. Having discovered that, the prosecution sought leave to introduce the evidence. The judge allowed it in for two reasons. First, to ensure that the jury was not misled (section 101(1)(f) of the 2003 Act) and secondly because the applicant had throughout impugned the character of the children complainants (section 101(1)(g) of the 2003 Act). 19. It has not been suggested that those two statutory gateways were not open in this case. Plainly they were. Instead, it is submitted that it was unfair to admit the evidence. Mr Milne submits that having regard to both section 103(3) of the 2003 Act and section 78 of the Police and Criminal Evidence Act 1984 the judge should have excluded that evidence. In particular, Mr Milne reminds us that in the course of his submissions he drew to the judge's attention the danger of satellite litigation developing as a result of this evidence coming in. As it happens, submits Mr Milne, a disproportionate amount of time during cross-examination of the defendant was taken up in dealing with these matters. 20. Given that it is accepted that the statutory gateways were open, the question for us is whether the judge was wrong to exercise his discretion to allow this bad character evidence to be introduced and put to the applicant. We are entirely satisfied that in the circumstances in which the issues arose, not only was the judge entitled as a matter of discretion to allow the prosecution to adduce this evidence, but that he was obviously right to do so. Without the evidence the jury in this case could have been left with a wrong impression, and given the circumstances in which he impugned the character of the complainant children any other conclusion would have been a surprising one. It was for the judge to consider the satellite litigation point. It is clear that more time was taken in cross examination on this issue than had been expected at the time of the ruling. However, that does not impugn the ruling itself. 21. For these reasons, we are also unpersuaded that there is anything in the third ground. 22. Mr Milne, who has appeared today with Mr Lister, on behalf of the applicant, has pressed each of the grounds we have discussed. We are grateful for his oral submissions and also the detailed material he has provided in writing. Despite his best efforts, we are satisfied that this renewed application must be dismissed.

2015_03_03-3563.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2015/502/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2015/502

372be3c56dd348422db8d9db20e630aa40515d123a63ac9ef602dfe81a58ac9f

[2007] EWCA Crim 538

EWCA_Crim_538

2007-03-08

crown_court

Neutral Citation Number: [2007] EWCA Crim 538 Case Nos: 2006/4470/A1, 2006/3349A3, 2006/2539A8, 2006/3101A4, 2006/3625A6, 2006/4842 A5, R –v- S, 2006/4720/A4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 08/03/2007 Before : LORD JUSTICE LATHAM MR JUSTICE MITTING And MR JUSTICE TEARE - - - - - - - - - - - - - - - - - - - - - Between : R - and - MICHAEL EDWIN REYNOLDS ABDUL MUSISI LUBWAMA JOHN PAUL WEBB JAMES HONORE EDWARD SLANEY CRAIG MARK DOWNI

Neutral Citation Number: [2007] EWCA Crim 538 Case Nos: 2006/4470/A1, 2006/3349A3, 2006/2539A8, 2006/3101A4, 2006/3625A6, 2006/4842 A5, R –v- S, 2006/4720/A4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 08/03/2007 Before : LORD JUSTICE LATHAM MR JUSTICE MITTING And MR JUSTICE TEARE - - - - - - - - - - - - - - - - - - - - - Between : R - and - MICHAEL EDWIN REYNOLDS ABDUL MUSISI LUBWAMA JOHN PAUL WEBB JAMES HONORE EDWARD SLANEY CRAIG MARK DOWNING ‘S’ AMELIO THOMPSON - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - DAVID PERRY, QC appeared on behalf of the Crown in all Cases DAVID EVANS appeared on behalf of the Crown in REYNOLDS ALEXIS LEWIS appeared on behalf of the Crown WILLIAM CHAPMAN appeared on behalf of the Crown in WEBB, LUBWAMA & HONORE SIMON HEPTONSTALL appeared on behalf of the Applicants REYNOLDS & WEBB ANDREW THOMPSON appeared on behalf of the applicant SLANEY FRANCIS LAIRD appeared on behalf of the applicant DOWNING VANESSA MARSHALL appeared on behalf of the applicant ‘S’ GRAHAM BLOWER appeared on behalf of the applicant THOMPSON 7 Hearing dates : 8th December 2006 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Latham: 1. These eight cases have been listed together because they raise yet another facet of the difficulties sentencers face when seeking to apply the provisions of Chapter 5 Part 12 of the Criminal Justice Act 2003 (“ the 2003 Act ”) relating to dangerous offenders. The leitmotif is the problem presented to this court in the event that the sentencing judge is mistaken as to his powers under Chapter 5 of the 2003 Act , or otherwise misapplies its provisions. The most significant issue of principle with which we are concerned is the effect of section 11(3) of the Criminal Appeal Act 1968 (“ the 1968 Act ”) which sets out the powers of this court when dealing with appeals against sentence, and which restricts that power so that the court is precluded from making an order which will result in the appellant being dealt with more severely on appeal than he was in the Crown Court. They raise, in a different context, problems akin to those considered by this court in R –v- Norman et al [2006] EWCA Crim 1792 which concerned mistakes made by the sentencing court in crediting periods spent in custody and the appropriate mechanisms for correcting such mistakes. One of the appeals with which we are concerned, Reynolds, provides an opportunity to revisit the provisions of Section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 (“ the 2000 Act ”), the so called “slip-rule”, which this court has recently considered in R –v- Gordon et al [2007] EWCA Crim 165 . 2. The provisions of Chapter 5 of the 2003 Act have now being extensively reviewed and explained in R –v- Lang [2006] 2 Cr App R(S) 3 and R –v- Johnson [2006] EWCA Crim 2486 . They provide a mandatory sentencing framework for all offenders convicted of a “specified” offence committed on or after the 4 th April 2005, where the court is “of the opinion” ( sections 225 and 226 of the 2003 Act ) or “considers” ( sections 227 and 228 of the 2003 Act ) that the defendant poses a significant risk to members of the public of serious harm occasioned by the commission by him of further “specified” offences (the criteria of dangerousness: see section 229 of the 2003 Act ). “Specified” offences are violent offences or sexual offences specified in Schedule 15 to the 2003 Act . The substantial change to pre-existing sentencing regimes is that where the two conditions are met, namely the nature of the offence and the criteria of dangerousness, only two forms of sentence can be passed, either an indeterminate sentence, or an extended sentence. 3. For the purposes of determining which of those is appropriate, “specified” offences punishable in the case of a person aged 18 or over by imprisonment for life or imprisonment for a determinate period of 10 years or more, are “serious” offences. Where a person aged over 18 is convicted of a “serious” offence, and the criteria of dangerousness are met, the sentence must be an indeterminate sentence, either life imprisonment, or imprisonment for public protection ( section 225 of the 2003 Act ). If a person aged 18 or over is convicted of a “specified” offence other than a “serious” offence, and the criteria of dangerousness are met, then he must be sentenced to an extended sentence ( section 227 of the 2003 Act ). A person under 18 convicted of a “serious” offence who meets the criteria of dangerousness and would be liable to a sentence of detention for life under section 91 of the 2000 Act must be sentenced to detention for life otherwise the court has a choice between detention for public protection ( section 226(3) of the 2003 Act ) or an extended sentence ( section 228 of the 2003 Act ). If a person aged under 18 is convicted of a “specified” offence other than a “serious” offence, and the criteria of dangerousness are met the court must impose an extended sentence of detention ( section 228 of the 2003 Act ). 4. We have not thought it necessary to set out the statutory provisions in any further detail. The important point is that these provisions create a discrete code for the sentencing of what are described by the Chapter heading as “Dangerous Offenders”. Subject to the court’s assessment of whether or not the criteria of dangerousness are met, its provisions are mandatory. They replaced provisions in the 2000 Act relating to violent or sexual offenders which included longer than commensurate determinate custodial sentences, extended periods of supervision on licence, and the “automatic” life sentence for a second serious offence. As will be seen, one of the common mistakes exemplified by the present appeals and applications is the imposition of extended sentences, in particular in sexual offences, rather than an indeterminate sentence where the offence is a “serious” offence. As we have explained above, the court has no discretion in the case of a person over 18 if the offence is a serious offence. It has to be an indeterminate sentence. And the same applies to those under 18 if the offence is one which would render him liable to a sentence of detention for life. Otherwise, pursuant to section 226(3) the court’s discretion is limited to a choice between an indeterminate sentence and an extended sentence. 5. Before turning to the particular problems with which we have to deal in these cases, it seems to us that we should make some general comments about the difficulties facing sentencers in relation to these provisions. In doing so we are acutely conscious that we are merely reiterating what has been said before. Nonetheless it seems to us to be necessary to do so. Parliament, for good or ill, has imposed on the courts a sentencing regime with which the courts are required to comply where the offence is a “specified” offence committed on or after 4 th April 2005. That regime requires the court to carry out a careful step by step evaluation of the sentencing consequences of the type of offence, the age of the offender and the assessment of his dangerousness. What follows is a synopsis of the way in which that exercise should be carried out. (a) As far as the type of offence is concerned, the first question to ask is whether or not the offence is a “specified” offence, and the second is whether it is a “serious” offence. (b) If it is a “specified” offence, whether “serious” or not, the court must determine whether the defendant meets the criteria of dangerousness. In doing so the judge will be guided by the decisions of this court in Lang (supra), and Johnson (supra). (c) If the criteria of dangerousness are met and the defendant is aged 18 or over, (i) where the offence is a “serious” offence, he must be sentenced to an indeterminate sentence under section 225 of the 2003 Act , (ii) otherwise he must be sentenced to an extended sentence under section 227 of the 2003 Act . (d) If the criteria of dangerousness are met, and the offender is under 18: (i) If the offence is a “serious” offence and an offence to which he would be liable to a sentence of detention for life under section 91 of the 2000 Act , and it justifies (together with any associated offence) detention for life; he must be sentenced to detention for life; (ii) if the court considers in such a case that such a sentence is not justified, and, pursuant to section 226(3) of the 2003 Act , it considers that an extended sentence under section 228 of the 2003 Act would be inadequate to protect the public, it must impose detention for public protection; (iii) in any other case the defendant must be sentenced to an extended sentence under section 227 of the 2003 Act . (e) By virtue of sections 227 and 228 of the 2003 Act a court must impose an extended sentence on a defendant who meets the criteria of dangerousness if he has been convicted of a “specified” but not “serious” offence, even if he has been convicted at the same time of an offence carrying an indeterminate sentence, and has been sentenced accordingly. 6. The problems to which we referred in paragraph 1 are that sentencers, not surprisingly given the complexity of the legislation, are making mistakes as to their obligations under Chapter 5. As we have said, a common mistake is the failure to appreciate that a “specified” offence is a “serious” offence. As we have said, that is particularly so in sexual offences. It may well be that this is, in part, because courts had become familiar with imposing extended sentences under the 2000 Act , particularly in sexual offences. And extended sentences are often recommended in pre-sentence reports in cases where the ultimate conviction may well be of a “serious” offence. The fact that so many mistakes are still being made means that we must reinforce what this court has said time and time again, and the Lord Chief Justice has recently underlined in R –v- Cain [2006] EWCA Crim 3233 about the duty of both prosecuting and defence counsel to ensure that they are fully aware themselves of the potential impact of Chapter 5 of the 2003 Act on their case, are prepared to assist the judge in that respect, and are alert to any mistakes that the judge makes in passing sentence, so that any problem can be resolved before it is too late. We understand that the Attorney General is reconsidering his Guidelines on the Acceptance of Pleas and the Prosecution’s Role in the Sentencing Exercise originally issued in October 2005. We would welcome any reinforcement he considers appropriate. We would urge NOMS to do whatever it can to draw to the attention of those preparing pre-sentence reports that they must be careful about the distinction between offences which are merely “specified”, and those that are both “specified” and “serious” and the implications that has for sentencing. As far as judges themselves are concerned, we would recommend that they have the Statute itself available so that its provisions can be readily referred to. What happens if things go wrong? 7. Provided any mistake is identified quickly enough, the court can exercise its power under section 155(1) of the 2000 Act to vary the sentence within the period of 28 days beginning on the day on which the sentence or other order was imposed. There is no doubt that this power can be exercised to reduce or increase the sentence: see R –v- Hart (1983) 5 Cr App R (S) 25, Commissioners of Customs and Excise –v- Menocal [1980] AC 598 , and R –v- Hadley (1993) 16 Cr App R(S) 358. However, this court has made it clear that the power to increase the sentence should be exercised with care: see R –v- Woop [2002] 2 Cr App R (S) 65. But in our view, the power to increase the sentence would be properly exercised if the mistake was that the Court had failed to appreciate for example that the “specified” offence was a “serious” offence, so that the mandatory provisions of Section 225 or 227 required an indeterminate sentence as opposed to an extended sentence. Equally the power could be exercised where the mistake was a failure to recognise the offence as a “specified” offence, as a result of which an ordinary determinate sentence or other disposal has been imposed. Whatever inhibition there may be on increasing sentences cannot apply if the court is merely seeking to comply with its statutory obligations. 8. There may, however, be cases in which the mistake has been identified within the 28 day period, but, for whatever reason, the court is either unable to deal with the matter by way of variation of sentence within 28 days or considers that sentencing should be delayed beyond the 28 day period. That situation arose in the case of Reynolds which is one of the cases with which we are concerned, and to which we will return in detail later. In that case the relevant mistake having been identified, and the matter brought back before the judge within the 28 day period, the judge acceded to a submission from defence counsel that the matter should be adjourned to enable the appellant to put before the court more material in order to try to persuade the court that he did not meet the criteria of dangerousness. Accordingly the judge exercised his power under section 155 of the 2000 Act to rescind the original sentence, and then adjourned the sentencing hearing to a later date. 9. In R –v- Stillwell and Jewell (1992) 94 Cr App R 65 , this court was faced with a very similar situation. Both appellants were originally sentenced to imprisonment. The judge later reconsidered the case and decided that he should have had social inquiry reports before passing sentence. The appellants were then brought back before the court within the 28 day period. The judge rescinded the sentences, and adjourned the matter for the preparation of social inquiry reports, remanding the appellants in custody. They were brought back before him after the expiry of the 28 day period, and sentenced to the same sentences that he had originally imposed. This court held that he had no jurisdiction to do so. Having considered the historical genesis of section 47(2) of the Supreme Court Act 1981 (the predecessor to section 155 of the 2000 Act ) as described by Lord Edmund Davies in Menocal (supra), Morland J, giving the judgment of the court said at page 70: “The 28 day period is not elastic. It cannot be extended by rescinding a sentence and then remanding the prisoner for sentence to a date beyond the 28 day period..... This court therefore quashes those sentences and orders the immediate release of the appellants. The convictions stand, but we make no further order with regard to sentence, the course adopted by this court in Bradford (1911) 7 Cr App R 42 , Brook (19493) 33 Cr App 92 and Chapman (April 5, 1990 - unreported).” 10. The uncomfortable consequence of this decision is that appellants in such a case have been convicted but not sentenced and are apparently entitled to be released. The authorities given for taking that course do not seem to be directly in point. In those cases this court quashed sentences, and made no further order, because in each case the appellant had already served an appropriate sentence by the time that this court came to deal with the appeals. If that principle were applied to cases involving dangerous offenders, the consequences would be unfortunate, and clearly contrary to Parliament’s intention. 11. One solution in such a case might be to recharge the offender. Because he has not been punished, he cannot plead autrefois convict: see Richards –v- R [1993] AC 217 . But that would be a cumbersome way to put right what could be considered a mere technicality, if the ultimate sentence is otherwise a perfectly good sentence. Like this court in Gordon (supra) we have been encouraged to look again at the provisions of section 155 of the 2000 Act by the commentary on Norman (supra) by Dr David Thomas Q.C. in the Criminal Law Review for December 2006 at page 1073. We respectfully agree with the analysis of this issue contained in paragraphs 41 off of the judgment in Gordon. We accordingly do not consider that a solution can be found in the decision of the House of Lords in Soneji and Bullen [2006] 1Cr App R (S) 79 . Like this court in Gordon we consider that the problem should be approached in the light of the decision in Annesley [1975] 62 Cr App R 113 , in which the jurisdiction of the Crown Court to adjourn sentence was considered. 12. In Stillwell and Jewell (supra) this court felt constrained by the speeches in Menocal (supra) and in particular the opinions expressed by Lord Salmon at page 162 and Lord Edmund Davies at page 167. Lord Edmund Davies explained how the 28 day provision had its origin in the Courts Act 1971 which created the Crown Court as a superior court of record. The 28 day period was intended to replace the original power at Assizes or Quarter Sessions for the Court to vary any sentence imposed at any time prior to the end of the Assize or Quarter Session. This was on the recommendation of the Royal Commission on Assizes and Quarter Sessions. It was clearly intended to ensure that a time limit of some sort should be imposed on the exercise of the power in order to achieve certainty. In Annesley (supra) it was argued that the Courts Act 1971 provided a complete code in relation to the powers of the court. The question in issue was whether or not the court had any power to adjourn or otherwise defer part of a sentence other than in accordance with the express provisions of the Courts Act. Bristow J, giving the judgment of the courts said as follows at page 115: “In the judgment of this court it is clear from these authorities and the statutory provisions that the Crown Court still enjoys the common law jurisdiction vested in its predecessors to put off passing the whole of a sentence or indeed part of a sentence, if the circumstances make it necessary.” 13. A fuller reference to this passage is contained in paragraph 45 of the judgment in Gordon (supra); but this extract is sufficient for our purposes. Its relevance is that in Stillwell and Jewell (supra) the court, when considering the meaning of the word “rescind” in section 155 of the 2000 Act , said at page 67: “There is no meaningful distinction in fact or in law between rescinding, quashing, and annulling a sentence.” 14. If that is the meaning to be given to the word “rescind”, which in our judgment it is, the consequence of rescinding a sentence is that the convicted offender is, as a result of the quashing of his sentence, back before the court as a convicted but unsentenced defendant. It seems to us to follow that the court is then in the same position as it was at the time that the original sentence was imposed. It, accordingly, has all the powers it had at that time. It is difficult, therefore, to see why the court should not have jurisdiction, in accordance with Annesley, to adjourn sentence, having quashed the original sentence, if the justice of the case so requires. Annesley was not brought to the attention of the court in Stillwell and Jewell . And indeed, the court was there not strictly concerned, in practical terms, with the consequences of the view it then took. Quashing the sentences in that case produced no consequence which could be said to have been contrary to public policy. 15. We have come to the conclusion that for those reasons we can, and should, revisit the question of whether or not the court is entitled in pursuance of section 155 of the 2000 Act , to exercise the power to rescind and then exercise its common law power to adjourn. The consequential adjournment no more offends against the principle of certainty than a decision of the Crown Court to adjourn in the first instance. Clearly, as a matter of good sentencing practice, the defendant is entitled to know his sentence as soon as possible. But there may be many situations in which it would be in the defendant’s own interest for there to be an adjournment. In our judgment, therefore, the Crown Court has power, after rescinding all a part of its original order to adjourn final sentence to a later date. We would, in any event, support the suggestion in Gordon that the period specified in section 155 be extended. 16. If the court has not exercised its power under section 155 of the 2000 Act , more difficult problems may arise. If the court has, by mistake, imposed an indeterminate sentence for a “specified” but not a “serious” offence, then the matter can clearly be put right on appeal. And if a judge concludes that an offender meets the criteria of dangerousness, but has in any other way either misunderstood or misapplied that consequence to the offender’s disadvantage, again the matter can be put right on appeal. Likewise, if the Attorney General seeks a reference to this court under section 36 of the Criminal Justice Act 1988 , ( the 1988 Act ) this court will have the power to put right any mistake. 17. But where a mistake has been made which is to the benefit of the offender, the Attorney General will not always be able to refer the sentence to this court. The mistake may go unnoticed by the prosecution. And the function of section 36 of the 1988 Act is not to provide a general right of appeal to the prosecution. It is a means of ensuring by judicious selection of cases, that issues of principle in relation to sentencing can be resolved, and sentences corrected, in cases where public confidence in sentencing could otherwise be undermined. It is where the error in favour of the offender emerges as a result of an appeal by an offender, that the real difficulties arise, as exemplified in some of the present cases. If it becomes apparent during the course of an appeal that the sentencing court has failed to appreciate, for whatever reason, that either a mandatory sentence should have been imposed, or alternatively an indeterminate sentence should have been imposed as opposed to an extended sentence, what should this court do? 18. In one sense, the sentence is an “unlawful” sentence which this court would normally feel obliged to correct. But in the two scenarios to which we have just referred, the necessary consequence would be to increase an ordinary determinate sentence to an extended sentence or an extended sentence to an indeterminate sentence. The powers of this court are constrained by the provisions of section 11(3) of the 1968 Act which is in the following terms: “On an appeal against sentence the Court of Appeal, if they consider that the appellant should be sentenced differently for an offence for which he was dealt with by the court below may – (a) quash any sentence or order which is the subject of the appeal, and (b) in place of it pass such sentence or make such order as they think appropriate for the case and as the court below had the power to pass or make when dealing with him for the offence. But the court shall so exercise their powers under this sub-section that, taking the case as a while, the appellant is not more severely dealt with on appeal that he was dealt with in the court below.” 19. It is common ground before us, and in particular it is accepted by counsel instructed on behalf of the respondent, Mr Perry QC, to whom we are immensely grateful, that the imposition of a mandatory extended sentence by this court where the sentencing court had imposed a determinate sentence, or the imposition of an indeterminate sentence where the court had imposed either a determinate sentence or an extended sentence, would almost invariably mean that the appellant was being dealt with more severely than he had been by the sentencing court. In 1968 there was, in effect, only one mandatory sentence, namely life imprisonment for murder. Since then, mandatory sentences have proliferated. The statutory cap on the powers of this court in section 11(3) of the 1968 Act sits uneasily with these changes. 20. In most cases, of course, those who do not receive the mandatory sentence are unlikely to appeal; and if they do appeal, they usually find out the problem in time to abandon their appeals. But in the case of offences to which Chapter 5 applies, there are many appellants whose appeals are essentially based on a challenge to the judge’s conclusion as to whether or not the criteria of dangerousness have been met. In other words they are seeking to avoid being caught by the provisions of Chapter 5 at all. If an appellant appeals on this basis against an extended sentence which is wrongly imposed for a “serious” offence, is the court bound by reason of the mandatory provisions of section 225 or 226 of the 2003 Act to impose an indeterminate sentence, or is the court precluded from doing so because to do so would be beyond the powers of the court under section 11(3) of the 1968 Act ? We have come firmly to the conclusion that section 11(3) of the 1968 Act prevails. This court is a court created by statute, and only has the powers given to it by the statute. The only express powers that this court has to increase sentences are the power contained in section 36 of the 1988 Act and the limited power in section 29 of the 1968 Act to give directions as to the loss of time. Otherwise the court is, as we have said, constrained by section 11(3) . 21. Mr Perry, in seeking to help this court, submitted that the wording of section 11(3) suggests that the cap could only apply to discretionary sentences. A sentence which is an “unlawful” sentence, in that the court has failed to comply with its duty to impose the mandatory sentence, is a sentence which must be quashed, in which event this court is bound to impose the “appropriate” sentence, namely the mandatory sentence. 22. The difficulty with that argument is that, as we have indicated, the only power that the court has to interfere with the sentence is the power contained in section 11(3) (subject to the two exceptions to which we have already referred) and that section requires us to apply the cap. Further, it seems to us that the justification for the application of the cap to appeals against sentence generally is equally applicable to appeals against sentence involving consideration of the mandatory sentence provisions of any statute. The 1968 Act was preceded by the Criminal Appeals Act 1966. This repealed the power given by the Criminal Appeal Act 1907 , its predecessor, to this court to increase sentences. The major justification for this change was that it was considered that the power to increase sentences was a significant deterrent to defendants who wished to challenge their sentence. As we have said, in the present context many appeals are essentially based upon the argument that the judge was wrong to conclude that the appellant met the criteria of dangerousness. If the consequence of seeking to persuade the court of that, is to risk an increase in sentence from an extended sentence, say, to an indeterminate sentence, the very mischief which the 1968 Act was intended to avoid would be reintroduced by a side wind in this category of case. 23. For these reasons, we are satisfied that section 11(3) of the 1968 Act precludes this court from interfering with any sentence, even if the provisions of Chapter 5 mandate a different, ex-hypothesi more severe, sentence. Although this means that there will be sentences which will be “unlawful” in the sense that the court has failed to apply the mandatory sentence, that does not seem to us to create difficulty or absurdity. If the sentence in question had not been appealed, the sentence would have been a perfectly valid and effective sentence. As Lord Scarman explained in R –v- Cain [1985] 1AC 46 , at page 55, a sentence of a Crown Court cannot be a nullity. It remains an effective order unless and until varied or quashed. An extended sentence, for example, passed when there should have been an indeterminate sentence, therefore remains a perfectly valid and effective sentence. Further, unlike, for example, a detention and training order for three years, which is beyond the powers of the court, an extended sentence is within the powers of the court. In that sense, also, it is not an “unlawful” sentence. 24. It seems to us that in those circumstances, where the judge has properly concluded that the criteria of dangerousness have been met, this court should respect that finding so far as it can. As it is, in our view, unable to substitute the mandatory sentence where the Crown Court has failed to impose it, this court in the exercise of its discretion, should not interfere with the sentence in fact imposed, even though that results in a sentence which is not in accordance with Chapter 5. The only other solution would be to quash the finding that the criteria of dangerousness have been met and substitute a determinate sentence. We consider that to be a solution which would not properly reflect the intention of Parliament or respect the findings of the judge. 25. We turn therefore to the individual cases. Reynolds 26. On the 21 st February 2006 at the Crown Court at Exeter, the appellant pleaded guilty to five counts of possession of indecent photographs of children, six counts of making indecent photographs of a child, two counts of inciting another to distribute or show indecent photographs, and two counts of attempting to cause a child to watch a sexual act. On the 8 th May 2006 he was sentenced as follows: a. For possession of indecent photographs of a child, no separate penalty. b. For making indecent photographs of a child an extended sentence of five years made up of a custodial term of one year imprisonment and an extension period of 4 years on each to be served concurrently and concurrent to all other sentences. c. On the two counts of inciting another to distribute or show indecent photographs an extended sentence of seven years made up of a custodial term of 3 years and an extension period of 4 years, to be served concurrently and concurrent to all other sentences. d. For attempting to cause a child to watch a sexual act an extended sentence of seven years made up of a custodial term of three years and an extension period of 4 years to be served concurrently and concurrent to all other sentences. The total sentence was therefore an extended sentence of 7 years. 27. A Sexual Offences Prevention Order under section 104 of the Sexual Offences Act 2003 was made; and the defendant was required to comply with the provisions of Part 2 of that Act indefinitely. 28. The terms of the Sexual Offences Prevention Order were finally clarified on the 16 th May 2006 and included in particular the following prohibitions: “....... 4. Entering or remaining upon any “cyber cafe”/library/other premises offering internet facilities. ..... 9. Denying police officers access to his home address during visits by dangerous offenders at reasonable times of the day in order to check the above conditions are being complied with” 29. On the 17 th May 2006 the judge was made aware of the fact that all the offences to which the appellant had pleaded guilty other than the offences of possessing indecent photographs (the first five counts in the indictment) which were “specified” offences, were “serious” offences for the purposes of Part 5 of the 2003 Act . Having found that the criteria of dangerousness were met, the judge appreciated that he was required under section 225 of the 2003 Act to impose an indefinite sentence on the appellant. Counsel for the appellant then sought to persuade the judge that he could revisit the finding that the criteria of dangerousness were met or at least to adjourn the matter so that he could obtain material on behalf of the appellant to persuade the judge that the criteria had not been met. The judge then rescinded the sentences that he had imposed on the 8 th May, and adjourned the matter for further argument as requested on behalf of the appellant. 30. At the resumed hearing on the 30 th June 2006, having heard counsel for the appellant and read the further material produced on his behalf, the judge concluded that the criteria of dangerousness were met, and sentenced him to imprisonment for public protection. The specified period was 18 months less the 45 days spent on remand; the Sexual Offences Prevention Order was reimposed as was the requirement to comply with the provisions of the Part 2 of the Sexual Offences Act 1973 and he was further disqualified from working with children under section 28 of the Criminal Justice and Court Services Act 2000 . This sentence was made up of concurrent sentences of imprisonment for public protection with a specified period of 18 months for the two offences of inciting another to distribute or show indecent photographs and the two offences of attempting to cause a child to watch a sexual act. Concurrent sentences of imprisonment for public protection with a specified period of six months were imposed for the six counts of making an indecent photograph of a child. No separate penalty was imposed in relation to the five counts of possessing indecent photographs of a child. 31. The grounds of appeal were directed essentially at the making of the orders under Chapter 5 of the 2003 Act . It was submitted that where a Sexual Offences Prevention Order had been made, consideration should be given to the question of whether that would not be sufficient to enable the court to say that on release, the appellant would not meet the criteria of dangerousness. The Order would provide sufficient controls. Alternatively, it was submitted that such an order should not have been made in addition to the Licence provisions which would apply on his release from custody was a sentence of imprisonment for public protection imposed. In any event, it has been submitted to us that the two specific terms of the Order to which we have referred were too widely drawn. 32. The facts in the light of which the judge had to consider sentence can be relatively shortly stated. On the 15 th November 2005 police executed a warrant at the appellant’s address. Computer equipment and other items were seized. These disclosed 1,757 still photographs and eight movies at level 1; 1404 stills and 46 movies at level 2; 54 stills and 2 movies at level 3; 22 stills and one movie at level 4; and 7 stills at level 5. It became apparent that for some considerable time the appellant had been taking part in computer chat rooms passing himself off inter alia as a 16 year old boy. He was attempting to get young girls to bare their bodies and send photographs to him over the internet. On a number of occasions he sent pictures of his erect or semi-erect penis to those girls. Although in his first interview, he made no comment on the advice of his solicitor, at his second interview, he was fully cooperative. 33. As we have said in our general introduction, we consider that the judge was entitled to exercise his powers under section 155 of the 2000 Act to rescind the original sentences, and adjourn the matter as he did. Turning then to the main ground of appeal, it must be remembered, as this court has explained in Richards [2006] EWCA Crim 2519 , the two schemes for the protection of the public created by the Sexual Offences Act 2003 and Part 12 Chapter 5 of the Criminal Justice Act 2003 are distinct. That does not mean that they cannot impact on each other. They clearly can; and it may well be relevant in many cases for a judge to evaluate the best method of protecting the public whilst ensuring that no greater restrictions than are necessary are imposed on a defendant. It may well be possible to argue in some cases that the defendant is a person who is likely to abide by the restrictions imposed by a Sex Offenders Protection Order so that he would not pose a significant risk to members of the public of serious harm occasioned by the commission by him of further such offences. Equally, a court could come to the conclusion that the control exercised by the licence requirements after release were an indeterminate sentence to be imposed would be sufficient to prevent the defendant from posing a risk of causing sexual harm. But that does not mean that the court is precluded from imposing both an indeterminate sentence and a Sex Offenders Protection Order if the circumstances justify it. 34. In the present case, this appellant has previous convictions of a sexual nature, in particular a conviction of five counts of taking indecent photographs of children in February 2000 for which he was fined and placed on the Sex Offenders Register for five years, and a caution for an offence of indecent exposure when he was caught masturbating in a shop whilst watching children. In these circumstances, and in the light of the real concerns expressed in the pre-sentence report, we do not consider that the judge can properly be criticised for concluding that a detailed Sex Offenders Protection Order was required, in addition to licence, to protect the public. 35. Turning to the Order itself, there seems to us to be little criticism that can be made of clause 9; but clause 4 is accepted by the respondent to be too widely drafted. The term should read: “Accessing the internet in any cyber café/library/other premises offering internet facilities to visitors/members of the public.” 36. There is, however, one respect in which the sentence imposed by the judge fails to comply with the provisions of the 2003 Act . As we have said in the general introduction, a court is required by the mandatory provisions of, in this case, section 227 of the 2003 Act , to impose an extended sentence in respect of the “specified” offences in the first five counts in the indictment. We can correct that without infringing section 11(3) of the 1968 Act , by imposing extended sentences of 2 years imprisonment in respect of each concurrent, comprising a custodial term of 12 months and an extension period of 12 months. 37. We accordingly allow the appeal to the extent of the amendment to the Sexual Offences Protection Order which we have referred to in paragraph 28 above and we order that the extended sentences of two years imprisonment should be substituted for no separate penalty in Counts 1 to 5 in the indictment. Lubwama 38. On the 12 th May 2006 in the Crown Court at Southwark Abdul Lubwama pleaded guilty to one count of assault occasioning actual bodily harm and a second count alleging cruelty to a person under 16 years of age. On 16 th June 2006 he was sentenced on count 2, to an extended sentence of 7 years made up of a custodial term of 2 years and an extended period of licence of 5 years, and, on Count 1, to 12 months’ imprisonment concurrent. He appeals with leave of the full Court against his sentence. 39. The facts regarding the offences were as follows. At about 7.00 pm on the 14 th October 2005 the appellant went to the home address of Lydia Baah to pick up his children, Ella, aged 4, and Amira, aged 1. Lydia Baah had been baby sitting and told the appellant that Ella was playing outside. He left with Amira to collect Ella. A few minutes later Ella banged on the front door screaming “My dad is going to kill me”. The appellant was seen to walk up behind Ella and hit her across the back with what appeared to be the branch of a tree. The door was open and Ella ran inside. She tried to hide behind Lydia Baah’s legs; but the applicant grabbed her and whipped her with the branch. Lydia Baah shouted at the appellant to stop; but he replied “She is my daughter”. A daughter of Lydia Baah pulled at the appellant to get him away from Ella causing Ella to fall to the floor. The appellant was seen to kick Ella a number of times (though this was not accepted by the appellant in his basis of plea) The police were called and the applicant dragged Ella outside by her hair towards his car. Lydia Baah and her daughter were able to stop him from taking Ella away. 40. In hospital Ella was treated for multiple red wheals over her arms, head and back. She had bruises near her left elbow and a series of lesions over her forehead. 41. The judge considered the provisions of the Criminal Justice Act 2003 . Whilst he appeared in one part of his judgment to conclude that there was no significant risk to members of the public of serious harm occasioned by the commission of further specified offences, in another part of his judgment he concluded that the appellant posed a “significant risk and danger to your daughter” and sentenced him to an extended sentence in respect of count 2. 42. For the reasons we have explained, if the judge was thereby holding that the criteria of dangerousness has been met, an extended sentence was not in accordance with the requirements of Chapter 5 since count 2, cruelty to a person under 16, is a “serious” offence within the meaning of section 224 of the CJA 2003. But we do not consider that his findings in this respect are consistent. He appears to have concluded that the appellant met the criteria for the purposes of section 227 of the 2003 Act , but not for the purposes of section 225 of the 2003 Act . That is not permissible. The criteria do not depend on the nature of the particular count of which the defendant is guilty. They are either met or they are not met. We cannot be sure therefore that his conclusion was soundly based. And on the material before us, we do not consider that we ourselves can be satisfied that the criteria are met. In those circumstances we propose to quash the judge’s findings as to dangerousness and substitute a determinate sentence. 43. It has been submitted that a determinate sentence of 2 years on count 2 was excessive and that a sentence of 12 months would have been appropriate. The appellant is aged 39 and had no previous convictions. He pleaded guilty, accepting that what he did went far beyond lawful chastisement. In this regard we were referred to the following cases, Kelly [1998] 2 Cr App R (S) 368, O’Gorman 1999 2 Cr App R (S) 280 and Sujan Ali [2002] 2 Cr App R (S) 542. From these cases it appears that a sentencing bracket of 12 months to 2 years is appropriate for cases of this type. It follows that the 2 years “custodial term” suggested by the judge was at the top end of the appropriate bracket but cannot therefore be said to be excessive. 44. For these reasons we allow the appeal. The extended sentence on count 2 is quashed and we substituted a sentence of two years imprisonment. The sentence of 12 months concurrent on count 1 remains. Webb 45. On the 5 th September 2005 in the Crown Court at Luton John Paul Webb pleaded guilty to attempted robbery, count 1, and possession of an imitation firearm at the time of committing a scheduled offence, count 2. On the 3 rd October 2005 he was sentenced (on each count concurrent) to an extended sentence of 13 years made up of a custodial period of 5 years and an extended licence period of 8 years. Having committed these offences before the expiry of an earlier custodial sentence he was ordered to be returned to prison to serve the remaining period of 1 year and 28 days. The extended sentence was to be served consecutively to that. 95 days spent on remand was ordered to count towards his sentence. His application was referred to the full court by the registrar. 46. The facts regarding the offences were as follows. At about 13.45 on the 30 th June 2005 the applicant was seen acting suspiciously in Bedford town centre. He removed two toy handguns from their packaging, concealed one on his person and placed the other in a nearby dustbin. He then went to the O2 mobile telephone store in which there were three members of staff and three customers. The applicant said to the manager “Give me the money”. When the manager refused the applicant said: “I have a gun in my pocket, give me the money”. He then produced the imitation handgun and held it in front of him with both hands. The manager pressed the panic alarm and the applicant left the store, holding the imitation handgun out in front of him so that it was clearly visible. He was arrested shortly afterwards. 47. The judge considered that there was a significant risk to members of the public of serious harm occasioned by the commission of further specified offence. He did not consider that a sentence of life imprisonment was justified but proceeded to pass an extended sentence on each count of “4 years imprisonment ... a term of 12 months’ imprisonment on top of that” and ordered that the applicant be “on licence for a period of 8 years.” The recorded sentence is an extended sentence of thirteen years being a custodial period of 5 years plus the extension period of 8 years. 48. An extended sentence was not in accordance with the requirements of Chapter 5, since the offences to which he had pleaded guilty were “serious” offences within the meaning of section 224 of the CJA 2003. But by reason of the terms of section 11(3) of the Criminal Appeal Act 1968 and for the reasons we have explained, this court has no power to impose a sentence of imprisonment for public protection which was, on the judge’s apparent findings, the mandatory sentence. We do not therefore interfere with the imposition of the extended sentence save that the extension period cannot stand. By section 227(4)(a) of the 2003 Act , the maximum extension period for a specified violent offence is 5 years. Turning to the length of the custodial period, on behalf of the applicant it was accepted that a determinate sentence of 4 years, the first period of imprisonment mentioned by the judge, could not be said to be excessive. We agree. However, the judge plainly had in mind a custodial sentence of 5 years, made up of 4 years plus 1 year and the order so records. In our judgment a custodial period of 5 years cannot be said to be excessive for each of these offences on a plea of guilty. 49. For these reasons we extend the time for seeking leave to appeal, we grant leave to appeal and we allow the appeal, to the extent only that the extension period is reduced to a concurrent period of 5 years, so that the sentences are extended sentences of 10 years on each count, concurrent, comprising a custodial term of 5 years, and an extension period of 5 years. Honore 50. On the 9 th January 2006 in the Crown Court at Chelmsford James Honore pleaded guilty to robbery. On the 24 th April 2006 in the Crown Court at Southwark he pleaded guilty to assault occasioning actual bodily harm. On the 25 th May 2006 he was sentenced to 12 months in custody on the assault and 2 years’ imprisonment, consecutive, on the robbery charge. In addition the judge imposed an extended licence period of 2 years’ pursuant to section 227 of the CJA 2003. 219 days spent on remand were to be counted towards his sentence. He has applied for leave to appeal against his sentence and his application has been referred to the full court by the registrar. 51. The facts regarding the offence of assault are as follows. On the 20 th August 2005 the applicant assaulted his girlfriend, Marlene Herbert, by grabbing her around the throat and banging her head against the kitchen cabinets several times. He also hit her with a bottle and a belt. The victim sustained bruising around both eyes which were closed with swelling. She also received bruising behind her left ear and on her chest, arms, left shoulder, lower back and right thigh. 52. The robbery occurred on the evening of the 17 th October 2005. The victim, John Baker, was cycling home when he was stopped by the applicant who demanded that he get off his bicycle. The applicant then hit the victim on his head and threatened to shoot him unless he handed over his bicycle. The victim was wearing a helmet and so was not injured but was placed in fear by the applicant and allowed the applicant to take his bicycle. 53. The applicant is aged 35 and has previous convictions. However, the previous conviction for violence was an assault in 1997 for which he was sentenced to 3 months’ imprisonment. Before that there were 6 offences between 1988 and 1992, none of which was for violence though one (in 1988) was for possessing an offensive weapon in public. 54. The judge considered that because of problems that the applicant was having with drugs there was “a significant risk of continuing harm ... of serious injury to people” and so a “sentence for public protection is necessary”. The judge then proceeded to pass the sentences which we have described. 55. In the light of these findings and for the reasons which we have given, an extended sentence was not the correct sentence for robbery, which is a “serious” offence within the meaning of section 224 of the CJA 2003, for which an indeterminate sentence was mandatory. 56. It may be that the judge took the merciful view that the facts which gave rise to the assault charge, together with his drugs problem, were the real cause for concern for the future, rather than the robbery charge. But once the judge had answered affirmatively the question of whether the appellant met the criteria of dangerousness, for whatever reason, the mandatory provisions of section 225 of the 203 Act applied. And he was entitled to conclude that the criteria were met. 57. For the reasons we have given, we cannot increase the sentence. But the sentence in the present form is unclear as to how the extension period is calculated. The custodial periods have been expressed to run consecutively. The extension period has not been specified or attached to either. The judge’s intention would appear to have been a total sentence of 5 years, 3 years being the custodial term, and two years the extension period. That sentence is not manifestly excessive. It can be accommodated best by adjusting the sentences so that the sentence for assault is an extended sentence of 2 years, with a custodial period of one year and an extension period of one year; and the sentence for robbery will be an extended sentence for of 3 years, comprising a custodial sentence of 2 years and an extended period of one year, those to be served consecutively. The application is granted; and the appeal allowed, but only to that extent. This is a case in which consecutive sentences were clearly called for. For reasons which will be set out fully in a decision of this Court to be handed down shortly ( “C” et al ) such a sentence is not wrong in principle, nor impracticable to operate. The fact that we are restrained to amend the sentence as we have is the inevitable consequence of the constraints imposed by section 11(3) . Slaney 58. On the 26 th May 2006 at Northeast Sussex Court the appellant pleaded guilty to 6 offences of sexual touching of a child family member contrary to section 25 of the Sexual Offences Act 2003 . He was committed for sentence to the Crown Court at Ipswich and on the 27 th June 2006 was sentenced by HHJ Holt to two concurrent extended sentences of five and a half years made up of a custodial term of 2½ years and an extension period of three years. In addition, an indefinite Sexual Prevention Order was made and he was disqualified from working with children for life. He was subject to the notification requirements of Part 2 of the 2003 Act indefinitely. The only element of the sentence that is challenged is the three year extension period. 59. The facts can be shortly stated. The victim of each offence was a 15 year old girl who had been placed with the appellant and his wife as a foster parent. She had learning difficulties and functioned at the level of a child of seven or eight. When she was alone with the appellant in the swimming pool, he had touched her vagina and chest on more than one occasion. On a separate occasion he had taken her to the spare room of the house and laid on top of her with his penis exposed and simulated sexual intercourse until he ejaculated on her stomach. When arrested and interviewed, he eventually accepted that he had done what was alleged. He admitted that his actions were for his own sexual gratification. 60. The appellant was 67 years of age, and of previous good character. The judge made no finding that there was a significant risk to members of the public of serious harm occasioned by the commission of him of further specified offences. Accordingly, the judge had no power to impose any sentence other than a determinate sentence. Had he found that the appellant did meet the criteria of dangerousness he would have been required to impose an indeterminate sentence under section 225 , as the offences to which he pleaded guilty carry a maximum sentence of 14 years imprisonment and were accordingly “serious” offences. No criticism is made of the two and a half years determinate term imposed by the judge but for the reasons that we have given, the appeal must be allowed and the extension period quashed. Downing 61. On the 1 st September 2006 at the Crown Court at Northampton, the appellant pleaded guilty to two counts of sexual activity with a child contrary to Section 9 of the Sexual Offences 2003. He was sentenced by HHJ Wide, QC to an extended sentence of 7 years imprisonment, made up of a custodial term of 4 years and an extension period of three years concurrent. He was disqualified from working with children and was subject to the notification requirements of Part 2 of the Act indefinitely. 62. The victim was a vulnerable 13 year old. She had been the victim of abuse, some of it sexual, since the age of four at the hands of others. The appellant was a 33 year old man with an extensive criminal record, though without previous convictions for sexual offences. On the 20 th June 2005 he was released from prison. By prior arrangement, he went to stay at the home of the victim and her mother. On the 22 nd June at about half past midnight he asked the victim if she wanted to have sex with him; she agreed. The appellant went into her room and woke her up. He took off her trousers and penetrated her with his penis. She consented, but was concerned that she might become pregnant. Two days later, once again in the early hours of the morning, he woke her and suggested and attempted sexual intercourse with her. He did not succeed in penetrating her on this occasion because she was too tense. 63. In July, the victim admitted to her mother what had occurred. She was interviewed by the police on the 13 th July. The appellant was arrested on the same day and denied the offences. Subsequently scientific analysis of semen found on the victims underwear revealed a DNA profile matching that of the appellant. He pleaded not guilty on arraignment but changed his plea to guilty on the day on which he was sentenced. The judge discounted the custodial sentence he would have imposed after trial by 20% to reflect that fact. No criticism is made of the discount. 64. The author of the pre-sentence report assessed the future risk of serious and significant harm to pre-pubescent and young females as high. The judge accepted this conclusion and expressly found that the criteria of dangerousness had been met. The offences to which he had pleaded guilty were offences for which the maximum sentence on conviction on indictment is 14 years imprisonment. Accordingly it is a “serious” offence. The judge therefore should have imposed an indeterminate sentence of imprisonment pursuant to section 225 of the 2003 Act . But, for the reasons that we have already given, we do not propose to interfere with the imposition of an extended sentence. 65. It was submitted on behalf of the applicant that the custodial period of 4 years, was, however, manifestly excessive. We do not agree. This was a bad case of an older man exploiting an exceptionally vulnerable child in her own home for his own sexual gratification. Had the judge imposed the proper sentence under section 225 of the 2003 Act , a minimum term based on a determinate term of four years imprisonment could not have been faulted. In those circumstances we refuse this application. ‘S’ 66. On the 16 th August 2006 at the Nottingham Crown Court, the applicant was convicted by a jury of wounding the victim with intent to cause him grievous bodily harm contrary to section 18 of the Offences Against the Persons Act 1861. He pleaded guilty to a separate assault causing actual bodily harm contrary to section 47 of the 1861 Act on the same victim. On the 11 th September 2006 he was sentenced by HHJ Mitchell to six year’s detention under section 91 of the 2000 Act , on Count 1, and a concurrent term of one year’s detention on Count 2. 67. The victim had driven, with his girlfriend, to a square in Calverton to find his parents. On walking through the square, he encountered a large group of youths including the applicant. Although he did nothing to provoke any of them, they took offence at his presence. Four of them encircled him and punched him to the ground. When he got up, the applicant was standing in front of him with a Stanley knife in his right hand which he used to slash the victim’s face and then made a slash across his stomach, but in the event only damaged his clothing. The slash to the face resulted in a 1 cm laceration to the lip and a defensive injury to the victim’s left hand. He also sustained a 2 cm laceration of the left eyebrow which had been caused by a punch. The jury rejected the applicant’s evidence that he had played no part in the attack. 68. The offence under section 18 of the Offences Against the Persons Act 1861 is a “serious” offence and accordingly the applicant was at risk of the imposition of a sentence of detention for public protection under section 226 or an extended sentence under section 228 if the judge had made a finding that he met the criteria of dangerousness. Although he had been convicted of an offence of street robbery on the 9 th January 2006 for which a three year supervision order had been made that conviction post dated the offence for which he fell to be sentenced by Judge Mitchell and accordingly the judge was not required to make the statutory assumptions provided for in section 229(3) of the 2003 Act . The judge, in his sentencing remarks, said: “The suggestion that you are not dangerous, I reject. You are a dangerous young man who arms themselves with a weapon before they go out at night.” 69. We accept that the judge did not intend by those remarks to indicate that he made a finding that the criteria of dangerousness were met for the purposes of the 2003 Act . And the fact that he did not impose either an indeterminate sentence, or an extended sentence, supports that conclusion. But we are wholly unpersuaded that the judge was not entitled to consider that this was an extremely serious example of unprovoked violence which should be marked by a significant sentence of detention. In our view the judge was accordingly right to invoke the court’s powers under section 91 of the 2000 Act ; and a detention period of 6 years is not in our view manifestly excessive. 70. However, he was not entitled to impose a sentence of detention under section 91 of the 2000 Act for the offence of assault occasioning actual bodily harm. The only practicable course was to impose no separate penalty for this offence. We accordingly give leave to appeal, and allow the appeal to the extent of quashing that element of the sentence. Thompson 71. On the 22 nd June 2006 at the Central Criminal Court, the applicant was convicted by a jury of attempted murder. On the 25 th June 2006 at the Inner London Crown Court, he pleaded guilty on re-arraignment to possession of a class A drug, crack cocaine, with intent to supply. On the 23 rd August 2006 he was sentenced by HHJ Simon Smith to 18 years’ detention in a young offenders’ institution for attempted murder and to six years detention in a young offenders institution for the drugs offence, to be served concurrently. He directed that only forty days of the 204 days which had been spent in custody on remand would count towards sentence. 72. The facts were on the 11 th September 2005, the applicant entered the Ocean Centre in Dalston Lane armed with a loaded handgun. He shot a man called Dayne Thompson at close range. The bullet passed through his kidney and gall bladder. The injuries were life threatening and required several surgical procedures, including removal of his gall bladder. The victim identified the applicant by identification procedure. The motive for the crime was never established, but was plausibly assumed by the judge to have been a revenge attack with a background of drug dealing. 73. On arrest, the appellant was found to have concealed in his buttocks 15 cling film wraps, containing 2.67gms of crack cocaine at 55% purity. On arrest, and until 40 days before he was sentenced, the appellant maintained that he was his younger brother Omaro Thompson, aged 17 whereas his name is Emelio Thompson, and he is aged 20. It was for this reason that the judge declined to credit the time which he had spent on remand while claiming to be his brother. 74. It is submitted on his behalf that the sentences imposed were manifestly excessive in two respects. Firstly it is said that 18 years’ detention was too long; and secondly it is said the judge should have credited the whole period spent in remand. We do not accept either submission. This was an attempted execution. If it had succeeded the starting point would have been detention for life with a minimum term of 30 years (i.e. the equivalent of a determinate sentence of imprisonment of 60 years). But for the defendant’s age an even longer term might well have been appropriate. The judge did not expressly state in his sentencing remarks that he had decided not to impose an indeterminate sentence under section 225 of the 2003 Act . Given the nature of the offence, either sentence may well have been appropriate. The judge may have been affected by the fact that he made a recommendation for deportation which, if acted upon, will ensure the protection of the public in this country at any rate on his release. It would, however, have been better sentencing practice, in view of the fact that the attempted murder offence was a “serious” offence for the sentencing judge to have dealt expressly with the question of whether or not the applicant met the criteria of dangerousness. Turning then to the submission that the judge should not have reduced the number of days spent of remand which would be credited against his sentence, we can see no justification for interfering with the exercise of the judge’s discretion in this respect. The applicant was clearly intending to obtain some advantage by pretending to be his brother. And so long as he maintained that deception, the judge was entitled to conclude that he should not obtain the benefit of credit for those days served. The application is dismissed.

2007_03_08-1044.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/538/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/538

db14a611bcd52817502c81426d39c9515175258245096ef74edc6e2579a7a063

[2005] EWCA Crim 887

EWCA_Crim_887

2005-04-22

supreme_court

Case No: 200500203 D5, 200500235 D5, 200500238 D5, 200500239 D5, 200500241 D5, 200500243 D5, 200500244 D5, 200500245 D5 & 200500246 D5 Neutral Citation Number: [2005] EWCA Crim 887 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT BOURNEMOUTH HIS HONOUR JUDGE JARVIS No: T20047028 Royal Courts of Justice Strand, London, WC2A 2LL Date: Friday, 22 April 2005 Before : LORD JUSTICE AULD MR JUSTICE BEATSON and MR JUSTICE WAKERLEY - - - - - - - -

Case No: 200500203 D5, 200500235 D5, 200500238 D5, 200500239 D5, 200500241 D5, 200500243 D5, 200500244 D5, 200500245 D5 & 200500246 D5 Neutral Citation Number: [2005] EWCA Crim 887 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT BOURNEMOUTH HIS HONOUR JUDGE JARVIS No: T20047028 Royal Courts of Justice Strand, London, WC2A 2LL Date: Friday, 22 April 2005 Before : LORD JUSTICE AULD MR JUSTICE BEATSON and MR JUSTICE WAKERLEY - - - - - - - - - - - - - - - - - - - - - INTERLOCUTORY APPLICATION UNDER 5.35 CRIMINAL PROCEDURE AND INVESTIGATIONS ACT 1996 Between: REGINA -and- 1) G S 2) T 3) D S 4) B R 5) G C 6) P C 7) W 8) T 9) O R - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of Smith Bernal Wordwave Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr David Gibson-Lee for the 1 st Appellant Mr Richard Bendall for the 2 nd – 9 th Appellants Mr Robert Davies & Mr Martin Lanchester for the Prosecution - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Auld : 1. When the Court heard these appeals of GS and his eight co-appellants on 21 st January 2005 they were facing trial in the Crown Court at Bournemouth on charges of conspiracy to supply Class A and Class B/C drugs. The prosecution sought to adduce evidence of covertly recorded conversations of the appellants obtained pursuant to the provisions for intrusive surveillance in Part II of the Regulation of Investigatory Powers Act 2000 (“ the 2000 Act ”). 2. In a preparatory hearing held by His Honour Judge Jarvis on 12 th January 2005 under section 30 of the Criminal Procedure and Investigation Act 1996 (“the 1996 Act”), he held, on a defence application to stay the proceedings for abuse of process and/or, in the absence of disclosure of certain material, to exclude the covertly recorded evidence as unfair under section 78 of the Police and Criminal Evidence Act 1984 (“ PACE ”): i) that, having regard to the evidence put before the court of the Surveillance Commissioners’ approvals of authorisations for obtaining such evidence, given pursuant to Part II of the 2000 Act , the recorded evidence should be admitted, subject to the prosecution reviewing matters with a view to possible further disclosure; and ii) that, for the purpose of a defence application to exclude such evidence under section 78 of PACE , the defence was not entitled to see the authorisations or any of the other underlying material placed before the Surveillance Commissioners for the purpose of obtaining their approvals. 3. The appellants, with the leave of the Judge, under section 35(1) of the 1996 Act, appealed against those rulings. This Court, having dismissed their appeals, now gives its reasons for doing so. The scheme of the legislation 4. The scheme of the legislation has its starting point in Part III of the Police Act 1997 , which provided, in addition to existing common law and statutory powers of the police, a scheme of authorisation to them and other law enforcement agencies, to effect covert entry upon and interference with property or with wireless telegraphy. It empowers “authorising officers”, namely Chief Constables and others holding appointments of similar standing, to authorise such covert surveillance subject, in the more intrusive forms, to approval in advance by independent Commissioners appointed under the Act, whose decisions, by section 91(10) of the Act “shall not be subject to appeal or liable to be questioned in any court”. In various respects its provisions have been supplemented or overtaken by the provisions of Part II of the 2000 Act , to which the ouster provision of section 91(10) also applies. 5. The intention of the 2000 Act was to provide a comprehensive regulatory structure covering interception of communications, surveillance and associated activities. It replaced the statutory regime in the Interception of Communications Act 1985 , but not those in Part III of the 1997 Act or the Intelligence Services Act 1994 , although it amends both of those Acts. Its purpose is, so far as possible, to achieve a degree of uniformity in relation to the authorisation as well as the availability of protections in respect of the interception of confidential communications, in particular the interception of telephone communications, whether by public or private systems and various other forms of covert surveillance which involve interference with private life under Article 8 ECHR. 6. Thus, the 2000 Act distinguishes between “directed” and “intrusive” surveillance, and, as will be seen, provides greater protection to the suspect in the case of the latter. Directed surveillance, for which section 26(2) provides, is covert investigation undertaken in relation to an investigation or a specific operation likely to result in the obtaining of private information about a person. Intrusive surveillance, for which section 26(3) provides, is covert surveillance in relation to anything taking place on residential premises or in any private vehicle, and involves the presence of an individual on the premises or in the vehicle or carried out by means of a surveillance device. By section 27(1) , all surveillance for which Part II provides is “lawful for all purposes” provided it is authorised under the Act and undertaken in accordance with that authorisation. Section 27 (1) reads: “Conduct to which this Part applies shall be lawful for all purposes if – (a) an authorisation under this Part confers an entitlement to engage in that conduct on the person whose conduct it is; and (b) his conduct is in accordance with that authorisation.” 7. Section 32(1) -(4) of the 2000 Act empowers the Home Secretary and “Senior Authorising Officers”, namely chief constables and the like, to grant authorisations for the carrying out of intrusive surveillance. They may only do so if they believe that it is necessary in various interests, including “the purpose of preventing or detecting serious crime”, and that it is proportionate to what is sought to be achieved by carrying it out. In determining the necessity for exercise of the power the decision maker is required to consider whether the information sought could reasonably be obtained by other means. 8. However, by sections 35 and 36 of the 2000 Act , such authorisation and its taking effect are subject to notification, providing information to, and “scrutiny” and written approval by, an independent Surveillance Commissioner appointed under the Act, who is required to be a person of considerable experience and standing, who holds, or who has held, high judicial office. Such approval is to be given in advance save where the authorising officer believes the case is one of urgency. By section 37 , a Surveillance Commissioner may quash an authorisation approved by him and/or order destruction of information obtained by virtue of it if he is satisfied that when or since he granted approval the requirements for its grant under section 32 were no longer satisfied. By section 40 of the Act all police and members other enforcement agencies have a statutory duty to comply with any request of a Surveillance Commissioner for documents or information required by him to enable him to carry out his functions. 9. By section 38 of the 2000 Act , there is a provision for a Senior Authorising Officer to appeal to a Chief Surveillance Commissioner against a Surveillance Commissioner’s refusal to approve, or quashing of, an authorisation. Although, as the provision makes plain, this is not an appellate machinery available to a suspect to challenge the making and/or approval of an authorisation, it does provide yet another higher level of protection to him in the event of the Chief Surveillance Commissioner allowing the Senior Authorising Officer’s appeal. 10. Finally, by section 65(4) and (5) of the 2000 Act there have been introduced for the 1997 Act and 2000 Act a new complaints Tribunal, the President of which must be a person who holds or who has held high judicial office, for those aggrieved by decisions made under their respective procedures, including that in relation to conduct to which Part II of the 2000 Act applies. It provides in sub-section (4): “The Tribunal is the appropriate forum for any complaint if it is a complaint by a person who is aggrieved by any [such] conduct … which he believes: (a) to have taken place in relation to him, to any of his property, to any communications sent by or to him, or intended for him, or to his use of any postal service, telecommunication service or telecommunication system; (b) and to have taken place in challengeable circumstances or to have been carried out by or on behalf of any of the intelligence services” The Act also gives the Tribunal extensive powers of investigation and remedy including the quashing or cancelling of any warrant or authorisation, the destruction of any records, compensation and any other such order it thinks fit. 11. Thus, as Judge Jarvis noted in his judgment in this case, the law has erected a number of significant thresholds to be surmounted by authorities before they may employ the 2000 Act as a means of intrusion on an individual’s private life, namely: satisfaction of a Senior Authorising Officer and written approval, normally in advance, of an independent Surveillance Commissioner and sometimes, in the event of an appeal under section 38 , the Chief Surveillance Commissioner; and if complaint is made by a suspect or other aggrieved person, the scrutiny of the Tribunal under sections 65 to 70, that: 1) the authorisation is necessary (in this case for preventing or detecting serious crime); 2) there is no reasonable alternative means of obtaining the information sought; and 3) the nature and extent of the surveillance is proportionate to what is sought to achieve by its use. It is against the backcloth of those thresholds or stringent conditions, coupled with Codes of Practice issued by the Home Secretary pursuant to section 71 of the Act, that the intent of section 91(10) of the 1997 Act in ousting any right of appeal or questioning “in any court” in relation to such approvals should be considered. 12. Before turning to the facts of the case, it should be noted that none of these provisions purport to deal with admissibility of evidence lawfully obtained under them, as observed by Potter LJ, giving the judgment of the Court in R v SL & Ors [2001] EWCA Crim 1829 , at para 68, and Rose LJ, giving the judgment of the Court in R v Hardy & Hardy [2002] EWCA Crim 3012 , at paras 18 and 19. They are relevant only to the lawfulness of the evidence obtained. Whether or not lawfully obtained, it still remains a matter for the court to decide under section 78 of PACE , whether it would be fair to admit it into evidence. As the editors of the current edition of Archbold put it, at paragraph 15-256, citing Lord Nolan in R v Khan (Sultan) [1997] AC 558 , at 582, “It is the effect of the behaviour of the police on the fairness of the proceedings that is important, rather than the illegality of their conduct”. The facts of the case giving rise to this appeal 13. A significant part of the prosecution case against these nine appellants consisted of covert recordings made by the police at the home of the first three of them, GS, CT and DS, of conversations about drug trafficking with various of the other six appellants over a period of five months. At the preparatory hearing the prosecution sought to establish the lawfulness of that intrusive surveillance by producing the Surveillance Commissioners’ written approvals and renewals of the relevant authorisations. 14. Defence counsel asked the Judge to rule that the prosecution should disclose the material placed before the Surveillance Commissioners when seeking approval and renewals of the authorisations. They accepted that such material, if disclosed, might need to be edited for public interest immunity purposes, but submitted that, without it, they could not properly formulate any argument that might entitle them to exclusion of the recordings under section 78 of PACE . 15. More precisely, defence counsel sought, seemingly as part of what they regarded as prosecution primary disclosure, disclosure of all documentation underlying those approvals, in particular, details and copies of the applications for authorisation, the authorisations themselves and the material put before the Surveillance Commissioners when seeking and obtaining their approvals. Their object was to examine whether the procedures in the 2000 Act had been followed and the relevant statutory criteria satisfied as a step on the way to making a section 78 application for exclusion of the recorded conversations. In the alternative, they asked the Judge to look at the documentation as undisclosed material of which they had requested disclosure under section 8 of the 1996 Act, with a view to him forming a view as to abuse of process or as to whether its non-disclosure to the defence would render the admission of the surveillance evidence unfair under section 78 of PACE . 16. In seeking that material, defence counsel, save we believe in the case of the appellant, GS (see paragraph 24 below), did not point to any particular aspects of the authorisation procedure giving them cause for concern. It was essentially a “fishing expedition” to enable them to discover whether they might have a case for seeking exclusion of the recorded conversations as unfair, by reason of unlawfulness of the authorisation procedures adopted or as to compliance with them, or otherwise under section 78 of PACE . 17. The prosecution’s stance was: 1) to rely upon the ouster provision in section 91(10) of the 1997 Act ; 2) to assert that it was no part of the prosecution’s duty to put before the Judge with a view to its possible disclosure material that it had formed the view it had no duty to disclose and that, in any event, was protected by public interest immunity that could be prejudicial to the defence for the Judge to read; and 3) to maintain that production of the information sought as to compliance with the authorisation and approval procedures in the 2000 Act would turn into an inquiry into the nature and veracity of intelligence on which those authorisations and approvals had been obtained, information ordinarily non-disclosable on public interest immunity grounds. The prosecution conceded, however, that such issues aside, it was still open to the defence to argue that lawfully obtained evidence should be excluded as unfair under section 78 on other grounds, if there were any. 18. The Judge refused the defence applications, holding that it was for the Surveillance Commissioners, acting under their statutory powers, to form a view as to the propriety of the information and procedures giving rise to the authorisations. He said that he was satisfied by the approvals produced to him, that they had done that. And, as to disclosure of that underlying information or any other material relating to it, he said that it was for the prosecution to determine whether it had any duty of disclosure. 19. More particularly, he held: i) that the 2000 Act , in particular sections 32 and 36, was intended to, and does, provide a rigorous and high level machinery for securing that intrusive means of this sort are legally permissible in the interests of national security and for the offences alleged, namely “serious crime”, where the evidence could not reasonably be obtained by other means, and where the intrusive surveillance for which authorisation is sought is proportionate. ii) that section 91(10) of the 1997 Act , in its application to the 2000 Act , renders Surveillance Commissioners’ approvals of Chief Constables’ authorisations under Act conclusive as to the lawfulness of the intrusive means of obtaining the evidence, in that it provides that their decisions “shall not be subject to appeal or liable to be questioned in any court”. iii) that the effect of those provisions is to substitute the machinery of the 2000 Act , culminating in Surveillance Commissioners’ approvals of Chief Constables’ authorisations, for the responsibility of the Court for determining whether such evidence was lawfully obtained. iv) that, quite separately, the prosecution must consider in relation to the intrusively obtained evidence whether it has any un-used disclosable material and, if so and subject to any public interest immunity interest, disclose it to the defence; and v) that he was satisfied from the Surveillance Commissioners’ approvals put before him that the intrusively obtained evidence had been obtained in accordance with the requirements of the 2000 Act , and that, therefore, there had been no abuse of process or, on that account, any prejudice to the fairness of the trial. The issues raised by the appeal 20. The points of law upon which the Single Judge gave leave to appeal are: i) whether, in determining an application to exclude covertly recorded evidence the trial judge should proceed upon the basis that, if appropriate procedural steps have been followed under the 1997 and/or 2000 Act, the evidence should be admitted, subject only to the discharge by prosecution counsel of his duty to review material for the purpose of disclosure; ii) alternatively, whether the trial judge is required by section 78 of PACE to consider all the circumstances, including those in which the evidence was obtained, and, if so, whether the defence are entitled to disclosure of all material placed before the Surveillance Commissioners (subject to necessary editing) in order to enable them adequately to challenge where appropriate the fairness of admitting the evidence. 21. All the appellants argue that a judge should not abdicate to the Surveillance Commissioner or the prosecution the responsibility of deciding the admissibility of evidence, and that the defence should, subject to any public interest immunity claim by the prosecution, have access to the material placed before the Surveillance Commissioner, as well as to his approval of the authorisation, to enable them to make informed submissions on whether the statutory requirements for it had been complied with and/or as to the fairness of admitting the evidence under section 78 of PACE . 22. Mr Richard Bendall, on behalf of the 2 nd – 9 th appellants PC and GC, whose submissions before the Judge and before this Court were adopted by counsel for the other appellants advanced the following propositions: i) that the Judge wrongly decided that the provisions of the 1997 and 2000 Acts, in particular section 91(10) of the 1997 Act , had effect so as to relieve him of responsibility for examining whether he statutory procedures and requirements of those Acts had been followed and/or whether, as to the manner in which they had been followed, it was fair under section 78 to admit the evidence. ii) that the effect of section 91(10) was simply to prevent any legal cha1lenge to the authorities, for example, by a civil claim against a Chief Constable or Surveillance Commissioner, and that it has no effect upon what use can be made of the intrusively obtained material in a criminal trial. iii) that, as a corollary of (i), the defence should have full disclosure of the underlying material to enable their counsel to make informed decisions on both the legality of that material and as to the fairness of admitting it into evidence; iv) that the guidance applicable to the disclosure of ordinary un-used material, as set out by the House of Lords in R v H & C [2004] 2 A.C. 134 , cannot be fairly applied in these circumstances where the information in question discloses the circumstances in which material that the prosecution do wish to use was obtained - they relied instead on the approach of the House in R v P [2002] 1 A.C. 146 . v) that, whether or not that information is considered by the prosecution possibly to undermine its case or assist the defence, in fairness it still needs to be disclosed to enable the defence properly to argue their case; and vi) that this is not so much a question of disclosure; it is one of admissibility, for which the Surveillance Commissioners are not responsible. 23. In support of those propositions, Mr Bendall relied upon: 1) the first question posed by Lord Bingham of Cornhill at paragraph 36 of his speech in R v H & C, namely whether the court had considered in detail the material that the prosecution seek to withhold; 2) the following words of Lord Hobhouse of Woodborough in the earlier case of R v P , at 161B: “It should be noted that the … [the European Court of Justice in Schenk v Switzerland 13 EHRR 242 , at paras. 38-40] again emphasised that the defendant is not entitled to have the unlawfully obtained evidence excluded simply because it has been so obtained. What he is entitled to is an opportunity to challenge its use and admission in evidence and a judicial assessment of the effect of its admission upon the fairness of the trial as provided by section 78 .” and 3) the approach of this Court to similar concerns in R v SL [2001] EWCA Crim 1829 , which concerned the less rigorous provisions of the 1997 Act , in which the prosecution disclosed a large volume of edited documents, consisting of the applications for authorisation, which set out the grounds for them, as well as the resultant authorisations, thus enabling cross-examination as to whether the relevant statutory criteria had been considered. 24. The first appellant, GS, put at the forefront of his appeal the ground that the Judge should himself have reviewed the material provided to the Surveillance Commissioners with a view to deciding whether, under section 78 of PACE , to admit the intrusively obtained evidence. His main complaint, as presented by Mr David Gibson-Lee, was that the Chief Constable had authorised and the Surveillance Commissioner had approved the authorisation in respect of GS at a time when they knew, or should have known, that he could not be present at the premises the subject of the intrusive surveillance, because he was in prison. If, for the purpose of the appeal, we assume that assertion to be correct, we cannot see upon what basis it could justify a section 78 application on behalf of GS, even if it were asserted on his behalf – which it was not – that the prosecution had attributed to GS the voice of another in the recorded conversations. 25. The prosecution’s response to these submissions was the same as that of the Judge to the defence applications, namely: i) that the lawfulness of the means employed to obtain the evidence in question was conclusively established by documentary approval of the Surveillance Commissioners of the Chief Constable’s authorisations; and ii) that, in the circumstances and bearing in mind the guidance of the House of Lords in R v H & C as to disclosure of un-used material, no further disclosure was required, given the prosecution’s assurance that it had complied with its obligation of disclosure under the 1996 Act and the Attorney-General’s Guidelines of 29 th November 2000. 26. Mr Robert Davies, on behalf of the prosecution, drew attention to a similar decision and reasoning of His Honour Judge Loraine-Smith in a recent trial in the Crown Court at Southwark, R v C-D (22 nd December 2004). He relied, in particular, on what he described as “the unique nature” of the rigorous scrutiny provided by both Acts at each stage of any proposed or current investigation involving the use of covert “bugging” techniques within a suspect’s home. He submitted that the combination of such scrutiny and safeguards, coupled with the ouster provision in section 91(10) of the 1997 Act make plain the intention of Parliament that the courts should not re-visit the legality of the authorisation through an examination of its process. Conclusion 27. The statutory backcloth, now of both the 1997 and 2000 Acts, is one of provision for independent verification at very high “judicial” level that intrusive surveillance authorisations have at all times been lawful, in particular in their compliance with the requirements as to necessity and proportionality in section 36 of the 2000 Act . In addition, as we have noted, there is now a high level Tribunal to inquire into complaints by those subjected to intrusive surveillance who take issue with a Surveillance Commissioner’s approval, the jurisdiction of which covers both the legality of the authorisation and whether the surveillance was conducted in accordance with the authorisation. It is plain that section 91(10) of the 1997 Act , in the context of the 2000 Act , is designed to prevent re-litigation in the course of a criminal trial of the entire protective regime of high level authorisation and approval of it. 28. Whilst there is jurisprudential support for the proposition that the Acts are concerned with lawfulness, not admissibility, of information obtained by surveillance covered by their provisions, it is plain from the 2000 Act , section 27 in particular, that the protection given by section 91(10) goes beyond protecting Chief Officers and Surveillance Commissioners from civil proceedings for claimed illegality of authorisations in the event of approved authorisations not complying with the statutory criteria. Section 27 , to which His Honour Judge Loraine-Smith drew attention in his ruling against disclosure of underlying material in R v C-D, is important in its provision that the conduct covered by the authorisations is “lawful for all purposes”. It follows that the words of section 91(10) , as applied to Surveillance Commissioners under the 2000 Act , that their decisions “shall not be subject to appeal or liable to be questioned in any court” [the Court’s emphases] make the ouster equally applicable to criminal proceedings in respect of which the surveillance authorised is brought into question as it is to immunity from civil proceedings. That certainly seems to have been the approach of Potter LJ and Rose V-P in R v SL & Ors and R v Hardy & Hardy respectively. 29. In R v SL, which concerned the 1997 Act regime, a good deal of information was disclosed and put before the Court as to the content of the authorisations, including specific consideration given to the Act’s criteria, with no doubt, as Potter LJ said, at paragraph 87, the remarks of Lord Hobhouse in R v P “in mind”. However, it should be noted that R v P related to an overseas intercept and to an earlier Act (the Interception of Communications Act 1985) . It does not follow that such a course is appropriate under the more rigorous regime provided by the 2000 Act , having regard to the fact as Potter LJ pointed out in R v SL, at paragraphs 104 and 105, that, even though the evidence may have been obtained unlawfully, that does not in itself render its admission unfair under section 78 of PACE : “104 It has been vigorously argued in the course of this appeal that, because under English law the admissibility of evidence in a criminal trial does not depend upon whether or not it has been obtained by lawful means, and because in an intrusive surveillance case, a defendant will rarely be able to mount an argument of procedural unfairness based simply upon a breach of Article 8, the effect of the decision in R –v- P is , in most trials, both to render Article 8 of no practical significance and s.78 of no practical utility, in respect of the potential exclusion of probe evidence illegally obtained in breach of a defendant’s right to privacy provided for in Article 8. That may well be the position in most cases. That is not a surprising conclusion because, as Lord Hobhouse explained, Article 8 is not concerned with questions as to the admissibility of evidence. In a case where there has been a flagrant non-use or misuse of the authorisation procedures laid down there may well be grounds for a stay on grounds of abuse of process and, in any event, a demonstration of such executive lawlessness will also require to be taken into consideration on the issue of fairness. Lord Hobhouse made clear that, when exercising his discretion under section 78 , the judge must have regard to all the circumstances in which the evidence was obtained. However, since, as again Lord Hobhouse pointed out, s. 78 is concerned with the fairness of the trial process, the fact that evidence has been obtained unlawfully is unlikely in itself to weigh very heavily in the scales. It is however impossible to foresee all situations and s.78 is available as a ‘safety net’ in cases engaging Article 8, as is plainly envisaged in both the Strasbourg and English jurisprudence. In cases such as the present, however, the defendant is unlikely to be disadvantaged in dealing with the intercept material. 105. Finally, it has been urged upon us that, unless there is exclusion of such evidence under s. 78, the criminal courts are unable to grant an effective remedy to a defendant in respect of the breach of privacy involved. If, by reference to ‘an effective remedy’ is meant a remedy which excludes the cogent evidence of criminality which tape recorded conversation of a defendant may provide, that is correct. It is the essential function of a criminal court in this country to provide a fair trial on the basis of the evidence available (Article 6 considerations) rather than to provide remedies for breaches of Article 8. In English law, the effective remedy intended to be available is that provided under the 1997 Act as subsequently amended. Like the judge we would hold that, even if the arguments as to ‘form not substance’ and ‘proportionality’ demonstrated a breach of Article 8 in respect of the appellant’s rights to privacy (which in our view they do not), a fair trial is nonetheless possible.” See also R v Hardy & Hardy, a case of directed surveillance, not involving a Surveillance Commissioner, per Rose V-P at paras. 18 and 19. 30. Potter LJ, by his earlier references in paragraphs 5 and 6 of his judgment in R v SL, to section 91(10) of the 1997 Act and its application to the 2000 Act regime, showed that he was aware of its impact as to the lawfulness of obtaining such intrusive evidence. However, as is plain from his discussion in paragraphs 104 and 105 of his judgment (paragraph 29 above), he left open some necessarily ill-defined role for section 78 on the issue of admissibility. He suggested that the matter might be different where there has been a flagrant non-use or mis-use of the authorisation procedures. However, the scope for recourse to section 78 even in such circumstances is likely to be rare and the boundary between legality and admissibility ill-defined, for it is that sort of behaviour that the Surveillance Commissioners are there to prevent. 31. A possible example of such recourse to section 78 in the case of 1997 Act surveillance evidence is R v Templar [2003] EWCA Crim 3186 , in which the prosecution, on an application based on defence allegations of manipulation of the recorded material, declined to disclose the underlying material on the ground of public interest immunity. The trial judge and the Court of Appeal of Appeal looked at the material, and held that the prosecution was right to withhold disclosure. Latham LJ, giving the judgment of the Court, adopting prosecuting counsel’s concession that section 91(10) did not preclude such an inquiry, said, at paragraph 14: “It seems to us that this sub-section does not preclude, in itself, …an inquiry into the question of whether or not the relevant decision of the Commissioner has been obtained by deception or by some other reprehensible conduct amounting to an abuse of process, which could found an argument under s. 78 of the Police and Criminal Evidence Act to the effect that evidence so obtained should be excluded. ” 32. However, as Judge Loraine-Smith asked in R v C-D , who is to conduct that inquiry? We agree with him that Section 27 of the 2000 Act and section 91(10) of the 1997 Act as applied to the 2000 Act clearly preclude an inquiry by a criminal court into the lawfulness of an approved authorisation. Lawfulness or otherwise in that respect may, but does not necessarily have an effect on any decision as to admissibility under section 78 that the Court may be called upon to make. It is no part of a Surveillance Commissioner’s or of a section 65 Tribunal’s function to determine admissibility. So much is implicitly acknowledged in section 37(7) of the 2000 Act , in its prohibition of an order for destruction of records, following a quashing of an authorisation, pending criminal or civil proceedings. Equally, it is not open to the criminal court to embark upon an examination of material underlying an approved authorisation, to determine whether the correct statutory criteria have been correctly taken into account and so on, all of which go to the issue of lawfulness. If there are other aspects – which the courts have, so far, found somewhat elusive to identify - upon which section 78 considerations of fairness may be called into play, they are not to be found by looking behind the decisions of the Chief Officers and Surveillance Commissioners to test their lawfulness. 33. The answer, it seems to us, is that identified by Judge Loraine-Smith, by reference to the reasoning of the House of Lords in R v H & C , especially that of Lord Bingham of Cornhill, namely the responsibility of prosecuting counsel to ensure proper disclosure. Lord Bingham said this at paragraph 35: “If material does not weaken the prosecution case or strengthen that of the defendant, there is no requirement to disclose it. For this purpose the parties’ respective cases should not be restrictively analysed. But they must be carefully analysed, to ascertain the specific facts the prosecution seek to establish and the specific grounds on which the charges are resisted. The trial process is not well served if the defence are permitted to make general and unspecified allegations and then seek far-reaching disclosure in the hope that material may turn up to make them good. Neutral material or material damaging to the defendant need not be disclosed and should not be brought to the attention of the court. Only in true borderline cases should the prosecution seek a judicial ruling on the disclosability of material in its hands. If the material contains information which the prosecution would prefer that the defendant did not have, on forensic as opposed to public interest grounds, that will suggest that the material is disclosable. If the disclosure test is faithfully applied, the occasions on which a judge will obliged to recuse himself because he has been privately shown material damning to the defendant will, as the Court of Appeal envisaged … be very exceptional indeed.” [the Court’s emphasis] As Judge Loraine-Smith observed, the more relaxed approach in R v Templar in which the trial judge and the Court of Appeal looked at the underlying material, was, of course, before those observations of Lord Bingham, in which he clearly had in mind the disclosure provisions of the 1996 Act. In addition, in R v Templar, the trial judge and the Court proceeded on the Crown concession, without argument to the contrary, that they should look at the underlying material. Although Mr Bendall emphasised that, in considering section 78 , a court is concerned with admissibility, in respect of which both parties should have access to the material in question, rather than with disclosability, the latter is often directed to the same end, namely of making available to the defence material that may, whether by use as evidence or of identification of other evidence or as material for cross-examination, undermine the prosecution case or assist the defence. 34. As we have said, in the present case, the various appellants made no allegations nor expressed any clear and cogent reasons to support section 78 applications in respect of the covertly recorded conversations, merely suggestions that if they had access to the documentation underlying the Surveillance Commissioners’ approvals of the authorisations for obtaining them, they might find something to support their applications. This was clearly not a “border-line” or an “exceptional” case for disclosure of material of the sort envisaged by Lord Bingham in R v H & C. On the contrary, it was a case in which, as Mr Davies has informed the Court, one in which the public interest immunity material, if disclosed to the Judge could have potentially damaged the standing of the defendants in the eyes of the Judge. 35. The normal starting and stopping point for the prosecution when seeking to rely upon the provisions of sections 32 -40 of the 2000 Act in relation to intrusive surveillance is to produce to the trial judge the Surveillance Commissioner’s signed approval forms. An alternative would be for the Chief Officer, who had authorised and obtained approval of the surveillance pursuant to Part II of the 2000 Act , to give evidence to that effect, producing the approval forms if his evidence was challenged. Such evidence should be adequate for the purpose of the Act and, given the specific criteria set out in section 36 of it, including those as to necessity and proportionality, sufficient also for the purposes of Article 6, ECHR (and for that matter, Article 8, with which the criminal courts are not concerned). Once it has been produced, defence counsel are not entitled to reopen the lawfulness of the authorisation as a means of, or as a route to, ventilating its admissibility under section 78 of PACE or otherwise. 36. Accordingly, in our view, the Judge correctly relied upon the approval forms signed by the Surveillance Commissioners placed before him by the prosecution as a means of satisfying himself that the intrusive surveillance in this case had been lawfully authorised. He was not required to accede to the defence requests for disclosure or access to the material underlying those approvals or, in the circumstances, to examine it himself. In particular, it was not – particularly in the absence of any clear cause for concern identified by the defence - a border-line or exceptional case of the sort envisaged by Lord Bingham in R v H & C so as require him to oversee, by viewing the underlying material for himself, the adequacy of the prosecutor’s discharge of his responsibility for disclosure. _______________

2005_04_22-492.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/887/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/887

17ec06713c0ff930008a66201a08a2e0cf419548c3d5822e9ec1563b0468b4d9

[2009] EWCA Crim 1370

EWCA_Crim_1370

2009-05-13

crown_court

Neutral Citation Number: [2009] EWCA Crim 1370 Case No: 2007/03865/B4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Wednesday 13 May 2009 B e f o r e: LADY JUSTICE HALLETT DBE MR JUSTICE DAVIS and MRS JUSTICE SLADE DBE - - - - - - - - - - - - - - - - - - - - - R E G I N A - v - E - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, L

Neutral Citation Number: [2009] EWCA Crim 1370 Case No: 2007/03865/B4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Wednesday 13 May 2009 B e f o r e: LADY JUSTICE HALLETT DBE MR JUSTICE DAVIS and MRS JUSTICE SLADE DBE - - - - - - - - - - - - - - - - - - - - - R E G I N A - v - E - - - - - - - - - - - - - - - - - - - - - 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 Appellant Mr M F Butterworth appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T LADY JUSTICE HALLETT: 1. On 24 October 2003, following a retrial in the Stoke-on-Trent Crown Court, before His Honour Judge Orrell and a jury, the appellant was convicted of five counts of rape (counts 1-4 and 6) and one count of indecent assault (count 5), all contrary to the Sexual Offences Act 1956 . On 18 December 2003 he was sentenced to a total of twelve years' imprisonment. He has the leave of the full court to appeal against his convictions on the basis of alleged inadequacies in the summing-up. This is despite the fact that he required an extension of time of approximately three years and eight months. The question of whether or not we should receive fresh evidence was referred by the full court to us. 2. The three complainants, whose identity must not be revealed, were "A", born September 1991 (the complainant in counts 1-4), "S", born July 1989 (the complainant in count 5), and "L" (the complainant in count 6). They were respectively daughter, stepdaughter and wife of the appellant. 3. The appellant and his wife married in 1991. Between that time and the time they separated in the summer of 1999 the prosecution alleged that the appellant assaulted A on a regular basis, assaulted S once, and assaulted L once. The occasion of the alleged assault on L can be dated. On 30 April 1999 she went to the dentist. During the course of her treatment she was given an intravenous sedative. The appellant collected her from the dentist and took her home. He there helped her to bed. Nothing more was said at the time. 4. When the parties separated, L retained custody of the children. There was a brief period of no contact between the appellant and the girls. However, A asked to see her father and contact between the appellant and A and S resumed. It continued on a frequent basis over the next three years. There was no evidence of either girl’s being reluctant to see him. 5. In November 2000 A and S told the police that a family friend, JH, had abused them sexually. They made no mention at that time of any alleged abuse at the hands of the appellant which on their account had already taken place. The appellant attended the police interviews of his daughter and stepdaughter, but the prosecution suggested that he distanced himself deliberately from the trial. In fact, his daughter and stepdaughter did not have to give evidence at trial because JH pleaded guilty to two charges of indecent assault on S. 6. By 2002 both L and the appellant had developed relationships with other people. They had done their best to put previous ill-will behind them and were said to be getting on relatively well. 7. On the evening of 10 March 2002, however, when she was aged 10 years and 6 months, A was watching television with her mother and sister S. She told her mother and S that her father had been having sex with her. She was eventually to claim that the appellant raped her anally on a regular basis from the age of about 4 or 5, until she was about 7 or 8. L did not believe her at first, but decided to telephone the appellant and tell him what had happened. She telephoned him several times that night. By the fifth call she was in an agitated state because she had come to believe A's allegations. The following day L took A to school. She explained to the teachers why A might be distressed. 8. At some stage (it was not clear to us when) A retracted her allegations. However, she later requested help from her headmaster about the alleged abuse, as a result of which Social Services were informed. L told S, who so far had said nothing, that if anything had happened to her, she must disclose it. On 12 March 2002 S alleged for the first time that the appellant had sexually abused her when she was aged 8 or 9 in similar fashion to the abuse on A. That same evening the appellant contacted the police. The following day A and S were video-interviewed. 9. On 14 March 2002 L made an allegation for the first time that the appellant had assaulted her. She claimed that on the occasion of the visit to the dentist the appellant had raped her anally. She said that she came round from the sedative to find herself naked from the waist down, with the appellant rubbing his penis around her anal and vaginal areas. She saw the appellant place a jar of Vaseline in a drawer as he left, and she felt traces of Vaseline on her lower half. It was the use of Vaseline which, she said, triggered her realisation that she had been raped because both girls had described the use of Vaseline upon them. 10. The defence pointed out that it took L three years to report an allegation of anal rape, which was strikingly similar to the allegations made by the girls. By the time L made her allegation, she had full details of what the girls were saying. The defence were also able to rely to some extent on the fact that medical examination of the girls did not indicate that either of them had been buggered, either on one occasion or repeatedly. 11. In interview on 15 March 2002 the appellant gave an account broadly consistent with what he said at trial. He said that there was no truth in the allegations. He believed that they must have been invented by the girls, having been prompted so to do by their mother. He also said that L must have been lying about what happened to her. 12. Mr Barlow appeared before us on behalf of the appellant, but not in the court below. In his skeleton argument he included a plea from the heart on behalf of all those accused of sex abuse. He said: "5. From the position of any individual accused of sexually abusing their own children the criminal process provides little comfort to those genuinely innocent of such crimes. The ease at which allegations can be made and the real risk that false allegations can be made for a number of varying reasons provides a real challenge to the law of evaluating the safety of any resultant convictions. All that an individual can do is to deny the allegations and hope that a jury can be persuaded that they cannot be sure of guilt by calling evidence from an independent source which questions the reliability of the complaint. In a domestic situation that hope is diminished even further simply because of the dynamics of family living. In an age where corroboration is no longer required and the ease with which similar allegations can be used to booster the prosecution case the reality is that without positive evidence to undermine those allegations the individual will be convicted. Without true independent corroboration, such as forensic or conclusive medical evidence, many cases rest upon word against word. The law operates in a way that the presumption of innocence is simply a notion which is paid lip service to and where a highly emotive subject is left to the 'good sense' of the jury to determine the truth." 13. We reject the assertion that the law merely pays "lip service" to the presumption of innocence, and we reject the implied criticism of the jury system. When an allegation of sex abuse is made, someone must decide where the truth lies. In our view, a jury made up of twelve men and women chosen at random is best placed to do so. As for the rest of this passage, we have no doubt that Mr Redmond, a very experienced advocate, who appeared for the appellant at trial made all the points relied on by Mr Barlow before the jury. It should not be forgotten that the purpose of an appeal to this court is not to act as a jury or to second-guess a jury. The purpose is to assess whether anything has gone wrong at trial or whether for any other reason doubt has been cast upon the safety of the conviction. 14. Mr Barlow argued that the convictions are unsafe on two bases: first, the judge misdirected the jury; and second, the jury did not hear from an expert in the field of memory of early childhood events, namely Professor Conway. 15. We shall take those complaints in turn. The foundation for most of Mr Barlow's criticisms of the judge's directions is his categorisation of this case as one of “historic sex abuse”. He argued that the judge erred in failing to give a warning to the jury of the need to take special care, given the tender age of A when she alleged that she was abused by the appellant; the length of the period between the alleged abuse; her reporting of it and her giving evidence about it; and given the fact that she retracted her allegations. Mr Barlow argued that the judge was obliged to direct the jury as to the effect of the delay between the alleged commission of the offences and their reporting in accordance with the recommended Judicial Studies Board direction which begins with the words: "We are now concerned with events which are said to have taken place a long time ago. You must appreciate that because of this there may be a danger of real prejudice to a defendant. This possibility must be in your mind when you decide whether the prosecution has made you sure of the defendant's guilt." 16. Mr Barlow reminded the court that the investigation in this case began with the disclosure by A, aged 10 years and 6 months. By the time of the retrial she was 14 years and 6 months. Her first recollection of the sexual abuse was that it had started when she was 3, 4 or 5 years of age. Counts 1-4 of the indictment reflected anal rapes between the ages of 4 and 8. He argued that this was a considerable delay and that the jury should have been warned about the frailty of the human memory, generally, after such a period and the particular frailty of a child's memory in these circumstances. 17. Mr Barlow wove into his submissions on delay an assertion that the judge should have given a direction on the special need for caution akin to the old direction on corroboration. He accepted, as he must, that Parliament abolished the requirement for corroboration in sexual cases in section 32 of the Criminal Justice and Public Order Act 1994 . However, he relied upon the decision of this court in R v Makanjuola [1995] 2 Cr App R 469 . He suggested that there is now a requirement in all cases of historic abuse for judges to direct the jury on the need for corroboration. Although he conceded that the court in Makanjuola stated unequivocally that the decision whether to give a direction on the special need for caution is at the discretion of the trial judge, depending upon the evidence and the issues, he insisted that the warning should be given in virtually every case of this kind. He argued that this is the only way to ensure a fair trial. 18. He relied on a number of decisions of this court, including R v Percival (19 June, CO/97/6746/X4), in which the delay was 28 years, in support of his proposition that a much fuller direction about delay and the ages of the children was required in this case. However, he did not rely upon the decision in R v Henry [1998] 2 Cr App R 161 , in which this court, presided over by Potter LJ (as he then was), reviewed cases on delay in offences of alleged sexual abuse. In Henry the appellant's daughter, aged 25, accused him of abusing her between the ages of 5 and 17. The last act of alleged abuse was five years before complaint was made. No specific difficulties in defending the case were brought to the judge's attention and no direction was given on delay. The convictions were upheld on the basis, first, that whether or not a direction is to be given is very much a matter for the discretion of the trial judge; and second, in any event, on the facts of that case, there was nothing which called for specific direction by the judge. The court was confident that the jury was well aware of the age of the case and the problems it raised in the context of the burden of proof, of which the jury was regularly reminded. 19. Exactly the same points could be made here. As we understand it, no request was made of the trial judge for any additional direction, and no specific difficulties occasioned by delay were brought to the trial judge's attention (or indeed to ours). We have no doubt that the jury would have been all too conscious of the years of delay, certainly so far as A was concerned, because the defence placed considerable reliance upon them. This was one of those cases where delay could be used to the defence’s advantage in that in the years that passed after the alleged abuse the girls made no complaint, either officially or unofficially, even when they made a complaint of sexual abuse about another man. One of them went out of her way to have contact with the appellant and both of them, it seems, continued to show the appellant affection. As for L, the defence was able to make great play of the way in which her allegation had surfaced years after the event. 20. The facts relied upon by Mr Barlow in this case, taken either individually or cumulatively, do not, in our view, provide sufficient evidential basis for the assertion that, absent a direction of the special need for caution, either on the basis that the children were very young at the time of the alleged abuse or on the basis of delay the convictions are unsafe. Further, the fact that A retracted her allegation for a brief period shortly after disclosure does not call her reliability into question, to such an extent that the judge was obliged to direct the jury on the special need for caution. 21. In any event, we have our doubts as to whether this case is truly one of “historic sex abuse” in the way the term is normally used. S was aged 14. She spoke of one incident of abuse when she was 12 years and 8 months, two to three years previously. A was aged 12 at the time of trial. She spoke of abuse which she disclosed aged 10 years and 6 months and which she claimed lasted over a continuing period of about four years. This is not, therefore, a case where the allegations surfaced many years after the abuse was over, many years after the complainants had left home, and years after, as mature adults, they had established their own lives. These were allegations made by children of what had happened to them when they were still children. We accept that four or five years is a long time in the life of a young child, and a direction on the effect of delay may be desirable in many cases, but that is a far cry from saying that it is essential in every case involving alleged abuse of a child. As we have indicated, it has been repeatedly stated by this court that it is very much a matter for the trial judge in the exercise of his discretion whether to give any special warning. In R v M [2000] 1 Cr App R 49 , the Vice-President (Rose LJ) giving the judgment of the court commented on the decision in Percival that, Percival was a decision on its own facts. At page 57E he observed: "We find in the judgment no attempt by the court to lay down principles of general application in relation to how judges should sum up in cases of delay, and accordingly we would wish to discourage the attempts being made with apparently increasing frequency in applications and appeals to this court to rely on Percival as affording some sort of blueprint for summing-up in cases of delay. It affords no such blueprint." The court reiterated that the need for any warning and the precise terms thereof, if required, were best left to the good sense of trial judges. 20. We respectfully agree. The trial judge sees and hears the witnesses and the criticisms made of their evidence and how the case is put at trial. He is far better placed than this court to determine whether there is a proper evidential basis for the additional warnings of the kind demanded by Mr Barlow. The judge here decided that there was not, and we note that counsel at trial did not suggest otherwise. The court will not interfere with the exercise of that discretion lightly. Mr Barlow has been unable to identify any aspect of the case which made additional warnings essential, save for the possibility of collusion and/or contamination. On that subject we note that the judge gave the jury very full and fair directions of some length, no doubt because it was alleged collusion which was at the heart of the defence's attack upon the prosecution witnesses. We also note that the judge's directions on the inconsistencies between the girls' evidence and the weaknesses in their evidence, as highlighted by the defence, were rehearsed and listed in some detail shortly before the jury retired to consider their verdict. In our judgment, any attempt to accuse the judge of unfairness in those circumstances is unjustified. 21. It also follows that we reject Mr Barlow's assertion that this case was one which required an elaboration of the good character direction as suggested by the Judicial Studies Board guidelines. In this case the judge very properly gave both limbs of the good character direction. He did not, however, add anything to it to deal with the question of delay. Mr Barlow argued the judge should have given a direction along these lines: "I have said that these are matters to which you should have regard in the defendant's favour. It is for you to decide what weight you should give them in this case. In doing this, you are entitled to take into account everything you have heard about the defendant, including his age and the fact that no other woman or girl has complained in all this time of any kind of sexual assault. Having regard to what you know about this defendant, you may think that he is entitled to ask you to give considerable weight to his good character when deciding whether the prosecution has satisfied you of his guilt." It was his contention that, absent such elaboration on the good character direction, the convictions are unsafe. He submitted that it was essential that the judge placed considerable emphasis on the appellant's good character, given the difficulties of a man accused of sexual assault in these circumstances. 22. We have our doubts as to whether the failure to add these words could amount to a misdirection sufficient to undermine the safety of a conviction in any case. But even if we were wrong about that, we have no doubt that the failure to add them here has had no impact at all upon the safety of these convictions. The jury knew full well that the appellant had reached his early thirties without being accused of abuse by anyone outside the family. In our view the direction on both elements of the standard good character direction was sufficient. No conceivable prejudice has been caused to the appellant from the failure to add more. 23. The next criticism Mr Barlow makes of the judge relates to a piece of evidence given by L when cross-examined as to inconsistencies in her account. She accepted she had not been entirely consistent in her account. When asked why not, she explained that she had recently been discharged from hospital after a major abdominal operation, buried her best friend, her daughters had undergone counselling for last twelve months, she had had to deal with bed-wetting, and one daughter was self-harming. In summary she said she was under stress and trying very hard to keep it all together. 24. In his written submission, Mr Barlow boldly criticised the judge for “admitting” this evidence which he described as "inadmissible". We say “boldly” because this was material elicited by defence counsel in cross-examination of L. Nevertheless Mr Barlow argued that, this evidence having been “wrongly admitted”, the judge can be criticised for failing to direct the jury that “evidence of distress” does not provide independent support for allegations of abuse. He now requires (although it was not required at trial) a direction to the effect that if the children were distressed, as L claimed, it provided no independent support for the allegations of abuse. 25. Mr Barlow reviewed a number of authorities on the use a jury may make of evidence of a complainant's distress. He argued that there was a real danger that this evidence may have been used by the jury to add credibility to the accounts of both children. The jury may have believed that bed-wetting and self-harming were possible consequences of abuse and therefore the evidence that this happened supported the truth of their allegations. As it seems to us, this line of argument confused and conflated a number of ideas. L did not suggest that she noticed distress on the part of the girls at the time of the alleged abuse years earlier. On the contrary, there seemed to be no indications that anything was wrong between the appellant and the girls. As we understand it, L's evidence was about the stress and distress after disclosure and in the build-up to their giving evidence at trial. Not surprisingly, the girls found this process very upsetting. The girls' distress was not relied upon in any way to support the allegations of abuse; for good reason. it came years after the alleged abuse. In any event, A never suggested that she was distressed by the abuse. On the contrary, in an embarrassed fashion she explained to the jury that in some ways she had enjoyed it. Thus, we are satisfied that there was here no need for any direction along the lines suggested by Mr Barlow. Even if such a direction might have been preferable, it is a huge leap to move from "a direction might be preferable" to "a failure to give one renders a conviction unsafe". 26. The final criticism of the judge's summing-up relates to evidence from A that she and S had discussed what had happened at the time. At page 16E of his summing-up the judge said this: "[A] said that a similar sort of thing happened to [S] and that they had talked about it and even laughed about it." S, for her part, denied talking to A about what had happened. It is important to note, therefore, that this is not evidence that the Crown sought to admit to bolster A's credibility. They did not rely upon it. Far from it. The evidence appeared in the transcript of the video interview. It was evidence which the defence did not seek to have excluded because they wished to place considerable reliance upon it. The defence wished to argue that if these girls were telling the truth and they had both been abused as youngsters, there would not have been such a dramatic inconsistency between them with A saying that they had both been abused on a regular basis and that they had discussed the abuse at the time, and with S maintaining that she had been abused only on one occasion and had never discussed it. 27. Nothing daunted, Mr Barlow argued that this was evidence of “recent complaint”. He claimed a very careful direction to the jury became necessary to the effect that: "The fact that A said that she complained did not mean that the abuse occurred". However, as Mr Butterworth for the Crown observed, this is not evidence of complaint in the true sense of the word. It is not, for example, the case of a rape complainant running to a house in a distraught state and telling an independent person that she had just been raped. This is a case where on the defence version of events the girls had put their heads together with their mother and made up the whole story of abuse. In so doing, the defence argued, they had got some of the details wrong; A's claim that she and her sister spoke about the abuse was simply part of their fabricated story. 28. We reject Mr Barlow's argument that, absent a direction on recent complaint, the jury may have been misled into treating A’s claim as support for the prosecution case that abuse had occurred. On the contrary, given the way this evidence was deployed at trial, it is far more likely that the jury will have given some thought to the argument that it might undermine the prosecution case. Therefore we are satisfied that no direction on recent complaint was necessary. 29. That brings us to the question of fresh evidence. Mr Barlow claimed that the significant feature in this case is that it rested entirely upon the memories of the girls, and in particular that of A. He reminded the court that there was no evidence from an independent source to support her allegations, which dated back to a time when she was very young indeed. He wished to rely upon reports and evidence from Professor Conway. Professor Conway is a Professor of Psychology at Leeds University. He is described as an acknowledged expert in the field of adult of early childhood events, with an international reputation. He has researched human memory over a period of 25 years. He has published over 150 scientific papers, books and other materials on human memory. He has been instructed to advise on a number of cases of remembered childhood sexual and physical abuse, including two which came to this court, R v JH and TG [2006] 1 Cr App R 10 and R v JCWS and R v W [2006] EWCA Crim 1404 . Professor Conway provided a guide to the human memory. The gist of it is that memories of early childhood are qualitatively different from memories of later events. He said that adults cannot usually remember events of early childhood so as to be able to give a coherent narrative account. They may remember an event and sometimes a visual image, but the recall will be “fragmentary, disjointed and idiosyncratic”. The period in early childhood, of which the adult will have an impoverished memory, is called "the period of childhood amnesia". He asserted that this generally extends to the age of about 7. Adult memory of events relating to later childhood becomes “gradually richer, more detailed and more organised”. He is of the opinion that there are serious doubts as to whether the accounts of either sister in this case are based on memories of experienced events. From his examination of the material, the accounts appear to him to be narratives that have been created prior to the police interviews and developed further in those interviews, especially in the case of A. 30. Although his ignorance of some of the approved techniques for questioning complainants in cases of alleged sexual assault was pointed out in JCWS and W , Professor Conway remains critical of those techniques. He described as "leading" any question where the interviewer asks the complainant to provide more detail, if possible, of the act of abuse alleged. For example, where A here described an act of penetration, Professor Conway categorised the interviewer's follow-up question of "How long did the penetration last?" as a leading question. He also commented that when the interviewer asked A if she had anything on under her trousers, this was a leading question. He was of the view that it suggested that she did have something on under her trousers. We must beg to differ on what constitutes a leading question. 31. In section 7 of his report, Professor Conway observed that the first sign in A's interview which caused him concern was the use of her phrase "sexual abuse". He is critical of the way in which she claimed that the alleged abuse occurred when she was "4, 3 or 5" and how she then appears to agree with the interviewer that, given other things she had said, she would have been about 7 the last time the abuse occurred. He argued that this was a construction of “an agreed time period for the abuse between interviewer and interviewee”. He described A’s account of the use of Vaseline as "implausible" on the basis that in his opinion A would not have been in a position to see a jar of Vaseline if she was bent down as she described, and she would not have been in a position to read the label "Vaseline". It was not clear to us how this part of his report was related to his expertise. He made a number of further comments on "implausible descriptions, estimates of time, times of day and frequency of events". Some of them appear to be based on his opinion as an expert that a child's memory would not be able to provide such detail. Some of them appear to be based on plain common sense. 32. The next part of his report is important because it brings us to the detail which is at the heart of his opinion. A told the police that her knickers and trousers were taken down separately. In Professor Conway's opinion, this is almost certainly not a remembered detail. He also suggested that A's purported memory of her aunt shouting out, "I'm home" (thereby disturbing the abuse) is unlikely to be a remembered detail. He thought it was implausible that A would remember laughing about abuse with her sister. 33. Having criticised A for providing too much detail, Professor Conway then questioned why she did not provide more detail of the only time when she claimed to see her father's penis. He was prepared to describe her assertion that she had seen something that had happened under a door as "pure fantasy". He opined that her claim to have seen her father naked during the assaults did not sit well with the claim that she saw his penis only once. Not surprisingly, in our view, Mr Barlow did not seek to rely upon some of these passages in the report which appeared to go way beyond the Professor’s field of expertise. In particular, he did not rely upon the passages that related to S. 34. However, it is important to note one aspect of what Professor Conway was prepared to say about S. He described her answers to the standard questions on the difference between truth and lies as "manipulative". S was asked, "What happens if you tell the truth?". She replied: "It will get you somewhere". When she was asked, "What happens if you tell a lie?", she said, "It won't get you nowhere". Having seen the difficulty many people, especially children, have with explaining the difference between truth and lies, we found the criticism of S as being "manipulative" somewhat surprising. We need not dwell further on what Professor Conway said about S save to say he criticised her for coming up with too little detail as compared with her sister. 35. It was Professor Conway's conclusion that one cannot be sure that these girls are telling the truth. He said that A's account contains implausible details, times and verbatim recall that are most unusual and provides detail of the kind that he has rarely come across in all his years in the profession. 36. The prosecution sought the assistance of another expert, Professor Andrews. Unfortunately a degree of vitriol appeared to creep into the exchange of expert reports, which we found less than helpful. Professor Andrews made a number of observations to which Professor Conway took exception. She questioned, first of all, whether Professor Conway had the appropriate expertise to opine on the question of a child's memory of childhood events. He, in turn, questioned her expertise in this area. She argued that there was insufficient objective research upon which to base the assertion that a child or an adult is unlikely to remember in any detail events that occurred before the age of 7. She submitted that Professor Conway was putting forward his opinion, which has not been adopted by fellow experts. She questioned whether the material in fact pointed to the conclusions that Professor Conway asserted. 37. We pressed Mr Barlow, therefore, to ascertain from Professor Conway the material upon which he based his assertion that a child or an adult will not remember in any degree of detail what happened to them before the age of 7. Professor Conway said that he relied upon a paper from an expert called Bower. We have not seen that material or been taken to it in any detail. Professor Andrews suggests that had we done so, we would have seen that the Bower paper comes to the opposite conclusion from that contended for by Professor Conway. In the event, we could form no concluded view on who was right. Suffice it to say that we were surprised at the paucity of the material relied upon by Professor Conway and upon his failure to provide, a proper analysis of the material which forms the very cornerstone of his report. 38. In JH and TG , to which we have already referred, the defence made a successful attempt to rely on Professor Conway. The court received his evidence. However, the case of JH was described by the court as "exceptional". In JH the complainant was an adult woman who purported to remember in considerable detail what had happened to her at the age of 3. Professor Conway, whose expertise does not seem to have been challenged, opined that this was implausible. We note that there were a number of other difficulties as far as the convictions in that case were concerned. We pressed Mr Barlow on what it was that made this case exceptional. His response was: "the age of the child". . 39. However, in R v JCWS and R v MW another attempt was made to adduce Professor Conway's evidence. The President of the Queen's Bench Division presided over the court which agreed to hear Professor Conway de bene esse. He gave evidence about what in his view was the unreliability of the memory of C, the complainant in JCWS . C gave evidence at the age of 20 about abuse said to have occurred at the ages of 6 to 8. In MW the complainant, S, was aged 27 and gave evidence about alleged abuse between the ages of 3 to 11. At paragraph 17 the President of the Queen's Bench Division giving the judgment of the court referred to JH and said this: "An important aspect of [Professor Conway's] evidence however, not as far as we can assess from the judgment directly addressed in R v JH; R v TG , related to just how far this particular area of expertise actually goes." At para 25 he said: "An exchange during the course of his evidence precisely illustrates the concern about 'scene setting'. In his statement, Professor Conway identified as potentially significant that C had referred to an incident which happened on a rainy Saturday afternoon in Autumn. He described this memory as a matter of 'implausible detail for someone aged six'. He was however unaware that in his evidence, C explained that his reference to the incident happening in Autumn was based on an assumption made by him about the season because of weather at the time. Professor Conway was asked whether the evidence given by C on this issue may have had any impact on his findings, if he had known of it. He thought that this evidence would confirm his findings. He was 'right to be suspicious that this was a remembered detail when clearly it was an inference'. From the point of view of the trial, it was, of course, as counsel for the Crown suggested, and as the witness himself recognised, an inference which explained his evidence. 26. These considerations demonstrate the danger inherent in general deployment of evidence of this area of expertise. Professor Conway's written statements, based on his analysis of the accuracy, or otherwise, of the contents of the complainants' witness statements, perhaps inevitably, may be read to indicate his view of the accuracy and truthfulness, or otherwise, of the allegations made by them. Indeed, counsel for one of the applicants asked Professor Conway to consider whether the witness statements suggested that the accounts in them might not be based on 'experienced events'. That, however, was the critical issue for the jury. Carefully reflecting on a claimed memory of distant childhood events, the jury must decide whether any witness, and in particular the complainant, is truthful and accurate. Unless the jury believes that the witness is accurately describing an actual experience, the defendant is to be acquitted. Where an adult is speaking of events which occurred in his or her childhood, for the time being, it is indeed correct that this area of expertise does not address 'the very practical issues' which concern the court, and, save where there is evidence of mental disability or learning difficulties, attempts to persuade the court to admit such evidence should be scrutinised with very great care. That is why the court in R v JH; R v TG emphasised, as we repeat and endorse, the current strict limits of admissible expert evidence based on memory research." 40. Although those comments were made in the context of a case where an adult alleged abuse as a child, to our mind the position is clear: if such evidence is ever to be admitted it must be a truly exceptional case. In our judgment, this case is not one of them. There was no evidence of any particular difficulty as far as the children were concerned. There was no evidence of mental disability and no evidence of learning difficulties. There was no reason to doubt their reliability on medical grounds. Some may think that the nature of the evidence put before us, in the final analysis, comes to little more than common sense. There was no reason to burden the jury, in our view, with conflicting evidence from experts on how much detail might be expected from a child of 10 trying to remember what happened when she was aged 4, 5, 6, 7 and 8. In any event, we note, as Mr Butterworth invited us to do, that in fact most of the detail A provided came from what she said happened when she was 7 or 8; this was at an age when even Professor Conway would accept she might have a detailed memory of events. 41. In our judgment, absent exceptional circumstances, the question of the plausibility of a child’s account and the extent of detail he or she provides are all matters for a jury. Experts should not used so as to usurp the function of a jury. A jury will decide where the truth lies, subject to the overriding safeguard that the prosecution must make the jury sure of guilt before they can convict. 42. It was for those reasons that we declined to hear from Professor Conway even de bene esse. It goes without saying, therefore, that we decline to receive his report as fresh evidence. In our view it affords no ground of appeal. In those circumstances we need not deal with the observations of Mr Butterworth that if admissible this was material that could have been made advanced by the defence had they wished at the time of trial. 44. The issues in this case were straightforward. Were the girls telling the truth? Was L telling the truth? Had the girls been put up to making false allegations about the appellant by L? All the matters put before us by Mr Barlow were explored with skill and diligence by experienced counsel at trial. The trial was fair. The judge reminded the jury fully and fairly of the issues, the arguments and the evidence. Nothing has been put before us by Mr Barlow which has caused us to doubt the safety of the verdicts. For those reasons this appeal must be dismissed. ________________________________________

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https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/1370/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/1370

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[2010] EWCA Crim 978

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2010-05-05

crown_court

Case No: 200801805C3; 200802920C2; 200804281D4 Neutral Citation Number: [2010] EWCA Crim 978 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 05/05/2010 Before: LORD JUSTICE HOOPER MRS JUSTICE SWIFT DBE and MR JUSTICE HAMBLEN - - - - - - - - - - - - - - - - - - - - - Between: Ian Leslie White; James Dennard; Craig Russell Perry; John Thomas Rowbotham Appellants - and - The Crown Respondent - - - - - - - - - - - - - - - - - -

Case No: 200801805C3; 200802920C2; 200804281D4 Neutral Citation Number: [2010] EWCA Crim 978 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 05/05/2010 Before: LORD JUSTICE HOOPER MRS JUSTICE SWIFT DBE and MR JUSTICE HAMBLEN - - - - - - - - - - - - - - - - - - - - - Between: Ian Leslie White; James Dennard; Craig Russell Perry; John Thomas Rowbotham Appellants - and - The Crown Respondent - - - - - - - - - - - - - - - - - - - - - Mr Richard Kovalevsky QC and Mr Conor Quigley QC (EC issues only) (instructed by EBR Attridge ) for the appellant Ian Leslie White Mr Conor Quigley QC (EC issues only) and Mr Peter Corrigan for the appellant James Dennard Mr John Wainwright Evans instructed by Owen Nash and Co for the appellant Craig Russell Perry Mr Andrew Jackson instructed by Grove Tompkins Bosworth for the appellant John Thomas Rowbotham Mr David Anderson QC (EC issues only) and Mr Martin Evans (instructed by the RCPO ) for the respondent in the White appeal Mr David Anderson QC (EC issues only), Mr Andrew Bird and Mr Gideon Cammerman (instructed by the RCPO ) for the respondent in the Dennard appeal Mr James Puzey (instructed by the RCPO ) for the respondent in the Perry appeal Mr Andrew Bird (instructed by the RCPO ) for the respondent in the Rowbotham appeal - - - - - - - - - - - - - - - - - - - - - Hearing dates: 22/10/2009-23/10/2009 - - - - - - - - - - - - - - - - - - - - - Judgment LORD JUSTICE HOOPER : Introduction 1. The four appellants, Ian Leslie White (“White”), James Dennard (“Dennard”), Craig Russell Perry (“Perry”) and John Thomas Rowbotham (“Rowbotham”) appeal confiscation orders made against them. The four cases, not otherwise linked, involve the smuggling of tobacco into this country for resale and have been listed together because they raise similar issues. The resolution of these issues will determine these cases and hopefully will assist in the disposal of a number of other cases. 2. Before looking at the individual cases it will be helpful, we believe, to summarise a few of the general principles which apply in confiscation proceedings of the kind with which these appeals are concerned. 3. Under both the Criminal Justice Act 1988 and its successor the Proceeds of Crime Act 2002 if a person obtains a pecuniary advantage as a result of or in connection with an offence ( the 1988 Act ) or with conduct ( the 2002 Act ), he is treated, for confiscation purposes, as having received a sum of money equal to the pecuniary advantage (see section 71(5) of the 1988 Act and section 76 (5) of the 2002 Act ). Thus his benefit will be deemed to include a sum of money equal to the pecuniary advantage. 4. However, the evasion by a smuggler of duty or VAT constitutes, for the purposes of confiscation proceedings, the obtaining of a pecuniary advantage only if he personally owes that duty or VAT. This was established by the House of Lords in May [2008] UKHL 28 ; [2008] 1 AC 1028 ; [2009] 1 Cr App R (S) 31 and Jennings [2008] UKHL 29 ; [2008] 1 AC 1046 ; [2008] 2 Cr App R 29 and applied in Chambers [2008] EWCA 2467 and Mitchell [2009] EWCA Crim 214 . 5. In May the House of Lords said in paragraph 48 that a defendant “ordinarily obtains a pecuniary advantage if (among other things) he evades a liability to which he is personally subject” (underlining added). The House pointed out that more than one person could be personally liable. 6. In Jennings the House of Lords overruled the Court of Appeal (Laws, Longmore and Lloyd LJJ) [2005] EWCA Civ 746 , [2006] 1 WLR 182 , [2005] 4 All ER 391which had held, in an advance fee fraud case, that all that is required is that the defendant's acts should have contributed, to a non-trivial extent, to the getting of the property. Laws LJ had said: 38. What remains to be said about the meaning of the word "obtain" in s.71(4) [of the Criminal Justice Act 1988] ? Clearly it does not mean "retain" or "keep". But no less clearly, in my judgment, it contemplates that the defendant in question should have been instrumental in getting the property out of the crime. His acts must have been a cause of that being done. Not necessarily the only cause: there may, plainly, be other actors playing their parts. All that is required is that the defendant's acts should have contributed, to a non-trivial (that is, not de minimis ) extent, to the getting of the property. This is no more than an instance of the common law's conventional approach to questions of causation. 7. The House disapproved of this approach, saying: 14. ... a person benefits from an offence if he obtains property as a result of or in connection with its commission, and his benefit is the value of the property so obtained, which must be read as meaning "obtained by him". 8. The relevant Regulations will determine whether a defendant personally owes duty or VAT, subject to the compatibility of those Regulations with the primary domestic legislation and the relevant EC Directive. However before the law was clarified by the House of Lords in May and Jennings , the Regulations were generally unimportant in confiscation hearings since whether the defendant personally owed the duty or VAT did not matter because he would normally have contributed to the evasion of the duty or VAT by another. 9. In May the House of Lords also said in paragraph 48: D ordinarily obtains property if in law he owns it, whether alone or jointly, which will ordinarily connote a power of disposition or control, as where a person directs a payment or conveyance of property to someone else. ... Mere couriers or custodians or other very minor contributors to an offence, rewarded by a specific fee and having no interest in the property or the proceeds of sale, are unlikely to be found to have obtained that property. It may be otherwise with money launderers. 10. A person obtains a pecuniary advantage by evading duty or VAT even though the smuggled goods were seized before they could be sold on: see Smith [2001] UKHL 68 ; [2002] 1 WLR 54 ; [2002] 1 Cr App R 35 . In that case the House of Lords answered the following certified question in the affirmative: Whether an importer of uncustomed goods, who intends not to enter them for customs purposes and not pay any duty on them, derives a benefit under section 74 of the Criminal Justice Act 1988 through not paying the required duty at the point of importation, where the goods are forfeited by HM Customs following importation, before their value can be realised by the importer? Smith remains good law (see CPS v N; CPS v P and R v. Paulet [2009] EWCA Crim 1573 , paras 46-47) notwithstanding a passage in Jennings in which the House of Lords said: 13. ... It is, however, relevant to remember that the object of the legislation is to deprive the defendant of the product of his crime or its equivalent, not to operate by way of fine. The rationale of the confiscation regime is that the defendant is deprived of what he has gained or its equivalent. He cannot, and should not, be deprived of what he has never obtained or its equivalent, because that is a fine. This must ordinarily mean that he has obtained property so as to own it, whether alone or jointly, which will ordinarily connote a power of disposition or control, as where a person directs a payment or conveyance of property to someone else. 11. It was confirmed by the House of Lords in May that, if several defendants were jointly responsible for a fraud, and the property thus obtained was jointly held by them, each benefited in the amount jointly held and there was no requirement to apportion that amount between them. Thus if two or more defendants have evaded the liability to pay £x in duty, the sum of money which each defendant is treated as having received as benefit is £x. This is subject to a possible exception described in this way by the House of Lords in May : 45. ... There might be circumstances in which orders for the full amount against several defendants might be disproportionate and contrary to article 1 of the First Protocol, and in such cases an apportionment approach might be adopted, but that was not the situation here and the total of the confiscation orders made by the judge fell well below the sum of which the Revenue had been cheated. It may be that only if the Revenue was in a position where they would actually recover more than the sum of which they had been cheated would the issue of possible disproportionality arise. In these appeals there appears to be no realistic prospect of that occurring. Chambers 12. We turn to Chambers . The appellant had pleaded guilty to an offence under section 170(1)(b) of the Customs and Excise Management Act 1979 of being on September 13 2006 knowingly concerned in carrying, harbouring, depositing, keeping, concealing, removing or in any manner dealing with goods, which were chargeable with a duty which had not been paid, with intent to defraud the Crown of the duty chargeable on the goods. He was made the subject of a confiscation order in the sum of £66,120 under the Proceeds of Crime Act 2002 , that sum being the value of the duty evaded. 13. At the confiscation hearing the prosecution relied on the decision in the Court of Appeal in Jennings. By the time the appeal came to be heard the House of Lords had allowed the appeal (see para. 6 above) and the respondent accepted that it was necessary to show that Chambers was personally liable to pay the duty. Thus the Regulations became relevant. To show that he was so liable, the respondent relied on the Excise Goods (Holding, Movement, Warehousing and REDS) Regulations 1992, 1992/3135 (“the 1992 Regulations”) not knowing that they had been superseded (so far as tobacco products were concerned) on 1 June 2001 by the Tobacco Products Regulations 2001, 2001/1712 (“the 2001 Regulations”). See Regulation 28 of the 2001 Regulations the effect of which is to amend the 1992 Regulations so as to provide that, with exceptions, Part II and Part III of the 1992 Regulations do not apply to tobacco products from 1 June 2001. 14. The Court of Appeal prepared a draft judgment dismissing the appeal applying the 1992 Regulations. Toulson LJ giving the judgment of the Court described what happened thereafter: 54. Fortunately, as matters have turned out, we reserved our judgment. Two days ago we released to the parties our draft judgment, in which we were going to conclude that on the proper construction of those Regulations [the 1992 Regulations] there was a liability to duty on the part of the appellant and that the appeal should therefore be dismissed. 55. Yesterday, by a fortunate accident, our draft judgment came across the desk of a lawyer in the Asset Forfeiture Division of the Revenue and Customs Prosecutions Office, who was aware that the 1992 Regulations no longer applied to tobacco products. She immediately took proper steps to ensure that this court was alerted. 56. It transpires that the Excise Goods Regulations 1992 were superseded in relation to tobacco products by the Tobacco Product Regulations 2001, which came into force on 1st June 2001, i.e. over 5 years before the events giving rise to the present prosecution. 15. Toulson LJ continued: 57. The provisions of the Tobacco Product Regulations 2001 are materially different from the Excise Goods Regulations 1992. In written submissions prepared for today, Mr Cammerman submitted that although the circumstances under which liability to duty may arise under the Tobacco Product Regulations 2001 are narrower than under the preceding relevant Regulations, they still cover the position of the appellant. This would depend on whether liability arose under paragraph 13(3)(e) of the Regulations, which would impose liability on him if he was a person who "caused the tobacco products to reach an excise duty point." In his oral submissions Mr Cammerman invited the court to adjourn the hearing of the appeal in order that fuller submissions could be made by both parties on that issue. 58. In our judgment, it would be wrong to do so. The issue now sought to be raised involves a question of fact upon which the judge made no finding because he was not asked to address it. We have no idea, and it would be wrong to speculate, whether if the case below had been presented on the basis that the prosecution asserted that this appellant had caused the tobacco to reach an excise duty point, the appellant would have chosen to give evidence. It would be wrong for this court, which is primarily a court of review, to make a finding of fact of that kind in these circumstances. It is for the prosecution in a case of this kind to place before the court at first instance the relevant statutory provisions and to invite the court to make such findings of fact as it seeks. 59. Accordingly, this appeal must be allowed and the confiscation order quashed. 16. Subsequently three appellants had their confiscation orders quashed following concessions by the respondent: Khan and others [2009] EWCA Crim 588 . 17. The Revenue and Customs Prosecutions Office (“RCPO”) has carried out a Review to identify cases in which the wrong Regulations had been raised by the prosecution or relied upon by the judge or cases in which the decision of the Court of Appeal in Rowbotham (John) [2006] EWCA Crim 747 had been raised by the prosecution or relied upon by the judge. In Rowbotham the Court of Appeal, presided over by Rose LJ, Vice-President, had dismissed an appeal relying in part on the 1992 Regulations which, unknown to all concerned, did not apply having been superseded by the 2001 Regulations. That Review has led to a number of applications for leave to appeal which are pending. 18. Dennard, one of the appellants in this appeal, and Chambers were co-defendants and Dennard, like Chambers, was also made the subject of a confiscation order under the Proceeds of Crime Act 2002 in the same amount. Unfortunately for Dennard, he had abandoned his application for leave to appeal the confiscation order shortly before the hearing. 19. His subsequent application to treat the abandonment as a nullity was granted. His appeal was joined to that of White, Perry and later Rowbotham, the appellant in the 2006 unsuccessful appeal whose case has been referred to this Court by the Criminal Cases Review Commission (the “CCRC”). 20. We shall return in more detail to the appeals of Perry and Rowbotham. It is sufficient to say at this stage that the respondent did not oppose the appeals. We allowed the appeals and quashed the confiscation orders. 21. It follows that the substantive hearing which lasted two days was concerned only with the cases of White and Dennard. The Directions Hearing 22. At a directions hearing on 7 July 2009 we made orders the effect of which were to invite submissions as to the personal liability of Dennard under the 2001 Regulations to pay the evaded excise duty and the compatibility of the Regulations with the relevant EC Directive and with section 1(4) of the Finance Act 1992 . 23. In the case of White the conspiracy of which he was convicted spanned the period 1 January 2001 to 19 March 2002. During that time numerous consignments of hand rolling tobacco (“HRT”) were smuggled into this country from Luxembourg. For convenience the smuggling operations were divided into three phases, to the first two of which the 1992 Regulations applied and to the third of which the 2001 Regulations applied. At the directions hearing we therefore invited submissions as to the liability of White under the 1992 and 2001 Regulations to pay the evaded excise duty and the compatibility of the two sets of Regulations with the relevant EC Directive and with section 1(4) of the Finance Act 1992 . 24. In the case of White only, his confiscation order included an amount to reflect the VAT avoided. Thus we invited submissions as to his liability in domestic and EC law to pay VAT. 25. The Court made these orders so as to be in a better position than the Court was in Chambers to resolve the complex questions raised in confiscation hearings where the benefit is said to be the duty or VAT evaded on smuggled tobacco products. 26. At the conclusion of the hearing we asked for written submissions about a driver’s liability for excise duty, where a driver is no more than a courier paid to transport the load. We subsequently received the last of those submissions in January. We made that request because if drivers in this category are personally liable under the Regulations to pay duty and thus would obtain a pecuniary advantage, there is an apparent conflict between the two passages in paragraph 48 of May : [a defendant] ordinarily obtains a pecuniary advantage if (among other things) he evades a liability to which he is personally subject. Mere couriers or custodians or other very minor contributors to an offence, rewarded by a specific fee and having no interest in the property or the proceeds of sale, are unlikely to be found to have obtained that property. At the conclusion of this judgment we return to this issue but only briefly and without reaching any concluded opinion. The facts in the Dennard appeal 27. The appellant pleaded guilty to a single count under s.170(1)(b) of the Customs and Excise Management Act 1979 charging him with being knowingly concerned in carrying, harbouring, depositing, concealing, removing or in any manner dealing with 600kg of tobacco, chargeable with a duty which had not been paid, with intent to defraud Her Majesty of the duty chargeable. 28. He had originally been charged with an offence under section 170(2) of being knowingly concerned in the fraudulent evasion of duty. The indictment was amended at the request of the prosecution to allege the offence under section 170(1)(b) . Dennard, like Chambers, was ordered to pay a confiscation order in the sum of £66,120 under the Proceeds of Crime Act 2002 with the sum to be paid in six months and in default 1 year and 8 months’ imprisonment. That sum represented the value of the duty evaded. He appeals against that order. The original ground of appeal related only to the issue of apportionment, a ground which could not survive the decision of the House of Lords in May. 29. In discussing the Chambers case above, we have pointed out that the Regulations only became relevant after the House of Lords had overruled the Court of Appeal in Jennings (see para. 6 above). 30. In the words of the summary of facts prepared by the respondent: The prosecution evidence against Mr Dennard fell into three categories: a. Observations on 12 th September 2006 - At around 1220 he was observed in Tesco’s car park in Cheriton (near Folkestone) together with others and a Toyota L840 AKR. A Mondeo P785 TDF was in the same car park. The two cars left in convoy at 1231. At 1345 the Mondeo crossed by ferry from Dover to Calais and returned Calais to Dover at 1820; b. Forensic evidence showed that Dennard’s mobile phone had been used in France and Belgium during the afternoon of 12 th September, first “roaming” call at 1534, last “roaming” at 1840. During this time there were calls to “Dad” suggesting that it was Dennard who was using the phone. c. On 13 th September 2006: i. At around 0615 a white van driven by Parsons left Nickolls Yard in Hythe and was driven to a row of lock-up garages in Deal. At 0650 Parsons was arrested and a large quantity of tobacco was found and seized. Amongst the tobacco seized were two sales receipts showing its purchase in Belgium at 1744 on 12 th September. ii. At 1129 officers entered Nickolls Yard and found Dennard in the driver’s seat of the Toyota L840 AKR. iii. In the passenger footwell were the keys for the yard and for a locked 20’ container which contained 24 boxes (600kgs) of Golden Virginia tobacco which had been smuggled into the UK without payment of duty. iv. The number printed on the side of the boxes (83102200125) matched the number on the boxes found with Parsons in Deal. v. Also in the car (in the glove compartment) was £9,000 in cash. vi. Dennard was arrested and interviewed but made no comment. d. The excise duty evaded on the 600kgs of tobacco was £66,120. e. A fingerprint from Dennard’s father was found on a fork-lift truck at Nickolls Yard. f. The purchase price abroad of the 600kgs of tobacco was £24,000. 31. To this summary Mr Corrigan, counsel for Dennard, responded in writing: The appellant agrees to those limited facts in paragraph 3 of the Crown’s summary of relevant facts and will further rely on those facts known to the Crown but which they have chosen to omit: a. Her Majesty’s Revenue and Customs officers observed the Toyota L840 AKR in which the appellant was arrested cross the Channel on a number of occasions, being driven by a number of individuals. The appellant was not noted to have used the Toyota prior to 12 September. b. The appellant’s father, Mark Dennard and W Harbor pleaded guilty to conspiracy and were forwarded as the principals in the offences which Operation Beckon concentrated upon. c. The evidence of the Crown suggests that at least four individuals from the group of offenders were on the continent at the time when the tobacco was purchased. d. The appellant never subsequently figures in the six months of surveillance by Her Majesty’s Revenue and Customs, unlike his co-defendant, Mr Chambers who is seen meeting the alleged principals for discussions. The facts in the White appeal 32. The appellant absconded before trial and was convicted and sentenced in his absence. 33. On 19 September 2003 he was convicted of a conspiracy to cheat the Revenue contrary to section 1 of the Criminal Law Act 1977 , by fraudulently evading the payment of excise duty and value added tax on smuggled hand rolling tobacco. Two other defendants were convicted, Robin Marshall and Tony Weston. Confiscation orders were made against them respectively in the sums of £30,000 and £43,000. 34. On 12 December it was decided that the amount of White’s benefit was, as recorded in the court order, £6,151,841. That figure was made up in accordance with the Prosecutor’s statement as follows: £4,927,025.70 of duty evaded and £1,224,815.40 of VAT evaded. The benefit figure did not include an amount representing any sums received on the sale of the tobacco on the domestic market. No reference was made to the Regulations. There appears to have been no dispute about the amount of the benefit – nor could there have been as the law stood at the time. HHJ Neligan QC made no factual findings in assessing benefit in the case of the appellant. 35. On 11 March 2004 White was sentenced to six years’ imprisonment and a confiscation order was made against him in the sum of £6,151,841. He was ordered to pay that sum within three months, with 10 years’ imprisonment in default. The judge was not satisfied that the appellant’s realisable assets were less than that amount, an unsurprising conclusion given that the appellant had absented himself from the proceedings. The appellant was subsequently extradited back to this country on 20 September 2007 and is now serving his sentence. He appeals the confiscation order. 36. The parties provided the court with an agreed summary of the facts in White’s case which we set out as Annex A. Excise duty – the UK primary legislation 37. The Tobacco Products Duty Act 1979 provides in section 2(1) for the charging of “a duty of excise” on tobacco products imported into this country. Section 2(1) states that there “shall be charged on tobacco products imported into ... the United Kingdom a duty of excise ...”. 38. Section 1(1) of the Finance (No 2) Act 1992 provides: Subject to the following provisions of this section, the Commissioners may by Regulations make provision, in relation to any duties of excise on goods, for fixing the time when the requirement to pay any duty with which goods become chargeable is to take effect (“the excise duty point”). 39. Section 1(3) provides: Regulations under this section may provide for the excise duty point for any goods to be such of the following times as may be prescribed in relation to the circumstances of the case, that is to say— (a) the time when the goods become chargeable with the duty in question; ... 40. Section 1(4) provides that Where regulations under this section prescribe an excise duty point for any goods, such regulations may also make provision— (a) specifying the person or persons on whom the liability to pay duty on the goods is to fall at the excise duty point ( being the person or persons having the prescribed connection with the goods at that point or at such other time, falling no earlier than when the goods become chargeable with the duty, as may be prescribed ); and (b) where more than one person is to be liable to pay the duty, specifying whether the liability is to be both joint and several. (Underlining added) Excise duty – the 1992 Regulations 41. The 1992 Regulations were made on 10 th December 1992, shortly after the Finance (No 2) Act received Royal Assent on 16 th July 1992. The two pieces of legislation were planned and carried through together, with a view to the commencement of the Single Market on 1 st January 1993. 42. The Regulations have been the subject of a number of amendments, which, we were told, are not relevant in these cases or the pending cases. 43. Regulation 4(1) provided, in so far as relevant to tobacco smuggling cases: ... the excise duty point in relation to any Community excise goods shall be the time when the goods are charged with duty at importation. 44. The goods are charged with duty at importation by virtue of section 2(1) of the Tobacco Products Act 1979 (see para. 37 above). 45. By virtue of section 5(2)(a) of the Customs and Excise Management Act 1979 , the time of importation shall be deemed to be: where the goods are brought by sea, the time when the ship carrying them comes within the limits of a port. 46. In Mitchell [2009] EWCA Crim 214 the Court said: 26. ... Importation occurs when dutiable goods enter the UK territorial waters, although the point at which an evasion occurs will not be until the importer ought to declare. We do not believe that that is right. The evasion takes place when the ship carrying the tobacco enters the limits of the port. 47. It should be noted, lest it be relevant in other cases, that there are special provisions relating to goods coming through the Channel Tunnel and special provisions for those who import tobacco for their own use and then sell or decide to sell the tobacco on the domestic market. 48. Section 1(1) of the same Act provides that “importer” “includes any owner or other person for the time being possessed of or beneficially interested in the goods”. 49. Regulation 5 of the 1992 Regulations provides in so far as relevant to tobacco smuggling cases: (1) The person liable to pay the duty in the case of an importation of excise goods from another member State shall be the importer of the excise goods. (2) Each of the persons specified in paragraph (3) below having the specified connection with the excise goods at the excise duty point, shall be jointly and severally liable to pay the duty with the person specified in paragraph (1) above of this Regulation. (3) The persons specified in this paragraph are– (a) any authorised warehousekeeper or REDS acting on behalf of the importer of the excise goods in respect of the importation of those goods; (b) any other person acting on behalf of the importer of the excise goods in respect of the importation of those goods; (c) ...; (d) ... ; (e) any consignee of the excise goods which have been imported into the United Kingdom; and (f) any other person who causes or has caused the imported goods to reach an excise duty point. 50. Sub-paragraph 3(a) which refers to authorised warehousekeepers etc is only relevant to the extent to which it may help in the interpretation of the word “other” in sub-paragraph (b). 51. Regulation 5(9) defines the word “importer”: In this regulation “importer of the excise goods” includes any owner of those excise goods or any person beneficially interested in those excise goods. 52. By virtue of Regulation 6(1) in tobacco smuggling cases duty was to be paid on or before an excise duty point. Thus, in tobacco smuggling cases like the present ones, the duty became payable as the ship came within the limits of the port and those personally liable to pay the duty at that time were obtaining a pecuniary advantage by evading the payment and were deemed, for the purposes of ascertaining benefit, to have received a sum of money equal to the pecuniary advantage. 53. It is submitted on behalf of the appellants that sub-paragraph (3)(f) is ultra vires section 1(4) of the Finance (No 2) Act 1992. It is submitted that, by virtue of paragraph (3)(f) “any other person who causes or has caused the imported goods to reach an excise duty point” is made liable for the duty, whereas by virtue of section 1(4) of the Act such a person is not liable unless at the time the goods become chargeable with the duty, he has the necessary connection with the goods. In the words of the appellants: By definition, the causing of goods to reach a point takes place prior to the excise duty point. To fall within the scope of s.1(4) of the Act, the person must have some connection with the goods at that point. The notion of having a connection at that point is quite separate from whether there was any previous connection and cannot be founded on such a prior connection. 54. The respondent does not accept the submission, arguing that, by virtue of Regulation 5(2) any person who causes or has caused the imported goods to reach an excise duty point is only liable if he retains a connection with the excise goods at the excise duty point. In the words of the respondent: Regulation 5(3)(f) on its proper construction is perfectly consistent with s 1(4). It is not to be construed as catching all those who assist with the dispatch or transport of the excise goods, but only as catching those who – in the words of the regulation – cause or have caused the goods to reach an excise duty point. To be liable they must, in other words (and as indicated also by s 1(4) and the opening words of Regulation 5(2)) retain a connection with the goods at the excise duty point . 55. We accept the respondent’s argument that the regulation is to be interpreted in a manner which is consistent with the primary legislation and the argument that, interpreted in this way, the Regulation is not ultra vires . What is important to remember, when construing the 1992 Regulations, is that a person who causes or has caused the goods to reach the excise duty point is not liable to pay the duty unless he retains a connection with the goods at the excise duty point, which in tobacco smuggling cases involving sea ferries, is at the time the ship enters the limits of the port. Excise duty – the 2001 Regulations 56. By virtue of Regulation 12(1) of the 2001 Regulations and in so far as relevant to tobacco smuggling cases “the excise duty point for tobacco products is the time when the tobacco products are charged with duty”. By virtue of Regulation 3 “duty” means (subject to an exception) “the duty of excise charged on tobacco products by section 2(1) of the Tobacco Products Act 1979”, set out in para. 37 above. 57. It follows that the excise duty point on imported tobacco products is the time of importation which, as we have already seen, will be at the point when the ship carrying the smuggled tobacco enters the limits of the port. 58. Regulation 13 determines who is liable to pay for the duty. Regulation 13(1) provides: (1) The person liable to pay the duty is the person holding the tobacco products at the excise duty point. (Underlining added) 59. Mr Anderson QC, for the respondent, submits that “holding” means possession or control. Support for that interpretation can be found from the part of Regulation 12 dealing with tobacco products acquired by a person in another Member State for his own use and transported by him to the United Kingdom, albeit that this part of Regulation 12 was added by the Excise Goods, Beer and Tobacco Products (Amendment) Regulations, 2002/2692, Regulation 4(3) (December 1, 2002). In such a case the excise duty point is the time when those products are held or used for a commercial purpose by any person. Regulation 12 (1B) (e) provides that: in determining whether tobacco products are held or used for a commercial purpose by any person regard shall be taken of— (i) that person's reasons for having possession or control of those products. ... 60. Regulation 13 continues: (2) Any person (not being the person specified in paragraph (1) above) who is described in paragraph (3) below is jointly and severally liable to pay the duty with the person specified in paragraph (1) above. (3) Paragraph (2) above applies to— (a)-(d) ... (e) any person who caused the tobacco products to reach an excise duty point. 61. Although Regulation 13 does not refer to persons “having the specified connection with the excise goods at the excise duty point” as Regulation 5 of the 1992 Regulations did, the respondent accepts that it must be interpreted in conformity with section 1(4) of the Finance (No 2) Act 1992 so that a person who has caused the tobacco products to reach an excise duty point is not liable for the duty unless he retained a connection with the goods at the excise duty point. Interpreted in this way, Regulation 13(e) is not ultra vires . 62. Regulation 14 provides, in so far as relevant to tobacco smuggling that the duty must be paid at or before the excise duty point. Excise duty – EC Directive 92/12/EC 63. The relevant Directive is Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (“the 1992 Directive”). It is a complex Directive dealing with many matters which are of no concern in this case, such as importation for personal use into a Member State of goods subject to excise duty on which the excise duty has been paid in another Member State and such as direct selling. 64. The 1992 Directive is repealed with effect from 1 April 2010 by Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty (“the 2008 Directive”) and repealing the 1992 Directive. Member States are required to adopt by 1 January 2010 the necessary provisions to comply from 1 April 2010 with the 2008 Directive. We were taken in some detail to the 2008 Directive as an aid to an understanding of the 1992 Directive but we have not found it necessary to refer to the 2008 Directive. There is also new domestic legislation intended to implement it, namely the Excise Goods (Holding, Movement and Duty Point) Regulations 2010 (SI 2010/593) which came into force on 1 st April 2010. 65. We were referred to a number of the matters in the Preamble of the 1992 Directive: Whereas the establishment and functioning of the internal market require the free movement of goods, including those subject to excise duties; ... Whereas, in order to ensure the establishment and functioning of the internal market, chargeability of excise duties should be identical in all the Member States; Whereas any delivery, holding with a view to delivery or supply for the purposes of a trader carrying out an economic activity independently ... , taking place in a Member State other than that in which the product is released for consumption gives rise to chargeability of the excise duty in that other Member State; ... Whereas products subject to excise duty purchased by persons who are not approved warehousekeepers or registered or non-registered traders and dispatched or transported directly or indirectly by the vendor or on his behalf must be subject to excise duty in the Member State of destination; Whereas in order to ensure that the tax debt is eventually collected it should be possible for checks to be carried out in production and storage facilities; whereas a system of warehouses, subject to authorization by the competent authorities, should make it possible to carry out such checks; .... Whereas in the context of national provisions, excise duty should, in the event of an offence or irregularity, be collected in principle by the Member State on whose territory the offence or irregularity has been committed, or by the Member State where the offence or irregularity was ascertained, or, in the event of non-presentation in the Member State of destination, by the Member State of departure; ... Whereas payment of the excise duties in the Member State where the products were released for consumption must give rise to the reimbursement of those duties when the products are not intended for consumption in that Member State; Whereas, as a result of the abolition of the principle of taxes on imports in relations between Member States, the provisions on exemptions and allowances on imports cease to apply in respect of relations between Member States; whereas these provisions should therefore be abolished and the directives concerned adapted accordingly; ... 66. Article 1(1) provides This Directive lays down the arrangements for products subject to excise duties and other indirect taxes which are levied directly or indirectly on the consumption of such products, except for value added tax and taxes established by the Community. 67. Article 6 (1) provides: Excise duty shall become chargeable at the time of release for consumption. ... Release for consumption of products subject to excise duty shall mean: (a) - (b) ... (c) any importation of those products, including irregular importation, where those products have not been placed under a suspension arrangement. 68. Article 6(2) provides: The chargeability conditions and rate of excise duty to be adopted shall be those in force on the date on which duty becomes chargeable in the Member State where release for consumption takes place or shortages are recorded. Excise duty shall be levied and collected according to the procedure laid down by each Member State, it being understood that Member States shall apply the same procedures for levying and collection to national products and to those from other Member States. 69. The respondent puts particular stress on Article 6(2), submitting that the Directive does not harmonise fully the regime for the levying and collection of excise duties but leaves it to Member States. Therefore, so it is submitted, the relevant provisions of the 1992 Regulations and the 2001 Regulations in issue in this case do not have, by Community law, to be compatible with the Directive in so far as the Regulations provide who is liable to pay the duty. This submission is not accepted by the appellants. 70. We turn to the important Article 7, bearing in mind that the Article is not exclusively concerned with smuggling operations. 71. Article 7 provides: 1. In the event of products subject to excise duty and already released for consumption in one Member State being held for commercial purposes in another Member State, the excise duty shall be levied in the Member State in which those products are held. 2. To that end, without prejudice to Article 6, where products already released for consumption as defined in Article 6 in one Member State are delivered, intended for delivery or used in another Member State for the purposes of a trader carrying out an economic activity independently or for the purposes of a body governed by public law, excise duty shall become chargeable in that other Member State. 3. Depending on all the circumstances, the duty shall be due from the person making the delivery or holding the products intended for delivery or from the person receiving the products for use in a Member State other than the one where the products have already been released for consumption, or from the relevant trader or ... ... 6. The excise duty paid in the first Member State referred to in paragraph 1 shall be reimbursed in accordance with Article 22 (3). 72. There is no dispute that Article 7 does not, on the face of it, envisage joint and several liability or double recovery. 73. An understanding of Article 7(3), which sets out who is liable to pay excise duty, requires it to be read in conjunction with Article 7(1) and (2). 74. The effect of Article 7(1) is to provide that in the event of products subject to excise duty and already released for consumption in one Member State, A, being held for commercial purposes in another Member State, B, the excise duty shall be levied in the Member State in which those products are held (B). Article 7 therefore comes into play when excise goods are being held for commercial purposes in that second Member State, in this case, the United Kingdom. In a tobacco smuggling case, the excise goods are held for commercial purposes in the UK at the point of “importation” into the UK. 75. The effect of Article 7(2) is that where products already released for consumption in one Member State, A, are delivered, intended for delivery or used in another Member State, B, for the purposes of a trader carrying out an economic activity independently, excise duty shall become chargeable in that other Member State, B. It is not clear whether the words “for the purposes of a trader” attach to the words “delivered” and “intended for delivery”, but, we doubt that it matters and, in any event, in the light of Article 7(1) the products must physically be in the second Member State, B, for the duty to become chargeable. 76. Article 7(2) thus envisages excise duty becoming chargeable when the goods are delivered in B for commercial purposes, when they are being held in B with the intention of delivering them in B for commercial purposes in B and when they are used in B for commercial purposes in B by a trader. They would be used for commercial purposes in B by a trader if, for example, he sold the goods to someone in B intending to use them for his own consumption. 77. It may be that Article 7 would also come into play when a third Member State is involved, but we do not need to consider that. 78. Article 7(2) having prescribed when the duty is payable, Article 7(3) tells us who is liable for the duty. 79. On our reading of Article 7(3) in the light of Article 7(2), we believe that the duty is due from: (a) the person making the delivery in B for commercial purposes in B; or (b) the person holding the products in B with the intention of delivering them in B for commercial purposes in B; or (c) the person in B receiving the products for use for commercial purposes in B by a trader; or (d) the trader who in B is using the goods for commercial purposes in B. 80. The appellants submit that the words “depending on all the circumstances” in Article 7(3) are important. In the words of the skeleton argument: 30. The ... categories are all listed in the alternative. Article 7(3) does not provide for joint and several liability, but requires an individual person to be identified in the particular case. 31. Thus liability is imposed “depending on all the circumstances”. It follows that the appropriate authority must examine the circumstances of the case in order to determine not only whether a given person falls within the scope of the listed categories, but also whether that person should be liable depending on all the circumstances. 32. Where the person making the delivery or holding the products intended for delivery retains control over the goods when they are in the Member States where the goods are held for commercial purpose, it will be that person who is liable to pay the duty. Thus, “delivery” includes delivery to a place, as well as to a person. 33. Where the goods have been consigned to another person who is identified in advance of the delivery, that person will be liable to the duty. 34. Where the goods have been transferred to a trader, it is the trader who is liable. 35. It is clear that the dividing line between these events may on occasion be blurred or unclear. However, in that event, the authorities must still make a determination that a particular person is liable in the circumstances of the case. 36. The Directive does not provide that it is open to the authorities to decide that they will either impose joint and several liability or to identify one person as liable when the liability properly falls, depending on the circumstances, on another person. Nor is this permitted just because it would be easier to collect duty from one person rather than another. 37. For example, if, in the circumstances, one person was deemed to have 90% control over the goods whereas another person had 10% control, it would not be permissible for the latter to be deemed liable to the duty. 81. During the course of oral argument it was submitted on behalf of the appellants that only an owner was liable for the duty. 82. In our view and notwithstanding the reference to “depending on all the circumstances” and the absence of any reference to joint and several liability, the 1992 Directive clearly envisages that any person who fits within the listed categories is liable to pay the excise duty. Given that one of the aims of the Directive is the collection of excise duty, it is unlikely that it was envisaged that a Member State, in the words of the appellant, “must ... make a determination that a particular person is liable in the circumstances of the case”, even though, for example, the excise duty could not in fact be collected from him and even though another person or other persons would be liable. That is not to say that the Directive would permit recovery of more than the excise duty due – but we do not need to decide that issue in these appeals. 83. Nor do we accept the argument that, under the 1992 Directive, only owners of the goods are liable for the duty. Nothing in the language of the Directive suggests that only owners are liable. The respondent referred us to the judgment of the First Chamber in United Antwerp Maritime Agencies NV and another Belgium Case C-140/04 , judgment given on 15 September 2005. That case concerned the collection of customs duties from a freight forwarding company from whose premises goods, upon which customs duties had not been paid, were stolen. The Court held that, under the relevant Community legislation, a person “who holds the goods after they have been unloaded in order to move or store them” is liable for the customs debt, that person being the person who has custody or possession of the goods. 84. Article 8 of the 1992 Directive provides: As regards products acquired by private individuals for their own use and transported by them, the principle governing the internal market lays down that excise duty shall be charged in the Member State where they are acquired. 85. Article 9(1) provides: Without prejudice to Articles 6, 7 and 8, excise duty shall become chargeable where products for consumption in a Member State are held for commercial purpose in another Member State. In this case, the duty shall be due in the Member State in whose territory the products are and shall become chargeable to the holder of the products. 86. The balance of Article 9 deals with the criteria which Member States must apply when deciding whether excise goods are being held for commercial purposes. 87. It seems clear that Article 9 is dealing with cases in which a person has acquired or purported to acquire excise goods in one Member State for personal consumption and is now holding them for commercial purposes in another Member State. It does not help to resolve the issues in this case. When does excise duty become chargeable on tobacco products smuggled into the UK by sea from a Member State? Are Regulation 4 (1) of the 1992 Regulations and Regulation 12(1) of the 2001 Regulations compatible with Article 6(1)(c) of the Directive? 88. As we have seen (paras. 43, 56-57 above) the effect of both the 1992 and 2001 Regulations and the primary legislation is that the excise duty becomes chargeable at importation, namely, when the goods are brought by sea, the time when the ship carrying them comes within the limits of a port. 89. Article 6(1) of the Directive provides that excise duty shall become chargeable at the time of release for consumption, which, in the case of an irregular importation, is the time of importation (see Article 6(1)(c), para. 67 above). 90. It follows that domestic law and EU law are consistent in this respect. Who owes the duty? Are Regulation 5 (1) and (3) of the 1992 Regulations and Regulation 13(1) and (3) of the 2001 Regulations compatible with Article 7(1)(c) of the 1992 Directive? 91. Regulation 5(1) of the 1992 Regulations provides, as we have seen, that the person liable to pay the duty shall be the importer of the excise goods. The equivalent provision in the 2001 Regulations is Regulation 13(1) which provides that the person liable to pay the duty is the person holding the tobacco products at the excise duty point, which, in the case of smuggled tobacco, is the time of importation. 92. Regulation 5(3) also provides that the person liable to pay the duty shall also be any (other) person acting on behalf of the importer of the excise goods in respect of the importation of those goods and any consignee of the excise goods which have been imported into the United Kingdom. The effect of Regulation 5(3)(f) of the 1992 Regulations and Regulation 13(3)(e) of the 2001 Regulations is also to catch any other person who causes or has caused (1992 Regulations) or who caused (2001 Regulations) the imported goods to reach the point of importation (provided that he retains a connection with the goods at that time). 93. In so far as relevant to tobacco smuggling cases of the kind with which we are concerned, Article 7(3) of the 1992 Directive provides, as we have already seen, that, depending on all the circumstances, the duty shall be due from any of the following: (a) the person making the delivery in B for commercial purposes in B; or (b) the person holding the products in B with the intention of delivering them in B for commercial purposes in B; or (c) the person in B receiving the products for use for commercial purposes in B by a trader; or (d) the trader who in B is using the goods for commercial purposes in B. 94. For the purposes of tobacco smuggling cases, the person who is referred to in Regulation 5(1) of the 1992 Regulations as the “importer” must come within category (b) above. There is therefore no incompatibility between Regulation 5(1) and the Directive. 95. In so far as Regulation 13(1) of the 2001 Regulations is concerned, the person holding the tobacco products at the excise duty point (i.e. the point of importation) must also come within (b) provided that the concept of “holding” in the Regulations is interpreted in the same way as it is to be interpreted in the Directive (about which there is no guidance in the Directive). 96. In so far as Regulation 5(3)(f) of the 1992 Regulations and Regulation 13(3)(e) of the 2001 Regulations make a person who causes/caused the goods to reach the point of importation liable for the duty (provided that he retained a connection with the goods at that point), there will be no incompatibility with Article 7(3) if he fits into any of the categories (a) to (d) at para. 93 above. 97. Regulation 5(3) of the 1992 Regulations, as we have seen, also made “(b) any other person acting on behalf of the importer of the excise goods in respect of the importation of those goods” liable to pay the duty. This would seem to catch someone acting as an agent of the importer. As an agent he may well also fall within (b) and he is likely to fit into one of the other categories listed in Article 7. 98. In so far as the 1992 Regulations make “(e) any consignee of the excise goods which have been imported into the United Kingdom” liable to pay the duty, there is unlikely to be any incompatibility with the Directive because such a person will fall within category (c) above. 99. It follows that there is unlikely to be any incompatibility between those made liable by the Regulations to pay the duty and those made liable by the Directive. Excise duty, Article 7 of the 1992 Directive – partial harmonisation only? 100. It is the submission of the respondent that 12. Directive 92/12 is a classic example of partial harmonisation: the chief mechanism by which the internal market was created. Member States were directed to harmonise their laws and practices to the extent that was necessary for the internal market to function, and left to make their own provisions in other respects. In particular, “ .. the collection of excise duty is in principle a matter for the member state where the goods are consumed”: Emu Tabac & others [1998] QB 791 , per Colomer AG at para 12. 13. Article 7 concerns the excise treatment of duty-paid products from one Member State which are taken to another Member State and held there for commercial purposes. It therefore governs the factual situation in both these appeals, even though Article 7 is not tailored specifically to the issue of smuggling. 14. It follows directly after Article 6(2), which provides: “… Excise duty shall be levied and collected according to the procedure laid down by each Member State, it being understood that Member States shall apply the same procedures for levying and collection to national products and to those from other Member States.” That illustrates the partial nature of the harmonisation effected by the Directive, Member States being left to lay down their own procedures, subject only to the requirement that those procedures should not discriminate in favour of domestic goods. 101. Thus the respondent submits that the 1992 Regulations and the 2001 Regulations can make a person liable for the excise duty albeit that he is not liable under the Directive. 102. This submission is disputed by the appellants. 103. Given our conclusion that there is unlikely to be any incompatibility between those made liable by the Regulations to pay the duty and those made liable by the Directive, it is not necessary for us to resolve the issue. It is sufficient to say that we see some force in the appellants’ submissions which are to the following effect: 22. ..., unlike Article 6(2), Article 7(3) does not leave it for national provisions to stipulate the persons liable to pay the duty but instead goes on establish the categories of such persons as a matter of EC law. ... 23. These are closed categories, and there is no provision in the Directive for Member States to add other categories of persons liable to pay. The Crown is mistaken in saying that there is no basis for the view that Article 7(3) is an exhaustive list. Moreover, the fact that Directive 2008/118/EC, which repeals and replaces Directive 92/12/EC with effect from 15 January 2009, adopts additional rules as regards the persons liable for duty does not detract from this proposition of earlier harmonisation, but rather reinforces it. 24. The reason why this is a closed category of liable persons is that, unlike the initial release of the excise goods for consumption in a Member State, there is now a cross-border or internal market consideration to be taken into account. If Member States could impose a duty on any person as they saw fit in respect of goods on which duty had already been paid in another Member State, there would be a grave danger of double taxation, which would be contrary to the principle of the internal market. 25. Accordingly, Article 7(3) limits the categories of persons who may be liable to specific identifiable persons and provides a clear duty on the Member State where the goods were released for consumption to repay the duty initially imposed. That combination can only work effectively where there are harmonised rules as to the persons who may be subject to duty in the Member State where the goods are subsequently held for commercial purpose. 26. It follows that it is not possible for the UK to add additional categories of persons liable to duty in addition to those identified under Article 7(3) of the Directive. 104. If it is not possible for a Member State to add additional categories of persons liable to duty in addition to those identified under Article 7(3) of the Directive, then the respondent accepts the Regulations must be interpreted in accordance with Article 7(3) and if they cannot be so interpreted they fall to be disapplied by the national court. Mitchell 105. In Mitchell , a post- Chambers decision, the prosecution appealed a refusal by a Recorder to make a confiscation order against the respondent, Mitchell. Mitchell pleaded guilty to being knowingly concerned in the fraudulent evasion of duty payable on the importation of tobacco contrary to section 170(2) of the Customs and Excise Management Act 1979 . The offence came to light when a lorry was stopped by customs officers at Dover on 17th September 2004. The lorry had come from Belgium and was pulling a refrigerated trailer, containing what were supposed to be frozen chips but in fact consisted mainly of Golden Virginia Tobacco. There were a large number of boxes weighing a total of over 2,000 kilograms. The driver was arrested. 106. At the confiscation proceedings it was the prosecution’s case that Mitchell was an importer. The Recorder refused to accept that case, deciding that Mitchell’s role in the importation was no more than that of a person who helped to load the tobacco and then returned to the UK before the importation (although he also made a swift visit to Calais the day after the importation). The Recorder was not referred to the Regulations. 107. The Court of Appeal rejected the appellant prosecutor’s challenge to the findings of fact. However it was submitted on behalf of the prosecution for the first time during the appeal that Regulation 13(3)(e) of the 2001 Regulations applied and the respondent was a person who had caused the tobacco products to reach an excise duty point. Toulson LJ, giving the judgment of the court, pointed out: 24. It is important to keep separate in one's mind the distinction between civil liability under the regulations and criminal liability under section 170 of the 1979 Act, which may trigger confiscation proceedings under POCA . A person who dishonestly evades the civil liability will commit an offence and be liable to a confiscation order but it is wrong to approach the construction of the civil liability imposed by Regulation 13 on the footing that this regulation is aimed at crooks; it is aimed at importations in general, which will include some dishonest importations but of which the vast majority will be lawful. 108. Toulson LJ then, in the same paragraph, summarised the submissions of Mr Mitchell QC, counsel for the respondent: Mr Mitchell submitted that Regulation 13(3)(e) should be given a very wide reach and the Secretary of State, pursuant to statutory powers, had deliberately chosen broad words in order that rogues should not escape. Accordingly, anybody, he submitted, whose role contributed to the importation would fall within Regulation 13(3)(e). This would include any driver on any leg of the journey which brought the goods to the point of importation, with knowledge that they were to be imported, and anybody who had loaded the goods. 109. Toulson LJ continued: 25. The Court put various examples to him in the course of argument, such as the innocent student abroad who, for a small reward, helped to load cigarettes into the boot of a person's car with knowledge that he was returning to the United Kingdom but no knowledge that the goods were intended to be smuggled. Mr Mitchell, consistently with his broad approach to the wording of the regulation submitted that, yes, he would be someone who had caused the tobacco products to reach an excise duty point. So, if we understood him correctly, would the railway porter at a French station who loaded goods into a car or onto a lorry, knowing that the driver was on his way to the United Kingdom. So too would be the individual driver on any leg of the journey and not merely the company which employed him. 26. These submissions seemed to us to cast the net of civil liability extraordinarily wide. ... [i]t would seem to us to follow as a matter of logic that the innocent driver of products which he had no idea were intended to be smuggled, or which are not intended to be smuggled, would incur a civil liability which could be of significance if, for example, at a time of economic downturn, credit arrangements made by his employer failed and the excise duty was not paid. Mr Mitchell submitted that this was not so but we do not see as a matter of construction why it would not be so. We readily accept that it would be unlikely that the Revenue and Customs would in fact seek to enforce a liability in such circumstances, but nevertheless we are concerned with the proper construction of the regulation. 110. During the course of the hearing of the appeal the Court pointed out that the regulations were made in order to implement the 1992 Directive. In the words of the court: We raised this with counsel, because it is trite law that when regulations are made in order to implement a Council Directive it is proper to have regard to the Council Directive in the construction of the regulations. We are aware that this enquiry took the parties by surprise. Over the short adjournment they studied the Council Directive. It follows that the arguments provided to the court on those regulations may have been less full than if the parties had foreseen the point. 111. In the present appeals, following what we said in the directions hearing, we have had the benefit of argument from counsel who specialise in European Community law. 112. It was submitted by the appellant prosecutor in Mitchell that, in the light of Article 7(1) of the Directive, the duty became payable at the point of entry into the United Kingdom. Toulson LJ summarised the arguments of counsel for the appellant in this way: 30. ... Article 7(3) provided that the duty should be due either from the person making the delivery or holding the products intended for delivery or from the person receiving the products, and he submitted that the person making the delivery should be construed broadly as including anybody who had made a material contribution to the delivery. Mr Mitchell accepted that, although there is no similar indication in Article 6 about the persons from whom the duty may be due, Article 7 is a valuable pointer and it would be unlikely that Article 6 was intended to create a wider range of people liable than those who would be liable under Article 7. 113. Toulson LJ continued: 31. It seems to us clear that Regulation 13 must have been intended to give effect to those provisions of the Council Directive. One can see a broad comparison between those identified in Article 7(3) and those identified in Regulation 13. As we see it, Article 7(3) is directed in effect at the consignor or consignee or, where one and the same person is the holder of the goods both before and after importation, at that person. That is also a rational way to interpret Regulation 13. Regulation 13(1) would cover a recipient who holds the goods from the moment of the importation and also a person who is carrying through the goods which are that person's before and after the importation. Paragraph 13(3)(e) would cover a consignor. Now, there is a difference in language between Article 7(3) of the Directive, "the person making the delivery" and Regulation 13(3)(e), "any person who caused the tobacco products to reach an excise duty point". It may be that the reason for the choice of language in 13(3) is to make clear that attention is being directed to the person who may not be physically making the delivery but is the person who is truly responsible for it being made. In the case of a company, to take an example considered in argument, J Snoops might be the driver and could be said to be the person physically making the delivery, but it would be his employer who, in reality, caused the products to reach the excise duty point. 32. It is not necessary for us to reach a formal decision on this point. We are conscious, as already indicated, that we have not heard as full argument on this subject as we might, but we are satisfied that the civil liability created by the Regulations is not intended to have the wide sweep contended for by the prosecution. It would be undesirable for us to seek to put a precise definition on the phrase "any person who caused the tobacco products to reach an excise duty point", least of all without fuller argument than we have heard in this case, but it appears to us that it is directed at that person or body who had real and immediate responsibility for causing the product to reach that point, which will typically and ordinarily be the consignor. (Underlining added) 114. The Court concluded that the respondent, Mitchell, did not have a personal liability to pay the duty and dismissed the appeal. 115. In the light of the acceptance in these appeals that a person who caused the tobacco products to reach the excise duty point (i.e. at the point of importation) is only liable if he retained a connection with the goods at the point of importation, it is likely, in many cases, that such a person would also have real and immediate responsibility for causing the product to reach that point. If a case arises where such a person did not have real and immediate responsibility for causing the product to reach the excise duty point, then the correctness or otherwise of the underlined obiter passage will have to be considered. The application of the 2001 Regulations to Dennard 116. We start with the careful and detailed ruling on confiscation made by the Recorder. This (as the Recorder found) not being a criminal lifestyle case, he had to decide whether the defendants had benefited from the particular criminal conduct to which they had pleaded guilty. 117. Neither Chambers nor Dennard gave evidence at the confiscation hearing. The Recorder said in para. 6: To the extent that it is necessary for me to make findings of fact in relation to the offence to which these defendants pleaded guilty or to draw inferences from those facts relevant to the issue of benefit and apportionment, I may only do so in respect of such matters as appear not to be in dispute or as may be taken to arise from the defendants’ guilty pleas. 118. The Recorder examined a number of cases including Rowbotham. He pointed out that although the Crown had cited the 1992 Regulations, the Court had not based its decision on the Regulations but rather on the fact that the appellant had accepted in his basis of plea that he had been playing a part in the continuous process of keeping the cigarettes away from discovery and that this process involved the evasion of duty. 119. The Recorder concluded: 33. On the material which appears to me to be not in dispute, and on Mr Chambers’ written basis of plea, I think that the only proper view of the defendants’ pleas is that they were present in the yard for the purpose of removing such tobacco as might be present, or at least assisting in that removal, and consequently in its continued concealment from HM Customs & Revenue. I have no doubt that they ‘obtained’ the tobacco itself (in the sense that the keys found in the car gave them access to it and sufficient control over it) but that is not the point. That they had not yet touched the tobacco is also not in point: the offence which they admitted was becoming concerned in dealing with the goods in one or more of the ways prohibited by s.170(1)(b) with the necessary intent. The question is: what (if any) benefit did they obtain as a result? 120. The Recorder answered the question posed in the last sentence in paragraph 35: In so far as it is necessary, I find on the basis of the defendants’ pleas, and on what I regard as the proper view of those pleas, that both of them played a significant (and, necessarily, more than a de minimis) part in the ‘getting of the property out of the crime’ . In becoming concerned in the removal and continuing concealment of the goods they provided an important link in the chain between the importation and ultimate sale, up to which point no profit could actually be realised. It seems to me that their participation in the offence (and consequent benefit from it) must, in the absence of evidence from them about it, be regarded as equal. I do not think that Mr Chambers’ basis of plea serves to lessen the pecuniary advantage that he obtained. It may have gone to reduce his culpability for the offence but that is not a matter with which I am concerned under the 2002 Act . (Underlining added) 121. The underlined words were taken by the Recorder from paragraph 38 of the decision of the Court of Appeal in Jennings (see para. 6 above) which was not an excise duty case but an advance fee fraud case. 122. Unsurprisingly given the authorities as they stood when the Recorder gave his ruling, he did not ask the question that should have been asked: Did the defendants have a personal liability to pay the excise duty? Indeed no-one asked who was liable to pay the duty. Instead a passage from Jennings in the Court of Appeal concerning obtaining money in an advance fee fraud case was used to make a confiscation order in a case where the pecuniary advantage was obtained at importation. We make it clear that we imply no criticism at all of the Recorder or indeed of others. 123. The respondent invites us to apply the Regulations to the facts and conclude that the Recorder would have inevitably found that, on the balance of probabilities, Dennard was liable to pay the duty if he had been asked to resolve the correct question. Mr Bird in his skeleton argument submits: “18. ...the Appellant was a person who had obtained a pecuniary advantage, because he was either “the person holding the tobacco products at the excise duty point” or “any person who caused the tobacco products to reach an excise duty point” (or both) and so would be within the category of persons liable to pay the duty, under Regulation 13(1) and/or Regulation 13(3)(e) of the Tobacco Products Regulations 2001 SI 1712. 124. Mr Bird relies on the fact that Dennard appears because of evidence of use of his mobile phone to have been in Belgium at the time of the purchase of the tobacco seized the next day from Parsons at Nickoll’s Yard. He also relies on the submission made by Dennard’s counsel as recorded in the ruling: 21. ... Second, he argued that the [£9000] found in the car must be considered to be part of the benefit obtained by the defendants in connection with this tobacco and taken into account in quantifying the benefit arising from their conduct. Since it had been forfeited, it must be deducted from the benefit figure. Mr Bird ingeniously submits that this argument necessarily involved a concession of fact which demonstrated Dennard’s relationship to the tobacco, namely that he had the power to sell it and receive the proceeds. We do not accept that such a concession was necessarily being made. If Dennard was liable merely because he was helping to get “the property out of the crime”, then it does not follow that this concession was being made. 125. One problem faced by Mr Bird is that we do not know what evidence may have been given or led by Dennard had it been known that the prosecution had to show that Dennard was personally liable for the excise duty under the 2001 Regulations. A second problem is what the Recorder said in paragraph 6 (see above para. 117). A third problem is that the Recorder ascribed only a limited role to Chambers and Dennard: In becoming concerned in the removal and continuing concealment of the goods [the defendants] provided an important link in the chain between the importation and ultimate sale. 126. Taking this into account and also Mr Corrigan’s submissions set out at paragraph 31 above about the Toyota, and the involvement of others we conclude that it cannot be said that the Recorder would have inevitably found that Dennard was holding the tobacco products at the point at which they were imported. Nor can it be said that he would have inevitably found that Dennard retained a connection with the goods at the excise duty point, which he would have had to even if he were to have found that Dennard caused the tobacco products to reach the point at which they were imported. 127. It is not necessary therefore for us to decide whether the prosecution had to show, in accordance with Mitchell , that Dennard had real and immediate responsibility for causing the product to reach that point. 128. For these reasons we set aside the confiscation order made against Dennard. 129. Mr Bird submits that the Court should substitute a lesser confiscation order using the discretion afforded to it under section 11(3) of the Criminal Appeal Act 1968 which provides: On an appeal against sentence the Court of Appeal, if they consider that the appellant should be sentenced differently for an offence for which he was dealt with by the court below may— (a) quash any sentence or order which is the subject of the appeal; and (b) in place of it pass such sentence or make such order as they think appropriate for the case and as the court below had power to pass or make when dealing with him for the offence; but the Court shall so exercise their powers under this subsection that, taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by the court below. 130. Mr Bird submits: 29. The Crown Court held that Dennard had “obtained” the tobacco itself (para [33]) and there was evidence (see para [22]) that the purchase price of it was £24,000. The evidence of Dennard’s travel to Belgium the previous day and his possession of the £9,000 onwards sale proceeds of part would support the proposition that he had “obtained” the tobacco for himself (with or without others) and had the power to dispose of it. Thus the tobacco could properly be considered to be his “benefit” as “property obtained” by him in connection with his offence. 30. Even if ... the Court determines that Mr Dennard obtained no pecuniary advantage from the evasion of duty in this case, it is clear that he obtained the tobacco. The crucial concession of his having the proceeds in his car means that he had the power to dispose of it. 31. By s.76(4) of the Proceeds of Crime Act 2002 : “A person benefits from conduct if he obtains property as a result of or in connection with the conduct.” And by s.76(7): “If a person benefits from conduct his benefit is the value of the property obtained.” 32. In Waller [2008] EWCA Crim 2037 it was held, applying the principles set out by the House of Lords in May , that a tobacco smuggler benefited both from the duty that he evaded and by way of the property (the tobacco) that he obtained. His benefit figure was the aggregate of these values. 33. In these circumstances there is sufficient basis for the Court to determine that, as an alternative to the way in which the case was dealt with in the Court below, this Appellant had benefited by obtaining tobacco valued at £24,000, and so that a confiscation order should be substituted in that sum. 131. Whilst the Recorder did find that Chambers and Dennard had “obtained” the tobacco, the effect of his ruling is that they may have done no more than “assisting in [the] removal” of such tobacco as might be present. If that was their role (and he treated them as having the same role), then the issue arises whether they were only “custodians or other very minor contributors to an offence, rewarded by a specific fee and having no interest in the property or the proceeds of sale”. If so, by virtue of May (para. 9 above), they would not obtain the property for the purposes of confiscation proceedings. In the light of the Recorder’s findings we do not substitute another order for the order made. Conclusion on excise duty and Dennard 132. For the reasons which we have given we quash the confiscation order in the case of Dennard. The application of the 1992 and 2001 Regulations to White 133. The respondent invites us to apply the Regulations to the facts and conclude that the judge, if he had been asked to resolve the correct question, would have inevitably found that, on the balance of probabilities, White was liable to pay the excise duty on all the consignments in the sum of £4,927,025.70. 134. The respondent submits that White comes within all the 1992 Regulations categories: as the importer of the goods, as the consignee and as a person who caused the goods to reach the excise duty point, namely the point of importation, and having the necessary connection with the goods at that time. In so far as the 2001 Regulations the respondent submits that the appellant was the person holding the tobacco products at the excise duty point, namely at the time of importation, and also a person who caused the tobacco products to reach that point. 135. In the words of Mr Evans for the respondent: Approximately 52 tonnes of HRT was smuggled in these different ways. A co-conspirator called Howard Tilyard was responsible for the purchase, packing and dispatch of the HRT in Luxembourg. White and others were responsible for the collection, distribution and sale of the smuggled goods in England. The Crown placed White at the top of the hierarchy in England. It is clear from the sentences he passed that this was accepted by the judge White was sentenced to 6 years’ imprisonment, Anthony Weston to 5 years’ and Robin Marshall (who had pleaded guilty on re-arraignment) to 4½ years’ (reduced on appeal to 3½ years’). Two others alleged to have been involved, Stephen Dinnen and Nigel Marshall were acquitted. 136. Mr Kovalevsky QC for White submits that Tilyard, who never stood trial, was the principal and that on the evidence it cannot be said that the judge would have inevitably found that White was a joint principal with Tilyard in the smuggling operation, jointly owning with Tilyard all the tobacco that was to be smuggled. 137. We agree with that submission. The judge would not have inevitably found that White was, with Tilyard, an importer. 138. Mr Kovalevsky submits that the judge would not have inevitably found that White was the consignee and/or “caused” the tobacco to reach a duty point, having the necessary connection with the goods at the time of importation. He was no more than “a rung higher in the conspiracy” (to use the judge’s words) than the co-defendants. 139. Mr Evans relies upon the following matters to show that White was liable for the excise duty (we have made a few minor changes to what Mr Evans wrote): Danzas and the ‘Jungling episode’ 51. The evidence established that HRT was being sent by Tilyard in Luxembourg concealed in boxes of carpet tiles. Once in England it was collected from the transit depot by Robin Marshall. Marshall would take the empty ‘carpet tile’ boxes to Tilyard for re-use. He would also take cash for more HRT. 52. The first of the concealments to be detected was carpet tiles [see Summary of Facts; §§3 to 16]. The Continental haulier was a firm called Danzas. After the stop by German customs, a Danzas employee called Heiko Jungling was phoned by Tilyard who candidly admitted to being a smuggler and tried to persuade him to continue to carry loads for him regardless. To this end he set up a meeting with Jungling to be attended by an Englishman who would arrive by plane and who wanted to take part in the discussion [see Summary of Facts; §§7 to 9] . The ‘Englishman’ Tilyard was referring to was White. 53. White went to Luxembourg to attend the meeting in his ‘red Mercedes’ (as described by Tilyard to Jungling; he paid for the tickets [see Summary of Facts; Interview: §40]. 54. During an interview with a German Customs officer, Karl Backhaus, on 25 th April 2001, Tilyard described the purchase, concealment and dispatch of HRT to England with disarming candour. However he refused to name “the consignees in England” [see Summary of Facts; §§12 to 14]. 55. The fact that the meeting with Jungling was arranged so White could attend demonstrates that he was of central importance to the conspiracy. The judge was entitled to conclude that Tilyard and White were joint principals of the smuggling operation; Tilyard was responsible for the Luxembourg end, White for the UK end. The inference is overwhelming that IW had a beneficial interest in the HRT. ‘Computer’ Loads (Luxor/Lynx) 56 . HRT was sent to England by Tilyard from May to October 2001 [see Summary of Facts; §§17 to 32]. Once the boxes were delivered to the Lynx depot, they were collected by Robin Marshall in a van, R926 YPV, frequently used for cross channel trips by Robin Marshall and Nigel Marshall (2 or 3 times per week). 57. According to evidence given by Nigel Marshall in the trial, that van - R926 YPV belonged to and was provided by Ian White [see Summary of Facts; §42]. The ‘Dinnen cash’ 58. On 24 th July 2001, co-accused Dinnen was stopped outbound at Harwich by UK Customs driving a green LDV hire van (R633 BWY) that was found to contain empty computer towers/cases. Under his seat was a carrier bag with £31,000 in cash inside. Dinnen said the computers and the money had been given him by Nigel Marshall [see Summary of Facts; §§25 to 29]. 59. Nigel Marshall went to Dover Customs and asked for the return of the £31,000 claiming that it was his. In evidence at trial he said he was asked by White to go to Dover and reclaim the £31,000. White offered him £100 if he would allow his account to be used to pay the money into. After that happened, Marshall withdrew the equivalent sum in cash and paid it over to White [see Summary of Facts; §§42]. 60. Dinnen’s booking was made using a debit card belonging to Rosemary White (White’s wife). On the night of the stop, White was in phone contact with Dinnen and Tilyard [see Summary of Facts; §32]. 61. The inescapable inference from the above is that money being sent by White to Tilyard in Luxembourg to pay for HRT. When £31,000 was seized, White gave instructions to one of his lieutenants to get it back for him. Telephone evidence 62. White’s billing from 15 th May to August 2001 was obtained and a schedule prepared for the number: 727791. This demonstrated very frequent and lengthy contact between White, Tilyard and the co-defendants. Between 15 th May and 31 st July 2001 (the period for which billing was available) White contacted Tilyard 165 times and spent a total of 13 hours 47 minutes on the phone with him (in Luxembourg). There was no credible explanation from White as to why these phone calls were made. The merged schedule of calls, trips and deliveries shows that White was in contact with Tilyard, Weston, the Marshalls and Dinnen. Evidence given by co-defendants 63. Nigel Marshall, in particular, gave evidence in the trial that incriminated White. i. He said that he became involved in trips to Luxembourg through his brother, Robin. To begin with, he would just ‘go along for the ride’ but then he got a job from IW, starting immediately. The vans they used: R926 YPV and R648 TET, belonged to White. All instructions came from White, he also paid for all the trips. Nigel Marshall would go to White’s house and collect cash for the trips (tickets, diesel, his wages). ii. After the arrests, White phoned Nigel Marshall and told him that he wasn’t to say he knew him. In interview, Nigel Marshall answered “no comment”; asked by the judge whether this was because he had a headache or because White told him not to, Nigel Marshall said it was White’s phone call. iii. His evidence in relation to the £31,000 seized by Customs from Dinnen on 24 th July 2001 is set out above (at §§58 to 61). 64. Weston said in evidence that White arranged the ‘Jungling meeting’ and made the arrangements regarding ferry crossings. He (Weston) stayed in the car when they got to the restaurant [see Summary of Facts; §42] . 65. White did not contradict any of the evidence in the witness statements; his case was lack of ‘knowledge’ [see Statement of Facts; §2]. 140. Mr Kovalevsky relies heavily on the statement of Emma Turner, employed as Customer Services co-ordinator at Lynx. The effect of her statement is that she had a number of phone calls with a man who must have been Tilyard. She wrote: In the spring of 2001 I took a phone call from someone who introduced themselves as Howard. He was enquiring as to whether a delivery he was expecting had arrived at the Dartford depot. He stated that the company under which he traded was Luxor Computer Logistics based in Luxembourg and that the goods being transported were computer bases, which were made up in Luxembourg before shipping. All consignments were sent through the Belgian company ASAP. The goods were consigned to addresses in the Essex area and at first Howard would call me to tell me whether they were to be delivered by LYNX to the addresses or whether they would be collected from the LYNX depot in Dartford by a colleague, the majority of the consignments were collected. Normal LYNX procedure is for goods to be delivered by LYNX themselves to the addresses on the consignment. All consignments for delivery by LYNX are sorted at a central sorting point and then distributed to local delivery branches for onward delivery to the consignment addresses. The local delivery branch for the Essex area is at Chelmsford. The majority of occasions Howard would contact me with the details of delivery, but sometimes I called Howard to let him know that the consignments had arrived, on these occasions I called him on the mobile telephone number he gave me. ... Howard was always a friendly person on the phone and on one occasion sent me a large bunch of flowers, as a thank you for being so helpful in administering the deliveries for Luxor Computer Logistics. 141. The witness also gave a description of the only person to pick up goods. Her description fits Robin Marshall. 142. It is submitted on behalf of the appellant that Tilyard was both the consignor and consignee. But there is nothing to suggest that Tilyard controlled the UK sales network. He needed a person or persons in England to buy the tobacco from him and sell it on. He needed to know the identity of that person before the goods arrived in England so that they could safely be dispatched to him. We have no doubt about that. 143. Having regard to all the matters set out by Mr Evans in his paragraphs 51 to 65, we have no doubt that the judge would have inevitably found that White was at the least a consignee at the time of importation of at least some of the tobacco. As such he would, in relation to that tobacco, come within at least one of the categories in the 1992 Regulations. In the case of the 2001 Regulations the judge would have inevitably found White to have been, at the least, a person who, as consignee, caused some of the tobacco to reach the excise duty point and as having a connection with the goods at that point sufficient for the purposes of satisfying the test in Mitchell . 144. Would the judge have inevitably found that White was the consignee of all the tobacco? He would be if the judge would have inevitably found that White was in charge of the UK operations. 145. The principal evidence that White was in charge of the UK operations is as follows: (1) In relation to the Jungling episode the fact that the meeting was set up so that White could attend. This suggests that he was the principal in charge of the UK end of the operation. (2) In relation to the Dinnen cash the fact that the outbound £31,000 cash was claimed by White to belong to him. The obvious inference is that this was money which was to be used to pay for the HRT. (3) In giving evidence Nigel Marshall said that it was White who gave all instructions for the Luxembourg trips, who paid for them and whose vans were used. 146. It was White who was directing matters from the UK and issuing instructions and paying for the transport (Marshall); it was White who needed to be and was involved in any major decisions relating to the smuggling arrangements (Jungling); and most importantly it was White whose cash was being used to buy the tobacco (Dinnen). 147. Furthermore and importantly the heavier sentence passed on White makes it clear that the judge was accepting that White was in charge of the UK operations. 148. For these reasons we conclude that the judge would have inevitably found White to be the consignee of all the tobacco. White and Article 7 of the Directive 149. On the assumption that the respondent must be able to show in any particular case that the defendant is liable to pay excise duty only if the Directive, in addition to the Regulations, also makes him liable, we ask whether on the facts sets out by Mr Evans, White was liable under the Directive. We have no doubt that he was. He comes within at least one, and probably more, of the categories set out in paragraphs 79 and 92 above. Conclusion on excise duty and White 150. We have no doubt that the judge would have found White had obtained a pecuniary advantage in so far as the full amount of the excise duty is concerned and we uphold the challenged finding of benefit in so far as it relates to excise duty. VAT 151. This aspect of the case concerns White only. The VAT component of the benefit figure was calculated by reference to the value of the acquisitions rather than by reference to the lost VAT on the supply into the domestic market. The VAT component was £1,224,815.40. 152. Section 10(1)(c) of the Value Added Tax 1994 provides for VAT (“acquisition VAT”) to be charged on any acquisition from another Member State of any goods where either “the person who makes the acquisition is a taxable person” or “the goods are subject to a duty of excise …”. 153. As to the second of these two categories, it is pointed out on behalf of the appellant that: There is no provision in the Sixth Directive [OJ L 145, 13.06.1977] providing for VAT to be imposed on goods by virtue of the fact that they are excise goods other than where the acquisition is by a taxable person or a non-taxable legal person. 154. To this the respondent replies that White was, in any event, a “taxable person” under both domestic law and the Sixth Directive and that he made the acquisition. The Court, so the respondent submits, need not therefore concern itself with the second category. 155. In the words of the respondent: 53. Under domestic law a person is a “taxable person” if he is, or is required to be , registered for VAT (see s.3(1) of the VAT Act 1994). Under Article 4(1) of the Sixth Directive a “taxable person” means any person who independently carries out any economic activity specified in Article 4(2), which includes traders. 54. White was required to be registered because he was engaged in the business of selling HRT (‘chargeable supplies’), smuggled or otherwise, and his turnover easily exceeded the applicable threshold then in force. White was clearly a “taxable person” within Article 4 of the Sixth Directive – he was independently carrying on economic activity. He was also a “taxable person” within the different meaning of s.3(1) of the VAT Act 1994: He was required to be registered since the level of his business supplies exceeded the then threshold. 156. The appellant accepts that: If White were a principal in the smuggling operation then clearly he would incur such liability. 157. The appellant submits that the judge would not have inevitably found White to be a principal and repeats the submissions made in relation to liability for excise duty. 158. In our view White was certainly a taxable person, albeit not registered. 159. The respondent submits that: 66. ... on the evidence (particularly in relation to the 24 th July cash seizure) he was the ‘acquirer’ of the goods within the meaning of the VAT Act and so was liable for the ‘acquisition VAT’. 160. To succeed in the submission that the value of White’s benefit was £1,224,815.40, the respondent has to show that the judge would have inevitably found on the balance of probabilities that White was the acquirer of all the tobacco sent to this country by Tilyard and thus liable to pay all the acquisition VAT. 161. In the light of our conclusions in paragraph 148, we have no doubt that the judge would have so found. It follows that we have no doubt that the judge would have found White had obtained a pecuniary advantage in so far as the full amount of the VAT is concerned and we uphold the challenged finding of benefit in so far as it relates to the VAT. Conclusion on White’s appeal 162. For these reasons we dismiss White’s appeal. John Thomas Rowbotham 163. On the hearing of the appeal we announced that the respondent did not oppose the appeal of Rowbotham against the confiscation order, that we would allow the appeal and that we would give our reasons later. We are grateful to Mr Bird and Mr Jackson for preparing an agreed note about the appeal much of which we have incorporated into this judgment. 164. On 9 th May 2005 at the Wolverhampton Crown Court (HHJ Onions) a confiscation order was made against the appellant in the sum of £249,252. 165. Rowbotham appealed against the order, but this was dismissed by the Court of Appeal, presided over by Rose LJ on 13 th March 2006, [2006] EWCA Crim 747 . 166. In the course of his argument opposing the appeal, prosecuting counsel referred the Court to the 1992 Regulations rather than the 2001 Regulations and submitted that Rowbotham was a person included within the range of those liable to pay excise duty by reason of being a “person acting on behalf of an importer …in respect of the importation”. 167. The Court of Appeal did not in fact determine the appeal on the basis of whether or not Rowbotham was personally liable to pay the duty. 168. Having identified that the wrong Regulations had been cited, RCPO wrote to the appellant alerting him to the fact and advising that he could consider an application to the CCRC. The appellant made such an application and the CCRC referred the case to this Court on 3 June 2009. 169. In the light of the extensive review of the facts in the CCRC Statement of Reasons, the following summary will be brief. 170. Rowbotham was arrested on 15 th September 2003. At his premises (in two transit vans and a conservatory) were over two million cigarettes upon which excise duty had not been paid. The duty evaded was £305,171. He was interviewed and said that he had agreed to look after the cigarettes and expected to be paid £200 for doing so. He was charged and released on bail. 171. On 1 st October 2004, whilst on bail, he was arrested on the M6 motorway. He was driving a van which contained 420,000 cigarettes upon which duty of £63,000 had been evaded. He was also in possession of a large sum of cash. He was interviewed and said that he had been paid £80 to drive the van to Liverpool, but was unaware of its contents. 172. Both the 2003 and the 2004 offences were charged as offences of carrying or keeping goods upon which excise duty had not been paid, with intent to defraud Her Majesty of the duty payable, contrary to s.170(1)(b) of the Customs and Excise Management Act 1979 . On 14 th October 2004 Rowbotham pleaded guilty in the Cannock Magistrates’ Court to the 2004 offence and was committed for sentence to the Crown Court. On 27 th October 2004 he entered a guilty plea on indictment to the 2003 offence. 173. He submitted a written basis of plea to the 2003 matter, the effect of which was that his role was solely to store the goods for another in expectation of a reward of £200, which was not paid. This was accepted by the Crown. On 17 th November 2004 he was sentenced to a total of 24 months’ imprisonment. 174. The confiscation order was made in the sum of £249,252. The benefit finding had been made at a hearing on 17 th January 2005 in the sum of £368,393.01. This was the sum of the duty evaded on the two consignments of cigarettes that had been found in his possession on 15 th September 2003 and 1 st October 2004. 175. No Regulations were cited to the Crown Court by either party. As the law then stood, the issue of who was liable as a matter of law to pay the duty was not determinative of any issue in confiscation proceedings. 176. The grounds of appeal dated 17 th July 2009 adopt the CCRC’s Statement of Reasons and submit (in summary) as follows: The appellant did not obtain a pecuniary advantage as he was not a person who was liable to pay the duty under Regulation 13 of the 2001 Regulations; The appellant did not obtain a benefit by any other means; and Therefore the confiscation order should be quashed. 177. In the words of the respondent: Notwithstanding that the citation of the incorrect Regulations did not appear to infect the judgment, the Crown accepts that the decision of the Court of Appeal in 2006 was tainted by error and should not now stand. This is (a) because of the danger that the citation of the Regulations may have provided additional support (for different reasons) for the Court’s stated conclusions, (b) because the failure to cite the 2001 Regulations deprived the Court from having a contrary argument to consider, and (c) because upon analysis of the law as it now stands the judgment cannot now be supported on the facts. Firstly Mr Rowbotham had not pleaded guilty to the evasion of duty. He had pleaded guilty to one count and one charge, each of which alleged that he had been respectively keeping and carrying goods with intent to defraud Her Majesty of the duty. Secondly, in civil law terms, the duty on the cigarettes had already been evaded (by others), prior to Mr Rowbotham receiving them. He was not the importer, manufacturer, or diverter from bond. While his acts and his guilty pleas could correctly be said to have involved an intention to defraud the Crown from that continuing liability to pay, the liability itself was the liability of others (as determined by the 2001 Regulations) and not of Mr Rowbotham, and had been evaded by others. 178. The respondent accepts that the appellant derived no benefit by way of pecuniary advantage. Someone else (who was not apprehended) evaded the duty, probably when the goods were smuggled in. The respondent does not seek any substituted order. Craig Russell Perry 179. On the hearing of the appeal we announced that the respondent did not oppose the appeal of Perry against the confiscation order, that we would allow the appeal and that we would give our reasons later. We are grateful to Mr Puzey for preparing a note about the appeal much of which we have incorporated into this judgment. We understand that the note was approved by Mr John Evans for the appellant. 180. The appellant appeals the confiscation order made under the provisions of the Proceeds of Crime Act 2002 by HHJ Onions sitting at Shrewsbury on 2 nd May 2008. 181. At 15.16 on Friday, 1st June 2007, Customs Officers entered an outbuilding in the courtyard of Vale View Farm, Green Lane, Ashley, near Market Drayton. Inside the outbuilding were a number of motor vehicles including a red Ford Escort van. The rear doors of the van were open, Perry was standing directly to the rear of the van and there were large boxes of cigarettes on the floor near where he was standing. Inside the van were further large boxes of cigarettes of the same type as those outside. After caution Perry said he was not prepared to answer any questions. 182. The red van contained 30,000 cigarettes of two brands and pouches of smoking tobacco. The other vehicles contained 72,200 cigarettes of the same two brands plus one other and there were 95,200 cigarettes of the same two brands on the floor at the rear of the red van. A further 60,060 cigarettes were found in a storage box inside the unit. 183. Perry was arrested and taken to Shrewsbury Police Station. In interview he answered no comment to all questions asked about the farm and the cigarettes. He conceded he lived at Beech House, Doctors Bank, Ashley. 184. Perry was charged with being knowingly concerned in dealing with tobacco products which were chargeable to duty where duty was not paid and with intent to defraud Her Majesty of the duty thereon under Section 170 of the Customs and Excise Management Act 1979 . The duty said to be avoided was put at £46,388.95 in the prosecution papers. 185. Perry pleaded guilty at the first hearing in the Crown Court on 21st April 2008. He did so with a written basis of plea. This set out his role as the provider of storage for another for about 2 weeks and the transporter of 8 boxes of cigarettes to the unit. The judge sentenced Perry on this basis: A so-called friend, who I doubt has been in much in contact with you recently, wants to use this barn that you had access to and it seems to me that you probably closed your mind to what was going on. I have not been told that you were going to get any benefit from letting your barn be used for the storage of these tobacco goods, but by your plea of guilty, you accept that at some stage, Mr Perry, you knew that there were tobacco goods in your barn and you knew that they were being smuggled into this country for sale on the black market and, to that extent, you closed your mind to the obvious and, unfortunately for you, you were caught by officers from the Customs & Revenue department and you now find yourself standing in the dock, losing your good name and having to pay a financial penalty that in some senses, whilst it is set out in the legislation, is entirely disproportionate to the harm that you have done. 186. The confiscation order was made in the agreed sum of £47,465.17, which represented the duty evaded with an allowance for the effects of inflation. 18 months’ imprisonment was imposed in default of payment within 6 months. 187. In the words of the respondent: The Crown have now reconsidered their opposition to this Appeal in the light of the Judgment in R v Mitchell and also upon further consideration of the Endnote in R v May . It has been decided that on the facts of this case the appeal should no longer be resisted. The Basis of Plea and the Learned Judge’s Sentencing Remarks make it untenable to argue here that the Appellant caused the goods to reach the excise duty point in any real sense and that being so he could not be said to have obtained a pecuniary advantage by evading a liability to which he was personally subject. The lorry driver 188. As we said in paragraph 26, at the conclusion of the hearing we asked for written submissions about a driver’s liability for excise duty, where a driver is no more than a courier paid to transport the load into this country. We have received those submissions. 189. We have decided that we shall not resolve the issue given that it is both complex and does not arise in this case. We say only this. It tentatively seems to us that a lorry driver who knowingly transports smuggled tobacco will, for the purposes of the Regulations, have caused the tobacco to reach an excise duty point and will have the necessary connection with the goods at the excise duty point. We are concerned as to whether the driver falls within Article 7(3), assuming that is it is necessary for him to do so. 190. If he does so, it would remain a matter of domestic law whether he has obtained a benefit for the purposes of confiscation proceedings. We note, in this respect, that in paragraph 48 of May it was said that a defendant “ ordinarily obtains a pecuniary advantage if (among other things) he evades a liability to which he is personally subject” (underlining added) and that: “Mere couriers or custodians or other very minor contributors to an offence, rewarded by a specific fee and having no interest in the property or the proceeds of sale, are unlikely to be found to have obtained that property.” Conclusion 191. The appeals of Dennard, Rowbotham and Perry succeed. The appeal of White fails. Annex A – agreed document in the appeal of White This Summary is agreed as between the Crown and the Appellant save for paragraphs 42 – “Evidence given at trial by co-defendants”. The Appellant did not attend the trial, transcripts have been sought but the tapes of the evidence no longer exist, the only note of the evidence at trial is that provided by an officer of the Customs which the applicant is not in a position to agree. The Prosecution case 1. The span of the conspiracy was 1 st January 2001 to 19 th March 2002. During this period numerous consignments of hand rolling tobacco (“HRT”) were sent to England from Luxembourg concealed in: • boxes of carpet tiles, • empty computer towers, and • 10 litre paint pots. Approximately 52 tonnes of HRT was smuggled in these different ways. A co-conspirator called Howard Tilyard was responsible for the purchase, packing and dispatch of the HRT in Luxembourg. Tilyard was living in Luxembourg at the time; he was a self-confessed tobacco smuggler. The Facts 2. By his DCS (dated 31.12.02), IW accepted that he did not take issue with the contents of any witness statements provided by the Crown. First phase: Carpet Tiles; February/March 2001 3. On 28 th February 2001, German Customs officers [Thiel sp190b] stopped a vehicle driven by a man called Uwe Schtschepik. Concealed in boxes of carpet tiles loaded in his vehicle was a total of 485kg of HRT. The driver had collected the load that morning from: RNI 5 Rue de l’Avenir Foetz Luxembourg The driver had found it difficult to locate the premises as no one he asked had heard of the company and there was no sign. When he did find the place, he was met by a man who only spoke English. 4. According to the documents that accompanied the load, the carpet tiles were to be delivered to a German haulage company called Danzas. Documentary records obtained from Danzas show that the goods were to be carried to the UK. The consignee was shown as either Premier Upholstery or Securicor Omega International. A total of 6 loads were despatched by Danzas for RNI. The last of the consignments was also intercepted by German Customs officers on 1 st March; it too contained tobacco hidden in boxes ostensibly containing carpet tiles. On this occasion, the Danzas driver was Dimitri Spielmann [sp 181b]; he had collected 3 earlier loads from RNI in Foetz. 5. The UK leg of the journey was sub-contracted to Securicor Omega in Rainham. Documents were provided to the Customs by Securicor [Reeves, sp13; xp106-120]. One such load was collected on 27.2.01 by a person giving the name John Jones from Premier Upholstery, Unit 1, Crown Farm Crescent, Nr Epping. No company by the name of Premier Upholstery has any connection with that address. 6. The name “Paul” and a mobile phone number 07960 535388 were given [7a] as contact details for the load. The load was collected in a van, registration number L497 MVW [7b]; this was a vehicle regularly used by Robin Marshall on cross-Channel trips ( see schedule ). It was Robin Marshall who collected this load. The Jungling meeting 7. Shortly after the second German seizure, a Danzas employee called Heiko Jungling [wsp177B xp322] was contacted on the phone by a man to whom he had previously spoken about the transport arrangements for the Danzas loads; this man only ever spoke to Jungling in English. The caller said he could be reached on telephone no. 00352 91469402. Jungling told the caller that goods had been seized by German Customs and gave him the telephone number of the relevant Customs Office. 8. The caller rang again on 6 th March and suggested they go for a meal together; he was adamant that they meet on 8 th March (two days later) because he said that on that day an Englishman would arrive by plane who wanted to take part in this discussion . The caller gave Jungling to understand that he would have cash with him in order to compensate him for the expense caused by “the trouble” with Customs. The caller offered Jungling £33,000 per month if he would continue to transport loads for him. He said he would be travelling to the meeting in a red Mercedes. 9. It was arranged that they would meet on 8 th March at the “Leinenhof” restaurant next to the Schweich exit from the motorway, between Trier and Wittlich. Jungling gave this location on the directions of German Customs who kept it under surveillance. It was the prosecution case that the caller was Tilyard. 10. At the appointed time, a red Mercedes Benz with British registration no. L824 RJN containing three men was seen in the car park of the Leinenhof restaurant [Feltz, sp187b]. According to P&O records, that vehicle travelled from Dover to Calais overnight on 7 th March and returned on 9 th March. The manifest recorded the names of the occupants as Robin Marshall, Ian White and Anthony Weston. 11. When interviewed, White admitted he was one of the three men in the red Benz (which he admitted was his car – see §44 below). 12. On 4 th April 2001, a man giving the name Paul Burnett telephoned German Customs claiming to have an interest in the seized loads and seeking the return of the tobacco. He was invited by the Officer, Karl Backhaus, for an interview. By prior arrangement, Mr Backhaus collected the caller from the railway station at Trier on 25 th April. He admitted to the officer that his name was not Paul Burnett, but Howard Tilyard; his passport confirmed that [jbp 17]. 13. During the subsequent interview, Tilyard admitted that the seized loads were his. He said he concealed the tobacco under the carpet “to make it easier to import it into the UK illegally”. He said he deliberately misdescribed the goods because had he said it was tobacco: “I would probably not have found a transport company to carry the goods to England” . [exp125] 14. He explained that he bought the tobacco from a wholesaler in Luxembourg called Mapine, a company occupying premises at 4 Rue de l’Avenir, next to the address purportedly used by RNI (see §5, above), and then re-packed it in boxes sent for that purpose from England by people whose names he would not reveal [exp126]: Question Who was the tobacco intended for in England? Answer I cannot say anything about that. I have only come here to say something about the carriage of the tobacco through Germany. I will not say anything about other matters. Question Can you not say anything about it, do you not want to say anything or are you afraid to say anything? Answer I cannot say anything about who the tobacco would have been sold to in England. I will not give you the names of any other persons because I am afraid that I will then be liable to reprisals. I shall only make a statement about the fact that I was smuggling tobacco from Luxembourg through Germany to England. But I call it a delivery, not smuggling. … Question Were the contents of your statement agreed beforehand? Answer I have informed the consignees of the tobacco in England that the German Customs had seized the tobacco and I would try to get it back. They do not know the exact time or place of the interview. But they have forbidden me to give the names of other persons. He wanted the tobacco back because he had paid about £28,000 for it. The seized load contained about 1 tonne of tobacco. 15. On 27 th February 2001, the day before the first seizure by German officers, Robin Marshall (“RM”) was stopped at Dover Eastern Docks as he was leaving the country in a Volvo (F314 RAR) [exp40]. In his possession was £10,000 in cash, which he claimed was to buy a car This was the same explanation he gave to Customs Officers on 30 th July 2001 when he claimed the £31,000 seized from Dinnen on 24 th July 2001. [Nowill sp192]. Robin Marshall was also stopped on his return to England; he said he had not had enough money to buy the car he wanted, so he had left the cash with his girlfriend in Belgium. 16. There were no further “carpet” loads after the stop on 1 st March 2001. Phase 2: ‘Computer’ Loads; May to October 2001 17. On 23 rd August 2001, Belgian Customs Officers [Michaux; sp33, Fontaine; sp38] stopped and searched a VW van that had travelled from Luxembourg. It contained three pallets loaded with boxes of what appeared to be computer parts. The officers thought the boxes looked rather old and the tape sealing them had not been properly applied. The load was examined; each box contained an empty computer tower which had been packed full with packets of tobacco; the total weight of the tobacco thus concealed was 810kg. 18. The van was driven by Karel Sollie, a manager of ASAP Express Courier. Sollie explained [wsp 46-9, 57-50] that the consignor was a Luxembourg based company called Luxor. This load was one of many, the first of which was sent in May 2001 [wsp46]. The pattern was always the same. On each occasion the pallets were collected by Sollie (or one of his drivers) from outside the premises of Ziegler at 166 Rue de Dippach, Bertrange, Luxembourg. The postcode for this location is L3898, the postcode used for Firma RNI, see para 2, above. The pallets were unloaded from a Europcar van and handed over by a man who gave the name “Howard”, who said he represented Luxor Computer Logistics. “Howard” gave his address as Hotel Villa Romana, Foetz the same as Tilyard’s address. The first of the loads was collected by ASAP from that address. The jury was invited to infer that “Howard” was Tilyard. 19. ASAP were instructed to deliver the pallets to England. This was the return of the CPU for re-use in the smuggling enterprise. The English leg of the journey was subcontracted to a haulage firm called Lynx Express Ltd. Lynx vehicles were collecting pallets from the ASAP warehouse every day. Paperwork from ASAP and Lynx [Kennard; sp78] revealed a total of 88 previous transactions beginning on 1 st May 2001 [see schedule 9 - 17]. 20. It transpired that another, apparently identical, load from Luxor was in transit at the time of the interception. Accordingly, on 24 th August, the day after the stop in Belgium, UK Customs Officers [Hamill, sp62, Thomas; sp 65] visited the Lynx warehouse at Dartford. On examination of the load that had just arrived, it was found to contain CPU cases stuffed with pouches of tobacco [see photos], a total of 675kg. The paperwork for the load identified the consignor as Luxor, at the same address as before. 21. A contact number had been provided to Lynx: 0035 221 384155. The area code is for Luxembourg. On the instructions of a Customs officer, Mr Morris of Lynx [wsp67] rang the number saying there was a problem with the load. The male voice at the other end said he was “Howard” [wsp69]. Mr Morris recognised the man’s voice; he had previously spoken to him on the telephone in connection with Luxor loads. Mr Morris told him that HMC&E had seized the load. 22. On 29 th August, the man called “Howard” telephoned Mr Morris to enquire whether there was any news on the seized goods. During the ensuing conversation, he admitted to Mr Morris that he knew the CPU cases contained tobacco - that, he said, was the business he was in. “Howard” then asked Mr Morris whether he was willing to “turn a blind eye” in respect of future loads - if so there would be “a drink” in it for him [wsp74]. The jury was invited to infer that “Howard” was Tilyard. 23. The Luxor loads were collected from the depot at Dartford. It was always the same man who turned up; he was white, 5’9”-5’10”, slim build, hoop earrings, shaved head and covered in tattoos. The first time he said he had come to collect the goods for “Howard” [Turner; wsp82]. Another Lynx employee, Donald Williamson, also met this man. Mr Williamson [wsp83] wrote down the registration number of his vehicle - R926 YPV, See para 42 below and the name he gave - Paul Jones [jbp 26]. That index number and van details match those of a van frequently used for cross channel trips by Robin Marshall and Nigel Marshall travelling 2 or 3 times per week (see schedule). The jury was invited to infer that the man who turned up at Lynx was Robin Marshall. Fingerprints matching his were discovered on wrapping from one of the seized CPU cases [Dawson; sp88 at 91]. 24. Lynx received deliveries of what purported to be computer parts consigned to the following companies: Name Address j/b Crystal Components Station Road Harold Hill, Romford, RM3 0BS 37b SRT Computers Enfield House, Leyburn Crescent, Romford, RM3 8RC 23 Future Office Supplies Barton House, Leyburn Road, Romford, RM3 8NE 32 RED Computers Unit 3 Farringdon Grove, Farringdon Avenue, Harold Hill, Romford 30 Trade Computers Neave Crescent, Romford RM3 8RR 26 Merlin Computers 7 Halifax House, Linfield Road, Romford 37a Premium Supplies Taunton House, Redcar Road, Romford 40 Consumer Computers Watford House, Redruth Road, Harold Hill, Romford, RM3 29 None of these companies exist at the stated premises [McGrath sp301]; according to Companies House records, there were no companies with those names registered at those addresses [Xuereb sp295]. 25. At about 7 o’clock on the evening of 24 th July 2001, Steven Dinnen was stopped outbound at Harwich by UK Customs [Farrow; sp17, Taylor; sp23] driving a green LDV hire van (R633 BWY) that was found to contain empty computer towers/cases. Under his seat was a carrier bag with £31,000 in cash inside. 26. At the time, Dinnen said he was taking computers to Brussels to be filled. When interviewed (between 20.06 and 20.35) that night [Mills; sp27], Dinnen said the computers and the money had been given him by Nigel Marshall; he was to take them to Luxembourg to an address he would be given (by phone) once he was there. 27. When Dinnen was arrested on 19 th March 2002, his home address was searched and a car hire agreement (dated 9 th August 2001) was found [ 85b ] which indicated that he was employed by Universal Connections as a sales assistant. This was a business that had been sold by White to Weston. 28. The booking for Dinnen had been made using a debit card belonging to Rosemary White (White’s wife) at a cost of £231 [Sturgess sp 324; Newbiggin sp 321]. The address given when the ticket was booked was White’s previous address - 103 Lymington Road, Dagenham. In interview, White admitted he “probably did” pay for the ticket, suggesting that Dinnen told him “there was some kind of problem” because he, like the Marshals, had no debit card and had also got bad credit [IW ivp77]. 29. On 30 th July, Robin Marshall attended the Customs office in Harwich seeking the return of the £31,000 that had been seized from Dinnen; it was eventually returned by Customs. On the instructions of the Marshalls [Coward; sp30], the money was paid into a Woolwich current account, no. 42555953 in the name of Nigel Marshall. Once the funds were cleared, they were promptly removed. See para 42 below 30. On 12 th October 2001, Robin Marshall was again stopped by UK Customs at Outward Control. He had approximately £25,000 cash concealed under a spare tyre behind the passenger seat and £5,000 on his person [Pearcy; sp99]. He was arrested. 31. The van Dinnen was driving [R926 YPV] was seen outside the business premises shared by White and Weston (761 Becontree Avenue, Dagenham) on 3 occasions: 29 th August, 14 th September and 2 nd October (all 2001). A photograph taken inside the premises on 19 th March 2002 shows a cardboard box apparently identical to the Luxor boxes. 32. White’s billing records showed that after Dinnen’s interview with Customs on 27 th July 2001 The cash was formally seized at 21.30hrs. he was on the phone to him [22.25, 22.55 and 23.10]; after speaking to Dinnen, he called Tilyard [22.28] and co-defendants [Weston - 22.38; Robin Marshall– 22.47] – see White phone schedule. Third Phase: Paint loads 33. On 20 th February 2002, a consignment of plastic 10 litre Crown paint tubs was intercepted by UK Customs at the Thames Europort, Dartford; on examination the tubs were found to be stuffed with tobacco [McLoughlin; sp108]. 34. The load had been sent from Luxembourg by a transport company called Gefco UK Ltd, Dartford, Kent. The consignor was given as: CPP Refineries Rue de Randlingen 18 8366 Hagen Luxembourg This address was found on a scrap of paper in Ian White’s briefcase [Smith; sp128, jbp 8]. White said it was an address that Tilyard had given him at which he could be contacted, even though the document gave a contact name of “Jean Paul Curtoise”. 35. On arrival in England the loads were stored awaiting collection in the Gefco depot rather than being delivered; the pallets were marked “For Collection”. The Gefco warehouse in the Netherlands which sent the loads over was contacted by UK Customs. It was discovered that another consignment was ready to go; it was examined and it too contained tobacco, not paint. 36. The goods were in fact consigned by Tilyard. He attempted to recover his goods that were still in the Gefco depot in Holland. He said he needed the load back because the paint was sub-standard [J in ‘t Veld sp261]. 37. In all, Gefco sent 39 identical consignments [Savory; sp106, xp274 to 285]. The first of these was despatched on 21 st November 2001. Starting with 2 pallets, the consignments increased to 6 per load. Arrests etc 38. The defendants were arrested on different dates in March 2002. 39. At Ian White’s home address, amongst papers found in his briefcase was one which had the address shown for CPP Refinery – Rue de Randlingen 18, 8366 Hagen [jbp 81] linked to Tilyard. Interview 40. White was interviewed on 19 th March 2002. • He worked as a marketing manager for a mortgage brokers, MPS for the previous 6 months. Before that he owned two mobile phone shops: Universal Communications which he sold to Weston, and Gidea Park Communications which closed in August /September. • He had lived at 11 Priory Path, Romford for 2 years and 7 months; before that, he lived at 103 Lymington Rd, Dagenham, Essex. • He knew Robin and Nigel Marshall. He agreed that his mobile phone number was 07973 727791. • He knew Dinnen and was aware that Dinnen was stopped on 27 th July 2001 and that cash was seized from him, but not how much. • He knew Tilyard whom he would see about 5 times a year, usually abroad. White no longer had any business dealings with him. • He knew Weston to whom he sold the shop (Universal Communications) • He thought he may have paid for the Marshalls to travel to the Continent because neither of them had bank or credit cards, but did not do so on a regular basis, and had not done so for some months. • He probably did buy the ticket for SD’s travel and that was why Dinnen told him about him being stopped. • He, Tony Weston and Robin Marshall travelled to the Continent in his red Mercedes on 7 th March 2001. The purpose of the trip was the purchase SIM-free mobile phones. The deal involving the SIM-free mobile phones did not take place, so they all travelled from Ostend down to Luxembourg. Robin Marshall did the driving for most of the trip. They travelled down to the Villa Romana, where Tilyard was staying. From there, he, Weston and Tilyard travelled to the meeting in Germany, so that Tilyard could collect the money he owed IW. Robin Marshall stayed at the hotel to sleep. • The meeting was to take place in a pub car park. They went into the pub to see if the person was in there, but he wasn’t so they returned to the car and waited for him. They stayed there for about an hour and a half. When it appeared that the person they were due to meet was not going to show up, they left the pub and returned to the Villa Romana. From there they drove back to the UK. • He said he probably paid for the trip, with Tony Weston paying him back for his part of the ticket. Robin Marshall did not pay for his ticket as he was paid to act as the driver. He said he and Tony Weston have been to Luxembourg to see Tilyard on at least one more occasion; this would have been purely a social visit. 41. IW was asked about various items seized from his briefcase: • Smith 0001: a piece of paper with numbers and names on [jbp 83/84]. He claimed they referred to money lent to his brother-in-law, money for the re-decoration of his living room, furniture he bought and rent on a property left to his children by his uncle. • The bit of paper with letters and numbers written on [jbp 80], was a code he used to interpret numbers passed to him by Tilyard over the phone. Tilyard is difficult to understand over the phone and he changes his number frequently. • The Luxembourg address [jbp 81] was Tilyard’s most recent address. The German address [jbp 79] related to a safe manufacturing company. His safe had the handle snapped off and in order to get it fixed, he had to go back to the manufacturer in Germany. Evidence given at trial by co-defendants 42. Nigel Marshall, Nigel Marshall was acquitted by the jury. Marshall did not dispute the underlying evidence, but he denied being a party to a conspiracy and claimed that he was unaware of the true reason for his trips to the Continent with empty boxes. The Prosecution submitted to the jury that Marshall ’s evidence that he was unaware he was involved in tax evasion on HRT was untrue. in particular, gave evidence in the trial that incriminated White. i. He said that he became involved in trips to Luxembourg through his brother, Robin. To begin with, he would just ‘go along for the ride’ but then he got a job from IW, starting immediately. The vans they used: R926 YPV and R648 TET, belonged to IW. All instructions came from IW, he also paid for all the trips. NM would go to IW’s house and collect cash for the trips (tickets, diesel, his wages). ii. Following the seizure by Customs of £31,000 from Dinnen on 24 th July 2001 (see §25 et seq above), NM was asked by White to go to Dover and reclaim the money. White offered him £100 if he would allow his account to be used to pay the money into. After that happened, NM withdrew the equivalent sum in cash and paid it over to White. iii. After the arrests, IW phoned NM and told him that he wasn’t to say he knew him. In interview, NM answered “no comment”; asked by the judge whether this was because he had a headache or because IW told him not to, NM said it was IW’s phone call. Weston said in evidence that IW arranged the meeting and made the arrangements regarding ferry crossings. He (TW) stayed in the car when they got to the restaurant. 43. The duty and VAT evaded during each phase of the fraud was as follows: Goods Price Paid The figure used as the purchase price abroad for the tobacco was £40.00 per kilogram; this was taken from departmental records. The total amount of tobacco smuggled into the UK was 51,798 kg, giving a total purchase price abroad for the tobacco of £2,071,920. Excise Duty VAT Acquisition VAT calculated by reference to the price paid in Luxembourg + the excise duty. Total DANZAS: 2,310kg HRT from February 2001 £92,400 £219,727.20 £54,622.26 £274,349.46 LYNX: 35,082kg HRT from August 2001 £1,403,280 £3,336,999.80 £829,548.96 £4,166,548.76 GEFCO: 14,406kg HRT from February 2002 £576,240 £1,370,298.70 £340,644..27 £1,710,942.97 Total £2,071,920 £4,927,025.70 £1,224,815.40 £6,151,841.19

2010_05_05-2379.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/978/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/978

37ce2cce0425fb8200d64ac909ce90f6ba4d27fb71f233a0573704301a5a2bec

[2005] EWCA Crim 516

EWCA_Crim_516

2005-03-04

supreme_court

Neutral Citation Number: [2005] EWCA Crim 516 Case No: 2004 00204 D4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM NEWCASTLE CROWN COURT MR JUSTICE ROYCE T. 2003. 7231 Royal Courts of Justice Strand, London, WC2A 2LL Date: 4th March 2005 Before : LORD JUSTICE TUCKEY MR. JUSTICE LEVESON and SIR CHARLES MANTELL - - - - - - - - - - - - - - - - - - - - - Between : R - v - Christina Marina BUTTON and Simon David Tannahill - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2005] EWCA Crim 516 Case No: 2004 00204 D4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM NEWCASTLE CROWN COURT MR JUSTICE ROYCE T. 2003. 7231 Royal Courts of Justice Strand, London, WC2A 2LL Date: 4th March 2005 Before : LORD JUSTICE TUCKEY MR. JUSTICE LEVESON and SIR CHARLES MANTELL - - - - - - - - - - - - - - - - - - - - - Between : R - v - Christina Marina BUTTON and Simon David Tannahill - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Alistair WEBSTER Q.C. (instructed by Roebucks ) for the Appellants Toby HEDWORTH Q.C. and Timothy GITTINS (instructed by CPS – Durham ) for the Respondent Hearing dates : 28 th February 2005 - - - - - - - - - - - - - - - - - - - - - Judgment LORD JUSTICE TUCKEY: 1. On 4 th December 2003 Christina Marina Button and Simon David Tannahill were convicted of murder at the Newcastle Crown Court (Royce J. and a jury). Button appeals against conviction by limited leave of the full court. Tannahill applies for an extension of time in which to renew his application for leave to appeal against conviction following refusal by the single judge. 2. The single issue raised on both the appeal and the application is whether section 6 of the Human Rights Act 1998 prevents a court from admitting evidence obtained in breach of article 8 of the ECHR. Whilst the courts have considered whether the admission of such evidence is a breach of article 6 of the Convention they have not, expressly at least, considered whether it is a breach of section 6 of the Act. The bald submission is that evidence obtained in breach of article 8 can never be admitted because if it allowed this to happen the court itself would be acting in a way which was incompatible with that Convention right. It can therefore be seen that if this submission is correct it will have a very considerable impact on the criminal process. 3. For present purposes the facts can be shortly stated. The victim was Button’s husband; Tannahill was her nephew. The attack which led to the victim’s death took place on the evening of March 3 2003 whilst he was taking his dog for a walk near to the estate in West Rainton where he lived with the defendants. He was found lying in a road suffering from serious head injuries and the police first thought that he had been injured in a road accident. The defendants were initially interviewed as witnesses and gave accounts of their movements that evening. Several days later Tannahill’s uncle contacted the police to say that shortly before March 3 Tannahill had asked him to find someone to kill a big man and that the best time to kill him was when he was walking his dog. As it had earlier been arranged that the two defendants would attend the police station on March 10 the police decided to use their visit to try and obtain evidence which either proved or disproved their involvement. To this end they sought the approval of the Chief Constable under the provisions of the Regulation of Investigatory Powers Act 2000 for covert audio and video surveillance of the defendants while they were alone in a room in the police station. Unfortunately the application to the Chief Constable could not be made by an officer involved in the inquiry and by a mistake it was only made for approval of audio surveillance, which was granted. Those involved at the police station believed that both kinds of surveillance had been authorised and, acting in good faith, videoed the meeting between the defendants thus producing both a pictorial and sound record of it. The video showed Button looking toward the door mouthing something to Tannahill and then wiggling her ear and touching the wall suggesting, so the prosecution alleged, that she was indicating that walls had ears. The two were then seen whispering to one another. 4. Apart from the evidence of Tannahill’s uncle the case against the defendants was largely circumstantial. Enquiries revealed that Button had debts approaching £200,000 and stood to gain nearly £½m from her husband’s death. 5. Button’s case was that she had been driving her car at the time of the attack. She did not give evidence at trial. Tannahill, who was alleged to have attacked the victim at the instigation of Button, gave evidence that he was out getting a newspaper at the time. The conversation with his uncle had been a coincidence – he had been having problems with other members of his family, not the victim. 6. The judge ruled that the video was admissible although it was conceded that it had been made in breach of article 8. He later gave reasons for this ruling saying that the argument of Mr Webster Q.C., for Button then as now, was that a breach of article 8 meant that there was automatically a breach of article 6 so the evidence had to be excluded. After referring to a number of the cases to which we refer later the judge said: Mr Webster realistically recognised that he was treading a new path. He will, on this aspect have to tread it beyond Newcastle Crown Court. I do not accept his argument. At the end of his ruling the judge acknowledged that Mr Webster’s main point had been that because there was a breach of article 8 section 6 of the Act required the evidence to be excluded. He did not deal specifically with this point but his earlier decision to admit the evidence stood. 7. Section 6 (1) of the Act says that: It is unlawful for a public authority to act in a way which it is incompatible with a Convention right. It is common ground that a court is a public authority for this purpose. 8. Article 8 of the Convention says: (1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 9. The prosecution concede that covert surveillance of the defendants by video was an interference with their private life and, because it had not been authorised, was not in accordance with the law. So there was a breach of article 8. If the video had been authorised (and the sound recording was), there can be no doubt that the surveillance would have passed the test of necessity in article 8 (2). It is important to note that the breach of article 8 is the interference with or intrusion upon private life which is involved in the covert surveillance. Crucial to Mr Webster’s submission is that the breach is continued or repeated by anyone who makes use of the evidence obtained from such surveillance. However, before considering this submission further we turn to the authorities to see what light they shed upon the issue we have to decide. 10. Mr Webster’s submission to the judge and this court was inspired by the decision of the House of Lords in Attorney General’s Reference (No. 2) of 2001 [2003] UKHL 68 , [2004] 2 AC 72 . This was an article 6 case about delay in the criminal process. The essence of the decision (by a majority of 7 to 2) was that it would only be appropriate for a court to stay or dismiss proceedings because of delay if either a fair hearing was no longer possible or for some other compelling reason it would be unfair to try the defendant at all. Unless either of these conditions applied the prosecutor and the court did not act incompatibly with the defendant’s Convention right in prosecuting or entertaining the proceedings. It had been contended that holding the trial after there had been a breach of the reasonable time requirement in article 6 would be a breach of section 6 of the Act. This contention was rejected. Although pre-trial delay was a breach of article 6, for which appropriate remedies might be given, the holding of the trial was not (paras. 24, 40, 120, and 135). 11. In what he called an epilogue to his judgment Lord Bingham said (para. 30): I cannot accept that it can ever be proper for a court, whose purpose is to uphold, vindicate and apply the law, to act in a manner which a statute (here, section 6 of the Human Rights Act 1998) declares to be unlawful. Thus a prosecutor may pursue proceedings against a criminal defendant after the lapse of a reasonable time (in the absence of unfairness) and a court may entertain such proceedings if to do so is compatible with the defendant’s Convention rights and so lawful but not if to do so is incompatible with the defendant’s Convention rights and so unlawful. It is this passage (and passages to the same effect in the other judgments – paras 35, 125 and 130) which Mr Webster relies on. However, with all due respect to the minority, there is nothing new or surprising about what Lord Bingham said. It is what the statute says and, (dare we say it), what most people thought it meant. 12. As a matter of English domestic law relevant evidence unlawfully obtained is admissible ( R v Sang [1980] AC 402 ). The court in its discretion may however refuse to allow such evidence to be given under the provisions of section 78 (1) of PACE if, having regard to all the circumstances “including the circumstances in which the evidence was obtained”, it would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. 13. The cases show that exactly the same principles apply where the evidence has been obtained in breach of article 8. We will deal with them chronologically. 14. In Schenk v Switzerland [1998] 13 EHRR 242 the applicant complained about the use of an unlawfully recorded telephone conversation in criminal proceedings against him. The ECtHR said that this did not constitute a breach of article 6. Such evidence might be admissible. Its admissibility was a matter for regulation under national law. The Strasbourg court had only to ascertain whether the applicant’s trial as a whole was fair. At para. 53 the court said that it was unnecessary to consider the complaint under article 8 as the issue is subsumed under the question (already dealt with from the point of view of article 6) of the use made of the cassette during the judicial investigation and the trial. 15. In R v Khan ( Sultan) [1997] AC 558 an electronic listening device had been used to record a conversation between alleged drug importers. The House decided that evidence of the conversation was admissible even if it had been illegally obtained. After referring to Schenk Lord Nolan (with whom the other members of the House agreed) said (p. 582B-D): But if the behaviour of the police in the particular case amounts to an apparent or probable breach of some relevant law or Convention, common sense dictates that this is a consideration which may be taken into account for what it is worth. Its significance however, will normally be determined not so much by its apparent unlawfulness or irregularity as upon its effect, taken as a whole, upon the fairness or unfairness of the proceedings. The fact that the behaviour in question constitutes a breach of the Convention or of a foreign law can plainly be of no greater significance per se than if it constituted a breach of English law. Upon the facts of the present case, in agreement with the Court of Appeal, I consider that the judge was fully entitled to hold that the circumstances in which the relevant evidence was obtained, even if they constitute a breach of article 8, were not such as to require the exclusion of the evidence. 16. On appeal to the ECtHR ( Khan v United Kingdom 31 EHRR 1016 ) the court held that there had been a breach of article 8, but it followed what it had said in Schenk by looking at whether the proceedings as a whole were fair. As the applicant had had the opportunity to challenge both the authenticity and the use of the recording at his trial and on appeal and the court could have excluded the evidence under section 78 of PACE there had been no breach of article 6. 17. In R v P [2002] 1 AC 146 the House was concerned with evidence obtained from telephone intercepts of calls made between those suspected of drug offences in this country and in the European Union. The trial judge’s decision to admit the evidence obtained in this way was upheld. After referring to the decisions in Schenk and Khan Lord Hobhouse (with whom the other members of the House agreed) said (p. 161 H- 162C): The decision [in Khan ] was arrived at a time before the 1998 Act had been enacted let alone introduced into Parliament. Therefore the Convention did not then have the place it now has in English law. The importance of [ Schenk ] is that it confirms that the direct operation of articles 8 and 6 does not invalidate their Lordships conclusion or alter the vital role of section 78 as the means by which questions of the use of evidence obtained in breach of article 8 are to be resolved at a criminal trial. The criterion to be applied is the criterion of fairness in article 6 which is likewise the criterion to be applied by the judge under section 78. Similarly the ECtHR decision that any remedy for a breach of article 8 lies outside the scope of criminal trial … shows that their Lordships were right to say that a breach of article 8 did not require the exclusion of evidence. Such an exclusion, if any, would have to come about because of the application of article 6 and section 78. 18. In R v Loveridge & ors . [2001] 2 Cr. App. R 591 this court was concerned with a video of the defendants made covertly at a magistrates court in breach of article 8. At para. 33 Lord Woolf said that so far as the outcome of the appeal was concerned the breach of article 8 was only relevant if it interfered with the right of the applicants to a fair trial. 19. The last case we refer to is R v Mason & ors. [2002] 2 Cr. App. R. 628. One of the issues in that case was the admissibility of evidence obtained by covert surveillance of the defendants in the custody suite of a police station which had been conducted in breach of article 8. Lord Woolf giving the judgment of this court said (para. 74) that non-compliance with article 8 did not mean that the evidence could not be relied on. In para. 75 he said: It is the responsibility of the Government to provide remedies against … violation of article 8. However, the remedy does not have to be the exclusion of the evidence. The remedy can be the finding which we have now made, that there has been a breach of article 8 or it can be an award of compensation. The ECtHR recognises that to insist on the exclusion of evidence could in itself result in a greater injustice to the public than the infringement of article 8 creates for the appellants. The infringement is, however, a matter which the trial judge is required to take into account when exercising his decision under section 78 of PACE. 20. Mr Webster readily accepted that none of these cases gave any support to his submissions. His answer was simply that the courts appeared to have overlooked section 6 of the Act. Each of the cases had focused on article 6 and the court’s duty to ensure a fair trial. No case had dealt specifically with the court’s obligation not to act in breach of article 8 which section 6 of the Act imposed. The decisions of the ECtHR shed no light on this point because it was concerned only with the articles of the Convention and not with section 6 . 21. We do not believe that the courts which have had to consider whether evidence obtained in breach of article 8 is admissible or those who have appeared before them are likely to have overlooked the possible effect of section 6 ; it would be remarkable if the many judges who have been involved in these decisions and who are each particularly conscious of the impact of the Human Rights Act generally had overlooked what is said to be such an obvious point. This, of itself, suggests that the novel submission made in this case is not a good one although that, of course, cannot be determinative. We think it is not a good submission for the simple reason that any breach of article 8 is subsumed by the article 6 duty to ensure a fair trial. This was the way the ECtHR put the matter in Schenk and is the way the English courts have looked at the matter ever since in all the cases to which we have referred. Through its obligation to ensure that there is a fair trial in accordance with article 6 the court is acting compatibly with the Convention. 22. Mr Webster submits that it is not enough to view a breach of article 8 “through the prism of article 6”. The article 8 right is not merely a facet of a fair trial. Material obtained in breach of the right should not have come into existence outside the private domain in the first place. The right should not be lost by being unlawfully interfered with and so any subsequent use of the material is a breach of the right. By permitting the prosecution to make use of the material the court is acting in a way which is inconsistent with the enjoyment of the right. 23. Persuasively though they were put we do not accept these submissions. We come back to what we said in para. 9 that the breach of article 8 is the interference with or intrusion upon private life which is involved in covert surveillance. The court has played no part in this. Its function is to determine whether the evidence obtained in this way is admissible. In performing this task it must act fairly and article 6 and section 78 of PACE set the standards by which it must proceed. If it decides to admit the evidence it is not itself acting in breach of article 8. The intrusion or interference has already occurred, the evidence obtained is admissible under English law and so the court’s obligation is confined to deciding whether or not, having regard to the way in which the evidence was obtained, it would be fair to admit it. 24. The far reaching consequences of Mr Webster’s submissions also support the view that they cannot be correct. What he is saying is that the court is bound to exclude any evidence obtained in breach of article 8 because otherwise it would be acting unlawfully. This is a startling proposition and one which we are pleased and relieved to be able to reject. 25. For these reasons Button’s appeal against conviction must be dismissed. Tannahill’s application for leave to appeal against conviction was solely dependent upon the success of Button’s appeal so it also must be dismissed.

2005_03_04-464.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/516/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/516

abb831747cc711b2db2213eea92622dd5e34befe2c78be0440662388d6103886

[2004] EWCA Crim 1883

EWCA_Crim_1883

2004-07-07

crown_court

No: 04/1341/A9 Neutral Citation Number: [2004] EWCA Crim 1883 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 7 July 2004 B E F O R E: LORD JUSTICE HOOPER MR JUSTICE GAGE HIS HONOUR JUDGE RICHARD BROWN DL REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 23 OF 2004 ( FIONA FEREDAY ) - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street L

No: 04/1341/A9 Neutral Citation Number: [2004] EWCA Crim 1883 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 7 July 2004 B E F O R E: LORD JUSTICE HOOPER MR JUSTICE GAGE HIS HONOUR JUDGE RICHARD BROWN DL REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 23 OF 2004 ( FIONA FEREDAY ) - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR M HEYWOOD appeared on behalf of the ATTORNEY GENERAL MR A FISHER appeared on behalf of the OFFENDER - - - - - - - J U D G M E N T 1. LORD JUSTICE HOOPER: This is a reference by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 . We grant leave to make the reference. 2. The offender's name is Fiona Fereday, who is now 18 years of age, having been born on 13 May 1986. On 22 September 2003 she appeared before the Birmingham Crown Court on an indictment on which she and two others were jointly charged with one count of robbery, two counts of attempted robbery and one count of possessing an imitation firearm with intent to commit robbery. The offender and Junior Cooper pleaded guilty to all four counts. Kerris Fereday pleaded guilty to counts 2 to 4, that is the attempted robberies and the firearm offence. Count 1, robbery, as against Kerris Fereday, was ordered to lie on the file on the usual terms. On 6 February 2004 Junior Cooper was sentenced to concurrent sentences of three years' detention in a young offenders institution. 3. Mr Heywood, during the course of argument, cast some doubt upon that sentence as being too lenient. There is, however, no reference under section 36 in respect of that sentence, and rightly so. We must therefore proceed on the assumption that that sentence was the right sentence when assessing what is the appropriate sentence for Fiona Fereday. 4. The two Fereday cousins, the offender and Kerris, were each sentenced to supervision orders for two years, with a condition that they undertake an intensive supervision and surveillance programme and the robbery programme. 5. In passing sentence Her Honour Judge Hindley QC said this: "You, Kerris, are only 15 and you, Fiona, are only 17. You are on the brink of womanhood. I do not think you really understood what you were doing on that night. I think you, Kerris, played a peripheral role. You were under the influence of alcohol, you were immature, impressionable and naive and to an extent you too, Fiona, are the same. You, Fiona, have had a difficult time since you were 12. You have had to support the family in the way that I have heard described and I think that has been much to your credit. You are a young woman of aspiration and you have really been trying since these- (There was an outburst from the public gallery.) JUDGE HINDLEY: You have really been trying since- (There was an outburst from the public gallery.) JUDGE HINDLEY: You have really been trying since these matters were brought to the attention of the police to put your life back in order. You want to be a fashion designer. You have aspirations and I think that you have demonstrated by doing that that you are truly sorry for what you have done. So, for that reason and because Kerris is a young immature woman who played a peripheral role, I am going to make you both the subject of supervision orders. It is an exceptionally merciful course." 6. The facts of the case were: "3.1 Junior Cooper was born on 23rd June 1984 and was aged 19 at the date of offending and sentence. The offender Fiona Fereday was born on 13th May 1986 and was aged 17 at the date of sentence (and at that date of the offences. Kerris Fereday was born on 11th June 1988 and was aged 15 at the date of sentence (and at the date of offences). Count 1 (Robbery - Junior Cooper and Fiona Fereday only) 3.2 On the evening Friday 18th July 2003 the victim, Jenny Owen, went to The Mongolian Restaurant in Ludgate Hill, Birmingham with her partner, Dylan Jones and his family. After finishing their meal, the couple walked the family back to their hotel. Miss Owen then went to a Lloyds TSB automatic telling machine in New Street, near to its junction with Corporation Street. It was now 50 minutes past midnight. Mr Jones sat on a ledge, about 30 yards away, while Miss Owen went to use the machine. He saw the three offenders approach. The smaller female asked him for cigarettes but it does not appear that she realised that he and Miss Owen were together. 3.3 Miss Owen inserted her bank card but the machine failed to recognise her PIN number. The offender Fiona Fereday, distinctive by a white hat with a black band or piping she was wearing, then approached her from behind, reached round and grabbed her neck with some force, saying 'Give me your money'. The offender held a black and silver coloured handgun in her other hand. She forced this quite hard into the opposite side of Miss Owen's neck. The offender said 'Give me your fucking money', standing to Miss Owen's right side and starring into her face. It occurred to Miss Owen for a moment that the weapon was an imitation but she was very frightened at the possibility that it could be real. 3.4 Miss Owen held open her purse to show that she had no money. She saw that the offender was with two others, a male (Cooper) and a female. She indicated to Mr Jones to come over. The offender Fiona Fereday then removed the gun from the victim's neck, pushed it hard into her abdomen and swiftly pulled the trigger. The gun made a snapping noise. All three then ran up New Street towards the High Street. One of them had grabbed and made off with Miss Owen's bank card, which had been ejected from the machine. 3.5 Miss Owen was left winded and shocked. Police were called to the scene. Count 2 & 3: attempted robbery - all three offenders 3.6 At about 1 am Jamie Gallaghan, a student, was with a friend, Tom O'Mahoney, in Lower Bull Street. He was approached by Cooper and Fiona Fereday. Kerris Fereday was there but stood slightly back. Cooper took a gun from his clothing and pointed it at the victim's temple. He said 'Give me your phone or your wallet'. The female offender became quite aggressive and indicated for the victim to hand over his wallet. One of them said 'Do you want to get killed'. Cooper struck the victim in his face with the gun, causing his lip to split and bleed from a 1 cm internal wound. He pointed the weapon at Tom O'Mahoney's stomach and then back at Gallaghan, saying again 'Give me your wallet'. As the weapon was pointed at Tom O'Mahoney the female was saying similar things and attempted to pat down his pockets. Miss Gallaghan was scared and intimidated, believing that the gun was real. He was too shocked to hand over his wallet. The police arrived and arrested the three offenders. Gallaghan was left feeling nervous and shaken. 3.7 The officers had arrived in time to see Cooper pointing the weapon. As they approached Cooper tried to bluff his way by saying that nothing was going on; he had just found out his friend was gay and he did not like it. Fiona Fereday attempted to support his story. Kerris Fereday said nothing. Cooper was searched and a black and silver handgun of 6 inches length, without magazine or ammunition, was found. He was also carrying a carrier bag. All three were arrested and at first placed in the rear of an unmarked police vehicle before being transferred to another vehicle and then taken to Steelhouse Lane police station. 3.8 The unmarked police car was later searched. On the floor behind the driver's seat Miss Owen's Lloyds TSB bank card was found, together with 57 pence in cash and in the other footwell was a Halifax bank card in the name of Miss C.A. Martins. 3.9 At the police station police searched the carrier bag Cooper had been holding and found a brown paper bag containing a 5-inch black metal ammunition magazine. In his left tracksuit pocket was a piece of plastic which appeared to be trigger guard shaped. 3.10 The weapon was examined and found to be a 6 mm silver and black plastic soft air ballistic ball gun, designed to discharge 6 mm plastic balls. It has the appearance of a genuine firearm and is marked 'Combat Commander Super Automatic, calibre .45, Made Taiwan'. The weapon has a low output and is not a firearm within the meaning of section 57(1) of the Firearms Act 1968 but is an imitation firearm within the meaning of section 57(4) . 3.11 Jenny Owen, Jamie Gallaghan and Tom O'Mahoney all identified the gun when it was later shown to them by the police. 3.12 Kerris Fereday's clothing was seized and appeared to have bloodstaining on it. 3.13 Junior Cooper when interviewed said that he had shown a fake gun that he had to two girls and then one of them took it and approached a woman with it at a Lloyds TSB cashpoint. He admitted taking the woman's cash card from the cashpoint and running off. He claimed the girl was playing about with the woman and was pointing it at the woman, touching her chest. He heard her say 'Give me the money'. He took the gun back off the girl. He had then asked two boys for change and received 20 pence, after which he was arrested. He had left the card in the police car. 3.14 He later admitted that he had heard one of the girls say 'Give me your fucking money' to the woman whose card he took. The same girl had pulled the trigger. Cooper denied that they had planned to hold someone up with the gun. Later still, as to counts 2 & 3, he said that he had pointed the gun and demanded money from the two lads. He agreed that he had not asked for 20 pence but had in fact asked for a phone and wallet and the girl with the black top on had said 'Do you want to get killed'. He denied hitting the man in the face. He agreed that he had been told to leave him alone. He eventually admitted that one of the three of them had said 'Let's go and raze somebody' -- that is rob them -- before these events. 3.15 Fiona Fereday was interviewed and at first she denied robbery saying that she had approached a woman and pointed a gun at her to 'see if she thinks this gun's real'. She claimed to have been messing about and laughing mainly because she was drunk. She denied demanding any property. The gun was Junior's. She agreed that all three had been messing about with it. She said that she had touched the girl's stomach with the gun but denied putting it at her face or neck. Cooper had passed her the card later and she had left it under the seat in the police car, knowing it had come from the girl. She denied asking for money and denied pulling the trigger. She claimed that they were just having a joke with the woman. As to the second incident she claimed that she had asked for a cigarette and the two men had started arguing. She had not patted down O'Mahoney to search his pockets but had just slapped his bottom because she was drunk. She did not know whether the gun was aimed at them at any stage, although she saw Junior holding it. 3.16 By a written basis of plea, Kerris Fereday pleaded guilty on the basis that she assisted in the commission of a joint enterprise to rob Gallaghan and O'Mahoney and encouraged the commission of the offences by her presence. 3.17 In mitigation, it was said on behalf of each that alcohol had contributed to the commission of the offences. 3.18 Fiona Fereday was on bail with a condition of intensive supervision and surveillance (including electronic monitoring) from 28th July 2003." 7. Mr Heywood on behalf of the Attorney General points to the following aggravating features: "(i) the attack in count 1 was carried out by the offender and another acting in concert on an apparently lone female victim in a city centre at night; (ii) the attack in counts 2 and 3 was carried out at night by three individuals acting in concert in a city centre; (iii) in each case, the robbery or attempt to rob was carried out by the use of a realistic imitation firearm, which was levelled at or jabbed into the head, neck or abdomen of the victim in a manner, and accompanied by words, calculated to cause not just a fear of immediate violence but rather a fear of death; (iv) in the case of the offender, the attacks were each one of a pair of similar offences carried out within a short time and distance of each other." There is no dispute that they are the appropriate aggravating features. 8. In paragraph 5 the reference sets out the mitigating features: the fact that the offender was aged 17 at the time of the offences; her pleas of guilty, so avoiding the need for the victims to give evidence and to some extent her previous admissions; and the offender's comparative good character. 9. Junior Cooper was of previous good character. Fiona Fereday and Kerris Fereday had both been cautioned in March 2002, when each admitted offences of affray and assault occasioning actual bodily harm, arising out of a dispute in the street. 10. Before the court there was a report prepared by a probation officer, Mr Queely. The offender had at first been remanded in custody for some ten days following her arrest. She had then been released on bail and under supervision. She did well on supervision and impressed the probation officer with what he saw as changes in her behaviour. In paragraph 4.1, in an undated report but prepared for the Crown Court, he wrote: "4.1. Fiona presents as a polite and cooperative young woman, who is well aware of the difference between right and wrong. She is immature, but has grown considerably over the past three months. Fiona accepts full responsibility for her actions and has expressed genuine remorse. Fiona is aware of the effect her behaviour has had on the victims, particularly Jenny Owen. She stated that when she saw Ms Owen at court they both burst into tears. Fiona is ashamed and embarrassed by her behaviour and finds it difficult to belief she behaved in such a manner. Alcohol and drugs were major factors involved in her offending behaviour, and she has made a concerted effort to ensure it does not happen again. Having read the victim's statement she now realises just how serious and frightening the incidents were." 11. Unfortunately Mr Queely's optimism that the offender had changed has shown to be misplaced. We have before us a supplementary report for the Court of Appeal (Criminal Division) which shows that her response to her current supervision order has not been good. There is reference to her apparent drugs and alcohol misuse and increasingly chaotic lifestyle. She has missed appointments. 12. We have also been provided with a further report which is an addendum to that report. That refers to the fact that her attendance has been very poor. She no longer keeps in contact with the Probation Service and breach proceedings have been instigated. Counselling has been arranged, but her attendance has been very erratic. She was supposed to attend to see a member of the community psychiatric team. She failed to attend. She has not adhered to her curfew order, and breach action has been taken in respect of that. She is due to appear for breaching the order on 9 July 2004. Even more regrettably, she has been charged with an offence of affray. 13. Although we have set those reports out in some detail, they are relevant to a limited extent. There are occasions when this court on an Attorney-General's Reference considering a non-custodial sentence, is influenced by the fact that the offender has achieved a great deal as part of the order accompanying the sentence. That is not this case. 14. It is submitted on behalf of the offender by Mr Fisher that given that she had done well whilst on supervision prior to sentence, the sentence was not unduly lenient. We have had drawn to our attention a letter dated 1 June 2004 from the offender's general practitioner. In the words of the general practitioner: "She has suffered a particularly deprived and abused background. She lives with her mother, a single parent, who has a major personality disorder ... From the age of about 5 Fiona has been caring for her mother who has manipulated and created a situation of dependency on her daughter." Little action, said the general practitioner, has been taken by Social Services, but the result has been long absences from school while caring for her mother. He describes her as "well intended". He notes that in December 2003 she was diagnosed depressed, commenced on antidepressant, but she has unfortunately, he notes, complied poorly with her medication. Sadly, on 14 February 2004, she took an overdose. He writes: "Unfortunately due to her continued low feeling and self-destructive feeling, a generally chaotic lifestyle and bounded by her chaotic household, Fiona failed to comply with her college attendances or her court requirements or her medication." 15. The Attorney General refers us to the following cases: Attorney-General's Reference Nos 4 and 7 of 2002 (Adrian Michael Lobban, Christopher Sawyers) ; R v Steven James Q [2002] 2 Cr App R (S) 77; Attorney-General's Reference No 13 of 1998 (Matthew Deary) [1999] 1 Cr App R (S) 140; R v Avis [1998] 2 Cr App R (S) 178. 16. It is submitted on behalf of the Attorney General that the sentences passed were unduly lenient, in that they failed to mark the gravity of the offending, the aggravating features present and in particular the use made of the imitation firearm. Reference is made to the need to protect the members of the public from offences of this sort in public places and public concern about cases of this kind. 17. In our judgment this was an unduly lenient sentence. Whilst it is important that sentencing judges take where necessary a merciful course, this was more than "exceptionally merciful", to use the judge's words. This was unduly lenient. In our view the proper sentence would have been one passed pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 and would have been in the region of two-and-a-half years' detention. We must now take into account double jeopardy, and the discount for double jeopardy is necessarily increased by the fact that she has not been in custody and by the fact she has at least done a small part of the order imposed on her by Her Honour Judge Hindley. This court's powers are limited by section 36(1)(b) of the Criminal Justice Act 1988 to the powers of the court below when dealing with her. The proper order is therefore a detention and training order under section 100 of the Powers of Criminal Courts (Sentencing) Act 2000 for eighteen months. 18. MR HEYWOOD: The only other matter is the time and place for surrender, and date of start of sentence. 19. LORD JUSTICE HOOPER: What do you suggest? 20. MR HEYWOOD: My Lord, the conventional course is at 9 am tomorrow at a local police station, for example. 21. LORD JUSTICE HOOPER: Do you have anything to say? 22. MR FISHER: No. We know she is due before the Birmingham Youth Court, according to the supplementary addendum, on 9th July in any event. 23. LORD JUSTICE HOOPER: To surrender at 9 am on the day after tomorrow? 24. MR HEYWOOD: I have no submissions as to that. 25. LORD JUSTICE HOOPER: She is to surrender at Birmingham Youth Court at 9.30 am, 9th July. The sentence is to run from the date she surrenders into custody.

2004_07_07-280.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/1883/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/1883

332cf56f3273431577e3b3804f4202e838c7415a1216800127c9c3b8c1ff7ed9

[2007] EWCA Crim 3152

EWCA_Crim_3152

2007-11-26

crown_court

No: 200704746 A2 Neutral Citation Number: [2007] EWCA Crim 3152 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Monday, 26th November 2007 B e f o r e : LORD JUSTICE KEENE MR JUSTICE BURTON SIR RODGER BELL R E G I N A v CHARLES ALBERT REIS HILLS 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 Sh

No: 200704746 A2 Neutral Citation Number: [2007] EWCA Crim 3152 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Monday, 26th November 2007 B e f o r e : LORD JUSTICE KEENE MR JUSTICE BURTON SIR RODGER BELL R E G I N A v CHARLES ALBERT REIS HILLS 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) Ms S Modgil appeared on behalf of the Appellant JUDGMENT 1. SIR RODGER BELL: On 23rd March 2007, at Camberwell Green Magistrates' Court, the appellant Charles Albert Reis Hills pleaded guilty to an offence of assault occasioning actual bodily harm and was committed to the Crown Court for sentence. On 14th June 2007, at the Central Criminal Court, he pleaded guilty to two counts of soliciting to murder. On 6th August 2007 he was sentenced to six years imprisonment on each count of soliciting to murder concurrent and 12 months consecutive for the assault occasioning actual bodily harm, a total sentence of seven years' imprisonment with a direction that 230 days spent on remand should count towards the sentence. He had also been indicted for conspiracy to murder but his plea of not guilty was accepted and a not guilty verdict was entered by the judge. He now appeals against sentence by leave of the Single Judge. 2. The facts of the offences are that on 13th November 2006 the appellant met an undercover police officer by arrangement in a car in Clapham. During the meeting, the appellant expressed suspicions that the man was a police officer but nevertheless asked him if he could arrange the murder of a man called Flavio Rosa who lived in Portugal. The man said he could arrange the murder for a fee of £15,000 and the appellant agreed to pay that fee in five installments of £3,000. He provided the officer with examples of Rosa's daily routine, the full address of the villa in Portugal where he lived and a full description of him. He showed Paul the address and maps of the area. At end of the meeting he refused to use a mobile phone as a point of contact and made arrangements to meet the officer, as he was, on Monday 20th November. That is the first count of soliciting to murder. 3. On 20th November, the appellant met the police officer again and was introduced to a second undercover officer. The appellant again discussed the arrangements to kill Rosa for £15,000. He explained that he had the money, which was the proceeds of sale of his flat in Portugal, and explained the need to pay for it in installments to evade a money laundering disclosure. He discussed the actual method of killing Rosa, suggesting it would be a good idea to make it look like an accident. He explained his motive for wanting Rosa killed in that he felt Rosa had stolen his inheritance by co-habiting with his, the appellant's, late mother in Portugal, as a result of which his mother had left Rosa a lifelong right of residence in her villa in her will. He produced detailed maps showing the location of the villa and provided a description of Rosa. He agreed to pay an advance of £200 to enable travel to Portugal to research the address and obtain pictures of Rosa. He agreed to meet again on 13th December. That is the second count of soliciting to murder. 4. On 30th November 2006, the appellant committed the offence of assault occasioning actual bodily harm. The offence was committed at a club which was a mental health charity and provided rehabilitation for people with mental health problems such as those suffered by the appellant. At about midday on 30th November, the female managing director had her attention drawn to the fact that the appellant had arrived and was behaving in an aggressive fashion and was swearing at a member of staff. She went into the garden and attempted to defuse the situation by standing in a non-threatening manner and asking how the appellant was doing. He started swearing again. He was asked to leave but then moved towards her and lunged at her, grabbed her hair, pulled the top, ripping it slightly, started to hit her over the head with a plastic bag with something in it and then grabbed her throat. Eventually she was rescued by other members of staff. She suffered scratches and reddening to the neck and was distressed and shocked. 5. The appellant did not attend the meeting planned for 13th December. The officers went to the agreed location but the appellant failed to show up and, on 18th December, police officers went to his home and arrested him. He told the arresting officer that he had given up the idea of killing someone. His address was searched and various references to meetings and dealings with hitmen were found. It appeared that he told one of those who were trying to help him with his psychological difficulties about a year before, that he had contacted someone with a view to killing Rosa and in fact paid that person, a neighbour, money, but the person had done nothing and made off with the money. 6. In sentencing the appellant, the judge noted that the authors of the psychiatric and pre-sentence reports were troubled about how far he meant to go with the plan for Rosa but they did not consider he posed a significant danger. However, the judge said, rightly of course, that soliciting to murder was a very serious offence. He took account of the guideline cases which he had read and said it was clear from those authorities that sentences approaching, and sometimes into, double figures were called for both as punishment and to deter others. He imposed the sentences to which we have previously referred. The psychiatric reports had in fact said that the appellant had longstanding mental health problems consisting of a complex mix of development disorder and mental illness but his condition was not sufficiently severe to warrant detention in a hospital. He was vulnerable, in need of mental help and struggled to survive in his own community and the most likely diagnosis was Asperger's Syndrome and depression. Obsessive symptoms such as his obsession with Mr Rosa were linked to that. The pre-sentence report said that it was extremely difficult to assess risk in the appellant's case. The prison report prepared for this appeal discloses that the appellant is on an assessment plan, or has been, because of anxiety about returning from healthcare to normal prison locations and because he has a history of self harm. 7. Ms Modgil has referred us in her advice and today to a number of previous cases and submits that the judge could have imposed a community sentence and that if a prison sentence was inevitable he adopted too high a starting point so far as the offence of conspiracy to murder was concerned. She submits that the consecutive sentence of one year for assault occasioning actual bodily harm took insufficient notice of relatively minor injuries, the previous lack of violence on the part of the appellant and the principle of totality. 8. The cases are these, in summary. In AG Ref (No 43 of 1996 ) [1997] 1 Cr.App.R(S) 378, to which the judge referred, this court reviewed previous cases of soliciting to murder and concluded that they indicated that the minimum starting point for the offence was five to six years following a trial. A two year suspended sentence for two solicitations of different men to kill a man, to whom the female defendant of good character owed money, was increased to four years, after taking account of double jeopardy of the defendant, who was at liberty. R v Shevon Smith [2000] 1 Cr.App.R(S) 212 was a very different case of a serious attempt to shoot the victim at the time of the actual murder of another victim and the sentence of 25 years for the attempted murder was reduced to 18. 9. In R v Robinson [2003] 2 Cr.App.R(S) 13, the facts, as Ms Modgil accepts in her advice, were similar to this case to the extent that the appellant, a mature woman of previous good character, suffered from mental disorders. More than one solicitation was made to an undercover officer but the appellant withdrew when a friend to whom she made the first approach told others of the plan. The appellant had, however, contested the charge. This court held that the sentence of seven years was not manifestly excessive after a trial. In doing so, it referred to R v Adamthwaite [1994] 15 Cr App R(S) 241 as the lowest report sentence passed for the offence, that is four years after a guilty plea. In R v Imran Khalil [2004] 2.Cr.App.R(S) 24, to which the judge also referred, there was a conspiracy to have the husband of the appellant's daughter killed. The sentenced of 16 years after a contested trial was upheld, but that was conspiracy with others and money was actually paid to the undercover officer concerned. In R v Jagit Singh Rai [2006] 2 Cr.App.R(S) 13, to which the judge referred, a sentence of nine years was reduced to eight for three counts of soliciting to murder three separate proposed victims. The appellant had pleaded guilty. An aggravating feature was that the appellant's fingerprints were found on a bag containing a sawn-off shotgun and ammunition. The appellant had sought to end his involvement and pleaded guilty to three counts and to possession of a prohibited weapon. This court described the case as one of great gravity as the appellant was the chief negotiator in the soliciting and we accept that that was a more serious case on its facts than this one. Burton J has referred us to the case of R v Montague [2004] 1 Cr.App.R(S) 137, where, in a case comparable to this one in seriousness, the appellant's sentence of five years after a plea of guilty was upheld. 10. In our view, it is important to guard against the influence of what are generally more serious cases of attempted murder and conspiracy to murder. The leading case for solicitation to murder is still AG Ref No(43 of 1996 ) to the effect that the starting point for soliciting to murder is five to six years after a contested trial. The appellant in this case clearly thought carefully about how the killing might actually be carried out. He was of good character (so are many defendants to this kind of charge) and there is an element of deterrence to others in the sentences to be imposed. Nevertheless, it is a matter of significant mitigation that the appellant in this case did not proceed with the third planned meeting with those he consulted about killing Mr Rosa. 11. In all the circumstances of this case, we consider that this very experienced criminal judge took a starting point which was a degree too high, perhaps influenced by more serious cases of attempted murder and conspiracy. In our view, the proper sentence on each of the counts of solicitation to murder is one of four and-a-half years to run concurrently. We cannot fault a consecutive sentence for the assault occasioning actual bodily harm, which was an entirely separate offence. The victim in this case came into the category of those who work in the public sector, such as doctors and nurses, who are entitled to the protection of the court, so an additional sentence of imprisonment was inevitable. However, bearing in mind the appellant's mental disturbance at the time of the offence and his prompt plea of guilty, we consider that a consecutive sentence of six months suffices. The result is that this appeal will be allowed by the substitution of concurrent sentences of four and-a-half years on each of the counts of solicitation to murder, with a consecutive sentence of six months rather than one year for the assault occasioning actual bodily harm; a total of five years' imprisonment, less the 231 days which the appellant had spent in custody before sentence.

2007_11_26-1291.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/3152/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/3152

f94a45ee5c7dc093957ef8b31c01f3384d0c070e3219b2b4e192f9c19250046d

[2018] EWCA Crim 2435

EWCA_Crim_2435

2018-11-06

crown_court

Neutral Citation Number: [2018] EWCA Crim 2435 Case No: 2017/03015/B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 06/11/2018 Before: LADY JUSTICE MACUR DBE MR JUSTICE JULIAN KNOWLES HIS HONOUR JUDGE WALL QC (SITTING AS A JUDGE OF THE CACD) - - - - - - - - - - - - - - - - - - - - - Between : ANDREW WINTERTON Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Graham Trembath Q

Neutral Citation Number: [2018] EWCA Crim 2435 Case No: 2017/03015/B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 06/11/2018 Before: LADY JUSTICE MACUR DBE MR JUSTICE JULIAN KNOWLES HIS HONOUR JUDGE WALL QC (SITTING AS A JUDGE OF THE CACD) - - - - - - - - - - - - - - - - - - - - - Between : ANDREW WINTERTON Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Graham Trembath QC and Miles Bennett (instructed by DWF ) for the Appellant Oliver Glasgow QC and Matthew Corbett-Jones (instructed by CPS ) for the Respondent Hearing dates: 10 October 2018 - - - - - - - - - - - - - - - - - - - - - Judgment Approved Lady Justice Macur DBE: 1. This is an appeal against conviction by Andrew Winterton (‘the Appellant’) with the permission of the single judge against his conviction for gross negligence manslaughter of Shane Wilkinson on 7 June 2017 in the Crown Court at Northampton (Count 7). He was also convicted of three counts alleging breaches of ss 7 and 37 of the Health and Safety at Work etc Act 1974 (Counts 8 – 10). On 30 June 2017 he was sentenced to four years’ imprisonment on Count 7, and 12 months’ imprisonment concurrent on each of Counts 8 – 10, making a total sentence of four years’ imprisonment. He was also ordered to pay £20 000 towards the prosecution’s costs and the statutory victim surcharge. 2. There were a number of co-defendants. Dean Wortley was acquitted of manslaughter but convicted of health and safety offences. He received 12 months’ imprisonment. Conquest Home LLP (‘Conquest’) was convicted of health and safety offences and was fined a total of £55 000. Dean Wortley and another man, James Taylor, were acquitted of a count of attempting to pervert the course of justice in relation to a back dated risk assessment and method statement that had been created by Dean Wortley following Mr Wilkinson’s death. The facts 3. The facts of this tragic case are as follows. The deceased was a man called Shane Wilkinson who was a labourer on a building site in the village of Collyweston in Northamptonshire. The project concerned the development by Conquest of nine new-build houses in a cul-de-sac just off the A43. An L-shaped trench had been dug in front and at the side of one of the houses, already occupied, for the laying of drainage pipes. At about 3pm on 4 September 2014 Mr Wilkinson was standing either in the trench or at its edge when it collapsed. He was buried in earth and rubble and suffered severe blunt force trauma to his head, which caused a large skull fracture from which he died. 4. The Appellant was the construction site manager and a director of Conquest. He accepted at trial that he had overall responsibility for health and safety at the site. The prosecution’s case was the accident was entirely foreseeable and preventable and that it had been caused by the gross negligence of the Appellant (and Mr Wortley, although he was acquitted, as we have said). Mr Wortley traded under the name of Clearview Demolition. He had been hired by the Appellant to excavate the trench using a digger. He was assisted by Dan Miller, and later by Mr Wilkinson. 5. Also present on site was Jaroslav Kondrats, who was referred to at trial as Jarek. He was the site foreman. The Appellant said that when he was not on site Jarek Kondrats would ‘keep an eye’ on matters for him and could contact him by mobile phone; it was Jarek Kondrats’ job to carry out risk assessments, who decided on individual tasks and was in charge when the Appellant was not there. However, Jarek Kondrats’ evidence was that apart from going on a scaffolding course, he had not received any health and safety training and that, although he was the Appellant’s ‘right hand man’ he was responsible for things such as loading and unloading materials. It was the Appellant who retained responsibility for health and safety and for making sure that the work on site was done properly and safety. 6. The prosecution’s case related to the way in which the trench was dug. It was some 2 metres deep. Its sides were not battered (ie, slanted) back, but were vertical and unsupported. It was the prosecution’s case that it was, or should have been, obvious that there was a risk that the trench would collapse and that this presented a clear and obvious risk of death to anyone standing at the edge of, or in, the trench. 7. David Wonford, a civil engineer, called by the prosecution as an expert witness, said that a report on the site before construction began had concluded that the soil was likely to be loose with hard spots, and that it was prone to collapse. He therefore said that precautions should have been taken to prevent the trench from collapsing; hazards in relation to trenches are well known and well-documented. The sides of the trench should have been battered back to a 45-degree angle; a 2 metre deep trench which was 600 mm wide at the bottom (as the trench in question was) should have been 4.6 metres wide at the top. He told the jury that: “No work should take place until a competent person who fully understands the dangers and necessary precautions has inspected excavation supports at the start of the shift. The collapse was foreseeable but when it would collapse could not be foreseen, so precautions to protect those in the trench, either by a trench box [ie, a metal structure used for protecting workers working in a trench] or battering and those who might fall in by way of handrails must be put in place. If Shane was being asked to go into the trench it should’ve been supported … The principal contractor has to engage a competent contractor. I don’t think Clearview was competent to do the work and this was illustrated by the fact that the trench collapsed. The trench alone without it collapsing would’ve been sufficient for an HS[E] inspector to have stopped work. Any competent person would have attempted to stop the work. The same applied to Conquest: a competent principal contractor would not have allowed that work to proceed without protection of battering. Representatives of the principal contractor should have been competent enough to recognise that these works were not being done safely and to have stopped the work. If the representative had failed to stop it, the company has failed. If the company’s not putting competent eyes and ears on the ground, then it has failed. I’m not aware that Conquest had sight of documentation to prove that Mr Wortley could manage health and safety. From what I’ve seen evidence, he could not manage health and safety and this would have been obvious to a site manager, Mr Winterton, if the site manager had seen a particular excavation.” Mr Wonford was shown a photo of the trench and he said that it : “Shows a face which is pretty nearly vertical. It’s not unsafe if a person is not in it. The gravel makes it less safe. Nowhere near the width it should be if the excavation was 2m deep. A competent site manager would’ve known what equipment the sides would be battered back, remove any men from inside the trench …” 8. Paul Burrows, an employee of Anglian Water, who visited the site the day before the trench collapsed to assess the suitability of the drainage system for adoption by Anglian Water, saw the way in which the trench was being excavated and warned that it was dangerous (although the part he viewed was not the part that collapsed). His evidence was: “There was a person compacting stone in the trench using a whacker. There was a digger outside plot 6 with an operator in it. The depth gave me concern as I said there should’ve been some trench support; using a vibrating tool in a trench is not safe. The side of the trench might fall in. The depth was either waist or head height; it was very stony ground, it made me say something. I told the person in the trench words to the effect that it wasn’t clever to be doing that … I said about there being no trench support. The man in the trench did not say anything … to me. I made my point to him; he didn’t say a lot. I was introduced to the person on the digger by the site manager/agent and I asked the man on the digger about granular fill. I said about there being no trench support. The trench looked stony and looked like a wall with Collyweston stone. I was told it was alright and it was really good ground. I’d said my piece really … It was not my remit but I said something because it looked unsafe and everyone has a duty of care.” Mr Burrows said that the did not think the Appellant had been there when he had had this conversation, although it was put to him on behalf of Mr Wortley that the Appellant had been present. 9. The prosecution’s primary case was that the Appellant knew that the trench had been dug in a manner which was obviously dangerous and that, in breach of the duty of care he owed to the workers on the site, including Shane Wilkinson, he did nothing about it with the consequence that Mr Wilkinson died; that the Appellant’s failures were so bad as to amount to gross negligence, and so he was guilty of manslaughter. The prosecution said that the Appellant could not have failed to see that the trench was dangerous. It had been dug over a seven-day period (26 August – 3 September) and the Appellant’s own evidence was that he visited the site daily, and sometimes more than once a day. He had to walk past the trench to reach the area of the site where new houses were being built, and so he must have seen how the trench was being constructed. In accordance with Mr Wonford’s evidence, any competent site manager would have acted to prevent further work on the trench, or in it, until it had been made safe. 10. Alternatively, if the Appellant had not known about how the trench had been constructed then he should have known, because he was responsible for health and safety at the site, he had been responsible for hiring Clearview Demolition and Mr Wortley to do the work, and he had the responsibility of monitoring their work. 11. At the close of the prosecution case the Appellant made a submission that there was no case for him to answer on Count 7 because there was no evidence that he had ever witnessed a trench in an open and dangerous condition; no evidence that he ever saw anyone working in the trench which was not battered; and there was a site foreman present at all times, namely Jarek Kondrats. 12. In response, the prosecution pointed to: the expert evidence that the trench was dangerous and prone to collapse, the question being when and not if it would collapse, and that the Appellant should have stopped work on the trench until it was made safe; the evidence of Mr Burrows, who warned the day before the accident that the trench was unsafe; evidence that Dean Wortley was obviously dangerous and incompetent and this should have been obvious to any competent supervisor; that Jarek Kondrats was not qualified; and, the Appellant’s acknowledgment in interview that he was responsible for health and safety and he had visited the site daily, and sometimes more than once a day. In short, the prosecution said that the Appellant could not have failed to notice the trench, and yet he took no steps to prevent the obvious risk of fatality, and that the assessment of whether his failures were grossly negligent so as to amount to a crime was pre-eminently for the jury to assess. 13. The judge rejected the defence’s submission. As to the first point made on behalf of the Appellant, he said, ‘But he should have’. The judge held that there was sufficient evidence upon which a reasonable jury, properly directed, could convict the Appellant. 14. The Appellant’s case was that he planned the excavation properly with Jarek Kondrats. He said he chose a competent contractor to do the work and was satisfied that the work as it progressed did not present a danger of death to those persons on site to whom he owed a duty of care. It was argued on his behalf that there was nothing risky in the way in which Dean Wortley and the others excavated the trench. He told the jury that he never saw an open and unbattered trench. He said that the only open trench he saw was just 18 inches deep. 15. The judge summarised the prosecution case to the jury in terms: “… Mr Winterton was on site daily and that he should have been aware that the trenches were not being battered back or that other precautions were not being taken to prevent collapse. With that knowledge, Andy Winterton should have stopped any further work on the trench and yet did nothing and this led to the collapse of the trench which killed Shane Wilkinson.” 16. The judge prepared a lengthy route to verdict setting out the various issues which the jury had to consider in relation to the counts on the indictment. It was not in dispute that the Appellant owed a duty of care to those on the site including Mr Wilkinson. Questions 33 – 37 addressed the other elements of the offence of gross negligence manslaughter as follows: “Q33. Are we sure that Dean Wortley and the others with him were carrying out the excavation of the trenches in a way that presented an obvious risk of death to those on the site? If your answer to this question is no, you will find Andrew Winterton not guilty of count 7 and your deliberations will cease. If the answer to this question is yes, proceed to question 34. Q34 Are we sure that Andrew Winterton knew about this or should have known about this? If the answer to this question is no, you will find Mr Winterton not guilty of count 7 and your deliberations will cease. If the answer to this question is yes, proceed to question 35. Q35 Are we sure that Andrew Winterton was in breach of his duty of care to Shane Wilkinson by failing to prevent Dean Wortley from carrying out the work in the manner which carried the risk of death? If the answer to this question is no, you will find Mr Winterton not guilty of count 7 and your deliberations will cease. If the answer to this question is yes, proceed to question 36. Q36 Are we sure that this breach of duty caused or significantly contributed to the death of Shane Wilkinson ? If the answer to this question is no, you will find Mr Winterton not guilty of count 7 and your deliberations will cease. If the answer to this question is yes, proceed to question 37. Q37 Taking into account the risk of death from the collapse of a trench, are we convinced that in failing to prevent Dean Wortley from carrying out work on the trench in a manner which carried the risk of death, Andy Winterton was responsible for a breach of duty that was gross? In other words, that it went far beyond incompetence or even serious negligence so that it can properly be characterised as a serious crime; namely, manslaughter? If your answer to this question is no, you will find Mr Winterton not guilty of count 7 and your deliberations will cease. If the answer to this question is yes, you will find him guilty of count 7 and your deliberations will cease.” 17. The jury convicted. The application for permission to appeal and the single judge’s ruling 18. The Appellant sought permission to appeal on the following grounds: a. 1. The judge was wrong to have rejected the Appellant’s submission that there was no case for him to answer. b. 2 and 3. The judge erred in giving the jury “a lengthy document on the law and the issues before the jury which was not the usual “route to verdict” document and that it was deficient because it did not mention the Appellant’s defence that he genuinely thought Jarek Kondrats was competent. c. 4. The judge was wrong to allow cross-examination of the Appellant in relation to the back dated risk assessment and method statement that had been created by Dean Wortley following Mr Wilkinson’s death. d. 5. The judge wrongly allowed the prosecution to adduce some rebuttal evidence about Dean Wortley’s dealings with Anglian Water which was prejudicial to the Appellant’s case. 19. Subsequently, the Appellant added a further ground of appeal (Ground 3.1) which was that the judge erred in law in directing the jury that they were entitled to consider what the Appellant ought to have known about the way in which the trenches were being dug on site at the time of any alleged breach of duty by him, in reliance of the decision of this court in R v Honey Rose [2017] EWCA Crim 1168 . 20. The single judge refused permission on Grounds 1 – 5 and granted permission on Ground 3.1. The application for permission has not been not renewed on Grounds 2 – 5 and so it is unnecessary to say any more about them. In relation to Ground 1 (which is, in essence, a repetition of the submission made to the judge at the close of the prosecution’s case) the single judge said that the judge’s response to the argument that there was no evidence that the Appellant had seen a dangerous trench, namely ‘But he should have’, was arguably wrong on the basis of R v Honey Rose [2017], but that there was sufficient evidence to go to the jury. The Appellant renews his application for permission to appeal in relation to this ground. 21. In relation to Ground 3.1 the single judge said that in light of R v Honey Rose, supra, it was arguable and granted leave. Submissions 22. The arguments advanced in relation to both renewed application and the appeal necessarily overlap. Mr Trembath QC, on behalf of the Appellant, challenges as legally unsound the second way in which the prosecution put its case, namely that the Appellant could be guilty (subject to the other elements of the offence being proved) if he did not know the trench was being constructed in an unsafe manner but should have known. On the basis of the ratio in R v Honey Rose [2017] EWCA 1168 the Appellant could only be guilty if he actually saw the trench in an unsafe state with someone working inside, and there was no such evidence; question 34 was erroneous in point of law in as much as it contained the words ‘…or should have known about this’. 23. In oral submissions before us he refers to the direct evidence that the trench was excavated, and backfilled after pipes laid, in two sections over the course of 7 days which, he said, substantiated the Appellant’s evidence at trial that he had never seen the trench in the circumstances described by others and which would have alerted him to risk. He maintains that the prosecution would need to prove that Appellant had actual knowledge of the serious and obvious risk of death, and that to direct, as the judge did in posing question 34 in terms of “knew about this, or should have known about it” was simply wrong. Having regard to the appellant’s convictions in relation to breaches of the Health and Safety at Work, etc Act 1974, there was a risk that the jury had decided that those statutory breaches fixed him with the necessary foreseeability required to establish guilt of the offence of gross negligence manslaughter, but this would have been in retrospect, not prospect. 24. There is a comprehensive and detailed Respondent’s Notice in relation to initial and secondary grounds of appeal. Mr Glasgow QC, on behalf of the Respondent, has relied upon and reiterated them before us. In summary, there was compelling evidence in relation to the dangerous way the trench was being excavated, and the obvious danger which it posed, that should have alerted any competent supervisor that the subcontractors executing the works were incompetent and unsafe. The Appellant had responsibility for health and safety on the site and during the relevant 7-day period was a regular visitor to the site. It would have been impossible for him not to have seen the state of the excavation. The criticism of the judge’s directions in law is premised on a misreading of them and a misunderstanding of the Court of Appeal’s decision in R v Honey Rose , supra. The Respondent’s Notice argues: “Unlike the facts in R v Rose , the breach of the duty of care alleged against the appellant had nothing to do with a failure to carry out checks that would have put the appellant in possession of particular knowledge… It was unnecessary for the appellant to carry out any particular inspection or investigation (as was required by the optometrist in R v Rose or the doctor in R v Rudding [2016] EWCA Crim 741 ) All he needed to do was open his eyes and ensure the health and safety of persons at the site as he accepted he was required to do. His position therefore is no different from the anaesthetist who failed to observe the disconnected endotracheal tube (see R v Adomako (1994) 98 Cr App R 282 ) or the doctors who allowed a post operative condition to go untreated (see R v Misra and Srivastava [2005] 1 Cr. App R. 21 ): those appellants failed to appreciate the danger that was obvious to everyone else and should have been obvious to them…. It was not a case of what [the Appellant] “ought to have known” had he carried out any investigation, but rather a case of what he should have known because it could not have been missed….the risk in this case was ‘clear and unambiguous’ and ‘not one which might be apparent on further examination’.” That is, the judge was not wrong in his formulation of Question 34 or otherwise in his directions or summing up. Discussion 25. We are in no doubt that the judge was right to leave this case to the jury at the close of the Prosecution case. Even on the basis of Mr Trembath’s contention as to the pertinent law, there was evidence from which the jury could conclude that the appellant was actually aware of the method of excavation and that it was dangerous and there was a serious risk of death There was no issue but that he owed a duty of care to the workers on the site. The question as to whether the negligence alleged was so gross to be criminal was a matter for the jury. We therefore dismiss the renewed application for permission to appeal against conviction. 26. The ratio of this court in R v Honey Rose [2017] is that “The question of available knowledge and risk is always to be judged objectively and prospectively as at the moment of breach, not but for the breach” [@ para 80]. The “factual matrix is critical” [ @ para85]. 27. We regard the evidence in this case regarding the excavation of the trench, depicted so starkly in a photograph handed to us during the appeal and which had been in the jury bundle, clearly demonstrated the dangerous workmanship that posed a real and significant risk of death. Further, there was evidence from which the jury could have concluded that the Appellant had actual knowledge of the same, or otherwise adopted a wilful blindness/ignorance of the excavation of what would necessarily be a deep drainage trench in unstable ground and therefore intrinsically dangerous. The Appellant’s duty of care to those on site would be continuous throughout the excavation. The breach of duty was ongoing from the time that excavation of the trench had reached a stage which required battering or other means of support and required a workman to enter into it to lay the pipes, or else allowed them to encroach on the area next to it. 28. The factual matrix in this case was that it was a question of ‘when’ not ‘if’ the trench would collapse, and this was or should have been apparent to anybody. Consequently, there was reasonable foreseeability of serious and obvious risk of death to anyone in or near the trench. The Appellant’s breach of duty is not able to be cast as that in the case of the optometrist in R v Honey Rose , and the GP in R v Rudding . They were not sufficiently alerted – and had no cause to be - to the risk of death on the facts available to them at the time of the breach of their respective duties of care, and which when objectively assessed should have alerted them to the serious and obvious risk of death. For example, in R v Honey Rose , the deceased little boy did not present with symptoms which should have put the optometrist on notice that there might be increased pressure in his brain, so alerting her to the positive need to examine the back of his eyes. In both cases, the prosecution was inviting the jury to a retrospective scrutiny of foreseeability of death on the basis of the ultimate and fatal outcome of the progress of a disease that could have been detected sooner but for breach of their duty of care, not that this risk should have been apparent to them prospectively at the moment they failed to investigate further. 29. The evidence in this case simply does not permit Mr Trembath to argue that ‘but for the trench collapse, no objective observer would have been aware from the facts available to the Appellant at the time that there was a significant risk of death arising from his breach of duty.’ We agree with Mr Glasgow that this Appellant is in the position of the anaesthetist in Adomako and the doctors in Misra and Strivastata , the warning signs and serious and obvious risk of death were there for them to see. They either did see them and ignored them, or failed to do so in circumstances that would provoke an objective observer to say, ‘but on the facts and in their position they should have done’. 30. The judgment in R v Honey Rose was handed down several weeks after his summing up, but we do not consider that the judge’s directions would have markedly altered in any way if the sequence had been reversed. We are not persuaded that the judge’s directions of law in relation to the offences contrary to sections 7 and 37 of the Health and Safety at Work etc Act, 1974, would confuse the jury as to what the prosecution must prove to establish the Appellant’s guilt of gross negligence manslaughter. The judge’s directions of law in respect of these offences are not challenged. It follows that we do not find the judge to have fallen into error in directing the jury as he did, or in the formulation of his route to verdict. The appeal against conviction is dismissed.

2018_11_06-4436.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/2435/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/2435

5ca9649ffe75f03c1df41d727a2d459041f14e4595abf262027ae9e9f970cc3e

[2008] EWCA Crim 1934

EWCA_Crim_1934

2008-08-12

crown_court

Case No: 200802296/A6 Neutral Citation Number: [2008] EWCA Crim 1934 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 12th August 2008 B e f o r e : LORD JUSTICE TOULSON MR JUSTICE ANDREW SMITH MR JUSTICE BEAN - - - - - - - - - - - - - - - R E G I N A v ROBERT HYNES - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2

Case No: 200802296/A6 Neutral Citation Number: [2008] EWCA Crim 1934 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 12th August 2008 B e f o r e : LORD JUSTICE TOULSON MR JUSTICE ANDREW SMITH MR JUSTICE BEAN - - - - - - - - - - - - - - - R E G I N A v ROBERT HYNES - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - Mr M Evans appeared on behalf of the Appellant - - - - - - - - - - - - - - - J U D G M E N T 1. Mr Justice Bean: On 13th September 2007 the appellant was seen to throw a brown paper bag over the perimeter wall of Lowdham Grange Prison. It contained drugs: 100 grammes of powder containing heroin, with a value of between £4,000 and £10,000, and, in addition, 25 grammes of cannabis. 2. About 50 minutes later the appellant was found hiding in undergrowth nearby. He was put in a police vehicle where he dictated what he remembered of the registration number of the vehicle which had driven him to the prison. He said there had been two men in the car. The package containing the drugs was recovered within the prison but by this time it was too late for the information given about the car, such as it was, to be of any use. He was charged with attempting to supply a controlled drug of class A, namely the heroin, and of class C, namely the cannabis. He declined to comment in his interview, but in a defence case statement, dated 10th December 2007, he set out what his case was, amounting to what a layman would call duress, but not duress so as to be a defence to the charge. He pleaded guilty on 6th February 2008 and in due course was sentenced by His Honour Judge Teare to five years' imprisonment. 3. The basis of plea which was accepted by the Crown and by the judge corresponds with the content of his defence case statement. This said that the accused committed the offences because he was under threat from third parties and in fear that, if he did not carry out the offence, then either he or members of his family, his partner or their unborn child, would be at risk of serious injury. He had good cause to believe that the threats were serious due to previous incidents which had been reported to the police. These included an incident where someone had broken into his house at night with a weapon. The windows of his home had been smashed on numerous occasions. He had been assaulted. He had had to move house. 4. On the day in question he was walking to the supermarket when a car pulled up alongside him. Two men got out of the vehicle and proceeded to force him inside it. They drove off. It was from associates of these two men that he had previously been experiencing threats and harassment. They said that unless he did what they wanted him to do his partner and their unborn baby would come to harm. 5. He was driven to the exterior of Lowdham Grange Prison, was made to sit in the bushes while a number of phone calls took place between one of the men who took him there and a person whom the defendant believed to be inside the prison. He was given instructions about where to throw the package over the wall and he did so. He suspected that there might be drugs in the package but he did not know of what type or in what quantity. 6. In his sentencing remarks Judge Teare accepted that it had been the appellant's intention when he came out of prison following an earlier period of custody to stay on the straight and narrow and that he had to a certain extent demonstrated that. The judge accepted that there were substantial threats made to the appellant and effectively accepted the substance of the defence case statement. He also bore in mind that the impact of the custodial sentence would be extremely hard because the appellant and his partner had just had a baby, who, by the time of sentence, had been born. The judge said that he originally had in mind a sentence of seven years before he heard the mitigation. 7. The judge noted, as we do, that, although there had been significant and substantial pressure on the appellant, he nevertheless did throw the package over the wall, then went into hiding for nearly an hour and then when interviewed made no comment. He did, in the end, have the courage to plead guilty and had given a consistent account. 8. The single judge in granting leave referred to the case of Tanveer Waheed in which a sentence of seven years' imprisonment imposed by the trial judge for attempting to smuggle heroin into prison was reduced to five years. In that case, although duress of a sort was raised, the court did not accept it. On the other hand, the quantity of the heroin was only 1/30th of that which was thrown over the wall by the appellant in this case. Similarly in the case of Prince , referred to in Tanveer Waheed , a sentence of five years was upheld for smuggling or attempting to smuggle heroin into prison where the quantity was only half a gramme in contrast to the 100 grammes here. 9. It is not suggested that the starting point of seven years, which the judge had in mind before giving consideration to the pressure placed on the appellant, was in any way an erroneous starting point. Indeed, Mr Evans has not suggested that it was. 10. We are unable to say that the judge gave an inadequate discount for the pressure to which the appellant was subjected. Accordingly, the conclusion to which the judge came, namely that a sentence of five years' imprisonment was the appropriate one, taking account of the pressure placed on the appellant, is one with which we agree. The sentence cannot be said to be manifestly excessive. It follows that this appeal must be dismissed.

2008_08_12-1628.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/1934/data.xml

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2f9e1bee8e64827814782ab8c978783084789c90d57ba6d9d3b79a13bdf55efe

[2019] EWCA Crim 1415

EWCA_Crim_1415

2019-07-19

crown_court

Neutral Citation Number: [2019] EWCA Crim 1415 Case No 201901433/A3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 19 July 2019 Before : LORD JUSTICE LEGGATT MR JUSTICE POPPLEWELL AND HIS HON OUR JUDGE JUDGE MARSON QC (sitting as a Judge of the CACD) R EG I N A v MAISON JAMES ARMSDEN-MCCLENNON O 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

Neutral Citation Number: [2019] EWCA Crim 1415 Case No 201901433/A3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 19 July 2019 Before : LORD JUSTICE LEGGATT MR JUSTICE POPPLEWELL AND HIS HON OUR JUDGE JUDGE MARSON QC (sitting as a Judge of the CACD) R EG I N A v MAISON JAMES ARMSDEN-MCCLENNON O 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 bymeans 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 R Purchase appeared on behalf of Armsden-McClennon . Mr M Garvey (Solicitor Advocate) appeared on behalf of O . Judgment Mr Justice Popplewell: 1. On the day of their trial in the Crown Court at Leicester, on 25 March 2019, the appellants each pleaded guilty to four counts on the indictment. Counts 1, 3 and 4 were charges of robbery. Count 2 charged assault occasioning actual bodily harm. McClennon (as we shall call him) was at the date of plea aged 18. O was aged 17. 2. On 2 April 2019 they were sentenced by His Honour Judge Martin Hurst as follows. In McClennon’s case, on count 1 (robbery) three years’ detention in a young offender institution. On count 2 (assault occasioning actual bodily harm) nine months’ detention in a young offender institution, to run concurrently. On count 3 (robbery) four years’ detention in a young offender institution to run consecutively. On count 4 (robbery) four years’ detention in a young offender institution to run concurrently. The total sentence in his case therefore was one of seven years’ detention in a young offender institution. 3. In the case of O, the sentence was as follows. On count 1 (robbery) two-and-a-half years’ detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 . On count 2 (assault occasioning actual bodily harm) six months’ detention under section 91 , to run concurrently. On count 3 (robbery) three years’ detention under section 91 to run consecutively. On count 4 (robbery) three years’ detention under section 91 to run concurrently. The total sentence in his case was therefore one of five-and-a-half years’ detention under section 91 . 4. Each appellant appeals against sentence with leave of the single judge. 5. Counts 1 and 2 reflect an incident which occurred on 22 July 2018 when McClennon was about 17¾ and O was about 16¾. At about 6.30 in the morning, the complainant Mr Ali picked up McClennon in his car. They were known to each other. They drove to a garage where they bought beer which they drank together and smoked some cannabis. At some stage McClennon directed Ali to drive to O’s house and to pick him up. The two appellants then decided to rob him. Their intention gradually became apparent to Mr Ali because he could see looks being exchanged between the two appellants and they were making comments like, “I’m the boss of this area, this is my estate, people do as I say.” They were acting, as the judge put it, as “wannabe gangsters”. McClennon was sitting in the front passenger seat. He grabbed Mr Ali round his throat in a headlock, choking him to the point where he briefly lost consciousness. O went to the driver’s window, stole the car keys and threatened Mr Ali with a screwdriver. When Mr Ali came round and regained consciousness, he managed to snatch the keys back and ran off. Both the appellants chased him and they beat him to the floor. They continued to attack him, causing significant bruises including a black eye and significant grazing to his arms, legs and body. They took the car keys back and drove off in the car which contained Mr Ali’s i-Phone and other items, including personal documents. The car and its contents were never recovered. The appellants were arrested shortly afterwards. They made no comment in interview and they were released pending further investigation. 6. Counts 3 and 4 reflect another robbery some three-and-a-half months later on 9 November 2018, by which time McClennon was aged 18 and O was not quite 17. On that occasion, these appellants were at a party in a flat above a chip shop, as were their two victims, Kyle Perry and Raees Jamal who had gone out onto a balcony to smoke shortly after arriving. The appellants and a third man approached them on the balcony and took out machetes which they had with them. They used the machetes to threaten the victims. The attackers made the two victims take off their clothes down to their boxer shorts in order to steal them and in the course of that held the machetes close to their skin. They stole the clothes, together with a watch and a phone. They then left and stole Mr Perry’s Audi A3 car in which they made off. Again none of those items including the car has been recovered. The attack was accompanied by bragging and threatening comments such as “You’re in our end now” and “you don’t belong here” and was clearly designed to be and was both threatening and humiliating. 7. Victim personal statements showed that that attack had a lasting financial and psychological effect. Mr Perry was left £1,000 out of pocket after payment of the insurance proceeds on his car and he lost almost the same amount again on items of clothing and personal jewellery which were uninsured. The incident has also caused his motor insurers to refuse renewal of cover and he has not been able to find affordable insurance so that he has been left unable to drive his replacement vehicle entirely as a result of this incident. The psychological impact on him has been significant. It has stopped him going out and socialising. It has made him withdrawn and subject to the onset of crying and panic attacks. It has changed his lifestyle to one in which he no longer socialises. He suffers nightmares and flashbacks seeing his attackers’ faces. 8. Mr Jamal has also suffered the lasting psychological impact of the attack. His statement reveals that he is constantly on edge when at home or when out. He has become more reserved. It has affected his work and he finds himself constantly looking over his shoulder whenever he is out in public. 9. McClennon had six previous court appearances for 11 offences between 2017 and 2018. His relevant convictions included assaults, batteries and threatening with a bladed article in a public place. O had eight previous court appearances for 20 offences from 2017, with his relevant convictions including burglary, handling stolen goods, theft and possession of a bladed article. He had most recently been sentenced to an eight month detention and training order for two offences of having a bladed article on New Year’s Eve 2018, a sentence which was current when he was being sentenced for the instant offences and to which they were made to run concurrently. 10. There were reports before the sentencing judge. As a result of their previous crimes both appellants were well-known to local youth offending services. A report from McClennon’s case manager of 12 November 2018 confirmed that he generally attended his appointments, although he had missed some and had breached orders twice, and he had on the whole completed the rehabilitative programmes which had been identified for him under the youth rehabilitation orders to which he had been made subject. 11. A pre-sentence report on O identified that contributory elements for the offences for which he was being sentenced in January 2019 (which are not the offences with which we are concerned). Contributory elements towards those offences were his naivety and immaturity but mainly his longing to be liked and to be popular along with his inability to say no to his codefendants. He had, as he accepted in that report, lied to Youth Services by previously telling them that he had been coerced into offending because he was forced by older offenders to go to Liverpool to sell drugs. He accepted that he had told the probation officers that simply in order to get them to treat it as a child protection issue and to stop him being sent to prison. There was, the author of the report said, no specific evidence that he was remorseful and he still failed to recognise the seriousness of his offending and was keen to blame others such as his mother, the police and social services. It was recorded that it was understood that he had ADHD and ODD (that is Oppositional Defiance Disorder) and that he had witnessed some early traumatic adverse childhood experiences. He had a supportive family. 12. In sentencing, the judge identified the aggravating features of the offences. He put the July robbery in Category 2B, which has a starting point of four years and a range of four to eight years. In relation to the November robbery, the judge identified that it was the guideline for street robbery which provided the most helpful guidance rather than the guide for robbery in a dwelling which contains rather longer sentences because, as the judge said, this was not a case engaging the rationale behind the higher sentences in the guide for robbery in a dwelling, namely the protection of householders in their own homes. The judge observed that this robbery might just as easily have happened on the doorstep or the street as on the balcony of someone else’s flat between people who were all guests. He said that applying the guideline for street robbery, this was a Category 2A offence because of the use of machetes to threaten and that therefore the starting point was five years with a range of four to eight. 13. He determined that the appropriate sentences for an adult after a trial would be four years for the July robbery and six years for the November robbery, to run consecutively, making a total sentence of 10 years. To this he applied a 10 per cent discount in the case of each appellant to reflect late guilty pleas, reducing it to nine years. He then deducted two years in the case of McClennon and three-and-a-half years in the case of O to reflect their youth and totality, and then split the total resulting sentences of seven years and five-and-a-half years respectively to impose consecutive sentences for each set of offences for each incident. 14. In the grounds of appeal which are advanced on behalf of the appellants, no criticism is made of the judge’s categorisation of either of the robberies, nor is any criticism made of his 10 per cent credit for the late guilty pleas. We observe however that the judge ought to have applied that discount for pleas only after having arrived at what would otherwise have been the appropriate sentence, not (as he did) before any reduction required by the appellants’ youth or other personal mitigation or questions of totality. The effect was to give an over-generous reduction in the sentence for these appellants. 15. The essential grounds of appeal in each case are that the judge took insufficient account of the principles of totality and failed to take sufficient account in each case of the appellant’s young age and in O’s case of the naivety and immaturity referred to in the pre-sentence report, with the result, it is said, that the total sentences were in each case manifestly excessive. Reliance is placed in each case on the Sentencing Council’s Guideline on Sentencing Children and Young People and in particular on paragraph 6.46 which provides: “When considering the relevant adult guideline, the court may feel it appropriate to apply a sentence broadly within the region of half to two thirds of the adult sentence for those aged 15 – 17 and allow a greater reduction for those aged under 15. This is only a rough guide and must not be applied mechanistically. In most cases when considering the appropriate reduction from the adult sentence the emotional and developmental age and maturity of the child or young person is of at least equal importance as their chronological age.” 16. We start with consideration of the appropriate sentences for an adult offender after trial for each of the two robberies. The first had the following aggravating features: it was a group attack, it was accompanied by significant violence, both in choking the victim to a point of unconsciousness and in the sustained assault following a pursuit which put him to the floor and caused significant bruising and grazing. It was further aggravated by the significant financial loss to the victim, including loss of the car itself and its contents, including an i-Phone and personal documents. These factors would in our view have justified a starting point above the guideline starting point of four years. 17. The second robbery also had a number of significantly aggravating features. It was a group attack; the machetes were not just used to threaten, which is what puts the offence in Category A, but also applied close to the skin of the victims; the attack was designed to inflict both humiliation and lasting fear and was conducted in such a way as to achieve that desire; it involved taking items of significant value - the car and the phones and the personal jewellery and watches; and it had a significant continuing psychological effect on both victims and a further impact for Mr Perry in his inability to use his replacement car because the incident had made affordable insurance impossible. Moreover, it was committed whilst on bail or at least when the appellants had been released for further investigation in the relation to the first robbery. These factors would justify a starting point well above the starting point of five years in the guideline for this category of offence. 18. These were quite separate episodes of criminal behaviour against different victims with different features, carried out several months apart. They clearly justified consecutive sentences and did not, in our view, call for a very large reduction for the application of the principles of totality. Accordingly, we can see nothing excessive, let alone manifestly so, in a total sentence of 10 years for an adult offender after a trial for the totality of this offending. 19. That leaves the appropriate reduction for the young age of the appellants and the immaturity of O and credit for pleas. On behalf of McClennon it is argued that he was entitled to a reduction of at least half of the sentence on the first robbery under the terms of paragraph 6.46 of the guideline which we have quoted because he was under 18 at the time it was committed. That is a mistaken submission. The guideline is inapplicable to him because it applies to those under 18 at the time of the conviction and he was 18 when he changed his plea in March 2019 at the beginning of the trial. Nevertheless, his young age at the time of the commission of the offences is a matter which calls for a significant reduction to the sentence which would be imposed on a more mature adult offender. That reduction must however be tempered by McClennon’s poor record of prior offending which we have hitherto left out of account as an aggravating feature of the offences. In the circumstances, a reduction of two years from what was a justifiable sentence for an adult is sufficient for his youth and guilty plea and not such in our view as to result in a sentence in his case which is manifestly excessive. 20. In O’s case the expressed reduction was of a period of three-and-a-half years, although the reduction was in practice one of almost four years as a result of the error of applying the 10 per cent discount at the wrong stage to the higher figure. That is in line with the guideline, especially taking into account his very poor record. In his case too we are unpersuaded that that has resulted in a sentence which is manifestly excessive. It takes sufficient account of his young age and guilty plea. 21. Accordingly, the appeals will be dismissed save for a technical correction in the case of O which makes no difference to his overall sentence. In his case the sentence on count 2, the charge of causing actual bodily harm, is unlawful. A sentence of detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 can only be imposed for an offender under 18 at the date of conviction who has been convicted of a crime for which the maximum sentence in the case of an adult would be at least 14 years. 22. Accordingly, in his case we will substitute on count 2 for the sentence of six months’ detention, a sentence of no separate penalty. The appeals are otherwise dismissed.

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https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/1415/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/1415

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[2005] EWCA Crim 369

EWCA_Crim_369

2005-02-10

crown_court

No: 200303596/B3 Neutral Citation Number: [2005] EWCA Crim 369 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 10th February 2005 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) LADY JUSTICE SMITH MR JUSTICE BUTTERFIELD - - - - - - - REFERENCE BY THE CRIMINAL CASES REVIEW COMMISSION UNDER SECTION 9 OF THE CRIMINAL APPEAL ACT 1995 R E G I N A -v- JAMAL KARIMI - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave

No: 200303596/B3 Neutral Citation Number: [2005] EWCA Crim 369 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 10th February 2005 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) LADY JUSTICE SMITH MR JUSTICE BUTTERFIELD - - - - - - - REFERENCE BY THE CRIMINAL CASES REVIEW COMMISSION UNDER SECTION 9 OF THE CRIMINAL APPEAL ACT 1995 R E G I N A -v- JAMAL KARIMI - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR D BENTLEY appeared on behalf of the APPELLANT MR J LAIDLAW appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: Yesterday we allowed the appellant's appeal, quashed his conviction and gave directions for a retrial. We now give reasons. Each member of the Court has contributed to this judgment. 2. The appellant was convicted of murder on 29th July 1997, following a trial before Blofeld J at St Albans Crown Court. He was sentenced to life imprisonment. On 10th November 1997, the Single Judge refused leave to appeal and, on 1st May 1998, an application for an extension of time within which to renew that application was refused by another Single Judge. He appeals against conviction on a reference by the Criminal Cases Review Commission made on 20th June 2003, under section 9 of the Criminal Appeal Act 1995 . The reference was made partly on the basis that there is new evidence contained in post-trial psychiatric reports, obtained by the Commission from Dr Mezey and Dr Grounds, relating to the appellant's special characteristics relevant to a defence of provocation. These doctors advance a diagnosis of enduring personality change after catastrophic experience (which we shall refer to as 'EPCC') and which Dr Grounds concluded did not appear to have been considered at the time of trial. The Commission observed that the absence of such a diagnosis at trial "appears to have reflected the understanding of psychiatrists as a whole at the time of trial". It is unfortunate that the Commission made no enquiry of either Dr Joseph or Dr Nayani, who gave evidence at the trial, as to whether they had considered EPCC. Had that enquiry been made, Dr Joseph could, and no doubt would, have told the Commission that it was considered. Dr Nayani could, and would, have explained why such a diagnosis would, in his view, have been difficult to substantiate. We shall return later to this aspect when dealing with the second ground of appeal. 3. The first ground, also contemplated by the Commission, is that the judge's summing-up was inadequate in the light of the law as now stated in Morgan Smith [2001] 1 AC 146 . 4. The facts were that the appellant joined the Communist Freedom Fighting Movement in Kurdistan in 1984. He married Mehri Rezai, a member of the same movement, 2 years later and they subsequently had two children. 5. In 1990, having been injured while fighting in Kurdistan, the appellant moved to Sweden. His wife joined him there a year later. Their relationship began to deteriorate. The appellant returned to Kurdistan in about 1992 to fight for a short period. His wife came to England in April 1994 and the appellant joined her in October of that year. The relationship did not improve. In February 1996, the appellant moved out of the family home and took a room in a YMCA hostel. He enrolled on a full-time course to learn English and became friendly with a man called Sirvan Kabadi, who became the deceased. He too had been a freedom fighter in Kurdistan. 6. The appellant's wife met Kabadi in August 1996 through the appellant. They became lovers in the autumn of 1996. On 4th December 1996, his wife told the appellant that their relationship was over and he left the house in an emotional state. She was concerned about his welfare and telephoned the YMCA, fearing that he might commit suicide. 7. On 6th December, Mehri spoke to the deceased, who told her not to come round, as had been prearranged, at 4.15 that afternoon because the appellant was coming to help him fill in application forms. In consequence, Mehri arranged to see the deceased later. 8. Earlier during that day, the appellant and the deceased had been seen to be getting on well without any animosity between them. But, at 3.15 pm, as shown by the security video on the deceased's block of flats, the appellant entered that block. Sixty-five minutes later he left, having killed the deceased with a knife in a frenzied attack from behind. There were numerous stab wounds; the most severe injury was the cutting of the deceased's throat. 9. When questioned by police the following day, the appellant immediately admitted the killing and helped in the recovery of the knife. He was arrested. In his possession was a Stanley knife, which he said he had just bought to kill himself. 10. The appellant's account of the killing to his wife was in part given to her at a meeting immediately prior to his arrest and in part in telephone conversations with her (covertly taped by the police) from the hospital where he was detained. When he was interviewed by the police, he made no comment. 11. It was the prosecution case that the appellant killed the deceased with the intention to kill or cause grievous bodily harm. The defence case was that the deceased had come at the appellant with a knife and sworn a particularly insulting phrase 'Besharef', meaning "You have no honour". The appellant claimed to have disarmed the deceased and then, using that knife, killed him. The defence was that his responsibility was diminished because of post-traumatic stress disorder and provocation, and self-defence. The significant issues for the jury were whether the appellant had been provoked and/or whether he was suffering from diminished responsibility. 12. In view of the course which we have indicated we are taking, namely allowing the appeal and ordering a retrial, it is neither necessary nor desirable that we rehearse the evidence which was before the jury, save to the extent necessary in relation to the evidence given by the appellant and the two psychiatrists called at the trial, in order to explain our refusal to receive fresh evidence from the two new psychiatrists. 13. Dr Joseph, a consultant forensic psychiatrist, gave evidence for the prosecution that, in his opinion, the appellant was not suffering from PTSD. Dr Joseph relied heavily on an entry in the medical foundation records of 5th October which said: "The appellant's happiest days were when he was fighting for his ideals in the mountains. Even though he loved his children, he'd rather be back fighting for what he believed in." Dr Joseph said that he had specifically asked the appellant if the actions of the deceased in the flat had brought back to his mind pictures relating to his experience in the war in Kurdistan; the appellant had said, "No". The appellant had described to Dr Joseph having the idea that there was a plan between the deceased, the appellant's wife and the children in relation to him, the appellant. The appellant made no mention to Dr Joseph of the use of the word 'Besharef'. 14. The appellant gave evidence, to part of which we shall return later. 15. A number of witnesses were called on his behalf, including, as we have said, Dr Nayani. He too was a consultant forensic psychiatrist, who referred to the appellant having been the victim of a chemical warfare attack in 1988 and then remaining in a coma for 48 hours. As he recovered, the appellant thought he was dead. He had no sight for 3 months and believed himself permanently blinded. Dr Nayani noted that, in the Medical Foundation notes in 1995, the appellant was recorded as suffering from social, emotional, physical and psychological problems and there was a mention of nightmares and mental problems. It did not surprise Dr Nayani that neither the general practitioner nor the Medical Foundation personnel had made a diagnosis of PTSD, as the general practitioner was not trained in psychiatric medicine and the Foundation staff were not doctors. Dr Nayani was satisfied that the appellant was suffering from PTSD, a disease caused by an abnormality of the mind which had substantially diminished the appellant's mental responsibility at the time of the killing. 16. We turn to the grounds of appeal and deal, first, with the second ground, which invited us to receive fresh evidence from Dr Mezey and Dr Grounds, who are both highly distinguished psychiatrists. Their views are expressed in a series of reports and letters obtained by the Commission between August 2000 and September 2004. 17. In deciding whether to receive this evidence under section 23 of the Criminal Appeal Act 1968 , as amended, we had regard to the matters identified in section 23(2) , in particular (b) "whether it may afford any ground for allowing the appeal" and (d) "whether there is a reasonable explanation for the failure to adduce the evidence at trial". 18. It was apparent, in our judgment, that the proffered opinions provide a marked shift, unsupported by any significant new information, from the way in which the defence was presented at trial. It is common ground that the principal focus of the psychiatric evidence at trial was diminished responsibility. This is unsurprising because there was much evidence to suggest that the killing was premeditated and vengeful and, as will appear, the appellant's own account afforded an insubstantial platform for provocation. Privilege has not been waived so we have no knowledge of what passed between the appellant and his legal advisers. But, although the burden of proof in relation to diminished responsibility was on the defence, there was, as it seems to us, clearly tactically, much to be said for putting diminished responsibility in the forefront of the defence, in reliance on Dr Nayani, who strongly supported it, rather than relying on provocation, which would depend much more on the account of the appellant, who proved to be, as may well have been anticipated by his advisers, an unreliable historian. 19. Diminished responsibility was advanced on the basis of Dr Nayani's opinion that the appellant had suffered from PTSD since 1990 due to fighting, sustaining injuries and helping the injured in Kurdistan. This diagnosis was based on the appellant having flashbacks, two of which were specifically identified. PTSD was an abnormality of mind which, Dr Nayani said, substantially impaired responsibility at the time of the killing. For the Crown, Dr Joseph found little, if any, evidence of abnormality of mind at that time. In the Kurdistan war the appellant had suffered life-threatening, catastrophic trauma, but many people did not develop PTSD from such trauma and, in the appellant's case, such a condition was diagnosed by neither the general practitioner nor the Medical Foundation. PTSD, said Dr Joseph, is extremely disabling and, if it is to amount to an abnormality of mind, it must severely affect the person's life. There was, he said, no evidence that the appellant was so affected. 20. In relation to provocation, it is to be noted that the appellant's evidence as to the immediate circumstances of the killing was set out in the summing-up in the following terms: "'I was sitting in the wicker chair' -- which you see in that photograph -- 'Sirvan was in the kitchen. He came into the living room with the knife. He swore at me. He said: 'Besharef', with the knife, which means: you have no honour. When he swore at me I realised he had an intention. I was so upset. He had never sworn at me. It is a strong swear-word in our culture. He held the knife in his right hand over his head' -- and he demonstrated it raised with the point downwards with a clenched fist holding the handle of the knife -- 'I got up and put my hand in front of the knife and I got cut on my finger. I got his sleeve with my left hand' -- he had got his right hand on the knife -- 'I got his sleeve with my left hand and I got his hand with my right hand. I twisted it. My hand was under his arm. He punched me on my head.' Meaning, that is how I got the injuries on my head. 'When I twisted his hand, the knife dropped to the floor. We both struggled to get the knife. After one to two minutes I got the knife and I hit him with it.' 'When he came at me with a knife I thought maybe he and Mehri, maybe they have a plan together, thinking that they are going to do something about me, and I saw my children as if looking at Sirvan seeing him attacking me, they were crying and saying: "Daddy, Daddy". I thought Sirvan wanted to kill me. I do not really remember causing those injuries to him. I have no recollection of getting behind Sirvan'." The possibility of a defence of provocation was not canvassed in chief or cross-examination with Dr Joseph. Dr Nayani, in response to questions by the judge at the end of his evidence, said that he relied on the raising of the knife as triggering PTSD. It was very difficult to say if the appellant was more vulnerable to provocation by the knife because of PTSD. But if the jury accepted that the appellant was threatened by the knife and that this triggered PTSD this would be a special characteristic making him more vulnerable to provocation. As will appear later, the judge, in summing-up, referred to the psychiatric evidence as relating to diminished responsibility; he did not refer to it in relation to provocation. 21. Bearing in mind the appellant's account of the events, to which we shall also return a little later, the crucial question which arose before us was whether the evidence now proffered from Dr Mezey and Dr Grounds was capable of rendering the jury's verdict unsafe, ie might the verdict have been different in the light of their opinions? 22. Dr Mezey, in her several reports from August 2000, said that, although the appellant had some symptoms of PTSD, they were insufficient to found such a diagnosis or to constitute an abnormality of mind for the purposes of diminished responsibility. EPCC should have been considered. In July 2001 she agreed with Dr Grounds' diagnosis of EPCC and said it was highly relevant to provocation. 23. Dr Grounds agreed that there is no sufficient basis for diagnosing PTSD. EPCC is the appropriate diagnosis but it is relatively mild, not causing a high degree of disability. The appellant was able to work, study and show intimacy, warmth and affection to his family. The appellant's personality change was not such as to establish diminished responsibility, because it was not sufficiently substantial nor linked to the killing. As to provocation, the appellant was more withdrawn, intolerant and irritable and, because of his childhood experiences, deeply sensitive to accusation of dishonour. These factors should have been added to flashbacks, nightmares, disturbance of mood and depression amounting to special circumstances exacerbating both the impact of provocation on the appellant and his response to it. It is to be noted that Dr Nayani, in his evidence, comprehensively described the appellant as having flashbacks, nightmares, disturbance of personality and mood and behaviour; and PTSD was associated with low mood and clinical depression, associated with changes of personality, irritability, sensitivity, a tendency to loss of temper, volatility and changes of behaviour. He also referred to a weakening of mental faculties and emotional control. Clearly the reports of Dr Mezey and Dr Grounds, which are before us, far from supporting Dr Nayani's opinion in relation to diminished responsibility, disagree with it and support Dr Joseph, so that, if called at the trial, their evidence would have rendered diminished responsibility unviable as a defence. As to provocation, Dr Grounds accepted, in paragraph 12 of his report of 11th November 2002, that his views were not based on any new information, though we were told by Mr Bentley, on behalf of the appellant, that Dr Grounds no longer adheres to that view. There was therefore a difficulty as to the failure to adduce such evidence at trial, highlighted because the Commission's assumption, without enquiry of Dr Joseph or Dr Nayani, that EPCC was never considered at the time of trial, was wrong. Dr Joseph's report of 12th March 2004 states that it was considered: indeed, in evidence at trial, he had specifically referred to the life-threatening, catastrophic trauma suffered in the Kurdistan war. In Dr Nayani's letter of 12th November 2004 he makes clear that he regarded it as a difficult diagnosis to substantiate, in the absence of reliable accounts of the appellant's personality before the impact on him of Kurdistan. Furthermore Dr Grounds' diagnosis of EPCC is both tentatively expressed ("relatively mild not causing a high degree of disability") and, in relation to special characteristics, not supported, save to the extent indicated by Dr Nayani, by any of the several doctors and psychiatric workers who saw the appellant before or during the three or four years after the killing. It also depends, in part, on acceptance of accounts given by the appellant in relation to his history and the alleged knife threat by the deceased. More than one person, including Dr Nayani, has described the appellant as manipulative. Dr Joseph and Dr Chesterman, whose opinion has been sought for the purposes of this appeal, both, firmly and clearly, differ from Dr Grounds. There were, and remain, significant difficulties with the appellant's account as a basis for provocation, both generally and in the light of his special characteristics. His evidence about the killing, which we have set out, was devoid of any reference to flashbacks or any other feature connecting his conduct with events many years before in Kurdistan. Also, contrary to the cross-examination on his behalf, which had disputed how many days before the killing he knew of his wife's infidelity, he claimed in evidence not to have known of this until after the killing. This provided ample material for the jury to reject his evidence. The appellant's evidence raises the same problem, in showing that his conduct at the time of the killing was due to the now diagnosed EPCC, as arose at trial in showing a link between that conduct and PTSD. Put another way, in relation both to diminished responsibility and provocation there was, and is, a serious difficulty on causation whatever the correct psychiatric diagnosis. Having regard to all these matters, it seemed to us that there was no reason to believe that, provided they were appropriately directed, the jury's verdict would have been different if they had heard the evidence of Dr Mezey and/or Dr Grounds, whether as well as or instead of Dr Nayani. For these reasons, we declined to receive the proffered fresh evidence. We turn to the first ground. Mr Bentley submitted that, in the light of the decision of the House of Lords in Morgan Smith and subsequent decisions of this Court in Josephine Smith [2002] EWCA Crim 2671 , Weller [2004] 1 Cr App R(S) 1 and Rowland [2003] EWCA Crim 3636 , the summing-up was defective in relation to provocation. He accepted that no complaint could be made of the summing-up in the light of the law as it was understood at the time at the trial in 1997. It was common ground before us that the safety of the appellant's conviction for murder must be judged by reference to the law of provocation as it is now understood and applied. Further, he submitted that the judge had failed to draw attention to aspects of the evidence that were relevant to issues that the jury had to decide when considering provocation. This comprised mainly the evidence as to mental state and personality given by Dr Joseph and Dr Nayani. Moreover, when about to remind the jury of this evidence, the judge directed them that it was relevant to diminished responsibility, thus implying that it was relevant only to that defence. The judge directed the jury on provocation twice, first in the summing-up, and secondly when, some hours after their retirement, the jury asked for further clarification. In summing-up the judge said: "There are three aspects of provocation. First, the background of the relationship. Secondly, the acts done by the defendant - that is the allegation that he raised the knife in his hand. Thirdly, the swearing, the actual use of that apparently very offensive insult: Besharef. So you must ask yourselves: may the deceased's conduct, either the acts done or the words spoken or both, and the relationship between Sirvan and Mehri and this defendant's knowledge of it, either together with the acts done and/or the words spoken or by itself, have caused this defendant suddenly and temporarily to lose his self-control? If you are sure that the answer to that question is: no, it did not, then the Crown will have disproved provocation and then -- as by then you will have before you go on to consider the question of provocation have been sure of all the ingredients of murder, then apart from the remaining defence of diminished responsibility, you will find him guilty of murder. If, however, your answer to that question is: yes, then you must go on to consider secondly: may that provoking conduct, whatever you find it to be, have been such as to cause a reasonable and sober person of the defendant's age: - 40ish, sex: - male, and special characteristics: - that he is a Kurdish freedom fighter with a background of trauma in Kurdistan which you look at as a whole, may that provoking conduct have been such as to cause a reasonable and sober person of the defendant's age, sex and special characteristics to do as this defendant did? A reasonable person is simply a person who has that degree of self-control which is to be expected of an ordinary citizen who is sober, but has, also, this defendant's same age, sex and special characteristics." He then directed them that they must make findings of fact as to the matrimonial background and whether, at the time of the death, the defendant was aware that his wife was having an affair with the deceased. He said that they must also make findings of fact as to what the deceased did and said, and directed them that the actions of or words spoken by the deceased, as alleged by the appellant, and the matrimonial background could amount to provocation. He said that it was a matter for them whether they found that any or all of these matters had provoked the defendant, and went on to page 13 of the summing-up: "Of course, if you come to that conclusion, then you have to go on to consider the reasonable and sober person of the same sex, age and special characteristics as this defendant has. If you come to the conclusion that the Crown have not disproved provocation, then you should return a verdict against this defendant of not guilty of murder but guilty of manslaughter by reason of provocation." That reference to special characteristics was a reference back to what he had said a little earlier about the defendant being a Kurdish Freedom Fighter with background in Kurdistan, which the judge said they should look at as a whole. 24. The question asked by the jury was: "If he was provoked but acted unreasonably, is this murder?" In response, the judge repeated much of his earlier direction, dealing with the findings of fact that they must make and the evidence that could amount to provocation. Then he posed the first question, whether what they found to be said or done or known about had caused 'this particular defendant' suddenly and temporarily to lose his self-control and do as he did. If they found that it did or may have done, they had to ask the second question: "... may that conduct have been such as to cause a reasonable and sober person having the power and self-control of an ordinary and sober person but being of the defendant's age, sex and special characteristics, of being a man who had been engaged for a long time in a long and bloody confrontation with the Islamic fundamentalists as a guerrilla fighter with the injuries that he suffered and the appalling scenes that he witnesses, may that with its attendant strains and stresses, may that reasonable man have also behaved in the way that this defendant behaved? In other words: would his reaction have been the same? If your answer to that is: yes, or it may be, then the Crown would not have disproved provocation. But if your answer to that, if you reach that situation, is: no, then that is an end to provocation." 25. Mr Bentley submitted that those directions were wrong, or at least inadequate, in the light of the present law of provocation. He makes two separate complaints. First, in respect of the first limb of the provocation direction, relating to whether the defendant was in fact provoked to lose his self-control, the judge did not direct the jury to take account of any evidence that might have affected the gravity of the provocation in relation to this particular man; in other words, he did not tell them to take account of evidence that might make it more likely that the provocation in question would have caused this particular defendant to lose his self-control. Mr Laidlaw, for the Crown, did not dispute this. But, in our view, it is not necessary for a judge to make any specific reference to such evidence at the stage of the summing-up where he is giving directions of law. We note that the recent specimen direction suggested by the Judicial Studies Board and approved by this Court in Rowland does not require the judge to identify such evidence when giving such directions. 26. There was in this case evidence about the appellant that was relevant to the likelihood of losing his self-control when faced with the alleged provocation. Dr Nayani had given evidence that the appellant was suffering from post traumatic stress disorder, a condition which, he said, can be associated with low mood and clinical depression. He also said that it could be associated with changes of personality, particularly irritability, sensitivity, a tendency to loss of temper, volatility and changes of behaviour. He said that this condition could lead to weakened emotional self-control. He reported that the appellant was "frequently short-tempered and irritable". Yet, when the judge turned to remind the jury of the medical evidence, he said: "Now we come to the medical evidence. Both Dr Nayani - and this is on diminished responsibility - both Dr Nayani and Dr Joseph are very highly qualified." In effect he excluded psychiatric evidence from the jury's consideration of provocation. This, submitted Mr Bentley, was a material omission. We agree. The jury may well have been mislead into thinking that it should be disregarded when considering whether the appellant had in fact been provoked to lose his self-control. 27. Mr Bentley's second point was that, in directing the jury on the second limb of provocation, the judge had wrongly limited the evidence relating to the appellant's characteristics to the general effects of his background and experiences as a freedom fighter in Kurdistan. Since Morgan Smith and the subsequent authorities which we have identified, it has become the practice to give directions of law that do not require the jury to undertake the difficult task of imagining a hypothetical reasonable man, with the characteristics of the defendant, and asking whether that person would have responded to the provocation in the same way as the defendant had responded, namely by losing his self-control. Instead, under the Judicial Studies Board specimen direction, the jury is directed to make a judgment as to whether the defendant's loss of self-control was sufficiently excusable to reduce the gravity of the offence from murder to manslaughter. They, as representatives of society, are to decide upon the appropriate standards of behaviour and what degree of control society could reasonably have expected from the defendant. In making that judgment, the jury is to take into account any evidence of the defendant's characteristics that is relevant to that issue. Thus, not only is the jury's task under the second limb explained to them in more readily comprehensible language, but they will be told in clear terms that they can and should take into account all the evidence relating to the defendant, his experiences, his character and mental state. 28. Although Mr Bentley could make no complaint about the words used by the judge in directing the jury on their task, he submitted that, at this stage, the judge should have directed the jury to take all the psychiatric evidence into account in relation to provocation. He did not. As we have said, he told them that that evidence was relevant to diminished responsibility. But, submitted Mr Bentley, all the evidence relating to post traumatic stress disorder was relevant to provocation as well as to diminished responsibility. Although the jury might have rejected the defence of diminished responsibility, it could not be said that they had rejected Dr Nayani's evidence in its entirety. They might have found that the appellant was suffering from PTSD, but not necessarily so as to prove diminished responsibility. There was some evidence from Dr Nayani, albeit not a great deal, relating specifically to the relevance of the appellant's mental state to the issue of provocation. Dr Joseph had said that he could not say whether the appellant had any characteristics that were relevant to the second limb of the provocation test. He was there using the word 'characteristics' in the limited sense in which it was used before Morgan Smith . Mr Bentley submitted that Dr Joseph's evidence and that of Dr Nayani might well have been differently expressed if they had approached the matter in the light of Morgan Smith . 29. Mr Laidlaw accepted that, in the light of Morgan Smith , the judge's direction on the second limb was not adequate. However, he sought to persuade us that the evidence in the case as a whole was so overwhelming that, despite the misdirection, the conviction was still safe. He argued that the case was simple. The appellant killed the deceased shortly after he had discovered that his wife and the deceased were lovers and that she wished to live with the deceased. He was fearful that he was would lose his children, whom he dearly loved. He had a clear motive for killing the deceased. In contrast, the deceased had no motive to kill, harm or provoke the appellant. The deceased had shown no malice towards the appellant. There was evidence that the appellant had lied to the jury in an attempt to conceal his motive for wishing the deceased to be dead. There was a strong case for murder and Mr Laidlaw questioned the relevance of the psychiatric evidence to the question of the appellant's loss of self-control. 30. We accept that, applying the law as stated in Morgan Smith to this case, there was a misdirection in respect of the second limb of provocation. No complaint can be made that the judge invited the jury to consider how a hypothetical reasonable man, with the defendant's characteristics, would have responded to the provocation. However, the fact that the judge limited the relevant characteristics to the appellant's background in Kurdistan amounted, in the light of the current law, to a material misdirection. In our view, for the reasons we have already given, there was also a material omission from the judge's summing-up in relation to the first limb. 31. What then is the impact of these defects on the safety of the conviction? If the jury rejected the defendant's account, then plainly the defects were of no effect. If, as the prosecution maintained, this was a deliberate killing arising from discovery of his wife's affair, there could be no basis for impugning the safety of the conviction. Provocation could only arise if the jury concluded that the appellant's account might be true. 32. But the misdirection in relation to the second limb clearly does affect the safety of the conviction. The psychiatric evidence directed to the defence of diminished responsibility, if accepted, established that the defendant was suffering social, emotional and psychological problems resulting in irritability, sensitivity, a tendency to loss of temper and volatility. When directing the jury on the issue of whether a reasonable and sober person of the defendant's age and sex might have behaved as the defendant did, the judge did not remind them of the psychiatric evidence to that effect. He only drew to their attention the evidence that the defendant was a Kurdish Freedom Fighter with a background of trauma in Kurdistan. 33. The failure of the judge to remind the jury of this evidence in the context of provocation is given additional importance in view of the question asked by the jury. In directing the jury further, the judge did not relate to the defendant's background as a guerilla fighter the psychiatric evidence about the effect of those expenses upon the defendant's personality, his vulnerability to provocation and his weakened emotional self-control. 34. Accordingly, this Court cannot be confident that, had they received the direction which the law now requires to be given, the jury would necessarily have convicted of murder. They might. But it is possible that they might have convicted of manslaughter by reason of provocation. Accordingly, the conviction cannot be regarded as safe. 35. It was for these reasons that we allowed the appeal and quashed the conviction. We ordered a retrial because the interests of justice so required. It would not have been appropriate for this Court to substitute a verdict of manslaughter by reason of provocation. Whether such a verdict is appropriate is a matter for determination by a jury. 36. MR BENTLEY: First of all, Miss Mannion appears on behalf of the Respondent. May I raise one matter under the Contempt of Court Act. My Lord, clearly there will be a retrial. I would invite the Court consider one of two courses, either ordering no reporting of this decision or the reasons until the conclusion of what will now be the Crown Court proceedings, the retrial, or alternatively-- 37. THE VICE PRESIDENT: Would that be under section 4. 38. MR BENTLEY: Section 4(2) I believe it would be. Or alternatively limiting any report to the fact of the quashing of the conviction and the ordering of a retrial certainly not including, at this stage, any reporting of your Lordship's reasons. 39. THE VICE PRESIDENT: I think the public are clearly entitled to know the conviction has been quashed and a retrial has been ordered. Speaking entirely for myself I would not have thought it desirable at this stage that anything more than that should be published. (Pause) I speak for the Court. 40. So, for the avoidance of doubt, we make a direction under section 4(2) of the Contempt of Court Act postponing any report of today's judgment save a report that the appellant's conviction has been quashed and a retrial ordered.

2005_02_10-446.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/369/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/369

7a01f6516326514ca03b722c935965c8b6886e7f3339c3f323b17b9e9181d17d

[2023] EWCA Crim 494

EWCA_Crim_494

2023-05-12

crown_court

Neutral Citation Number: [2023] EWCA Crim 494 Case No: 202203116 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT PRESTON HH JUDGE JEFFERIES KC T2021 0713 Royal Courts of Justice Strand, London, WC2A 2LL Date: 12/05/2023 Before: THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION LORD JUSTICE HOLROYDE MR JUSTICE HOLGATE and MRS JUSTICE FOSTER - - - - - - - - - - - - - - - - - - - - - Between: PIOTR LASKOWSKI Appellant - and - THE KING Respondent - - - - -

Neutral Citation Number: [2023] EWCA Crim 494 Case No: 202203116 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT PRESTON HH JUDGE JEFFERIES KC T2021 0713 Royal Courts of Justice Strand, London, WC2A 2LL Date: 12/05/2023 Before: THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION LORD JUSTICE HOLROYDE MR JUSTICE HOLGATE and MRS JUSTICE FOSTER - - - - - - - - - - - - - - - - - - - - - Between: PIOTR LASKOWSKI Appellant - and - THE KING Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Simon Csoka KC (instructed by Potter Derby Solicitors Limited ) for the appellant Annabel Darlow KC (instructed by CPS Appeals and Review Unit ) for the respondent Hearing dates: 4 May 2023 - - - - - - - - - - - - - - - - - - - - - Approved Judgment WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. Lord Justice Holroyde: 1. On 30 April 2020 two men exchanged messages via Encrochat phones discussing the supply of controlled drugs. The appellant, who was at that time in the Netherlands, offered to supply 5kg of cocaine to the other man, who was in England. Did such conduct constitute an offence contrary to s4(3) of the Misuse of Drugs Act 1971 of offering to supply a controlled drug of class A to another, in contravention of s4(1)? HH Judge Jefferies KC, sitting in the Crown Court at Preston on 24 March 2022, ruled that it did. The appellant then pleaded guilty to that offence. The appellant now applies for leave to appeal against his conviction on the ground that the judge’s ruling was wrong in law. His application, which involves a point of law not directly covered by previous authority, has been referred to the full court by the Registrar. 2. The appellant contends that the offence was complete when the offer was made in the Netherlands and that the courts in this country accordingly had no jurisdiction to try it. He further contends that, by ruling otherwise, the judge deprived the appellant of any arguable defence. The appellant thus accepts that, save for the issue as to jurisdiction, his conduct satisfied all the legal ingredients of the offence charged and he has no defence. It is therefore unnecessary to go into any further detail about the facts. 3. It was common ground before the judge, and is before this court, that Part 1 of the Criminal Justice Act 1993 (which makes specific provision as to jurisdiction for certain listed offences) does not apply to this offence, and that accordingly the issue must be resolved on common law principles. The judge identified the principal question as being whether the offer must be communicated to another for the offence to be complete: if so, it was completed in the United Kingdom; but if not, it was completed in the Netherlands. In answering that question, the judge considered a number of decided cases, including the decision of the House of Lords, and in particular the dissenting speech of Lord Morris of Borth-y-Gest, in Treacy v DPP [1971] AC 537. He held that the offence requires two actors, the offeror and the offeree, and the effective communication of the offer by the one to the other. He derived support for his view from the words in the statute “offer … to another”. 4. The judge concluded that the offence is only made out when an offer is received, “when it reaches the ears/eyes of another”, and that accordingly the offer in this case was made in England at the point at which it was received. The offer was therefore made within the jurisdiction. 5. For the appellant, Mr Simon Csoka KC submits that the judge’s conclusion was wrong. He submits that the offence is complete when an offer was uttered or sent, a proposition which he submits is supported by the decision of this court in R v Prior [2004] EWCA Crim 1147. It follows, he submits, that the offer in this case was made in the Netherlands, not in England, and no offence was committed in this jurisdiction. 6. Mr Csoka further submits that there is no extra-territorial jurisdiction in relation to an offence of contravening s4(1) of the 1971 Act, a proposition which he says is supported by the decision of this court in R v Hussain (Shabbir) [2010] EWCA Crim 970, [2010] 2 Cr App R 11. Although Mr Csoka accepts that this court in R v Smith (Wallace Duncan) (no 4) [2004] EWCA Crim 631, [2004] 2 Cr App R 17 countenanced the common law giving jurisdiction in this country over inchoate crimes committed abroad, and intended to result in the commission of criminal offences in England, he submits that that is a limited exception to the general presumption against extra-territoriality and that it cannot assist the respondent in this case, not least because the offence of offering to supply a controlled drug is not an inchoate crime. 7. The principal submission of Ms Annabel Darlow KC, for the respondent, is that the judge was correct to find that the offer was made in England. It is not, she submits, necessary for the prosecution to prove that an oral or written offer was in fact heard or read by the person to whom it is made, provided that the offer has been made available to that person to be heard or read. Ms Darlow submits that, in the circumstances of this case, the offer was only made when the relevant message was received by the other man and available to be read by him. That occurred in England, not in the Netherlands. The judge therefore did not need to consider whether the court had jurisdiction over an offer made in the Netherlands. 8. Ms Darlow submits in the alternative that, if the judge did fall into error, the court nonetheless had jurisdiction because a substantial measure of the activities constituting the offence took place in England. She relies in this regard on the principle endorsed in R v Smith (Duncan Wallace) (No 4) . 9. We are grateful to both counsel for their written and oral submissions, which were of a high quality. We have summarised their detailed arguments very briefly, but we have in mind all the points they put forward and we have considered all of the case law to which they referred. 10. We start by setting out the terms of s4 of the 1971 Act. It provides: “ 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.” 11. In Hussain (Shabbir) it was held that a supply of drugs to another, if it is to fall within the 1971 Act, must be a supply in this country. That principle, which is based on the presumption that a criminal statute has territorial effect, was stated in general terms. Accordingly, notwithstanding that the offence charged in that case was one of possession of a controlled drug with intent to supply, contrary to s5(3) of the Act, it applies equally to the offence charged in the present case. However, whilst Hussain (Shabbir) is authority that the supply must be in this country, we do not accept Mr Csoka’s submission that it is also authority that the offer must made be in this country. 12. Further, it is in our view clear that the words used in both s4(1)(b) and s4(3)(a) refer to supply to another: they are not to be read as if they said “offer to another”. The judge, with respect, was therefore wrong to support his conclusions on the basis that the Act referred to “offer to another”. 13. With those considerations in mind, we would state the ingredients of the offence charged in this case as follows: s4 of the Act requires an offer; it must be an offer to supply to another a controlled drug; and the offered supply must be a supply in this country. The conduct concerned in such an offence is, accordingly, conduct involving an offer to make a controlled drug available in this country. 14. What, then, is required to prove an offer? In our view, what must be proved is that an offer is made to one or more persons in a manner which is capable of being heard (if oral) or read (if written) by the person(s) to whom it is sent, whether or not any person does in fact hear or read it. By way of obvious examples, words spoken quietly to an empty room, or words spoken to the winds, or a text message composed but not sent, could not amount to a offer; but a text message, or bulk text messages, composed and sent to one or more mobile phones can amount to an offer, whether or not there is evidence that anyone actually read the message. It will be a question of fact in each case whether an offer is made. There will no doubt be cases in which the facts and circumstances lead to the conclusion that there has been an attempt to commit the offence, but not the commission of a completed offence. 15. This analysis of what must be proved is consistent with the decision of this court in R v Prior [2004] EWCA Crim 1147, in which Auld LJ said at [24], with reference to an oral offer, that the important thing was the effect of the words, they way in which they were said and any other relevant circumstances apparent at the time to the person to whom the offer was made. Those matters plainly cannot be considered if the offer is not capable of being heard or read. 16. The court in R v Prior [2004] emphasised more than once that it is a matter for the jury to determine whether what took place amounted in ordinary parlance to an offer to supply a controlled drug: it is not necessary that the requirements of the law of contract be satisfied. If it did amount to such an offer, the fact that the offer was not genuine – in the sense that the person making it did not in fact intend to supply a controlled drug – is irrelevant. 17. Applying those principles, the appellant made his offer when he composed and sent the relevant message, whether or not it was read by the other man. We therefore accept Mr Csoka’s submission that the judge fell into error in ruling that the offer was complete only when it “reached the eyes” of the other man. It follows that the appellant was as a matter of fact in the Netherlands when he made the offer. 18. Was it nonetheless an offence which the courts of this country had jurisdiction to try? The starting point is the general principle of interpretation that there is a presumption against the extraterritorial application of a criminal statute. That presumption may however be displaced by the express terms of a statute or by necessary implication; and in relation to the latter, the mischief against which the statute is aimed, and the public interest, are important considerations. 19. In Treacy v DPP the appellant, in the Isle of Wight, sent a blackmail letter to a person in Germany. The House of Lords, by a majority of 3 to 2, held that the offence of blackmail had been committed when the appellant wrote and posted his letter. Lord Diplock, one of the majority, began his speech by emphasising that the question was not whether the English court had jurisdiction to try the appellant on that charge, but whether the facts proved against the appellant amounted to a criminal offence under the relevant statute. He went on to say that the words used in section 21 of the Theft Act 1968 were quite general and could be satisfied wherever the unwarranted demand was made: if, therefore, there was to be implied any geographical limitation, it could only be derived from broader considerations of the purpose of the statute. At pp561-562, Lord Diplock said: “The Parliament of the United Kingdom has plenary power, if it chooses to exercise it, to empower any court in the United Kingdom to punish persons present in its territories for having done physical acts wherever the acts were done and wherever their consequences took effect. When Parliament, as in the Theft Act 1968 , defines new crimes in words which, as a matter of language, do not contain any geographical limitation either as to where a person’s punishable conduct took place or, when the definition requires that the conduct shall be followed by specified consequences, as to where those consequences took effect, what reason have we to suppose that Parliament intended any geographical limitation to be understood? The only relevant reason, now that the technicalities of venue have long since been abolished, is to be found in the international rules of comity which, in the absence of express provision to the contrary, it is presumed that Parliament did not intend to break. It would be an unjustifiable interference with the sovereignty of other nations over the conduct of persons in their own territories if we were to punish persons for conduct which did not take place in the United Kingdom and had no harmful consequences there. But I see no reason in comity for requiring any wider limitation than that upon the exercise by Parliament of its legislative power in the field of criminal law. There is no rule of comity to prevent Parliament from prohibiting under pain of punishment persons who are present in the United Kingdom, and so owe local obedience to our law, from doing physical acts in England, notwithstanding that the consequences of those acts take effect outside the United Kingdom. Indeed, where the prohibited acts are of a kind calculated to cause harm to private individuals it would savour of chauvinism rather than comity to treat them as excusable merely on the ground that the victim was not in the United Kingdom itself but in some other state. Nor, as the converse of this, can I see any reason in comity to prevent Parliament from rendering liable to punishment, if they subsequently come to England, persons who have done outside the United Kingdom physical acts which have had harmful consequences upon victims in England. The state is under a correlative duty to those who owe obedience to its laws to protect their interests and one of the purposes of criminal law is to afford such protection by deterring by threat of punishment conduct by other persons which is calculated to harm those interests. Comity gives no right to a state to insist that any person may with impunity do physical acts in its own territory which have harmful consequences to persons within the territory of another state. It may be under no obligation in comity to punish those acts itself, but it has no ground for complaint in international law if the state in which the harmful consequences had their effect punishes, when they do enter its territories, persons who did such acts.” 20. Lord Diplock’s statements were followed by this court in R v Smith (Wallace Duncan) (No 1) [1996] 2 Cr App R 1. The appellant appealed against convictions for offences of obtaining by deception on the ground that, although the deception had taken place in London, the obtaining (said to be the essence of the offence) had taken place in the USA. The court noted that the transfer of funds to a bank in New York was “the only feature of the circumstances which occurred outside England”. At pp19-20, Rose LJ said: “In our judgment it would be astonishing if the English courts did not have jurisdiction in such a case and certainly there would be nothing inimical to international comity in the English courts assuming jurisdiction. Questions of jurisdiction, though involving substantive law, contain a strong procedural element. There have in recent years been significant advances in electronic communications both within and across national boundaries. These have brought added sophistication to the ways in which offences involving frauds are committed. The reliance of international banking on ever developing and advancing communications technology has added new weapons to the armoury of fraudsters, especially those whose purpose it is to perpetrate fraud across national boundaries. If the issue of jurisdiction in cases of obtaining is to depend solely upon where the obtaining took place it is likely that the courts, and especially juries, will be confronted with complex and, at times, obscure factual issues which have no bearing on the merits of the case. This Court must recognise the need to adapt its approach to the question of jurisdiction in the light of such changes. In Liangsiriprasert v. Government of the United States of America (1991) 92 Cr.App.R. 77, 89, [1991] 1 A.C. 225, 250A , Lord Griffiths, giving the opinion of the Privy Council in a conspiracy case, having referred to the judgment of the Chief Justice of Hong Kong, Roberts C.J. said: “The passage in Treacy v. D.P.P. (1971) 55 Cr.App.R. 113, [1971] A.C. 537 to which Roberts C.J. refers is the celebrated discussion by Lord Diplock of the bounds of comity and the judgment of La Forest J. in Libmen v. R. (1985) 21 C.C.C. (3rd) 206 contains a most valuable analysis of the English authorities on the justiciability of crime in the English courts which ends with the following conclusion at p. 221: ‘The English courts have decisively begun to move away from definitional obsessions and technical formulations aimed at finding a single situs of a crime by locating where the gist of the crime occurred or where it was completed. Rather, they now appear to seek by an examination of relevant policies to apply the English criminal law where a substantial measure of the activities constituting a crime take place in England, and restrict its application in such circumstances solely in cases where it can seriously be argued on a reasonable view that these activities should, on the basis of international comity, be dealt with by another country.’” Lord Griffiths also said at p. 90 and p. 251C: “Unfortunately in this century crime has ceased to be largely local in origin and effect. Crime is now established on an international scale and the common law must face this new reality. Their Lordships can find nothing in precedent, comity or good sense that should inhibit the common law from regarding as justiciable in England inchoate crimes committed abroad which are intended to result in the commission of criminal offences in England . ” 21. In R v Smith (Wallace Duncan) (No 4) a constitution of this court presided over by Lord Woolf CJ held that the court in R v Smith (Wallace Duncan) (No 1) had been entitled to develop the law in the way it did in order to meet the needs of contemporary society. At [56], the court summarised Rose LJ’s reasoning as including the following: “(ii) For the policy reasons which he identifies, particularly in relation to complex fraud, where there are no reasons of comity which require a different approach, when substantial activities constituting a crime take place in England the court here should have jurisdiction in accordance with the approach indicated by the Chief Justice of Hong Kong, Roberts CJ. (iii) Thus as to jurisdiction, there does not have to be a distinction in relation to the principles of jurisdiction between different crimes. Conspiracy in inchoate crimes and obtaining by deception can be governed by the same general, less rigid approach.” 22. Having considered other, conflicting, decisions, the court followed the judgment in R v Smith (Wallace Duncan) (No 1) . In doing so, Rose LJ reiterated, at [61], the point made at [56(iii)]: “… it does not necessarily follow that because the broader approach has been developed in connection with conspiracy and inchoate offences the same process of development would not be appropriate in cases involving offences of obtaining by deception. The opinion of Lord Griffiths in Liangsiriprasert extending the jurisdiction in relation to conspiracy should not be summarily brushed aside as of no relevance. The message of his opinion as a whole is that the common law must evolve to meet current circumstances.” 23. The “substantial measure of the activities constituting a crime” test explained by Rose LJ was again followed by this court in R v Sheppard and Whittle [2010] EWCA Crim 65, [2010] 2 Cr App R 26. That case related to a different kind of offence: the appellants had been convicted of publishing material intending to stir up racial hatred, contrary to s19 of the Public Order Act 1986. They had argued that, although their activities had occurred in England, the written material had been uploaded to a website hosted in California, and that the publication therefore fell outside the jurisdiction of this country. Dismissing the appeal, the court held that there was nothing in the 1986 Act to exclude the rule that the Crown Court had jurisdiction to try a defendant if a substantial measure of the activities constituting the crime took place in England. That test accorded with the purpose of the Act, namely to restrict the publication of material intended to stir up racial hatred, and reflected the practicalities of the case where almost everything relating to it had occurred in England. 24. Mr Csoka has pointed to distinctions between the facts and circumstances of each of those cases and the facts and circumstances of the present case. We accept that there are differences. In our view, however, they do not affect the principle which those cases recognise. We see no reason why that principle should not extend to a case such as the present. We have considered Mr Csoka’s submission that the extraterritorial jurisdiction provisions of the Criminal Justice Act 1993 were enacted precisely because of the territorial limitations of the common law. We are not, however, persuaded by that submission, given that in the years since the 1993 Act came into force R v Smith (Duncan Wallace) (No 4) and R v Sheppard and Whittle have developed the common law in the way we have summarised. 25. We are therefore satisfied that it is necessary and appropriate, in circumstances such as arise in this case, to consider the purpose of the statute concerned and the mischief at which it is aimed. The purpose of the 1971 Act is the control of dangerous or harmful drugs, and the mischief at which it is aimed is, or includes, the supply and possession of such drugs in the United Kingdom. The supply of drugs inevitably involves a chain of transmission by which controlled drugs pass from their source to a user in the United Kingdom. The purpose of the statute is not achieved, and the mischief at which it is aimed is not met, if the courts of this country are denied jurisdiction at one stage of that chain of transmission. As Lord Thomas CJ said in R v Martin [2014] EWCA Crim , [2015] 1 WLR 588 – “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.” 26. In our judgement, the policy principles underlying the 1971 Act apply throughout that process. Mr Csoka acknowledged that a person who engaged abroad in a conspiracy to supply drugs into this country could in principle be tried in this country for that conspiracy; and he was prepared to accept that activities in another country might be capable of constituting an offence of attempting to supply a controlled drug in the United Kingdom. That being so, we can see no reason why a different approach should be taken to the antecedent stage in the process of an offer to supply. The anomalous consequences of drawing such a distinction are illustrated by the present case: the appellant was originally charged with an offence of conspiracy to supply a controlled drug, but the view was taken (for reasons which were not made clear to us) that such a charge was evidentially weak and that it would be preferable to charge the appellant’s conduct as an offence of offering to supply. 27. It is also necessary and appropriate to reflect on whether any considerations of international comity militate against the courts of this country trying a defendant for activities abroad such as occurred here. Given that the offer was an offer to supply controlled drugs in the United Kingdom, we see no reason why any such considerations should militate against the courts doing so. On the contrary, we would expect every state to wish to be able to prosecute those whose conduct is aimed at bringing dangerous drugs into its territory. Moreover, all states have an interest in trying to stop the international trade in dangerous drugs. 28. We are therefore satisfied that, if the judge had held that the offer was made when the appellant was in the Netherlands, he would then have had to consider whether a substantial measure of the activities constituting the crime charged took place in the United Kingdom. 29. If the judge had considered the “substantial measure” test, we have no doubt he would have concluded that it was satisfied in the circumstances of this case. We regard the following features of the case as important considerations. The mischief at which the 1971 Act is aimed is, as we have said, the unlawful possession and supply of controlled drugs in the United Kingdom. The appellant has accepted that his offer was an offer to supply cocaine in England. The harm which would be caused by the offered supply of controlled drugs would therefore be suffered in the United Kingdom. The man to whom the offer was made was as a matter of fact also in England. In those circumstances, a substantial measure of the activities constituting the crime did in our judgement take place in England. 30. Although the offence was committed when the relevant message was composed and sent from the Netherlands, it would in our view be artificial to regard the intended destination of the drugs as irrelevant. We reiterate that the purpose of the Act is the control of dangerous drugs, in the United Kingdom, and the making of an offer to supply controlled drugs in the United Kingdom is part of the conduct of the offence created by s4(3). The appellant did not, for example, offer to supply controlled drugs in the Netherlands. It would be equally artificial, and wrong, to focus only (as Mr Csoka invites us to do) on the moment when the relevant message was sent, ignoring the fact that the message was an offer to supply drugs in England. The artificiality becomes the greater when one takes into account Ms Darlow’s submission that in text-based communications a message may be received at almost the same time as it is sent. Such artificiality could lead to absurd results. It could deprive the courts in this country of jurisdiction to try conduct which would have its criminal and harmful consequences in this country, and could do so regardless of whether the country from which the message was sent would be willing or able to prosecute the accused. Further, we see no basis on which it could be said that recognising the jurisdiction of the English court in these circumstances would be contrary to principles of international comity. 31. For those reasons, we are satisfied that, although the offer was made from the Netherlands, the “substantial measure” test was satisfied and the Crown Court had jurisdiction. When the offer was made from the Netherlands, the conduct of offering to supply controlled drugs in the United Kingdom was complete and the offence contrary to s4(3) of the Act was committed. Accordingly, whilst we have respectfully found that the judge fell into error in his reasoning, his decision was correct. The conviction is accordingly safe, and this appeal is dismissed.

2023_05_12-5669.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/494/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/494

b6ac6b97137be5d32f27da201751c4de18bb68c444f02d6ed987ecc234f160b0

[2007] EWCA Crim 2016

EWCA_Crim_2016

2007-07-31

supreme_court

Neutral Citation Number: [2007] EWCA Crim 2016 Case No: 2006/03431/B5 (1) 2007/01084 C1 (2) IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LEWES CROWN COURT (1) His Honour Judge Scott-Gall ON APPEAL FROM DERBY CROWN COURT (2) His Honour Judge Burgess Royal Courts of Justice Strand, London, WC2A 2LL Date: 31 st July 2007 Before : THE PRESIDENT OF THE QUEEN'S BENCH DIVISION MR JUSTICE GOLDING and MR JUSTICE BEATSON - - - - - - - - - - - - - - - - - - - - - Be

Neutral Citation Number: [2007] EWCA Crim 2016 Case No: 2006/03431/B5 (1) 2007/01084 C1 (2) IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LEWES CROWN COURT (1) His Honour Judge Scott-Gall ON APPEAL FROM DERBY CROWN COURT (2) His Honour Judge Burgess Royal Courts of Justice Strand, London, WC2A 2LL Date: 31 st July 2007 Before : THE PRESIDENT OF THE QUEEN'S BENCH DIVISION MR JUSTICE GOLDING and MR JUSTICE BEATSON - - - - - - - - - - - - - - - - - - - - - Between : R -v- Steven Cottrell (1) Michael Aspinall for the Applicant Sally Howes QC for the Crown R -v- Joseph Fletcher (2) Joel Bennathan QC for the Appellant Michael Auty for the Crown The Chairman of the Criminal Cases Commission D Wallbank for the Director of Revenue and Customs Prosecution Hearing dates: 25/26/27 April, 22 June, and 23 July 2007 - - - - - - - - - - - - - - - - - - - - - Approved Judgment President of the Queen's Bench Division : 1. Steven Cottrell was convicted at Lewes Crown Court on 8th August 2003 before His Honour Judge Scott-Gall and a jury of two counts of indecent assault with a female aged under 16 years. Joseph Fletcher was convicted at Derby Crown Court on 24 th October 2003 before His Honour Judge Burgess and a jury of seven counts of indecent assault on two females aged under 16 years. 2. Fletcher appeals against conviction (and sentence) following a Reference to the Court by the Criminal Cases Review Commission (the Commission). Cottrell seeks leave to appeal against conviction nearly three years out of time. Fletcher’s appeal and Cottrell’s application for an extension of time and leave to appeal are both consequent on the decision of the House of Lords in R v J [2005] 1 AC 562 . Factually the two cases are unconnected, but they raise difficult and troublesome common features of principle. Accordingly they were heard together, and judgment was reserved. 3. While the judgment was in the course of preparation it became apparent that our decision might impinge on the responsibilities and practice of the Commission. Our concern was with the decision in R(Director of Revenue and Customs Prosecution) v Criminal Cases Review Commission) [2007] 1 CAR 384. The Divisional Court held that the Commission “was under no obligation to have regard to, still less to implement” the practice of this court in applications to extend time in “change of law cases”. Paragraph 14 of the Commissions’ most recent policy memorandum reflected this judgment. The matter was listed for mention 22 June. The Commission was notified, but was not represented by counsel. Its chairman, Professor Graham Zellick, attended, and in response to an invitation by the court, made a number of observations. In the light of what he said, the court invited the parties to the appeal and the Commission to advance argument on the broad issue of concern to the court. The court made clear that, although the Commission was not formally a party to the appeal and the application, it considered it important for the Commission to be given an opportunity to make submissions. The Commission made written submissions, adding that it had decided not to instruct counsel, and repeating the submissions before the Divisional Court. When the matter came before us on 23 July, Professor Zellick again attended, briefly amplified the Commission’s written submissions, and responded to questions by members of the court. By that date we were also provided with written submission on behalf of the Director of Revenue and Customs, and Liberty, and further written submissions from counsel for Cottrell and Fletcher. We shall address what we shall summarise as the change of law issues later in the judgment. The Facts – Steven Cottrell 4. At all relevant times Steven Cottrell was a serving police officer. In late 1999, NB a girl born in February 1984, started a short period of work experience with the police force. She complained that on an occasion when she was alone with the applicant in his patrol car, he touched her breasts. Thereafter, between November 1999 and the end of the year, he had consensual sexual intercourse with her. She told him she was 15 years old. 5. During 2002 the applicant was arrested and charged with sexual allegations involving two other girls. In the course of their investigations, the police interviewed NB. 6. By the time the offences against NB had come to light, it was not possible for the applicant to be charged with offences of unlawful sexual intercourse. More than twelve months had elapsed since the last act of intercourse. Accordingly, in accordance with common practice, the applicant was charged with and faced trial for indecent assault. 7. At trial, the applicant admitted having sexual intercourse with NB. His case was that she told him that she was sixteen years old. In his evidence he described the development of the relationship between them. On occasions she sat in the back of his police car. He learned that she was still at school, and keen to join the police service. In answer to a direct question, she told him that she was 16 years old. 8. He described an occasion when she was in the front office learning about the system of instructions to police officers on the radio, and he passed her a note. He could not recall exactly what it said. He denied her allegation that it read, “can I lick you?” It was more likely to have been a comment on her inefficiency on the radio. He denied the complaint by NB, that when they were alone in the car, before a full sexual relationship began, he reached across and touched her breasts. He denied touching her in an intimate way at all before she was sixteen years old. 9. After her period of work experience was concluded, he told that she could contact him, or another officer, if she needed help with her application form. She found out his mobile telephone number, and indeed his home telephone number, and she invited him to her birthday party in early 2000, which he assumed was her seventeenth birthday. He told her that he would be unlikely to attend, but would like to take her out for a belated drink. Arrangements were made for him to do so. That evening they had a couple of drinks, kissed and he took her home. A matter of days later they entered into a more physical relationship and during a two week period they had sexual intercourse on three or four occasions at his home. 10. He was then thirty four years old. He became worried about the age difference between them. She wanted to move in with him, and was talking about marriage and children. She gave him a book with handwritten poems and a number of gifts. By then, however, he was already developing strong feelings for his future wife, and so he ended the relationship. NB did not take it very well. 11. The sexual relationship between NB and the applicant was not in dispute. His case was that she was, and that he honestly believed that she was, sixteen years old at the time. 12. After an impeccable summing up, the applicant was convicted on two counts of indecent assault based on the two occasions when NB reported that sexual intercourse had taken place. The jury was unable to agree on the separate count of indecent assault arising from the allegation that the applicant had touched NB’s breasts in the police car. The verdicts meant that the jury accepted that the sexual relationship occurred when NB was fifteen years old, and the applicant knew it. It was sensibly decided that no public purpose could be served in pursuing the count of indecent assault on which the jury were unable to agree. A not guilty verdict was entered under section 17 of the Criminal Justice Act 1967 . 13. The applicant was sentenced to six months imprisonment on each count. Appropriate notification and disqualification orders were made. 14. No application was made for leave to appeal either conviction or sentence. After the decision of the House of Lords in R v J , the case was referred to the Commission. After dealing with, and in effect rejecting a number of extraneous complaints, the Commission concluded that in view of the decision there was a “real possibility” that the convictions would be “overturned” if they were referred to the Court of Appeal. However there were no exceptional circumstances to cause the Commission to depart from the general practice that the case would not be referred to the court by the Commission while it remained open to the applicant to apply to the court for leave to appeal out of time. Hence the present application. The Facts – Joseph Fletcher 15. We can take the summary of the facts from the Reference itself. 16. The prosecution case was that between about May 2000 and May 2001, the appellant, then 65 years old, and living alone, encouraged teenage girls with whom he came acquainted through his granddaughter, to spend time at his home. The temptation or inducement was alcohol and cigarettes. During March 2001, one of the girls, SB, was raped. The appellant was charged in May 2001. Four other girls were indecently assaulted by inappropriate touching or participation in number of different sexual activities with the appellant. 17. The defence case was that all the allegations were fabricated. The appellant was no longer interested in sex. He had never had sexual contact with any of the girls. He allowed them to come to his house and he gave them cigarettes, but that was in return for housework they did for him. He did not give them alcohol, although at times they helped themselves to small amounts of alcohol from his fridge. 18. The original indictment included ten counts, count one alleging rape of SB. The first trial came to an end when the appellant dismissed his legal representatives after he had concluded his evidence. The second trial concluded during the course of the evidence for the prosecution when difficulties arose about the introduction of some diary evidence. The convictions were returned at the end of the third trial. Towards its end, on 21st October 2003, in order to deal with the possibility that the jury might consider that the Crown had failed to establish lack of consent, or knowledge of the absence of consent, count 11, alleging indecent assault, was added to the indictment as an alternative to the allegation of rape in count one. It was, of course, open to the judge to leave the issue of indecent assault as an alternative to rape without the addition of the count. Having heard submissions, Judge Burgess ordered the appropriate amendments. 19. In due course, the jury acquitted the appellant of rape, but convicted him on count 11. The appellant was also convicted of six additional counts of indecent assault on young women, and acquitted of three further counts of indecent assault, one on the basis of the judge’s direction. The details of these different indecent assaults, and the different girls who were victims of them need no recital, but the feature which distinguished them from the indecent assault alleged in count 11 was that whereas count 11 related to an allegation of indecent assault based on a full act of sexual intercourse, the remaining indecent assaults did not involve penile penetration. 20. On 12 th December 2003, the appellant was sentenced to ten years imprisonment, comprising a custodial term of six years imprisonment and an extension period of four years on count 11, three years imprisonment concurrent on counts 3, 4 and 7, and twelve months imprisonment concurrent on counts 2, 5 and 8. Appropriate notification and disqualification orders were made. 21. Leave to appeal against conviction was granted. Two grounds were argued, first, that the case should have been withdrawn from the jury at the close of the prosecution evidence, and, second, that the conviction was unsafe in the light of numerous contradictions and inconsistencies in the evidence given by the complainants. On 28 th October 2005, just after the judgment in R v J had been delivered, the appeal against conviction was dismissed. No point based on R v J was taken, and the court was not invited to consider any issues relating to sentence. 22. On 25 th November 2005 the appellant applied to the Commission for his convictions to be referred back to the court on a variety of grounds. The application did not refer to the decision in R v J . However on 22 nd February 2007, in the light of the decision, the Commission decided to refer the conviction on count 11, indecent assault, as well as the sentence imposed for the offence to the court. Discussion 23. Before the decision of the House of Lords in R v J it was well understood that a prosecution for unlawful sexual intercourse with a girl under the age of sixteen years more than twelve months after the commission of the alleged offence was prohibited. (Section 37(2) and paragraph 10(a) to Schedule 2 to the Sexual Offences Act 1956) . In law underage girls were unable to consent to sexual activity which amounted to indecent assault, and indecent assault was free from the same restriction. As a result, the practice of charging indecent assault after the expiry of the twelve month time limit where sexual activity with an underage girl included sexual intercourse was commonplace. Calvert-Smith J described in R v Timmins [2006] 1CAR 18 how: “Until recently it had been the practice for many years for prosecutors to prosecute defendants under s14 in cases in which the time limit for a prosecution under s6 (1) had been exceeded and in which the prosecutor believed that the public interest would be served by a prosecution”. To exemplify the point, Calvert-Smith J drew attention to the decision of the court, presided over by Lord Taylor CJ, considering the appeal against sentence by R v Hinton [1995] 16 CAR (S) 523 when the issue under consideration arose in the direct context of the time bar, which appeared at least, to give the practice its “implied approval”. Indeed it was typical that in Fletcher itself it does not appear to have crossed the minds either of counsel or the court, as then constituted, that the legitimacy of the practice was doubtful. The principled basis for it was powerfully articulated by Baroness Hale of Richmond in her dissenting speech in R v J , when the practice was dispatched to oblivion. 24. It is impossible to calculate the precise number of defendants who were prosecuted to conviction on the basis of the practice. The numbers will be large. Many defendants who had sexual intercourse with an underage girl will have pleaded guilty to indecently assaulting them, and many others will have been convicted on specific counts of indecent assault on the basis of full sexual intercourse, notwithstanding what would now, following R v J , be recognised as a sound point arising from the time limit provisions. In the same circumstances, others will have been convicted following the addition of a specific count of indecent assault as an alternative to another charge, such as rape. Yet others will have been convicted of indecent assault, when the count was left as an alternative to rape but without, in the exercise of the judge’s discretion, a specific count being added. There will therefore have been a long established pattern of convictions for indecent assault where a jury was sure that sexual intercourse with an underage girl occurred after the expiry of the twelve month time limit. 25. In R v J the House of Lords concluded that as a matter of statutory construction the long-standing practice had the impermissible effect of dispensing with or suspending an unequivocal statutory provision. This correction reversed the law relating to sexual activity with under age girls as it had operated for virtually fifty years. It is artificial to pretend that the law was not changed, or to dress its impact in the jurisprudential disguise that the law had, in Blackstone’s word, been “discovered”. If the law had not been corrected, Fletcher’s conviction would not have been referred to this court by the Commission, and Cottrell would not, on the advice of the Commission, have been seeking leave to appeal out of time. 26. As it happens, when R v J was argued in the House of Lords, the statutory time limit was abolished with effect from 1st May 2004. R v J was therefore concerned with the pre-existing law, and it will have no impact on cases of sexual intercourse with underage girls taking place after that date. 27. R v J directly focussed attention on the narrow question whether the time limit applied to a charge of indecent assault based exclusively on an act of intercourse. Lord Bingham of Cornhill explained that there would be very many cases where the twelve month time limit had passed where there would be “other acts independent of the sexual intercourse itself, or conduct inherent in or forming part of it, on which a prosecution properly be founded. It is only where the time limit has expired and when only evidence of sexual intercourse is relied on, that the defendant may not be prosecuted”. Lord Clyde observed that “there was nothing in the defendant’s behaviour other than the act of intercourse which was of such significance or importance as to justify the framing of a charge of indecent assault in place of one of unlawful sexual intercourse”. He considered that the problem with the former practice arose “where the facts disclosed nothing more in the way of assault than the act of sexual intercourse”. Lord Rodger made the same point, concluding that a charge of indecent assault was not permitted “where the act in question was simply sexual intercourse with an underage girl”. On this analysis the operation of the time bar in the context of indecent assault should be of limited application. 28. The consideration which informed the previous practice was that, on any view, sexual intercourse usually represents the culmination of one form or other of sexual contact or touching. If a sexual relationship involving an underage girl extended to intercourse, but, for whatever reason, a prosecution was not commenced within the time limits, sexual activity which preceded intercourse, whether on the occasion in question, or on earlier occasions by way of grooming, or seduction, or simply a gradually developing and increasingly intimate physical relationship eventually which culminated in sexual intercourse was not normally charged as a separate count of indecent assault. Unless, possibly, the defendant was challenging the fact of intercourse, separate counts alleging indecent assault, one directed to sexual activity leading to intercourse, and a second based on intercourse itself, would have been and were regarded as wholly artificial. In R v J itself, other than a separate incident of oral sex which for well understood but technical grounds fell outside the ambit of indecent assault and was therefore charged as gross indecency with a child, the sexual grooming to which the complainant was undoubtedly subjected before she consented to intercourse was not the subject of any separate charge. If it had, it seems clear that on elementary principles, J would rightly have been convicted of indecent assault. In reality, all his sexual activity with the complainant was criminal, and the time limit did not reduce that criminality by one jot. (It provided a barrier to prosecution, and conviction, in very limited circumstances. Perhaps also, we can now add that, in the event of historic cases coming to light from much earlier times, we can see nothing in the language used in the speeches of the majority in R v J which would preclude a proper conviction for indecent assault on the basis of sexual activity which took place prior to or on a separate occasion from full intercourse. Post R v J 29. Despite the decision in R v J , but perhaps no more than a continuing reflection of the “mess” identified by Baroness Hale, there is still a disturbing inconsistency about the way these problems are approached. Thus in Fletcher’s appeal, we are required to address the question whether R v J applies when the count of indecent assault was added to the indictment by amendment as an alternative to an allegation of rape in order to allow for the possibility that the jury might not be sure that the complainant did not actually consent to intercourse. We note that in R v J Lord Bingham was inclined to the view that an alternative verdict would not be time barred, and that Lord Clyde observed that in R v J the court was not concerned with problems of alternative verdicts. 30. In R v WR [2005] EWCA Crim 1907 , the indictment alleged both rape and indecent assault on the same underage girl. The indecent assault count was included as an alternative to rape, to allow for a possible insufficiency of evidence to establish the absence of consent. WR was convicted of indecent assault. The conviction was quashed on the basis that “the legitimacy or otherwise of including a conviction for indecent assault cannot depend on whether the prosecuting authorities included a primary and more serious charge of rape, or had good grounds for doing so on the indictment”. In argument attention was not drawn to section 6(3) of the Criminal Law Act 1967 . The Commission has identified R v Manister [2005] EWCA Crim 2866 , a case considered with a group of appeals against conviction in the context of the then new “bad character” provisions in the 2003 Act, as another case in which the reasoning in R v WR was applied. 31. R v Timmins [2006] 1 CAR 18 produced a different result. Timmins was charged with rape of an under age girl. He agreed that he had had intercourse with her, asserting that she had consented. Consideration was given to the possibility of adding a count of indecent assault to cover the appellant’s admitted behaviour, but at that stage, the Crown conceded that in view of R v J such a count would be impermissible because the time bar would apply to the act of intercourse. Subsequently the judge ruled that it was permissible to leave indecent assault to the jury as an alternative verdict under section 6 (3) of the Criminal Law Act 1967 , without any amendment to the indictment. The appellant was acquitted of rape, but convicted of indecent assault. His appeal against conviction was dismissed. 32. The question directly addressed in R v Timmins was whether a decision by the judge to leave a lesser offence to the jury for its consideration amounted to “the commencement of proceedings for the particular offence”? Two possibilities were considered. The proceedings either “commenced” when the more serious offence was charged, or when the trial judge decided that the lesser offence should be left to the jury for its consideration and the defendant became liable to be convicted of it, or on appeal when the Court of Appeal decided to substitute a verdict of the lesser offence. The court distinguished between the addition of a count and the taking of the plea to it, when it could “clearly be said” that the proceedings for the offence alleged in that count “commenced”, but concluded that that approach could not realistically apply to leaving an alternative verdict without the inclusion of an appropriate count, adding that it would be “somewhat fanciful to suggest that the substitution of a verdict by the Court of Appeal (Criminal Division) amounts to the “commencement of proceedings”. The operation of section 6(3) of the 1967 Act made it permissible for the jury to consider indecent assault as an alternative to a count of rape. The prohibition in R v J related to the institution of proceedings rather than alternative verdicts. Therefore neither R v J, nor R v WR applied. The court certified that a point of law of general public importance, that is, whether in the light of R v J it was permissible “for a court to allow a jury to consider, as an alternative to rape, a verdict in relation to indecent assault, where the indecent assault consists of an act of unlawful sexual intercourse, a count for which could not be lawfully indicted, it being out of time”. 33. R v Timmins was followed in R v Phillips . R v J and R v WR were distinguished on the basis that they did not address the situation where the prosecution, on proper evidence, alleged rape, and the alternative verdict of indecent assault was left to the jury in the summing up. In R v Phillips the court regarded Timmins as “correctly decided”, and indeed, on the basis that the House of Lords refused leave to appeal the question certified in R v Timmins , concluded that the House of Lords took the same view. Another possibility, of course, is that the House may have considered that the number of cases in which the distinction might be of significance would be relatively small, and in inevitable decline because the time bar will have no application where intercourse occurred after May 2004. 34. The Commission, understandably seeking for some clarification of the principles, has drawn attention to a number of earlier decisions, which were not cited in either R v WR or R v Timmins . They include R v West [1898] 1 QB 174 and R v Hodgson [1973] 57 CAR 502. In R v West [1898] 1QB 174 the Court was concerned with a statutory time limit of three months in which to commence proceedings for an offence contrary to section 5 of the Criminal Law Amendment Act 1885 , an offence known to us as unlawful sexual intercourse with a girl between thirteen and sixteen years. The alleged offence was committed on 19 th July. The defendant was charged with rape, and committed for trial on 27 th July. The depositions suggested that the allegation of rape could not be sustained. The bill of indictment laid before the grand jury on 22 nd November alleged unlawful carnal knowledge of the girl. The trial took place on 25 th November. The defendant was convicted. It was accepted that proceedings for his contravention of section 5 of the 1885 Act were not “commenced” within the statutory three month period. A case was stated for the opinion of the Court of Crown Cases Reserved. The Court concluded that the prosecution was not barred by the time limit. The proceedings were commenced within the necessary three month period. The basis of the decision was succinctly expressed by Lord Russell CJ “ … a prosecution for rape is in fact in substance a prosecution for any offence of which on an indictment for rape, the prisoner could have been found guilty.” 35. This approach was confirmed in R v Wakeley [1920] 1KB 688 . The Earl of Reading CJ addressed a problem in relation to the six month time limit which then applied to the prosecution of an offence under section 5 of the 1885 Act , as amended by section 27 of the Prevention of Cruelty to Children Act 1904 . He observed, with approval: “To put the case that was suggested during the argument by Sankey J: suppose the court had exercised its power of amendment during the course of the trial, and had altered the dates when the offence was alleged to have been committed in the same way as they were altered in the information it would be impossible to say that this was the initiation of the proceedings: it would be only a step taken during the proceedings”. 36. R v West was not cited in R v WR . Equally the court’s attention was not drawn to R v Hodgson [1973] 57 CAR 502 where it was held that on a charge of rape, it is open to the jury to convict on indecent assault just because the girl in question was under sixteen and therefore “incapable” of consent. On the other hand, R v Timmins , where R v Hodgson was considered, accepted the reasoning in R v WR as applied to the addition of a count of indecent assault based on an act of intercourse. But, like the court in R v WR , it did so without reference to R v West . 37. Both R v West and R v Wakely were considered in R v Richards [1995] CLR 894. The appellant was charged with unlawful sexual intercourse with a girl under sixteen on an occasion between 1 st and 14 th September 1992. He was charged on 15 th January 1993, and committed for trial on 18 th May. On 28 th June he was arraigned and pleaded not guilty. The trial began on 20 th October. Two new counts were added. The original count was amended so that, as count five, it alleged unlawful sexual intercourse between 31 st May 1992 and 14 th September 1992. On re-arraignment the defendant pleaded not guilty to all five counts. He was convicted on count five. He appealed against conviction on the basis that the proceedings to which count five related were commenced more than twelve months after the offence charged. The conviction was quashed on the basis that count five may in fact have alleged a different offence to that with which the appellant was charged on 15 th January 1993. This was because intercourse was occurring at fortnightly intervals and the appellant may have been convicted in respect of a criminal offence which had not been the subject of the original charge, and which fell outside the time limit. The court observed that one way of avoiding this problem would have been for the Crown to refrain from amending the indictment in the way they had. R v Wakeley was applied, and distinguished on the basis that the permissible amendment related to the original offence. 38. These decisions since R v J have created, or identified, a distinction between cases where a count of indecent assault is added to the indictment as an alternative to the more serious charge of rape, and those where rape is alleged, and the judge simply leaves indecent assault as an alternative without the addition of a specific count. The distinction creates a disturbing tension to the principle that the criminal justice system should, so far as possible, be certain, and that its operation as between all complainants and all defendants should not be fortuitous. The temptation to seek to establish a logical, consistent position is considerable, and an examination of all the relevant authorities might reveal whether, and if so which of them, was decided per incuriam. Nevertheless it would be foolish for us now to rush in where the House of Lords in R v Timmins has declined to tread. In short, given the shambles resulting from the protracted legislative process, we should avoid taking any step which, in the purported interest of consistency might add to the confusion. Rather we must ensure that the law applicable to old cases will, so far as possible, be approached as if the principles were established and consistent. In cases where the conviction for indecent assault followed an allegation of rape, R v WR (the added count) and R v Timmins (the alternative count) as they apply to the individual case, should be followed. Fletcher 39. The Commission observes that the complaint against Fletcher was made promptly, and that the charge of rape was brought well within the twelve month limit which would have applied to unlawful sexual intercourse, adding further, that the Judge’s decision that it would have been helpful to the jury to add indecent assault to the indictment rather than leave it as an alternative count was understandable. We wholeheartedly agree. Nevertheless we regard ourselves as bound by R v WR to allow Fletcher’s appeal against his conviction on count eleven. He is extremely fortunate that for the sake of “clarity”, Judge Burgess decided that count eleven should be added to the indictment. If indecent assault had been left as an alternative to rape, following R v Timmins and R v Phillips, the appeal would have been dismissed. Extension of Time 40. In Fletcher’s case, because the case comes directly to us as a reference by the Commission, we are not required to address any question of time extensions. Indeed we are not entitled to do so. The resulting problem arises for direct consideration in Cottrell’s application and will be addressed shortly. In Fletcher’s case, however, it is important to emphasise that his first appeal against conviction was decided after the decision in R v J. In other words, on 14 th October 2005, for the reasons we have given, the applicable law changed. Although no point was in fact taken on 28 th October, when Fletcher’s appeal was before this court, if it had been, it is difficult to imagine that an application to amend his grounds of appeal to rely on R v J would have been refused. Subject to any questions arising under section 6(3) of the 1967 Act, and assuming the law as developed in R v WR was held to apply, it would have been decisive. 41. Fletcher appealed in time. The changed law took place before his appeal was concluded. Cottrell is a very different case. As we have explained, the Commission accepted that Cottrell’s case was effectively indistinguishable from R v J, which however was not decided until at least a year after the conclusion of his trial. The Commission’s decision not to refer the case reflected the absence of any previous unsuccessful application for leave or an unsuccessful appeal. As there were no exceptional circumstances to justify a reference before Cottrell himself sought leave to appeal out of time, he was informed that he should take the first appropriate steps himself. This followed the important statutory pre-condition to any reference, prescribed in section 13(1) of the Criminal Appeal Act 1995 . Change of Law Cases 42. These cases present issues of great sensitivity and latent tension. Those convicted on the basis of the old law assert that their convictions were based on an erroneous understanding of the criminal law and that they have therefore suffered an injustice. At the same time there is a continuing public imperative that so far as possible there should be finality and certainty in the administration of criminal justice. In reality, society can only operate on the basis that the courts administering the criminal justice system apply the law as it is. The law as it may later be declared or perceived to be is irrelevant. Change of law appeals create quite different problems to those which arise in the normal case where an individual was wrongly convicted on the basis of the law which applied at the date of conviction. These tensions are not confined to England and Wales. 43. The issue presented itself to the Supreme Court of Ireland in A v Governor of Arbour Hill Prison [2006] IEFC 45. The facts were simple. In June 2004 A pleaded guilty and was convicted of unlawful carnal knowledge contrary to section 1.1 of the Criminal Law Act 1935. In May 2006, in CC v Ireland and others the Supreme Court declared that section 1.1 was inconsistent with provisions of the Constitution of Ireland. A appealed against his conviction. The argument was simple. His conviction was null. It depended on a law which, because it was inconsistent with the Constitution, did not exist. The High Court agreed. The prosecution appealed. Murray CJ, and the remaining members of the Court, conducted a comprehensive analysis of both common law and civil justice systems, which demonstrated the effective universality of the problem. He observed: “Absolute retro activity based solely on the notion of an Act being void ab initio so as to render any previous final judicial decision null would lead the Constitution to have dysfunctional effects in the administration of justice…the application (such) a principle …in the field of criminal law would render null and of no effect final verdicts or decisions affected by an Act which at the time had been presumed or acknowledged to be constitutional and otherwise had been fairly tried. Such unqualified retro activity would be a denial of justice to the victims of crime and offend against fundamental and just interests of society” Addressing the general principle he observed: “In a criminal prosecution where the State replies in good faith on a statute in force at the time and the accused does not seek to impugn the bringing or conduct of the prosecution, on any ground that may in law be open to him or her, including the constitutionality of the statute, before the case reaches finality on appeal or otherwise, then the final decision in the case must be deemed to be and to remain lawful notwithstanding any subsequent ruling that the statute, or a provision, is unconstitutional. That is the general principle. I do not exclude…some extreme feature of an individual case, (which) might require, for wholly exceptional reasons related to some fundamental unfairness amounting to a denial of justice…” The prosecution’s appeal against the ruling of the High Court was allowed. 44. This decision of the Supreme Court was based on the constitutional arrangements which apply in Ireland. Accordingly, the analogy with change of law cases in this country is not complete. That said, the decision provides valuable illumination of the need to emphasise that appeals against conviction in change of law cases involve significant social and public considerations which go well beyond a narrow focus of an individual conviction. 45. These considerations informed the principles applied by this Court, when deciding whether to grant leave to appeal against conviction out of time. The general rule is simple. Without special or particular reasons an application for leave to appeal out of time on such change of law grounds will not be granted. Given the importance of the principle to this judgment, we must refer to passages in the judgments of a number of previous Lords Chief Justice. In R v Mitchell [1977] 65 CAR 185 at 189 Lane LJ (as he then was) commented: “It should be clearly understood, and this court wants to make it even more abundantly clear, that the fact there has been an apparent change in the law or, to put it more precisely, the previous misconceptions about the meaning of a statute have been put right, does not afford a proper ground for allowing an extension of time in which to appeal against conviction”. In R v Campbell [1997] 1 CAR 234, this court considered a reference by the Home Secretary under section 17(1)(a) of the Criminal Appeal Act 1968 . At p206, Lord Bingham of Cornhill observed: “On the hearing of this appeal, Mr Fitzgerald (counsel for the appellant) sought to challenge the direction given by the trial judge on provocation. He accepted that that direction faithfully reflected the law as it was understood at the time of the trial. But he submitted that the law had, over the intervening decade, so developed that there were then excluded from the jury’s consideration matters which they would now be invited to consider. We would be very slow indeed to allow an appeal on these grounds. Although the appellant at one point proposed to challenge the trial judge’s direction on provocation on appeal to this court, he did not in the event do so. Any such challenge at that time would necessarily have failed. It would be quite contrary to the general practice of this court to permit convictions to be re-opened because the law has changed since the date of conviction”. In R v Benjafield [2003] 1 AC 1099 at 1117 Lord Woolf commented that: “It is not usual to grant leave to appeal out of time where the grounds of appeal are based on post-trial changes in the law. This practice has been reaffirmed in relation to applications based on the coming into force of the Human Rights Act 1998 ; see R v Lambert [2001] 2WLR 211. The court would not wish in this case to do other than confirm the existing practice”. 46. We have already burdened this judgment with what may otherwise appear to be an unnecessary citation of authority in order to establish that it has for very many years, and still is, as Hughes LJ described it in R v Ramzan and others [2007] 1 CAR 150, the “very well established practice of this court, in a case where the conviction was entirely proper under the law as it stood at the time of trial, to grant leave to appeal against conviction out of time only where substantial injustice would otherwise be done to the defendant”. In short, the principle is that the defendant seeking leave to appeal out of time is generally expected to point to something more than the mere fact that the criminal law has changed, or been corrected, or developed. If the appeal is effectively based on a change of law, and nothing else, but the conviction was properly returned at the time, after a fair trial, it is unlikely that a substantial injustice occurred. 47. We do not doubt that there have been occasions when the practice has not been followed, but they do not undermine the essential policy reasons on which the principle is based. As applied in this Court, it is inherent that the policy permits of exceptions. We are not impressed with the submission that the court has not criticised the Commission for referring a change of law case. No one has suggested that the Commission is subject to a statutory prohibition against making a reference in such cases. In any event, even if not unknown, it would be rare for the court to criticise the Commission for referring a case which resulted in the quashing of a conviction, whatever its views about the decision to refer. That does not constitute approval. Thus, for example, we pause to consider the decisions in R v Cayley-Knowles and R v Iorwerth Jones [2006] EWCA Crim 1611 , which were referred to the court following a decision in the House of Lords in R v Wang [2005] UKHL 9 which held that a judge should never direct a jury to convict. Cayley-Knowles was convicted in 1972, on the judge’s direction of assault occasioning actual bodily harm. The evidence of the complainant was unchallenged. Addressing the jury, the appellant admitted that he had punched the victim twice in the fact causing actual bodily harm, and that he had not acted in self-defence and that the attack was not an accident. The judge directed the jury to convict in circumstances which, in 1972, would have attracted “no possible criticism”. Iowerth Jones was convicted more recently, but still, as long ago as 1994 of criminal damage. He admitted the damage alleged, caused as a protest against an incident which had happened in 1983. There was no defence. The judge directed the jury to convict. They did so. His conduct in 1994 was not open to criticism. As the cases were referred directly to the court by the Commission time was abridged. Leave to appeal out of time was not required. On the basis of the judgment which we have read, we have very grave doubts whether, if invited to do so, the court would have extended time in either case. 48. Cases like these are very different from R v Bentley [2001] 1CAR 307 where this court applied modern standards of fairness to a notorious conviction. Bentley’s conviction would not have been regarded as unsafe if the summing up had been fair and the directions of law adequate. It was quashed because by standards in 1952 as well as modern standards, the summing up, in particular in the context of the burden of standard of proof, and the lack of overall balance, deprived the appellant of his “birthright” of a fair trial. The decision did not depend on a legal view of the principles governing joint enterprise, and in particular the then recent decision developments in the House of Lords in R v Powell and R v English [1998] 1 CAR 261 of these principles. In relation to criticisms of the judge’s directions of law, the only ground which succeeded was based on the later court’s view that the first court had simply failed to grapple with the point. In other words, the defect arose at the time of trial. It was not based on any post-trial change of law. 49. After this discussion of the principles applied by this court in change of law cases, we must identify our concerns about the decision in R (DRCP) v Criminal Cases Review Commission [2007] 1CAR 395. The Divisional Court, presided over by Maurice Kay LJ was invited to consider whether the Commission, exercising its statutory function, should have regard to the practice adopted by this court in change of law cases. The court reached the clear conclusion: “ That the independent Commission was under no obligation to have regard to, still less to implement, a practice of the CACD which operates at a stage with which the Commission is not concerned. We resolve the point of principle in favour of the Commission”. As a result the Commission drew up the Seventh Version (Issued on 26 March 2007) of its formal memorandum describing the way in which it would exercise its responsibilities in “a change of law” cases. Paragraph 14 asserts, among other considerations, that “regard will not be had to.... the Court of Appeal’s practice in relation to applications for an extension of time in which to appeal change-of-law cases”. The more we considered this new policy, the more questionable in principle it appeared to be. 50. The problem was not addressed in the Royal Commission on Criminal Justice, chaired by Viscount Runciman, nor indeed in the legislation which followed that Commission and by Part II of the 1995 Act established the Criminal Cases Review Commission itself. The failure to anticipate the problem is unsurprising. At that time, the focus of the Runciman Commission was indeed “old” or historic cases, where the appeal process had been exhausted and the Home Office represented the only, and a hazardous route, to remedy miscarriages of justice in accordance with section 17(1) of the Criminal Appeal Act 1968 . Just because so many of the troublesome cases were old and well out of time for any appeal, or further appeal, the normal time limits were disapplied. The Commission may refer a conviction “at any time”. With historic cases understandably occupying so much attention, the problem of change of law cases was not directly addressed. At the time, the normal approach of the court to such cases was straightforward and well understood: save exceptionally, any necessary extensions of time would be refused. In short, in relation to these cases, neither the Runciman Commission, nor indeed the legislation, were required to address what was a non-problem. 51. The potential consequences of the omission have taken some time to become apparent. However the latest policy adopted by the Commission following the decision in R (DRCP) means that the arrangements for dealing with historic cases and change of law cases have been elided. Cottrell typifies the potential difficulties. For reasons which will appear we shall refuse leave to Cottrell to appeal out of time. If however the case had been referred directly by the Commission following the decision in R v J , or even if, notwithstanding our decision, the Commission subsequently decides to refer the case back to the court, Cottrell would not have needed, or would not then need any extension of time. The reference always bridges the time gap. By making it, whenever it is made, the Commission in effect grants any necessary extension of time and the Court cannot refuse to deal with the case on the basis that it is stale, even if, left to itself, the court would not have granted an extension. ( R v Kansal (No 2) [2001] EWCA Crim 1260 .) The immediate objective of the post Runciman reforms, to enable the Commission to refer historic or old miscarriage of justice cases in accordance with its judgment, and subject to the relevant statutory criteria, has been extended to change of law cases which were not then in direct contemplation. 52. Like the Court, the Commission is a creature of statute, and again like the court it is an independent body, which subject only to possible, and very rarely successful judicial review proceedings, is independent of the Court. Its independence, both when it is exercising its responsibilities, and in the public perception of the way in which those responsibilities are exercised, is one of its most valuable characteristics. However, although rightly vested with considerable authority, for the sound constitutional reasons appreciated by the Runciman Commission, the Commission was not vested with jurisdiction to quash criminal convictions. It is fundamental to the relationship between the court and the Commission, and the proper working of the constitutional arrangements, that the decision whether to quash a conviction continues to be the exclusive responsibility in the court. In relation to change of law cases however, if the Court is obliged to quash old convictions, returned in ignorance of subsequently “discovered” law, simply because the convictions are referred to it by the Commission, these principles are threatened. For the time being the court is bound by what we shall identify as the declaratory principle of the common law. In change of law case, the Court may therefore find itself obliged to quash a conviction simply because it is referred by the Commission. That infringes the constitutional proprieties. 53. In his illuminating commentary on this decision at [2007] CLR 384, Professor David Ormerod begins by observing that: “The decision was difficult to fault in terms of literalist statutory construction of the CCRC’s powers under s13 of the Criminal Appeal Act 1995 , and the CACD’s obligations under s9 of that Act…” He then went on to observe: “… because the CACD must also deal with appeals referred by the CCRC. The CCRC is not statutorily precluded from referring a case out of time. Having regard to its statutory powers, there is no obligation of the CCRC to have regard to the CACD’s finality policy in change of law cases….moreover, once the CCRC refers a conviction to the CACD, the CACD has no opportunity to apply its policy to filter appeals out of time: By s9 (2) of the 1995 Act the CACD must proceed to hear and determine the appeal as referred. The CACD had, in Kansal (No: 2) [2001] 2Cr.App R30 at (24) and Ramzan, encouraged the CCRC to have regard to its finality policy to avoid the obvious conflict whereby an appellant approaching the CACD on an appeal based on change of law would be likely to be refused leave, whilst an identical case which might be referred by the CCRC would have to be heard. There is much pragmatic sense in that – for the system to work, any CCRC decision “must be informed by the Court of Appeal’s working practices”: Ashworth and Redmain, Criminal Process [2005], P.359”. Professor Ormerod continues his analysis by suggesting that the decision itself means that: “The CCRC is not obliged to have regard to the CACD’s policy when deciding whether to refer. Nor is the CCRC obliged to have regard to that policy when evaluating whether there is a real possibility of a conviction being quashed, because as the CCRC knows, once the reference is made the CACD will have no opportunity to apply that finality filter”. If this is indeed what the decision means, and we agree with Professor Ormerod that it does, we are in highly unusual territory. 54. We have examined the arguments before the Divisional Court in R (DRCP) , and we cannot discern that this constitutional question was closely addressed. The omission was significant. If it were intended that the Commission should ignore any aspect of the law and practice of the court, in particular for present purposes, in relation to “change of law” cases, its authority to do so would have been expressly provided in the legislative structure which created it. The legislation was clearly not intended to have this effect. On the contrary, it is a pre-condition to a reference that save in exceptional cases unless the defendant has unsuccessfully appealed against or made an unsuccessful application for leave to appeal against conviction, so that any remedy arising from his normal appeal rights is exhausted, he should first apply to the court. If he has not previously applied for leave to appeal, the court may refuse leave to appeal just because the application is out of time, and in change of law cases it will normally do so. If it does so, the legislative arrangements suggest again, that save in exceptional circumstances, the Commission should not refer cases on which this issue has already been addressed and decided adversely to the proposed appellant. Moreover the Commission, when considering whether to make a reference, may “refer any point on which they desire the assistance of the Court of Appeal to that Court, for the Court’s opinion on it; and on a reference under this sub-section the Court of Appeal shall consider the point “and furnish its opinions”. As these provisions of section 14 demonstrate the legislative framework clearly links the reference process to the law and practice of the court. In reality we cannot conceive of any circumstances in which the law and practice laid down in this Court can be ignored by the Commission when it is exercising its judgment whether to refer a conviction to the court. They are “so obviously material” to the decision to be made by the Commission that it would be contrary to the intention of Parliament for them to be disregarded. ( In re Findlay [1985] AC318 ) 55. The Divisional Court’s decision would have the effect of defeating, and certainly undermining, the “symmetry” identified by Professor Zellick in this penetrating observation to the Home Affairs Select Committee in June 2004: “Whatever statutory test Parliament …imposed it has to be one that articulates with the test that the Court of Appeal itself has to apply. If you break that link and you establish an asymmetry between the two tests, you will be creating an absurd situation. It would create tension between the Court of Appeal and the Commission, it would raise expectations, it would cause confusion, and it is difficult to see what possible public interest could be served by referring cases on a basis that had no relation to the test employed by the court itself.” 56. It would indeed be disturbing, and we believe productive of public disquiet, if the Commission were to adopt an approach to change of law cases which conflicted with the approach of the court. We would not see this as a “healthy” tension. Indeed we see no reason for tension. The Court and the Commission are equally concerned about possible miscarriages of justice, and unsafe convictions. Convictions referred by the Commission to the Court are frequently quashed, but not always. The differences reflect the conditions which govern the exercise of their respective functions. The Commission refers cases where there is a “real possibility” that the conviction “would not be upheld”: the court quashes convictions which are unsafe. This should not be productive of tension. Both bodies are independently exercising their constitutional responsibilities, and they do so applying different tests. In short, in our judgment, the mutual independences of the Commission and the Court are not damaged by the application of comity and coherence in relation to change of law cases. 57. The present cases illustrate two facets of the problem, but do not address a third. Cottrell has never appealed. The change of law in his case came long after the time for appealing had expired. Fletcher appealed, and his appeal was heard and decided after the change of law had taken place. If we may say so, the decisions of the Commission in both cases were entirely correct. However neither case involved an application to the Commission on the basis of the change of law following R v J, in the context of a conviction returned at the same time as, or earlier than Cottrell, in which there had been an unsuccessful appeal on different grounds. For cases in this third category, when the opportunity for a further application is no longer available, it would be productive of discord and uncertainty if the Commission were to ignore the policy of the Court, as illustrated by the decision in the Cottrell application. 58. At the hearing, without making any formal concessions, Professor Zellick appeared inclined to accept that the Commission might be prepared to revert to its earlier guidance that it would have regard to the practice of the court in change of law cases. We must go further. In our judgment, in these cases, it is not open to the Commission lawfully to apply a policy based on the conclusion of the Divisional Court that it was “under no obligation to have regard to, still less to implement” the practice of the court. The practice must be addressed and evaluated in every case. Just as the court will not normally extend time, a conviction should not normally be referred on the basis of a change of law. We repeat paragraph 46 of this judgment. In the final analysis, however, provided the Commission addresses and gives proper weight to the law and practice of the court, it must exercise its own independent and fact specific judgment whether to refer a case. Cottrell 59. We can now return to Cottrell’s application, which is well out of time. The complainant was groomed by the applicant and she fell in love with him. He was in fact guilty of indecent assault on her, not only because full intercourse took place, but because he had touched and handled her indecently. Her seduced consent to sexual activity provided no defence. But for the practice now deemed impermissible Cottrell could have been indicted for indecent assault in relation to underage sexual activity, and from the jury verdict it is clear that he would have been convicted. It would be a manifest injustice to the complainant if he were able to take advantage of that part of the change of law which suited him, without having to accept the inevitable consequences of the process which would have applied to this case if the erroneous practice had been recognised earlier, and the necessary adaptations to it adopted. This case falls well within the long established principles which this court has applied to extensions of time in change of law cases. The only possible ground of appeal is based on the change of law. The refusal of this application will produce no injustice. Therefore it is refused. Final Thoughts 60. Under the present legislation a conviction must be quashed if it is unsafe. The declaratory theory of the common law appears remote from the practical realities which should underpin the administration of criminal justice. . Nevertheless the common law is not fossilised and one of its strengths is that it is indeed flexible and capable of development, and misconceptions and misunderstandings of legal principles can and should where necessary be corrected and elucidated. This judgment has sought to underline that there is a broad public interest about the way in which change of law appeals should be addressed. We share the views of the Divisional Court in R (DRCP) that these issues merit the attention of Parliament.

2007_07_31-1208.xml

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[2008] EWCA Crim 702

EWCA_Crim_702

2008-03-19

crown_court

No: 200801018 A7/200801026 A7 Neutral Citation Number: [2008] EWCA Crim 702 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 19th March 2008 B e f o r e : LORD JUSTICE MOORE-BICK MR JUSTICE OPENSHAW MR JUSTICE KING - - - - - - - - - - - - - - - - - - - - - R E G I N A v MARK ARBERY DANIEL MOBLEY - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communicat

No: 200801018 A7/200801026 A7 Neutral Citation Number: [2008] EWCA Crim 702 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 19th March 2008 B e f o r e : LORD JUSTICE MOORE-BICK MR JUSTICE OPENSHAW MR JUSTICE KING - - - - - - - - - - - - - - - - - - - - - R E G I N A v MARK ARBERY DANIEL MOBLEY - - - - - - - - - - - - - - - - - - - - - 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 SM Cobley (Solicitor Advocate) appeared on behalf of the Appellant Mr B Morris appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE MOORE-BICK: On 6th June 2007, in the Crown Court at Inner London before Mr Recorder Herbert, the applicants were convicted after trial of violent disorder and on 5th July they were each sentenced to 18 months' imprisonment. In addition, each of them was made subject to a football banning order for a period of six years. Their applications for extensions of time for leave to appeal against the football banning orders have been referred to the Full Court by the Registrar. 2. Four co-accused, one of whom was Craig Mabee, pleaded guilty to violent disorder and were sentenced to 12 months' detention or imprisonment as appropriate to their ages. They were also made the subject of six year football banning orders. 3. The convictions that led to those orders arose out of a street fight which took place in the area of Caledonian Road, London, quite close to King’s Cross railway station. The third round of the FA Cup was played on 7th January 2006, which resulted in many rival supporters travelling to and through London to attend matches at various football grounds in the south of England. The applicants and Craig Mabee were supporters of Northampton Town and had come to London to watch their team play Crystal Palace at Selhurst Park. The other co-accused were supporters of Charlton Athletic; they had been to Sheffield to watch their team play Sheffield Wednesday. 4. At about 8.30 pm the applicants and their companions went to the Flying Scotsman public house in Caledonian Road. They said at trial that they were waiting for the next train to Northampton. At about 8.55 pm a group of Charlton Athletic supporters arrived at the public house. Some racial abuse was apparently directed towards one of the Northampton Town supporters, who left the public house followed by the applicants and Craig Mabee. CCTV recordings showed communications of some kind taking place between the two factions and thereafter a large scale fight took place in and around the Caledonian Road, with punches and kicks being exchanged, all in full view of the public. After that, the Northampton Town supporters ran off towards the station and the Charlton Athletic supporters returned to the Flying Scotsman. 5. The investigating officer acknowledged in evidence that the incident had nothing directly to do with the football matches which these people had previously attended. Another officer said that he had become aware that the incident was originally of a racist nature. 6. In his sentencing remarks the Recorder described what had happened as a piece of gratuitous violence played out by a group of adults who purported to follow either Northampton Town or Charlton Athletic. It was a staged fight, set up by one or more people, in which all the defendants had become involved. The Recorder described the fighting as being at times quite vicious and clearly fuelled by drink. He accepted that the defendants were entitled to watch football and were perfectly entitled to get boisterous and drink large quantities of alcohol, but they were not entitled to bring abuse and violence on to the streets. The offence was aggravated by the fact that it was committed in a public place and by the fact that there had been an element of pre-planning. 7. The Recorder went on to hold that in each case the offence was to be regarded as football related because the violence arose out of the defendants’ support for their respective teams and would not have occurred otherwise. He held that all the convictions were related to a designated football match within the meaning of the statutory provisions, albeit that different matches were involved, because if the participants had not been following their respective teams this violence would not have happened. He also held that imposing football banning orders on the defendants would help prevent violence or disorder at, or in connection with, designated football fixtures. Accordingly, he imposed banning orders under the provisions of section 14A of the Football Spectators Act 1989 in addition to custodial sentences. 8. The only ground of appeal in this case is that the Recorder was wrong to impose football banning orders because the violent disorder did not relate to a football match but arose out of a simple disagreement in a bar in the course of which a racist remark was made. 9. Subsections (1)-(3) of section 14A of the Football Spectators Act 1989 , as amended by the Football Disorder Act 2000 , provide as follows: "(1) This section applies where a person (the 'offender') is convicted of a relevant offence. (2) If the court is satisfied that there are reasonable grounds to believe that making a banning order would help to prevent violence or disorder at or in connection with any regulated football matches, it must make such an order in respect of the offender. (3) If the court is not so satisfied, it must in open court state that fact and give its reasons." 10. The important words in the context of the present case are "a relevant offence" in subsection (1), because the power to make a banning order only arises when a person is convicted of a relevant offence. “Relevant offence” is defined in section 14(8) as an offence to which Schedule 1 of the Act applies. A large number of offences are set out in Schedule 1, but only one of them is potentially applicable to the present case, namely, that which is described in paragraph (r) as follows: 11. "any offence involving the use or threat of violence by the accused towards another person— (i) which does not fall within paragraph (d) or (m) above, (ii) which was committed during a period relevant to a football match to which this Schedule applies, and (iii) as respects which the court makes a declaration that the offence related to that match or to that match and any other football match which took place during that period." The only question in this case is whether the offences committed by the appellants related to either of the matches which they and the co-accused had attended. 12. In November last year, this court heard an appeal by Craig Mabee, who had been involved in the very same disturbance, and quashed the banning order imposed on him. It did so on the grounds that the violence in this case did not relate to either of the matches in question and that therefore the Recorder had no jurisdiction to impose such an order. Giving the judgment of the court on that occasion, the Recorder of Chester said: 13. "We have had our attention drawn in particular to the case of R v Gregory Elliot [2007] EWCA Crim 1002 in this court and in fact the judgment given by Stanley Burnton J. We have had our attention specifically directed to page 13, paragraphs 14 and 15 of that judgment: 'Did the offences committed in the present case relate to the match? Clearly, the presence of the applicants in London and indeed at Leicester Square related to the match. But it is not their presence, or their allegiance, which is the touchstone of the declaration, it is the relationship between the offence and the match. Here, the offences were sparked by the presence of a group of football supporters in London. The spark, however, had nothing to do with the match itself on the facts as found by the judge. The violence took place, not because of anything that had happened at the football match, or between supporters but because of disparaging remarks made to a lady who had nothing to do with the football match and remarks which had nothing to do with the football match. In those circumstances, we do not consider that, in this case, the statutory requirement was satisfied.' We are bound to say that our view is that that case is indistinguishable from the circumstances of the present case." 14. In our view the same result must follow in the present case since these two applicants were engaged in the self same outbreak of violence. 15. We therefore extend time for applying for leave to appeal, grant leave and quash the banning orders imposed on these two appellants.

2008_03_19-1436.xml

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[2010] EWCA Crim 1486

EWCA_Crim_1486

2010-06-29

crown_court

Neutral Citation Number: [2010] EWCA Crim 1486 Case No: 2009/06640/D1 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT BOURNEMOUTH Royal Courts of Justice Strand, London, WC2A 2LL Date: 29/06/2010 Before : LORD CHIEF JUSTICE OF ENGLAND AND WALES THE HON. MR. JUSTICE DAVID CLARKE and THE HON. MR. JUSTICE LLOYD JONES - - - - - - - - - - - - - - - - - - - - - BETWEEN Regina Respondent - v - Nikolas Budimir and Nicholas Rainbird Applicants and Secret

Neutral Citation Number: [2010] EWCA Crim 1486 Case No: 2009/06640/D1 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT BOURNEMOUTH Royal Courts of Justice Strand, London, WC2A 2LL Date: 29/06/2010 Before : LORD CHIEF JUSTICE OF ENGLAND AND WALES THE HON. MR. JUSTICE DAVID CLARKE and THE HON. MR. JUSTICE LLOYD JONES - - - - - - - - - - - - - - - - - - - - - BETWEEN Regina Respondent - v - Nikolas Budimir and Nicholas Rainbird Applicants and Secretary of State for Culture, Media and Sport Intervener - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. Nigel Peters QC (instructed by Kaye Tesler & Co) for the Appellants Mr. J. McGuinness QC (instructed Crown Prosecution Service) for the Respondents Miss Marie Demetriou ( instructed by the Treasury Solicitor ) for the Intervener Neutral Citation Number: [2010] EWHC 1604 (Admin) IN THE HIGH COURT OF JUSTICE DIVISIONAL COURT Case No: CO/2652/2004 Royal Court of Justice, Strand, London, WC2A 2LL Date: 29/06/2010 AND BETWEEN Interfact Limited Applicant -v- Liverpool City Council Respondent Lord Pannick QC and Mr David Lowe (instructed by Henri Brandman & Co) for the Applicant Mr. J. McGuinness QC (instructed by Crown Prosecution Service) for the Respondent Miss Marie Demetriou ( instructed by the Treasury Solicitor ) for the Intervener Hearing dates : 6 th May 2010 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Judge, Lord Chief Justice of England and Wales 1. These otherwise unconnected applications question the enforceability of a properly enacted Act of Parliament, the Video Recordings Act 1984 (“ the 1984 Act ”). 2. The contentions advanced on behalf of the applicants by Lord Pannick QC and Mr Nigel Peters QC involve the seemingly startling proposition that, notwithstanding the respective applicants’ undoubted guilt, a conviction recorded on the basis of a statute enacted by our sovereign Parliament must be quashed because of an adventitious failure by the United Kingdom Government, before its enactment, to comply with a Directive from the European Community (the Technical Standards Directive, Directive 83/189 EEC (“the Directive”)). For A.V. Dicey, and generations not only of judges and lawyers, but the community at large, such a proposition would have appeared to be a constitutional impossibility. Among very many extracts from his An Invitation to the Study of Law of the Constitution (6 th edition 1902), the principle is perhaps best encapsulated at page 38: “The principle then of Parliamentary sovereignty may, looked at from its positive side, be thus described: Any Act of Parliament, or any part of an Act of Parliament, which makes a new law…will be obeyed by the Courts. The same principle, looked at from its negative side may be thus stated : There is no person or body of persons who can, under the English Constitution, make rules which override or derogate from an Act of Parliament ….” Later, at page 87, identifying what he described as three traits of Parliamentary sovereignty, Dicey spoke of the “Non existence of any judicial or other authority having the right to nullify an Act of Parliament, or to treat it as void or unconstitutional.” 3. Faced with the submissions advanced on behalf of the applicants, the answer offered by previous generations would have been that the argument was nonsense. Whether we like it or not, that comfortable course is not available to us. The reason is summarised by Professor Vernon Bogdanor in his “ New British Constitution ”. At page 28 he describes how “the problem of how to give legislative effect to membership of a body which could overrule Parliament” was resolved. “… the European Communities Act of 1972, … provided for the recognition of all directly enforceable Community Law in preference to any Act of Parliament, past or future. Thus, until the Act were to be repealed, European Community Law would trump existing or future legislation passed by Westminster… Parliament in 1972 had been able to do something which many had previous thought impossible, that is, to limit its sovereignty. European Community legislation was superior to statute…there can be little doubt that the European Communities Act produced a structural change in the British constitution”. Thus, the issues raised in these applications must be addressed by reference to European Union Law (EU law) and not, save to the extent that EU law has been incorporated into domestic law, to constitutional principles which pre-date our entry into the European Communities. In summary, section 2(4) of the European Communities Act 1972 prohibits the application domestically of statutory provisions which are inconsistent with directly applicable Community law. It is therefore not open to us to ignore EU law. Parliament has obliged us to apply it, even if the effect may be to render an Act of Parliament unenforceable. 4. We have all contributed to the judgment of the court, but the heavy burden of preparing those parts of the draft which address EU law, and the European Convention on Human Rights (“the Convention”), was undertaken by Lloyd Jones J. 5. In the first application Interfact Limited (“Interfact”) applied pursuant to Civil Procedure Rules 52.17 for permission to apply to the Divisional Court to re-open its decision of the 23 rd May 2005 in Interfact Limited v Liverpool City Council [2005] EWHC 995 (Admin) to dismiss Interfact’s appeal by way of case stated against a number of convictions under section 12(1) of the 1984 Act . We have sat as a Divisional Court to hear this application. In the second Nikolas Budimir and Nicholas Rainbird applied to the Court of Appeal Criminal Division for an extension of time (approximately 1 year 8 months) and leave to appeal against their convictions at the Bournemouth Crown Court on 10 th March 2008 for offences contrary to section 10(1) of the 1984 Act . The essential facts are very simple. The question in each case is whether the failure by Her Majesty’s Government to give an appropriate notification under the Directive has, through the application of EU law and the Convention created an injustice which it is not otherwise possible to discern. Interfact Limited v Liverpool City Council 6. Interfact is a mail order company which trades in videos including those which have been given “R18” certificates by the British Board of Film Classification. Section 12(1) of the 1984 Act provides that R18 videos may only be supplied or offered for supply in a licensed sex shop. 7. On 27 th April 2004 the applicant was convicted by Liverpool Magistrates’ Court on 44 counts under section 12(1) of the 1984 Act . The acts constituting the offences involved a) Posting to customers, from licensed premises R18 videos which had been ordered by post or by telephone; b) Enclosing with such postal deliveries catalogues offering to sell and deliver further R18 videos. In each case, supply or offer to supply was from a licensed sex shop and not in a licensed sex shop. 8. Interfact was fined £3,000 in respect of one offence of supplying and £2,000 in respect of one offence of offering to sell. No fine was imposed in respect of the other 42 offences. Interfact was also ordered to pay £25,617.22 in costs to Liverpool City Council Trading Standards Department which had brought the prosecution. 9. Interfact appealed to the Divisional Court by way of case stated, contending that the court below had erred in its interpretation of where the supply took place for the purposes of section 12(1) of the Act . On 23 rd May 2005 the Divisional Court (Maurice Kay LJ, Newman J.) dismissed the appeal and upheld the convictions. Interfact was ordered to pay the Respondent’s costs which were later agreed in the sum of £16,000 and paid. Interfact sought leave to appeal to the House of Lords. That application was refused on 13 th October 2005. It looked like the end of the litigation. Budimir and Rainbird 10. On 10 th March 2008 Budimir and Rainbird pleaded guilty at Bournemouth Crown Court to six counts of having in their possession for the purpose of supply a video recording containing a video work in respect of which no classification certificate had been issued, contrary to section 10(1) of the 1984 Act . Each offence was committed on 31 st January 2007. Furthermore each asked the court to take into consideration one offence contrary to section 10(1) of the 1984 Act , namely that they “between 30 th April 2003 and 1 st February 2007 had in their possession for the purpose of supply 15,631 video recordings containing video works in respect of which no classification or certificate had been issued”. In respect of these offences each of the applicants was fined a total of £30,000 and ordered to pay £690 prosecution costs. In addition each was made the subject of a confiscation order in the sum of £156,370. 11. The present applications for leave to appeal out of time, were received at the Crown Court on 11 th December 2009, approximately 1 year and 8 months out of time. The Video Recording Act 1984 and the Technical Standards Directive. 12. The Technical Standards Directive, Directive 83/189 EEC was adopted by the Council of the European Community on 28 th March 1983. It was required to be implemented by Member States by the 28 th March 1984. 13. Its purpose is to eliminate restrictions on the free movement of goods. This is apparent from the following recitals in the preamble: “Whereas the prohibition of quantitative restrictions on the movement of goods and of measures having an equivalent effect is one of the basic principles of the Community; Whereas barriers to trade resulting from technical regulation relating to products may be allowed only where they are necessary in order to be essential requirements and have an objective in the public interest of which they constitute the main guarantee; Whereas it is essential for the Commission to have the necessary information at its disposal before the adoption of technical provisions; whereas, consequently the Member States which are required to facilitate the achievement of its task pursuant to Article 5 of the Treaty must notify it of their projects in the field of technical regulations;…” 14. Article 1 defines “technical specification” as “a specification contained in a document which lays down the characteristics required of a product such as levels of quality, performance, safety or dimensions, including the requirements applicable to the product as regards to terminology, symbols, testing and test methods, packaging, marketing or labelling;” It defines “technical regulation” as “technical specifications, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing or use in a Member State or a major part thereof, except those laid down by local authorities”. 15. Article 8(1) requires Member States to communicate immediately to the Commission any draft technical regulation. The Commission is then obliged to notify the other Member States of any draft it has received. Article 8(2) provides for the Commission and other Member States to make comments on the draft technical regulation. 16. Article 9(1) of the Directive provides: “Without prejudice to paragraph 2, Member States shall postpone the adoption of a draft technical regulation for 6 months from the date of the notification referred to in Article 8(1) if the Commission or another Member State delivers a detailed opinion, within three months of that date, to the effect that the measure must be amended in order to eliminate or reduce any barriers which it might create to the free movement of goods.” 17. In a series of judgments the Court of Justice of the European Communities has established that breach of the obligation to notify under Directive 83/189 renders non-notified technical regulations inapplicable so that they are unenforceable against individuals. ( Case C-194/94 CIA Security International SA v Signalson SA and Securitel SPRL [1996] ECR I-2201 at paragraphs 50, 54; Case C-194/94 Lemmens [1998] ECR I-3711 at paragraph 33; Case C-159/00 Sapod – Audic [2002] ECR I-5031 at paragraphs 49,52; Case C-20/05 Criminal Proceedings concerning Schwibbert [2007] ECR I-9447 at paragraphs 38, 44.) Failure of notification by Her Majesty’s Government. 18. On 24 th August 2009 Her Majesty’s Government announced that offences under the 1984 Act and the related regulations are technical regulations which should have been notified under Directive 83/189/EEC. The Act and the Regulations had not been notified and accordingly this failure rendered them unenforceable against individuals. 19. In a letter dated 24 th August 2009 to the Director of Public Prosecutions Barbara Follett MP, Minister for Culture and Tourism, stated: “It has come to light that offences under the Act are unenforceable and, accordingly, all affected current prosecutions under the Act should be discontinued and future prosecutions should not be undertaken. …The detailed reasons why the offences under the Act are unenforceable are as follows. It is clear that sections 9 and 10 of the Act and the Regulations are technical regulations which should have been notified to the European Commission under Article 8(1) of the Technical Standards Directive 83/189/EEC. The European Court of Justice has held (see CIA Securities C-194/94) that a breach of this obligation to notify renders the technical regulations concerned inapplicable so that they are unenforceable against individuals. It is also considered that the other offences in the Act (under sections 11 to 14) constitute technical regulations and that these offences are similarly unenforceable against individuals. To reiterate all the offences under the Act are unenforceable because of a failure to notify the Act and the Regulations under the Technical Standards Directive 83/189/EEC. Any existing prosecutions under the Act should not be continued and no new prosecution should be brought until the issue is rectified. In relation to past prosecutions, it is our understanding that there would be no positive obligation on the Government to re-open these; however we would value any comments you may have in this regard.” 20. The Department for Culture, Media and Sport duly notified the 1984 Act and the Regulations made under it to the European Commission on 11 th September 2009. During the standstill periods laid down by Article 9(1) of the Directive, no objection was taken by the Commission or any other Member State to the effect that the legislation “must be amended in order to eliminate any barriers which it might create to the free movement of goods.” Following the expiry of this period the 1984 Act was repealed and re-enacted in identical terms in the Video Recordings Act 2010 (“ the 2010 Act ”). The appropriate Regulations were also re-made. These applications proceeded on the basis that the 2010 Act was not expressed in terms sufficient to justify the conclusion that it was intended to or should have retrospective effect. 21. It is against this background that the applicants seek to quash their convictions. The applications are opposed by the respondents, and the Secretary of State, to whom leave was given to intervene. 22. Before considering the submissions of the applicants on the basis of EU law and the Convention as given effect by the Human Rights Act 1998 we propose to say something about the powers that would be available in a purely domestic case and the approach which would be adopted by this court in an analogous domestic situation. Here we have in mind, in particular, the observations of the Court of Justice in Case C-312/93 Peterbroeck v. Belgian State [1995] I- ECR 4599, at paragraph 14, where it emphasised that the principle of effectiveness, on which the applicants in the present case rely, must be applied by examining the national procedural rules within the context of that national legal system The powers of this Court. 23. CPR Rule 52.17 sets out the approach to be followed by courts in respect of applications to re-open a final determination of an appeal including an appeal by way of case stated (CPR 52.1(3)(a)) “Re-opening of final appeals. 52.17 (1) the Court of Appeal or the High Court will not re-open a final determination of any appeal unless – (a) It is necessary to do so in order to avoid real injustice; (b) The circumstances are exceptional and make it appropriate to re-open the appeal; (c) There is no alternative effective remedy. 24. In this regard Interfact also relies on Taylor v Lawrence [2003] QB 528 where the Civil Division of the Court of Appeal concluded that it had an inherent jurisdiction to do what was necessary to achieve its two principal objectives of correcting wrong decisions and ensuring public confidence in the administration of justice. Therefore it could take the exceptional course of re-opening proceedings which it had already heard and determined if it was clearly established that a significant injustice had probably occurred and that there was no alternative effective remedy. Furthermore in Seray-Wurie v Hackney London Borough Council [2003] 1 WLR 257 the Court of Appeal held that the High Court when sitting as an appeal court has an inherent jurisdiction similar to that of the Court of Appeal to re-open a case which it has decided. However it emphasised that the jurisdiction is to be exercised only in exceptional circumstances. 25. Budimir and Rainbird seek leave to appeal to the Court of Appeal out of time. An application for leave to appeal must be made within 28 days from the date of the conviction, verdict or finding appealed against. This period may be extended, either before or after it expires, by the Court of Appeal. ( Criminal Appeal Act 1968 , section 18(2) , (3).) 26. So far as we are aware, the precise circumstances of these applications have never previously arisen for consideration in this jurisdiction. However, the House of Lords and the Court of Appeal have consistently held that, in analogous circumstances where a conviction was based on the law as it was then understood to be, a subsequent change of the law or in the understanding of the law will not be a valid ground for leave to appeal out of time, unless substantial injustice has been done. Among many authorities to this effect, we note R v Mitchell [1977] 65 Cr App R195 and 189, R v Hawkins [1997] 1 Cr App R234 at p240, R v Campbell (Colin Frederick) [1997] 1 Cr App R199 at 206 E, R v Benjafield [2006] 1AC 1099, R v Kansal (No 2) [2002] 1 Cr App R36, R v Ballinger [2005] 2 Cr App R 29 , R v R [2007] 1 Cr App R10 and R v Cottrell, R v Fletcher [2008] 1 Cr. App. R. 7 . 27. For the purposes of the present applications we shall not seek to discern nor create a difference of approach to the applications in the Divisional Court (CPR Rule 52.17, and Taylor v Lawrence [2003] QB 528 and Seray-Wurie Hackney London Borough Council [2003] 1 WLR 257 ) and the Court of Appeal Criminal Division. The application of these criteria to the facts of the present cases. 28. We are wholly unpersuaded that the convictions in these cases have given rise to any substantial injustice. (1) The purpose of the 1984 Act was to protect the public from the dissemination of pornography, of a degree that it should not be supplied at all or should only be supplied to persons aged 18 or over and, even then, only in identified premises. The classification procedure and the consequential prohibition on supplying unclassified video works were adopted in order to ensure that such supply is properly regulated and controlled. These offences were not simply regulatory. The conduct in question may cause serious lasting harm, not least to children and adolescents. The public interest is clear. (2) The applicants undoubtedly and deliberately performed the acts prohibited by the statute, in the course of their businesses, for substantial profits. The 1984 Act made abundantly clear that their conduct was criminal. And it remains criminal under the Video Recordings Act 2010 which has re-enacted the provisions of the 1984 Act in identical terms. (3) As there is nothing to distinguish the convictions of these applicants from those of any other defendant convicted of offences contrary to the 1984 Act between 1985 and 2009, the logic of the applicants’ case is that every conviction for such offences during that period must be set aside, notwithstanding that in every case those convicted had contravened the provisions of properly enacted primary legislation. (4) Apart from EU law and the possible application of the Convention, it is impossible in these circumstances to discern the beginnings of an argument that any applicant suffered the slightest injustice. EU Law. The consequences of non-notification in EU law. 29. In a series of cases concerning the effect of non-notification in accordance with this Directive and its successors the Court of Justice has expressed the effect of non-notification in EU law in careful and precise terms. In Case C-194/94 CIA Security it stated: “In view of the foregoing considerations, it must be concluded that Directive 83/189 is to be interpreted as meaning that breach of the obligation to notify renders the technical regulations concerned inapplicable, so that they are unenforceable against individuals.” (at para. 54.) 30. In Case C-194/94 Lemmens at paragraph 33 and Case C-159/00 Sapod Audic at paragraph 49 the principle is expressed in similar terms. 31. In Sapod Audic the Court considered the effect of non-notification on the enforcement of contractual rights. “Second, it should be borne in mind that according to the case-law of the Court the inapplicability of a technical regulation which has not been notified to the Commission in accordance with Article 8 of Directive 83/189 may be invoked in legal proceedings between individuals concerning, inter alia, contractual rights and duties (see Unilever , paragraph 49). Accordingly, if the national court were to interpret the second paragraph of Article 4 of Decree No. 92-377 as establishing an obligation to apply a mark or label and, hence, constituting a technical regulation within the meaning of Directive 83/189, it would be incumbent on that court to refuse to apply that provision in the main proceedings. It should, however, be observed that the question of the conclusions to be drawn in the main proceedings from the inapplicability of the second paragraph of Article 4 of Decree No. 92-377 as regards the severity of the sanction under the applicable national law, such as nullity or unenforceability of the contract between Sapod and Eco-Emballages, is a question governed by national law, in particular as regards the rules and principles of contract law which limit or adjust that sanction in order to render its severity proportionate to the particular defect found. However, those rules and principles may not be less favourable than those governed in similar domestic actions (principle of equivalence) and may not be framed in such a way as to render impossible in practice the exercise of rights conferred by Community law (principle of effectiveness)…” (at paragraphs 50-52.) 32. Similarly in Case C-20/05 Schwibbert the court considered that a failure to notify to the Commission a draft technical regulation would result in its being unenforceable against Mr. Schwibbert (see paragraphs 33 and 38). At paragraph 44 the Court stated: “According to the case law of the court, the failure to observe the obligation to notify constitutes a procedural defect in the adoption of the technical regulations concerned, and renders the technical regulations inapplicable and therefore unenforceable against individuals (see, in particular, CIA Security International , paragraph 54 and Lemmens at paragraph 33). Individuals may rely on that inapplicability before the national court which must decline to apply a national technical regulation which has not been notified in accordance with Directive 98/34 (see, in particular CIA Security International paragraph 55 and Sapod Audic paragraph 50)” (at paragraph 44). 33. All this acknowledged, it is however equally clear from the jurisprudence of the Court of Justice that failure to notify does not have the effect of rendering the national measure a nullity, void or non-existent. National courts are required to disapply legislation, including primary legislation, which is incompatible with EU law. Thus in Case C-10/97 to C-22/97 IN.CO.GE [1998] ECR I-6907 the Court of Justice considered the scope of the principle of supremacy laid down in Case 70/77 Simmenthal v. Amministrazione delle Finanze [1978] ECR II-695 and held at paragraph 21: “It cannot therefore, contrary to the Commission’s contention, be inferred from the judgment in Simmenthal that the incompatibility with Community law of a subsequently adopted rule of national law has the effect of rendering that rule of national law non-existent. Faced with such a situation, the national court is, however, obliged to disapply that rule, provided always that this obligation does not restrict the power of the competent national courts to apply, from among the various procedures available under national law, those which are appropriate for protecting the individual rights conferred by Community law.” 34. The same principle was stated in the following terms by Lord Walker in Fleming v HMRC [2008] 1 WLR 195 : “… [I]t is a fundamental principle of the law of the European Union, recognised in section 2(1) of the European Communities Act 1972 , that if national legislation infringes directly enforceable Community rights, the national court is obliged to disapply the offending provisions. The provision is not made void but it must be treated as being (as Lord Bridge of Harwich put it in R v Secretary of State for Transport ex parte Factortame [1990] to AC 85,140) “without prejudice to the directly enforceable Community rights of nationals of any member state of the EEC”.” (at paragraph 24) 35. Beyond that, the further consequences to be drawn from the failure to notify a measure in accordance with the Directive are left to the national law of the Member State concerned, subject to the overriding requirements of EU law that the applicable rules of national law are no less favourable than those governing similar domestic actions (the principle of equivalence) and that they may not be framed in such a way as to render impossible or excessively difficult in practice the exercise of rights conferred by Community law (the principle of effectiveness). (See e.g. Case C-33/76 Rewe v. Landwirtschaftskammer fur das Saarland [1976] ECR1989 at paragraph 5; Joined Cases C - 52/-99 and C - 53/-99 Camorotto and Vignone [2001] ECR I-1395 at paragraph 21). The consequences of non-notification in national law. 36. Turning therefore to the consequences of non-notification in national law, the first and most fundamental point is that no court has the power to strike down an Act of Parliament or to declare it a nullity. In any event, as we have shown, what would otherwise appear to be a remarkable consequence is not required by EU law. 37. So far as concerns action taken pursuant to the statute, the starting point is that the courts treat both administrative and subordinate legislative acts as effective and valid until quashed by a court of competent jurisdiction. In Smith v. East Elloe RDC [1956] AC 736 Lord Radcliffe observed at pp 769-7: “An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.” 38. We note that EU law applies a similar presumption of validity in the case of EU legislation. The Court of Justice expressed the principle in the following terms in Commission v BASF AG [1994] ECR I – 2555: “Acts of the EU Community institutions in principle are presumed to be lawful and accordingly produce legal effects, even if they are tainted by irregularities, until such time as they are annulled or withdrawn” (at paragraph 48). 39. As a matter of national law, therefore, the decision of the Divisional Court in Interfact upholding the convictions and the convictions before the Crown Court in the cases of Budimir and Rainbird, are valid unless and until they are set aside. In R v Cain [1985] 1 AC 46 Lord Scarman observed (at paragraph 55D-F): “The terms used to formulate the law by the judges of the Court of Appeal… have not been happy. They have spoken of orders being void or null for lack of jurisdiction in the court to make them. But you cannot describe as a nullity an order made by a superior court of record, which is what the Crown Court is: section 4(1) of the Courts Act 1971 . Nor is the question really one of jurisdiction: it is a question of whether the court has exceeded its power. An order of the Crown Court once made may be in excess of its statutory power or otherwise irregular. But it is not a nullity. And it would undermine the authority of the criminal law if orders made by the highest court of trial in criminal matters could be disregarded as nullities. The order of the Crown Court stands unless and until set aside by the court itself upon application or, if appeal lies, by the appellant tribunal to which the appeal is taken. But the terms used by the courts do not vitiate their reasoning.” The submissions of the applicants. 40. On behalf of the applicants it is submitted that (1) This court has a discretion under national law to reopen the decision of the Divisional Court and to grant leave to appeal to the Court of Appeal out of time. It is required to exercise that discretion in favour of the applicants because the earlier decisions were contrary to EU law. (2) Failure to grant the relief sought would infringe the principle of effectiveness in Community law. The Kapferer principle. 41. In general, EU law does not require national courts to disapply their own procedural rules in order to secure the vindication of EU rights. In Case C–234/04 Kapferer [2006] ECR I – 2585 the Austrian Supreme Court was seised of an appeal in which the respondent had failed to lodge within the time stipulated a respondent’s notice taking a point on jurisdiction under the Brussels Convention. The Court referred to the Court of Justice the questions whether it was, nevertheless, bound to take the point of EU law of its own motion and whether EU law required a national court to review and set aside a final judicial decision in circumstances where it later became apparent that the decision of the court was in breach of EU law. The Court of Justice held that a national court is not so bound. “19. By Question 1(a), the referring court asks essentially whether, and, where relevant, in what conditions, the principle of cooperation arising from Article 10 EC imposes on a national court an obligation to review and set aside a final judicial decision if that decision should infringe Community law. 20. In that regard, attention should be drawn to the importance, both for the Community legal order and national legal systems, of the principle of res judicata. In order to ensure both stability of the law and legal relations and the sound administration of justice, it is important that judicial decisions which have become definitive after all rights of appeal have been exhausted or after expiry of the time-limits provided for in that connection can no longer be called into question ( Case C-224/01 Köbler [2003] ECR I-10239, paragraph 38). 21. Therefore, Community law does not require a national court to disapply domestic rules of procedure conferring finality on a decision, even if to do so would enable it to remedy an infringement of Community law by the decision at issue (see, to that effect, Case C-126/97 Eco Swiss [1999] ECR I-3055, paragraphs 46 and 47). 22. By laying down the procedural rules for proceedings designed to ensure protection of the rights which individuals acquire through the direct effect of Community law, Member States must ensure that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and are not framed in such a way as to render impossible in practice the exercise of rights conferred by Community law (principle of effectiveness) (see, to that effect, Case C-78/98 Preston and Others [2000] ECR I-3201, paragraph 31 and the case-law cited). However, compliance with the limits of the power of the Member States in procedural matters has not been called into question in the dispute in the main proceedings as regards appeal proceedings.” 42. Notwithstanding the decision in Kapferer , Lord Pannick QC submits that the present case is one in which EU law does require the court to reopen its previous decision. He seeks to distinguish Kapferer on the basis that the precise ruling in Kapferer was that under EU law national courts are not obliged to disapply procedural rules which prevent the reopening of a judicial decision. However, he submits that in the present case there is no such rule preventing the court from reopening the decision. Rather, the question here is whether the court should exercise its discretion to remedy the infringement of EU law at issue in this case. He submits that while it was the case in Kapferer that the national court was not able, absent an express EU law power, to reopen its own decision, that is not the position in the present applications. Accordingly he submits that the Kapferer principle is not applicable. 43. Further, Lord Pannick submits that the closer analogy in the present case is with the earlier decision of the Court of Justice in Case C–453/00 Kühne & Heitz [2004] ECR I-837 concerning the obligation imposed on an administrative body to review a final administrative decision contrary to EU law as it has been interpreted subsequently by the Court of Justice. That case establishes that in such circumstances, where national administrative bodies have the power to reopen their decisions, they are required to do so. 44. In our view, however, the principle laid down in Kapferer is not confined to the particular circumstances of that case. It establishes as a matter of general principle that EU law does not require a national court to reopen a final judicial decision, even if failure to do so would make it impossible to remedy an infringement of a provision of EU law. (See Kapferer at paragraph 21: Case C - 2/08 Fallimento Olimpiclub , Judgment of 3 September 2009 at paragraph 23; Case C – 40/08 Asturcom , Judgment of 6 th October 2009 at paragraph 37.) 45. In Kapferer itself the Court of Justice addressed Kühne & Heitz in the following terms: “23 It should be added that the judgment in Kühne & Heitz , to which the national court refers in Question 1(a), is not such as to call into question the foregoing analysis. Even assuming that the principles laid down in that judgment could be transposed into a context which, like that of the main proceedings, relates to a final judicial decision, it should be recalled that that judgment makes the obligation of the body concerned to review a final decision, which would appear to have been adopted in breach of Community law subject, in accordance with Article 10 EC, to the condition, inter alia, that that body should be empowered under national law to reopen that decision (see paragraphs 26 and 28 of that judgment). In this case it is sufficient to note that it is apparent from the reference for a preliminary ruling that that condition has not been satisfied.” The Court in this passage does not accept that the principle in Kühne & Heitz could be transposed into the context of a final judicial decision and does not lend any support to the view that it could be so transposed 46. In any event, we are persuaded by the submissions of Miss Demetriou on behalf of the Secretary of State that the Kapferer principle is not limited in the manner suggested by Lord Pannick. 47. First, the fact that this court has the power to reopen its final decision whereas the Austrian Supreme Court in Kapferer did not is not a material ground for distinguishing the two cases. As Miss Demetriou points out, if EU law required a national court to reopen a final judicial decision so as to remedy any infringement of EU law, the supremacy of EU law would require any inconsistent national rules to be disapplied. In principle this must be the case whether they contain an absolute prohibition against reopening a final decision or not. However, as the Court of Justice has confirmed, EU law does not impose any such requirement. Again, as a matter of principle that must be so whatever the powers available to the court under domestic law. 48. Secondly, Kühne & Heitz was not concerned with a judicial decision but an administrative decision. In Kapferer the court indicated at paragraph 20 that the rationale of the principle it was applying related specifically to judicial decisions i.e. the need to ensure both finality in the law and legal relations and the sound administration of justice. These considerations do not necessarily apply in the case of administrative decisions. 49. Thirdly, the approach advocated by Lord Pannick is impossible to reconcile with the case law of the Court of Justice on the purpose and finality of limitation periods in judicial proceedings. The Court of Justice has upheld national time limits and limitation periods on grounds of legal certainty and the need to ensure finality in decision making, even though the effect has been to preclude enforcement of a EU law right. (See, for example, Case C-261/95 Palmisani [1997] ECR I-4025; Case C-188/95 Fantask A/S v. Industriministeriet (Ehrvervsministeriet) [1997] ECR I-6783.) 50. Fourthly, the argument is inconsistent with the unqualified manner in which the Court has expressed the Kapferer principle in subsequent judgments. Thus in Asturcom, at paragraph 37, the Court took Kapferer as establishing the principle that: “…Community law does not require a national court to disapply domestic rules of procedure conferring finality on a decision even if to do so would make it possible to remedy an infringement of a provision of Community law, regardless of its nature, on the part of the decision at issue…” 51. Accordingly, we consider that the Kapferer principle applies to the present applications. However, as the Court of Justice has made clear in Kapferer and its subsequent decisions, that principle is itself subject to the overriding requirements of the principles of equivalence and effectiveness to which we now turn. The principles of equivalence and effectiveness. 52. In the decentralised system of the EU legal order, rights of individuals under EU law are given effect principally through national courts. In the absence of EU rules on the subject, EU law leaves to the domestic legal system of each Member State the designation of the courts having jurisdiction and the rules governing proceedings intended to secure rights conferred by EU law. However, national law is not given an entirely free hand in such matters. The applicable national rules must comply with two conditions. First, they must not be less favourable than those governing similar domestic actions (the principle of equivalence). (Joined Cases 66/79, 127/79 and 128/79 Amministrazione delle Finanze v. Salumi [1980] ECR1237 at paragraphs 17-21) Secondly, they must not render the exercise of rights conferred by Community law impossible or excessively difficult ( Case C-199/82 Amministrazione delle Finanze v. San Giorgio [1983] ECR 3595) . 53. It is no longer maintained on behalf of the applicants that the principle of equivalence is infringed by the applicable national rules of procedure. The rules of national law which apply here are precisely the same rules which apply where issues of EU law are not in play. 54. The principle of effectiveness results directly from the application of the principles of supremacy and direct effect in EU law. It is for national courts, in application of the principle of co-operation laid down in Article 10 EC, to ensure the legal protection which individuals derive from the direct effect of provisions of EU law. ( Case C-213/89 R v. Secretary of State for Transport, ex parte Factortame Ltd. [1990] ECR I-2433 at paragraph 19.) 55. During the course of argument we invited counsel to identify the EU law right which had been infringed in the present cases. In particular is it a right not to be prosecuted or a power to invoke the consequences of non-compliance with the Directive? Counsel were in substantial agreement that the relevant EU right here is, in each case, the procedural entitlement to invoke the Member State’s failure to comply with Art 8(1) of the Directive which would have the effect of disapplying the legislation against them. As Lord Pannick QC put it, the relevant right is the right to say that the statute is unenforceable. This approach is supported by the relevant judgments of the Court of Justice. (See Case C-159/00 Sapod Audic at paragraph 53; Case C-194/94 CIA Security International SA at paragraph 44.) 56. It would have been open to the applicants to invoke this right before the Magistrates’ Court and the Crown Court respectively. If they had taken the point the prosecution would necessarily have been dismissed in each case. The applicable rules of procedure would have ensured that the statutory provisions were disapplied against these applicants, thereby giving effect to their EU law rights. The inability of the applicants to rely on the point at trial was due, in each case, not to any deficiency in national law making it impossible or excessively difficult to do so but simply to a lack of knowledge of the relevant facts shared with and by the prosecuting authorities, and indeed the relevant courts themselves. The rules of national law applicable at that stage of the proceedings clearly do not infringe the principle of effectiveness: the point was open to be taken. 57. The question then becomes whether the principle of effectiveness requires a national court to disapply the generally applicable rules of national law governing the reopening of final judicial decisions in criminal cases in circumstances where the Defendants were unable to invoke at trial their EU law right and the rule of national law which would have enabled them to do so because of ignorance of the matters which gave rise to the EU law right now said to be engaged. 58. The principle of effectiveness does not require that EU rights will be enforced by national courts in all circumstances. On the contrary, there are clearly limits to the application of the principle, as the reasoning of the Court of Justice and the result in Case C-234/04 Kapferer demonstrate. Failure to comply with many procedural rules in national law, such as those concerned with limitation of actions or time limits for procedural steps, will be likely to restrict, at least to some extent, the right of affected parties to invoke EU rights before national courts. Nevertheless, such procedural rules normally do not infringe the principle of effectiveness because they are justified by the requirement of legal certainty. 59. Furthermore, in Case C-312/93 Peterbroeck v. Belgian State [1995] I- ECR 4599 the Court of Justice emphasised that the principle of effectiveness must be applied by examining the national procedural rule within the context of that national legal system: “ For the purposes of applying those principles, each case which raises the question whether a national procedural provision renders application of Community law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national instances. In the light of that analysis the basic principles of the domestic judicial system, such as protection of the rights of the defence, the principle of legal certainty and the proper conduct of procedure, must, where appropriate, be taken into consideration.” (at paragraph 14) (See also Cases C-430-431/93 Van Schinjndel and Van Vee v. Stichtung Pensioenfonds voor Fysiotherapeuten [1995] ECR I-4 705 at paragraph 19.) 60. National procedural, evidential and substantive rules must, therefore, be considered in the light of the domestic judicial system as a whole when determining whether they make it impossible or excessively difficult in practice to exercise EU law rights. The leading authorities which state the principles of national law applicable in analogous situations have been referred to in an earlier section of this judgment. The essential rationales for rules limiting the reopening of final judicial decisions in criminal cases are considerations of legal finality and fairness. Thus in R v Cottrell, R v Fletcher [2008] 1 Cr. App. R. 7 the court identified “a continuing public imperative that so far as possible there should be finality and certainty in the administration of criminal justice”. Furthermore, in that case the court adopted the explanation of Murray C.J. sitting in the Supreme Court of Ireland in A v Governor of Arbour Hill Prison that unqualified retroactivity could be a denial of justice to the victims of crime and offend against fundamental and just interests of society. Moreover, the rules of national law in play here are not absolute or inflexible. They permit final convictions to be reopened where substantial injustice would otherwise be done. However, for the reasons set out earlier in this judgment, we do not consider that a refusal to reopen the convictions in the present cases would result in substantial injustice. 61. Consequently, we consider that when the issue is addressed at this general level of the operation of the national rules, having regard to their intrinsic nature, aim and effect, those rules do not infringe the principle of effectiveness. 62. However, when addressing the principle of effectiveness, it is also necessary to consider the application of the national procedural rules to the particular facts of the cases before us, when weighed against the aim and importance of the Community measure in question. 63. Here, Lord Pannick submits that the applicants did not know, nor was there any public record from which they could have known, of the failure of the Government to notify the legislation to the Commission. There is no evidence before us to the contrary and for present purposes we consider it right to proceed on that basis. (We were told, during the hearing that today all notifications of measures to the Commission pursuant to the Directive are displayed on a website. However, there is no evidence to suggest that that was the case in 2004 and 2008 when these applicants respectively faced prosecution.) Accordingly, Lord Pannick submits, there was no practical possibility of the point being taken at trial and the principle of effectiveness requires that this court should permit the point to be taken now. 64. We consider that there is a practical answer to the applicants’ submission. The need to notify the national measure in compliance with the Directive was a point which it was open to anyone to take. The nature of the provisions of the 1984 Act and their possible effect on free movement of goods were apparent on their face. No further factual knowledge was required to enable the point to be taken that the national measure required to be notified in conformity with Article 8 of the Directive. The point was there to be taken. In this regard we note that, as Miss Demetriou points out, in a number of the reported cases defendants have taken a point on non-notification when first prosecuted. Once the point was taken, it would have been open to the applicants’ legal advisers to raise with the appropriate government department the question whether notification had taken place and the issue as to whether notification was required could then have been litigated. Indeed it is not unknown for points relating to the free movement of goods to be taken in prosecutions for the unlawful distribution of pornography. 65. Having regard to all these considerations, we do not consider that the national rules concerning leave to appeal out of time or permission to re-open a final decision or their application in the particular circumstances of these cases have the effect of making it virtually impossible or excessively difficult for an individual to rely on the right conferred by EU law. Furthermore, in the particular circumstances of this case the application of the national procedural rule is not disproportionate when its rationale is balanced against the object and importance of the EU right in issue. The national rules in play here do not render ineffective the protection of Community rights. 66. A very recent decision of the Court of Justice, drawn to our attention by Miss Demetriou, supports this conclusion. Case C-542/08 Barth v. Bundesministerium für Wissenschaft und Forschung (Judgment of 15 April 2010) concerned long service increments payable to university professors. Professor Barth had been employed as a professor at Frankfurt am Main (Germany) from 1975 until 1987 when he was appointed as a professor at Vienna (Austria). The relevant Austrian legislation had expressly provided that the long service increment was payable to those who had completed 15 years service as a professor in an Austrian university. Accordingly, Professor Barth did not receive that increment and had made no application to receive it. In Case C-224/01 Köbler [2003] ECR I-10239 the Court of Justice held that this infringed Community law. As a result, the Austrian legislation was amended in 2004 to permit service in any university in a State which was then in the European Union to count towards long service. Professor Barth applied for the first time for a long service award and was found eligible. However, his award took effect for remuneration purposes only from 2000 because of a statutory rule that an entitlement to benefits shall be time barred if no claim to that entitlement is made within three years of the date when the services which gave rise to the entitlement were effected. 67. The Court of Justice held that reliance on the limitation period did not infringe the principle of equivalence or the principle of effectiveness. “28 As regards the principle of effectiveness, the Court has stated that it is compatible with European Union law to lay down reasonable time-limits for bringing proceedings in the interests of legal certainty which protects both the individual and the authorities concerned. Such time-limits are not liable to make it in practice impossible or excessively difficult to exercise the rights conferred by European Union law. In that regard, a national limitation period of three years appears to be reasonable (see, to that effect, Aprile , paragraph 19, and Case C-445/06 Danske Slagterier [2009] ECR I-0000, paragraph 32 and case-law cited). 29 Therefore, in the absence of particular circumstances brought to the attention of the Court, a limitation rule such as that applied against the applicant in the main proceedings, providing for a three-year limitation period, which may be extended by nine months, cannot be regarded as being contrary to the principle of effectiveness." 68. The principle of effectiveness was not infringed by the application of the limitation period notwithstanding the fact that Professor Barth had suffered loss as a result of the earlier conduct of the Austrian Government in breach of EU law. In particular, Professor Barth had relied on the deterrent effect of the earlier express statutory provision: “31 The applicant in the main proceedings and the Commission observe, however, that the Austrian legislature had excluded, by an unambiguous legislative provision, the taking into account of periods of employment completed in universities of Member States other than the Republic of Austria. 32 They argue that university professors who completed periods of service in such universities had to expect, in those circumstances, that their applications for the recognition of those periods for the purposes of the special length-of-service increment would be unsuccessful. The conduct of the Austrian legislature was therefore such as to deter university professors who were theoretically entitled to that increment from making in due time the application necessary for the right to be implemented.” 69. The Court of Justice declined to be influenced by this consideration: 33 However, it should be noted that European Union Law does not prohibit a Member State from relying on a limitation period to resist an application for a special length-of-service increment, such as that at issue in the main proceedings, which, in breach of provisions of European Union law, was not granted, even if that Member State has not amended the national rules in order to render them compatible with those provisions. The situation will be different only if the conduct of the national authorities, in conjunction with the existence of a limitation period, had the effect of depriving a person of any opportunity of enforcing his rights before the national courts (see, to that effect, Aprile , paragraphs 43 and 45). 34 That is not so in the case in the main proceedings. 70. In the two cases now before us it can fairly be said that the Department for Culture, Media and Sport and its predecessors failed to alert the public to the fact that it had not notified the relevant measures to the Commission in accordance with the Directive. However, that falls far short of the conduct of the Austrian Government in Barth . Although that did not amount to a positive misrepresentation (paragraph 36) it had constituted a positive obstacle to the enforcement of EU rights. In any event it cannot be said that the conduct of the Department in the present cases had the effect of depriving these applicants of any opportunity of enforcing their rights before the national courts. Their inability to do so arose simply from their ignorance in circumstances where the Department was itself unaware of its breach of the Directive and was therefore under no duty to draw the matter to their attention. 71. Finally, in this regard, we would make two further observations about the decision in Barth . First, it is correct, as the Court of Justice pointed out (at paragraph 35 of its judgment), that the application of the limitation period did not altogether deprive Professor Barth of the right to obtain the increments which in breach of EU law had been denied to him. He could still claim for the 3 years within the limitation period and prospectively. However, that does not affect the principle that a national procedural rule was successfully invoked in such a way as to defeat an entitlement under Community law in respect of the earlier period. Secondly, to the extent that the object and importance of the EU right in issue is a relevant consideration, the importance of the EU right in play in Barth (free movement of workers) is certainly no less than that in the applications with which we are concerned (free movement of goods). 72. For these reasons, we conclude that the application of the established rules of national procedure would not infringe the principle of effectiveness. ECHR. 73. On behalf of the applicants it is submitted that a consequence of the failure to notify the provisions of the 1984 Act in conformity with the Directive is that their convictions and punishment infringe Article 7 ECHR which provides that no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Furthermore, they allege that the convictions and punishment infringe Article 10 ECHR because the resulting restriction on their freedom of expression cannot be justified on grounds of the protection of morals or the protection of the rights and freedoms of others under Article 10(2) because they are not “prescribed by law”. They contend that the applicants’ convictions are invalid in law because they were based on a “law” that was not enforceable against them. 74. In response, the respondents and the Secretary of State rely on the fact that the failure to notify the provisions of the 1984 Act does not result in its invalidity or nullity. The only obligation on a national court arising from the Directive is to disapply incompatible legislation in the event that the Directive is relied upon by a party to proceedings before it. However, the applicants contend that this is an unduly formalistic approach to the meaning of the term “law” in the ECHR and that the correct interpretation of the term within the ECHR is one that gives effect to the applicants’ right not to be convicted under a law that was unenforceable against them. 75. In this regard the applicants submit that it is appropriate to give a purposive interpretation to Article 7 and they rely in particular on the following passages in the judgment of the European Court of Human Rights in Kafkaris v. Cyprus , Judgment of 12 February 2008, (2009) 49 EHRR 35 : “ [t]he guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection … It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment.” (at paragraph 138) “When speaking of “law” Article 7 alludes to the very same concept as that to which the convention refers elsewhere when using that term, a concept which comprises statute law as well as case-law (see, mutatis mutandis, Sunday Times v. United Kingdom , Judgment of 26 April 1979 …). In this connection, the Court has always understood the term “law” in its “substantive” sense, not its “formal” one. It has thus included both enactments of lower rank than statutes and unwritten law … In sum, the “law” is the provision in force as the competent courts have interpreted it” (at paragraph 140) “[the Court] must have regard to the domestic law as a whole and the way it was applied at the material time” (at paragraph 146) 76. The applicants submit that the 1984 Act cannot be said to have been a “provision in force” at the time of the applicants’ convictions. Under EU law and therefore under domestic law the provision was unenforceable against the applicants. The State was not entitled to prosecute them under a law that was unenforceable, particularly when this unenforceability had not been disclosed to the applicant. 77. The passages from Kafkaris cited above demonstrate that the purpose of the requirement under Article 7 that a conviction be made under a “law” is to provide effective safeguards against arbitrary prosecution, conviction and punishment. From this the Court draws the following consequences: “Accordingly, it embodies, in general terms the principle that only the law can define a crime and prescribe a penalty. While it prohibits in particular extending the scope of existing offences to acts which previously were not criminal offences, it also lays down the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy.” ( Kafkaris at paragraph 139) A further consequence which has been drawn by the Court is that: “an offence must be clearly defined in law. This condition is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the court’s interpretation of it, what acts and omissions will make him liable.” ( Kokkinakis v. Greece (1993) 17 EHRR 397 at paragraph 52.) 78. It was these requirements of Article 7 which were analysed in Kafkaris . The applicant claimed that the unforeseeable prolongation of his term of imprisonment as a result of the repeal of the Prison Regulations and the retroactive application of new legislative provisions violated Article 7. The Court considered that it needed to determine what the penalty of life imprisonment actually entailed under the domestic law at the material time. “The Court must, in particular, ascertain whether the text of the law, read in the light of the accompanying interpretative case law, satisfied the requirements of accessibility and foreseeability. In doing so it must have regard to the domestic law as a whole and the way it was applied at the material time.” (at paragraph 146) 79. None of these essential elements has been infringed in the present cases. In particular, the law in question was both accessible and foreseeable. The conduct prohibited by the 1984 Act was clearly defined and the applicants have admitted their infringing conduct. Moreover, the fact that it was not known until 2009 that it could not be enforced does not, in our view, make it arbitrary. 80. We do not read the passages from Kafkaris relied upon by the applicants as supporting the view that enforceability is an essential element of the concept of law in the European Convention on Human Rights. The references in the passages cited above to the law being in force and to law in its substantive sense as opposed to its formal sense are not, in our judgment, intended to refer to any concept of enforceability. Nor have any other authorities been drawn to our attention which support this proposition. Moreover, contrary to the submission of Lord Pannick, we do not consider that the fact that the statute could not be enforced against the applicants entitled them to defy it. 81. The judgment of the European Court of Human Rights in Kafkaris at paragraph 140, cited above, makes clear that the concept of “law” in Article 10 is the same as that in Article 7. Accordingly the same considerations apply to the applicants’ submissions on Article 10. 82. Moreover, we note that the jurisprudence of the European Court of Human Rights does not impose upon Contracting States an obligation to undo all the consequences of a national law which is later held to be incompatible with the Convention. Rather, it acknowledges that the principle of legal certainty dispenses with any such need. 83. Thus, in Marckx v Belgium [1979] 2 EHRR 330, a case concerning a Belgian law which deprived children born out of wedlock of inheritance rights, the European Court of Human Rights stated at para 58: “The European Court of Human Rights interprets the Convention in the light of present-day conditions but it is not unaware that differences in treatment between “illegitimate” and “legitimate” children, for example in the matter of patrimonial rights, were for many years regarded as permissible and normal in a large number of Contracting States … Evolution towards equality has been slow and reliance on the Convention to accelerate this evolution was apparently contemplated at a rather late stage … Having regard to all these circumstances, the principle of legal certainty, which is necessarily inherent in the law of the Convention as in Community Law, dispenses the Belgian State from re-opening legal acts or situations that antedate the delivery of the present judgment. Moreover, a similar solution is found in certain Contracting States having a constitutional court: their public law limits the retroactive effect of those decisions of that court that annul legislation.” 84. This approach was followed by the European Court of Human Rights in the later case of Walden v Liechtenstein (Decision of 16 March 2000, No. 33916/96) which was concerned with sexual discrimination in relation to old age pensions. The question was whether the domestic court had acted incompatibly with the Convention when it did not annul the discriminatory legislation with retroactive effect, but made only a declaratory order, so as to allow time for amending legislation to be introduced. The Court stated: “…the principle of legal certainty, which is necessarily inherent in the law of the Convention, may dispense States from questioning legal acts or situations that ante-date judgments of the court declaring domestic legislation incompatible with the Convention. The same considerations apply where a constitutional court annuls domestic legislation as being unconstitutional. … Moreover, it has also been accepted, in view of the principle of legal certainty, that a constitutional court may set a time-limit for the legislator to enact new legislation with the effect that an unconstitutional provision remains applicable for a transitional period.” 85. This approach was adopted by the Supreme Court of Ireland in A v Governor of Arbour Hill Prison [2006] IESC 45. A had pleaded guilty to a statutory offence. Two years later the Supreme Court had declared that the statutory provision was inconsistent with the provision of the Constitution of Ireland. The Supreme Court rejected an argument that the conviction was a nullity. It undertook what this court described in R v Cottrell, R v Fletcher [2008] 1 Cr. App. R. 7 as “a comprehensive analysis of both common law and civil justice systems, which demonstrated the effective universality of the problem.” Murray C.J. observed: “Absolute retroactivity based solely on the notion of an Act being void ab initio so as to render any previous final judicial decision null would lead the Constitution to have dysfunctional effects in the administration of justice…the application [of such] a principle…in the field of criminal law would render null and of no effect final verdicts or decisions affected by an Act which at the time had been presumed or acknowledged to be constitutional and otherwise had been fairly tried. Such unqualified retroactivity would be a denial of justice to the victims of crime and offend against fundamental and just interests of society.” (at p. 18). “In a criminal prosecution where the State relies in good faith on a statute in force at the time and the accused does not seek to impugn the bringing or conduct of the prosecution, on any ground that may in law be open him or her, including the constitutionality of the statute, before the case reaches finality on appeal or otherwise, then the final decision in the case must be deemed to be and to remain lawful notwithstanding any subsequent ruling that the statute, or a provision, is unconstitutional. That is the general principle. I do not exclude…some extreme feature of an individual case, [which] might require, for wholly exceptional reasons related to some fundamental unfairness amounting to a denial of justice…” (At p. 29). 86. Lord Pannick submits that these authorities have no application to the present case because there has been no change in the understanding or interpretation of any legal rule. Rather, he submits, the only change in circumstances has been the Government’s admission, and the applicants’ subsequent discovery, that the law under which they were convicted was at all times unenforceable against them. We do not understand Marckx to be limited in the manner suggested by Lord Pannick. We consider that its rationale applies with equal force to the present circumstances where the parties and the court proceeded on the erroneous basis that the statute – enacted and clear and unequivocal in its provisions, and contravened by the applicants at a time when they knew or had every reason to believe that they were contravening it – was enforceable against the applicants. Conclusion 87. In our judgment the convictions remain safe convictions. (1) Applying principles of national law, the convictions in these cases have not given rise to any substantial injustice and therefore there are no grounds to set aside the convictions. (2) There is no obligation on this court, either under EU law or under the European Convention on Human Rights, as given effect by the Human Rights Act 1998 , to set aside the convictions. 88. In view of these conclusions it is not strictly necessary to address the power of the court to re-open a final determination of an appeal to the Divisional Court or to extend time for appealing against conviction to the Court of Appeal Criminal Division. The applications could simply be refused. However, the difficulty is readily identified. The arguments advanced on behalf of the applicants merited serious attention, raising as they did issues of pure law. If the applications are dismissed the opportunity for the Supreme Court to decide whether the issue justifies its attention would be denied. 89. Our answer to the question whether the failure by Her Majesty’s Government to give an appropriate notification under the Directive has, as a result of the application of EU law and the Convention created any injustice is that it did not. Nevertheless for the reasons we have given, and consistently with the approach of this court in R v Benjafield at paragraph 46, we are satisfied that the issue of law raised by the applicants is of general interest, and that it would therefore be inappropriate to refuse the applications and so deprive the applicants of the opportunity to interest the Supreme Court in the issue. 90. In these circumstances, the respective applications for leave to re-open the decision of the Divisional Court and to extend time for appealing to the Court of Appeal Criminal Division will be granted, but the consequent appeals will be dismissed. We shall certify an appropriately drafted question for the consideration of the Supreme Court. If that court were to grant leave to appeal and thereafter resolve the issue favourably to the appellants it would not automatically follow that any necessary time extensions would be granted in other cases.

2010_06_29-2432.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/1486/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/1486

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[2010] EWCA Crim 1230

EWCA_Crim_1230

2010-05-20

crown_court

Neutral Citation Number: [2010] EWCA Crim 1230 Case No: 200804501 D3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 20 May 2010 B e f o r e : LORD JUSTICE AIKENS MR JUSTICE ROYCE HIS HONOUR JUDGE WADSWORTH QC (Sitting as a Judge of the CACD) __________________ R E G I N A v NICOLAE LUCIAN POPESCU __________________ Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Flee

Neutral Citation Number: [2010] EWCA Crim 1230 Case No: 200804501 D3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 20 May 2010 B e f o r e : LORD JUSTICE AIKENS MR JUSTICE ROYCE HIS HONOUR JUDGE WADSWORTH QC (Sitting as a Judge of the CACD) __________________ R E G I N A v NICOLAE LUCIAN POPESCU __________________ 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) __________________ Miss A Mousley appeared on behalf of the Appellant Mr S Wild appeared on behalf of the Crown __________________ J U D G M E N T 1. LORD JUSTICE AIKENS: This is an appeal against conviction with the leave of the full court. There is also a renewed application for leave to appeal against sentence, which we will deal with if that becomes relevant. 2. The appellant, who is now aged 27, is a Romanian national. He was tried with three other young men, also Romanian, before HHJ King and a jury in the Crown Court at Snaresbrook in June and July 2009 on 18 counts of rape or aiding and abetting rape. The appellant was convicted of five counts of rape and five counts of aiding and abetting rape. Two co-accused were convicted of two counts of rape and six counts of aiding and abetting rape. The other co-accused was convicted of one count of rape and seven counts of aiding and abetting rape. 3. The appellant was sentenced on 5 September 2009 to 11 years' imprisonment on each count on which he was convicted, all sentences to run concurrently the one with the other. He was given credit for 305 days spent on remand. He was also recommended for deportation. 4. The facts giving rise to the case are as follows. The complainant, a young Romanian woman whom we shall refer to as AR, met the appellant in London on a bus. They started to go out together. On Friday 2 November 2007, after the pair had known one another for about three weeks, the complainant went to the appellant's home in East London. The appellant, his three co-accused and several others were there and there was a party atmosphere. The accused all drank alcohol, but the complainant did not. After most had left the party, the appellant made advances to the complainant and some kissing and petting took place. The appellant wanted the complainant to have sex with him, but she was reluctant. He asked her why. She said that there were several reasons; the first was because she wanted to know him better. He pressed her on this issue, and then said that she was worried about HIV. This incensed the appellant, who regarded the statement as an accusation that he himself had HIV. He swore at the complainant, threw a beer can at her and the atmosphere changed. 5. A gang mentality appears to have developed and the young men present said that the complainant would have to permit the appellant to have sex with her before she would be allowed to leave. All of them took part in pulling off her clothes, and the appellant tore off the complainant's knickers. The accused together said things like, "Don't make it difficult for us or we will become real violent". The appellant partially penetrated her. This first part of the incident was photographed by one co-accused on his phone camera. 6. There followed several vaginal and oral rapes on the complainant by all of the accused. Eventually the accused all went to bed and the complainant managed to gather her things and she left. She phoned the police on 999 as soon as she had left the flat. 7. The appellant was interviewed on 3 and 4 November 2007. On the second day he made what was tantamount to a confession. He conceded that AR was unlikely to have consented to the sexual intercourse with him or the other accused. 8. At the trial the prosecution relied principally on the evidence of the complainant. She had been interviewed twice by PC Peter Humphreys at the Interview Suite of Plaistow Police Station on 3 and 4 November 2007. AR gave her interviews in English. The transcripts of the two interviews run to 62 and 76 pages respectively. It is clear from the transcripts that AR's English is of a reasonable standard, although it is also clear from the transcripts that she searched now and again for words and phrases. We have not seen the video, but we are told by some counsel that AR had an accent which was quite strong. There are undoubtedly some errors of transcription from the recording to the transcripts, which were corrected at some stage in the proceedings. 9. AR gave her evidence in chief in the form of these interviews via a video. They are known as "Achieving Best Evidence" or ABE interviews. They are admissible under section 27 of the Youth Justice, Police and Criminal Evidence Act 1999, provided that an application has been made for "special measures" pursuant to that Act and Part 29 of the Criminal Procedure Rules. There is no doubt in this case that AR would fall within the ambit of section 17(4) of the 1999 Act and so be eligible for "special measures" directions. The application for "special measures" was made by the Crown on 7 January 2008. There was, we understand, no objection to AR's evidence in chief being given via the video of the ABE interviews. 10. The interview videos were played to the jury on 26 June 2008, that is three days after the trial had started. At some stage during the evidence of AR the jury were given copies of the transcripts of her two ABE interviews. All counsel involved in the trial have been asked by this court to state, in writing, their recollection of the reason why and when the jury were given the transcripts. There is no consensus on precisely when the jury were given the transcripts. It may be that they were given them so that they could better follow the evidence in chief of AR, because she spoke in English with a pronounced Romanian accent. It may be that the transcripts were only given to the jury when counsel for the appellant started his cross-examination in order that he could more easily direct his cross-examination. 11. After the interviews had been played, counsel for the prosecution asked on 30 June 2008 for leave to put further questions in chief to the witness. Leave was granted. 12. Counsel for the appellant, not Miss Mousley who appears today, then cross-examined AR. He used the transcripts to provide references for his questions. The cross-examination lasted until lunchtime on 1 July, and numerous passages in the transcripts of the ABE interviews were drawn to the attention of AR in the course of the cross-examination. Thereafter counsel for the other accused also cross-examined AR, some doing so by reference to the transcripts. In the middle of this exercise the evidence of Dr Penny Robshaw, a registrar specialising in obstetrics and gynaecology who had examined AR, gave her evidence. After the evidence of AR had finished, other witnesses were called by the prosecution and then the accused gave their evidence. The evidence finished on 11 July 2008. 13. None of the counsel in the trial can recall the judge making any order for the transcripts of the AB evidence to be retrieved from the jury once AR had finished her evidence, or at any time thereafter during the evidence. The judge sought some help from counsel on the law after the evidence had been completed. Therefore speeches only began on 14 July 2008. It appears that there was no discussion at that stage about the ABE interview transcripts. During his speech, counsel for the appellant drew the attention of the jury to many passages in the transcripts of the ABE interviews. Other counsel for the co-accused also did so, and used various passages of the transcripts as the basis for submissions that they made to the jury. 14. The judge began his summing-up on 15 July 2008. We are quite satisfied that the members of the jury had the ABE interview transcripts in their possession at the time of counsel's speeches and throughout the judge's summing-up. The judge refers to the ABE interview transcripts on at least ten occasions in the early part of his summing-up, where he is dealing with each of the 18 counts and reminding the jury of what (on the prosecution's case and AR's evidence) was comprised in each count. Then at page 58E of the transcript, before the judge turns to his summary of the evidence of AR, the judge specifically states this: "As I recollect it - again with counsel's agreement - you have retained the ABE interview ... and I have referred to them with page references in the course of my summing up so far." 15. Then the judge went on to make this statement to the jury: "Please, members of the jury -- and I implore you to do this as I have every confidence that you will -- do not regard that transcript in isolation to other evidence. You must consider that transcript of [AR's] evidence in the context of not only her evidence as a whole, but the whole of the evidence in the trial. That would be the right, fair and proper way to go about it. That transcript of her video interview is but part of the evidence in the case and that is the way in which you should see it, that it is part, but only part, of the evidence in the case." 16. The judge then reviewed the evidence of AR, but without making any references to the transcripts of the ABE interviews at all. There are substantial references to both the content of her interviews and the extensive cross-examination to which AR had been subjected by counsel for the accused. 17. The judge completed his summing-up on 17 July 2008. The jury then retired. They returned their verdicts on the 18 counts on the afternoon of Friday 18 July 2008. All the verdicts were unanimous. 18. There is some doubt, even now, as to whether all the jury did actually retire with the ABE interviews. We are satisfied for the purposes of this appeal that they did. 19. The single ground of appeal is that the verdicts against this appellant are unsafe because the judge permitted the jury to keep their copies of the ABE interviews throughout the trial and then to retire with them. There was, apparently, no discussion at any stage about the propriety of this course. However, at least it can be said that all counsel must have been aware of the fact that the jury had kept their copies until the end of the summing-up and had been allowed to retire with the transcripts. 20. As part of the submission of Miss Mousley, it is also said that the judge failed to give any proper direction to the jury as to why they were being permitted to retire with the transcripts. It is accepted that the judge made some remarks, but it is submitted that that was not nearly strong or pointed enough. Further, the judge is criticised for failing properly to direct the jury as to the use to which they could properly put the transcripts. 21. The submission of Miss Mousley on behalf of the appellant is that all these failings constitute such a material procedural irregularity in respect of part of the trial that was so important, that the trial for the appellant was unfair and that accordingly the verdicts against him cannot be regarded as safe. In that regard, Miss Mousley refers us to the decision of the Privy Council in Randall v the Queen [2002] 2 Cr App R 17 at paragraph 28 per Lord Bingham of Cornhill. 22. As we have already noted, section 27(1) of the YJPCEA 1999 grants the court the power to admit a video recording of an interview as evidence in chief of a witness in respect of whom a "special measures" direction has been given. But neither that section nor the Criminal Evidence Rules deal with the issue of whether the jury can or should be given a transcript of the interview video, or, if it can, in what circumstances and when and why the jury can keep such a transcript after the evidence has been given. 23. However, in R v Welstead [1996] 1 Cr App R 59 , this court dealt with the question of whether it was right for a judge to permit a jury to have a transcript of an ABE interview during the period when the interview was being played as evidence in chief. Evans LJ, giving the judgment of the court, reviewed a number of cases, in particular R v Rawlings and Broadbent [1995] 1 WLR 178, where the issue was whether a jury could view a video again after retiring. Evans LJ also referred to R v Coshall , The Times, 17 February 1995, which is also a decision of this court. That case dealt with the very issue that has arisen in this case. 24. In Welstead , this court held that the judge was entitled to allow the jury to have copies of the transcript during the evidence in chief: see page 69. However, the court said that certain circumstances had to be met before that could be done. Those conditions were set out in Evans LJ judgment at page 69 as follows: "First, that the transcripts would in fact be likely to assist [the jury] in following the evidence of the witness in question. Secondly, that [the judge] made it clear to them that the transcripts were made available to [the jury] only for that limited purpose, and that they should concentrate primarily on the oral evidence. The transcripts were not the child's evidence in the case. Thirdly, that [the judge] gave them such directions, both at the time and in the summing-up, as would be likely to be effective safeguards against the risk of disproportionate weight being given to the transcripts, which arises when the jury are allowed to take them into their retiring room and which applies to a limited extent to these circumstances also." 25. Those conditions reflect the concern that this court has had about permitting a jury to have transcripts of a witness' evidence in chief. The concern is that the prosecution might thereby obtain a procedural and evidential advantage, which would mean that the trial was unfairly weighted against the defendant. 26. This concern exercised Lord Lane CJ over the replay of video recordings in the case of R v Rawlings and Broadbent . The Lord Chief Justice in that case emphasised the need to guard against unfairness deriving from the replay of video recordings after the jury had retired, because it was only the evidence in chief of the witness concerned that was portrayed in the video recording. Lord Lane said that the replay after retirement should only be permitted in court with the judge, counsel and the defendant present. Further, he said that the judge should direct the jury to guard against the risk of giving the evidence in chief shown on the video disproportionate weight, and should bear well in mind the other evidence in the case. Lastly, Lord Lane CJ said that if the video was replayed, the judge should remind the jury of the cross-examination and re-examination of the witness from his notes. 27. In R v Coshall , the trial judge had ruled that the jury could have a transcript of the video recording during the complainant's evidence and the jury retained the transcript throughout the remainder of the trial, including their retirement. It appears that the evidence in chief on the video constituted virtually the whole of the prosecution case. 28. Unfortunately, we do not have the transcript of the judgment given in the case of Coshall , which was delivered by Pill LJ. A sizeable extract of the judgment in Coshall was quoted in Welstead , and we think we should quote from the case of Welstead (page 67) where the relevant parts of Coshall are set out: "The court [in Coshall ] held that the need to maintain a fair balance 'exists equally upon the supply to the jury of the transcript of the video tape' as when a video tape is to be replayed to the jury. Unless the defence consented, 'it appears to us to follow from the decision in Rawlings and Broadbent that it will not generally be appropriate for the jury to be supplied with a transcript. We do not intend in this judgment to attempt to predict all possible situations and appropriate reactions to them.' There was a serious risk in that case of disproportionate weight being attached to one part of the evidence, namely, the complainant's evidence in chief, if the jury had the transcript with them when they retired." 29. In its summary of the principles in Welstead , the court said at point 4, on page 68 of the report: "If a transcript of the video-recorded interview is available, the jury should not normally be permitted to take it with them when they retire, unless the defence consents: Coshall . This is because there is no effective safeguard in such circumstances against the jury giving that part of the child's evidence disproportionate weight." 30. In the subsequent case of R v Morris [1998] Crim LR 416, the jury was permitted to retire with the transcript of the video evidence with the defence's consent. On appeal, the conviction was quashed because the judge had given no warning as to prevent the disproportionate weight being given to the transcript. It was held in that case that: "even in cases where there had been consent by the defence, or, as in the present case, the transcript had been introduced in the first instance at the suggestion of the defence, it was incumbent on the judge to give warnings to the jury which would prevent their giving disproportionate weight to the transcript; that consideration should always be given to what should happen once the evidence had come to an end and it was rarely that the jury should be permitted to retire with the transcript of the evidence and then only if they had received an appropriate warning; and that, the judge having summed up the evidence of the complainant much more fully than that of the defence without having given the jury the appropriate warnings, the convictions were unsafe." 31. So far as counsel have been able to discover, there are no more modern cases dealing with this issue since the "special measures" regime has been in force. 32. It is submitted on behalf of the appellant that, in this case, the evidence of the complainant was central to the case. We agree. It is also submitted that her credibility was central to the case. We agree. It is therefore submitted that the jury should not have been allowed to retire with the transcripts of her ABE interviews, which amounted to he her evidence in chief, even if there was no objection from defence counsel at the time. Alternatively it is submitted that at least the jury should have been given a clear explanation from the judge as to why they were to keep the transcripts upon retirement, and the jury should have been given clear warnings by the judge against giving the transcripts disproportionate weight. 33. It is said that the jury should have been warned also not to use the transcripts for any other purpose than to remind them of the evidence in chief of the complainant. It is said that if there was a possibility that the transcripts were to be retained by the jury upon retirement, then that should be discussed with counsel before speeches and the summing-up, and the judge should have taken care to ensure that the cross-examination or examination of the complainant or any other relevant witnesses was summed up fully to the jury. 34. The practices and safeguards which have been developed in relation to the use of transcripts by the jury are all founded on one central principle, which is the right of the defendant in a criminal trial to have a fair trial, with no unfair procedural or evidential advantage being given to the prosecution. If this right to a fair trial has been infringed, then the verdict cannot be regarded as safe, however strong the case is against the accused: see Randall v the Queen [2002] Cr App R 17 at page 28 per Lord Bingham of Cornhill. The question in this case is whether that right was infringed so as to render the verdicts against the appellant unsafe. 35. We venture to suggest some general comments before coming to the particular facts of this case. First, the general rule must be that great care must be taken before a jury is given transcripts of an ABE interview at all, even whilst the video is being shown. It should only be given to the jury after there has been discussion of the issue between the judge and counsel in the absence of the jury, and it should only be done if there is a very good reason for it, eg the evidence would be difficult to follow on the screen or the audio quality is very poor. 36. Secondly, if the transcripts are given to the jury, we suggest, first, that the judge must warn the jury then and there to take care to examine the video as it is shown, not least because of the importance of the demeanour of the witness in giving evidence. Thirdly, the transcript should, save perhaps in very exceptional circumstances, be withdrawn from the jury once the ABE video evidence in chief has been given. Again, if the jury is to retain the transcripts during the cross-examination, this possibility must be given positive thought before it is done, and should, if possible, be discussed in the jury's absence before the start of the evidence in chief, if practicable. If the jury are to retain the transcripts, the reasons why the jury are being permitted to do so should be explained to them. 37. Fourthly, if the transcripts are retained during cross-examination, then they should be recovered once the witness had finished his or her evidence. The general rule must be that the jury should not thereafter have the transcripts again. 38. Fifthly however, it must be for a very good reason. It must be discussed with counsel in the jury's absence and the judge should give a ruling on it. Sixthly, the jury should not, except perhaps in exceptional circumstances, be permitted to retire with the transcripts. Those exceptional circumstances will usually only be present if the defence positively wants the jury to have the transcript and the judge is satisfied that there are very good reasons why the jury should retire with the transcripts. 39. If the jury is to do so, it must again be the subject of discussions with counsel and a specific ruling from the judge. The judge must explain to the jury, in the course of his summing-up, why they are being allowed the transcripts and the limited use to which they must put them, viz. to aid them to understand the evidence in chief of the relevant witness and, if it be the case, that the defence wants the jury to retain the transcripts. If this course is adopted, then it is incumbent upon the judge to ensure that the cross-examination and re-examination of the witness is fully summed up to the jury, and the jury must be specifically reminded that they must take all that evidence into consideration in their deliberations, and must not be over-reliant upon the evidence in chief. 40. We suspect that the procedural course of events in this case are most unusual. We hope so. Having examined all of the material put before us, we are satisfied that the appellant's counsel wished to use the transcript for the purpose of making points that were thought to be advantageous to the appellant, both in cross-examination of AR and in his closing speech. It is also clear that other counsel took the same view. It is clear that counsel for the appellant used references in the transcripts to make his points, both in cross-examination and in his closing speech, and that those points would have been difficult if not impossible for the jury to follow if they did not have the transcripts before them, either at the relevant point in cross-examination or in the closing speech of counsel, or indeed when they retired. 41. Therefore, we are satisfied that, in practice, the jury had the transcripts principally because the appellant and his co-accused wanted the jury to have them. That is why no one made any complaint about the jury having the transcripts at any stage. The judge used the transcripts in the course of his summing up only to identify precisely the points in the evidence in chief of AR in relation to each of the 18 counts that the jury had to deal with on retirement. AR's evidence was effectively the prosecution case. The judge undertook this exercise without objection from any defendant's counsel. The judge did give the jury a careful warning about not looking at that transcript in isolation from other evidence. 42. We are also satisfied that the judge was also careful to give a full and proper summary of the cross-examination and re-examination of AR. He also summarised the evidence of all the accused's responses to AR's evidence. 43. The judge did not expressly consider the issue of whether it was right for the jury to retire with the transcripts, although everyone must have known that was going to happen, and it did happen and no one objected. Despite that fact, and despite the lack of a particular ruling on that issue by the judge, when we consider the particular facts of this case overall, we are satisfied that the prosecution did not have any unfair procedural or evidential advantage in this case. We are therefore satisfied that the appellant did have a fair trial. 44. We have also to make the obvious remark that the case against this appellant was very strong. Accordingly, we conclude that the verdicts are safe. This appeal against conviction must be dismissed. (Submissions in relation to sentence follow) 45. LORD JUSTICE AIKENS: The application for leave to appeal against sentence has been referred to the full court by the registrar. 46. The applicant was sentenced after a trial to 11 years' imprisonment as a determinate sentence. The judge, in passing sentence after the trial, said that the applicant must bear the greatest responsibility in the case. The judge said that he had introduced AR into the company of his co-accused, and that the applicant had, in the judge's words "given her over to them and then invited them to do what they would with her, and they did". 47. The judge continued his sentencing remarks by saying: "You brutalised that young woman, and for that reason and the reasons I have already explained you must take the lion's share of responsibility." On the basis of that, the 11-year sentence was passed. 48. On behalf of the applicant, Miss Mousley submits that, when one looks at the guidelines in the Sentencing Guidelines Council's table on the sentences to be given for rape offences, this offence falls within the second category in the table at page 25 of the SGC's report. She submits that the sentencing range falls within six to eleven years' custody. 49. We cannot accept that submission. This was a case in which there was a repeated rape by this applicant of the same victim. Admittedly it was all on one occasion, but it was done in circumstances which were degrading in the worst possible way for this unfortunate young woman. Moreover, it was this appellant who, in the judge's words, "gave over" this unfortunate victim to his co-accused and then invited them to do what they would with her, and they did. 50. In those circumstances, we can see absolutely nothing wrong with the sentence that the judge passed. The application is therefore dismissed. 51. MR WILD: My Lord, may I just mention, your Lordship asked me to try and get Coshall -- 52. LORD JUSTICE AIKENS: I did, but we had no success. 53. MR WILD: I was successful, and the office, I had hoped, would send it through to you. 54. LORD JUSTICE AIKENS: All we got was the same Times report, but no transcript. 55. MR WILD: We got the real thing, but Welstead summarises it spot-on. 56. LORD JUSTICE AIKENS: Indeed, it does. Thank you very much.

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https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/1230/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/1230

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[2023] EWCA Crim 869

EWCA_Crim_869

2023-07-11

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 869 No. 202202372 B2 Royal Courts of Justice Tuesday, 11 July 2023 Before: LORD JUSTICE DINGEMANS MR JUSTICE TURNER HER HONOUR JUDGE MUNRO KC REX V JOSEPH RAYMOND ANNETTE-NORMAN __________ REPORTING RESTRICTIONS APPLY Sexual Offences (Amendment) Act 1992 Computer-aided Transcript prepared from the Stenographic Notes of Opus 2 International Ltd. Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 CACD.ACO@opus2.digital _________ Ms O. Daly appeared on behalf of the Applicant. The Crown were not represented. _________ JUDGMENT HER HONOUR JUDGE MUNRO KC: 1 This is a renewed application for leave to appeal against conviction, leave having been refused by the single judge. 2 The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act . 3 On 22 June 2022, in the Crown Court at Plymouth, the applicant, who was then aged 26, was convicted of two counts of rape (counts 1 and 2). He was acquitted of count 3, another allegation of rape. On 8 September 2022, the applicant was sentenced to concurrent terms of four years less one day’s imprisonment on each count. The Factual Background 4 The then 23-year old applicant and the then 20-year old complainant ("R") first had contact through the Tinder dating website. They then began to talk over Facebook through January 2019. The messages between them had contained highly sexualised content and clearly contemplated that they would at some stage engage in sexual activity. However, they had not met face to face until the date of the alleged offences. In the early hours of 18 March 2019, after both had been drinking, they arranged to meet. The plan was for the applicant to go to R's student accommodation and then to have sex. They met in the common room area, where they engaged in consensual kissing. 5 R invited the applicant up to her room where they continued kissing, got undressed and began to have sexual intercourse. During the initial consensual intercourse the applicant bit R's neck. R told the applicant that she did not like it and asked him to stop. The applicant said that he would but he then bit the front of her neck and pushed down on her chest. She asked him to stop again. The applicant said, "Sorry, I will," but again did not. Eventually, the applicant got off R. He then tried to get her to put his penis in her mouth. She said no because she was not comfortable with it. However, the applicant put his hands around her throat, forcing her to open her mouth, and put his penis into her mouth. That oral rape was the subject of count 1 on the indictment, particularised as follows, (" to reflect grabbing her throat, forcing her to open her mouth and putting his penis in her mouth after initial sexual intercourse "). The applicant then bent R over the bed and had sexual intercourse with her from behind. She asked him to stop. She did not want him there anymore. The applicant did not stop. The vaginal rape was the subject of count 2 on the indictment, particularised as follows, (" to reflect turning her around and having vaginal intercourse with her from behind "). 6 In her ABE interview, R stated that after the vaginal rape, the applicant again said that he wanted to put his penis in her mouth as he had not yet ejaculated. She said, "He does that again, grabs me by the hair. He didn't put his hand around my throat this time, but this time he does it and then he stopped and I pushed him away, put my hands against his thigh and ... I pushed myself back, and as I was, like, I'm not comfortable with that, and he says, 'Ok, sorry.' I was, like, 'You should probably leave now.' He then got dressed and left." 7 That second alleged oral rape was the subject of count 3. It was particularised as follows, (" to reflect grabbing her by the hair and putting his penis into her mouth on the last occasion "). As we have said, the applicant was acquitted of count 3. 8 After the applicant had left, R, who was crying, contacted her friends who came to her room and she told them what had happened. Thereafter, they called her mother and then the police. R was in a very distressed state. A bruise was found on her neck consistent with the bite to which she had referred. She had also suffered bruises to her right knee as a result of her knee banging against the wooden bed when the applicant penetrated her from behind. 9 The applicant had gone to his girlfriend's house. He was arrested at 09.51. On arrest, he said, "I cannot understand why this is happening. I know who you're talking about, she invited me over." 10 In interview, the applicant produced a prepared statement which read: "Following communication on social net-working sites and some discussion by mobile phone I attended the address of [R] in the early hours of 18th March 2019 at her invitation. In the course of previous communication she expressed a strong interest in meeting for sex and had disclosed details of her particular sexual preferences. She directed me to her address by voice call and was waiting in the entrance area to her block when I arrived. She let me in and led me to her room, having kissed me. We kissed more in her room. We removed our clothes, engaged in foreplay and sexual touching and proceeded to full penetrative sex. Everything which happened was entirely consensual. No pressure was applied in either direction. Whilst having intercourse I did nibble or bite her neck. This was not forceful, and she gave every appearance of enjoying herself. Though we had both been drinking alcohol beforehand there was no miscommunication or ambiguity. When she indicated that she did not wish to continue I stopped immediately. At no stage did I coerce her or force her in any way. I asked her if she would prefer me to leave. She said she would prefer me to leave. I got up, got dressed and left." 11 Having provided that prepared statement, the applicant then answered "no comment" to the questions. 12 The applicant's case at trial reflected his prepared statement. He said that everything which happened between him and R was consensual, and when she indicated that she did not wish to continue he stopped immediately. The Trial 13 The prosecution case was that R did not consent and that the applicant knew she did not consent or did not reasonably believe that she consented. To prove the case, the prosecution relied on (1) evidence from R and (2) complaint evidence to prove consistency. The defence case was that R consented to all the sexual activity and that throughout the defendant believed she was consenting. 14 An edited version of R's ABE interview was played at trial. She was cross-examined. During cross-examination, she agreed that she kissed and cuddled the applicant in the foyer and that the plan was for them to have sex. She agreed that they initially had consensual sex but things changed once the applicant bit her neck. She then told the applicant to stop but he did not. She agreed she did not cry until the very end of the incident, and that the sexual activity came to a sudden and awkward end. 15 Significantly, during re-examination, R indicated that after the applicant had penetrated her from behind she asked him to stop and that he did so, and that was when he left. 16 The applicant gave evidence that he was 23 at the time and whilst he had a girlfriend, they were trialling a more open relationship at the time. He and R agreed to have sex and did so. He did nibble her neck at some point during their encounter but it was not extreme and he did not ever grab her throat. He did have his hand on her head while she performed oral sex on him. He recalled a sudden awkward atmosphere during their encounter. He asked her whether she wanted him to leave, and he did so. He did not see her crying. He left because he felt confused and embarrassed. He later tried to call her to see if she was ok and to find out what had gone wrong. When later interviewed by the police, he answered "no comment" and submitted a prepared statement as advised by his solicitor. He was not used to that type of environment, in other words, being in the police station. He had no doubt that the complainant was consenting throughout. 17 The applicant's girlfriend also gave evidence on his behalf. She said that the applicant had told her that he had had sex with the complainant. A number of character references were also read. 18 The issues for the jury were, as we have said, consent and reasonable belief in consent. The jury found the applicant guilty on counts 1 and 2 and acquitted on count 3. There was a clear difference between R's account and her ABE interview about an alleged second oral rape, and her account in evidence explains the jury's not guilty verdict on count 3. Grounds of Appeal 19 The original grounds of appeal which were drafted by the applicant as assisted by trial counsel, were: (1) that the verdicts were inconsistent, and (2) that wrong decisions were taken by the judge in response to a jury request to be reminded of part of R's evidence. The single judge dealt with those grounds and refused leave to appeal conviction on 9 December 2022. Those grounds are not pursued before us. 20 Following refusal by the single judge, perfected grounds of appeal were set out in a 20-page document dated 21 May 2023 drafted by fresh counsel, Ms Daly, who appears before us today. There were two fresh grounds, namely (1) the judge failed to direct the jury on how to approach the applicant's "no comment" interview, and (2) the judge's directions on the burden and standard of proof required to prove lack of consent and lack of reasonable belief in consent were not sufficiently clear. 21 The prosecution, in their respondent's notice, submit: (1) the applicant relied on a prepared statement and was cross-examined. The judge did not consider that an adverse inference direction was necessary based on the evidence given; (2) the judge gave clear written directions which included the definition of rape. The verdicts on counts 1 and 2 were consistent with the evidence at trial, as was the acquittal on count 3. Discussion 22 Ground 1: lack of "no comment" direction. We have quoted the prepared statement in full above. In cross-examination, the applicant was mildly criticised for the lack of detail in that statement. His explanation was that he had never been in that situation before; he was advised by his solicitor to do a prepared statement and after that to answer no questions. 23 In discussions between counsel and the judge relating to a section 34 direction relating to the "no comment" interview, the judge said: "I don't want to go anywhere near it. It is hugely circular and a page and a half of utter garbage really. The current specimen direction doesn't really get to grips with it any more than the old one did, and I'm just going to say nothing really." 24 Defence counsel said that her approach depended on what the Crown was going to say about it. Mr Burns, counsel for the prosecution, did not invite a section 34 direction and pointed out that he had only suggested in cross-examination that the applicant could have elaborated further in his defence statement. Accordingly, both trial counsel agreed with the judge's proposal that no direction be given. 25 In his summing-up, the judge said: "He was interviewed by the police, and it was an alien environment for him. He answered no comment on the advice of his solicitor. The solicitor wrote the prepared statement and the solicitor told him this was how things were done in these sorts of cases." 26 Ms Daly contends that either a full section 34 direction ought to have been given or that the jury ought to have been specifically directed not to hold the applicant's "no comment" answers against him. 27 Ground 2: insufficiently clear legal directions . The judge gave a clear direction that the jury should consider each count separately and return separate verdicts. The judge gave the jury a route to verdict document which read: "You will arrive at safe verdicts in this case if you simply ask on each count as follows: 'Am I sure that the defendant behaved as alleged in the bracketed words beneath the particulars of offence and at the time he did so [R] was not consenting to that activity and the defendant did not reasonably believe that she was consenting?' If, on any count, you are so sure you will find the defendant guilty of that count, if you are not sure you will find him not guilty of that count." 28 The judge then went on orally: "So just as an example have a look ... at your indictment, look at Count 1 and there are some words at the bottom below, below the particulars of offence, they're in brackets to reflect grabbing her throat, forcing her to open her mouth, putting his penis in her mouth after the initial sexual intercourse. So you need to ask if the defendant behaved as alleged in those bracketed words and then ask whether you are sure that at [the] time he did so [R] was not consenting to that activity and he did not reasonably believe that she was. That's the way through the indictment on each count separately." 29 Ms Daly submits that where the issue of reasonable belief in consent is so crucial, it is particularly important for a jury to understand that each element of rape has to be proved to the criminal standard. She submits that by "rolling up questions" it is likely to have been difficult for a jury to understand they needed to be sure both of absence of consent and absence of belief in consent. 30 We note the following further passages in the summing-up. Earlier in the written directions, the judge said: "Next, rape. This offence is proved if you are sure that the defendant intentionally penetrated the vagina or mouth, depending upon the count, of [R] with his penis, that she did not consent to the penetration, and the defendant did not reasonably believe that she consented. A person consents to penetration if they agree by choice to the penetration and have the freedom and capacity to make that choice. Whether a belief is reasonable is to be determined having regard to all the circumstances including considering any steps which the defendant has taken to ascertain whether the complainant consents, so that's the definition of rape." 31 Secondly, we note that whilst the judge did not include written directions on the burden and standard of proof, he corrected that omission by including a full and clear direction on both matters at the end of his summing-up of the evidence. Conclusions 32 Ground 1: the applicant gave a prepared statement which clearly set out his defence. He also gave a consistent account at trial which, very largely, reflected his version of events as set out in the prepared statement. He added some more detail in his evidence about which he was briefly challenged. The prosecution did not seek a section 34 direction, nor did the applicant's counsel. 33 We are of the firm view that this case did not require a section 34 direction. In the light of the detail in the prepared statement, it was wholly unnecessary to direct the jury in the terms of the specimen direction. On the other hand, we agree that it would arguably have been preferable for the judge to give the jury a short direction to the effect that the applicant had not relied on any material matter at trial which he might have mentioned in his prepared statement and that, therefore, the jury should not hold his "no comment" answers against him. The judge's failure to do so on all the facts of this case, however, did not in our view render the convictions unsafe. 34 Ground 2: it is obviously unfortunate that the judge omitted from his written directions a direction on the burden and standard of proof. However, he corrected that omission by very clear directions right at the end of his summing-up when they would have been in the forefront of the jury's mind as they retired. In his written directions and in his route to verdict and in his oral comments during the course of his summing-up, the judge emphasised that the jury had to be sure about each ingredient. Whilst he might have divided the ingredients up into sub-paragraphs, his failure to do so did not render them unclear. 35 We are entirely satisfied that the judge dealt adequately with the ingredients of rape and the burden and standard of proof in regard to each of the matters which the prosecution had to prove. That the jury clearly understood the directions is perhaps evidenced by the verdict on count 3. 36 For those reasons the application is refused. __________

2023_07_11-5745.xml

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[2023] EWCA Crim 1631

EWCA_Crim_1631

2023-12-19

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 1631 IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202302311/A1 Royal Courts of Justice Strand London WC2A 2LL Tuesday 19 December 2023 Before: LORD JUSTICE DINGEMANS MR JUSTICE HILLIARD HIS HONOUR JUDGE DREW KC (Sitting as a Judge of the CACD) REX V GINO MARI __________ 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 N LAKE appeared on behalf of the Appellant. MR J CARMICHAEL appeared on behalf of the Crown. _________ J U D G M E N T LORD JUSTICE DINGEMANS: Introduction 1. This is the hearing of an appeal against the imposition on 22 March 2023 of a restraining order in the Crown Court at Harrow, after the acquittal of the appellant. 2. The appellant, Gino Mari, is a 39-year-old man. He was prosecuted in the Crown Court for an offence of strangulation, contrary to section 75 A of the Serious Crime Act 2015 , and the strangulation was alleged to have occurred on 14 October 2022. The complainant had been the appellant’s former partner. The complainant alleged that the appellant had strangled her when he was drunk. There was a photograph showing marking around the complainant’s neck. 3. The defence was that the complaint was malicious because the appellant had been working late and hard and he and the complainant had gone to bed after drinking and it was the complainant who had attacked the appellant. 4. The appellant and complainant had a 10-year-old son together and the complainant also had a 14-year-old daughter (who we will refer to collectively as “the children”). The children were present in the house at the time, but it appears they were asleep at the material time. 5. The complainant had attended for an earlier trial of the offence of strangulation on 9 March 2023 to give her evidence, but the case had to be adjourned because there was no court available. The complainant did not attend on the re-listed date, on 22 March 2023. There were communications in which the complainant made clear that she was not going to attend and, in those circumstances, the prosecution offered no evidence and the judge directed an acquittal of the appellant. The restraining order 6. It appears that the prosecution then applied for a restraining order on acquittal which was granted on the same day. The terms of the proposed restraining order sought by the prosecution were that the appellant should not have contact with the complainant save through his sister, Social Services or a solicitor dealing with child contact or welfare. 7. It appears from what we were told today that the whole of the order was resisted, and it is apparent, for reasons that we will come to later, that the formalities of the Criminal Procedure Rules when these orders were sought were not followed. 8. It seems that the part of the restraining order against which this appeal is brought, namely relating to the children, was raised by the judge himself, who stated that if the proceedings had been in a Family Court, then there is no question that such an order would have been granted. The judge said the order should be extended to include a prohibition on the appellant having contact with the children mentioned because it was well known that domestic violence was a form of child abuse. The judge made it clear that the appellant could approach the Family Court to ask for child contact. We were told this morning, and accept, that attempts were made to obtain legal aid and private representation but that has yielded nothing. 9. The court then made an order that the appellant is “not to contact directly or indirectly [the complainant] and/or her children [and their children were identified], save through his sister, Social Services or solicitors in respect of contact and welfare of their children”. Such banned contact to include: “any form of telephonic communication, social media of any kind. This order to apply for 5 years 22 March 2028 or until further order of this Court or the Family Court”. It then appears that an email was sent saying that a member of court staff had spoken to the judge, who had amended the order to provide: “Defendant to be restrained from contacting [the complainant] and/or the children of the family [name given] by telephone, letter, card, internet, social media or in any other form/format whatsoever, either directly of indirectly or causing or inciting another to do save that he may through his sister, Social Services or his solicitors seek to agree contact in respect of the children. This order to have immediate effect and be for a period of 5 years (that is until 22/3/28)” The slip rule hearing 10. Defence solicitors immediately asked for the matter to be re-listed before the Recorder so that submissions could be heard on the proportionality of the order and the fact that it was internally inconsistent. That application was made under the slip rule. The matter in fact was not listed until 13 June 2023. It appears that, although the slip rule hearing had been requested in March 2023, the reason it was not listed until June was a lack of court time and indeed a delay in dealing with the application. 11. At the renewed hearing in June 2023, it was conceded by the defence that the slip rule period had expired and the application to vary the order was refused. In refusing the application, the judge stated that the court did not have jurisdiction to amend the restraining order and, even if it did, the court did not consider that the original order was in error because the matter could be challenged in the Family Court. 12. The right to appeal a restraining order imposed following an acquittal is pursuant to section 5 A(5) of the Protection from Harassment Act 1997 , which provides the same right of appeal as if the defendant had been convicted of the offence in question. Grounds of appeal 13. The grounds of appeal before us are that it was not necessary to prohibit the appellant from having contact with the children, the restraining order was not proportionate, and the terms of the restraining order were contradictory and internally inconsistent. This was because it prohibited the complainant from having contact with the children but permitted the appellant to have indirect contact with the complainant to agree contact with the children. 14. The Crown had put in a Respondent’s Notice submitting that, although the Crown did not apply for an order that restricted access both to the victim of the alleged abuse as well as the children, the judge’s assessment that a threat to a mother within the home was a form of abuse to the children was not unreasonable and, if the judge took that view, there was not anything unreasonable or disproportionate about the order, and therefore there was no error in law. Having said that, the Crown recognised that a restraining order should be monitored. The Crown had made contact with the complainant and from that contact it was clear that there was no difficulty with unrestricted access to the children from the point of view of the complainant. That being the case, the Crown said that the defence should reapply to the Crown Court for an amendment of the order and the Crown would not oppose the application, meaning that there need not be an appeal. We were told that such an application had been made to the Crown Court but that had also been delayed in listing and we are here. Relevant Legal Provisions 15. The relevant legal provisions applicable to section 5 A of the 1997 Act have been addressed in a number of decisions of this Court including R v Major [2010] EWCA Crim 3016 ; [2011] 1 Cr App R(S) 25; R v Smith [2012] EWCA Crim 2566 ; [2013] 1 WLR 1399 ; R v AJR [2013] EWCA Crim 591 ; [2013] 2 Cr App R(S) 12; R v Taylor [2017] EWCA Crim 2209 ; [2018] 2 Cr App R(S) 39 and R v Baldwin [2021] EWCA Crim 703 ; [2022] 1 Cr App R(S) 14. It is not necessary for us to summarise all the relevant principles, but we do need to identify some principles relevant to the fair disposal of this appeal. 16. As the terms of section 5 A of the 1997 Act make clear, this is an order which is imposed after an acquittal and may be imposed even where the prosecution has offered no evidence. A restraining order is a civil order and does not reflect on the guilt of the appellant. The civil standard of proof applies. Section 5 A of the 1997 Act addresses a future risk of behaviour which might amount to the relevant course of conduct. An order can only be imposed if the statutory conditions are met. The legislation was aimed at protecting victims of domestic violence but was not limited to such circumstances and the order must be “necessary... to protect a person from harassment...” The word “necessary” must not be ignored. 17. Although an acquittal order may be made after acquittal it must be made on the evidence, a restraining order on acquittal is a criminal behaviour order for the purposes of the Criminal Procedure Rules 31.1(a). 31.2 of the Criminal Procedure Rules requires a person to whom the order is directed to have had an opportunity to consider the evidence in support of the application. If a prosecutor applies for a restraining order on acquittal, the prosecutor is required to identify under rule 31.3 what evidence is relied on to justify the making of the order. If hearsay is relied upon the parties are required to serve hearsay notices and counter notices under rules 31.6, 31.7 and 31.8. 18. In circumstance where a judge decides to consider whether imposing a restraining order after an acquittal where no evidence is offered, natural justice and the Criminal Procedure Rules require the person against whom an order may be made must be given an opportunity: to consider what is proposed and why; to consider the evidence in support; and to adduce evidence against the making of the order. It will be necessary to know the updated position before deciding what order is to be imposed in most cases. Appeal allowed 19. So far as this appeal is concerned, it is now common ground that the restraining order on acquittal in respect of the complainant is not to be challenged. This meant that it was not necessary to address the procedure which was adopted when the application was made so far as it related to that part of the restraining order. 20. In our judgment, however, that part of the restraining order relating to the children should not have been made. First, there was no evidence from the children, their mother or anyone acting on their behalf about the desirability or impact of any order on them. Secondly, there was no evidence showing that an order restraining the applicant from having contact with the children was necessary. The judge’s comment about domestic violence being a form of child abuse did not take account of the fact that the first part of the restraining order prohibited contact between the appellant and the complainant, meaning that there would not be any further domestic abuse. Thirdly, none of the procedural safeguards set out in the Criminal Procedure Rules relating to the second part of the order were applied. Fourthly, it was inappropriate to make the order subject to the order of the Family Court. It is clear that there will be occasions when the Criminal Courts and Family Courts work together, for example, case managing and co-ordinating timetables for proceedings where there has been an alleged baby shaking murder and there are other children of the family. Given however that a restraining order will have been imposed in the criminal courts because it was necessary to make the order, as opposed to being generally desirable or something that another court might do, it is not immediately clear what test would be applied by the Family Court in varying or discharging the order made by the Criminal Court. Fifthly, the duration of the restraint order meant that the appellant would have no contact with the children as they transitioned from childhood. That is a draconian order to be made after an acquittal which was not asked for by the prosecution. 21. We will therefore allow the appeal and vary the restraining order so that the prohibition on contact with the children is removed. This means it will now read that “the defendant is to be restrained from contacting the complainant by telephone, letter, card, Internet, social media or any other form/format whatsoever, either directly or indirectly, or causing or inciting another to do so, save that he may through his sister, Social Services or his solicitors seek to agree contact in respect of the children”. The order is to have immediate effect and will be for a period of 5 years, that is until 2022 March 2028. We should conclude this short judgment by thanking both Ms Lake and Mr Carmichael very much for their assistance. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk

2023_12_19-5967.xml

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[2004] EWCA Crim 2923

EWCA_Crim_2923

2004-11-30

crown_court

Case No: 200401867A3 Neutral Citation Number: [2004] EWCA Crim 2923 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL APPEALS DIVISION) ON APPEAL FROM THE CROWN COURT AT KINGSTON UPON HULL (Mr Recorder Kirtley) Royal Courts of Justice Strand, London, WC2A 2LL Tuesday, 30 th November 2004 Before : LORD JUSTICE MANCE MR JUSTICE NEWMAN and MR JUSTICE FULFORD - - - - - - - - - - - - - - - - - - - - - Between : GLYN EDWARDS Appellant - and - THE CROWN Respondent - - - - - - - - - - - - - -

Case No: 200401867A3 Neutral Citation Number: [2004] EWCA Crim 2923 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL APPEALS DIVISION) ON APPEAL FROM THE CROWN COURT AT KINGSTON UPON HULL (Mr Recorder Kirtley) Royal Courts of Justice Strand, London, WC2A 2LL Tuesday, 30 th November 2004 Before : LORD JUSTICE MANCE MR JUSTICE NEWMAN and MR JUSTICE FULFORD - - - - - - - - - - - - - - - - - - - - - Between : GLYN EDWARDS Appellant - and - THE CROWN Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of Smith Bernal Wordwave Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - ANDREW BODNAR appeared on behalf of the Appellant MUSHTAQ KHOKHAR and PATRIZIA DOHERTY appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - Judgment MR JUSTICE NEWMAN : 1. On 6 th May 2003 the appellant pleaded guilty to a charge of being knowingly concerned in the fraudulent evasion of the duty chargeable on a quantity of tobacco contrary to section 170(2) of the Customs and Excise Act Management 1979 (“CEMA”). He was sentenced to two years’ imprisonment. No complaint is made about that sentence. In addition, confiscation proceedings were ordered. They were concluded on 27 th February 2004 when an order was made under section 75 of the Criminal Justice Act 1988 (“CJA”) that he pay £30,257.52 and, in default, serve 18 months’ imprisonment consecutively to the sentence already imposed. He appeals against the confiscation order. 2. The total amount of duty payable in respect of the quantity of tobacco was £311,627.48. The sum of £30,257.52 represented the totality of his assessed realisable assets. 3. The substantive issue at the confiscation hearing was whether the appellant had derived any “benefit” within the meaning of section 71 of the CJA , given that the tobacco had been seized by officers of Customs and Excise on 18 th June 2002, being the date on which the tobacco had been imported by the appellant, and before he had driven out of the port enclosure at Hull. The effect of the submission made in this court and below is that, had he driven out through the gates of the port, he would have evaded the duty payable on the tobacco and it would then have been open to the court to conclude he had obtained a benefit. Put the other way, the submission is that, since he had not left the port enclosure, he had not evaded duty and, as a result, had obtained no benefit. 4. The facts require a little elaboration. On 18 th June 2002 the appellant arrived at Hull docks on a ferry from Zeebrugge driving his own tractor unit and towing a refrigerated trailer. After the vessel had docked he disembarked, driving his tractor unit and trailer through the area of the port. He was stopped by customs officers and his load was inspected. The appellant, when asked about his load, stated that he was carrying frozen chips and sweetcorn. He produced a false CMR document in respect of his load. He did not disclose he was carrying tobacco. He was asked whether he knew what he could bring into the country by way of tobacco. In response, he produced a holdall containing goods consistent with personal use. Inspection of his vehicle revealed many packages of loose hand rolling tobacco, estimated to weigh 3158.6 kilogrammes, concealed behind frozen chips and sweetcorn. THE LAW Time of Importation 5. Section 5 of the CEMA, in its material part, provides: “(1) The provisions of this section shall have effect for the purposes of the Customs and Excise Acts. (2) Subject to subsections (3) and (6) below, the time of importation of any goods shall be deemed to be – (a) where the goods are brought by sea, the time when the ship carrying them comes within the limits of a port; (b) … (c) … (3) In the case of goods brought by sea of which entry is not required under [ regulation 5 of the Customs Controls on Importation of Goods Regulations 1991] , the time of importation shall be deemed to be the time when the ship carrying them came within the limits of the port at which the goods are discharged. (4) … (5) … (6) … (7) … (8) A ship shall be deemed to have arrived at or departed from a port at the time when the ship comes within or, as the case may be, leaves the limits of that port”. Section 43(1) of CEMA provides, in its material part: “Save as permitted by or under the Customs and Excise Acts or section 2(2) of the European Communities Act 1972 or any Community regulation or other instrument having force of law, no imported goods shall be delivered or removed on importation until the importer has paid to the proper officer any duty chargeable thereon, and that duty shall, in the case of goods of which entry is made, be paid on making the entry”. 6. Importations of goods, including tobacco, from other Member States of the European Union have been provided for by Community regulation, namely Council Directive 92/12/EEC. In the United Kingdom special provision, giving effect to the Community regime, has been made for tobacco by the Tobacco Products Regulations 2001 ( SI 2001 1712 ) (“ the 2001 Regulations ”) and generally by the Excise Goods (Holding, Movement, Warehousing and REDS) Regulations 1992 ( SI 1992 3135 ) (“the 1992 Regulations”). Liability for Duty 7. The relevant provisions in the above Regulations governing the payment of duty on tobacco are as follows. Regulation 6(1) of the 1992 Regulations states that “… duty shall be paid on or before an excise duty point”. Regulation 4(1) states: “Except in the cases specified in paragraphs (2) to (6) below, the excise duty point in relation to any Community excise goods shall be the time when the goods are charged with duty at importation”. 8. Importations of tobacco which are outside the regime laid down in the 1992 Regulations for warehousing, holding and Registered Excise Dealer and Shipper (REDS) also fall within the 2001 Regulations , which also state when duty must be paid. Regulation 14(1) states: “Except where regulations 17 to 19 below (deferred payment) apply, the duty must be paid at or before the excise duty point”: Regulation 12(1) states: “Subject to the provisions of this regulation, the excise duty point for tobacco products is the time when the tobacco products are charged with duty”. Regulation 17(1) that: “Any person liable to pay the duty due on tobacco products to which this regulation is applicable may, subject to regulation 18 and 19 below [deferred payment, application for approval to the Commissioners for the approval of an arrangement], elect to defer payment of that duty until payment day; (2) This regulation is applicable to – (a) imported tobacco for which the excise duty point is the time of their importation; …..” 9. In our judgment it is clear that the appellant, not having paid duty on the tobacco in advance of importation, became liable to make payment at “the excise duty point”, namely “at importation”. Importation occurred when the ship carrying his tractor unit and trailer came “within the limits” of the Port of Hull. The time of importation is finite and not continuous. Once a ship comes within the limits of a port it is then and there at the “excise duty point”, although the limits of the port are extensive and, having entered, the ship remains within them. 10. Mr Bodnar, counsel for the appellant, accepted that the duty on the tobacco imported by the appellant became payable at the “excise duty point”, but submitted, by reference to section 43(1) and section 49(1) of CEMA, that until the goods had been removed from the port area the “excise duty point” had not been passed. If this submission is correct, duty had not, as a result, become payable and could not have been evaded. The submission is plainly wrong. It conflicts with the clear and unambiguous language of CEMA and the 1992 and 2001 Regulations, which state that “the excise duty point” for tobacco is at importation. His resort to section 43(1) CEMA cannot assist the argument. These and other sections of CEMA show how the Act distinguishes between an act of “importation” and the resultant status of the goods as “imported”. The definition of “importer” in section 1 demonstrates that there is no continuum in an act of importation. “Importer” is defined to include, for example, an owner of the goods “… at any time between their importation and the time when they are delivered out of charge”. 11. Sections 43-48 CEMA are concerned to regulate for goods which have been “imported”, not for the time at which duty becomes payable. That said, section 43(1), as well as prohibiting delivery or removal of goods until duty has been paid, states that “… duty shall, in the case of goods of which entry is made, be paid on making the entry”. 12. Section 49(1) enumerates circumstances in which goods improperly imported can be forfeited. They include where: “(b) any goods are imported, landed or unloaded contrary to any prohibition or restriction …and (d) any goods are imported concealed in a container holding goods of a different description”. The power of forfeiture is conferred to enable goods which have been improperly imported but are still within customs areas, to be forfeited. In the case of R v Smith (Donald) 1973 1 QB 924, cannabis, en route from Kenya to Bermuda via London Heathrow, which never left the customs area but was taken off one flight to be placed on another was held to have been imported and to found a conviction for fraudulent evasion of the prohibition on its importation. In our judgment, far from assisting Mr Bodnar’s submission, the sections upon which he relies are against it. They have no bearing on the point at which duty becomes payable. 13. Next Mr Bodnar submitted that the appellant was at or in the “place of importation”. The phrase “place of importation” comes from section 49(1)(a)(iv) of CEMA: “(1) Where – (a) … , any imported goods, being goods chargeable on their importation with customs or excise duty are, without payment of that duty – (iv) removed from their place of importation or from any approved wharf …” He submitted that, there being a place of importation, “the excise duty point” was at any point within the “place of importation”. For the reasons we have already given, the submission cannot be right. We are satisfied that the legislation clearly states when goods are imported and when they become liable to duty. The need to provide for enforcement thereafter, for example, when the goods are within the place of importation does not affect the position. Evasion 14. The appellant’s argument on evasion was, to a large extent, a variant of his submissions on whether duty had become payable. It was put in a number of ways but, in effect, amounted to a contention that, even if duty had become payable at importation, importation was a continuing process which was not complete until the appellant had left the whole area of the Port of Hull, which was to be regarded as the place of importation. The submission that there had been no evasion ran into a difficulty, to which the Recorder referred, namely that the appellant had pleaded guilty to the offence of evasion and not to an offence of attempted evasion. A doubt as to whether he had pleaded to evasion was laid to rest by the terms of the transcript. There was no basis of plea submitted to the court and we share the Recorder’s reservations about the legitimacy of admitting evasion for the purpose of the trial, but denying it in the confiscation proceedings. Nevertheless we heard the argument. 15. Section 170(2) CEMA states: “(2) Without prejudice to any other provision of the Customs and Excise Acts 1979, if any person is, in relation to any goods, in any way knowingly concerned in any fraudulent evasion or attempt at evasion – …… of any duty chargeable on the goods; … he shall be guilty of an offence under this section…” 16. Mr Bodnar’s argument involved the contention that, whilst the appellant was in the Port of Hull, he could not be said to have had acted fraudulently because, until he left the port, the option which he had to declare the goods was still available to him. His approach fails to distinguish between the substance of the offence and the evidence which may support it. A person fraudulently evades the duty chargeable on goods if, at the point of importation, he dishonestly intends not to pay the duty on the goods. His conduct subsequent to importation will be relevant to establish his intention at importation. Equally, conduct prior to the importation, for example the preparation of a false CMR document, will be relevant to the intention held at the time of importation. 17. The possession of the false CMR document by the appellant on goods upon which the duty was unpaid at importation amounted to evidence sufficient for him to be charged with evasion at any time after the importation. Further, his lies and subsequent conduct in response to questions from the customs officers provided further evidence going to establish his fraudulent intention at the time of importation. We agree that had the appellant, notwithstanding his possession of the false document at importation, declared the goods to the customs officers, it is unlikely he would have been prosecuted. But that is not to say that evidence that fraudulent evasion had occurred would not have been available. We accept that, had he been prosecuted, a jury may well not have been sure of his intention at the time of importation, having regard to his subsequent conduct in declaring the goods. However these are evidential considerations; just as the availability of the opportunity to declare the goods, whilst he was within the port, which is now relied upon by Mr Bodnar as negating the commission of the offence of evasion, is an evidential and not a substantive consideration. Benefit and Confiscation 18. The issue as to when a benefit has been obtained within the meaning of the CJA, in connection with customs and excise provisions, has recently been considered by the House of Lords in R v Smith (David ) [2002] 1 Cr App R 466 . 19. Section 71(5) of the CJA provides: “Where a person derives a pecuniary advantage as a result of or in connection with the commission of an offence, he is to be treated for the purposes of this Part of this Act as if he had obtained as a result of or in connection with the commission of the offence a sum of money equal to the value of the pecuniary advantage”. A “pecuniary advantage” was defined by section 16(2) Theft Act 1968 as: “(a) any … charge … for which he makes himself liable [which] is evaded or deferred”. 20. In the case of Smith , cigarettes had been imported in a motor vessel at Hull and Immingham. Mr Smith sailed through the limits of the port of Hull and voyaged up the River Ouse to Goole, where the cargo was seized by customs officers. Duty had not been paid at importation, but the question for the House of Lords was whether Mr Smith had derived any benefit prior to their seizure and before their value could be realised by him. Lord Rodger (with whom all their Lordships agreed) stated (paragraph 26): “In this case the respondent derived a pecuniary advantage by evading the duty at the moment when he imported the cigarettes. The sum equalling that pecuniary advantage is treated as property obtained by the respondent at that moment. In terms of section 74(5), its value must therefore be determined at that moment, disregarding the fact that, soon after, the customs officers seized the cigarettes at Goole.” 21. Mr Bodnar sought to avoid the effect of the judgment in Smith by distinguishing the appellant’s case on its facts. In particular, he urged upon us that Mr Smith had left the limits of the Port of Hull and had sailed to Goole, whereas the appellant was within the port area. By way of analogy he suggested, relying on Smith’s case, it was as though the appellant had driven from the port area and been stopped on the road. 22. In our judgment the difference on the facts to which he refers is immaterial. Once a person has evaded the payment of duty he has thereby deferred the liability to pay and has obtained a pecuniary advantage which amounts to a benefit within the meaning of the CJA. The legal consequences of an act of evasion are not affected by the exact time and place when the evasion is discovered and the goods are confiscated. Both Mr Smith and the appellant fraudulently evaded payment for tobacco at importation. Mr Smith’s voyage from the Port of Hull to Goole added nothing to the essential facts constituting the offence. Likewise, had the appellant left the port area and been stopped on the highway, the essential facts constituting the offence of evasion would have been the same. We should point out that the legal basis for a confiscation order is a conviction for an offence (see section 71(1) and (1A)). Further, section 71(5) provides for “… a pecuniary advantage as a result of or in connection with the commission of an offence …”. 23. Lord Rodger dismissed consideration “of the fate of the cigarettes”, to which the Court of Appeal had paid regard, as irrelevant to the determination of benefit. The fact that the cigarettes were seized was irrelevant. He supplied an illustration to demonstrate the fallacy in the Court of Appeal’s approach (see para 18). Had Mr Smith paid the duty as required and the boat had subsequently sunk with the loss of the cigarettes he would have suffered a loss of £130,000 (the duty paid) and the cigarettes. Had he not paid then, if the boat sank with the loss of the cigarettes, he would only have lost the cigarettes. It seems to us that it can be said with equal force in this appeal that had the appellant paid duty and parked his vehicle in the port area for a short time, before driving out on to a public road outside the port, and whilst in the port area the vehicle had caught fire destroying the tobacco, he would have lost both the duty and the load. Had his evasion been undetected and he had nevertheless parked in the port area for a short time and the vehicle had caught fire, he would have lost only the load. 24. Lord Rodger made general observations about the scheme of the CJA and the operation of the confiscation provisions (see paragraph 23). He observed: “If in some circumstances it [the scheme] can operate in a penal or even a draconian manner, then that may not be out of place in a scheme for stripping criminals of the benefits of their crimes. ” On this appeal it was not argued that the provisions of the CJA arguably gave rise to the unlawful confiscation of property and a breach of Protocol 1, Article 1 of the ECHR because they could give rise to double recovery of the duty. In response to enquiry from the court, counsel for the respondent stated that where a confiscation order has been made, based upon a benefit calculated by reference to the unpaid duty, the Customs and Excise authorities do not, as a matter of practice, seek recovery of the unpaid duty by way of civil proceedings. That both civil and criminal remedies are available is not in doubt. Should the Customs and Excise Authorities pursue a civil remedy where a confiscation order had been met, it is clear there would, in effect, be double recovery of the duty. 25. The firm practice of the Customs and Excise Authorities is, in our judgment, well placed. Mr Bodnar drew the court’s attention to section 71 (1C) of the CJA which provides: “If, in a case falling within subsection (1B) above, 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) below 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”. Mr Khokhar representing Customs and Excise confirmed in answer to the court’s question that Customs and Excise do not intend to, and will not, institute any civil proceedings against the appellant in respect of the duty. In the light of this undertaking, we decided that no further argument was necessary concerning the possibility that there might otherwise have been a potential for double recovery. 26. It follows that this appeal is dismissed.

2004_11_30-387.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/2923/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/2923

5c051e01085e6389bfff0ff6f57f125f1d854720d02531ef19ea1bfebbaaba6d

[2007] EWCA Crim 3383

EWCA_Crim_3383

2007-07-11

crown_court

Neutral Citation Number: [2007] EWCA Crim 3383 No: 200702012/A2-200702016/A2-200702013/A2-200702015/A5-200702014/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Wednesday, 11th July 2007 B E F O R E: LORD JUSTICE MAURICE KAY MR JUSTICE TUGENDHAT SIR RICHARD CURTIS - - - - - - - - - - - - - - - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NOS 45, 46, 47, 48 & 49 OF 2006 (CALLAGAHAN & OR

Neutral Citation Number: [2007] EWCA Crim 3383 No: 200702012/A2-200702016/A2-200702013/A2-200702015/A5-200702014/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Wednesday, 11th July 2007 B E F O R E: LORD JUSTICE MAURICE KAY MR JUSTICE TUGENDHAT SIR RICHARD CURTIS - - - - - - - - - - - - - - - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NOS 45, 46, 47, 48 & 49 OF 2006 (CALLAGAHAN & ORS) - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - MISS S WHITEHOUSE appeared on behalf of the ATTORNEY GENERAL MR C BATTY appeared on behalf of the OFFENDERS CALLAGHAN & SMITH MR S BATISTE appeared on behalf of the OFFENDER BRATTLEY MR F DAVIES appeared on behalf of the OFFENDER SMITH MR A STUBBS appeared on behalf of the OFFENDER BUIKE - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE MAURICE KAY: This case comes before the Court by way of a Reference, under section 36 of the Criminal Justice Act 1988 . We grant leave. 2. The case concerns five young men who pleaded guilty to offences of conspiracy to steal and conspiracy to burgle. On 20th March 2007, in the Crown Court at Leeds, they were sentenced by His Honour Judge Dobkin. Callaghan received a sentence of three-and-a-half years' imprisonment for these offences, with additional concurrent sentences for unrelated matters of burglary, aggravated vehicle taking and driving while disqualified, totalling 12 months. In other words, his sentence in total was one of three-and-a-half years. Brattley received a sentence of two-and-a-half years' detention on the indictment, as did Boylan and Buike. However, in Boylan's case there was a consecutive sentence of 4 months for an offence of affray, and in Buike's case, there was a consecutive sentence totalling 9 months in relation to unrelated matters of burglary, aggravated vehicle taking and driving whilst disqualified. Smith received a sentence of 2 years' imprisonment on the indictment. 3. Callaghan is aged 22; Brattley is 20; Boylan is 20, Buike is 23 and Smith is 21. 4. The offences for which they were being sentenced, the offences of conspiracy, all relate to what can only be described as a campaign of ram raiding in and around Leeds over a 4-month period. As is common with such offences the conspiracy to steal was concerned with the obtaining of cars for use in ram raid offences. Thereafter, the vehicles were used in the course of burglaries of commercial premises. 5. In some cases the stolen vehicles were used in order to effect the offence through the doors or windows of premises. In other cases, sometimes the same cases, other vehicles were used for purposes of escaping from the scene. On most occasions the offenders wore balaclavas or masks in the course of the offending. 6. A great deal of damage was done and a large amount of property was taken. Although Miss Whitehouse, on behalf of Attorney, suggests that that total combined value of damage caused and property stolen may have approached £1 million, we shall proceed on the lesser figures that appear in the papers, namely that the damage amounted to some £116,000, and the value of the property taken to £170,000. We do so in the knowledge that those figures are underestimates, not least because in relation to some of the offences, where clearly damage was done to property that was taken, no specific figures are known to us. 7. When the matter came before the learned judge, it is plain that discussions had taken place between prosecution and defence over a substantial period of time as to possible bases of plea. Although the five offenders each pleaded to both conspiracies, what in fact occurred was that they admitted involvement in limited overt acts carried out in the course of the conspiracies. Thus, Callaghan admitted being involved in four burglaries, two of which were ram raids, five thefts or attempted thefts of vehicles, one theft of a computer and two offences of making off without payment as his contribution to the conspiracies. The offences of making off without payment were ones of fuelling cars at service stations. Brattley admitted involvement in four of the burglaries, three of which were described as ram raids together with the theft of one vehicle. 8. Boylan admitted involvement in three burglaries, all of them ram raids, and five thefts of motor vehicles. Buike accepted involvement in three burglaries, again all of them ram raids, together with three thefts of motor vehicles. Smith admitted involvement in two burglaries, one of which was a ram raid, together with thefts of four motor vehicles. 9. As it happened he had already served a sentence of 6 months' imprisonment in relation to the theft of one of the vehicles that formed part of the overall allegation of conspiracy. That is the explanation for his having received a shorter sentence than Brattley, Boylan and Buike, the 6 months having been deducted from the two-and-a-half years that was imposed upon each of them, producing the sentence of 2 years in his case. 10. It is necessary to set out the history of this crime wave, which afflicted the city of Leeds between September 2005 and January 2006. The offences really come in groups. The first group of offences involved the theft of a Vauxhall Vectra, on 8th September. The keys to it had been stolen in a domestic burglary. Four days later, a Cherokee Jeep was stolen from a carpark. Later that day the Vectra was used in a ram raid at Otto Bock Healthcare. A computer monitor and digital camera were stolen. The following day the Vectra and the Cherokee Jeep were used in a ram raid at the House of Fraser store in Briggate in Leeds City Centre. The damage on this that occasion was £38,000 worth and £12,000 worth of goods were taken. Brattley accepted involvement in that offence with two or three unnamed persons. 11. The next group of offences began with theft of a Vauxhall Tigra car on 5th October. Again, its keys had been stolen in a domestic burglary. It was used as the getaway car following the theft of computer equipment from a van on 6th October. Callaghan accepted involvement in that offence and also with an offence of making off without payment when he filled it with petrol on 6th October. Chronologically the next date of significance is that Boylan, who had been out of the country in September and early October returned on 17th October. We mention that to illustrate the point made on behalf of all the offenders in different ways that they were not all available from participation in the full extent of the conspiracy at all times and that is why we are invited to approach their offending on the basis that, although they had pleaded guilty to conspiracies, they have done so on the basis of limited participation. 12. The next group of offences began on 24th October, when the keys of a Toyota Corolla were stolen in the course of a domestic burglary. On the same day it was used in the attempted theft of another vehicle, outside a leisure centre, at which time a security guard was threatened with a tool. Callaghan accepts involvement in the attempted theft of that second vehicle and also with making off without payment when he filled it up with petrol on 30th October. 13. The next offences to which the prosecution make reference occurred between 24th and 31st October. The keys to a Fiat Punto were stolen in a domestic burglary. The car was then stolen. On 30th October, a Nissan Skyline was stolen from a street in Leeds. On 31st October the Fiat Punto was used in the course of a ram raid at Currys electrical store at a retail park in Leeds City centre. The Nissan Skyline was used a getaway vehicle with electrical goods to a total value of £22,000. A security guard had been attacked with a crook lock during the commission of the offence. None of the offenders before the court accepted participation in that matter. 14. There was then a group of offences which occurred on 8th November. A Honda Civic was stolen from the carpark of a cinema. Boylan accepts involvement in that. Another Honda Civic was stolen from another car park on the same day. Later, both vehicles were used in the course of a ram raid offence at a garage in Leeds, one to gain forcible access to the premises, the other to transport the offenders away from the scene. Boylan accepts involvement in all of that. 15. We then move to 14th November when a Vauxhall Frontera was stolen from the carpark at the White Rose shopping centre. It was later used in a burglary at Staples Store on Kirkstall Road, where damage was caused in the effecting of the burglary but the vehicle was not used forcibly on the premises. It was however used as a gateway vehicle. 16. Until this time Buike had been serving a sentence of imprisonment and so was not involved in any activity prior to 17th November, his release date. However, he became involved the very next day because on 18th November another Vauxhall Frontera was stolen from the carpark at the cinema. Boylan and Buike accept involvement in that. It was then used later the same day in the course of a ram raid at PC World when satellite navigation systems and a flat screen monitor were stolen. Buike accepts responsibility for that. 17. Two vehicles were then stolen between 18th November and 21st November, a Ford Transit van and a Renault Wagon. They were stolen in the course of a burglary at a warehouse in Leeds and Callaghan admits responsibility for that. The Renault Wagon appears a little later in the events. 18. The 21st November was an eventful day. A BMW convertible was stolen from premises in Hunslet, as the owner was filling the windscreen washer. Buike was the thief. On the same day a Mazda was stolen from a car rental company by Boylan and a Honda Civic was stolen from a street in Leeds by Callaghan. Still on the same day, the 21st November, the Renault Wagon, to which we have referred, was used in the course of a ram raid to break down security bollards outside Currys electrical store. All three of the vehicles that had been stolen earlier on 21st November were also used in the course of the commission of that offence or in the transportation of the offenders from the scene. Almost £24,000 worth of electrical goods were stolen. Boylan and Buike accept responsibility for that. 19. Two days later, on 23rd November a Vauxhall Frontera was stolen from a casino car park by Boylan and it was on the same day used to break down the doors of the House of Fraser in Briggate, causing damage of £30,000. The Mazda car that had been stolen on 21st November was used to transport the offenders away from the scene. Boylan was involved in all of that. 20. On 29th November Callaghan, Brattley and Boylan were arrested but were released on bail. On 2nd December, Smith was released from custody having served a sentence of 21 months' detention. He was soon to become involved in this offending. 21. There was next a group of offences on 8th December. The BMW was stolen from a cinema complex car park by the recently released Smith. A Range Rover Freelander was stolen from a carpark in the city centre. The Frontera was then used to breakdown the front window of Jessops Store in Wade Lane in the city centre and the Freelander and BMW were also used in the course of the commission of the offence. £40,000 worth of damage was caused and photographic equipment valued at £16,000 was stolen. Smith accepted involvement in that offence. 22. The following they, on 9th December, Brattley, Buike and Smith were arrested. Again, they were released on bail. 23. On 11th December a Renault Espace was stolen in York Road and it was involved in the attempted theft of a Subaru Imprezza in the car park of Ikea. Later the same day the Renault Espace was used in a robbery at a garage when a car was taken, but none of the offenders accepts responsibility for that. 24. We next go to the 12th December. A Peugeot was stolen from outside a newsagents by Buike. In the early hours of 13th December, there was an attempt to smash into a restaurant by the occupants of that vehicle. Twenty minutes later there was a ram raid at the premises of Richer Sounds at Vicar Lane in the city centre. A Vauxhall Corsa and the Peugeot were used in the commission of that offence. Goods to the value of £6,000 were stolen. Buike pleaded guilty to that offence albeit on a separate indictment. He was arrested that day and thereafter remained in custody. That was the second matter of burglary for which he received a concurrent sentence. 25. The next group of offences occurred on 14th December. A Suzuki Vitara was stolen from a carpark and a Ford Mondeo was stolen from outside a public house. A Range Rover was also stolen from the carpark of the White Rose shopping centre. Smith accepted that he was involved in that theft. 26. On the same day there was a burglary at Mitchells Camping Store in Wakefield, in which the Suzuki, Range Rover and Ford Mondeo were used for transport. That burglary was not a ram raid, it was carried out by way of a hole made in the roof of the building and £35,000 worth of clothing was stolen. Smith accepts involvement. 27. A week later, on 21st December, a BMW was stolen from outside a launderette by Smith, and a Subaru Imprezza was stolen from the car park of the White Rose shopping centre. That night police officers saw three men pushing it along a street in Leeds city centre. The men ran off. Boylan and Smith were found hiding nearby. A balaclava was found in the area and Boylan's DNA was found on skin flakes within the Balaclava. Fibres from Smith's tracksuit were found on the seat of the vehicle. That was the offence with which Smith was charged separately, with offences of aggravated vehicle taking, going equipped for burglary and driving while disqualified and for that he received a sentence of 6 months' imprisonment in the Magistrates' Court on 8th June 2006. 28. Following a break for Christmas and the New Year, offending began again on 3rd January 2006, when the keys for a Ford Focus were stolen in the course of a domestic burglary, after which the car itself was stolen. On 6th January, there was a burglary at Sally Hair and Beauty Supplies. Amplifiers which had been taken from the Ford Focus were used to smash the window of the front door and property to the value of £5,319 was stolen. Callaghan and Brattley were involved in that. 29. The next day there was a burglary at S & P Metal Polishers. The shutters of the front doors were forced and internal windows were smashed. The damage would cost £2,000 to repair. Various items were stolen. The Ford Focus was used in the course of that offence, which Callaghan and Brattley admit. 30. The final offences occurred also on 7th January. A Vauxhall Frontera was stolen from outside a cinema by Brattley. It was then used in the course of a ram raid at Cardigan Mills Business Centre. Damage was done to the value of £3,000, and property worth £2,500 was stolen. Callaghan and Brattley admit responsibility. That then is a brief description of this calender of extremely serious crime. 31. Notwithstanding their relative youth, all five offenders had substantial numbers of previous convictions. Callaghan had ten previous court appearances in relation to 21 offences, which included the taking of motor vehicles and commercial burglaries, one of which involved a ram raid. 32. Brattley had appeared on eight previous occasions for a total of 13 offences, the majority of which were aggravated vehicle taking and commercial burglaries. Three of the burglaries were of a ram raid type, involving stolen vehicles. 33. Boylan had been convicted on six previous occasions for a total of nine offences. Almost all related to the taking of vehicles and commercial burglaries including one ram raid offence. 34. Buike had appeared on 11 previous occasions for a total of 23 offences. They included commercial burglaries and the taking of vehicles. There was one ram raid type offence. 35. Smith had been before the courts on 19 previous occasions in respect of 39 offences. They included a number of offences of theft of and from motor vehicles and two commercial burglaries. 36. It is next necessary to say something about offending of this kind and, in particular, about ram raiding. Such offences are burglaries of a particularly serious kind. Miss Whitehouse has referred us to three relevant authorities. In R v Percy (1993) 14 Cr App R(S) 10, giving the judgment of this Court, of which the then Lord Chief Justice was a member, Macpherson J referred to the gravity of this kind of offending. He said: "...inevitably cars are stolen and damaged. Property is damaged. An offence of this kind is an affront to the public who are present. Furthermore, there are risks that people would be injured in the commission of the crime and in the escape of those who go off in the high powered car which is always used as the getaway vehicle." A sentence of 5 years, following a plea of guilty to burglary, for a single ram raid was upheld. The Court said: "This was a heavy sentence, but it was heavy crime: much closer to armed robbery than ordinary theft." 37. Lest it be thought that that contains a slight element of hyperbole, we refer next to the case of R v Byrne & Ors (1995) 16 Cr App R (S) 140 . Again, the offenders were sentenced to 5 years' imprisonment for a single ram raid offence following pleas of guilty. We acknowledge that it was different in style from the offences in the present case, in that it was committed by older men who stole a JCB digger from a construction site and used it to remove an automated cash machine from the wall of a building society. Nevertheless, Lord Taylor CJ took the opportunity to express some general views about ram raiding offences, which he described as prevalent and extremely serious. He added at page 142: "The gravity can be stated in this way. First, it is almost always a composite offence: it involves the theft of other vehicles before the main theft is attempted. Secondly, it involves targeting a particular prize, and planning the offence with deliberation ... Thirdly, whatever may have been obtained by thieves by this method... there will almost always be serious damage to property ... A further aggravating feature is that this type of offence is aimed at defeating even the best security... It is a kind of military operation against whatever security precautions may be applied to any building. Finally, there is the element of breach of the peace. In middle of the night... there was an operation going on which roused people and put some of them in fear. It is an affront to civilised society; it is outrageous offence. It transcends the ordinary type of attempted theft." 38. There, the references to theft as opposed to burglary, derived from the fact, perhaps generously conceded, that the attack on the automated cash machine did not involve entry to the building. Once again the sentences of 5 years were upheld. They were described as "not a day too long." 39. Finally, we refer to R v Richardson and Brown [1998] 2 Cr App R(S) 87. That involved a single ram raid offence, again with the assistance of a stolen JCB and lorry which were used to attack a cash dispenser. His Honour Judge Clarke QC, as he then was, referred to Percy and to Byrne & Others . He described sentences of 5 years, following pleas of guilty as "richly deserved." He added that at page 90: "A real differential should in our judgment be maintained between even domestic burglaries of some gravity and determined commercial burglary of this sort on a bank, with vehicles and equipment such as were used in this offence." He later added that the sentence after a trial would have not yet been less than 7 years. 40. We accept that there are differences between those cases, particularly the latter two, and the present case but they are not necessarily differences which bespeak a difference in approach to sentencing. What can be characterised as sophistication in the latter two cases, may have been absent in the present case but, in another sense, that was more than made up for by the sheer persistence, aggression and recklessness of the offences which underlay the indictment with which we are concerned. We have considered those authorities. They seem to us to suggest that in the context of a single ram raid offence, a starting point in the region of or approaching 7 years, following a trial, is implicit in all of them. 41. In the course of her submissions, by reference to the document placed before the Court, Miss Whitehouse has referred to aggravating features in the present case. Of the five offenders all but Callaghan were on licence at the time of the commission of at least some of the offences. All were arrested during the currency of the conspiracy and released on bail but continued to offend whilst on bail. The damage to the property and the value of the property taken was high. The case was concerned with a plurality of offences committed over a period of 4 months. They reflected a significant degree of planning and were carried out, indeed, could only been carried out by a group acting together. 42. She submits that the mitigating factors were really limited to the timeliness of the pleas of guilty, for which full credit was due and the relative youth of the offenders who were aged between 18 and 22 at the time of the commission of the offences. 43. Neither Miss Whitehouse nor any of the counsel representing the offenders has suggested that the judge fell into any error in the differentials imposed in the sentencing of the five offenders. The key question is whether the sentences were unduly lenient because the judge simply underestimated the gravity of the offences and started with an imputed starting point which was too low. 44. Before we say any more of that, there is another aspect of the case which has been the subject of some debate at the Bar. Miss Whitehouse submits that these being offences of conspiracy, each of the offenders bears some responsibility for the offending of all the others, even when his role was more limited. She, of course, accepts that in the case of an offender who was unavailable for a period of the offending, by reason of being outside the country or in custody, that illustrates a reduced involvement, but she still advances the proposition to which we have referred in general terms. She does so by reference to Attorney-General's Reference Nos 52 and 53 of 2006 ( R v Toth and Rance ) [2006] EWCA Crim 2571 , where this Court, presided over by the President of the Queen's Bench Division, was concerned with a spate of offending over a period of time, subsumed under the charge of conspiracy. Giving the judgment, the President said at paragraph 9: "We shall, of course, look at the individual offences admitted by each of these offenders in the basis of plea, but we must emphasise at the outset that this was a wide-ranging conspiracy, in which there were a number of young men, who came together to terrorise -- no other word will do -- victims who happened to be chosen. For some time this group of young men was completely out of control, on the rampage, committing violent crime, and no doubt as each crime was committed, it encouraged them to commit the next one. The sentences on the individuals should reflect not only their participation in specific offences, but their involvement in the conspiracy, in the broadest sense. In brief, therefore, for as long as he was party to the conspiracy each conspirator sustained and supported the other conspirators in the crimes in which they did not personally participate. It was, truly, a conspiracy in the broadest sense." 45. Miss Whitehouse invites us to take a similar view of this case. Counsel for the offenders draw our attention to Attorney-General References Nos 60 and 67 of 2006 ( R v VC and VR ) [2006] EWCA Crim 2777 and by reference to paragraph 10 of the judgment of Hughes J invite us to categorise this case differently from the way in which the Court approached the conspiracy in Toth & Rance . 46. In the absence of the matters to which we shall shortly refer, it seems to us that there would have been every justification for treating the case precisely as the President treated the case in Toth & Rance . However, it is difficult to escape the impression in this case that there was at least tacit understanding between prosecution and the defence that the case should be approached on the basis of limited admissions of involvement in particular offences by specific offenders. No Newton hearing was sought and the judge appears to have acquiesced in that approach. For that reason, we restrain ourselves from approaching the matter in precisely the way described in Toth & Rance but nevertheless that ultimately provides little benefit to these offenders because, on any basis, we have to deal with them, in each case, on the basis of repetitive involvement in offences of this kind. We have already indicated precisely who accepted what. They all carried out this grave saga of offending, with multiple overt participations and there were the aggravating features, including offending whilst on licence and re-offending whilst on bail, to which Miss Whitehouse has referred and we have detailed. Thus, although we do not approach these young men on the basis that each of them was responsible, to some extent, for every offence committed in the sequence of events, and we take account, in particular, of the occasions when individual offenders were unavailable for offending either as a result of absence from the country or incarceration, nevertheless, it is readily apparent that this was multiple offending, repetitive offending on a grand scale. Therefore the benefit accruing from the classification of the case a little below that of Toth & Rance by way of the approach to conspiracy does not greatly benefit these offenders. 47. Having regard to all that we have said, we have no hesitation at all in concluding that the sentences imposed in Leeds were unduly lenient. Taking, as we do from the authorities, a starting point of or approaching of 7 years for a single offence, following a trial, that must be obvious. 48. We propose to accede to the application by the Attorney. We reject the submissions made on behalf of all offenders that the sentences, whilst lenient, were not unduly lenient and we reject the submission that even if they are unduly lenient, we ought not to interfere with them. In our judgment, even after so-called double jeopardy has been taken into account, these sentences fell massively short of the level which ought to have been imposed in each and every case. 49. We have taken into account the points made by counsel. They leave us with the clear impression, in all the cases, that the significant mitigation was that referred to by Miss Whitehouse, namely timely pleas of guilty and relative youth, although there are some small personal matters in relation to some, if not all offenders which we keep in mind even though it will no doubt be appreciated that they do not assist greatly in the fixing of the appropriate sentences. 50. We quash the sentences for the conspiracy in each and every case. In the case of Callaghan, in place of the sentence of three-and-a-half years' imprisonment, there will be a sentence of six-and-a-half years; in the case of Brattley, in place of the sentence of two-and-a-half years' detention there will be a sentence of 5 years' detention. In his case, we have specifically taken into account the fact that he alone of these offenders has been released from his sentence some 2 months ago. He therefore will have to return to prison and double jeopardy, in his case, is something to which more credit attaches than in any of the other cases where the offenders remain in custody. 51. In Boylan's case, the sentence of two-and-a-half years' detention will be increased to one of five-and-a-half years. There is a consecutive sentence of 4 months in his case and so the total becomes 5 years and 10 months. 52. In Buike's case, the sentence of two-and-a-half years will be increased to one of five-and-a-half years. In his case there is a consecutive sentence of 9 months and so the total sentence becomes one of 6 years and 3 months. 53. In Smith's case, the sentence of 2 years' imprisonment will be replaced by one of 4 years' imprisonment. We have accepted the principle of double jeopardy in all the cases, but for the reasons to which we have adverted, we do not think that any of those still in custody are entitled to a great deal of credit for that aspect of the case. 54. In the case of Brattley, the order of the Court will have to require him to surrender so as to resume his sentence. 55. MR BATISTE: Might I inquire if the same allowance is made under section 240 of the Criminal Justice Act for the time spent in custody. 56. MR JUSTICE MAURICE KAY: Certainly. 57. MISS WHITEHOUSE: May I make a minor correction to your Lordship's judgment. Your Lordship suggested that in the case of Buike he had been given a consecutive sentence of 9 months' imprisonment, in fact it was one of 6 months' imprisonment, so his total sentence is therefore one of 6 years, in my submission. Would your Lordship specify the time by which Mr Brattley should surrender. 58. MR JUSTICE MAURICE KAY: What is the usual order? 59. MISS WHITEHOUSE: 24 hours. 60. MR JUSTICE MAURICE KAY: 24 hours. He is on home detention curfew and there is no difficult in his attending. 61. MR BATISTE: I cannot argue with the time period. The police station he would surrender to would be Killingbeck police station, in Leeds. 62. MR JUSTICE MAURICE KAY: Thank you very much. 63. MR STUBBS: Can I come back to Buike and correct a direction of my learned friend. His sentence was two-and-a-half years with 3 months consecutive. 64. MR JUSTICE MAURICE KAY: Three months. 65. MR STUBBS: The sentencing remarks at page 5 "the consequence in your case Buike aggravating vehicle taking, driving whilst disqualified, 23 years old, your sentence I think will be the same as others, two-and-a-half years conspiracy for the aggravated vehicle take short extra sentence of the 3 months driving while disqualified 3 months disqualified from driving 2 years and 9 months so two-and-a-half years with 3 months consecutive." 66. MISS WHITEHOUSE: That is entirely right. 67. MR JUSTICE MAURICE KAY: We make the correction. Thank you very much.

2007_07_11-1166.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/3383/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/3383

52b1a8b4c81cfebd5da7a1e11289dcf44b9777f5555ad2d6517147c93b72cc91

[2005] EWCA Crim 315

EWCA_Crim_315

2005-02-09

crown_court

No: 200406421/C5 Neutral Citation Number: [2005] EWCA Crim 315 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 9th February 2005 B E F O R E: LORD JUSTICE JUDGE (Deputy Chief Justice of England and Wales) MR JUSTICE CURTIS MR JUSTICE MCCOMBE - - - - - - - R E G I N A -v- GAVIN BURT - - - - - - - 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

No: 200406421/C5 Neutral Citation Number: [2005] EWCA Crim 315 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 9th February 2005 B E F O R E: LORD JUSTICE JUDGE (Deputy Chief Justice of England and Wales) MR JUSTICE CURTIS MR JUSTICE MCCOMBE - - - - - - - R E G I N A -v- GAVIN BURT - - - - - - - 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 R COTTAGE appeared on behalf of the APPELLANT MR J HILLEN appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. LORD JUSTICE JUDGE: On 11th July 2002 in the Crown Court at Maidstone before His Honour Judge David Croft and a jury, Gavin Burt was convicted of one count of kidnapping and a second count of having a firearm in his possession with intent to commit an indictable offence. On 11th July he was sentenced to six years' imprisonment on the first count and two years' imprisonment on the second to run consecutively, making a total sentence of eight years' imprisonment. Appropriate orders were made under the Firearms Act for forfeiture. 2. There were two co-accused. Both were convicted of the same count. They were called Collins and Keep. Keep was also convicted of a further offence of doing an act tended and intending to pervert the course of public justice. Collins was sentenced to a total of ten years' imprisonment and Keep to a total of 11 years' imprisonment. They appealed against their convictions with leave of the single judge. On 28th January 2004 the Full Court allowed the appeals and quashed the conviction and ordered a retrial. McCombe J, who sits as a member of this constitution, was a member of the Court which quashed the convictions of Collins and Keep. A detailed judgment was given by Thomas LJ. We do not propose to refer to that judgment. It is available for perusal if anybody wants to see it. 3. On 5th April 2004, following the order of the Full Court, at the plea and directions hearings at what was to be a retrial of Collins and Keep the Crown offered no further evidence. Thereafter, as the Crown had offered no further evidence, the present appellant applied to the Court to treat his abandonment of his application for permission to appeal as a nullity. On 9th November 2004 the Full Court concluded on examination of the authorities that it was unable to grant that application on jurisdictional grounds. The Court acknowledged that there was an injustice, expressed concern at the appellant's continuing detention and suggested that a rapid application should be made for the case to be considered by the Criminal Cases Review Commission. Again a detailed judgment is available and we need not recite it. 4. The Criminal Cases Review Commission, considered the application and has now referred the matter back to this Court. In the meantime the applicant was granted unconditional bail and he has remained on unconditional bail throughout. 5. The point in this case is that the allegations of kidnapping and possession of a firearm depended on the evidence of a witness Michael Hutchinson. Hutchinson was a man with a lengthy criminal record who was also a drug addict, but who was advanced as a witness of ..... 6. On 10th October 2001 he drove to a police station, ran into it with blood on his face and hair, and apparently in a very poor state. He told the police that he had been to a house to sell cannabis and that he had been assaulted and forced into the boot of a car. A gun was pointed at him. 7. However, between the conviction of Keep, Collins and this appellant and the hearing of the appeal of Collins and Keep, on 28th January Hutchinson had made allegations of blackmail against another man. He asserted that this man had threatened him in order to get him to change his evidence about the kidnapping offence. He claimed that during the time that the appeal of Collins and Keep was pending the man had sent threatening messages and had gone to his house with a gun and threatened him. The man asserted complete ignorance about events at the original trial, and that such threats as he had uttered related to a business deal in which Hutchinson had taken his money and failed to provide the goods that he was contracted to provide. He also said that he had received a number of telephone calls from Hutchinson about the goods. Hutchinson denied knowing this man's telephone number. 8. As a result of the police investigation it was discovered that the assertions made by this man were true and that the allegations made by Hutchinson were false. The Crown considered that it would not be safe to rely on the credibility of Hutchinson as a prosecution witness in any potential proceedings against the third man, and, following that, they decided that it would be wrong to rely on him as a witness of truth at the forthcoming retrial of Collins and Keep. Accordingly, no evidence was offered against these two men. That meant, as a matter of logic, that the conviction of this appellant would be no safer than if any conviction which would have resulted from the retrial of Collins and Keep. The Crown accepts that it would be inappropriate for Hutchinson to be treated as a witness of truth in respect of any of the allegations involving the appellant. Accordingly, the Crown accept that the conviction should be quashed. 9. We have examined the papers. We think that is an appropriate and sensible response by the Crown to the harsh realities of this case. We shall therefore quash the conviction. We express our grateful thanks to the Commission for giving this case the rapid attention it has done. 10. MISS COTTAGE: My Lord, can I echo that. They were extremely helpful. 11. LORD JUSTICE JUDGE: That, too, will appear on the transcript and a copy of the judgment, together with those remarks, will be sent to the Commission. Thank you very much.

2005_02_09-444.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/315/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/315

bad9866e932bb262df75194c96fc519a7e9dad882e1958b252f5151a2d25424a

[2015] EWCA Crim 1684

EWCA_Crim_1684

2015-09-08

crown_court

No: 201501854/B3 Neutral Citation Number: [2015] EWCA Crim 1684 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 8 th September 2015 B e f o r e : LORD JUSTICE BURNETT MR JUSTICE LINDBLOM MRS JUSTICE CARR DBE - - - - - - - - - - - - - - - - - R E G I N A v MICHAEL BOXER - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited Trading as DTI 165 Fleet Street London EC4A 2DY Tel No: 020 7

No: 201501854/B3 Neutral Citation Number: [2015] EWCA Crim 1684 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 8 th September 2015 B e f o r e : LORD JUSTICE BURNETT MR JUSTICE LINDBLOM MRS JUSTICE CARR DBE - - - - - - - - - - - - - - - - - R E G I N A v MICHAEL BOXER - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited Trading as DTI 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - Ms T Lloyd-Nesling appeared on behalf of the Appellant Ms S Thomas appeared on behalf of the Crown - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE BURNETT: Between 17th and 20th March 2015 the appellant was tried in the Crown Court at Merthyr Tydil before His Honour Judge Richards and a jury on an indictment containing two counts of sexual activity with a person with a mental disorder impeding choice, contrary to section 30(1) of the Sexual Offences Act 2003. 2. The complainant, whom we shall call "A", was a 46-year-old man with a mental functioning age of a child of 7 or 8. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence to protect the identity and anonymity of A. The two alleged offences were part of a course of conduct over a short period said to have occurred on 16th March 2014 in a park in Aberdare. 3. The appellant was convicted on count 1 but not on count 2. He was later sentenced to a community sentence with various ancillary orders and restrictions. 4. The appellant appeals with leave of the single judge on four grounds, albeit that the terms in which he gave leave indicated his view that there might be substance in only the first. They are: (i) The judge was wrong to allow the prosecution to play the Achieving Best Evidence interview of A because the officer who conducted it failed to adhere to the guidelines for conducting such interviews. It is said that judge should have excluded it under section 27(2) of the Youth Justice and Criminal Evidence Act 1999; (ii) Notes from the jury, one during the evidence and one after they retired, suggested that they were speculating in particular about the appellant's character; (iii) In consequence the judge should have discharged them and (iv) The verdicts were illogical and thus the conviction unsafe. 5. It was common ground at the trial that A was competent to give evidence and also that he was unable to consent to sexual activity. That was the expert view of both an intermediary and psychiatrists. 6. A lived with his cousin, John, who was also his carer. He was able to go out and about alone and also held down a job. He often visited the park where he was well known to other park users including the appellant who had known him for some years. The park keeper also knew him well. The appellant used to walk his dogs in the park. The park had public lavatories, close to which were some bushes or small trees. On 16th March A went alone to the park. At about 10.30 he and the appellant were seen by Konrad Pastor to enter the area of bushes. Mr Pastor knew the appellant, who he saw standing in the bushes making eye contact with A. He sat on a bench nearby and continued to observe because he felt uneasy about the situation. Both men were still in the bushes. A few minutes later he saw A jogging away and the appellant "scuttled" out of the bushes. He reported the matter to the park keeper. He thought there were two separate incidents of the appellant going in and out of the bushes. He observed the appellant adjusting his flies on one of those occasions. 7. The park keeper ran over to investigate but neither A nor the appellant was any longer there. About five minutes later he saw A by the cricket pitch. He spoke to A who said that the appellant had put his hand inside his trousers. A kept apologising but was told by the park keeper that he had done nothing wrong. Later the park keeper spoke to John and also contacted the police. 8. Later that evening A repeated his allegation to John saying that it was the "lollipop man". That was a description he was also to use in his ABE interview. He knew the appellant from the days when the appellant was indeed a lollipop man working outside a nearby school. It was common ground that they knew each other from those days. 9. John asked the complainant to explain precisely what had happened because there had previously been a misunderstanding when some girls had put their hands in his pockets. On that occasion it was assumed that the girls were trying to take some money from him. 10. A was ABE interviewed on 19th March 2014. There was no intermediary present. The essence of his account was that the appellant had sexually assaulted him twice, by undoing his trousers and touching his penis. Before doing so A said that the appellant had tied up his dogs. 11. The appellant was arrested the next day. In his first interview he explained that he had entered the bushes to urinate. Although A had followed him into the bushes nothing else had happened. In a subsequent interview the appellant repeated that he had gone to the bushes to urinate but said that A had been masturbating. As a result he, the appellant, left. He denied any wrongdoing. 12. At trial the appellant's case was that he was not involved in any sexual activity with A. The allegation was completely false. A had unexpectedly removed his penis from his trousers and started to masturbate of his own accord. The appellant had told him to stop and put it away. 13. The appellant said that the account he gave in his second interview was the correct and true account. The omission in his first account to explain the additional detail was because he could not believe he was in the cells and he just wanted to get home. He explained that his failure to use the lavatories which, as we have indicated, were close by the bushes was because it would have been inconvenient to do so given he had two dogs with him. 14. In advance of the trial the prosecution sought the advice of an intermediary about the appropriate way to deal with A's evidence in court. The intermediary provided a report and also gave evidence before the jury at the trial. She explained that A had moderate to severe learning difficulties, in relation to both receiving and expressing information. Nonetheless he could communicate in a basic way. He had some problem in identifying colours. He could understand concepts of "what" and "where" but he had more difficulty in explaining "why" he had done things. He would not find it easy to express his own motives. 15. Questions for cross-examination of A were agreed in advance by all concerned with the assistance of the intermediary. The answers given by A in the course of his cross-examination added very little to the account which he had given in the ABE interview. In that cross-examination he repeated that he had told both the park keeper and John about what had happened. He denied that he had touched his own penis. Ground 1, the ABE interview 16. As material, Section 27 of the 1999 Act provides: "27 Video recorded evidence in chief. (1)A special measures direction may provide for a video recording of an interview of the witness to be admitted as evidence in chief of the witness. (2)A special measures direction may, however, not provide for a video recording, or a part of such a recording, to be admitted under this section if the court is of the opinion, having regard to all the circumstances of the case, that in the interests of justice the recording, or that part of it, should not be so admitted. (3)In considering for the purposes of subsection (2) whether any part of a recording should not be admitted under this section, the court must consider whether any prejudice to the accused which might result from that part being so admitted is outweighed by the desirability of showing the whole, or substantially the whole, of the recorded interview." Comprehensive guidance is available for those who conduct specialist ABE interviews known as "achieving best evidence memorandum of guidance". 17. Ms Lloyd-Nesling submitted to the judge, as she submits to us, that the ABE interview should not have been played to the jury because of failures by the interviewing officer, DC Powell, to conduct the interview in accordance with that guidance. It is her contention on behalf of the appellant that the evidence should not have been placed before the jury in DVD form because the failings were, for the purposes of section 27(2), circumstances which should have led to the conclusion that it was not in the interests of justice for it to be played. She also formulated the application before the judge by reference to section 78 of the Police and Criminal Evidence Act 1984. 18. In her written submissions to the judge Ms Lloyd-Nesling relied upon four factors: (i) The officer did not involve an intermediary. (ii) There was an inadequate explanation whether A understood the difference between truth and lies. (iii) DC Powell used many leading questions during the course of the interview and also what are known as "tag" questions. They are a form of leading question which comprise a statement followed by a tag such as "isn't it" or "that's right" at the end. The guidance cautions against using such questions. (iv) No assessment was made regarding A's competence to give evidence before he was questioned by the police officer. No point is now taken regarding the questions of competence or A's understanding of the difference between truth and falsehood. The result of the application, had it succeeded, would have been to require the prosecution to elicit A's evidence in chief in the conventional way, albeit with appropriate special measures in place including, no doubt, the advice of, and careful crafting of questions with the help of, an intermediary. 19. The correct approach of a trial judge when confronted with an application of this nature is well settled. It is summarised in two judgments of Hooper LJ in this court, namely in R v Hanton [2005] EWCA Crim 2009 and R v K [2006] EWCA Crim 472 [2006] 2 Cr App R 10 . The test is found in paragraph 23 of K : "In R v Donald Hanton ... the Court of Appeal ... was concerned with a case where there was a number of alleged breaches. Having considered G v The DPP, it adopted as the test: 'Could a reasonable jury properly directed be sure that the witness has given a credible and accurate account on the video tape, notwithstanding any breaches?' If 'Yes', it was a matter for the jury. If 'No', the interview would be inadmissible (see paragraphs 10, 19). The test could also be expressed in this way: 'Were the breaches such that a reasonable jury properly directed could not be sure that the witness gave a credible and accurate account in the video interview'. 20. That formulation recognises that the guidance is designed to elicit evidence which can be relied upon. If on any view the evidence cannot be relied upon it should not go before the jury. The test echoes the well-known formulation in the second limb of R v Galbraith [1981] 1 WLR 1039 . 21. The first question for a judge when considering such an application is whether there has been a failure to comply with the guidance. 22. The interviewing officer spoke to A before the interview and had also spoken to John about him. She was aware of his developmental problems and that he had an intellectual age of 7 or 8. She was trained in dealing with vulnerable adults. Following her assessment she concluded that an intermediary was not required at that stage. Having watched the totality of the DVD interview we can well see why she formed that view. The guidance requires consideration to be given to an intermediary and then, if it is decided to use one, to take advantage of the assistance an intermediary can provide in the form and structure of questions. 23. There was no non-compliance with the guidance in this regard. The fact that later the prosecution involved an intermediary who gave advice on the form of questioning does not lead to a conclusion that the guidance was breached at the interview stage. That said, it may provide support in an appropriate case for an argument that the evidence is so unreliable that it should be excluded under section 78. 24. As it happens, in this case the intermediary gave evidence about her assessment of A which explained in detail his difficulties and the shortcomings of his evidence including shortcomings relating to his understanding of tag questions and so forth. It is clear that the jury had the full picture. 25. At this point we note an additional factor raised by Ms Lloyd-Nesling in her oral submissions which although not a feature in the written submissions before either the judge or the grounds in this appeal, is a point upon which she places some reliance. It is that the officer should not have had a discussion with A before the interview. During that discussion he gave an account which was essentially the same as that which appeared in the ABE interview. The guidance cautions against such an approach, no doubt to avoid any unintentional possibility of coaching. We shall bear that argument in mind when we come to determine the issue. 26. It is clear that the interview did not comply with guidance in that there were indeed many leading and tag questions. Furthermore, at the beginning of the interview, when the officer was performing introductions, she suggested that "something has happened that its not very nice, is it" along with other observations that A was there to explain what had happened in the park. Ms Lloyd-Nesling submits that is an expression of view by the officer which raises at least a danger of encouraging A to make a complaint which is not true or not accurate. It is the sort of suggestive language which the guidance cautions against. 27. We remind ourselves that it is for the trial judge to form the opinion or not identified in section 27(2) of the 1999 Act. This court will interfere only if the conclusion was not open to the judge. In his ruling the judge correctly identified the test he was obliged to apply, namely the test which we have quoted from K . The judge accurately identified the shortcomings in the interview process. That said, the judge took the view that A had given his central account at least as regards the first incident early on in the interview in response to an open invitation to him to explain what had happened. A gave direct answers. As the judge noted, he gave an account relating to the whole of the events without leading questions. For the most part leading questions came later in the interview, by way of repetition. The officer had the good sense to use appropriate language when questioning A. By that the judge meant using language of the sort that A himself used rather than more complex language which might ordinarily be employed with an adult. The judge found that feature compelling. He had particular regard to the overall impression he gained from viewing the video in coming to his conclusion on what he described as the fundamental question, namely "could a reasonable jury come to the conclusion that he is giving a reliable and accurate account of something which happened to him during the course of this video-tape?" Ms Lloyd-Nesling criticises the ruling for failing to deal, if not with each and every of the leading and tagged questions, at least with many of them. We do not accept that criticism. The ruling was clear. It set out the test at the beginning and at the end. It summarised the substance of the interview in the context of the breaches of the guidance which the judge recognised. It reached a clear conclusion. 28. We asked for a copy of the DVD and have watched it. We too would come to the same conclusion as the judge, were it for us to make the primary decision. It follows that we have no doubt that he was entitled to come to the conclusion that he did. It appears to us that A gave a coherent and clear account in answer to open rather than leading questions. The criticised observations at the outset of the interview in our judgment were made almost in passing; and we did not form the impression that they conditioned anything that followed. 29. The answers given by A suggested a degree of confidence and no obvious lack of comprehension. For example, he quickly corrected the officer when she mistakenly suggested that he had earlier said the appellant was wearing a red hat. When asked which hand the appellant had used A without hesitation immediately said his right hand and then demonstrated. A was clear when asked about his underwear that he was wearing pants and not boxers. He asked some questions including when the police would sort this out. When asked: "What have you come to tell me" he gave his account. In answer to the question whether the appellant had asked him, that is A, to touch the appellant he gave an immediate and clear answer in the negative. We would add that we can see no basis for believing that the criticism of the officer in having an anterior discussion rendered the interview which followed unreliable. 30. Despite Ms Lloyd-Nesling's careful submissions, in our judgment the circumstances of this interview were far removed from those which would have called for the exclusion of the DVD for use as evidence in chief by applying the test in K . 31. The DVD was then edited to exclude questions and answers about which the defence team had concerns. In his summing-up the judge went out of his way to make sure that the jury was alive to the shortcomings in the process including in the cross-examination of A. The judge emphasised the need for the jury to bear all that in mind in fairness to the appellant. Grounds 2 and 3, the jury notes 32. Underpinning the appellant's concerns arising from the jury notes is that they were speculating about his character. No good character direction was given because the appellant has a conviction as a man in his early 20s for indecent assault on a male under 16. He is now 76. For reasons which are understandable the appellant was anxious that this conviction should not be in evidence before the jury. It may also explain why no character evidence was called on his behalf. 33. On the second day of the trial the jury asked two questions in one note: "John (cousin & carer) said the first words [A] said walking up the stairs was 'The lollipop man'. John, in turn, said something like 'That caused alarm, due to the past/history' What was his reason to be alarmed?" Second question: "[A] said "The parky doesn't like him' (Mr Boxer) What made him think or say that?" 34. We do not have a transcript of how the judge dealt with those questions but do have Ms Lloyd-Nesling's helpful note. As to the first part the note reads: "Not a great deal of light that I can shed your note. You have no evidence as to that. [The cousin]now not here, so couldn't asked him today and not sure it would be proper use of court time to wait for him to answer. The defence have closed their case anyway. Wrong to speculate on what, if he had been, both counsel had the opportunity to present whether evidence they think appropriate. That is what was said it would be speculation to try to work out what was said. Try not to speculate." As to the second the note continues: "Re park keeper, we don't know the answer to that question. Counsel couldn't ask it because advice of intermediary was he had great difficulty with questions beginning why and he shouldn't be asked. Intermediary said he would not be able to explain and to ask why another person didn't like someone would be too long and complex given his communication difficulties.... Could he might be asked by either counsel. Neither counsel chose to ask and he didn't express his views about Boxer. No suggestion he had any adverse view still less he had been influenced in his behaviour. Would be simple speculation to attribute any views to him, or that A correct. In these circumstances, important you don't speculate, down attribute anything significant to anything not explored. It is counsel's job to explore. Pity not here to give his account don't speculate." 35. These exchanges took place before speeches and the summing-up. The questions appear to us to be an example of a relatively common phenomenon in criminal trials of the jury asking for a loose end to be tied up which, for one reason or other, the parties have overlooked, considered irrelevant or left alone for good reason. No criticism is made of the way in which the judge dealt with it. It maybe the questions were prompted by an interest in whether there was something about the appellant which the jury had not been told. We cannot know. However, in the summing-up which followed the judge gave a clear warning against speculation about which no criticism is made. 36. During their retirement the jury asked this question: "Did the court disallow any character witness or other on behalf of the defendant?" This led Ms Lloyd-Nesling to submit that the jury was necessarily speculating and thus ignoring the clear direction given in the summing-up. In the result she submitted that the jury should be discharged. She prayed in aid the cumulative effect of the three questions. As one would expect the judge answered the question and also repeated his speculation direction. He did so in those terms: "JUDGE RICHARDS: Well you have sent me a note ladies and gentlemen, which reads, 'Did the court disallow any character witnesses or other on behalf of the defendant?' The simple answer to that question is no, there has been no disallowing of any witnesses on either side. I should emphasise because the suspicion might arise that you were thinking as it were beyond the actual evidence which you have heard, it is extremely important that you confine your considerations to the evidence which you have heard and endeavour to reach verdicts based on that evidence. I did say during the course of my summing-up that you must not speculate, and that is extremely important. The only way in which a fair trial can take place is if juries apply their minds to the evidence which they have heard and endeavour to reach verdicts based on that evidence. So I do underline that." 37. The last of these jury questions does suggest that the jury were thinking about the appellant's character. They were reminded in clear terms not to speculate and in those circumstances we consider that the judge was right not to discharge them. Juries regularly asked questions about why something they might expect to have heard about was not given in evidence. On questions of character the reality is that the jury's interest may be sparked because one or more of them may have sat on another jury where a good character direction was given and character witnesses were called. 38. At a more prosaic level the ubiquity of television court room dramas may provide the background to questions of this nature. If such questions arise it is the judge's duty firmly to remind the jury that they should not speculate and must try the case on the evidence. That the judge did. For that reason there was no basis for discharging the jury. Illogical verdicts - ground 4 39. Ms Lloyd-Nesling's submission is a simple one. The appellant's credibility was central to the case. He had described two incidents, albeit separated by a short time and so too had Mr Pastor. If the jury was not sure on one count they could not logically be sure on the other. 40. The judge gave the jury a direction they should consider the two counts separately, to which no objection was taken. Having considered the evidence in the round, we do not consider that the jury's verdict reflected any illogicality. In the video interview A gave a clear account of the first incident. However, his account of the second was more vague. Furthermore, the agreed editing of the DVD excised much of the officer's attempt to clarify matters relating to the second alleged incident, because many of the questions were indeed leading or tagged. Thus, the jury was presented with evidence in chief much less compelling as regards the second alleged incident by comparison with the first. 41. It is quite correct that Mr Pastor gave evidence that he saw the men in the bushes on two occasions. That said, it was only on the first occasion that he saw the appellant doing his zip up. Given the standard of proof and the judge's clear and extended warning to the jury of the difficulty the appellant faced in dealing with A's evidence, in our view, the differential verdicts do not more than reflect the care that the jury took in considering the evidence. 42. We would not wish to leave this appeal without noting the very high quality of the submissions placed both before the judge and before us by Ms Lloyd-Nesling and by Ms Thomas for the Crown, who in the event we did not call upon. 43. In the result we dismiss the appeal.

2015_09_08-3659.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2015/1684/data.xml

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ca12f167d0312560b5b76401deb052ba57d121d8039463d6fb0d367900b41050

[2011] EWCA Crim 1173

EWCA_Crim_1173

2011-05-11

crown_court

Neutral Citation Number: [2011] EWCA Crim 1173 Case No: 20090057 and 200900436 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT NOTTINGHAM Ind. No. T20087036 Royal Courts of Justice Strand, London, WC2A 2LL Date: 11/05/2011 Before : LORD JUSTICE RICHARDS MR JUSTICE RODERICK EVANS and HIS HONOUR JUDGE NICHOLAS COOKE QC (sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : The Queen Respondent - and - (1) Krzys

Neutral Citation Number: [2011] EWCA Crim 1173 Case No: 20090057 and 200900436 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT NOTTINGHAM Ind. No. T20087036 Royal Courts of Justice Strand, London, WC2A 2LL Date: 11/05/2011 Before : LORD JUSTICE RICHARDS MR JUSTICE RODERICK EVANS and HIS HONOUR JUDGE NICHOLAS COOKE QC (sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : The Queen Respondent - and - (1) Krzysztof Zejmowicz (2) Tomasz Ruskinski Appellants - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Michael Wood QC (instructed by The Johnson Partnership ) for Zejmowicz Mark Evans QC (instructed by Carringtons Solicitors ) for Ruskinski TJ Spencer QC (instructed by CPS ) for the Crown Hearing date : 8 April 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Richards : 1. On 5 December 2008, after a trial at Nottingham Crown Court before the Recorder of Nottingham (HHJ Stokes QC) and a jury, the appellants, Krzysztof Zejmowicz and Tomasz Ruskinski, were convicted of murder. They appeal against conviction, with leave granted by the full court. 2. There are three grounds of appeal. The first, common to both appellants, is that the presence on the jury of a prison officer who worked at the prison where the appellants and two prosecution witnesses were held for periods before or during the trial rendered the trial unfair. The second, pursued by Ruskinski alone, is that the trial judge erred in declining to discharge the jury after he had upheld a submission of no case to answer in respect of a third defendant, Tomasz Karbowski (known as “Little Tom”, whereas Ruskinski was known as “Big Tom”). A similar ground was originally advanced by Zejmowicz but in his case it was not renewed after leave to appeal was refused by the single judge. The third ground, also applicable to Ruskinski alone, is that the judge erred in allowing the prosecution to adduce hearsay evidence in the form of a video interview of a witness who was absent abroad. The factual background 3. The charge of murder related to the death of Leszek Milon, who was found dead in his flat in Radford Road, Hyson Green, Nottingham, on Saturday 19 January 2008. He had come from Poland to live in this country in 2005 and had separated from his partner in September 2007. He shared the flat with Zejmowicz and Little Tom. 4. Paramedics called to the flat on the Saturday evening confirmed that Mr Milon was dead. They observed that he had facial injuries and that his trousers were pulled down to just below the groin, exposing his genitals. It was accepted at trial that somebody had assaulted him in the course of the Saturday, probably in the afternoon, and had inflicted very severe injuries upon him. A post mortem found almost 60 recent injuries, including six broken ribs. He died from head injuries consistent with punches, kicks or stamping, during which he sustained sufficient impact to the head to cause both subdural and subarachnoid bleeding and traumatic injury to the brain. He also had a number of obviously older injuries. 5. The prosecution case was that the appellants and Little Tom had carried out a joint attack on Mr Milon, causing the injuries which led to his death on the Saturday, and that they had intended at the very least to cause him really serious harm. 6. There was evidence from a Pastor McKenzie, who owned a shop called “AFC Chicken” on Alfreton Road. He employed a man called Pawel Zygaj to carry out work of refurbishment there. He also allowed Ruskinski, who was homeless at the time, to live in a flat above the shop, in return for Ruskinski offering to repair and redecorate the flat. On 14 January, a few days before the death of Mr Milon, the pastor met two other Polish men at the premises: they were Zejmowicz and Little Tom. During that week several Polish men were working at the AFC premises. The pastor saw Mr Milon on Thursday 17 January and noticed that he had serious injuries to the face. He suggested that Mr Milon should go to hospital but Mr Milon refused. He told the pastor that he had been attacked by the Polish mafia. None of the others in the group appeared to be concerned by the injuries. 7. A South African builder by the name of Sydwell Mzamo, who knew the Polish group as a result of working with them at the AFC premises, went to Mr Milon’s flat in Radford Road on the Saturday morning to collect a drill. The appellants, Little Tom and the deceased were all present there. The deceased had an extremely injured face and was not allowed by the others to take a cigarette or a drink from Mr Mzamo. When Mr Mzamo left, all four men were in the flat drinking. Mr Mzamo returned that evening, a few minutes before the arrival of Roman Ksiazek and others as described below. 8. Roman Ksiazek had known the deceased for a couple of months and would occasionally join him in the flat for a drink. He had seen him a few days before his death and had noticed that he had a black eye. He had also been present at the AFC premises when the pastor wanted the deceased to go to hospital. Roman gave evidence that the appellants had been responsible for the deceased’s injuries during this period and that the deceased had been forced to perform oral sex. Much of this evidence, however, was based on what Roman had been told by Little Tom and was inadmissible against the appellants: we will have to return to this when considering the ground of appeal relating to the judge’s refusal to discharge the jury after he had ruled that there was no case to answer against Little Tom. Similar evidence, raising the same issue, was given by Pawel Zygaj. 9. Roman said that on the Saturday evening he went to the deceased’s flat to get the keys for the pastor’s shop. Nobody answered the door, so he broke the window. Little Tom then opened the door and said to him, “Roman, I think they’ve killed him”. Inside he saw Ruskinski sitting calmly in the room, the deceased lying on the floor next to the sofa, and Zejmowicz running round asking what they were going to do with the body. Two other friends, namely Pawel Zygaj and Piotr Dusczczak, had accompanied Roman to the flat. The three of them spent some time there before Roman and Piotr went to a local hairdressing salon and asked the owner to call for an ambulance. The owner and the owner’s partner accompanied the two men back to the deceased’s flat and awaited the arrival of the ambulance. 10. Zejmowicz was present in the flat when the police arrived. He was taken to the police station and was then arrested as a result of information given by Little Tom. He told the police in interview that he had left the flat after Mr Mzamo’s first visit, at approximately 2.00 pm, and had not re-entered it until after the arrival of the emergency services. That account, however, was not supported by CCTV footage from the area, which appeared to show him entering the flat at 12.33 pm, leaving at 5.38 pm, re-entering at 6.07 pm and leaving again at 8.43 pm, after the discovery of the body. Zejmowicz said that he was not involved in any violence on the deceased. Officers noted that he had an injury to his right ankle, which resulted in him being taken to hospital. On forensic examination, blood matching that of the deceased was found on his shoes and clothing. A back-calculation of his blood-alcohol level revealed that he had in excess of 300 mg of alcohol per 100 ml of blood at the material time. 11. Ruskinski left the flat at about the time the ambulance arrived. He was not arrested until the following Wednesday, 23 January. He told the police in interview that the deceased had regularly fallen over owing to his excessive drinking. He said that he himself was present in the flat on the Saturday afternoon but he was extremely drunk and slept for most of the day. He heard an argument between the deceased and Zejmowicz and had a vague recollection of Zejmowicz assaulting the deceased in the living room. Some blood matching that of the deceased was found on Ruskinski’s shoes but that evidence was of limited value in itself. 12. Part of the evidence against Ruskinski concerned admissions he had allegedly made when he visited a local shop on the Monday evening following Mr Milon’s death. This is addressed in the third of the grounds of appeal considered below. 13. Both appellants gave evidence in their own defence, in each case elaborating on the account they had given in interview. 14. That synopsis, though far from complete, provides a sufficient background for consideration of the three grounds of appeal. The juror issue 15. The jury sworn in on the first day of the trial was discharged on the second day because one of the jurors had medical problems. A second jury was sworn in, consisting of nine of the original jurors and three new ones. One of the new jurors was a Mr Nightingale, who was a serving prison officer at HMP Nottingham. His occupation did not emerge until after the trial. It was then relied on by the appellants as giving rise to an appearance of bias and rendering the trial unfair. 16. It is unnecessary to rehearse in detail the law relating to jury bias. As the Court of Appeal said in R v Khan [2008] EWCA Crim 531 , [2008] 2 Cr App R 13 , at [7], the question of whether a jury is independent and impartial falls to be determined by an objective test: “whether the fair-minded and informed observer, having considered the facts, would consider that there was a real possibility that the tribunal was biased”. The court went on to consider the various forms that partiality can take, distinguishing at [9] between partiality towards the case of one of the parties and partiality towards a witness, and also referring at [12] to the situation, loosely described as bias, where a juror knows or learns of some matter prejudicial to the defendant, typically the fact that he has a criminal record when this has not been admitted in evidence. 17. One of the cases considered in Khan involved the presence of a serving prison officer on the jury. The court stated at [120] that “the mere suspicion that a juror might, by reason of having been employed as a prison officer in a prison where the defendant was held, have acquired knowledge of the defendant’s bad character could not, of itself, lead an objective observer to conclude that the juror had an appearance of bias”. In that case the Criminal Cases Review Commission had carried out an investigation at the request of the court and had ascertained that the juror had no knowledge of the defendant. In those circumstances the court concluded that there was no basis for contending that the fact that the prison officer had served on the jury was in any way prejudicial to the defendant, let alone that there was an appearance of bias. 18. The court did, however, refer at [131]-[132] to the desirability of precautionary measures so that any risk of jury bias was identified before the trial began. It did not think it appropriate to try to formulate detailed guidance as to the steps to be taken, which would involve instructions to be given by, among others, the prison authorities to their employees, coupled with guidance to court officials. But it referred to one matter that should receive attention without delay: “It is essential that the trial judge should be aware at the stage of jury selection if any juror in waiting is, or has been, a police officer or a member of the prosecuting authority, or is a serving prison officer. Those called for jury service should be required to record on the appropriate form whether they fall into any of these categories, so that this information can be conveyed to the judge.” Further, the court invited all relevant authorities, including the prison authorities and Her Majesty’s Court Service, to consider the implications of the judgment and to issue such directions as they considered appropriate. 19. In the present case, following the procedure adopted in Khan , a constitution of this court presided over by Stanley Burnton LJ exercised the powers of the court under s.23A of the Criminal Appeal Act 1968 to invite the Criminal Cases Review Commission to carry out an investigation in order to establish the relevant facts. The Commission produced a detailed report, dated 27 July 2010. A constitution of the court presided over by Pill LJ, having considered the report, granted leave to appeal on this ground. 20. The principal findings in the Commission’s report or to be derived from the documentary material exhibited to the report are as follows: (1) Mr Nightingale was at all material times a serving prison officer at HMP Nottingham, working on G wing, save during his absence on jury service. (2) In answer to a standard question on the expenses form completed by him before he was empanelled as a juror, he disclosed that he was or had been a serving prison officer, though he did not identify HMP Nottingham as his place of work. This was not brought to the attention of the judge prior to the jury being sworn or during the course of the trial. (3) Guidance issued by Her Majesty’s Court Service to agencies within the criminal justice system, including the Prison Service, stated that “where a member of prison staff is summoned to attend as a juror at the court of which his/her workplace is the calendar prison”, he or she should apply to the summoning officer not to serve at that particular court; and it advised that members of prison staff, when arriving at court as a juror, should discreetly inform the jury bailiff of the nature of their employment. Mr Nightingale said that he had not seen or been aware of that guidance. (4) His fellow jurors were aware that he was a serving prison officer at HMP Nottingham but no discussion took place regarding this at any time during his jury service. (5) The following persons involved in the trial were remanded at some point in HMP Nottingham: (a) the appellant Zejmowicz from 24 January 2008 to 29 July 2009 (on G wing from 24 January to 7 February 2008); (b) the appellant Ruskinski from 28 November 2008 to 1 December 2008 (on G wing during that period); (c) the witness Piotr Duszczak from 2 May 2008 to 3 September 2008 (on G wing from 2 May to 19 May); (d) the witness Pawel Zygaj from 2 May 2008 to 22 May 2008 (on G wing from 2 May to 19 May). Accordingly, Mr Nightingale coincided with Zejmowicz, Dusczczak and Zygaj on G wing, in each case for a period of approximately two weeks; but he did not coincide with Ruskinski, who was remanded at the prison only at a time when Mr Nightingale was away on jury service at the trial. (6) Mr Nightingale said that about half way through the trial (seemingly as a result of questions put in the course of the evidence of the witness Duszczak) he became aware that Zejmowicz and Duszczak had been remanded at HMP Nottingham. He did not raise his employment status with the court at this stage as he took the view that it already had the information on the form he had completed. Further, he had no recollection of either man from his role as a prison officer. (7) Mr Nightingale confirmed that he did not recognise either man by name or sight. He did not know whether he had encountered them while they were on G wing. He had no recollection of any dealings with them and he had no knowledge of either of them that could affect his duty as a juror. (8) Asked separately whether he had any recollection about the appellant Ruskinski or the witness Zygaj as inmates at the prison, he confirmed that he did not and that he had no knowledge of either of them prior to the trial. (9) After he had completed his jury service he accessed the system at HMP Nottingham to determine if Zejmowicz was currently held at the prison, and found that Zejmowicz was still there, on E wing. He was prompted to inform the prison authorities, as he considered that his serving as a juror could present a security risk and that Zejmowicz could potentially have borne a grudge against him. (10) Information kept on individual prisoners in the computer system operating at the time, known as LIDS, would have been limited to basic factual information such as personal details, prison work details and financial details. Other than the offence for which the prisoner was remanded, there would have been no details relating to the case. Previous convictions were not recorded, though it might have been possible to see if the individual had been in custody before. There would also have been various manual records such as a wing history sheet, with information regarding a prisoner’s behaviour in custody, and security records. 21. On the basis of that material Mr Wood QC, for Zejmowicz, submitted that the presence of the prison officer on the jury gave rise in this case to the appearance of bias. There were a number of significant features to the case. The procedures referred to at [131]-[132] of Khan had failed. Although the juror had clearly indicated on the expenses form that he was a prison officer, that information was not communicated to the judge. There had also been a failure by the Prison Service to bring to the juror’s attention the guidance issued by Her Majesty’s Court Service. Even when it became obvious to the juror that Zejmowicz and Duszczak were in custody at HMP Nottingham, he did nothing. His claim that he did not realise previously that they had been in custody there was extraordinary, given that there was a maximum of 130 prisoners on G wing at any one time. This raised a question-mark about what he told the Commission, though he could not be cross-examined on it. If the defence team had known at the time that he was a prison officer, they would have objected to him being empanelled or continuing as a juror. A particular concern related to the information that a prison officer could obtain about prisoners, such as their behaviour in prison or their security risk (though Mr Wood did not suggest that any adverse information of that kind might in fact have existed in relation to Zejmowicz). 22. Mr Evans QC, for Ruskinski, adopted Mr Wood’s submissions and added to them. He accepted that Ruskinski passed through the prison only for a short time. But he said that in Ruskinski’s case the concerns related not so much to the official information held about him but to the unofficial talk that might have been passing around the prison. There was a background of prolonged abuse of the deceased for some time before the events to which the charge against Ruskinski related. A significant number of Polish nationals passed through the prison and news of the ill-treatment of the victim must have gone round the Polish community there. Talk about it could have reached the ears of the prison officers (albeit Mr Evans accepted that any such talk would probably have been in Polish). This aspect was not explored with Mr Nightingale by the Commission. Nor was the significance of gossip in the prison considered in Khan . From the point of view of the objective bystander, the risk was huge. 23. We do not accept those submissions. We are satisfied that the fair-minded and informed observer, having considered the facts, would not consider there to have been a real possibility of bias in this case. It is of course very unfortunate that the declaration on Mr Nightingale’s expenses form that he was or had been a prison officer was not noticed or acted upon at the time, and that he himself had not seen or been aware of the relevant guidance and therefore did nothing further to bring the nature of his employment to the attention of the court. If his employment as a prison officer at HMP Nottingham had come to light at the beginning of the trial, there can be little doubt that he would have been asked to stand down as a precautionary measure and that this aspect of the present appeals, and the related cost of the investigation by the Criminal Cases Review Commission, would have been avoided. It does not follow, however, that his role as a juror gave rise in the event to an appearance of bias. That question must be assessed in the light of all the information now available; and on the basis of that information we can see no real cause for concern. 24. Mr Nightingale’s evidence to the Commission was clear, that he had no recollection of either appellant or of either of the two witnesses who had been held in HMP Nottingham; he had no knowledge of Zejmowicz or Duszczak that could affect his duty as a juror; and he had no knowledge of Ruskinski or Zygaj prior to the trial. Owing to the specific form of the questions put to him, there was not a precise symmetry between what he said about Zejmowicz and Duszczak and what he said about Ruskinski and Zygaj, but the net effect of his answers was that he was not aware of any of them from his employment on G wing. We do not accept the question-mark raised by Mr Wood about what Mr Nightingale told the Commission. The time spent by each of the appellants and witnesses on G wing was relatively short, and in Ruskinski’s case it was while Mr Nightingale was away at the trial. If, as Mr Evans told us, a significant number of Polish nationals pass through the prison, specific names would not necessarily stick in the memory of a prison officer. There is nothing to show that any of the men behaved in a way to attract attention to themselves while they were there. There is no reason for declining to accept or to act upon the information provided by Mr Nightingale. 25. Further, there is no reason to believe that Mr Nightingale, through his work as a prison officer, might have received prejudicial information about either appellant. His evidence was that he had not accessed the records of the appellants or of the witnesses, save that after the trial he checked on the computer that Zejmowicz was present at the prison. Even if he had accessed the records, they did not contain details of previous convictions. In any event Zejmowicz’s previous convictions for robbery and assault were put before the jury in the form of admissions, whilst it was accepted that Ruskinski had no previous convictions for violence or the threat of violence. Nor is either appellant said to have had an adverse disciplinary record or to have given rise to any security concerns while in prison. 26. That leaves the point raised by Mr Evans about the circulation of gossip about the case. The point was not explored in terms in the questions that the Commission put to Mr Nightingale, but it is covered by the generality of his answers that he had no dealings with or knowledge of any of the men. The suggestion that prejudicial talk about the case among Polish inmates may have reached the ears of Mr Nightingale (and, although probably in Polish, may have been understood and subsequently recalled by him) is met by those answers and is, moreover, highly speculative. It provides, in our view, a wholly inadequate basis for a finding of an appearance of bias. 27. For those reasons we reject this ground of appeal. In the case of Zejmowicz it is the only ground for which leave to appeal has been granted, and it follows that his appeal must be dismissed. In the case of Ruskinski it is necessary for us to go on to consider the two further grounds relied upon. The application to discharge the jury 28. At the close of the prosecution case the judge ruled that there was no case to answer against the co-defendant Karbowski (Little Tom). The application was in fact made, by agreement, before Little Tom’s police interviews were read to the jury but on the basis that the judge should take those interviews into account. That procedure was adopted because the interviews were not admissible against the remaining defendants but contained material prejudicial to them, and it was better for the interviews not to be read to the jury unless it had first been determined that Little Tom had a case to answer. 29. Following the judge’s ruling in relation to Little Tom, there were applications on behalf of Zejmowicz and Ruskinski that the jury should be discharged and the trial should be re-started in front of a new jury. The applications were made on the basis that it had been foreseeable from the outset that a submission of no case to answer would be made in relation to Little Tom and would have a realistic prospect of success, yet the prosecution’s opening and the evidence adduced by the prosecution included material which would not have been put before the jury but for the continuation of the case against Little Tom and which was prejudicial to Zejmowicz or Ruskinski. 30. As to the prosecution opening, there was particular concern about points drawn from Little Tom’s interviews (that is to say, material that in the event the jury did not have read to them as part of the evidence), notably a suggestion that Ruskinski had been involved in urinating over the deceased while he was still alive and in spitting at or on him. On the other hand, in submissions on behalf of the Crown opposing the application to discharge, Mr Spencer QC pointed to the lapse of time (already almost 2 weeks) since his opening and to the fact that he had been very careful to underline to the jury in his opening that what one defendant said about another defendant in that defendant’s absence was not evidence against that other defendant. 31. As to the evidence, the main concern related to repeated hearsay given in the course of the evidence of the witnesses Roman Ksiazek and Pawel Zygaj. There was an issue before us as to the purpose for which those two men were called as witnesses. We are satisfied that the prosecution had proper reason for calling them, both in support of the case against Little Tom and because it appeared that they could give direct evidence of what Zejmowicz and Ruskinski themselves had said which was relevant to those defendants’ general attitude to the deceased and to whether they had abused him sexually and had used violence on him. There was no defence objection to the evidence of Roman or Pawel at the time. They were, however, very difficult and poor witnesses (Mr Evans described the evidence of Roman as bizarre, and the judge noted in his summing-up that Mr Evans was not able properly to complete his cross-examination). 32. More importantly, their evidence also included extensive passages in which they recounted what they had been told by Little Tom about the behaviour of the appellants towards the deceased. For example, Roman gave evidence that he had been told by Little Tom of an occasion, apparently in the week before Mr Milon’s death, when the deceased was lying on the floor and the appellants were kicking him on the head as if they were playing football, standing one on each side of him; they were both laughing and kicking him. Similarly, Pawel gave evidence that he had been told by Little Tom that the appellants were beating Mr Milon. The witnesses also gave evidence of what Little Tom had said about the deceased being forced by the appellants to engage in sexual acts. This hearsay evidence was admissible against Little Tom but not against either of the appellants and was submitted to be highly prejudicial to them. 33. In ruling against the application to discharge, the judge said that he had concluded that it was perfectly safe and proper for the trial to continue against the remaining defendants. His reasons, in summary, were these. First, the evidence about which complaint was made was never admissible against either Zejmowicz or Ruskinski and the jury would have received, and would receive, a direction to that effect, which the jury could be expected to follow. Secondly, the jury would have to grapple with directions of the same kind in any event, since it was evident from Ruskinski’s interview that it was his case that it was his co-accused, not he, who carried out the attack on Mr Milon. The judge finished by saying that he would give appropriate directions to the jury when they were directed to acquit Little Tom and would remind them at that stage that any evidence of what Little Tom may have said was not admissible against either remaining defendant, and the jury would also receive appropriate directions in the summing-up. 34. We do not have a transcript of what the judge said to the jury at the time when he directed them to acquit Little Tom, but there is no suggestion that he failed to give them directions of the kind he had indicated in his ruling. 35. In the course of his summing-up, about which no complaint is made, the judge gave the jury strong directions along the lines he had foreshadowed in his ruling on the application to discharge. He gave a repeated warning that they must put out of their minds any evidence as to things said by Little Tom about the appellants. He also went further, stressing the risk that the evidence of Roman Ksiazek and Pawel Zygaj about things that the appellants had said directly to them may have been influenced by what Little Tom had told them. Thus, having referred to Pastor McKenzie’s evidence of what he had seen or heard on the Wednesday or Thursday before Milon’s death, including remarks attributed to Ruskinski, the judge continued: “But Roman says the remarks, whichever day it was, went further than that: there was a remark about Leszek [Milon] being unable to peel the potatoes because he could not see from his eyes. There were remarks, he says coming from both defendants, that Leszek had been ‘kicked round like a football, bounced like a ball’. … When he was cross-examined, Roman was unable to be precise or anything like precise about the words a particular defendant used. Do you remember? He kept saying ‘they’. Although when he was re-examined to a degree and in his evidence generally, he was saying that both of them were saying these things. Well, you will have to proceed with caution about both Roman and Pawel, because Pawel said similar things were said. You must satisfy yourselves, before you act on what they say, that they have not shifted their accounts in order to achieve consistency with each other. You remember that Pawel gave his evidence some time after Roman. … You must also carefully consider whether they have been influenced in their recollection of events or their evidence about what was said by what Little Tom had told one or other of them. You will remember, Roman said that Little Tom had told them things of what had been happening quietly, presumably so that the defendants would not hear what he was saying and you know perfectly well from your own experience of life, if somebody tells you about an event and you have to decide something, you can be influenced, not only by way you learn directly from what is then said to you by the participants in the event, but you might be influenced in some way by what someone else had told you in advance. So Mr Evans invites you to, and Mr Wood, not to accept what Roman and Pawel say about these matters, particularly when we come to the sexual content of any comments made. So if the foundation for what their evidence is has come from Little Tom, then you would have to approach it with tremendous caution and you would have to be sure, before you acted on what they say either defendant said, that they are absolutely right when they said ‘This is what I heard directly from the defendant’ and not something which they have picked up from elsewhere.” 36. Before us, Mr Evans repeated the substance of the submissions he made to the trial judge in support of his application for the jury to be discharged following Little Tom’s dismissal from the case. He pointed to the background circumstances: most of the witnesses had been comprehensively drunk during the relevant period, nobody had a clear recollection of what happened on particular days and nobody could say how the injuries that led to the death of Mr Milon occurred. The main evidence against Ruskinski came from Roman and Pawel, together with the admissions allegedly made by Ruskinski to the shopkeepers (see below), but the evidence of Roman and Pawel was hopelessly unreliable and included a large amount of inadmissible and gravely prejudicial hearsay. This was not realistically curable by directions in the summing-up. In such unusual circumstances the judge should have discharged the jury. 37. We are not persuaded by those submissions. In our judgment, the judge’s decision not to discharge the jury following Little Tom’s dismissal from the case cannot be faulted. He was right to consider that Little Tom’s presence as a defendant in the case had not given rise to incurable unfairness and, in particular, that the prejudice it had caused to Zejmowicz and Ruskinski was capable of being cured by appropriate directions at the time of the directed verdict in respect of Little Tom himself and in the summing-up at the conclusion of the trial. 38. As to the extent of the prejudice to Zejmowicz and Ruskinski, we think that little weight is to be placed on what had been said in the course of the prosecution opening, both because of the lapse of time and because an appropriate warning had been given in the course of the opening that what Little Tom had said in interview was not admissible against the other defendants. The procedure subsequently adopted at trial, of hearing the submission of no case in relation to Little Tom before his interviews were read to the jury, avoided any repetition of the content of the interviews. 39. The evidence of the witnesses Roman Ksiazek and Pawel Zygaj was plainly of much greater concern, since it included highly prejudicial statements of what Little Tom had said to the witnesses about the conduct of the appellants. But a problem of the same kind, albeit not of the same degree, would have existed even if Little Tom had not been a defendant in the trial in the first place or if the trial had been started afresh without him. It is likely that the prosecution would still have called both witnesses, since they appeared to have relevant evidence to give in relation to Zejmowicz and Ruskinski. Given the problems encountered when the witnesses actually gave evidence, we doubt very much whether it would have been possible to cut out altogether what they had been told by Little Tom or to eliminate the risk that the evidence they were giving was influenced by what they had been told by Little Tom. So there would still have been a need for the jury, with the aid of appropriate directions, to distinguish between admissible and inadmissible evidence from these witnesses and to apply appropriate caution to the evaluation of the evidence of both witnesses. 40. In any event, the directions actually given by the judge in his summing-up were not only full and correct but were positively favourable to the defendants. The judge was correct to proceed, in ruling against the discharge of the jury, that directions along those lines were capable of curing the prejudice caused to Zejmowicz and Ruskinski by the presence of Little Tom as a defendant in the case. As he observed in his ruling, the jury had to engage in a similar exercise in relation to the contents of Ruskinski’s interview, which was admissible against Ruskinski but not against Zejmowicz (a point on which appropriate directions were also given in the summing-up). The jury could be relied upon to understand and act on the directions given to them. 41. We therefore reject the contention that the judge exercised his discretion wrongly or unreasonably in declining to discharge the jury. The evidence of the shopkeepers 42. On the Monday after Mr Milon’s death, Ruskinski went into a local shop, Solens Off-Licence, just after 9 p.m. There were two shopkeepers present: Ali Zmnako, who owned the shop, and Mr Zmnako’s cousin, Shamal Mohammed, who assisted him. They were both from Kurdish Iraq. Coincidentally, the police had visited the shop only a few minutes beforehand as part of their investigation into the death. 43. The exchanges that took place between Ruskinski and the shopkeepers were recorded on the shop’s CCTV and the recording was in evidence at the trial. The recording shows Ruskinski making various gestures to the shopkeepers, apparently demonstrating punches and kicking and an act of oral sex. 44. Mr Zmnako was called as a witness at the trial. The gist of his evidence in chief was that Ruskinski came into the shop with some cheese which he wanted to swap for cider, and that in the course of his exchanges with the shopkeepers Ruskinski made admissions of participation in the killing of Mr Milon: he suggested that he was going to prison for 25 years, and when asked why, he said it was because he and two friends had killed a man, by punching and kicking, as the man had been seen doing sex with someone else. 45. In cross-examination, however, Mr Evans made considerable progress in eliciting Mr Zmnako’s agreement that he was relying heavily on his interpretation of Ruskinski’s gestures rather than on anything that Ruskinski actually said. For example, early in the cross-examination the following exchange took place: “Q. … As far as the words that he used, there were very, very few, if any, words that were comprehensible to you. Do you understand what I mean? A. Not actually. Q. He did not speak English? A. Yes. Q. Very, very few English words, if any? A. Yeah. … Q. … So what you have to do is to try to understand what he is trying to say with his hands, yes? A. Yes. Q. Because what he says with his mouth you cannot understand? A. No. Q. No. So what you are doing is interpreting his sign language. Do you understand what I mean? A. Yes, yes.” 46. Mr Evans then took Mr Zmnako through the detail of the CCTV recording, seeking to bring out the point that the witness was basing himself on an interpretation of the gestures, and in some cases putting an alternative interpretation to the witness. For example, in relation to Ruskinski’s demonstration of kicking, Mr Evans secured Mr Zmnako’s agreement that Ruskinski did not actually say in words that he had done the kicking. Thus, the following exchange took place towards the close of the cross-examination: “Q. He didn’t say he did it. He did not actually say with words that he did it? A. No, saying by show. Q. By show? A. Yes. Q. And you have interpreted – A. Yes. Q. – what his actions are to say ‘I did it’? A. When it’s by show you can see how he’s touching his self and he do that and two friends and everything. You can see. Q. Well, he points to himself, but you don’t know actually what he is trying to convey when he is pointing to himself? A. Well, I mean – Q. You are guessing? A. Just, yeah. Well, I mean you can see, when he’s saying kicking and he did it. Q. Well, we have just been through it, Mr Ali. When we went though it there, at no stage did you say there ‘There he’s saying ‘I did it’.’ It is interpretation, is it not? A. Yes.” 47. The prosecution had intended in addition to call Mr Mohammed as a witness. Relatively shortly before the trial they were informed that Mr Mohammed was going to travel to Iraq and could not guarantee when he would return. Although a witness summons was obtained, it was not possible to stop him leaving the country; nor was it known when he would return. Understandably, there was no application by prosecution or defence for the trial to be adjourned pending his return. In the course of the trial, however, the prosecution sought to have hearsay evidence of Mr Mohammed admitted pursuant to s.116 of the Criminal Justice Act 2003 . The proposal was not to read his statement but to play relevant parts of the significant witness interview which had been video recorded: this would enable the jury to assess not just his evidence but also his demeanour and to judge for themselves his command of the English language. 48. The account given by Mr Mohammed in that interview was similar but not identical to that given by Mr Zmnako in his evidence in chief. Like the trial judge, we have seen the video of the interview as well as reading the transcript, which is not a very good transcription and does not do full justice to Mr Mohammed’s command of English as it appears from the video. The flavour of Mr Mohammed’s evidence is given by this passage from the transcript, which follows his account of Ruskinski’s entry into the shop and Ruskinski’s request to swap some cheese for cider: “… I said no, and then my cousin gave him telled me, go away. And then he said okay. No see you 25 years, like that. It means jail, something like that … … I don’t know what that means. And then my cousin ask him why. He said because me and my two friends they’re (inaud) kill. My cousin say, aw, killed him. He said: yeah, I kill him … The guy said that. And I said, we were asking him: how did you kill him by knife or punch him, kick him? He said yeah, punch him on the floor, kick him, everything.” Later in the interview Mr Mohammed said that Ruskinski had asked Mr Zmnako for cigarettes. Then: “He say okay, go away. Why did you kill your friend? Why did you do that? He said because I actually he did that. He’s seen them, they are gay, sucking or something like that. You know and then he get mad and he say that.” 49. The application to have Mr Mohammed’s interview admitted into evidence was opposed on behalf of Ruskinski. Mr Evans accepted that the conditions in s.116 for the admissibility of the interview were met, in particular that “the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance” (s.116(2)(c)). He contended, however, that the evidence should be excluded on grounds of fairness. Mr Zmnako had made it clear in cross-examination that nothing of the sort stated in his evidence in chief (or, therefore, in Mr Mohammed’s interview) had actually been said by Ruskinski, and the potential for misunderstanding the true meaning of his gestures had been demonstrated by the cross-examination; and that to put in Mr Mohammed’s interview as hearsay evidence in those circumstances can have had only one purpose, namely to undermine and contradict Mr Zmnako’s evidence. 50. In his ruling, the judge acknowledged that Mr Evans had made progress in cross-examining Mr Zmnako, but said that “it is equally the case that he still maintained that certain words had been used and it is a matter for the jury, it seems to me, what they make of Mr Zmnako’s evidence”. Although it was not strictly necessary for him to do so, he considered the factors set out in s.114(2) of the 2003 Act . He concluded that it was in the interests of justice for the jury to receive the material in question, stating: “They are constitutionally the tribunal who should be deciding what the appropriate inferences are to be drawn from this particular incident and it seems to me that in order to permit them and to allow them to proceed with that exercise, they ought to have before them probative, or potentially probative, material, including the evidence of Mr Shamal Mohammed.” 51. He observed that, having watched the whole of the video of the interview and having watched the relevant parts more than once, he was satisfied that the material was potentially probative and that Mr Mohammed’s knowledge of English was better than that demonstrated by Mr Zmnako. It was important material. The jury would be directed about the need to approach it with caution. In particular, the judge referred to the fact that the absence of Mr Mohammed meant that he could not be cross-examined, but said that the jury would be directed to give very close scrutiny to the evidence for that reason and, in so far as relevant progress had been made by the defence in the cross-examination of Mr Zmnako, to bear in mind the possibility that similar progress might have been made in cross-examination of Mr Mohammed. 52. Before we consider how the judge actually dealt with it in his summing up, we should refer to Ruskinski’s own account of his visit to the shop. By way of background, it should be recalled that Ruskinski left the scene of Mr Milon’s death around the time that the ambulance arrived on the Saturday evening. He was arrested some days afterwards, in the early afternoon of Wednesday 23 January. He was carefully questioned by the police as to his movements from leaving the scene until his arrest: this is important for one of the explanations he subsequently gave of what happened in the shop. 53. In his interviews he at first denied ever discussing Mr Milon’s death with the people in the shop. Later in the interviews he was shown the CCTV recording from the shop and gave, as the judge put it in summing-up, “what are now conceded, I think, to be rather stupid explanations for his actions; the sexual movement was apparently him asking for a cigarette”. He did not suggest in interview that what he was doing in the shop was merely to relate what he had heard from another person about the events surrounding Mr Milon’s death. That, however, was the explanation he gave in his evidence at the trial. He referred to a conversation he had had with Roman Ksiazek, and he told the jury that what he was doing in the shop was demonstrating what he understood the police were saying had happened. That evidence faced the formidable difficulty that in his interviews he had told the police that his conversation with Roman took place outside Asda on the Tuesday evening (whereas the visit to the shop was on the Monday evening); and, moreover, he had said that the conversation was mainly about changing his jacket and that Roman did not tell him about what the police had said to him. 54. Some of this evidence, of course, post-dated the ruling that Mr Mohammed’s video interview could be put before the jury, but it is interwoven into one of the passages in the judge’s summing-up where he gave directions to the jury on how they should approach Mr Mohammed’s evidence. It is also relevant to a wider submission by Mr Spencer as to the strength of the case against Ruskinski and as to the safety of his conviction. 55. In the first part of his summing-up the judge said this about Mr Mohammed’s video interview: “The fourth category of witness in this case is Mr Shamal Mohammed. He is the witness who could not be here for reasons that need not concern you and I decided, as a matter of law, that you should be able to receive his evidence, particularly as it was not simply a question of reading a statement out to you, but because he had been video-interviewed, you could see the relevant parts of that interview so at least you saw what he looked like, you had a good impression of his use and knowledge of English and you heard the questions that he was asked and the way that he answered them. But what you did not hear, unlike in the case of his fellow Kurdish shopkeeper cousin, was Mr Evans or anyone else cross-examine him and that is something you must bear in mind when you assess Mr Mohammed’s evidence. I will, when we look at his evidence tomorrow, have one or two other comments to make about how you should approach that video evidence. Mr Evans, you may think, made some progress in cross-examining Mr Zmnako, his cousin, and what may have looked clearer when he was examined by Mr Spencer, may have looked less clear by the time Mr Evans had cross-examined him and it may well be, had Mr Evans had the opportunity of cross-examining Mr Mohammed, similar progress may have been made, it may not have been quite so clear-cut, insofar as it is clear-cut anyway, after Mr Evans had finished with him. So these are matters you must bear in mind when you consider the evidence which you saw over the video of Mr Mohammed.” 56. The judge later came back, as indicated in that passage, to how the jury should approach the evidence of what happened in the shop: “The two gentlemen in the shop, the two Kurdish cousins, one of whom, Mr Zmnako, has given evidence before you and Mr Mohammed, you saw part of his videoed interview because he is not able to give evidence. I am going to say to you, members of the jury, that you should approach this video with considerable caution. Let us look at the surrounding circumstances first of all ….” He then referred to Ruskinski’s explanation for leaving the flat, his account that he was communicating in the shop what he had learned from his meeting with Roman Ksiazek, and the problems in relation to that account. He continued: “… but that is not the end of it, members of the jury. Look at the circumstances. This was a shop which Tomasz Ruskinski had visited on, I think he even said, ‘hundreds of occasions’ to buy cider or beer. He was well-known in the shop. He knew perfectly well that there was a video camera in that shop. Is it likely that he would have gone in there, as it were, and made a full confession by demonstration [and] broken English? Or is what he was about susceptible of another interpretation? Unfortunately there is no sound on the video. What you must not do is try and lip-read anything he was saying …. [B]ut certain things he admits. He admits that he did the demonstration with his fingers about prison, he admits he said ‘25 years’ in English as well as indicating it, he now admits that his demonstrations, in relation to punches and kicking and the sexual movement, related to events which you are particularly concerned with and his explanation to you, remember, is that is what Roman had told him. Not only was there no sound, but Mr Zmnako and Mr Mohammed are themselves not Polish speakers, understandably as they are Kurdish and their English is not very good either and although they both got the impression that Tomasz Ruskinski was admitting that he was involved in the events he was seeking to demonstrate, you will have to be very careful, very careful indeed, will you not, before you accept that what occurs on that video amounts to an admission of the serious crime of murder, or, alternatively, manslaughter. When Mr Zmnako was cross-examined, he made it perfectly plain that he was not saying that Tomasz Ruskinski was saying ‘I did it’ and even though he had been drinking, it would be very odd, would it not, for someone like Ruskinski to go into a shop, yards away from where the events in question occurred, and start making a confession to two shopkeepers who knew him very well indeed by sight and where he knew there was a video camera?” The judge then made further reference to the rival submissions concerning the evidence of what happened in the shop, concluding that passage by again emphasising the need to look at the matter with care. 57. In his submissions to us, Mr Evans suggested that the shopkeepers’ conclusions about what Ruskinski was demonstrating to them would have been informed by preconceptions based on what they had been told by the police only minutes beforehand. In any event, Mr Zmnako’s evidence was that there was no real conversation with Ruskinski but simply a series of gestures; and if that was correct and it was necessary for the prosecution to rely on the interpretation of Ruskinski’s gestures, which can be seen on the CCTV recording, that evidence was at best ambiguous and could not sustain a conviction. Mr Mohammed referred in his interview to a conversation in English between Mr Zmnako and Ruskinski, which was entirely inconsistent with what Mr Zmnako himself said about it. Mr Mohammed’s evidence on that could not in any way be regarded as reliable. The prosecution were seeking to introduce it so as to undermine and contradict the evidence given by Mr Zmnako. The judge was wrong to allow it in. 58. In his reply, Mr Evans made the further point that, given that there was evidence that Mr Milon had been subject to violence and sexual acts over a period of time before the day of his death, it could not be assumed that what Ruskinski was describing to the shopkeepers was the fatal assault. The problem about that submission, however, is that Ruskinski said in evidence at the trial that he was describing to the shopkeepers what the police said had happened on the day of the death. 59. For the prosecution, Mr Spencer supported the judge’s ruling, pointing out that the judge had viewed the recording of Mr Mohammed’s interview with care before reaching his decision. It was for the jury to decide what they made of the evidence of Mr Zmnako. It is not the law that, because the defence has made progress with one witness, the evidence of another witness about the same event is inadmissible or cannot fairly be admitted. It must always be for the jury to assess the effect of relevant and important evidence. It is commonplace for evidence of an absent witness to be read. In this case the jury had the additional advantage of being able to see the witness on the video and to assess his demeanour and command of English. It was open to the jury to decide that Mr Mohammed and Ruskinski were saying things in English beyond those understood and attested to by Mr Zmnako. And whatever the arguments about language difficulties, Ruskinski said he was conveying details about events which led to Mr Milon’s death; and if one discounts, as one can, that he was relaying what someone else had told him, the jury were entitled to conclude that he was recounting events at which he himself was present and that Mr Mohammed was likely to be right when he said that Ruskinski was recounting his own participation in those events. 60. Mr Spencer also advanced arguments to the effect that the case against Ruskinski was very strong and that the conviction was safe in any event. There was a core of admissible evidence from Roman and Pawel, and to some extent from Pastor McKenzie, that Ruskinski had demonstrated hostility towards Mr Milon prior to Mr Milon’s death. Ruskinski was in Mr Milon’s flat at the time of the death and then fled the scene: it was open to the jury to infer that this was out of a sense of guilt. Ruskinski adopted the initial and absurd position in interview that Mr Milon was not hit by anybody, and here too the jury could infer that he was lying out of a sense of guilt. There was then a change of position in interview, including the absurd answers he gave about what he was saying to the shopkeepers. Further, Mr Milon’s blood was found on his shoes. 61. We are satisfied that the judge’s decision to allow Mr Mohammed’s video interview to be admitted into evidence was a proper exercise of discretion on his part. We stress that it was a matter of discretion. The statutory conditions as to admissibility were satisfied. The judge had to form a view on whether the evidence should nonetheless be excluded on grounds of fairness. For that purpose he gave careful consideration to the factors set out in s.114(2) of the Criminal Justice Act 2003 and concluded, for the reasons he gave, that it was in the interests of justice for the jury to receive the material in question. That was a reasonable conclusion for him to reach. He displayed meticulous care in reaching it. 62. The account given by Mr Mohammed was not identical to that given by Mr Zmnako in his evidence in chief, and Mr Mohammed’s own account of the conversation that took place between Ruskinski and the shopkeepers was potentially important, especially as the judge was satisfied from viewing the video that Mr Mohammed’s knowledge of English was better than that of Mr Zmnako (whom the judge had heard give evidence). It was right in principle that both accounts should be before the jury. The lack of an opportunity to cross-examine Mr Mohammed was of course a very serious drawback, but the judge was correct in his view that this could be dealt with by appropriate directions to the jury. Indeed, the point could be brought home to the jury particularly forcefully in this case by reference to the progress that had been made by the defence in cross-examination of Mr Zmnako. In the circumstances we do not accept that the admission of Mr Mohammed’s evidence had no proper purpose or that it gave rise to fundamental unfairness as submitted by Mr Evans. 63. In the event, the directions given by the judge went considerably further than to remind the jury that the defence had not had the opportunity to cross-examine Mr Mohammed and to draw their attention to the progress that might have been made if there had been cross-examination. The judge emphasised the implausibility of Ruskinski making admissions to the shopkeepers of involvement in murder or manslaughter; and, whilst pointing out that both shopkeepers had got the impression that Ruskinski was admitting involvement in the events he was seeking to demonstrate, he pointed out that neither of them spoke Polish or had very good English and that the jury needed to be very careful indeed before accepting that what occurred on the video amounted to an admission of involvement. Those directions serve to underline the correctness of the judge’s view, at the time of the ruling under challenge, that if appropriate directions were given to the jury the evidence of Mr Mohammed could be admitted without unfairness to the defence. 64. Our conclusion that Mr Mohammed’s video interview was properly admitted into evidence makes it unnecessary for us to give further consideration to the prosecution submissions as to the strength of the other evidence against Ruskinski. Conclusion 65. We have already indicated our rejection of the ground of appeal common to the two appellants, relating to the presence of a serving prison officer on the jury. For the reasons given above, we also reject the two further grounds advanced on behalf of Ruskinski alone. None of the matters advanced on behalf of either appellant provides any reason for doubting the safety of the convictions. Accordingly, both appeals are dismissed.

2011_05_11-2724.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/1173/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/1173

c081ce521e522f8e4b19bbf17fe03512fb0c4103c88fe354f6d3f59295e39f94

[2011] EWCA Crim 2312

EWCA_Crim_2312

2011-10-18

crown_court

Neutral Citation Number: [2011] EWCA Crim 2312 Case No: 2011/04685/A6 (1) 2011/04941/A2 (2) 2011/05031/A8 (3) 2011/05027/A4 (4) 2011/05029/A6 (5) 2011/04942/A5 (6) 2011/05100/A4 (7) 2011/05028/A5 (8) 2011/04842/A8 (9) 2011/04844/A1 (10) IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CHESTER CROWN COURT THE RECORDER OF CHESTER (1) (2) ON APPEAL FROM MANCHESTER CROWN COURT THE RECORDER OF MANCHESTER (3) (4) (5) (9) (10) ON APPEAL FROM INNER LONDON CROWN COURT HIS HONOUR JUDGE FRASER (6)

Neutral Citation Number: [2011] EWCA Crim 2312 Case No: 2011/04685/A6 (1) 2011/04941/A2 (2) 2011/05031/A8 (3) 2011/05027/A4 (4) 2011/05029/A6 (5) 2011/04942/A5 (6) 2011/05100/A4 (7) 2011/05028/A5 (8) 2011/04842/A8 (9) 2011/04844/A1 (10) IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CHESTER CROWN COURT THE RECORDER OF CHESTER (1) (2) ON APPEAL FROM MANCHESTER CROWN COURT THE RECORDER OF MANCHESTER (3) (4) (5) (9) (10) ON APPEAL FROM INNER LONDON CROWN COURT HIS HONOUR JUDGE FRASER (6) ON APPEAL FROM WOOD GREEN CROWN COURT HIS HONOUR JUDGE ADER (7) ON APPEAL FROM MANCHESTER CROWN COURT HIS HONOUR JUDGE HENSHELL (8) Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/10/2011 Before : LORD JUDGE, THE LORD CHIEF JUSTICE OF ENGLAND AND WALES SIR JOHN THOMAS, PRESIDENT OF THE QUEEN’S BENCH DIVISION and LORD JUSTICE LEVESON - - - - - - - - - - - - - - - - - - - - - Between : R Appellant - v- Blackshaw (1) R -v- Sutcliffe (2) R -v- Halloway (3) R -v- Vanasco (4) R -v- Gillespie-Doyle (5) R -v- McGrane (6) R -v- Koyuncu (7) R -v- Craven (8) R -v- Beswick (9) R -v- Carter (10) Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - G Roberts for Blackshaw (1) R Tanner (Solicitor Advocate) for Sutcliffe (2) D Gaskell (Solicitor Advocate) for Halloway (3) M Stanbury for Vanasco (4) R Tanner (Solicitor Advocate) for Gillespie-Boyle (5) G Newell for McGrane (6) C Palmer for Koyunco (7) R H English for Craven (8) R H English for Beswick (9) H Richardson (Solicitor Advocate) for Carter (10) D Perry QC and D Penny for the Crown Hearing dates : 27 th September 2011 - - - - - - - - - - - - - - - - - - - - - Judgment The Lord Chief Justice of England and Wales: 1. There can be very few decent members of our community who are unaware of and were not horrified by the rioting which took place all over the country between 6 th August and 11 th August 2011. For them, these were deeply disturbing times. The level of lawlessness was utterly shocking and wholly inexcusable. 2. These are appeals against sentence (leave having been given by the sentencing judge or by this court) by ten adult offenders involved in the lawlessness in different ways and different places. I. Sentencing Principles 3. Before we summarise something of the ghastliness inflicted on a variety of different neighbourhoods subjected to public disorder, and dealing with the individual appeals, we shall identify the applicable sentencing principles. 4. There is an overwhelming obligation on sentencing courts to do what they can to ensure the protection of the public, whether in their homes or in their businesses or in the street and to protect the homes and businesses and the streets in which they live and work. This is an imperative. It is not, of course, possible now, after the events, for the courts to protect the neighbourhoods which were ravaged in the riots or the people who were injured or suffered damage. Nevertheless, the imposition of severe sentences, intended to provide both punishment and deterrence, must follow. It is very simple. Those who deliberately participate in disturbances of this magnitude, causing injury and damage and fear to even the most stout-hearted of citizens, and who individually commit further crimes during the course of the riots are committing aggravated crimes. They must be punished accordingly, and the sentences should be designed to deter others from similar criminal activity. 5. This is not new found sentencing policy. In the context of a riot in Cambridge some 40 years ago, this court observed: “When there is wanton and vicious violence of gross degree the court is not concerned with whether it originates from gang rivalry or from political motives. It is the degree of mob violence that matters and the extent to which the public peace is broken… Any participation whatever, irrespective of its precise form, in an unlawful or riotous assembly of this type derives its gravity from becoming one of those who by weight of numbers pursued a common and unlawful purpose. The law of this country has always leant heavily against those who, to attain such a purpose, use the threat that lies in the power of numbers… In the view of this court, it is a wholly wrong approach to take the acts of any individual participator in isolation. They were not committed in isolation and, as already indicated, it is that very fact that constitutes the gravity of the offence.” ( R v Caird [1970] 54 Cr. App. R 499 at 506.) 6. This approach reflects consistent sentencing policy for many years and continues in force today. 7. The broad submission on behalf of each appellant is that the sentences passed on the individual offender for his or her individual offence were disproportionately severe. If the court were dealing with a single isolated offence, that submission would have considerable force. If, for example, a young man went down a quiet street in the middle of a town miles away from any rioting, but at a time when rioting was occurring miles away elsewhere, and broke into shop premises and there, without causing any damage, stole some cigarettes, and then left the premises, for the unfortunate shopkeeper to discover on the following morning that he had been burgled, the case would be serious enough. It would properly be dealt with in accordance with sentencing principles as the offence that it was, an offence without the aggravating feature that the offence formed part of the mob criminality which produced the public disorder. 8. It is elementary that sentencing courts cannot ignore the context in which the crime or crimes for which sentence is to be passed was committed. It is an essential feature in the assessment of culpability. In some cases, the context would provide the most powerful mitigation, for example, a genuine mercy killing as a final act of love and devotion. In other cases, including the present appeals, the context hugely aggravates the seriousness of each individual offence. None of these crimes was committed in isolation. Eight of them were intrinsic to or arose from the widespread lawlessness and two more were intended to contribute to or aggravate it at a time when the disorders were at their most disruptive and alarming. 9. It was observed on behalf of some of the appellants that their involvement followed earlier criminal activity by others. While that is factually correct, it provides no mitigation whatever for criminal activity which created or exacerbated the public disorder problem with which police and fire officers were dealing. The reality is that the offenders were deriving support and comfort and encouragement from being together with other offenders, and offering comfort support and encouragement to the offenders around them. Perhaps, too, the sheer numbers involved may have led some of the offenders to believe that they were untouchable and would escape detection. That leads us to address the suggestion that perhaps this level of public disorder should be treated as “mindless” activity. It was undoubtedly stupid and irresponsible and dangerous. However none of these appeals involves children or young offenders (where different sentencing considerations arise) nor indeed offenders with significant mental health problems. None of the offenders before us was “mindless”. The actions were deliberate, and each knew exactly what he (and in one case, she) was doing. 10. The next broad submission to be addressed is that the sentences were inconsistent with existing sentencing guidelines. Section 142 of the Criminal Justice Act 2003 (“ the 2003 Act ”) provides: “(1) Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing: (a) The punishment of offenders, (b) The reduction of crime, (including its reduction by deterrence), (c) The reform and rehabilitation of offenders, (d) The protection of the public, and (e) The making of reparation by offenders to persons affected by their offences.” Section 143(1) provides: “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…” Guideline judgments given by this court, together with guidelines issued by the Sentencing Guidelines Council and the Sentencing Council reflected these principles both before and after the enactment of sections 142 and 143 of the 2003 Act . 11. For offences committed after 6 April 2010, section 125(1) of the Coroners and Justice Act 2009 (“ the 2009 Act ”) provides: “Every court – (a) must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case and (b) must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the function, Unless the court is satisfied that it would be contrary to the interests of justice to do so.” Further for such offences, section 174(2) of the 2003 Act , as amended by paragraph 84 of schedule 21 to the 2009 Act , makes clear that when sentencing for offences committed after 6 April 2010, the court must: “(a) identify in the definitive sentencing guidelines relevant to the offender’s case and explain how the court discharged any duty imposed on it by section 125 of the Coroners and Justice Act 2009 (a)(a) where the court did not follow any such guidelines because it was of the opinion that it would be contrary to the interests of justice to do so, state why it was of that opinion.” 12. The same provision amends section 174 to cover guidelines issued by the Sentencing Council for England and Wales under section 120 of the 2009 Act . The guidelines which fall within the ambit of section 120 include guidelines issued by the Sentencing Guidelines Council under the 2003 Act which were in effect immediately before section 125 of the 2009 Act came into force, as well as guidelines included in any judgment of this court given before 27 February 2004 which have not been superceded by new sentencing guidelines. (see paragraph 7(1) and (5) of the Coroners and Justice Act 2009 (commencement number 4 (Transitional and Saving Provisions) Order 2010.) 13. When formulating guidelines one feature to which the Sentencing Council must have regard is the “need to promote consistency in sentencing” (see s 120(11) (b) of the 2009 Act ). This legislation does not constrain the proper exercise of individual judgment on the specific facts of the case and the provision in section 125(1) (a) that the court “must follow… any sentencing guidelines” does not require slavish adherence to them. This follows not only from the fact that the latitude given by the legislation to sentence anywhere within the offence range (see s125(3) and (4)) but, more generally, because of the specific provisions of s125(1) which expressly removes any obligation to follow the guidelines where “the court is satisfied that it would be contrary to the interests of justice to do so”. 14. In our judgment the effect of current legislation is simple. The court should approach the sentencing decision by reference to any relevant guidelines (which effectively apply the legislative requirement to consider culpability and harm even when not necessarily expressed in those terms). This provides the starting point and it produces the desirable consistency of approach to sentencing decisions up and down the country without sacrificing the obligation to do justice in the individual and specific case. The often quoted aphorism, that sentencing guidelines are guidelines not tramlines, continues to be fully reflected in the present legislative framework. The principles were summarised in R v Height and Anderson [2008] EWCA Crim 2500 at paragraph 29 in the context of schedule 21 of the Criminal Justice Act 2003 , summarising numerous decisions to the same effect: “we have lost count of the number of times when this court has emphasised that these provisions are not intended to be applied inflexibly. Indeed, in our judgment, and inflexible approach would be inconsistent with the terms of the statutory framework…even when the approach to the sentencing decision is laid down in an apparently detailed and on the face of it intentionally comprehensive scheme, the sentencing judge must achieve a just result.” 15. Those observations applied to the statutory provisions governing sentencing in the most serious criminal cases, murder. The legislation relating to sentencing guidelines issued by the Sentencing Council cannot, we believe, impose a more rigid system than that which applies to the statutory sentencing framework created for sentencing in murder cases. What is more, nothing in the 2009 Act has diminished the jurisdiction of this court, where necessary, to promulgate judgments relating to the principles and approach to be taken to sentencing decisions. They bind sentencing courts. The relationship between this court and the Sentencing Council proceeds on the basis of mutual respect and comity. 16. Guidelines of possible relevance to the offences with which these appeals are concerned have been issued by this court in relation to handling offences, in cases such as R v Webbe and others [2002] 1 Cr App R (S) 82 , by the Sentencing Guidelines Council in relation offences of theft and burglary, and by the Sentencing Council in relation to offences of violence. However none of these guidelines contemplated the offences with which they are concerned would take place within the context of the nationwide public disorder to which we have referred. Therefore sentences beyond the range in the guidelines for conventional offending (i.e. offending which lacked the aggravating features of widespread public disorder common to these appeals) were not only appropriate, but for the reasons we have already given, inevitable. As we have explained these principles are long established. Nothing in any sentencing guideline undermines them or reduces their application. 17. For these reasons, we endorse the observations of His Honour Judge Gilbart QC by whom many of the present appeals were heard, that: “…the context in which the offences of the 9 th August were committed takes them completely outside the usual context of criminality. For the purposes of these sentences, I have no doubt at all that the principal purpose is that the courts should show that outbursts of criminal behaviour like this will be and must be met with sentences longer than they would be if the offences had been committed in isolation. For these reasons I consider that the Sentencing Guidelines for specific offences are of much less weight in the context of the current case can properly be departed from.” 18. Judge Gilbart also indicated a range of sentences which would be applied in Manchester Crown Court in the context of a group of eleven types of offence, most of which were not then before the court and were not directly related to cases before him. His object was to be open and transparent. He explained that he had discussed these issues with his fellow judges in Manchester in an effort to ensure consistency of approach to sentencing decisions arising from the public disorder. However the form in which he communicated publicly the result of these discussions led the broad framework he enunciated to be treated as if it provided guidance to other courts dealing not only with the specific offences then immediately before Judge Gilbart, burglary and handling, but also of the broad ranges of sentence for offences not then before the court, such as arson. Judges in other parts of the country would inevitably respect Judge Gilbart’s work and would wish to maintain consistency of approach with him. But, certainly in relation to offences which were not then being sentenced by Judge Gilbart, they could not know or appreciate the context prevailing in Manchester or the features which form the basis for the upper and lower ends of the range he indicated. It is not altogether far fetched to imagine that other senior judges might form different views on these issues, not least because the rioting and disorder within the jurisdiction of their own courts might have been more, or for that matter less intense than those in Manchester and the aggravating or mitigating features may have been different to those Judge Gilbart had in mind. The result might have been a multiplicity of sentencing indications. 19. What happened here was altogether different from events in Bradford in 2001. Offences committed in the context of public disorder limited and considered specifically in the context of Bradford with no suggestion of outbreaks elsewhere in the country were under consideration. Led by the Recorder of Bradford, His Honour Judge Gullick, the judges formulated their broad approach to these sentencing problems in the context of widespread public disorder for application in each individual case. They did not announce in advance the sentences which would be imposed for any specific offences, but knowledge of the range of sentences applied in Bradford was quickly derived from the sentences actually passed. These decisions were fully explained publicly, and were then considered in this Court on appeal. 20. It was, as we have indicated, entirely appropriate for Judge Gilbart to make clear that any offence committed in the context of a riot was different in kind from a similar offence committed in isolated circumstances, and for that reason to indicate his intention to depart from the sentencing guidelines provided for specific offences in what he described as the “usual context of criminality”. It is however inappropriate for Crown Court judges to issue, or appear to be issuing, sentencing guidelines. Up and down the country judges will pass the sentences they think appropriate in the context of the public disorder taking place in their own cities, and nationally, and in the light of well understood principles, and in the event of any appeals against these sentences, by reference to the decisions of this court. That is the correct process. Until there are appeals against sentence, this court cannot and should not have any input into the sentencing decisions in the Crown Courts, save in the broad sense that the principles to be applied have in fact already been established. 21. Much the same applies to magistrates courts. Legal advisers to magistrates are indeed legal advisers. It was clearly appropriate for them to advise magistrates that the magistrates’ courts sentencing guidelines were not drafted with offences committed in the context of riot and public disorder in mind and that it was open to courts, if they thought appropriate in the individual cases, to impose sentences outside the range suggested by those guidelines. If any individual sentence was excessive, it would, of course, be subject to appeal to the Crown Court in the usual way. II. The Facts 22. The question in each of these appeals therefore is whether in the light of the principles we have identified, the sentence in any individual case was manifestly excessive. To enable us to address this question, we shall summarise, as briefly as we can, the basic facts, and put the criminal activity by each of the appellants into its factual context. 23. In summary, rioting and looting broke out first in Tottenham, and then in Tottenham Hale Retail Park on 6 th August 2011. This was followed on 7 th August by riots in the London districts of Brixton, Enfield, Islington, Wood Green and Oxford Circus in the centre of London. On 8 th August looting arson and violence occurred in Brixton, Bromley, Camden, Chingford, Clapham, Croydon, Ealing, East Ham, Hackney, Lewisham, Peckham, Stratford, Waltham Forest and Woolwich. On 9 th August outbreaks of rioting arson and looting occurred outside London, notably in Birmingham, Bristol, Derby, Gillingham, Gloucester, Nottingham, Leicester, Liverpool, Manchester, Rochdale, Salford, Sefton and Wirral. The rioting and looting came to an end on 11 th August. 24. We shall now set out the factual context in greater detail. On 6 August 2011 a crowd gathered outside Tottenham Police Station demonstrating in support of justice for Mark Duggan. The demonstration became violent. Two police cars, a bus and cars were set on fire, shops were set alight. Disorder became widespread. Before long it had nothing whatever to do with any demonstration. Between 20:45 that evening and 4:30 the following morning the London Fire Brigade dealt with 49 “primary” fires in the Tottenham area and received more than 250 emergency calls from the public. Riot officers and police on horseback were deployed to disperse the crowns, but they came under attack from bottles, fireworks and other missiles. After shops were attacked, looting began. This continued until the early hours of Sunday morning and spread to the Tottenham Hale Retail Park. The premises which were attacked included a Comet store. £350,000 worth of damage was caused to those premises, and stock valued at £855,000 was stolen by a large number of individuals. The appellant, Koyunco, (whose appeal we consider at paragraph 101 and following below) was involved in this offence. He was identified by police officers as he climbed out of the broken entrance to the store. 25. The looting continued in Tottenham into the early hours but by midnight fire crews had managed to bring all the fires under control, although damping down in some burnt-out buildings was continuing. Later that afternoon, trouble erupted in Enfield, and then in Brixton. Approximately 100 hooded youths gathered around Enfield Police Station, and police officers were injured after intervening in an altercation in Brixton. Windows were then smashed in shops in Enfield, and mounted riot police and patrolled the street. Coming towards the late evening, approximately 50 people caused damage to property in Oxford Circus in the West End of London, and disorder spread to Walthamstow, Waltham Forest and Ponders End. Shop premises were vandalised. Looting took place. 26. At 2:20 on Monday 8 th August 2011 Scotland Yard reported that police were responding to copycat criminal activity across London and that “small and mobile groups” of looters had been targeting areas of north, east and south London. Gangs of youths were attacking police officers, and shops were being targeted in Waltham Forest. In Enfield the High Street remained cordoned off after disorder in the area had been contained. In Walthamstow the situation was said to be under control after some 30 youths, many in masks, had vandalised the looted shops there. Fire-fighters had been called to a number of fires in Enfield, Brixton and Walthamstow, and 6 fire engines and 30 fire-fighters were fighting a blaze at a shop on Brixton Road. 27. By 6:15 that morning, the Metropolitan Police reported that a further 100 arrests had been made, and 16 people were charged in relation to disturbances overnight. 28. The morning began calmly, and no trouble was reported until the afternoon, when skirmishes began between groups of young people and the police in Hackney as the troubles began to spread further afield. Shortly afterwards, a bus was set on fire in Peckham, and vehicles set ablaze in Lewisham. By 20:00 shop windows had been smashed and looting had taken place in various locations. In Croydon several fires were set. The entire area around West Croydon station was closed by the police during the evening. Numerous shops were broken into, and much looting took place. A large furniture shop, called House of Reeves, which had been open in Croydon since 1867 was set alight and burned to utter destruction. It was one of many shops, cars and buses set alight in West Croydon. The television pictures of this event were stark. Homes, with people at peace in them, were set ablaze and destroyed. Although none of the present offenders is charged with any offence connected with these particular arsons it surely needs no imagination to envisage how terrifying the events of that evening were, and will remain in the memory of the victims. 29. That evening at about 21:30 Lorri McGrane (see paragraph 109 and following) was one of those who looted the premises of Argos in Rowcross Street, London SE1. This store was extensively looted and damaged. The cost of repairing the damage was estimated at £40,000. An estimated £80,000 worth of stock was stolen. When the police attended the scene following a report of a break in, this appellant was seen a short distance away, carrying a television in a large box. 30. In the meantime trouble spread to South Croydon where a man was shot and killed. There was rioting in parts of West Bromwich in the Midlands, premises at Headington in Oxford were set alight and a fire was burned in Barton in Oxfordshire. Fires were burning in Clapham High Street and looting was continuing in Woolwich High Street. It was reported on the BBC that several hundred youths were involved, but that there were no police around. Rioting continued in Ealing where the windows of a Tesco supermarket were put out, a car was set on fire and rubbish strewn in public areas. 31. That night there was violence in Nottingham, in which 40 vehicles were damaged. The police foiled an attempt to break in to the Victoria Centre in Nottingham. The trouble here lasted for about 3 hours. One senior officer described the violence in Nottingham as “motivated” by the London riots. In the meantime Essex and Suffolk police sent officers to London to assist the Metropolitan police to deal with the disorder. Indeed by 9 th August an extra 10,000 police officers were deployed in London. The numbers included 1700 officers from other forces around the country who were, of course, no longer available to protect public order in the places for which their forces had specific responsibility. The streets of London became quieter but rioting and looting was spreading further afield. The worst troubles occurred in Manchester, Liverpool and Birmingham. 32. During the evening of 8 th August Blackshaw (see paragraphs 54 and following) created an event on the Facebook social networking site. The objective was a riot in Northwich. 33. At 00:45 on 9 August a police station in Handsworth in Birmingham was set on fire, and shortly afterwards Merseyside Police confirmed that they were dealing with a number of incidents in South Liverpool, which included cars being set alight. Some 200 rioters hurled missiles at officers in Smithdown Road Liverpool. A few minutes later BBC staff reported that hundreds of youths were ransacking a Panasonic store in West Ealing, and there were then disturbances and troubles in Derby. 34. It was about this time that Sutcliffe (see paragraph 60 and following) used Facebook to construct a webpage called “The Warrington Riots”. 35. To underline one specific aspect of all these offences we mention that a friendly international soccer match between England and Holland was called off that morning because of the rioting in London. The story of the public disorder in this country had a vast international dimension. Television films of London burning were seen throughout the world. We have no doubt they were a source of incredulity abroad as they were at home, and of considerable dismay among those who retain affection for this country. The rioting also enabled a spokesman for a dictatorial regime abroad to equate those conducting demonstrations for greater civil liberties with the rioters here. 36. By 17:46 reports were received of rocks and stones being hurled at police vans by gangs of youths in Salford, and disorderly conduct was reported in Birmingham, where several groups tried to get into various shopping and office centres, and had to be dispersed by officers using batons. However shortly after their dispersal around 500 people gathered outside a shop, and then a violent crowd broke into a supermarket in the city centre. This crowd of some 300 people was dispersed, but the gangs re-grouped and attacked a number of shops and a Job Centre in Queen Street, and set fire to a police station in Handsworth. In Gloucester in the central shopping area a number of stores were reported to have been targeted by vandals, and close to the Cathedral crowds set fire to a building, many rubbish bins, and two cars. 37. At 19:28 there was an appeal by the police in Manchester for calm following a number of attacks by rioters on shops in Manchester City Centre and Salford. Continuing reports of trouble in Birmingham and West Bromwich were received. And in Basildon in Essex, some 350 youths smashed shop windows and set fires in the town centre. When fire-fighters attempted to respond to an incident, they were attacked by the rioters. There were problems in Nottingham where a police station was fire bombed by a group of rioters. In Birmingham a public house was looted, its windows smashed and fires started. Eleven shots were fired at police officers who attended the incident and petrol bombs were thrown at them. A police helicopter came under fire. 38. The public disorder in Greater Manchester and Salford starting in the afternoon of 9 th August and continuing into the following morning was severe. Extensive damage was caused to many business, most of which had been looted. The economic cost to Salford alone is likely to run into millions of pounds. 155 fires were reported in Salford and Manchester City Centre. 147 premises, mainly business premises, were damaged. Officers were attacked and residents, business owners and staff put in fear for their own safety. Due to fear of attacks on them, the fire brigade was forced to send 9 fire-fighters to each incident, and 351 fires were dealt with. The fire brigade was forced to withdraw from 4 of these fires because of attacks on fire-fighters by youths throwing bricks. 39. Hassan Halloway (see paragraph 78 and following),was seen in Dale Street, Manchester on the evening of 9 th August, directly participating in the rioting, orchestrating a group, and throwing bricks at police officers on two separate occasions. In between the two incidents of direct violence he burgled 5 retail premises and stole property from 4 of them. Gillespie-Doyle (see paragraph 94 and following) was one of those who entered Sainsbury’s store in Deansgate Manchester. At 21:32 Gillespie-Doyle was observed on the CCTV system entering the premises. He went behind one of the tills and removed cigarettes from the shelves. 40. Another shop, a branch of Jessops in the centre of Manchester, was also attacked and looted. Vanasco (see paragraph 88 and following) joined in with others in burgling the store and he stole property worth in the region of £300. That night the store suffered damage valued at between £15,000 and £20,000 and stock valued at £10,000 was stolen from it. 41. Overnight between 9 th August and 10 th August clashes between rioters and looters and the police continued in the early hours in many areas outside London, which remained calm, and which were now focussed on the Midlands and north west of England. 42. On the evening of 9 th August, a pawn shop in the shopping precinct in Salford was broken into. The property looted from the shop included a 32 inch television. On 11 August the police went to the home of Craven (see paragraph 119 and following). The television was found there. 43. At 12:40am Beswick (see paragraph 128 and following) was found by the police close to the troubled areas in Salford Precinct. In the boot of his car at 37 inch television, stolen from a shop in Salford, was found. A few minutes later, at 12:50 Carter (see paragraph 134 and following) was arrested in King Street in Manchester. He was found in possession of approximately £500 worth of stolen items of clothing, which came from a shop which had been looted. 44. In the early hours, reports were received of disorder in Bristol City Centre. All this paled into insignificance when set against the emerging news of a terrible incident which occurred in Birmingham in what appears to have been a hit and run incident. In view of a likely trial for homicide, we expressly refrain from making any comment about the facts of this case. 45. Later that afternoon, the Association of Chief Police Officers reported that 6 forces had required assistance during the previous night. They were Avon and Somerset, Gloucestershire, Greater Manchester Police, the Metropolitan Police, the West Midlands Police, and the Nottinghamshire Police. 250 police officers from Scotland were dispatched to the Midlands and the north of England to help deal with the disorder. 46. Trouble began again in Manchester at 17:30. Premises in exchange square and the Manchester Arndale Centre were attacked by rioters, and hundreds of looters were reported to be attacking premises in Deansgate. Trams were unable to move in the Market Street because of yobs and onlookers. Brawls then broke out in Market Street Manchester. The rioting continued that evening, with businesses, banks and hotels and bus stops being smashed, and shops looted. 47. The effect of the disturbances in Manchester and Salford were summarised into community impact statements dated 14 August 2011. The significant points are stark. Between 18:00 on 9 August and 4:00 on 10 August Greater Manchester Police received reports to attend 363 incidents, and between 17:00 and 4:00 on the same night, the number in Salford was 356. The main focus of the disorder was looting, smashing shop windows, and looting in the course of what was identified as sustained attacks from groups of thosee determined to enter them and make off with their stock and their money. When police officers attended the scene to restore order they came under sustained attack, and 20 of them were injured while performing their duties. In total 155 fires were reported, and fire fighters performing their duties came under sustained attack. 147 premises were damaged and the cost of damage runs into millions of pounds. This figure takes no account of loss of earning, loss of revenue, stolen and damaged stock losses and consequential loss caused because business premises had to be closed. 48. Judge Gilbart QC dealt with four of the cases which are the subject of the present appeals on 16 th August 2011. Like other judges and magistrates courts, his court had dealt with the cases brought before it with remarkable speed and efficiency. As the Recorder of Manchester he made these observations about the impact of the offences. “To anyone who lives or works in Manchester or Salford, the effect of what had happened was heartbreaking. This (Manchester and Salford taken together) is a hard working city with a wonderfully diverse society which is one of its great strengths. Manchester and Salford City Councils and their communities have worked hard to get this city to put its best foot forward. Some who live outside this great city may be unaware of the dedication shown by those Councils and other parts of the community to putting this City back on its feet once the recession of the 1980s had taken its toll, and then again after the IRA bomb in 1996. The achievements in regeneration have been substantial, not least the renewed vitality of the city centre’s commercial core. To those of us who knew Manchester and Salford in the 1970s and early 1980s, the transformation has been quite remarkable. The city has struggled and must still struggle through bad economic times so that all of its areas can benefit from the regeneration which that hard work has produced. The commercial life of the retail sector is no small part of that. It provides jobs for large numbers of people, and services to the whole population of the area. It also supports Manchester City Centre and Salford Quays in providing cultural vitality to the region in theatres and concert halls, clubs and all the other facilities of a vibrant city centre which adds up to 100,000 people in all over a weekend evening.” 49. The London-wide community impact statement includes the following passage: “Although at first the violent disorder was directed at police officers, with over 100 officers being injured over the 3 nights, it quickly became focussed on business premises and residential properties within the areas affected. Many commercial premises were either ransacked by looters or set ablaze by arsonists. Many homes were broken into by marauding gangs intent on burglary. Many vehicles were also stolen and then set alight during the violent disorder. Some of these fires quickly became out of control, spreading to residential premises and flats above business premises, endangering life and leaving many local people homeless. Although no specific community groups have been targeted in the attacks, members of the public have been injured and tragically an elderly male lost his life in Ealing as a result of the disturbances.” 50. A community impact statement prepared in respect of Southwark describes violence which erupted in Southwark on the afternoon of 8 th August, initially directed at police officers and local business. A number of police officers were injured, and the police station at Peckham came under sustained attack with windows smashed and a petrol bomb thrown at the buildings. Individuals using their motor cycles were attacked, so were buses, and shops were attacked damaged and looted. Many members of the public were assaulted and a Mosque at the Old Kent Road was attacked after the occupants made two citizens’ arrest for looting. The Borough police at Southwark recorded 252 offences which included arson, robbery, burglary and grievous bodily harm. This was described as “the worst instance of serious public disorder in the recent history of the Borough. The local communities were devastated and saddened…and they are determined to stand together to re-build and restore the excellent community relations that existed prior to that appalling evening”. 51. The Haringey Borough community impact statement described the initial outbreak of violent disorder on 6 th August which was directed at police officers who were subjected to a prolonged missile attack. Vehicles were high-jacked the set ablaze, and then the disorder spread to a wide range of premises including jewellers, and mobile phone and electrical stores. Commercial premises were broken into ransacked, looted and set alight. Fires quickly ran out of control, endangering life and leaving many people homeless. The High Road in Wood Green was closed to traffic for 48 hours, and the High Road in Tottenham was closed for a week. The cost of damage to local authority vehicles alone was assessed at £600,000. Among the more frightening incidents, a bus driver was dragged from his vehicle and attacked, and then bus the was set on fire, and television pictures of it circulated throughout the country, and indeed overseas. A barber shop run by an 89 year old man for the last 41 years was ransacked: all the equipment, including the kettle to make tea, was taken. A building which contained flats for 20 families was completely destroyed by fire. 52. In very relative terms Nottingham was not as badly affected as parts of London, Manchester and Salford. Nevertheless it is salutary to remind ourselves that the impact of the rioting in Nottingham, even if relatively speaking less serious than rioting elsewhere in the country, was itself extremely serious. On the evening of the 8 th August significant disorder was reported in the St Ann’s area, with cars damaged then set on fire, and a petrol bomb attack on the police station. Then, in the early evening, there were numerous incidents of disorder across the city and conurbation, with incidents not only in St Ann’s, and in the city centre, but in areas like Bestwood, Bulwell and Meadows. The incidents involved the destruction of vehicles by fire, damage to premises by fire, and looting of their contents of two shops, including a jewellers shop. During both nights the disorder lasted until well into the early hours. Several groups of youths were involved. Many of them wore face coverings and were armed with weapons and missiles, and the police were subjected to numerous attacks. In summary, at least 25 vehicles were damaged or destroyed by fire. A college was damaged by fire. A school was occupied by a gang throwing missiles. Two city shops were entered and the contents stolen. A number of police stations were attacked with petrol bombs. Police were subjected to violent attacks. Officers were drafted in from elsewhere to cope with the public order problems. At the height of the violence on 9 th August the number of calls received by the police increased by 47%. The additional cost of the policing operation was over £1 million. The premises damaged and attacked ranged from small family retail business, to large commercial chains, and included schools, police stations, and private dwelling houses. We emphasise that this was serious public disorder. But serious as it was there were cities where the magnitude of public disorder was much greater. III. The Individual Appeals (a) Incitement by the use of Facebook Jordan Philip Blackshaw and Perry John Sutcliffe Jordan Philip Blackshaw – the facts 53. We shall deal with the cases of these appellants together although their offences were committed entirely independently of each other. 54. On 16 August 2011 at Chester Crown Court before the Recorder of Chester, His Honour Judge Elgan Edwards, Blackshaw pleaded guilty to committing an offence contrary to section 46 of the Serious Crime Act 2007 , encouraging or assisting offences believing that one or more would be committed. The offence or offences which he believed would be committed were riot, burglary and criminal damage. It is important to emphasise that the applicant admitted and was convicted of doing an act capable of encouraging the commission of riot, burglary and criminal damage, and doing so believing that what he did would encourage or assist the commission of one or more of the offences, and that one or more of the offences would in fact be committed. This was no joke. He was sentenced to four years’ imprisonment. 55. At 10.30 on 8 th August 2011 he used Facebook to set up and plan a public event called “Smash down in Northwick Town”. It would start behind the premises of McDonalds at 13.00 next day. The riots were in full flow. The appellant knew perfectly well that they were. The purpose of his website was to wreak “criminal damage and rioting in the centre of Northwich, and the event called for participants to meet in a restaurant in Northwich at lunchtime on 9 th August. The website was aimed at his close associates, who he referred to as the “Mob Hill Massive”, and his friends, but he also opened it to public view and included in the website references to ongoing rioting in London Birmingham and Liverpool. He posted a message of encouragement on the website that read “we’ll need to get on this, kicking off all over”. 56. Fortunately members of the community who saw the website were revolted by it and alerted the police. It addition, some of them left messages on the website expressing their disgust in no uncertain terms. The police infiltrated the website and posted messages on it, warning of the consequences if the website were followed. By the time it was closed down by the police, 9 people had confirmed their intention to attend. In the result, the offence which the appellant was inciting did not take place. 57. Following his arrest at 11.00 on 9 th August, the appellant admitted that he had watched media coverage of the riots on the television and that he set up the website. He agreed that the event would be carried out, and that he would have attended himself if he had had enough alcohol. He said that it was not something that he would have done sober, and claimed that he had set the site up for a “laugh and to meet people to drink with”, but in later discussions he agreed that what he had done was stupid and that the effect of his actions was to encourage rioting and looting. He accepted responsibility for his actions. As we have indicated, his later guilty plea made clear that he had not set up the website as a joke. He believed that the offences he was inciting would happen. 58. The appellant is 21 years old. He has no criminal record, save for some motoring convictions, but in May 2011 he was cautioned for causing criminal damage. In the pre-sentence report attention was drawn to the fact that although he described the offence as a “sick joke” that had gone wrong, he knew that his invitation would make its way to many people. Perry John Sutcliffe – the facts 59. On 16 th August 2011 in the Crown Court at Chester before the Recorder, this appellant pleaded guilty to intentionally encouraging or assisting the commission of an offence contrary to section 44 of the Serious Crime Act 2007 . This conviction meant that the appellant accepted that he had encouraged the commission of riot, and intended to encourage its commission. In other words this too was deliberate action, with a specific intention, and certainly no joke. He was sentenced to four years’ imprisonment. 60. In the early hours of 9 th August the appellant used Facebook to construct a web page called “The Warrington Riots”. On this web page he included a photograph of police officers in riot equipment in a “stand off position” with a group of rioters. He also included a photograph of himself and others in a pose described by police as “gangster like”. He sent invitations on his Facebook to 400 contacts. They were invited to meet at a Carvery in Warrington at 7pm on 10 th August. In addition to his own Facebook contacts the website was also made available for general public viewing. Through the website 47 people confirmed that they would go to the meeting. In the meantime the police received communications from local residents who had seen and were concerned by what they read on the webpage and they closed the site down in the early hours of 9 th August. In the result no one attended the meeting. The applicant was arrested at 11.00 on 9 th August. He gave two “no comment” interviews. The court proceedings were rightly treated as urgent. 61. At the hearing the appellant pleaded guilty. After he entered his plea it was said on his behalf that he went back to the Facebook site and cancelled the event. It was further said that he woke up at around 10.00 and received a telephone call from a friend who had seen the entry on Facebook and, asked him about it. This had prompted the appellant to go to the Facebook site and cancel the event, posting a remark to the effect that it was a joke. It was suggested that the prosecution could not gainsay the appellant’s assertion that he brought about closure of the event before the police arranged for the Facebook site to be closed down. After discussion the Recorder said that he would deal with the appellant on the basis that he had retracted the entry as he had changed his mind. The issue which the discussion did not address was the reason for the change of mind. It was said on his behalf that the appellant decided to cancel the event after his friend had “asked him about the Facebook entry”. It was however not suggested that he had done so out of an overwhelming sense of regret or concern about the possible consequences of his entry. Nevertheless it was argued that the appellant had attempted to mitigate his crime by “putting things right”. The circumstances in which the appellant cancelled the event was important to any mitigation that might be available. At that stage the evidence on the point was incomplete. In an endeavour to establish the facts we asked for further evidence to be provided by the prosecution. In due course this was circulated to the appellant’s solicitor. We also sent a draft of the judgment which would be based on the further evidence, if admitted. We invited submissions whether the evidence should be admitted in the interests of justice under section 23 of the Criminal Appeal Act 1968 . We also made clear that if the appellant wished to give evidence he would be permitted to do so. He declined the opportunity. We received written submissions from the appellant’s solicitor. In effect she asked us to rely on and treat ourselves as bound by the discussions before Judge Edwards. That was not good enough. We had to proceed on the basis of evidence which was not immediately available on 16 th August. The interests of justice were clear. The case should proceed on the facts. 62. They show that at 10.15am on 9 th August police went to an address in Warrington searching for the appellant. At this address they spoke to an individual called Phil O’Neil, making inquiries about the appellant’s whereabouts. Then they visited another address in the area and asked another friend of the appellant about his whereabouts. At 11.00am police officers attended 35 Richmond Avenue, Latchford, and they saw the appellant in company with Phil O’Neil, to whom they had spoken some 45 minutes or so earlier. The two men were coming out of the front garden of this address. 63. A forensic analysis of the appellant’s computer equipment establishes that the posting on Facebook which cancelled the event and said it was “only jokin f... hell” was created at 10.54am, literally a few minutes before the police arrived. Although we approach the decision in the appeal on the basis that the appellant decided to retract the Facebook entry, as his advocate suggested, the inference seems clear that this decision followed an intimation that the police were searching for him. 64. The appellant is 22. Earlier this year he was convicted of possession a class B drug and fined. According to the pre-sentence report he did not remember much about the offence as he had been drinking during the afternoon and evening, and when he was contacted by a friend he had been unable to recall what he had done. The Sentencing Decision 65. In his sentencing remarks the judge made clear to both appellants that the sentence had to be a deterrent sentence to demonstrate that this conduct would not be tolerated. He took account of their early guilty pleas. 66. In relation to Blackshaw, he noted that the appellant had sought to take advantage of the public disorder and criminality occurring elsewhere and to transfer it to the peaceful streets of Northwich. If such disorder had arisen, he might become personally involved in the troubles. In short he had sought to organise criminality which had revolted many right thinking members of the community, who had expressed their revulsion by contributing to the detection of the offence, enabling the police to give warnings against any attendance. The appellant had sought to create public disorder and mayhem in Northwich. A custodial sentence was inevitable. 67. Taking account of the appellant’s plea, but as a deterrent to others a sentence of 4 years’ detention was appropriate. 68. In relation Sutcliffe the judge identified the relevant features of the case, including the fact that no less than 47 people had agreed to attend. They were fortunately outweighed by the number of residents in Warrrington who had contacted the police. The appellant had placed considerable strain on police resources in Warrington and caused real panic in the town, where a number of people anticipated scenes of riot similar to those which had been occurring throughout the country. The judge took the view that the case was more serious than that of Blackshaw, but he gave credit to the appellant for having changed his mind. 69. Again the sentence had to be a deterrent sentence. This behaviour would not be tolerated. A sentence of 4 years imprisonment was imposed. 70. In relation to Blackshaw the submission on the appeal is that the sentence was manifestly excessive. Insufficient credit was given for the early guilty plea, and disproportionate weight attached to the necessity to impose a deterrent sentence. The judge failed to give adequate weight to the fact that this was a single stupid act. No one had been contacted outside the entry on Facebook. There was nothing persistent about his conduct. He had not taken any further steps to incite any criminal activity. According to the written grounds of appeal the judge had failed to “distinguish between tangible acts of criminality and incitement which, in actual fact, leads to nothing”. Disproportionate weight to the necessity to deter others had been given by the judge to what was a spontaneous but monumentally foolish act. 71. In relation to Sutcliffe the effect of the written and oral submissions proceeded on the same broad premise and the judge was criticised for emphasising too heavily the reduction of crime which followed from the attention he paid to the potential for harm rather then the actual harm which had followed. It was suggested that insufficient attention had been given to the fact that the appellant thought better of his actions and closed down the site before any harm could be done. We are however unable to accept that the closing of the site was not directly connected to the information that the police were looking for him. It was also suggested that there was a degree of disparity in relation to different sentences already imposed in other parts of the country, and in particular the sentence imposed by His Honour Judge Milmo QC at Nottingham Crown Court in the case called R v Pelle. This contention, too, is without foundation. In Pelle the maximum sentence available to Judge Milmo was 5 years imprisonment. In the present case it is 10 years imprisonment. In both cases a reduction to allow for the guilty plea was appropriate. In other words, even if all other features of the case were identical (which they were not) the disparity argument is flawed at the outset. 72. When dealing with these two appeals we are, of course, conscious of the fact that in the end no actual harm in the streets of Northwich and Warrington actually occurred. It is not however accurate to suggest that neither crime had any adverse consequences. We know for a certainty that in each case a number of decent citizens were appalled by what they had read, and given the widespread rioting throughout the country, which at that time was spiralling out of control, we have no doubt that some, at least, of them were put in fear. In any event the fact that no rioting occurred in the streets of Northwich or Warrington owed nothing to either appellant. The reality was that armed with information from members of the public who were disturbed at the prospect, the police were able to interfere and bring the possibility of riot to an end. 73. We are unimpressed with the suggestion that in each case the appellant did no more than make the appropriate entry in his Facebook. Neither went from door to door looking for friends or like minded people to join up with him in the riot. All that is true. But modern technology has done away with the need for such direct personal communication. It can all be done through Facebook or other social media. In other words, the abuse of modern technology for criminal purposes extends to and includes incitement of very many people by a single step. Indeed it is a sinister feature of these cases that modern technology almost certainly assisted rioters in other places to organise the rapid movement and congregation of disorderly groups in new and unpoliced areas. 74. As we have already described, well established principles of sentencing have relatively recently been encapsulated in section 143(1) of the Criminal Justice Act 2003 . This provides that when deciding 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”. What both these appellants intended was to cause very serious crime, in the case of Blackshaw, rioting burglary or criminal damage, each in the context of serious public disorder, and in relation to Sutcliff, rioting, in the context of serious public disorder. All this was incited at a time of sustained countrywide mayhem. 75. The judge was fully justified in concluding that deterrent sentences were appropriate. These offenders were caught red-handed. For the citizens of Northwich and Warrington that was just as well, because as we have explained, and the guilty pleas acknowledged, neither offender was joking when the Facebook entry was set up. These appeals are dismissed. (b) Burglary 76. We now come to five offences of burglary, the first of which, in addition involved direct violence against the police. Hassan Halloway 77. On 10 th August 2011 at the Manchester City Magistrates Courts the appellant pleaded guilty to one count of violent disorder and five counts of burglary. He was committed for sentence to the Crown Court. On 18 th August he was sentenced at Manchester Crown Court before His Honour Judge Gillbart QC the Recorder of Manchester to a total of 4 years 8 months’ imprisonment. The sentence was calculated on the basis of a 28 month sentence of imprisonment for violent disorder, together with a further 28 months’ imprisonment on each count of burglary, to run concurrently with each other but consecutively to the sentence for violent disorder. 78. The appellant was involved in violent disorder in the circumstances described in paragraph 40. He was noticed by police officers who were dealing with a group of thirty or so men during the disturbances in Manchester at about 19.30 on 9 th August. He stood out from the rest of the crown due to his distinctive clothing and the fact he was wearing a hood. He was orchestrating the group and taunting the police. As officers moved up the street he threw a brick at a police handler and his dog, and when the brick missed, he threw a second brick which also missed. When he was interviewed later he accepted that he had hurled bricks and charged at the police, and as part of the crown which eventually fled from the police he noticed that a restaurant had been broken into. He went inside and stole two bottles of wine. Together with other members of the group he then proceeded towards the Piccadilly area. There he noticed that a Spar store had been attacked. Again he went inside and stole cigarettes and alcohol valued at £190, which he handed out to others. From there he moved on to Nobles Arcade where he tried to get money out of some of the machines. He then went on to another store, which had been attacked, and stole crisps and chocolate, and then to another store, Marks and Spencer, where he took and handed out to the crowd some £90 worth of spirits. In the course of this burglary he cut his hand. 79. He then came into the street and saw the police trying to clear the street. He noticed the officer he had targeted with his brick at the earlier stage. He picked up another brick and threw it at a police van. He then ran off into the crown. Later, with his hood removed he returned to the police seeking their assistance for the cut he had sustained to his hand. He was arrested for violent disorder. Initially he denied responsibility, but eventually he said “yeh, but I missed”. 80. In his interview he said that he had heard about the riots in London and wanted to experience the thrill. That is why he became involved. He wanted to create “lawlessness” and had thrown items at the police to stop them. He had not considered the consequences of his actions. 81. The appellant is 39 years old. He had a number of previous convictions, but his most recent conviction, for common assault, took place in 2000. He had never previously served a custodial sentence. 82. In the pre-sentence report the appellant accepted full responsibility for his behaviour and considered he had become involved due to “mob mentality”. He had been out of work for six years. He had received mediation for depression and panic attacks. However his cognitive skills were not impaired. He was intelligent and educated. 83. The grounds of appeal accept that is was entirely proper for Halloway to be sentenced outside the Sentencing Council Guidelines, but argued that the sentencing range identified for the burglary offences was too high, and the total sentence of 56 months’ imprisonment failed sufficiently to consider Halloway’s personal circumstances, his guilty plea and admission in interview, and that as a totality the sentence was manifestly excessive. Our attention was drawn to a good family background, and it was emphasised that his initial presence in the city Centre had been for a legitimate reason. In other words, he had not come to the city in order to participate in the riots, but rather had become caught up with them. 84. The judge accepted that the appellant’s initial presence had been legitimate, but considered that this was irrelevant because his subsequent activities outweighed the fact that he had not deliberately gone into the city to participate in the disturbances. He had joined a group of thirty who had caused serious violent disorder in the City Centre, and was one of those who had “orchestrated” what was happening, as well as hurling bricks at the police. As the disorder moved down the streets he had entered stores which had been attacked, stealing from them, and handing out the results of his thefts to others. 85. The judge reflected on the mayhem and general damage to Manchester believing that a deterrent sentence had to be passed. He reflected on the totality. He made the order currently under appeal. 86. The only issue in this appeal is the total sentence. It might have been constructed differently. A deterrent sentence of 4years and 8 months’ imprisonment for an individual who had attacked the police on two separate occasions in the course of rioting, and had burgled five separate premises, sharing out the proceeds of his crime with others who were also participating in the disorder was not manifestly excessive. This appeal is dismissed. Enrico Vanasco 87. On 15 th August 2011 at Manchester City Magistrates Court, the appellant pleaded guilty to burglary. On committal for sentence to the Crown Court, on 18 th August he was sentenced by the Recorder of Manchester to 20 months’ imprisonment. 88. The facts have already been partly narrated at paragraph 41. We simply repeat that on the night of the disturbances in Manchester between 9 th and 10 th August 2011 the appellant entered a camera shop in Princess Street where he stole a camera valued at just under £300. During the course of these disturbances the shop had suffered significant damage, valued at between £15,000 and £20,000, and stock had been valued at £10,000 had been stolen from it. He was linked to the scene of the crime by a DNA profile found in some blood at the store. He was arrested on 14 th August. He admitted stealing the camera. He explained that he had watched the disturbances on the television, and had gone to the City Centre out of curiosity. He had seen others breaking in to the store, and as he needed a camera, he followed them in and took one. He told the police where the camera was. 89. The appellant was 25 years old. He had no relevant previous convictions. In the pre-sentence report he accepted his responsibility for the offence, but preferred to view himself not as a participant in the disturbances but as an observer of them. He was employed as a chef at a well known local restaurant, and had been in work for the majority of the 9 years he had lived in this country. He usually earned £350 per week. 90. Passing sentence the judge acknowledged that it was a tragedy to see the appellant in the dock, because he had great skills which gave pleasure to many people. But, as the judge pointed out, his work was in the City Centre, and he and the business he worked in, would have been affected by the disturbances that evening, as part of the general damage to the City Centre. He had chosen to enter Manchester knowing of the disturbances, and his presence added to the difficulties. He had compounded this by committing the burglary. He had no previous convictions, and although account was taken of the guilty plea, his offence was a serious one. 91. The argument on the appeal is that the sentence is manifestly excessive in the context of sentencing guidelines, and the deterrent purpose which the sentence was intended to serve could have been achieved in any event by a shorter custodial sentence. 92. The appellant was guilty of looting in a vandalised shop, and his crime was intrinsic to and part of the overall public disorder in Manchester that night. The sentence was within appropriate range. The appeal is dismissed. Michael Gillespie-Doyle 93. On 10 th August 2011 the appellant pleaded guilty to burglary at Manchester City Magistrates Court. On committal to the Crown Court, on 16 th August, he was sentenced by the Recorder of Manchester to 2 years detention in a Young Offender Institution. 94. This offence took place against the backdrop of the public disorder in Greater Manchester and Salford that started at about 16.30 on 9 th August as narrated in paragraph 40. At about 18.00 that evening a Sainsburys store closed early because of the disorder. The staff became aware of large groups of men outside the store moving around the building. They had been seen smashing windows of other buildings, and concerned for the safety of his staff, the manager locked the store, and removed them all into the back offices, locking the doors to those back offices. He then watched what was happening to the store of the CCTV system. It must have been immensely frightening. At 20.10 the store doors were forced open, and a large group of men entered, stealing mainly cigarettes and alcohol. A police officer who was nearby realised what was happening, and with other officers approached the store and checked it. The appellant was seen, together with a juvenile co-accused, running through an “insure” door into the store where they were caught and arrested as they were attempting to steal cigarettes and alcohol. 95. When he was arrested the appellant said “I was on my way home. I only did it because everyone else was”. In interview he said that he had been told that there was a riot, and thought he would go into Manchester where his friends would be. Although he did not intend to become involved in the rioting, he followed the crowds into the store. The appellant is 19 years old. He has numerous previous convictions since 2008 for a variety of different offences, including robbery, possession of an imitation firearm, handling stolen goods, shoplifting, breaches of anti-social behaviour orders, using disorderly behaviour or threatening abusive or insulting words likely to cause harassment alarm or distress. 96. In the pre-sentence report he maintained that he had entered the city out of curiosity, but had become swept up in the atmosphere and so involved himself. He now asserted that he was ashamed and disgusted at what he had done. His offending had begun at the age of 18, and had been serious, but he had been very young when it started. And for the past 3 years he had lived between hostels and friends, having fallen out of the education system at 14. 97. The mitigation, and basis of the submission that the sentence was manifestly excessive are based on the early guilty plea and admission of the offence at interview. There was nothing to suggest that he had been involved with the first wave of rioters who had broken into the store, causing the staff to take refuge, and had come in to the city knowing of the disturbances, only out of curiosity. The part he played in the disturbances was minor, and his offence involved no specific aggression, violence or attempts to resist arrest. 98. In his sentencing remarks the judge took account of the early guilty plea, and the appellant’s relative youth. He also noted, however, that he had “amassed a very considerable record”. He had chosen to enter Manchester knowing the disturbances were “underway” and when he saw that the store had been broken into by others, he took his chance and went in and took some goods. 99. In argument before us no specific criticism is directed at the judge’s sentencing observations. The contention is that the overall sentence was, in the circumstances, manifestly excessive. We disagree. It was within the appropriate range. This appeal is dismissed Hassan Koyuncu 100. On 1 st September 2011the appellant pleaded guilty at Highbury Corner Magistrates Court to burglary. Following committal for sentence, on 13 th September he was sentenced at Wood Green Crown Court before His Honour Judge Ader to 12 months’ detention in the Young Offender Institution. 101. This offence took place on 7 th August 2011 at the Comet store in Tottenham Hale as described in paragraph 24. These premises had been vandalised. £35000 worth of damage was caused during the attack on it, and no less then £855000 was stolen. A group of police officers who had been dealing with burning vehicles were re-directed to the retail park to deal with reports of this attack. When they arrived they witnessed large numbers of people breaking in to stores and making off with property. 102. The appellant was identified by the police as he climbed out of the broken entrance to the store. He ran away, but was followed and detained. He was arrested. When he was searched a pair of speakers, a media player and a camera were found on him. When he was interviewed he explained how he had arrived at the retail park and seen that the windows had been smashed and that people were inside the store stealing. So he went in, and decided to take “a couple of stereos and a camera”. 103. The appellant is 18 years old. He had previous convictions for robbery and attempted robbery when he received a 9 month concurrent referral order for each offence. He had however completed the referral orders without problems. 104. The pre-sentence report referred to his learning difficulties, but there were no psychiatric problems as such, and he displayed reasonable interpersonal skills in interview. He had difficulty in recognising the anti-social nature of his offence, or in appreciating that he had placed himself in the middle of serious public disorder. 105. Before the Crown Court it was accepted that the offence had, in the overall circumstances, crossed the custody threshold, but it was emphasised to the judge, as it was to us, that the appellant was only just 18 years old when the offence was committed, and that the correct sentencing approach was to treat him as if he was 17 at the time of the offence. He had not been to a mainstream school, and he had only ever had 2 weeks work in his life, a job which ended when he was made subject to curfew. The appellant should be treated as someone who had passed an open shop when it had already been looted. 106. In his sentencing observations, the judge summarised the relevant facts. He took account of the guilty plea offered at the first opportunity, and that there had only been one previous court appearance. Unfortunately the appellant had not learned his lesson from the leniency of the sentence. He took account of the appellant’s age, and acknowledged a level of special educational needs, but added that the appellant knew that what he was doing was wrong. The judge was unimpressed with a note in the pre-sentence report that the appellant had regretted leaving the store via the front because if he had left by the back he would have avoided arrest. The appellant should have regretted ever having entered the store at all. 107. The argument on appeal is that the sentence was manifestly excessive on the basis that the facts of the case merited a sentence other than immediate custody, and that the deduction for the early guilty plea had only been 25% rather than the 33% to which, following the guidelines, he was entitled. There was no such entitlement. The appellant was caught literally climbing out of the broken entrance to the store carrying property stolen from it. This offender was one of many who contributed to the ransacking of the Comet store. Making due allowances for his age and his personal disadvantages, the sentence was within the appropriate range. This appeal is dismissed. Lorraine McGrane 108. On 10 th August 2011 at Camberwell Green Magistrates Court the appellant pleaded guilty to burglary and following committal to the Crown Court for sentence, on 1 September 2011 in the Inner London Crown Court before His Honour Judge Fraser she was sentenced to 13 months’ detention in a Young Offender Institution. 109. This offence arose from the attack at about 21.25 on 8 th August 2011 of a large group of rioters on an Argos store in a Retail park in London SE1 as described in paragraph 29. The cost of repairing the damage to the store was estimated at £40000 and estimated £80000 worth of stock was stolen. When the break-in was reported, the police attended the scene. They saw the appellant. She was carrying a television and a large box. When she saw the police she attempted to run away. They stopped her. She told officers the television was hers. The television was put down in the road while the officers were dealing with the appellant. It was then stolen by someone else. The appellant was arrested. She said “I was stopped at the wrong time. These people are nicking everything from Argos. There was stuff lying around outside and I took it. There was worse stuff going on that me just nicking a television”. 110. When she was interviewed on the following day she explained that she had been returning home when she saw a mob attacking the Argos shop, and she followed the mob inside. She watched the store being raided. A man carried a television out of the stock room and put it on the floor. She picked it up and walked out of the store. 111. The appellant is 19 years old, and of previous good character. She was unemployed but she is a serving member of the Territorial Army, which supplied a positive character reference. She said that she had been “swept up in the hysteria” of the events. Her involvement in the public disorder had led to her father, with whom she lived, receiving an eviction notice. 112. In mitigation it was accepted that the custody threshold had been passed, but it was argued that any custodial sentence should be suspended. Credit should be given for the early guilty plea and full admissions at the scene and at interview. She had not set out that night intending to become involved in any looting, but was on her way home, and only in a moment of spontaneity had become involved and taken the television. 113. Her father was no longer at risk of eviction. She had been named and shamed in the local news. 114. In sentencing remarks the judge noted that the appellant had initially run away from the police and asserted that the television was her own. She had given differing accounts about how she came to be in possession of the television. The judge took account of the appellant’s age, previous good character, and personal circumstances. There was however the further consideration of the protection of the public in the context of a serious offence committed during a second night of rioting and looting. The sentence could not be suspended, and so, with a starting point of 20 months, reduced to allow for the mitigation, a sentence of 13 months detention was appropriate. 115. The submission is that the sentence was manifestly excessive or wrong in principle, and arising from the judge’s application of too high a starting point. Although it was conceded that Sentencing Council Guidelines do not apply in these circumstances, the sentence was significantly higher than the sentence normally imposed in the context of a commercial burglary. It was suggested that there was a potential disparity argument, other defendants having been less severely treated than the appellant. 116. On the material before us there is nothing in the disparity argument. It is, we accept, dispiriting that a young woman of good character should have involved herself in this offence, but her criminal activities were self-evidently intrinsic to the rioting and looting which was in progress. Even allowing for her positive good character, this sentence was appropriate. This appeal is dismissed. (c) Handling 117. We now come to three offences of dishonest handling. In cases like these, a line needs to be drawn between the offences which arose from and were directly connected with the disorder (which is an aggravating feature in itself) and those which were intrinsic to the disorder (an even more aggravating feature). None of these cases of dishonest handling involves someone who handled stolen goods by way of encouragement of the commission of burglary and theft as part of the disorder. Rather each represents opportunistic involvement after the burglaries had occurred, and although in close proximity to the scenes of disorder, the appellants did not participate or contribute to them. The connection between the offences which they committed and the burglary and theft committed during the disorders takes them outside the ordinary guidelines for handling offences, but not every handling offence committed during the public disorder was as intrinsic to it as, say, the burglaries of shops which had been smashed and looted. The sentences must recognise these distinctions. Stephen Craven 118. On 12 th August 2011 at the city of Salford Magistrates Court, the appellant (to whom we refer at paragraph 43) pleaded guilty to handling stolen goods and theft. Following committal for sentence on 22 August 2011 His Honour Judge Henshell sitting at Manchester Crown Court sentenced him to a total of 12 months’ imprisonment for handling stolen goods and 1 month imprisonment for theft. 119. The precise circumstances which led to the arrest of the appellant are not entirely clear, but initially he was arrested at his workplace on 11 th August for an offence of burglary. However he was charged with dishonestly handling a 32 inch Samsung High Definition television valued at £300, and theft of a Tesco shopping trolley. On arrest he told the officers where the television was. He said he bought it for £20 from some children, and he told another officer he had been stupid and knew he should not have bought it. 120. In interview this explanation was expanded. The television was bought shortly after 23.00 on 9 th August. He had been aware of the scale of the disturbance and had been in his father’s home in Salford precinct. He had seen the disturbances with his own eyes and on the television, and he was aware that shops had been broken into when he left his father’s home at about 23.00. On his way home a group of laughing youths passed him with the television, which he offered to buy for £20. They accepted. He knew the television was worth about £300 at the time, and he took it home by “a number of passageways”. He had found the stolen shopping trolley some 2 weeks before and had stolen it. 121. The appellant was 24 years old. He had minor previous convictions without receiving a custodial sentence. He was employed as a caretaker, and had been living with his partner for 8 years. He had 2 children. With his father he ran a football club, the aim of which was to prevent problems arising in the community associated with boredom. 122. Counsel on his behalf accepted that the custody threshold had been passed, but he urged that any custodial sentence should be suspended. 123. In his sentencing observations the judge acknowledged the guilty plea to both offences. The offence was committed during the disturbances. What the appellant had done was to provide an immediate market for a valuable piece of looted property. His offence was therefore aggravated by its proximity to the original offence when he knew perfectly well what was already happening in the streets locally. 124. The appeal proceeds on the basis that the facts advanced in mitigation show that the sentence was manifestly excessive. 125. The most significant feature of this case is its opportunistic nature. The appellant was out on the streets, on his way home. The temptation to “buy” a television at a huge undervaluation was too strong. The offence formed part of the process of public disorder, in the sense that when it was committed the appellant was in close proximity to those who had been involved in the rioting and looting. Nevertheless, given that he did not intend to and did not actually participate in any public disorder, but was, genuinely, walking home when the events occurred, we have concluded that the deterrent element in the sentence can be tempered. 126. A sentence of 6 months’ imprisonment would be sufficient. To that extent the appeal would be allowed. David Beswick 127. On 10 th August 2011 at Manchester City Magistrates Court, the appellant pleaded guilty to handling stolen goods. Following committal for sentence, on 16 th August he was sentenced at Manchester Crown Court by the Recorder of Manchester to 18 months’ imprisonment. 128. Based on his interview following arrest, it appears that the applicant went into Salford City Centre to watch the disturbances. (see paragraph 44 above). He followed a crowd and watched them throwing stones at the police, but had not become involved himself. At about 12.15am on 10 th August he decided to go home. Although he was very low on petrol, did not want to leave his car in the vicinity, in case it was damaged through all the troubles. A friend offered to go and get some petrol for him, and while he was waiting for the return of his friend, another man he knew said he would give him £20 if he looked after a television. It was put in his car pending this mans return, and the applicant was pouring petrol into his car’s fuel tank when police officers arrived. What happened then is clear. The officers told him that they would search his car. In the boot they found a 37 inch Sanyo television set stolen from “Cash Generators” and valued at £349-£399. The appellant was arrested. He immediately responded “well like a dick head I was just holding it for someone else”. That night “Cash Generators” had some £3500 of damage committed to their store and £1000 of goods taken. CCTV footage did not show any evidence to suggest that the appellant himself had entered the premises, or that he had been in the vicinity at any time. 129. The appellant is 31. He has a number of previous convictions, but none were for offences of dishonesty, and he had never received a custodial sentence. The pre-sentence report suggested that the offence had been committed for financial reasons, and suggested that the appellant did not fully recognise the seriousness of his behaviour and the wider social implications of what he had done. 130. In mitigation it was submitted that the appellant was in employment, and that his involvement was to provide transport to enable the stolen television to be removed from the area. He had been simply caught up in the event. 131. The judge considered that this was a cynical offence, committed by someone who knew what he was doing. He had stood and watched the offending for some hours. By accepting the television he had played his part in the overall public disorder. Grounds of appeal argued that the sentence is manifestly excessive. The judge failed to follow an appropriate guideline, but in any event he failed fully to take account of the available mitigation, and appeared to be punishing the appellant for offences committed by others. 132. We do not accept that the sentence punished this appellant for the actions committed by others. It reflected the context in which the offences were committed. That said, on the available facts this appellant fell to be sentenced for handling stolen goods on behalf of someone else. He was prepared to look after them when he must have appreciated that they represented the proceeds of looting during the course of the public disorder. That makes it a serious offence of its kind. It was closely connected with the public disorder, in which however the appellant himself played no direct part. A sentence of 9 months’ imprisonment was appropriate. To that extent the appeal is allowed. Stephen Carter 133. On 10 th August 2011 at Manchester City Magistrates Court, the appellant pleaded guilty to handling stolen goods. On committal to the Crown Court he was sentenced by the Recorder of Manchester to 16 months’ imprisonment. 134. As narrated at paragraph 44, at 12.50am on 10 th August 2011 police officers attending King Street saw a man walking with some bags. He was asked to stop. He ran from officers. He was eventually detained. Within the bags they found boxes of shoes and shirts, all still within their packaging. They had been stolen from a clothing store. Their estimated value was £500. When the appellant was cautioned, he said he had found them on the floor. In effect, this was theft by finding. 135. In interview he amplified this explanation. He had gone into town to see what was happening, and he remembered a shop being broken into. He also witnessed considerable trouble and looting in the City Centre. In an attempt to find his friends he eventually returned to a hostel in which he was staying. As they were not there, he went back into town to look for them. As he could not find them, he decided to return to the hostel where he found the bags of clothes as his made his way back. He admitted the offences. 136. The appellant is 26 years old. He has previous convictions, including convictions for offences of dishonesty and battery. He had recently served a custodial sentence of 10 weeks’ imprisonment. 137. The pre-sentence report noted that the appellant had recently separated from his partner who had left with their 16 month old child. He had briefly found himself homeless. He did not attempt to minimise or blame others for his offence, and recognised that the public disorder had adversely affected others. 138. In mitigation it was submitted that the appellant had been extremely intoxicated by alcohol and through misuse of cannabis when he was arrested. He had not intended to become involved in the troubles in Manchester. He had found the bag of clothes in unusual circumstances. He immediately admitted his offence and had made full admissions at the police station. On the night in question he had been asked to leave the hostel because he could not afford to pay the low rent. He was truly sorry for what he had done. His mother and sister have themselves received verbal abuse due to their association with him. He did not commit any offence of violence or looting that night and he had not been involved in the planning of any offence. 139. The judge took the view that this was an opportunistic crime committed by an individual who had entered the City Centre knowing perfectly well that public disorder was afoot. He accepted that the appellant had struggled with alcohol and drugs. Allowance should be made for the guilty plea, but the judge was concerned about the appellant’s recent bad history of offending. 140. The submission on appeal is simple. The sentence was manifestly excessive. The issue, as it seems to us once again revolves round the circumstances in which the handling offence was committed. It was a serious offence of its kind. The property was valuable. It was stolen by someone else in the course of looting and public disorder. The appellant’s crime stemmed from this public disturbance, but it was not intrinsic to it. The appropriate sentence in this case is 8 months’ imprisonment. To that extent this appeal is allowed. The Court Process 141. We cannot leave these appeals without highlighting the committed and dedicated way in which a number of Crown Courts and magistrates courts dealt with a large number of cases arising out of the public disturbances. Some magistrates’ courts sat, literally, through the night to dispose of the work. However their best efforts would have been unsuccessful, and the speedy administration of justice would not have occurred if the Police Service, the Crown Prosecution Service, the Probation Service and the Prison Service had not fulfilled their own responsibilities by preparing the cases and bringing them and the defendants to early hearings. The disposal of the cases in court represents the very end of a system in which these different services have distinct and independent responsibilities. At court, quite apart from judges and magistrates, the legal profession and court staff employed by Her Majesty’s Courts and Tribunal Service made their own contributions to speed the processes along. The efficient administration of justice represented a combined effort by all of them.

2011_10_18-2836.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/2312/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/2312

8e15f7cd0343c1a4a09bff4b653ad9ff92c208f16ea998e0be86866edc79ab8d

[2016] EWCA Crim 599

EWCA_Crim_599

2016-04-15

crown_court

No: 2015/4441/A3 Neutral Citation Number: [2016] EWCA Crim 599 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 15 April 2016 B e f o r e : LORD JUSTICE McCOMBE MR JUSTICE IRWIN THE RECORDER OF MIDDLESBROUGH HIS HONOUR JUDGE BOURNE-ARTON QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - R E G I N A V TERRY GUNN - - - - - - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph Notes of WordWave International L

No: 2015/4441/A3 Neutral Citation Number: [2016] EWCA Crim 599 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 15 April 2016 B e f o r e : LORD JUSTICE McCOMBE MR JUSTICE IRWIN THE RECORDER OF MIDDLESBROUGH HIS HONOUR JUDGE BOURNE-ARTON QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - R E G I N A V TERRY GUNN - - - - - - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph Notes of WordWave International Limited trading as DTI 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - Mr C Aspinall appeared on behalf of the Appellant The Crown did not appear and was not represented - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE McCOMBE: On 3rd August 2015 in the Crown Court at Derby before His Honour Judge Mooncey, on re-arraignment on the day fixed for his trial, the appellant changed his pleas of not guilty to four offences of rape charged in the indictment to pleas of guilty. On a fifth charge of the same offence it was ordered that that should remain on the file on the usual terms. On 3rd September 2015 he was sentenced for those offences by His Honour Judge Rafferty QC to concurrent sentences of nine years on three of the counts and on the fourth count to an extended sentence of 14 years, comprising a custodial term of nine years with an extended licence period of five years, to be served again concurrently with the other sentences. That gave rise to a total extended sentence of 14 years with a custodial term of nine years and an extension period of five years. He now appeals against that sentence by leave of the single judge. 2. The facts of the case were these. Count 1 3. On the evening of 26th January 2015 the appellant and the complainant had an argument about a meal that she had cooked. Afterwards they sat down in front of the television. He pulled his trousers down and pushed his penis towards her face asking her to suck it. She said "no". He was laughing and started to hit her in the face with it. He masturbated in front of her. She put a blanket over her face to try to prevent his approaches. He pulled her arms apart to get her face out of the blanket and proceeded to lick and kiss her. He continued to masturbate until ejaculation. 4. She thought that that was the end of it but he then proceeded to ask her for a "blow-out". She went outside for some thinking time and had a cigarette in her car. She texted him to ask if he could put her uniform for work outside so that she could get dressed elsewhere and go to her father's to stay overnight. (Both the complainant and the appellant were student nurses at the time, aged 20. They had been in a relationship for about 18 months and were living together, although their relationship was in a state of hiatus.) 5. He refused to put the uniform out, so she returned to the flat. He would not leave her alone. He pulled her trousers down and proceeded to molest her orally. She said she did not want it, she just wanted to go to bed. In response he said "Fine, I'll fuck you". He got on top of her and began having intercourse with her against her will. She cried and he said: "It's nearly over" and proceeded to ejaculation. Counts 3 and 4 6. The appellant took a knife to open the bathroom door into which the complainant had locked herself after the first incident which we have related. He said he was sorry and would not do it again. They went back to bed and the next morning she did not feel she could get to her work because she was still in a state of some shock over the event the night before. She rang into work to say she was unfit. The appellant woke up, was in a bad mood and said: "Can you do me a favour, please? Can you give me a blow job, please?" She said "No". He reacted by telling her in abusive terms to shut up. He raised his fists at her and she began crying. She was sitting on the floor. He picked her up and put her on the bed and repeatedly told her to shut up as he did not want the neighbours to hear her being upset. He proceeded to give her oral sex, in spite of her protestations. He pushed her onto the bed and she felt she had no choice but to appease him by doing what he wanted by way of oral sex. Before that he inserted his penis again into her vagina. She said: "If you loved me you would not do this to me." Again he told her to shut up. He ejaculated and when she thought this was all over, as she put it he put his penis into her throat and she said he was making her gag as he shoved his penis far down towards her throat. He stripped her of her clothes, prior to raping her vaginally and orally. He stopped but at that stage he refused to let her out of the house. 7. She said she needed a cigarette and on that pretext she got dressed and got into her car and drove around the corner. She realised then that she had to get to her work on the following morning because if she did not she might fail an assessment part of her course, so she had to try to retrieve her nurse's uniform and other related articles from the flat. She texted him back to say that she needed her belongings and she would go and stay at her father's. He texted back to her saying "You don't have to talk about it". Count 5 8. After about an hour the complainant arrived at the flat, went into the bedroom to collect her uniform and security ID. He followed her and pinned her to the bed. He said he wanted her to affirm her love for him. She remained frightened that he would hurt her so said that if she had sex with him would he then let her go. He said yes and proceeded to penetrate her. He ejaculated. She collected her belongings and left. She never went back to the flat and five days later she reported the matter to the police. 9. In interview after his arrest the appellant said she had not freely given her consent and expressed remorse. He knew that she had been scared. He also texted the complainant on 27th January to apologise and made abusive comments about himself saying he deserved a lonely life and hoped that she had a good life. 10. There is a victim personal statement which tells, not unsurprisingly, of the graphic and unpleasant effect that all this had on this complainant. 11. The appellant is now 22 years old. He was 21 at the date of sentence. He had no previous convictions. The pre-sentence report informed the court that the appellant said that once this course of conduct had started he found that he could not stop what he was doing. He saw this as what he called "make up sex" following an argument with the victim. It appears, as Mr Aspinall has explained to us and as appears in the papers, that it was their habit after arguments to have intercourse and to some extent he thought that the same was happening here, although obviously it went far beyond that. 12. The reporting probation officer considered that the appellant had some understanding of the experiences suffered by the victim in the course of the offences, but that this was somewhat superficial. It was stated in the report that he was sexually preoccupied, placing his own sexual needs and desires above anything else or anyone else, but it was thought not being entirely honest about the nature of this preoccupation. The officer considered that the sustained incident involving threats of violence on a vulnerable victim was likely to have caused significant psychological harm to the victim. The appellant was assessed as posing a medium risk of offending "generally" but it was stated that "until Mr Gunn has addressed the factors linked to this offending I assess him as high risk of further offending using both static and actuarial factors." A little later in the report it was said that he behaved in a manipulatory manner and there was a clear level of recklessness and risk-taking behaviour without thought for the consequences. In a further passage the report's author stated the appellant displayed limited remorse and appeared to advocate the use of sexual violence as a means of self-gratification in sex. He was at that stage in the report assessed as posing a high risk of re-offending based upon the assessment at interview, coupled with his social and offending history -- a passage with which Mr Aspinall took issue in his advice being, he submitted, not entirely based upon the true history of the appellant's background. In paragraph 4.2 of the report the officer concluded as follows: "It's my assessment at this time that until Mr Gunn gains a clear understanding of the circumstances that have lead to his offending behaviour, learns to identify situations in which he may pose a risk to others and develop strategies for the future which will reduce his risk, his risk of offending will remain as high. I would also assess Mr Gunn as posing a high risk of serious harm towards both [the complainant] and future intimate partners, the nature of this harm being of a sexual and emotionally distressing nature." 13. In passing sentence, the learned judge referred to the remorse expressed at the time of sentence, no doubt referring to a letter to that effect written by the appellant and which we have seen and considered. He also mentioned the appellant's past good character, but noted the comments in the pre-sentence report about an unhealthy preoccupation on the part of the appellant with his own sexual gratification. He expressed the view that the repeated conduct to this victim caused great concern to his present risk and in the foreseeable future. The judge gave a summary of the facts of the case and to the deliberate prolongation of the conduct that was not wanted by the victim, much in the same terms as we have sought to relate earlier in this judgment. This was conduct for his own gratification in which the appellant had exercised power over the complainant and by time of the rape in count 4 the judge took the view that the victim remained in fear of him because of additional threats to hit her. 14. The appellant, said the judge, had shown no love or care for the victim and had enjoyed every single moment of the incident. He referred to the victim impact statement in which the complainant spoke of being damaged not just in the short term but in the long term. The judge concluded that the victim must have suffered severe psychological harm in all the circumstances. The repeated violations had, he said, cumulatively added to her degradation and humiliation. 15. The judge then proceeded to consider the question of whether the appellant should be regarded as a dangerous offender for sentencing purposes. He referred to a request by counsel that sentencing should be adjourned for the preparation of a psychiatric report in view of the judge's mention of the possibility of such a sentence as a dangerous offender in the course of argument before him. The judge considered that such a report was not required, having regard to the report prepared by the experienced probation officer which we have endeavoured to summarise. The judge took the view that the answer to the question of whether the appellant presented the relevant danger to members of the public was clear and that an extended sentence was appropriate. 16. Referring to the pleas of guilty, the judge said that if the court had been satisfied that the delay in entering the pleas had been all the appellant's own doing he would have afforded 10 per cent credit for those pleas. As it was he was prepared to apply a 25 per cent credit. He proceeded to pass the sentences to which we have referred. We will perhaps remark immediately that the present 25 per cent credit was to an extent generous. 17. In the present appeal, Mr Aspinall in his helpful submissions has argued that the sentence was manifestly excessive. He submits that the judge was wrong not to have acceded to the request for an adjournment for the preparation of a psychiatric report and he argues that the finding of dangerousness was based upon inadequate evidence in the pre-sentence report. Although in the written grounds Mr Aspinall submitted that the judge adopted too high a starting point for the purposes of the sentencing guidelines, his argument this morning accepts that the determinate term of the sentence, a nine year period of custody, in all the circumstances was not too high. He submits that the judge should have afforded a full one-third credit for the guilty plea. 18. Returning to that particular point, this plea was entered on the day fixed for trial. The appellant sought to blame his previous solicitors for advising him incorrectly. The judge declined to go down that route, as do we. The appellant knew from the outset what he had done. The victim would no doubt have expected until a very late stage that she would have to give oral evidence. The discount of 25 per cent given by the judge was in our view generous to the point of leniency. 19. So far as the principal grounds are concerned, we turn to the question of the extended sentence which has been the thrust of Mr Aspinall's cogent submissions to us this morning. He submits that the learned judge should have acceded to his application for an adjournment and indeed has presented to us this morning a report from a consultant psychiatrist on Mr Gunn's medical condition, which was not of course before the learned judge. 20. The thrust of the report appears in paragraph 15 of the psychiatrist's opinion. It is not necessary to repeat a great deal of that but the psychiatrist refers to a number of risk reducing factors in this appellant's case. There was no concern in relation to drug or alcohol misuse. He was a young man, intelligent as well, capable of benefiting from various therapies on offer and while being young may increase the statistical risk of future offences, given greater life expectancy (that no doubt he thought was a rather simplistic approach) it also means he has time to change. The doctor concluded that there was no evidence of mental disorder, nor was he mentally ill at the time of the relevant offences, there was no impairment of intelligence and there was no indication from the history that he had any personality disorder that the doctor could detect. 21. Standing back from those submissions, it appears to us that it might on reflection have been helpful had the learned judge acceded to the course that Mr Aspinall proposed in seeking a psychiatric report which could only have assisted an understanding of the important question of whether an extended sentence was indeed appropriate for this young man, given, as was conceded on all hands, a significant custodial sentence would be passed in which risk would be addressed and at which this young man could undergo suitable offender management courses and treatment. We note that the passage in the pre-sentence report, to which we have already referred, said that there was a risk until the appellant gained a clearer understanding of the circumstances of the offending. It seems to us that the psychiatric report that we now have might well have persuaded the judge that the lengthy custodial term that he envisaged in any event would be adequate to meet the risk of the public and also afford the necessary opportunity to the appellant to mend his ways. 22. This was clearly an absolutely appalling set of offences. This poor woman was disgracefully degraded. He could not have expected anything other than the severest determinate sentence and we can well understand why the judge on perhaps limited material thought that he could be properly categorised as dangerous. We do not criticise the learned judge's finding in that respect, but we think, standing back from the matter, that this may have been one of those cases in which and indeed we find it is one of those cases in which it was not necessary to pass an extended sentence and to that extent the sentence passed was excessive. We propose to allow the appeal, to quash the extension period of five years that was imposed by the learned judge but conserving the nine year determinate sentence which the learned judge had in mind. To that extent the appeal is allowed.

2016_04_15-3750.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2016/599/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2016/599

9b5f831c0d0e2ba5aee34b5d6cf90c18ade7aab08c49436cdf08bad9a5237669

[2010] EWCA Crim 1927

EWCA_Crim_1927

2010-07-30

crown_court

Neutral Citation Number: [2010] EWCA Crim 1927 Case No: 2010 000978 A1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT WARWICK MR. RECORDER TAYLOR Royal Courts of Justice Strand, London, WC2A 2LL Date: 30/07/2010 Before : LORD JUSTICE THOMAS MR. JUSTICE BEAN and MRS. JUSTICE SHARP - - - - - - - - - - - - - - - - - - - - - REGINA V DARREN MARK WHITEHOUSE - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ian Strongman for the Appellant

Neutral Citation Number: [2010] EWCA Crim 1927 Case No: 2010 000978 A1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT WARWICK MR. RECORDER TAYLOR Royal Courts of Justice Strand, London, WC2A 2LL Date: 30/07/2010 Before : LORD JUSTICE THOMAS MR. JUSTICE BEAN and MRS. JUSTICE SHARP - - - - - - - - - - - - - - - - - - - - - REGINA V DARREN MARK WHITEHOUSE - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ian Strongman for the Appellant Zaheer Afzal (who did not appear below) for the Crown Hearing dates : 06 July 2010 - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice Bean 1. At about 5 am on 8 th March 2009 the Appellant and another man used a concrete block to force their way into a filling station and stole a quantity of cigarettes valued at £3,300 before making their getaway in a stolen BMW car. The burglary had been caught on CCTV. Police officers gave chase. The BMW was driven at speeds of over 80mph in a built up area and through a red light before it was abandoned and the two men alighted and ran off. The appellant, who had been the driver, was arrested after a short chase. He declined to comment in interview. 2. He was charged with burglary, driving whilst disqualified, taking a motor vehicle without consent and using it with no insurance. He originally pleaded not guilty but on re-arraignment he pleaded guilty. By the time he appeared for sentence he had spent 6 months on remand in custody. He was sentenced to a community order with requirements of drug rehabilitation, supervision for 12 months and a curfew for 3 months. He attended some supervision meetings but missed others. 3. On 18 th January 2010 the appellant smashed the driver’s side window of a parked car and stole a satellite navigation system from the glove box. His blood was found in the car and two weeks later he was arrested. He declined to comment in interview but next day at the Magistrate’s Court he pleaded guilty to theft and was committed for sentence to the Crown Court. He was of course in breach of the community order imposed in September 2009. So when he appeared for sentence on 11 th February 2010 before Mr. Recorder Taylor he fell to be sentenced for both the 2009 and 2010 offences. 4. The Recorder revoked the community order and imposed concurrent sentences of 12 months imprisonment for burglary, 2 months for driving whilst disqualified and 2 months for taking the car without consent, with no separate penalty for the insurance offence. For the 2010 theft he imposed a sentence of 6 months imprisonment, again concurrent. He said, “the sentence then… is 12 months, 52 weeks, and you will only have to serve half of that, so you will only serve a total of six months.” The judge asked what credit was due for time on remand and was told that it was 8 days. The judge directed that this period should be deducted and made the usual observation that if it proved to be different by a day or so an adjustment could be made administratively. 5. The grounds of appeal settled by Mr. Ian Strongman, who had appeared at the sentencing hearing before Mr. Recorder Taylor, were straightforward. He submitted that, “when assessing the overall length of the appropriate prison sentence, the Judge failed to take proper account of the fact that the Defendant had spent nearly six months on remand before being sentenced to a community order on 18 th September 2009”. He also submitted that account should have been taken of the fact that the appellant had complied with his curfew order and had kept most of his supervision and drug rehabilitation appointments. The argument that for these reasons the sentence was manifestly excessive was the ground on which the appellant was given leave to appeal by the single judge. 6. We do not accept that the sentence of 12 months was excessive. The appellant could have had no cause for complaint if a series of consecutive sentences had been imposed amounting to as much as two years. At any rate the Recorder was taking a very merciful course in making the sentence for the new offence concurrent with those for the 2009 offences. Even giving credit for such compliance as there had been with the community order, we do not think that the overall sentence can properly be criticised as excessive. 7. The matter would have ended there, but in oral argument Mr. Strongman advanced a new point. He submitted that the Recorder had been bound to give credit for the 6 months spent on remand in custody prior to the imposition of a community order in September 2009. (This would, when applied to a nominal sentence of 12 months, have resulted in the appellant serving no further time in custody at all). Even though the point had not been taken before the learned Judge - on the contrary, he had been told that 8 days’ credit was due - Mr. Strongman submitted that we were bound to give that credit ourselves. He cited Stickley [2008] 2 Cr. App. R.(S) 33, a decision of a two judge constitution of this court, in which it was held that where a defendant has served time on remand in custody prior to being sentenced to a community order and, on breaching that order and being re-sentenced at a later date, receives a term of imprisonment, the time spent on remand should count towards the latter sentence pursuant to section 240 of the Criminal Justice Act 2003 unless in all the circumstances it is just not to order it to count. 8. Section 240 of the Criminal Justice Act 2003 provides, so far as relevant, as follows: (1) “This section applies where – (a) a court sentences an offender to imprisonment for a term in respect of an offence committed after that commencement of this section, and (b) the offender has been remanded in custody … in connection with the offence or a related offence, that is to say, any other offence the charge for which was founded on the same facts or evidence. (2) Subject to subsection (4), the court must direct that the number of days for which the offender was remanded in custody in connection with the offence or a related offence is to count as time served by him as part of the sentence. (3) Subsection (3) does not apply if and to the extent that –…………. (a) it is in the opinion of the court just in all the circumstances not to give a direction under that subsection. (4) Where the court does not give a direction under subsection (3), or gives such a direction in relation to a number of days less than that for which the offender was remanded in custody, it shall state in open court –....... (a) that it is of the opinion mentioned in [subsection (4)(b)] and what the circumstances are.” 9. The court’s powers to deal with a breach of a community order are contained in paragraph 10 of schedule 8 to the Criminal Justice Act 2003 as follows: (1) “Where under paragraph 8 or by virtue of paragraph 9(6) an offender appears or is brought before the Crown Court and it is proved to the satisfaction of the court that he has failed without reasonable excuse to comply with any of the requirements of the community order, the Crown Court must deal with him in respect of the failure in any one of the following ways – (a) by amending the terms of the community order so as to impose more onerous requirements which the Crown Court could impose if it were then making the order; (b) by dealing with him, for the offence in respect of which the order was made, in any way in which he could have been dealt with for that offence by the court which made the order if the order had not been made.” 10. Section 240(4) (b) of the 2003 Act contains an unusual use of the term “unjust” since by definition when the subsection applies it will produce a result more adverse to a defendant than if the usual rule under section 240 (3) is applied. The injustice, therefore, must be to the community as a whole or the victim rather than to the defendant. 11. It is very common for a sentencing judge to be faced with a defendant whose offences merit, say, two years imprisonment but who has served six months on remand in custody. Mitigation is advanced on the lines that the defendant has learned his lesson and should be given a sentence which permits his immediate release from prison. The judge may consider that this is a proper course to follow provided that in the event of further offences being committed the defendant would serve a further period of 6 months in custody (bringing the total to the 12 month custodial period of the 2 year sentence he originally had in mind). 12. We note that by s 240(7) of the 2003 Act a suspended sentence is to be treated for the purpose of s 240 as a sentence of imprisonment when it is ordered to take effect and is to be treated as being imposed by the order under which it takes effect: see Fairbrother [2008] 2 Cr. App. R. (S) 43. It is therefore plain that if in the present appellant’s case the original sentencing judge had imposed a suspended sentence order, and Mr. Whitehouse had gone on to commit the further offence in 2010, he would have been entitled under section 240(3) to credit for the time spent on remand (in effect wiping out that element of the sentence) unless the court on the second occasion had made a finding that under section 240(4) (b) that it was just in all the circumstances not to give a direction under section 240 (3) crediting the time spent on remand in custody. This may be an argument that suggests that the decision in Stickley was correct on the basis that it would be curious if entirely different rules applied depending on whether the first court imposed a suspended sentence order or a community order: see Mari [2010] EWCA Crim 1143 . However we are not persuaded this is correct, as a suspended sentence would ordinarily take effect as passed if the terms on which it was suspended were breached, whereas breach of a community order may require re-sentencing as in Stickley and in this case. 13. In Bell [2010] EWCA Crim 1075 David Clarke J, who had been a member of the Court in Stickley , expressed some doubts about its correctness; and it was subject to criticism by Dr. David Thomas in the Criminal Law Review at [2009] Crim LR 308. There is, in our view, great force in Dr Thomas’ view, as there is nothing in the wording of paragraph 10(1)(b) of the Schedule which requires the court to ignore what has happened; the words of the paragraph simply limit the power of the court to powers that would generally have been available. They do not require the court to ignore the reality of what has happened in the meantime. 14. But even on the assumption, contrary to our view, that Stickley was correctly decided, there is a simple answer to Mr. Strongman’s new point. We have no doubt that if Stickley had been cited to the Recorder, or he had been told that the time spent on remand in 2009 was prima facie to be credited against the new sentence, he would have imposed sentences totalling two years, less the time spent on remand, so as to achieve his entirely proper objective of ensuring that the Appellant spent another six months in custody. We cannot substitute that form of sentence ourselves since it would (at least arguably) be in excess of our powers under s 11(3) of the Criminal Appeal Act 1968 . But we can and do hold pursuant to s 240(4) (b) of the 2003 Act that it would be unjust to give the credit for six months on remand in custody against the 12 month sentence imposed by the learned Recorder. 15. For these reasons, as we indicated at the conclusion of oral argument, the appeal against sentence will be dismissed.

2010_07_30-2472.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/1927/data.xml

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990ba5da2c56e080093ba792aef9b6e5ba43a38c217d4fab95e3a2b43b0f682f

[2021] EWCA Crim 671

EWCA_Crim_671

2021-04-15

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. 202100821 A4 IN THE COURT OF APPEAL CRIMINAL DIVISION [2021] EWCA Crim 671 Royal Courts of Justice Thursday, 15 April 2021 Before: LORD JUSTIS EDIS MRS JUSTICE FARBEY HIS HONOUR JUDGE FLEWITT QC REGINA V JULIE PAUL-SLACK __________ 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 P. HAMPTON appeared on behalf of the Appellant. The Crown were not represented. _________ J U D G M E N T MRS JUSTICE FARBEY: 1 On 22 December 2020 in the Crown Court at Sheffield before HHJ Slater and a jury, the appellant was convicted of one offence of the wilful neglect of a person lacking, or believed to be lacking, capacity. She was acquitted on a further count of ill-treatment. Both neglect and ill-treatment of those who lack or are believed to lack capacity are offences by virtue of s.44 of the Mental Capacity Act 2005. On 19 March 2021 before the same judge, she was sentenced to four months' imprisonment. 2 The appellant's co-accused was Barbara Sykes. She was convicted on two counts of ill-treatment under s.44 of the 2005 Act, and three counts of ill-treatment of an individual by a care worker contrary to s.20(1) and (2) of the Criminal Justice and Courts Act 2015. Ms Sykes was sentenced at the same time as the appellant to a total of six months' imprisonment. 3 The appellant appeals against sentence with the leave of the single judge. Facts 4 From 2010 until 2017 Ms Sykes was the manager of a day care service operated by Rotherham Metropolitan Borough Council based at the Elliott Centre in Rotherham. The appellant was the assistant manager there from 2010 until 2016. The Elliott Centre provided therapeutic activities and day care for adults with a range of learning difficulties, autism and other challenging behavioural issues. 5 The offence of which the appellant was convicted concerned a vulnerable service user. She suffered from a severe learning disability and cerebral palsy with severe paralysis on her right side. She was epileptic and therefore prone to having seizures. She had limited vocabulary. She disliked noise, preferring to stay away from larger groups. She would become upset, shouting or displaying threatening behaviours, when in situations she disliked, and needed constant reassurance and guidance from members of staff. Her care plan contained a specific note to the effect that she should not sit in the dining room. Despite that note, Ms Sykes insisted that she sit in the dining room at mealtimes. 6 On one day, the service user was upset as a result of the environment she was in and began banging on tables. Ms Sykes dealt with this by approaching her from behind and pulling her by the back of her cardigan. This had the effect of pulling her backwards off her chair onto the floor. She continued to shout, and Ms Sykes then took hold of her leg and dragged her, still shouting, out of the dining room and along a corridor running the length of the building, before putting her outside in the garden area and saying she could stay there until she had calmed down. Two other members of staff had to run to lift up the service user's head so that it did not strike the raised metal footplate at the base of the door to the garden area. 7 This incident upset a number of members of staff who witnessed it, including the appellant, who was described as having been in tears afterwards. However, as she was Ms Sykes' friend, she did nothing about it. She did not report it to officials within Rotherham Metropolitan Borough Council, which was her professional duty as assistant manager. The prosecution case was that in failing to act by bringing her manager's behaviour to the attention of appropriate personnel, she had neglected the service user. The indictment put the incident as occurring between 6 June 2011 and 1 January 2013. OPUS 2 DIGITAL TRANSCRIPTION Judge’s sentencing remarks 8 In sentencing the appellant and Ms Sykes, the judge made a number of general observations. He gave a detailed description of a climate of fear which had inhibited Centre staff from reporting ill-treatment of service users. He said that the behaviour both of Ms Sykes and of the appellant was a gross abuse of trust for which the only appropriate punishment was a term of immediate imprisonment for each of them. That was for three reasons. Firstly, to abuse vulnerable individuals, having been entrusted with their care, was "both abhorrent and despicable". Secondly, the families and carers of vulnerable individuals needed to be confident that, if entrusted to the care of others, their loved ones would remain safe and be treated with kindness and respect. Thirdly, the judge emphasised that "it must be clearly stated that those who abuse the vulnerable in their care would be severely dealt with regardless of good character." For these reasons, a suspended sentence was, in the judge's view, not appropriate. 9 In reaching a sentence of four months in the appellant's case, the judge emphasised the importance of an effective safeguarding system which required integrity from those in managerial positions. In mitigation the judge gave some weight to the length of time the proceedings had taken to conclude. This would be the appellant's first custodial term which would be served in the difficult circumstances of the present COVID-19 pandemic. She would in all likelihood lose her career. Grounds of appeal 10 In his helpful oral and written submissions, Mr Peter Hampton on behalf of the appellant properly recognised the seriousness of the offence, but submitted that the four-month sentence was manifestly excessive. The appellant's co-defendant Ms Sykes received a six-month sentence for offences relating to five different service users, and she had carried out the ill-treatment which the appellant had failed to report. The two months’ difference between the appellant and Ms Sykes's sentences failed to recognise their differing roles; nor did it reflect that the appellant had been convicted on only a single count. In addition, the judge had given inadequate weight to the eight-year delay between the offence and the conviction. Conclusions 11 The question for this court is whether the sentence imposed by the judge was manifestly excessive or wrong in principle. There are no sentencing guidelines in relation to the offence. The appellant's failure to report Ms Sykes' conduct was a serious dereliction of duty and a serious breach of trust. We agree with the judge that the users of day care services and their families must have confidence that safeguarding procedures will be followed. 12 That said, we are persuaded that a four-month sentence did not properly reflect the different roles of the appellant and Ms Sykes in events at the Centre. The sentencing remarks appear to us to suggest that both were equally culpable for the climate of fear which operated there. In our judgment, that was plainly not the case. The appellant stood to be sentenced for one incident of failing to report misconduct by her superior. 13 The appellant is 57 years old and of good character. We share the judge's prediction that she will not now be able to work in this sector again, which will doubtless be a considerable OPUS 2 DIGITAL TRANSCRIPTION hardship. A suspended sentence order would, in our judgment, have been sufficient in this case. We do not impose such a sentence because the appellant has served the equivalent of a 54-day sentence. For these reasons we quash the sentence of four months and substitute a sentence of 54 days. To this extent, this appeal is allowed. _______________ OPUS 2 DIGITAL TRANSCRIPTION CERTIFICATE Opus 2 International Limited hereby certifies that the above is an accurate and complete record of the Judgment or part thereof. Transcribed by Opus 2 International Limited Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 CACD.ACO@opus2.digital This transcript has been approved by the Judge.

2021_04_15-5157.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2021/671/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2021/671

b1a2a59202518fedcc2962479e5ac71ac321a5bc2ed95053ed7699ce72abc53d

[2008] EWCA Crim 1998

EWCA_Crim_1998

2008-08-15

crown_court

Neutral Citation Number: [2008] EWCA Crim 1998 No: 200802222 A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 15th August 2008 B e f o r e : LORD JUSTICE TOULSON MR JUSTICE ANDREW SMITH MR JUSTICE BEAN - - - - - - - - - - - - - - - - - - - - - R E G I N A v DARREN STEPHEN HAYES - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 F

Neutral Citation Number: [2008] EWCA Crim 1998 No: 200802222 A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 15th August 2008 B e f o r e : LORD JUSTICE TOULSON MR JUSTICE ANDREW SMITH MR JUSTICE BEAN - - - - - - - - - - - - - - - - - - - - - R E G I N A v DARREN STEPHEN HAYES - - - - - - - - - - - - - - - - - - - - - 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 Samuels appeared on behalf of the Appellant Mr J Dickinson appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE TOULSON: On 8th January 2008, at Bolton Crown Court, the appellant pleaded guilty to an offence of arson being reckless as to whether life was endangered. On 31st March 2008, he was sentenced to eight years' imprisonment. He appeals against that sentence by leave of the single judge. The offence to which he pleaded guilty was the second count on the indictment. The first count charged was arson with intent to endanger life. On his pleading guilty to count 2, the prosecution did not seek to proceed on count 1. The plea of guilty was entered on the first day of the trial. On the face of the record, it was therefore a late change of plea but that is an over-simplification, for reasons to which we will refer. 2. First, however, the facts. The appellant was employed as a care assistant at a nursing home in Bolton. There were 57 residents in all. The home included a nursing unit which housed 14 residents with an average age of 80. A number of them had suffered strokes. A second unit contained 43 residents, all with mental health care issues. To say that they were vulnerable and incapable of supporting themselves is to state the obvious. 3. The appellant had been employed at the home since 2003. On the evening of 8th October 2006 there was an incident between him and another member of staff which resulted in the appellant being suspended. The appellant took this very badly. Shortly before 9 o'clock in the evening, his ex-wife received a phone call from him. He was in an agitated state. He told her that he had been in trouble at work and that he had been suspended. He also told her that he had some petrol and was torching some cars. What he did was a good deal worse than that. He went to the laundry room in the basement of the nursing home and started a fire with petrol. The results were dire. He himself was engulfed with flames and was taken to hospital for burns affecting over half his body and he has been left with significant burn disabilities. That is entirely his own fault and nobody would suggest that he is deserving of any particular sympathy on that account. 4. The fire crews attended very quickly but by the time they arrived they were met with a quite well-advanced fire with heavy smoke. The situation was rapidly deteriorating with around 30 immobile residents and six to ten staff on duty. As a result of a great deal of skill and courage, the residents were all evacuated and none lost their lives. Three were taken to hospital suffering from the effects of smoke inhalation. Many were extremely frightened, confused and distressed. On the following day, there was no gas or electricity, and therefore no heating, and the lifts did not work. All this caused problems for residents, who were forced to sit around in the cold. 5. The damage to the premises was considerable. It cost nearly a hundred thousand pounds to remedy and it took two to three months for the home to return to normal. This was plainly an offence of reckless arson at the very top of the bracket. 6. The appellant was born on 13th May 1977. He had some previous convictions. A psychiatric report concluded that he had no mental illness. The cause of his criminality was simply anger at the way in which he had been treated and a determination to have his revenge on the home. Alcohol played a part because he was heavily under the influence of alcohol. That disinhibited him but it provides no form of excuse. 7. In sentencing the appellant, the judge properly stressed the gravity of the offence and, in particular the very high risk that many fatalities could have been caused. The judge gave the appellant 25 per cent credit for his plea on the morning of the trial. 8. In giving leave to appeal, the Single Judge observed: "This was a very serious case of its kind. While you may argue all your grounds, the only one sufficiently strong to provide the grant of permission was that based on the reduction of the one third discount for plea to 25%." 9. Mr Samuels, who represented the appellant in the court below and who has appeared before us, has submitted that the judge must have taken too high a starting point for the offence, even though it was extremely grave, because he emphasised that the offence was one of reckless arson and not arson with intent to endanger life but, mindful, no doubt, of the Single Judge's comments, he placed the question of discount for plea at the forefront of his argument. 10. The court has a letter from the prosecution in which the following is stated: "It is accepted that, on the morning of the PCMH, an indication was made to the prosecution that the appellant would plead to arson being reckless if the prosecution agreed not to pursue the other count on the indictment ie arson with intent to endanger life. The Crown have no record of any such intimation being given prior to the date of the PCMH. At that stage that proposal was not acceptable to the prosecution. A significant consideration in making that decision was that if the proposal was accepted it might materially affect the sentence that the defendant would receive. In the event the defendant entered not guilty pleas to both counts on the indictment thereby putting the prosecution to proof not only in relation to the defendant's state of mind at the time of the incident but also in relation to whether he was responsible for starting the fire at all. It would, of course, have been open to the appellant to plead to arson being reckless at that stage notwithstanding the Crowns's intention to pursue the other count." 11. The prosecution have been represented on this hearing by Mr Dickinson, who did not appear below but has helped us acting on instructions. Mr Samuels has given us a full account of matters. They can be summarised in this way. As soon as he was brought into the case, which was some time before the PCMH, he took the view that this case should be dealt with by his client pleading guilty to count 2. He gave that advice to his client, who accepted it. At the PCMH he informed the judge. He told the judge that if the prosecution were intent on proceeding on count 1, on his advice the client would plead not guilty to count 2 solely with a view to the jury returning a verdict of guilty on count 2, so that they had that active role to perform rather than merely being told that he had pleaded guilty to count 2. This was effectively a tactical decision taken on counsel's advice for that reason. He made an express explanation to the judge that there was no issue as to the primary facts. The only issue was as to intent and the only witnesses who were therefore required to attend the trial were those who could potentially assist on the issue of intent. He told us that prior to the PCMH he had tried to make contact with prosecuting counsel in order that the matter could be dealt with at an early date on that basis but no counsel had been instructed. The prosecution's representative at the PCMH attended on a large number of cases and was not in a position to discuss whether this was an acceptable plea or not. It was therefore not until the morning of the trial itself, in the face of an indication by the judge, that the prosecution then agreed to accept a plea on count 2. 12. Mr Dickinson told us that he was not able to contradict those facts and we accept them from Mr Samuels. Mr Dickinson did tell us that, when the result of the PCMH was reported back to the case lawyer in charge of the prosecution, he took what Mr Dickinson described as a cautious approach. Since a formal plea of not guilty had been entered, the prosecution set about obtaining further evidence to prove the fact that the appellant started the fire. 13. We did find this surprising. We know the pressures that prosecuting authorities are under but the purpose of a case management hearing is, among other things, to try to bring the case to an early resolution, if that is possible, and that is only going to work if both sides co-operate towards that end. From what we have heard, the defence did all that they could to try to bring about an early determination of these proceedings but the representative of the prosecution on the hearing of the PCMH appears not to have been as well instructed. Plainly on the facts, as we understand them to be, it would not have made any difference to the way in which matters proceeded if the appellant had pleaded guilty at the PCMH, save that the prosecution would not have incurred further time and expense pursuing unnecessary evidence. We are surprised that they did so, in the light of what had been said at the PCMH. If there was any real doubt about the matter, a case lawyer to whom the events at the PCMH had been fully reported might have been expected, if he wanted to be a hundred per cent sure of the position, to write a letter to the defence asking for confirmation that the appellant did indeed admit to starting the fire, and doing so recklessly and asking for confirmation that the sole issue at the hearing would be on the issue of intent (assuming that the prosecution intended to proceed on count 1). It would have taken a very brief time to write such a letter and the cost of posting it would be minimal. We are surprised that this was not done and that the prosecution instead allocated resources to obtaining further evidence in the matter. We reiterate, if the case management system is to work well, both parties should come to the hearing prepared to put their cards face up and in a position to make any necessary decisions then or shortly afterwards. 14. We would not want this judgment to be taken as an indication that to say at a PCMH that a client would be prepared to plead guilty to count X, if the prosecution accepts a plea of not guilty to count Y, is automatically being treated as tantamount to a pleaof guilty to count X. That would be putting it far too broadly. Ordinarily speaking, a defendant has to make up his mind how he is going to plead and he is only entitled to a full discount for a guilty plea if it is entered at the earliest opportunity. But the facts of this case are rather special and, on the facts as we have been told them, we think that this appellant should in justice have had a full discount for his plea. We recognise that this was an extremely grave case but in all the circumstances we will quash the sentence of eight years' imprisonment and substitute a sentence of seven years' imprisonment. To that extent the appeal is allowed.

2008_08_15-1632.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/1998/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/1998

e368436753d2bd9f7ef97e75227285aab0bb933d6a95589eb211b8b1a36221b0

[2009] EWCA Crim 962

EWCA_Crim_962

2009-05-14

supreme_court

Neutral Citation Number: [2009] EWCA Crim 962 Case No: 2008/03986/A5 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT CHELMSFORD MR JUSTICE DRAKE Royal Courts of Justice Strand, London, WC2A 2LL Date: 14/05/2009 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE DAVID CLARKE and MR JUSTICE WYN WILLIAMS - - - - - - - - - - - - - - - - - - - - - Between : R - v - Jeremy Bamber - - - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2009] EWCA Crim 962 Case No: 2008/03986/A5 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT CHELMSFORD MR JUSTICE DRAKE Royal Courts of Justice Strand, London, WC2A 2LL Date: 14/05/2009 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE DAVID CLARKE and MR JUSTICE WYN WILLIAMS - - - - - - - - - - - - - - - - - - - - - Between : R - v - Jeremy Bamber - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr R Horwell QC and Mr L Hindmarsh for the Applicant Mr V Temple QC and Miss A Darlow for the Crown Hearing date : 28 th April 2009 - - - - - - - - - - - - - - - - - - - - - Judgment The Lord Chief Justice of England and Wales : 1. On 28 October 1986 at the Crown Court at Chelmsford before Drake J and a jury Jeremy Bamber (the applicant) was convicted of murdering his adoptive father, his adoptive mother, his adoptive sister, and his nephews, her 6 year old twin sons, on 7 August 1985. 2. In December 2002, following a reference by the Criminal Cases Review Commission, these convictions were upheld in this court. (See (2002) EWCA Crim 2912 ) 3. The present application is not concerned with the convictions, or their safety, or any grounds of appeal against them. The issue to be addressed arises from the sentencing process, which culminated on 16 May 2008 in a decision by Tugendhat J who, following a review of sentence conducted in accordance with schedule 22 of the Criminal Justice Act 2003 ( the 2003 Act ) ordered that the applicant should be subject to what can be summarised as a “whole life tariff” sentence for these offences. This order is the subject of the present application. 4. On 28 th April 2009 we heard the submission advanced on the applicant’s behalf by Mr Richard Horwell QC. We refused the application and indicated that we would reduce our reasons to writing. Brief Summary of the Facts 5. These murders were planned. On 7 August 1985 the applicant, then aged 24 years, broke into the family home. The members of his family were asleep. He fired a total of 25 bullets from a rifle into their bodies. They were all killed. 6. As a result of these deaths the applicant stood to make a considerable financial gain. With the death of his sister, and her children, he was the sole beneficiary to his parents’ estate, valued in excess of £400,000. 7. The pre-planning incorporated a scheme to avoid detection. The applicant’s sister had a history of mental illness. He sought to divert blame to her. After her death he positioned the body so that it would appear that she had killed the family, including her two infant sons, and then committed suicide by shooting herself. The sound moderator was removed from the murder weapon. It was concealed in a downstairs cupboard. If the sound moderator had remained attached, the investigations would almost certainly have concluded that the applicant’s sister could not have committed suicide. 8. In a further step the applicant removed the telephone in the downstairs kitchen from its cradle. Having constructed the scene so as to cast suspicion on his sister, the applicant telephoned the police to report a conversation with his father who, according to the applicant’s report, had asked him to come over because his sister had gone crazy and had a gun. The line then went dead. This report appeared later to be reinforced by the absence of the kitchen telephone from its cradle, which suggested that the father had been attacked while making the telephone call to his son for help. The applicant went on to tell the police that his sister had a history of psychiatric illness. He confirmed that there were guns at his father’s home. 9. A police car was despatched to the scene. Basing themselves on what the appellant had told them the police believed that his sister had been responsible for what had happened, and that a fraught situation might still obtain. They decided to wait until daylight before entering the house. Armed officers entered at 7.45. They found all 5 occupants dead from multiple gunshot wounds. 10. The applicant’s father, was 61 years old. From a later examination of the home it appeared that he was shot 4 times while he was upstairs in his home, but that he managed to make his way downstairs where a violent struggle took place in the kitchen. During this struggle he was struck a number of times with the rifle. He was found dead in his kitchen. The applicant’s mother was dead on the floor in her bedroom, and his sister was lying on the floor of her mother’s bedroom. The automatic rifle was found on her body with her right hand resting lightly on it, and the muzzle of the weapon just below wounds to her neck. The two small children were dead in their beds, shot through the head. 11. In the immediate aftermath and during the course of the police investigation, the applicant made a number of public appearances affecting profound distress and grief. For a while, the deception looked as though it might work, and the trial judge was later to express concern about the “less than thorough investigation” conducted by the police because they were “immediately persuaded” that the sister was responsible for the killings. However the applicant’s former girlfriend reported to the police that he had told her of his plans to kill his family, and indeed of his involvement in their killing. The applicant was arrested and remanded in custody from 29 September 1985. 12. On the basis of these facts the Crown contended and, following conviction, the sentencing decision had to reflect that these five murders were carefully planned, that the applicant made careful and sophisticated preparation to carry out the killing, to exculpate himself and to cast blame on his sister, and that the execution of his plans was utterly ruthless. This was a crime at the highest level of seriousness. The legislative background 13. In view of the submissions addressed to the court on behalf of the applicant we must briefly remind ourselves of the sentencing framework which applied at the date of conviction. Section 1(1) of the Murder (Abolition of Death Penalty) Act 1965 provided that the sentence for murder was a mandatory sentence of imprisonment for life. By section 1(2) the court was empowered to “declare the period which it recommends” as the minimum period which should elapse before the release of the prisoner should be ordered. Two specific points relevant to the present and similar applications require emphasis. First, the recommendation was never intended to be and never was more than a recommendation, and it is plain that although the Secretary of State was required and would wish to attend to it, he was not bound by it. Second, it was never understood that every mandatory sentence of life imprisonment should automatically be regarded as a whole life sentence: subject to issues of public safety, the possibility of an eventual release was implicit in the vast majority of such cases. Subsequent sentencing enactments governed the exercise of the power of the Secretary of State to decide the time when the convicted murderer could, notwithstanding the mandatory sentence, be released from custody. That responsibility continued to be vested exclusively in the Secretary of State, and not the judiciary. 14. In 1986 therefore, the trial judge was enabled to make a recommendation about the minimum period which should elapse before the offender might be released on licence. His assessment was case specific, based on his judgment of the true level of the defendant’s culpability and the immediate and individual circumstances of the case. His recommendation reflected his view about the “actual length of detention necessary to meet the requirements of retribution and general deterrence”. The Lord Chief Justice was similarly involved in the process, but he was involved in each and every such case. In making his recommendation the Lord Chief Justice was removed from the immediate circumstances of the individual case, but basing himself on the report prepared by the trial judge for the Secretary of State, and his much wider, nationwide responsibilities, his recommendation ensured both appropriate oversight and consistency of approach to the assessment of the tariff period. Neither the trial judge nor the Lord Chief Justice decided the length of the period to be served by the offender for the purposes of retribution and general deterrence. Their role was advisory. 15. In the present case, following conviction, Drake J imposed the mandatory sentence of life imprisonment on each count of murder. In his sentencing remarks he recommended that a minimum of 25 years should be spent in prison. According to a contemporaneous newspaper report the judge stated “I have to consider when I think it is likely to let you live in the community. But I think it is difficult to foresee whether it will ever be safe to release into the community someone who can shoot and kill five members of his own family, including two little boys asleep in their beds” That observation would not have been before the Lord Chief Justice, Lord Lane. 16. Consistently with practice, Drake J wrote subsequently to the Secretary of State setting out his assessment of the case and his views about the length of detention necessary to meet “the requirements of retribution and general deterrence”. His assessment of the case was that this was an “exceptionally monstrous crime”. He drew particular attention to the way in which the applicant had decided to throw suspicions on to his sister, and how the plan very nearly led “to him escaping detection”. He then commented that “when I made the recommendation in court I emphasised that it was 25 years as a minimum ” (his underlining). 17. Shortly afterwards Lord Lane, again in accordance with practice, and writing on the same document as that signed by Drake J, expressed himself in these terms: “I agree with Drake J, adding that for my part I would never release him”. (Again, his underlining). It is suggested on the applicant’s behalf that Lord Lane was indicating his agreement which Drake J’s recommendation, and not, as Tugendhat J concluded, recommending a whole life tariff. 18. We disagree. It is quite clear to us, as it was to Tugendhat J, that while Lord Lane indicated his agreement with Drake J’s assessment of the crime as “exceptionally monstrous”, when he was addressing the minimum period which he was recommending, he was deliberately emphasising that his recommendation was that the applicant should never be released. If he had been agreeing that the 25 year minimum recommendation made by Drake J was appropriate, he would have confined himself to the words “I agree with Drake J”, or even, “I agree”, or, simply “25 years”. The additional words he used expressly indicated that his view about the minimum term did not coincide with that of Drake J, and that even as a “minimum”, 25 years was an inadequate punitive term. Lord Lane’s recommendation was that the appellant should “never” be released. The Secretary of State was thus provided with two judicial recommendations. He was entitled to choose between them, or to adopt neither of them. 19. In 1988, the Secretary of State, in agreement with the Lord Chief Justice, ordered that the applicant should be subject to a “whole life tariff”. 20. On 15 December 1994, in accordance with the practice laid down by the House of Lords in Doody [1994] 1AC 531 , the applicant was informed that the Secretary of State had concluded that “the requirements of retribution and deterrence could only be satisfied by you remaining in prison for the whole of your life”. As far as we are aware, and after investigation by Mr Horwell with his client it is apparent that there was no response to an indication in the letter that the Secretary of State would be willing to entertain written representations by or on behalf of the application about the whole life tariff, but whether such representations were received or not, the whole life order was not varied. There the matter appeared to rest. Developments after 1994 21. In Anderson [2003] 1AC 837 the House of Lords concluded that the right of an offender under Article 6 of the European Convention on Human Rights (the Convention) to have sentence imposed on him by an independent and impartial tribunal was infringed by the arrangements by which the Secretary of State was involved in setting the minimum term to be served by an offender sentenced to life imprisonment for murder. The present application arises directly from the new arrangements put in place to address this decision. 22. The Secretary of State’s responsibility for the assessment of the appropriate minimum term was ended by the 2003 Act . Subject to any appeal to this court, or a reference to this court by the Attorney General of an unduly lenient sentence, the responsibility for fixing the minimum term to be served, or for making a whole life order is vested in the trial judge. 23. To cater for those cases where, as here, the Secretary of State had already notified the prisoner of the minimum period to be served by him as the tariff period, including a whole life tariff, paragraph 3 of schedule 22 of the Act entitled the prisoner to seek a review of minimum term, or whole life tariff set by the Secretary of State. The process is now governed by schedule 22 . 24. Paragraph 3 of schedule 22 provides: “(1)On the application of the existing prisoner, the High Court must, in relation to the mandatory life sentence, either – (a) order that the early release provisions are to apply to him as soon as he has served that part of the sentence which is specified in the order, which in a case falling within paragraph 2(a) must not be greater than the notified minimum term, or (b) in a case falling within paragraph 2(b), order that the early release provisions are not to apply to the offender. (2) In a case falling within paragraph 2(a), no application may be made under this paragraph after the end of the notified minimum term. (3) Where no application under this paragraph is made in a case falling within paragraph 2(a), the early release provisions apply to the prisoner in respect of the sentence as soon as he has served the notified minimum term (or, if he has served that term before the commencement date but has not been released, from the commencement date). (4) In this paragraph “the notified minimum term” means the minimum period notified as mentioned in paragraph 2(a), or where the prisoner has been so notified on more than one occasion, the period most recently so notified. ” 25. Paragraph 4 of schedule 22 provides: “(1) In dealing with an application under paragraph 3, the High Court must have regard to – (a) the seriousness of the offence, or of the combination of the offence and one or more offences associated with it, (b) where the court is satisfied that, if the prisoner had been sentenced to a term of imprisonment, the length of his sentence would have been treated by section 67 of the Criminal Justice Act 1967 (c.80) as being reduced by a particular period, the effect which that section would have had if he had been sentenced to a term of imprisonment, and (c) the length of the notified minimum term or, where a notification falling within paragraph 2(b) has been given to the prisoner, to the fact that such notification has been given. (2) In considering under sub-paragraph (1) the seriousness of the offence, or of the combination of the offence and one or more offences associated with it, the High Court must have regard to – (a) The general principles set out in Schedule 21 , and (b) Any recommendation made to the Secretary of State by the trial judge or the Lord Chief Justice as to the minimum term to be served by the offender before release on licence. (3) In this paragraph “the notified minimum term” has the same meaning as in paragraph 3.” 26. The applicant sought a review of his sentence. The matter was considered by Tugendhat J. He refused an application for oral hearing. He considered the recommendations made by the trial judge, and the views expressed by the Lord Chief Justice and the Secretary of State. He was provided with victim impact statements, together with written submissions advanced on behalf of the applicant. These submissions noted the positive behaviour by the applicant in prison. Tugendhat J addressed the general principles relating to sentences following conviction for murder set out in schedule 21 of the 2003 Act . He concluded that there was no reason to depart from the views expressed by the Lord Chief Justice and the Secretary of State. In accordance with para 3(1)(b) of schedule 22 of the 2003 Act he ordered that the early release provisions should not apply to the applicant. In short, this would be a whole life order. The submission on behalf of the applicant 27. It is argued in written grounds in support of the application that this whole life order contravenes the rights provided for the applicant by the Convention. Article 7 of the Convention is said to be infringed by the imposition in 2008 of the whole life order for offences committed in 1985 by reference to sentencing criteria created in the 2003 Act . Furthermore, as there is no power in the court to review a whole life sentence, so that it is reducible neither de jure nor de facto, the applicant’s rights under articles 3 and 7 are engaged. Quite separately from the Convention, it is suggested that the whole life order made by Tugendhat J is excessive and unjustified. A fixed term should be substituted. 28. The main oral submission advanced by Mr Horwell can be briefly summarised. He did not contend that a whole life sentence was incompatible with the application’s Convention rights, and further accepted that a whole life sentence may represent just punishment. However the applicant, and others in his position, who, following the review were made subject to a whole life order, were left without any hope of or possible consideration being given to release, whatever his or their progress and therefore, such a sentence, reducible neither de jure nor de facto, was incompatible with article 3 rights. Mr Horwell drew attention to the limited circumstances in which release could be ordered by the Secretary of State contained in section 30 of the Crime (Sentences) Act 1997 . This permits the release of a life prisoner on licence where exceptional circumstances exist justifying the release on “compassionate grounds”. Mr Horwell submitted that as enacted, this is extremely restrictive in any event, and provides no hope of release on the grounds of, say, exceptional progress in prison, and in any event, inquiry has revealed that in relation to prisoners subjected to whole life tariffs, none has been released on the basis of the exercise of these powers. 29. The foundation for Mr Horwells’ submission is the decision of the Grand Chamber of the European Court of Human Rights in Kafkaris v Cyprus, 12 th February 2008. Stripped to essentials the issue before the Grand Chamber was whether the mandatory sentence of life imprisonment following conviction of murder in Cyprus constituted a breach of the defendant’s article 3 rights. However in Cyprus the mandatory order was not subject to any form of judicial discretion and the sentencer did not and could not reflect the differing levels of culpability of those convicted of murder and the varying levels of gravity of all such cases. There was no parole or licensing system, and, effectively, no arrangements for the admission back into society of any convicted murderer. The exception to this blanket prohibition was vested in the President of Cyprus who was entitled to remit or commute any sentence or to order conditional release of any convicted prisoner back into the community. Any such order required the approval of the Attorney General to whom any applications were to be made. 30. The Court’s decision was that the imposition of a sentence of life imprisonment on an adult offender was not prohibited by or incompatible either with article 3 or with any other article of the Convention. However concern arose from the imposition of an irreducible life sentence. If a life sentence was de jure and de facto reducible then, although in practice an individual life sentence might be served in full, the sentence itself was not “irreducible”. Mr Horwell suggested that the wide powers vented in the President of Cyprus were to be contrasted with the narrow powers of the Secretary of State under section 30 of the 1997 Act . It therefore could not be said that any whole life sentence imposed in this jurisdiction was reducible so as to avoid a breach of article 3. 31. There are a number of problems with the decision in Kafkaris as it applies in this jurisdiction. The most immediate, and ultimately decisive, is that it has been examined in this jurisdiction in the Court of Appeal in R v Bieber [2008] EWCA Crim 1601 and in the House of Lords in R(on the application of Wellington) [2008] UKHL 72 . These decisions bind us in this court. The decision of the Grand Chamber in Kafkaris does not. In any event, however, for Mr Horwell’s submission to succeed it is necessary to equate the whole life system as operated in Cyprus following a mandatory life sentence, and the whole life system operated in this jurisdiction. Yet as we have explained the mandatory order of life imprisonment on conviction here did not and does not carry with it the necessary consequence of incarceration for the remainder of the prisoner’s natural life. 32. As a result of the 2003 Act , following the imposition of the mandatory life sentence, the trial judge is required to assess rather than merely recommend the minimum term to be served by the appellant for the purposes of punishment and deterrence. Normally that is a finite period, and once it has been served, subject to considerations for public safety, which are addressed by the Parole Board, the prisoner may be released. Indeed once the Parole Board concludes that it is safe for him to be released, he is entitled to be released. The whole life order is exceptional. The vast majority of convicted murderers are not made subject to it. Where they are, this is not the consequence of an inexorable statute but a judicial decision, subject to review in this court, that the circumstances of the particular case are so grave that a whole life order should be imposed. In this case therefore, we are concerned with a whole life order imposed in an extreme case, rather than a whole life order which applies to every case of murder, whatever the circumstances. 33. In Bieber it was submitted that a life sentence “without any prospect of release or any reconsideration of the facts of the case and regardless of any changes which might occur in the mind or behaviour of the inmate or progress made by him towards rehabilitation” amounted to inhuman treatment. Assuming for the purposes of the argument that the whole life order imposed on Bieber was an irreducible life sentence, this court did not accept that it followed from the decision in Kafkaris that such a sentence to reflect “appropriate punishment and deterrence for a very serious offence” was in potential conflict with article 3. The conclusion was expressed in these observations by Lord Phillips of Worth Matravers CJ: “ While under English law the offence of murder attracts a mandatory life sentence, this is not normally an irreducible sentence. The judge specifies a minimum term to be served by way of punishment and deterrence before the offender’s release on licence can be considered. Where a whole life term is specified this is because the judge considers that the offence is so serious that, for purposes of punishment and deterrence, the offender must remain in prison for the rest of his days…We do not consider that the Strasbourg Court has ruled that an irreducible life sentence, deliberately imposed by the judge in such circumstances, will result in detention that violates article 3. Nor do we consider that it will do so”. 34. The court went on to consider that limited powers granted to the Secretary of State under section 30 of the 1997 Act . The court believed that in practice this power was used “sparingly”. The court, argued Mr Horwell, was not as well informed as we are, following the inquiry of the relevant Department, revealing that there have been no such cases, at any rate where the judge imposed a whole life order by way of punishment. If, however, the continued detention of a prisoner in circumstances which amount to inhuman or degrading treatment were to arise, then, assuming the Secretary of State failed to exercise his powers under section 30 of the 1997 Act , he would be subject to a judicial review requiring him to do so. In any event, in Bieber the court concluded that the question whether continued imprisonment amounts to inhuman or degrading treatment does not arise for consideration in the context of a whole life order properly imposed to reflect the appropriate punishment does not amount to inhuman or degrading treatment. 35. In Wellington the House of Lords examined Kafkaris in the context of extradition proceedings taken in the United States by a prosecutor in Missouri and in effect adopted the decision in Bieber . Lord Hoffman agreed that an irreducible life sentence, imposed to reflect the requirements of punishment and deterrence for a particularly heinous crime, was not in potential conflict with article 3. Lord Scott adopted precisely the same approach. He said, “Once, however, it is accepted that a full life tariff may be a just punishment, merited by the heinous quality of the crime or crimes for which the sentence has been, or may be, imposed, reliance on the denial of possibilities of atonement or redemption seem to me to miss the point of the sentence…if a whole life sentence of imprisonment without parole is a just punishment for the crime…I do not follow why it is said to require a reduction of the length of the just punishment sentence”. Lord Brown of Eaton-under-Heywood concluded that where a whole life term was fixed at the date of sentencing “the prisoner’s individual circumstances (including naturally the circumstances of his particular offending) will have been considered and will have been thought by the judge (or the Court of Appeal) to merit that degree of punishment, draconian though undoubtedly it is”. 36. In our judgment it is plain that the House of Lords adopted the reasoning of this court in R v Bieber . In relation to whole life terms imposed in cases of extreme gravity, we respectfully suggest that the decision of the Grand Chamber in Kafkaris does not support the argument on behalf of an applicant or appellant that the whole life sentence imposed in such circumstances constitutes a breach of any of his Convention rights. In our judgment therefore nothing in the Convention meant that Tugendhat J was precluded from making a whole life order if, in his judgment, such an order represented appropriate punishment for extreme criminality resulting in five murders. 37. We have fully examined the contention that the review procedure created by the 2003 Act constitutes or may constitute a breach of the applicant’s article 7 rights. This issue was raised by Mr Edward Fitzgerald QC in R v Pitchfork, which was heard before a differently constituted court, two days after the argument in the present application was concluded. As developed by Mr Fitzgerald, it was contended that the judge conducting the 2003 Act review is virtually bound to adopt the judicial recommendation made by the trial judge or Lord Chief Justice, alternatively that the judicial recommendations should be accorded primacy ahead of any of the considerations in schedule 21 of the 2003 Act . For the reasons set out in the judgment in R v Pitchfork, which will be handed down on the same occasion as this judgment is handed down, we disagree with the submission, which in any event is inconsistent with an earlier decision of this court in R v Caines, R v Roberts [2006] EWCA Crim 2915 . As we shall explain in R v Pitchfork , and repeat for the purposes of this judgment, the general common law principles, prohibiting retrospectivity in the criminal law, now found in article 7 which provides that “a heavier penalty shall not be imposed than the one which applied at the time when the criminal offences was committed”, are preserved by the express statutory provision which means that the outcome of the review process is that the prisoner cannot be disadvantaged. The term to be served may be reduced, or maintained, but it cannot be increased or extended. 38. We must address some further submissions. Mr Horwell suggested that Tugendhat J misdirected himself. Our attention was drawn to the comment “… there is no reason for me to depart from the view of the Home Secretary and the Lord Chief Justice in this case”. If Tugenhat J allowed the view of the Secretary of State to influence his decision, plainly he would have been wrong. It is however clear to us that in expressing himself as he did, he was simply indicating that the end result of his reflection on the issues led him to the same conclusion as the Lord Chief Justice and the Secretary of State. That was a conclusion he was entitled to reach. 39. It is equally clear that the applicant was notified in writing, many years ago, that he would indeed be subject to a whole life order. It simply cannot be suggested that there is some unfairness arising from Tugendhat J’s decision, as if, by making the order he did, he had somehow suddenly interfered with a realistic expectation in the applicant’s mind that he would shortly reach the point in his sentence where his release might arise for consideration. It is perhaps important to underline that even if the 25 year period had been adopted by Tugendhat J, that would not have involved the applicant’s release at the end of the period, but that attention could then have been given by the Parole Board to the possibility of his release on licence. 40. The occasions when a whole life order should be made whether by a sentencing judge, or the judge conducting the review under the 2003 Act , are rare, and should be reserved for the most extreme cases. We were asked to consider a number of decisions where a whole life order was not made, or was quashed on appeal, notwithstanding the extreme gravity of the offences. We have considered them. Our concern, however, is with this particular sentence. We can see no possible basis for interfering with Tugendhat J’s decision. It was neither wrong in principle nor did it produce a manifestly excessive result. We would, however, and unusually, go further. On conviction of these crimes, even when committed by a relatively young man, punishment and retribution in the form of a whole life order was fully justified.

2009_05_14-1937.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/962/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/962

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[2022] EWCA Crim 942

EWCA_Crim_942

2022-07-07

crown_court

Neutral Citation Number: [2022] EWCA Crim 942 Case No: 202103869 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CENTRAL CRIMINAL COURT The Recorder of London 20207218 Royal Courts of Justice Strand, London, WC2A 2LL Date: 7 July 2022 Before : LORD JUSTICE WILLIAM DAVIS MR JUSTICE FRASER and MRS JUSTICE MAY - - - - - - - - - - - - - - - - - - - - - Between : APJ Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Tim M

Neutral Citation Number: [2022] EWCA Crim 942 Case No: 202103869 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CENTRAL CRIMINAL COURT The Recorder of London 20207218 Royal Courts of Justice Strand, London, WC2A 2LL Date: 7 July 2022 Before : LORD JUSTICE WILLIAM DAVIS MR JUSTICE FRASER and MRS JUSTICE MAY - - - - - - - - - - - - - - - - - - - - - Between : APJ Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Tim Moloney QC and Ruth Zentler-Munro for the Appellant Kate Lumsdon QC for the Respondent Hearing date: 24 June 2022 - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment will be handed down remotely by circulation to the parties' representatives by email and release to The National Archives. The time and date for hand-down is deemed to be 10.30am on 7 July 2022. 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. Note - include here the details of any specific reporting restrictions that have been made by the court. This will have been identified in the Criminal Appeal Office Summary under the Reporting Restrictions heading or from the Court Order. The wording of any reporting restriction must appear in RED TEXT. Lord Justice William Davis: The court has ordered a re-trial of the appellant in this case. In order not to prejudice those proceedings, the appellant has been anonymised. In addition the names of his victim and of the two professional witnesses have been withheld and they are referred to by initials. Pursuant to Section 4(2) of the Contempt of Court Act 1981 the court orders that the names of the appellant, his victim and the two professional witnesses shall not be published until the conclusion of the re-trial of the appellant. Introduction 1. Between 21 October 2021 and 10 November 2021 at the Central Criminal Court, before The Recorder of London and a jury, APJ was tried on an indictment charging him with murder. At the start of the trial APJ pleaded guilty to manslaughter as an alternative to murder. That plea was not acceptable to the prosecution. At the conclusion of the trial APJ was convicted of murder. The verdict was by a majority of 10 to 2. On 6 December 2021 he was sentenced to imprisonment for life with a minimum term of 23 years less 506 days spent on remand in respect of the offence of murder. No disposal was required in relation to the offence of manslaughter, which was an alternative to the murder charge. 2. APJ now appeals with the leave of the single judge against his conviction for murder. The sole ground of appeal relates to events which occurred after the jury’s retirement and after the jury had been given a majority direction. The jury sent a note asking to see an exhibit in the case. Neither prosecution nor defence counsel was told that such a note had been sent. The jury were provided with the exhibit without any discussion with counsel. It is argued on behalf of the appellant that this amounted to a significant material irregularity which renders the conviction unsafe. The respondent’s submission is that no material irregularity occurred. The jury were entitled to see the exhibit. Even if there had been a discussion with counsel about the note from the jury, the outcome would have been the same. The facts 3. The appellant was born in February 1981. As the jury heard via a series of agreed facts he had a succession of criminal convictions relating to young women with whom he had been in a relationship. In 2002 he was convicted of the rape and kidnap of an ex-partner when he had abducted the young woman concerned and raped her twice. He was sentenced to a period of 6 years’ imprisonment. The notification requirements to which in consequence he was subject were for life. In 2013 the appellant was convicted of an assault on a different ex-partner. He dragged the young woman into an alleyway and attacked her before a member of the public intervened. A prison sentence of 12 months was imposed. In 2015 he damaged a mobile telephone belonging to his partner in the course of an argument. In 2016 he was convicted of an assault on yet another ex-partner. 4. In 2015 or 2016 the appellant met a young woman named K. She was then aged around 18. The appellant was in his late thirties. Notwithstanding the difference in their ages the appellant and K began a relationship. It was punctuated by incidents of violence. In 2017 the appellant was convicted of assaulting K thereby causing her actual bodily harm. He was given an immediate sentence of 20 weeks’ imprisonment. However, the relationship continued. 5. Towards the end of 2019 K moved in with the appellant at the flat he then occupied in Kingston on Thames. They lived together there until 15 May 2020. From then until 4 July 2020 they stayed in a succession of bed and breakfast addresses and hotels in various parts of South West London and Slough. On 4 July 2020 they booked into the Holiday Inn Express in Greenwich. They stayed in Room 515. 6. On the morning of 5 July 2020 K called the hotel reception from the room. She asked to extend their stay for a further night. The reception staff agreed such an extension. She called reception again at 9.30 that morning. She was upset because someone had knocked on their door. The brief conversation which followed was the last time anyone other than the appellant spoke to K. At 9.50 am two people in the next room to Room 515 were woken by the sound of breaking glass. They then heard a man saying “she is dead, I killed her, I stabbed her in the neck”. The man went on to say “someone help me, I can’t believe it, what have I done?” According to the people next door the man was wailing and crying. 7. At 9.58 am the appellant called 999. He asked for an ambulance. He told the operator that his girlfriend was dying and that he had stabbed her in the neck. He said that he was in Room 515 at the Holiday Inn in Greenwich. Before he concluded the call, he said that he was jumping out of the window. 8. Hotel staff went to the door of Room 515. They tried to get into the room using a master key. They were unable to do so because the chain lock was on. The appellant shouted from inside the room that he did not need any assistance. When the police and ambulance service arrived at the hotel, the appellant was throwing a suitcase and a rucksack from the window of the room, the window having been smashed. He was shouting that they should not worry about him and that he had killed her. He tried to climb out of the window and down the side of the hotel. He lost his footing and fell onto a canopy over the main entrance to the hotel from where he was arrested and taken to hospital. He suffered serious injuries in the fall. 9. The police managed to get into Room 515. They found K lying on the bed. She was already dead from a deep knife wound to her neck. The knife which had been used to inflict the wound was underneath the bed. It was part of a six-knife set which was also in the room. 10. Other items recovered from the room included two used syringes and needles and the appellant’s telephone. The telephone contained material relating to anabolic steroids: order and purchase of steroids; downloaded information about how best to administer steroids; a calendar with entries indicating dates on which and the quantities in which the appellant apparently had injected steroids. The suitcase which the appellant had thrown from the window of Room 515 contained medication including 4 vials of anabolic steroids. 11. Blood samples were taken from the appellant on his arrival at hospital. Analysis of his blood showed that he had taken Trenbolone, a synthetic anabolic steroid. The scientific evidence could not specify the amount but the presence of the steroid in the blood showed that it had been taken recently. One of the vials recovered from the suitcase thrown by the appellant from the hotel was labelled Trenbolone. 12. The appellant was interviewed on 19 July 2020. He answered no comment to all questions put to him. In the defence statement served in the course of the proceedings the appellant admitted inflicting the fatal wound. He said that he did so when his responsibility was substantially diminished. 13. The calendar on the appellant’s telephone showed entries for a variety of appointments and transactions unconnected with steroids. The entries ran from 17 December 2019 to 29 June 2020. A number of entries stated a quantity of an anabolic steroid. The quantity in each case predominantly was 1 or 2 ml. The type of steroid was indicated in abbreviated form. The entries relating to steroid use were sporadic. Thus, there were 13 entries for dates between 11 May 2019 and 21 June 2019 but then no further entry concerning steroids until 25 July 2019. A few entries between that date and 23 August 2019 were followed by a gap until 20 October 2019. In the months leading up to 5 July 2020 there were regular entries (albeit by no means daily) from 30 January 2020 to 23 April 2020. There were 4 entries thereafter up to 1 June 2020. That was the last entry. There was no entry consistent with the analysis of the appellant’s blood taken at the hospital on 5 July 2020. 14. The timeline created by reference to the appellant’s telephone records relating to the period from the early hours of 5 July 2020 to the point at which the appellant was arrested showed that he was using his telephone throughout the night, save for a period of about 2 hours between 5.30 and 7.30 a.m. He sent messages or texts to solicitors who had represented him in the past. The following message is representative of what he was saying: “I know have stated the police who has been trying to arrange my murder and attempts have been made ready. I gave them the names of the persons involved. I will be killed soon if I don’t go to prison, this why I'm telling you as I know I will eventually be killed, the 3rd attempt on my life was meant to be last night this early morning. But I have made it a bit more difficult for them. I need to talk to you, as I don’t know what else to do. I need police protection and I have not gotten that. Police know what’s going on and are ignoring it. It is 100% real, there can be no mistake in the events that have happened over the last week.” 15. The schedule created by reference to the appellant’s telephone records for the period from 6 May 2020 to 4 July 2020 showed that the appellant regularly messaged a variety of people to say that he was hearing voices, that he was contemplating suicide and that he needed help with his mental health. The schedule also set out police records over the same period. On at least five occasions police officers had dealt with the appellant when he had behaved erratically or he had been agitated and visibly distressed. The appellant regularly claimed that people “were out to get” him. The trial 16. The sole issue for the jury was whether the appellant’s responsibility for his actions was substantially diminished by an abnormality of mental functioning. The appellant’s plea proved that he had unlawfully killed K. It was never suggested that he did not have the intent required for murder. 17. The appellant did not give evidence. On his behalf Dr F, a consultant psychiatrist, gave evidence. The respondent called a consultant psychiatrist named Dr B to rebut the appellant’s case. Dr F and Dr B agreed that the appellant had an underlying medical condition, namely a moderate to severe personality disorder. By 5 July 2020 this condition had deteriorated into a state of psychosis. The psychiatrists further agreed that the appellant’s ability to form a rational judgment was impaired by reason of his psychosis. They disagreed about the cause of the appellant’s deterioration. Dr B’s opinion was that steroid consumption was the cause and that the acute psychosis which affected the appellant on 5 July 2020 was similarly due to steroid misuse. Dr F accepted that steroid use was one factor in the appellant’s deterioration. However, he considered that there were other factors which played a significant role such as the impact of the pandemic and the loss of the appellant’s accommodation. These factors interacted with the appellant’s personality disorder to lead to a psychotic episode. 18. Dr F set out the appellant’s account of his steroid use in the period up to 5 July 2020. The appellant told him that he had been using steroids occasionally for two months prior to the day of the killing. At around 7.00 p.m. on 4 July 2020 he had used 1 ml TT300. The appellant said that that use of steroids did not affect him mentally. He said that he had never had any side effects from steroids. 19. Dr B noted that, in his many dealings with psychiatric services in 2019 and 2020, the appellant had never revealed his misuse of steroids. He described the appellant as “deceitful” in his account of drug misuse. When speaking to Dr B the appellant accepted that he had used steroids in 2016 and 2020. He did not refer to the use indicated on the calendar recovered from his mobile telephone. 20. The judge provided written directions and directed the jury that, when they considered the question of whether the appellant had satisfied them on the balance of probabilities that his abnormality of mental functioning arose from a recognised medical condition, they first had to consider whether the appellant was voluntarily intoxicated i.e. from the effect of steroids. It was for the prosecution to prove that the appellant was so intoxicated. The question which the jury were required to answer was: Has the prosecution satisfied you so that you are sure that the defendant was voluntarily intoxicated and aware that steroids could adversely affect his mental state? If the prosecution failed to prove voluntary intoxication as so defined, the jury were directed to move on to consider the question of substantial impairment since, in the absence of voluntary intoxication as defined by the judge, the appellant on the agreed psychiatric evidence would have proved that his abnormality of mind arose from a recognised medical condition. Even if the prosecution did prove voluntary intoxication, the jury were required to consider whether the abnormality of mental functioning was due to a combination of factors including the ingestion of steroids. If the appellant proved on balance that it was, the jury were required to move on to the other elements of the defence of diminished responsibility. Only if voluntary intoxication with steroids as defined by the judge was the only significant cause of the abnormality of mental functioning would the defence fail. 21. In the course of the hearing of the appeal we asked whether this direction had been the subject of discussion between counsel and the judge and, if so, on what basis the judge had concluded that the prosecution had to prove that the appellant was aware of the potential effect of steroids on his mental state. We were told that the direction was the subject of discussion. On behalf of the appellant it had been argued that such an awareness was a required element to establish voluntary intoxication for the purposes of the partial defence. The prosecution had argued the issue should be put simply on the basis of whether the appellant voluntarily had taken steroids in the knowledge that he had some abnormality of mental functioning. Counsel were unable to direct the judge to any authority on this particular topic. We have been unable to identify any authority directly on point from our own researches. 22. We were invited to express a view on whether the direction as given did accurately reflect the law. Though we understand why the parties were keen for us to do so, we decline the invitation. The question was not the subject of argument before us. The appellant did not raise the point since the direction was favourable to him. In consequence, the respondent had not dealt with the matter in the respondent’s notice. The point is not straightforward. For instance, it requires consideration of whether the rationale adopted in Hardie [1985] 1 WLR 64 could apply in the context of the partial defence of diminished responsibility. The issue will have to wait for another case where it arises on the facts of that case. We proceed on the basis that the jury had to reach findings in accordance with the direction. 23. When they retired to consider their verdict, the jury had several bundles of documents and other materials. They included the calendar and the timeline to which we have already referred, screenshots from the appellant’s telephone relating to anabolic steroids and photographs of the items recovered from Room 515 and from the suitcase thrown from the window by the appellant. The photographs included images of the four vials of anabolic steroids found in the suitcase. In the course of the trial the vials had been formally produced by a police officer who had held them up in the witness box. The officer held up the sealed clear plastic exhibits bag into which the vials had been placed after they had been photographed. They were not passed around the jury box. However, prosecution counsel had said that the jury would be able to examine them in due course should they so wish. They were an exhibit in the case. They were Exhibit 7 on the list of exhibits kept by the court. 24. The jury began their deliberations at 11.30 a.m. on the morning of 8 November 2021. Shortly before 4.00 p.m. the jury sent a note indicating that they could not reach a unanimous verdict. The judge did not show the note to counsel. We assume that it disclosed the arithmetical division of views within the jury and, as such, properly was not shown to counsel. It was agreed that (a) the jury should be given the majority direction and (b) the direction should not be given that afternoon. The jury were sent away. Because of other commitments on the part of the judge and members of the jury, the trial did not resume until the morning of 10 November. 25. Just before 10.30 a.m. on 10 November 2021 the judge gave the jury the majority direction in conventional terms. Thereafter the jury sent out a note. It is timed at 11.52 a.m. This is an entry made by a member of the court staff because it is appears on a page headed “Court use only”. The sensible inference is that the jury sent out the note very shortly before that time. It read as follows: “Can we see the vials/know the size/volume of the vials to see how much is left. Prosecution argues hiding use. Can use (sic) state ml size of vial” The phrase “argues hiding use” must have been, inter alia, a reference to the observations of Dr B to which we have referred. 26. There is nothing on the transcript or on the exhibit log which refers to the note. There is no doubt that nothing was said about the note to counsel whether in open court or otherwise. Given the lacuna in the material available to us and the potential importance of the issue, we took an exceptional course. We asked the Registrar to inquire of the trial judge whether he recalled receiving the note and, if so, what steps he took in respect of it. He responded as follows: “I did see the note and, as the items were an exhibit, they were sent through to the jury”. This is consistent with the recollection of Mr Moloney QC who appeared for the appellant in the court below and before us. He heard a tannoy announcement for the officer in the case to go to court. The exhibit list to which we have already referred indicated that the vials were in the possession of that officer. The officer’s attendance at court was necessary so that the vials could be provided to the jury. The precise time at which the jury were in possession of the vials is not known. The jury returned their verdict at 12.53 p.m. It was only after the verdict had been returned that counsel became aware of the note timed at 11.52 a.m. and the contents of the note. The submissions on the appeal 27. Mr Moloney submitted that there were two interlinked grounds of appeal which, taken together, established that the verdict was unsafe. First, the judge erred in providing the exhibit without allowing counsel an opportunity to see and comment on the note. Second, the judge erred in allowing the jury to see the exhibit for a purpose which enabled the jury to receive evidence during deliberations and carry out their own investigations. 28. As to the first ground Mr Moloney argued that the guidance in Gorman [1987] 1 WLR 545 still holds good. Thus, a judge in receipt of a note from the jury in almost every case should set out its contents in open court and, as appropriate, seek the assistance of counsel. For a judge not to do so represents a material irregularity. In the circumstances of this case, the consequences of the irregularity were significant. The content of the note went directly to the central issue in the case. 29. In relation to the second ground, Mr Moloney’s written argument was to the effect that the provision of the vials to the jury amounted to the provision of further evidence. Had he known of the content of the note and of the intention to provide the vials to the jury, he would have invited the judge to conclude that the jury would be given new evidence were the jury’s request to be met. Further, the jury were put in the position of being able to conduct their own investigations. That was an impermissible approach. 30. Ms Kate Lumsdon QC responded to the appeal. Like Mr Moloney she appeared at the court below. She submitted that the jury were entitled to see the vials. They were an exhibit in the case. Her submission was that general practice where a jury asks to see an exhibit produced during a trial is for the jury to be provided with it, without the court being assembled or counsel being asked for their views on the matter. That practice was reflected in the response we received from the trial judge. She submitted that suggestions to the contrary in the current edition of Archbold at 4-497 do not represent the correct position. 31. Ms Lumsdon further argued that providing the vials to the jury did not constitute the provision of new evidence. They were simply given items which were an exhibit in the case. There were no investigations that the jury could undertake. The vials and their contents were as shown in the photographs which the jury had had throughout their retirement. There was nothing for the jury to investigate. In any event, when directing the jury in relation to the expert evidence (which included the evidence of scientists in relation to steroids), the jury were directed not to “carry out experiments, tests or comparisons of your own…” Insofar as any direction was needed at the point at which the jury were given the vials, it was dealt by this direction which formed part of the written directions with which the jury had been provided on 5 November 2021. Even if the note had been disclosed to counsel, the outcome would have been the same. 32. In the course of oral submissions Ms Lumsdon acknowledged that the note raised questions which went beyond the mere provision of an exhibit. She accepted that no evidence had been adduced during the trial of the size or volume of the vials, and she also accepted that there was a risk of the jury having engaged in irrelevant speculation in the course of reaching their verdict. Discussion 33. The guidance in Gorman to which Mr Moloney referred is as follows: ….it seems to us that certain propositions can now be set out as to what should be done by a judge who receives a communication from a jury which has retired to consider its verdict. First of all, if the communication raises something unconnected with the trial, for example a request that some message be sent to a relative of one of the Jurors, it can simply be dealt with without any reference to counsel and without bringing the jury back to court. We have been helpfully referred to a decision of this court, Reg. v. Connor, The Times, 26 June 1985 where that very situation seems to have arisen. Secondly, in almost every other case a judge should state in open court the nature and content of the communication which he has received from the jury and, if he considers it helpful so to do, seek the assistance of counsel. This assistance will normally be sought before the jury is asked to return to court, and then, when the jury returns, the judge will deal with their communication. Exceptionally if, as in the present case, the communication from the jury contains information which the jury need not, and indeed should not, have imparted, such as details of voting figures, as we have called them, then, so far as possible the communication should be dealt with in the normal way, save that the judge should not disclose the detailed information which the jury ought not to have revealed. We may add, before parting with the case, that the object of these procedures, which should never be lost sight of, is this: first of all, to ensure that there is no suspicion of any private or secret communication between the court and jury, and secondly, to enable the judge to give proper and accurate assistance to the jury upon any matter of law or fact which is troubling them. If those principles are borne in mind, the judge will, one imagines, be able to avoid the danger of committing any material irregularity. We consider that this guidance remains valid to this day. Since 1987 the Criminal Procedure Rules have been introduced. CPR 25.14 deals with the procedure in relation to questions from the jury after their retirement. As clarified in R v Ball [2018] EWCA Crim 2896 at [19] the position has not changed: The procedure to be followed when the jury ask a question is now the subject of Rule 25.14 of the Criminal Procedure Rules. So far as is material for present purposes the rule states: "After following the sequence in rule 25.9 (Procedure on plea of not guilty), the court must— (c)  direct the jury to retire to consider its verdict; (d)  if necessary, recall the jury— (i)  to answer jurors' questions, or (ii)  to give directions, or further directions, about considering and delivering its verdict or verdicts, including, if appropriate, directions about reaching a verdict by a majority…" In our view, the use in that rule of the phrase "if necessary" in sub-paragraph (d) is not intended to depart from the principles stated in Gorman. In our view, save in the limited situation of an uncontroversial communication raising something unconnected with the trial, it will in almost every case be necessary for the judge to recall the jury if they have asked a question and to answer their question in open court. 34. Applying those principles to the facts of this case, we have no doubt that the note sent by the jury at 11.52 a.m. on 10 November 2021 should have been disclosed to counsel who should have been given the opportunity to make submissions in relation to it. Whatever the outcome of those submissions, the jury then should have been required to return to court so that the judge could read out the note and tell the jury of the outcome of their request. We consider that this generally should be the position even if the jury’s request is simply to be provided with an exhibit. There will be cases in which the possibility of the jury wishing to see a particular exhibit has been anticipated prior to their retirement, but it has not been thought necessary or appropriate that they be provided with it from the outset. In those cases the judge, after agreeing the position with counsel, will say to the jury that, should they wish to see the relevant exhibit, they should ask for it. If the jury then send a note asking for the exhibit, it will not be necessary for the jury to return to court. However, even in those cases, all counsel must be made aware of the jury’s note before the exhibit is provided, so that counsel have the opportunity to ensure that the correct item is sent in to the jury. 35. Ms Lumsdon referred in her written submissions to the Criminal Practice Direction Part VI 26L which reads: 26L.1 At the end of the summing up it is also important that the judge informs the jury that any exhibits they wish to have will be made available to them. 26L.2 Judges should invite submissions from the advocates as to what material the jury should retire with and what material before them should be removed, such as the transcript of an ABE interview (which should usually be removed from the jury as soon as the recording has been played.) 26L.3 Judges will also need to inform the jury of the opportunity to view certain audio, DVD or CCTV evidence that has been played (excluding, for example ABE interviews). If possible, it may be appropriate for the jury to be able to view any such material in the jury room alone, such as on a sterile laptop, so that they can discuss it freely; this will be a matter for the judge’s discretion, following discussion with counsel. In this case the judge told the jury that they would have access in their room to footage that had been played during the trial. He did not otherwise refer to exhibits. Nothing in the Criminal Practice Direction is contrary to or in conflict with the guidance we have set out at [34] above. 36. It follows that, on any view, the jury’s note should have been shown to counsel before any action was taken in response to it. Not only was the note not shown to counsel, they were unaware that such a note had even been sent by the jury. The failure to show the note to counsel, so that the matter could be discussed, was a material irregularity. That would have been the case if the jury simply had asked for an exhibit. However, had the note simply asked for an exhibit of no particular consequence, the failure to inform counsel probably would not have rendered the irregularity of sufficient materiality as to affect the safety of the verdict. In those circumstances, we almost inevitably would have concluded that the irregularity made no difference and the conviction was safe. The judge would have done just the same whatever counsel may have said. An example of this court taking that approach is R v Chapman [2015] 1 QB 883 at [70] to [75]. 37. However, the note in this case went further than simply asking to see an exhibit of no particular consequence. The exhibit related to steroid use. Moreover, the note asked questions i.e. the size and volume of the vials “to see how much is left”. These were questions that the jury associated with a critical issue in the case, namely whether the appellant had been dishonest in relation to his use of steroids. As Ms Lumsdon acknowledged in her written submissions, it was part of the prosecution case that the appellant’s use of steroids in the period leading up to 5 July 2020 was in excess of anything set out in his telephone calendar and/or greater than he admitted to the psychiatrists who gave evidence before the jury. Ms Lumsdon went on to say this: It is submitted that neither the exact size of the vial nor the precise volume of steroid left in each vial will have had any bearing on the decision of the jury. There was no evidence as to how many vials he had at any stage over the past few months nor when he acquired the vials exhibited. The toxicological evidence was that he had steroids in his system on the day of the killing and the forensic search evidence was that there were two empty syringes in his room, he having packed the partly-used vials to take with him when he made his escape. She also could have said that there was no evidence as to the size or volume of the vials which were the issues on which the jury were seeking assistance. The fact that the exhibit could not assist the jury on the issue of whether the appellant had been dishonest is precisely the point. From their note it appeared that the jury considered that the vials were relevant. They required a proper direction about the extent of the evidence relating to the vials and about the conclusions that could be drawn from them. Since the note was not referred to in open court and because it was not shown to counsel, there was never an opportunity for any discussion on the matter. 38. We do not accept Mr Moloney’s argument that the vials consisted of new or further evidence such that the jury were not entitled to see them. He cited R v Kaul [1998] Crim LR 135 in support of his submission. We do not intend to rehearse the facts of Kaul . They were far removed from this case. In particular, in Kaul the jury were provided with material which had not been part of the evidence in the trial and had never been referred to even in passing. The fact that the jury had not looked at the exhibit prior to their retirement did not mean that, when given the physical exhibit, they were being provided with new evidence. The vials had been produced in evidence and had been exhibited during the trial. 39. Mr Moloney submitted that, had he realised that the jury would be given the vials as a physical exhibit, he would have instituted inquiries such as finding out whether the vials could be aged by reference to batch numbers, discovering whether liquid steroids had a tendency to evaporate from vials and identifying the number of doses in an individual vial. We do not follow this submission. The vials were an exhibit in the case from the outset. The inquiries to which Mr Moloney referred were open to the appellant’s legal team at any time. We can understand that information about the vials could have been relevant to the issues in the case. For example, how much they contained when full, approximately how much was left in the vials when they were recovered and when they were produced or supplied (by reference to any batch number). That information did not become of potential relevance because of the jury’s request. 40. We also reject the argument that R v Stewart (1989) 89 Cr App R 273 is of any assistance in the resolution of this appeal. In Stewart the appellants were charged with importing cannabis in holdalls being carried by them as they came off a flight from Jamaica. Their case was that they were unaware of the drugs in their bags. The prosecution relied on the fact that each appellant was carrying nearly 2 kilos of cannabis so that they would have realised that their bags were much heavier than they should have been. After retirement the jury asked for scales to allow them to see how much difference the weight of cannabis would have made. This was an exercise which had not been conducted at any stage in the course of the trial. The convictions of the appellants were quashed because the jury were “provided with something which had not been part of the evidence in the trial”. That is not what occurred in this case. The jury were simply provided with the exhibit in the form in which it had been produced during the trial. 41. Although we reject the proposition that the vials did not amount to new evidence, we acknowledge the clear possibility that the jury considered that an inspection of the vials would reveal something of relevance to the issues in the case. It is that on which the appropriate direction should have been focused. The jury should have been directed along the following lines: • You have asked to see the vials recovered from the suitcase thrown by APJ from the window of the hotel. • They are exhibits in the case and you are entitled to see them although you do have photographs of them and they were held up in the course of the trial when a police officer was giving evidence. • There is no evidence of the size/volume of the vials other than what is apparent from looking at them. • There is no evidence about the amount of the drug contained in the vials when first acquired by APJ • The only evidence of the amount left in the vials is what you can see from looking at them. • There is no evidence about the length of time APJ had been in possession of the vials. • Other than looking at the vials and at anything shown on the labels, you must not engage in any comparison or test of your own. Please remember what I said in the written direction in relation to expert evidence. 42. In the course of oral argument Mr Moloney submitted that the jury also should have been directed in terms that the size, contents and appearance of the vials were irrelevant to the issue of the appellant’s dishonesty. Whether that would have been necessary is not a matter we need to decide. We merely observe that the jury required directions (a) on the evidence they did not have and (b) the need to avoid any speculative exercise. In the absence of directions of this kind, there was a risk that the jury would draw conclusions from the contents and size of the vials which were not justified by the evidence which the vials represented. That would not need to involve any experimentation by them. But the provision to the jury of the vials without more amounted to a significant material irregularity. 43. As we have set out above Ms Lumsdon relied on the written direction the judge had given in relation to expert evidence. In our judgment this did not cure the material irregularity involved in the way in which the note was dealt with since it did not prevent the jury speculating or attempting to draw conclusions themselves upon the exhibit being given to them in response to their note. The content of the note suggested that making some comparison was (or may have been) the purpose for which they wished to see the exhibit. Providing the exhibit without any further direction may have been taken by them as tacit approval of the use of the exhibit for that purpose. 44. There were clearly points to be made in relation to the vials. There were four of them. Whatever the actual measurement of the steroid liquid left in the vials, it was apparent that the amount of liquid was very much less than would be found in a vial when first supplied. That much was clear from the picture the jury had of full vials which was contained on a download from the appellant’s mobile telephone. In Room 515 the police found at least two used syringes. They also recovered a large number of unused syringes. The prosecution were able to rely on all of those matters in support of the proposition that the appellant’s use of steroids was much greater than he was willing to admit. 45. We also have had to take into account that the vials were supplied to the jury in a sealed clear plastic exhibits bag and that the bag was still sealed after the verdict. The jury did not remove the vials. Whatever inspection they carried out was through the plastic bag. There can have been no experimentation in the real sense. 46. In the light of those matters we have had to consider whether the significant material irregularity which occurred in this case in the event did not affect the safety of the conviction. We are satisfied that this is not a conclusion properly open to us. Although the vials could have been provided to the jury once they had requested to have sight of them, such provision required a proper direction to the jury as to the extent to which they could use their examination of them. Without such direction there was a real risk that the jury would come to conclusions about the significance of the vials adverse to the appellant which were not justified on the evidence. Conclusion 47. For the reasons we have given we conclude that the verdict returned by the jury is not safe. The issue of the appellant’s abuse of steroids and his alleged willingness to lie about that was of critical importance. The jury were provided with the vials without any assistance from the judge as to their possible relevance to that issue given the state of the evidence in the case. We cannot be satisfied that the absence of such assistance made no difference to the outcome. It follows that we quash the appellant’s conviction on the count of murder. 48. At the hearing we canvassed the question of a retrial on that count. Mr Moloney very properly accepted that, in the event of the appeal succeeding, a retrial would be inevitable. That is the order we make. We direct that a fresh indictment be preferred on which the appellant must be arraigned within 2 months of our order. The retrial will be at the Central Criminal Court to be heard by a judge nominated by a Presiding Judge of the South Eastern Circuit. 49. This case serves to emphasise the particular status of the jury in retirement. This is reflected in the oaths taken by the jury bailiffs. Once a jury are sent into retirement, they are kept in seclusion and permitted to separate only after being brought back into court and given the relevant directions by the trial judge. Any note concerning the case sent by a jury in retirement must be taken to the trial judge who, subject to the exceptions identified in Gorman , must then ensure that counsel in the case are aware of the note. If a note simply asks for an exhibit produced in the course of the trial, it will be a matter for counsel whether they wish to raise any issue with the judge. Even if they do not, it will be for counsel to ensure that the correct items are sent in to the jury. 50. Where the note (as in this case) asks specific questions, it must be discussed in the jury’s absence, but in open court, with counsel for all parties. The judge will consider any submissions from counsel before answering the questions. When the questions are answered, this will be in the presence of the jury in open court. This process is required in order to preserve the integrity of the trial process.

2022_07_07-5377.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/942/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/942

2ad8263246514060712fda51e256f74de01e07e92b7cce297ccf0e324151d910

[2012] EWCA Crim 2516

EWCA_Crim_2516

2012-11-27

crown_court

Neutral Citation Number: [2012] EWCA Crim 2516 Case No: 201104119 D5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Inner London Crown Court HHJ Davis T20097347 Royal Courts of Justice Strand, London, WC2A 2LL Date: 27/11/2012 Before : LORD JUSTICE TREACY MR JUSTICE FULFORD and HIS HONOUR JUDGE MCCREATH - - - - - - - - - - - - - - - - - - - - - Between : Edmond Selwyn Williams Appellant - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2012] EWCA Crim 2516 Case No: 201104119 D5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Inner London Crown Court HHJ Davis T20097347 Royal Courts of Justice Strand, London, WC2A 2LL Date: 27/11/2012 Before : LORD JUSTICE TREACY MR JUSTICE FULFORD and HIS HONOUR JUDGE MCCREATH - - - - - - - - - - - - - - - - - - - - - Between : Edmond Selwyn Williams Appellant - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr D P Fisher QC and Mr P R Taylor (instructed by Sonn McMillan Walker Solicitors ) for the Appellant Miss E Lowe (instructed by Crown Prosecution Service ) for the Respondent Hearing dates : 20th November 2012 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Treacy : 1. On 16 th April 2010 in the Crown Court at Inner London this Appellant was convicted of two counts of rape (Counts 1 and 2). There was a further count of rape (Count 3) upon which the jury could not reach a verdict, and which was ordered to remain on the file on the usual terms. 2. On 13 th September 2010 the Appellant was sentenced to thirteen years imprisonment with a direction that time spent in custody or on curfew should count towards sentence. Ancillary orders were made. 3. The Appellant appeals against his conviction with the leave of the single judge. The Appellant and the complainant (SC) were known to each other and were part of a circle of people in an area of London whose socialising involved the use of alcohol and drugs. 4. On 20 th April 2009 the complainant travelled with the Appellant by mini cab to the Appellant’s flat. Over the course of that night she was alleged to have been raped by the Appellant, orally (Count 1), vaginally (Count 2), and anally (Count 3). All offences were alleged to have taken place at the flat. Counts 1 and 2 were specimen counts as the complainant alleged that there were several incidents of oral and vaginal rape. Count 3, the anal rape, was alleged to have occurred on a single occasion. 5. When the complainant was medically examined on 22nd and 23 rd April, no visible injuries to her vagina or anus were noted. However, she was complaining of tenderness in those areas. Swabs were taken, but there was no finding of semen or other DNA evidence. When examined the complainant was noted to have a number of bruises to her face, arms, legs and body. 6. The complainant had made complaint to her boyfriend, LD, on the morning of 21 st April and had later developed the detail of her account when she spoke to police. 7. The Crown’s case was that the complainant had been raped repeatedly over the night of 20 th /21 st April 2009. The complainant had been subjected to some violence and had told the Appellant to desist, but he had ignored her. Her complaint shortly afterwards and the evidence of her physical injuries were relied on as being consistent with her account. 8. The defence case was that the pair had engaged in consensual oral sex. The Appellant denied having vaginal or anal intercourse with the complainant. He said that the complainant had taken the lead in such sexual activity as did occur. He had resisted sexual intercourse with the complainant since he did not have any condoms. He said that the complainant was a prostitute who had finished her relationship with LD and wanted him to become her pimp. 9. The Appellant relied on evidence from a mini cab driver, AZ, in support of his case. AZ gave evidence that the complainant had offered to have sexual intercourse with him for £20.00 on route to the Appellant’s flat, and also that she had offered him oral sex. 10. Further to the complainant’s evidence the Crown called LD, who gave evidence of the complaint. In addition, evidence from three doctors was read. Dr Brookes found no vulval or vaginal injuries, no external rectal injuries and no fresh blood on an internal examination of the complainant’s rectum. She had asserted that she had bled in her anal area after being raped in that manner. Dr Lawrence conducted a general physical examination of the complainant. She found multiple bruises and abrasions over the complainant’s face, arms, legs and body which she said could be consistent with a history of physical violence. It was the Appellant’s case that LD must have inflicted those injuries. 11. Dr Penny Mostyn also examined the complainant. She said that the absence of injuries in the genital area neither confirmed nor refuted the allegation of assault by penetration. 12. When the Appellant was interviewed after arrest he gave an account generally consistent with his evidence. In the course of the interviews, however, he said that he had smoked crack cocaine with the complainant on the night in question. 13. The Appellant gave evidence stating that the complainant had initiated and performed oral sex, but saying that there was no other sexual activity despite the complainant repeatedly asking him to have sexual intercourse with her. Indeed when the pair had been in bed together she had kept trying to force his penis into her vagina, but he resisted. The only sexual contact was oral sexual intercourse. The Appellant denied any violence towards the complainant. 14. The mini cab driver who had taken the pair to the Appellant’s flat gave evidence. He described them talking in a sexually explicit way on the journey, as if they were “going to do it”; and he stated that, when en route the Appellant left the car for a few minutes, the complainant had offered him sex. As will be explained later, the Appellant was recalled to give evidence and he criticised aspects of AZ’s evidence and suggested that he had not been the mini cab driver on the night in question. Ground 1 15. This ground is concerned with the reference by an expert medical practitioner, Dr Penny Mostyn, to an article by Bowyer and Dalton in the British Journal of Obstetrics and Gynaecology: May 1997, Volume 104, pages 617 to 620. 16. The submission is that the article should have been excluded as being unfair, misleading, and highly prejudicial. Alternatively, if the material was admissible, it should have been the subject of rigorous cross examination. 17. Notwithstanding her account of violent rapes by the Appellant, the victim did not have any genital injuries when examined afterwards, although she did have a number of other physical injuries consistent with her account. 18. The prosecution read unchallenged evidence from Dr Mostyn which set out her expert qualifications and described finding no visible injury in the genital area apart from tenderness in the vestibule. Similarly there was tenderness in the perianal area, but no visible injury, and no blood or source of bleeding was seen. 19. Dr Mostyn’s conclusions towards the end of a five page statement read as follows: “I have based my opinion on my clinical experience, the information given at the time of examination and [the] paper listed in Appendix 1. My genital findings do not confirm or deny the allegation of assault by penetration. L Bowyer and M Dalton analysed the case records of 83 women who reported that they had been raped and who were examined by the Northumbrian Police Doctors Scheme. The authors found that a minority of women had genital injuries (27% or 22/83). Tenderness is frequently caused by trauma but is not a specific sign of injury… I do not know what the significance is of the areas of tenderness described…but they could be explained by penetration of the vagina and anus by a penis.” 20. The article did not go before the jury. The only reference to it was in the sentences read above. Counsel submits that the reference to the article was inadmissible and that it should have been excluded. The judge’s failure to exclude it renders the verdicts unsafe. 21. It was argued that the article was misleading and that within the paper there were some signs of confusion between reported rape and actual rape. 22. The authors’ conclusions were that the issue of genital injury and its association with rape is contentious, and make clear that their study reports an analysis of women who have alleged rape. They go on to say that the association of genital injury and rape is questionable, with the incidence of genital injury varying between 10 and 87% according to a number of studies. 23. It was submitted that the jury may well have understood the article as concluding that the percentages related to rape victims as opposed to those who reported rapes. 24. It was also submitted that the article was unfairly left before the jury. Alternatively, that it should have been challenged so as to bring out the variation in percentages in cases where alleged rape attacks result in genital injury, the difference between reporting a rape and a rape having taken place, and other matters which would have helped to set the report in context. 25. In order to assess this criticism it is necessary to analyse what actually happened at the trial. Firstly, Dr Mostyn’s evidence was in short compass to the effect that the absence of genital findings did not confirm or deny the allegation of assault by penetration. 26. The paper was not read to the jury. All that was put before them was the passage already cited. Those sentences made clear that the findings related to women who reported that they had been raped. No other witness gave evidence on this topic. 27. The Appellant, in giving evidence, denied that he had had vaginal or anal intercourse with the alleged victim. 28. In her closing address for the Crown, counsel made no reference at all to Dr Mostyn’s evidence. In defence counsel’s closing speech she said: “First of all there are no visible genital injuries at all. Now, we know from the evidence that we have had read that that may not matter, because in many cases of rape there are no genital injuries. But at the same time, it is significant because it certainly does not support the Crown.” 29. A little later on she referred to the Appellant’s account denying vaginal or anal intercourse, and mentioned the medical evidence as a factor supportive of his case. 30. In summing up the judge referred briefly to Dr Mostyn, reporting her findings as “my genital findings do not confirm or deny the allegation of assault by penetration”. 31. Just before he summed up, the judge received two notes from the jury. One related to this matter. 32. The jury’s question was: “Medical evidence read by the prosecution mentioned research on rape victims that display injuries. Could we please be reminded of the research findings?” The judge dealt with the matter by having them write down verbatim the paragraph cited above starting with “my genital findings” and ending “(27% or 22/83)”. Both judge and prosecuting counsel at this stage accurately quoted to the jury that this related to women who reported they had been raped. 33. The jury’s question had spoken in terms of victims of rape, but there were two references in the answer to the question to reporting of rape which we think was sufficient to clarify the matter. The judge also checked that the jury had a clear note of what he had asked them to write down. Although with hindsight it might have been wise if the judge had said something further to correct the jury’s loose use of language in their question, we do not think that in the circumstances criticism of his failure to do this is justified. The fact that the matter was written down by way of dictation carried sufficient emphasis and what the jury had written served as a tangible reminder of the correct position available to them in the jury room. 34. Whilst Dr Mostyn referred to the paper as showing support for her conclusion that the absence of injury neither confirmed nor refuted the allegation of assault by penetration, the jury also knew that she was a very experienced doctor who had carried out over 20,000 female genital examinations, including more than 300 in the context of complaints of sexual assault. She had since 2002 acted as a Sexual Offences Examiner and had been on a number of courses. 35. Dr Mostyn was therefore in our view fully entitled to put forward the opinion which she gave based on her extensive experience, and supported by reference to the paper. That rape does not always involve genital injury is, we venture to suggest a well known proposition. There is reference to it in the current Crown Court Bench Book as one of a number of subjects for stereotyping which could lead a jury to approach a complainant’s evidence with unwarranted scepticism. Much, of course, will depend on the individual circumstances of any case. 36. The issue for us is whether the brief mention of the report at all with the percentage of injury found in reported cases of rape was prejudicially unfair to the Appellant. We do not consider that it was. The reference itself was limited. It was not the sole basis of Dr Mostyn’s opinion. There has been no expert evidence put before us on this appeal to call that report into question. 37. Although counsel has made criticisms of the report, its conclusions distinguish between the reporting of rape and the proof of rape. They are in these terms: “Gynaecologists will usually find no genital injuries when they examine women reporting that they have been raped, but this should not influence their opinion in their legal statement regarding the allegation, nor their treatment of the woman. The absence of genital injury should not be used as pivotal evidence by the jury, police or Crown Prosecution Service.” 38. The report also stated that although a minority of women had genital injuries, the majority had some form of physical injury, although most of those were minor. This piece of evidence was not put before the jury. 39. We are not persuaded that the judge should not have permitted the jury to hear the brief reference to this report on the grounds of inherent unreliability or lack of expertise. It was a report in a respected journal by appropriately qualified experts which will no doubt have been subject to proper peer review procedures. 40. Had the point been taken, we consider that the judge would reasonably have allowed reference to the paper to be made. Had cross examination taken place, it would not, in our judgment, have materially affected the position. The proposition would still have emerged that injury is not necessarily concomitant with rape as is apparent from other studies cited in the report. There might have been some cross examination based on the percentage of cases where injury was detected, but we doubt that the overall proposition would have been overturned. 41. Moreover, we consider that on a proper reading of the paper, any challenge to its status as evidence worthy of consideration would not have succeeded. 42. As to the submission that Dr Mostyn should have been cross examined, this was not really pressed in oral argument. However, we have considered the point. Our conclusion is that counsel’s decision not to seek to challenge Dr Mostyn’s evidence was a perfectly reasonable one. The proposition for which Dr Mostyn was contending is in no way surprising and the defence were proposing to make a positive point based on the absence of injury as they were entitled to do. There was at least the risk that by exploring the issue in cross-examination the defence might weaken its position. 43. As already stated, it would with hindsight, have been preferable for the judge to have underlined the difference between reported rape and rapes. But we do not think that that was a material failure. The Crown had made no capital out of Dr Mostyn’s evidence, nor had the judge in summing up. 44. The defence had drawn some support from the absence of injury, but the matter had not featured centrally in the case at all. In the circumstances we are not persuaded that this ground provides any tenable basis in support of the appeal. Ground 2 45. Ground 2 criticises the judge’s handling of Counts 1 and 2 which were specimen counts. Mr Fisher QC did not submit that it was inappropriate to proceed on specimen counts. There were three counts on the indictment. Count 1 alleged oral rape. Count 2 alleged vaginal rape. Count 3 alleged an anal rape. The jury could not agree on Count 3. Only a single occasion of anal rape was alleged. 46. Counts 1 and 2 were specimen counts because the victim alleged that she had been orally and vaginally raped on a number of occasions during the night she spent in the Appellant’s company. Allegations regarding each type of act were broadly the same in their detail and description of what had occurred. However, it is apparent that as the night wore on, one or both parties took crack cocaine. 47. In summing up the judge said this, having given the usual direction as to the need for separate verdicts: “Can I then deal with this as well, because you will remember Miss Lowe dealt with this in her opening speech: Counts 1 and 2 are specimen counts you will remember. The prosecution allege that the Defendant also committed numerous other offences of the same kind during the time that he and SC were in the flat in relation to Counts 1 and 2. Instead of loading up the indictment with counts that charge those other offences, they, the prosecution, have selected one as an example in relation to Count 1 and one as an example in relation to Count 2, as they are entitled to do. However, you may convict the Defendant only if you are sure that he committed the particular offence charged in that particular account, whether or not you are sure that he also committed other such offences.” 48. The Appellant argues that this was a misdirection and that the judge should specifically have directed the jury that they could not convict upon any specimen count unless they were all agreed as to which offending incident they were sure the Appellant committed. 49. His failure so to direct them meant that the jury might have been divided as to which course of conduct they were sure the Defendant committed. For example, they might have been divided as to whether her account in relation to matters later in the evening after admittedly taking crack cocaine and alcohol was accurate. Or, some jury members might have been sure that she had been raped vaginally or orally at some point, but not agreed as to precisely when. 50. So, relying on Brown [1984] 79 Cr App R 115 , it was said that the judge’s direction left it open to some members of the jury to convict on rape, being sure of an account of one incident; with others only being sure in relation to a different incident later on that night. 51. Brown , of course, is a case which is concerned with the situation which arises, where a count in the indictment contains a number of different ingredients, representing alternative ways in which an offence may be committed. 52. In those circumstances the judge must direct the jury that where a number of matters are specified in the charge as together constituting an ingredient in the offence, and any one of them was capable of doing so, any individual matter must be proved to the satisfaction of the whole jury. 53. It would not, where an indictment alleges different types of activity, be sufficient for six members of the jury to find one activity proved and another six members to find a different activity proved. 54. However, care needs to be taken in analysing the relevant case law. As was observed in Keeton [1995] 2 Cr App R 241 , at page 249G: “…it is only in cases where truly alternative bases for a finding of guilt are being put forward by the Crown and where there is a risk that the jury might feel that it is permissible for some of them to be satisfied by one basis and others by another, that the Brown direction need be given. It is not appropriate to complicate what are essentially straightforward cases with a Brown direction.” 55. It seems to us to be important to analyse what the issues were in this case. In relation to the allegation of oral rape, it was agreed the activity took place. The issue was whether SC consented or not. In relation to vaginal rape which was alleged to have occurred on an undefined number of occasions during the night, the issue was whether there had been any vaginal intercourse. 56. Defence counsel summed it up in this way in her closing speech: “It is about quite precisely what happened. First of all, in terms of the sexual acts that took place or did not take place. Secondly, in terms of whether there was or was not consent for that. You may think that those are really the two questions. What happened? Having decided what happened, was that or was that not with consent?” 57. We observe that the allegations covered a single night, the same parties, the same place, and with the same defence being put forward in relation to the activity within each count. The Crown’s allegation was that the victim was not consenting to any sexual activity. 58. This was not a case where the counts specified a number of different ingredients. Count 1 would be proved by showing oral sex without the victim’s consent and without reasonable belief on the part of the Appellant. Count 2 would be same with the substitution of “vaginal” for “oral”. 59. We have in mind Lord Ackner’s words in More [1988] 86 Cr App R 234 at 252: “Clearly each ingredient of an offence must be proved to the satisfaction of each and every member of the jury (subject to the majority direction). It is equally essential that the jury be directed in a manner which is easily comprehensible and devoid of unnecessary complications. Whether or not a particular direction adequately expresses to the jury the obligation of the prosecution to prove to the jury’s satisfaction each ingredient of the offence must depend essentially on the precise nature of the charge, the nature of the prosecution’s case and the defence and what are the live issues at the conclusion of the evidence.” 60. We are wholly unpersuaded in the circumstances of this case that a Brown type direction was necessary. There was no disparity as to time, place, particulars or nature of the act required to prove a count. The separate allegations of oral and vaginal rape stood or fell together within each count. At no stage was the case conducted on the basis that some jurors might be satisfied in relation to one episode, with some being satisfied in relation to another. That was not the way in which the case proceeded below. Nor was there any question from the jury raising this issue. 61. In reality there was no danger of misapprehension which required the judge to address the issue. We consider that the judge’s direction was in the circumstances sufficient. Ground 3 62. This ground complains of the judge’s failure to give a Lucas direction in the summing up. In the course of his interviews with the police, the Appellant said that he, as well as SC, had smoked crack cocaine on the night in question. In the witness box he maintained that he had not smoked crack, but was still saying that the complainant had. 63. He explained the apparent contradiction with his account in interview by saying that he had felt under immense pressure in interview and had spoken in the heat of the moment when the rape allegations (which he was denying) were more important than whether or not he had smoked crack. The Appellant repeated this explanation at some length and on more than one occasion. 64. The Appellant chose to say that he had not smoked crack having received a direction from the judge about his right not to self-incriminate in relation to possession with intent to supply (as opposed to any other offence). 65. When Miss Lowe for the Crown cross-examined, she put questions to the Appellant directed to the question of whether or not he had smoked crack that night. The purpose of her enquiry was to understand whether it was the Appellant’s case that he was or was not under the influence of crack. It was also relevant to his evidence that the complainant alone had smoked crack cocaine while they were together, and thus, by inference, to his assertion that she was thus a less reliable witness. 66. At Mr Fisher’s invitation we have examined very carefully the relevant passage of evidence. What counsel did not do was to put to the Appellant that he had lied and thus was guilty of the offences charged. She was investigating a broader question as to his state on the night in question and as to whether he was trying to mislead the jury into thinking that the use of crack was the complainant’s idea alone, and thus that she was “up to no good”. 67. Prior to speeches there was a discussion between Bar and Bench about jury directions. The judge indicated that he was not going to give a Lucas direction but invited comments. Neither counsel sought to persuade him to do so. That is perhaps a useful test of the true place of this issue in the trial. 68. When the Crown made its closing submissions to the jury, counsel made no discrete allegation of a lie in relation to the crack cocaine. She was submitting that the Appellant’s demeanour and attitude in the witness box had been inconsistent, evasive, and unreliable, and that his evidence generally was incredible with words “tumbling from his mouth”. 69. We highlight one passage from the cross examination by way of illustration: “Question: Were you under the influence of crack cocaine on 21 st April 2009 Mr Williams yes or no? Answer: Alright I see where you’re going now, I imagine, but as I said, no, I think I’ll stick by my first answer in relation to that. Question: You think you’ll stick by your first answer. Do you mean the first answer you gave in interview or from the witness box? Answer: I’d say to take your pick on that one.” 70. Having considered the transcripts of cross-examination and counsel’s closing speech, we conclude that this exchange is representative of a wider approach on the part of the Appellant giving evidence, and that the Crown was entitled to focus on a general lack of credibility of which this was an example. 71. When defence counsel addressed the jury she briefly dealt with the question of whether or not the Appellant had consumed crack as a broad issue to be considered in the context of substances taken by both parties and as a factor in looking at their reliability as witnesses. 72. Therefore, consistent with both counsels’ stance in the discussion with the judge, neither party had put forward the question of consumption of crack cocaine as amounting to a lie, which would be supportive or indicative of guilt. 73. Although the Crown was challenging the whole of the Appellant’s account as untrue, there was no particular focus on the crack cocaine evidence as a specific lie indicating guilt. 74. When the judge came to sum up, he referred to the question of the Appellant’s smoking crack cocaine and said: “The Crown rely to a certain extent on his change of account. The defence invite you to ignore it and to act upon the Defendant’s evidence about his reasons for saying what he did, rather than telling a deliberate and significant lie. That is a matter entirely in your province.” 75. The judge set out the Appellant’s explanation for the contradiction in saying that he had felt under pressure in interview and had spoken in the heat of the moment rather than accurately. A few pages later the judge repeated the Appellant’s explanation in a neutral recitation of his evidence. 76. Mr Fisher argues that the judge should have given a full Lucas direction, telling the jury that they had to be sure that a lie had been told in this respect and directing them that the mere fact of a lie is not itself evidence of guilt, and that only if they were sure that the Defendant did not lie for an innocent reason could they treat the lie as supporting the prosecution case. 77. In addition, Mr Fisher submits that the judge’s use of the phrase “rather than telling a deliberate and significant lie” represents the judge indicating to the jury that they could regard what the Defendant had said about this matter as a lie supportive of guilt. 78. As to this latter submission, we cannot accept the construction put on the passage by Mr Fisher. The jury will have seen and heard the Crown’s approach, which was not to treat this matter as a specific lie, but rather to take a broader view. They had heard defence counsel make submissions which were not inconsistent with that approach. 79. In the passage complained of, the judge reflects the Crown’s position by the use of the phrase “to a certain extent”. He then put forward the defence explanation concerning the evidence, and in using the phrase he did, was not inviting the jury to conclude that a lie had been told. What he was doing was providing a description of what the defence were saying the Defendant’s account did not amount to as opposed to inviting the jury to treat it as a lie. 80. To have done otherwise would have run contrary to the way in which the case had been conducted, and contrary to the view expressed by the judge prior to summing up. 81. It seems to us to be important to view the matter in the context of the case as a whole. The case had never been advanced to the jury on the basis that any lie about the use of crack cocaine would provide evidence of guilt. The disconnection between the use of crack and guilt was in fact pinpointed by the Appellant in his evidence when he remarked more than once that he did not see what crack had to do with the complainant being raped. 82. In Burge and Pegg [1996] 1 Cr App R 163 this court, discussing Lucas , stated that where the Crown seeks to show that something said was a lie and to rely on that lie as evidence of guilt in relation to a charge, a Lucas direction would usually be required. Such a direction would also usually be required even if the Crown did not adopt that approach, in cases where the judge reasonably envisaged that there was a real danger that the jury may do so. Mr Fisher QC would also extrapolate that this court should take a view as to whether there was a real danger that the jury might do so. 83. In Burge and Pegg , however, the court also said that a Lucas direction is not required in every case, even if the jury may conclude that a Defendant has lied in relation to some matters. The warning is only needed if they might regard that conclusion as probative of guilt. How far a direction is necessary will depend on the circumstances. 84. In Keeton (supra) the question of a Lucas direction was considered. At page 245E to 246B the court said: “In the present case the Crown had not sought to rely upon the admitted lies of Geoffrey Keeton in interview as evidence of his guilt. It was, however, a case in which the jury might wonder why he had lied and draw an adverse inference even though the crown had not been making the point, except as a point on credit. However, the Defendant had specifically covered the point in his evidence and had given an explanation of why he had not initially told the truth. The judge in his summing up expressly covered this point and reminded the jury of his evidence and the explanation he gave. When this point was raised at a later stage with the judge, he pointed out to counsel for Geoffrey Keeton that the way in which he had summed up to the jury on this point was favourable to him, since to have said any more would have merely served to undermine the explanation which Keeton had given, and invite the jury to draw from it an inference of guilt when no one had suggested to them that they should… Although this was a case which involved a question of identification, it was not a case like Goodway where the significance of the lies told by the Defendant was central to the difficult issue of identification with which that case was concerned. Here the question of lies was at best peripheral. Further the jury had heard the explanation which the Defendant had given. It was before the jury that there was an explanation for what the Defendant had said other than a consciousness of guilt. Any elaboration of the issue would have given it undue prominence and have been adverse to Geoffrey Keeton. There was no misdirection, nor was there anything unfair in the way the judge dealt with the matter.” 85. We find those observations in not dissimilar circumstances to be of assistance in considering whether a full Lucas direction was necessary. We have also considered the case of Middleton [2001] Crim.L.R 251 where the court (emphasising that it was not purporting to re-formulate principle or to undermine existing authority) said that the purpose of a Lucas direction is to guard against the forbidden line of reasoning that the telling of lies equals guilt. It follows that where there is no risk that the jury might follow such a line of reasoning, there is no need for such a direction. In deciding whether such a direction is appropriate in any given case it will usually be more useful to analyse the question in the context of the individual case. 86. Having considered the way in which this case was conducted, we do not consider that there was a danger that the jury would assume that if the Appellant had lied about smoking crack, he must be guilty of rape. This was not, therefore, a situation in which it was necessary for the judge to give a full Lucas direction. Indeed to have done so might have had the effect of advancing an aspect of the case against the Appellant which had not been previously put forward. 87. The judge had clearly and in detail put forward on two occasions the Defendant’s explanation for the apparent contradiction in his evidence, the parties had not treated the matter as a lie going to guilt, and we do not consider that, properly understood, what the judge said to the jury was an invitation for them to approach the matter otherwise. In all these circumstances we are satisfied that there was no misdirection. Accordingly, despite Mr Fisher’s careful argument on the point, it must fail. Ground 4 88. The Appellant gave evidence that he had asked the cab driver who had taken the pair to his home to buy condoms for him. His case was also that during the night he had tried to make a number of calls to the cab driver to see where he was as he had not brought condoms. Williams’ mobile phone was seized on arrest, but subsequently lost. 89. The Crown did not attempt to obtain mobile phone records. It appears that defence trial counsel had advised that the defence solicitors should obtain them from the service provider, but that appears not to have been done. Criticism is therefore made of the Appellant’s then solicitors. Their failure, it is said, deprived him of an opportunity to support his assertion that he had called the cab driver during the night and thus by inference that he had been pursuing his interest in obtaining condoms for consensual sexual intercourse, his evidence being that he would not have unprotected sex. 90. It seems that the defence solicitors did not contact the service provider. One email we have seen suggests a belief that the relevant mobile phone company would not release them to anyone other than the police. 91. This ground was described as a “makeweight” by the single judge. We observe that the cab driver was called to give evidence and said nothing about any request for condoms from the Appellant at any point of the evening, notwithstanding a leading question being put to him. 92. As the witness left court there was an outburst by the Appellant in front of the jury. He alleged that the taxi driver who came to court was not the taxi driver he had been involved with that night. 93. Privilege having been waived, it appears that the Appellant was fully aware that the taxi driver was to be called by the defence, although he had said nothing in his witness statement about the question of condoms. The Appellant told his counsel that the driver would give such evidence. 94. After the Appellant’s outburst in front of the jury, there was a conference with counsel. The papers show that counsel considered with the Appellant whether there should be an application to discharge the jury. The Appellant declined this option and a successful application was made to the judge for the Appellant to be recalled to give evidence. 95. When he gave further evidence he repeated that AZ had not been the taxi driver on the night in question, and repeated his account about requesting the true taxi driver to buy condoms for him and having followed that up with phone calls during the night. 96. It seems to us therefore that the Appellant had chosen to go ahead with the trial notwithstanding the taxi driver’s failure to give the evidence the Appellant hoped for. This was at a time when he must have known there were no phone records available. It lies ill in his mouth to raise this matter now. In any event, even if records had been obtained and shown contact between the Appellant and a cab driver during the night, they would not have provided evidence as to what it was that had been discussed, if indeed there was any discussion. 97. Indeed by looking at the Appellant’s interviews and proof of evidence, it is far from clear that the Appellant was actually able to speak to the cab driver during the night as opposed to making calls attempting to contact him. 98. There is also a live issue as to whether or not the Appellant’s previous solicitors had been provided with sufficient information for them to make an enquiry of any mobile phone company, but, putting that to one side, we regard this a relatively peripheral issue which might or might not have advanced the case, but which has in any event to be viewed in the light of the Appellant’s decision not to seek a discharge of the jury after the taxi driver’s evidence. 99. Even assuming that such material had been obtained and that it did support the Appellant’s case in this respect, it would not have assisted the jury directly in determining the central issues with which they were concerned, namely whether there had been consent to oral sex or whether there had been penetration in relation to vaginal sex. In passing, we note that the complainant in her ABE interview had accepted that the Appellant had whispered something in the cab driver’s ear before they went to the flat and said she did not know if that was to do with condoms. 100. In the circumstances we do not think this ground advances the Appellant’s case. Ground 5 101. Finally the Appellant submits that defence counsel failed adequately to cross examine the complainant after she asserted in the course of cross examination that before they went to the Appellant’s flat, the Appellant was trying to pimp her to the cab driver for £20.00, and that in his absence she had told the cab driver she was not a prostitute. True it was she had not mentioned those matters in her initial DVD interview, but counsel elicited more significant matters in cross-examination. We are unimpressed by this submission. It was a single point in an obviously extensive cross examination dealing with a lot of different matters. Moreover, in interview when it was put to her that she had spoken to the cab driver offering him sex for £20.00, the victim had vehemently denied that. She maintained that denial in evidence. But when AZ, the cab driver, was called for the defence, he said that she had indeed offered him sex whilst she was alone in the cab with him. We therefore fail to see that this point has any impact at all in comparison. Conclusion 102. In all these circumstances we are not persuaded that there is any force in any of the grounds put before us and certainly nothing that could render these convictions unsafe. Accordingly, the appeal is dismissed, as we indicated at the end of the hearing on 20 th November.

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