Datasets:

JuDDGES

/

en-court-raw

like 0

3e4b4823e7b96fea17f65a83e08e6cfc212d95415735d63cc44762013a7edb24

[2004] EWCA Crim 245

EWCA_Crim_245

2004-02-13

supreme_court

Case No: 200005077C1 Neutral Citation No: [2004] EWCA Crim 245 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM MANCHESTER CROWN COURT HIS HONOUR JUDGE OPENSHAW QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 13th February 2004 Before: LORD JUSTICE MANTELL MR JUSTICE WAKERLEY and SIR EDWIN JOWITT - - - - - - - - - - - - - - - - - - - - - Between: REGINA - v - STEPHEN BRIAN LYDIATE - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Case No: 200005077C1 Neutral Citation No: [2004] EWCA Crim 245 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM MANCHESTER CROWN COURT HIS HONOUR JUDGE OPENSHAW QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 13th February 2004 Before: LORD JUSTICE MANTELL MR JUSTICE WAKERLEY and SIR EDWIN JOWITT - - - - - - - - - - - - - - - - - - - - - Between: REGINA - v - STEPHEN BRIAN LYDIATE - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr D C Bate QC (instructed by Paul Martin & Co. ) for the Applicant Mr P Wright QC (instructed by CPS ) for the Crown Hearing dates: 28 th January 2004 - - - - - - - - - - - - - - - - - - - - - JUDGMENT Sir Edwin Jowitt: Facts. 1. On the 26 July 2000, after a trial lasting three months, this applicant was convicted at Manchester Crown Court before His Honour Judge Openshaw, QC by the jury's majority verdicts of 10: 2 on three counts in an indictment on which he and others had been tried, namely: conspiracy to murder (count 1) and conspiracy to kidnap and falsely to imprison (counts 2 and 3). He was sentenced to life imprisonment on the first count under section 28 of the Crime (Sentences) Act 1997 , with a notional determinate sentence of 15 years imprisonment and concurrent sentences of 22 years imprisonment on counts 2 and 3. 2. He renewed his application for leave to appeal against conviction and sentence after refusal of leave by the single judge. We refused leave to appeal against his conviction on hearing his oral application for leave, saying we would give our reasons later. We proceeded then to hear the application for leave to appeal against sentence after which we adjourned our decision upon that application. Today we refuse leave to appeal against sentence and we now give our reasons for refusing both these applications. 3. A co-accused, Boyle, was convicted on counts 1 to 3. Three other defendants, Danson, Allerton and Dwyer were convicted on count 3. The defendant Gregson, pleaded guilty at a later stage to substantive counts designed to reflect participation in counts 2 and 3. There were three other defendants, including the defendant Farrell, charged with various of these three counts who were acquitted. Each of these three counts alleged that also involved in the conspiracy charged were one Shawcross and others unknown. There were other counts in the indictment relating to the possession of firearms on which Lydiate was not tried. 4. The prosecution's case was that the events giving rise to the indictment had their genesis in an attack on Lydiate which happened on the 25th April 1999 in which he was shot nine times by a masked man in a Salford public house and received serious injuries to his elbow and abdomen. Although Lydiate must have known the police wished to speak to him about this incident he never made any approach to them. 5. It was the prosecution's case that the subsequent events about which the jury heard were instigated by Lydiate in order to be able to discover the whereabouts of those he believed to be responsible for what had been done to him in order that they might be found and one or more of them killed by way of revenge. He believed those responsible were two men called Calderwood and Daffearn and the two Jamma brothers. In a nutshell, the prosecution's case was that the evidence concerning the events about which the jury heard had a cumulative effect which demonstrated unerringly Lydiate's guilt of the offences of which he was convicted. 6. On the 19th May, in his absence, some unknown men called at the house of one Tony Shenton. His girl friend was in the house and, being suspicious, did not answer the door. An attempt was made to force the door and, in response, she screamed for help from a window. The men made off. The girl friend saw the men but was not able to recognise any of them. The relevance of this incident becomes apparent from what happened subsequently. 7. Later that day, on a false pretext, a man called Foster was persuaded by his half brother, the defendant Phelan, to visit him. Foster called at Phelan's house to be confronted by two masked men. The masks did not prevent Foster from recognising them as Shawcross and the defendant Gregson. He was stabbed in his leg and foot by Gregson and then dragged into the yard. Boyle was standing in the yard. A gun was put into Foster's mouth and Shawcross asked, "Shall we murder him?" Foster was repeatedly asked where Kent lived and Phelan, who was watching, advised him to tell them what he knew. Threats were also made against Foster's wife and children if he did not provide information. 8. Then Foster was driven by car to Hickey Farm, a property which is registered jointly in the names of Lydiate and Farrell. Foster said that on the way to the farm Shawcross made a mobile phone call saying, as he spoke into the phone, "We're on the way. Meet us there." In fact, the agreed schedule of phone calls shows that at 11:50a.m. on the 19th May a phone call was made, using a phone which was much used by Shawcross, to a phone belonging to Lydiate, referred to at trial as Lydiate 1, to distinguish it from another phone from which calls were also made, Lydiate 2. The judge pointed out to the jury that on Foster's evidence about time, 11:50a.m. would have been about the time he was being taken to Hickey Farm. 9. At the farm Foster was put inside a mobile toilet. He was kept there for a while and then told to come out. He was put back into the car and driven then to Phelan's house. As Foster was sitting in the car, before it left the farm, he saw another car, a green Audi, reversing away from the farm. Foster said in chief there was only one person in the car and he saw him waving to the others. He said it was Lydiate, though he accepted he had only a fleeting glimpse of him. No identification parade was ever held. 10. Foster's evidence about what he saw changed when he was cross-examined again after a subsequent witness, Kent, to whose evidence we shall return, said that Foster had told him the person he saw was one Rowles, Lydiate's business partner. Initially Foster denied saying this to Kent but then accepted he may have said there was a man in the car he believed to be Rowles and who had a bandage round his head. Foster agreed that, as well as in his evidence, he had only ever spoken to the police of there having been one person in the car. However, when he was re-examined he was asked who was definitely in the car and he replied, "Stephen Lydiate". He said he was in the driver's seat. The person with a bandaged head had been lying back in the passenger seat. He was asked what, then, was the uncertainty in his mind about this person. In answer, Foster said he had not seen his face clearly but a few days later had had a quick glimpse of Rowles sitting in a car with a bandage round his head. 11. In fact, as the judge pointed out to the jury, on Lydiate's evidence the incident which had led to Rowles having his head bandaged had not yet occurred at the time of which Foster was speaking. 12. Foster was told that the next day he would have to identify Kent's home and this is what he did. On the way back from the farm to Phelan's house he was told that he should account for his injuries by pretending he had been robbed by one Pollard and the defendant Dwyer. Foster went to hospital on the 21st May. He did not tell the doctor he had been stabbed and complained only of a black eye and pain in his chest. 13. In the early hours of the 22nd May the witness Kent was sleeping downstairs on the sofa when four men, all wearing balaclavas, burst into his house. Despite the balaclavas he was able to recognise Shawcross and Gregson, whom he knew well. Each of these two had a submachine gun fitted with a silencer and a handgun. He tried to escape but was struck about his head. Then Shawcross shot him in each leg and the threat was made to shoot his girlfriend if he did not quieten down. Kent was handcuffed and put into a white Suzuki van, which had been bought a few days earlier in a false name. 14. The van was driven off but stopped after a mile or so and Kent was transferred into a car. The van was set alight by throwing a petrol bomb into it. Kent was taken to Hickey Farm, where he was put into a trailer. Guns were put into his mouth and the triggers pulled. He was a also hit on the head with a machete. In the course of this violence Kent was asked where Daffearn and Calderwood were. He was told they were going to kill them. As a further means of applying pressure on Foster, a man was brought in who, it was intended, should commit buggery upon him. However, the man refused because Kent was bleeding so heavily. A stick was prodded into the open wound in one of his legs and salt was poured into his wounds. 15. This ordeal lasted for about eight hours and during the course of it a number of telephone calls had been made. Around 4:30 a.m. Farrell's phone was used to phone the Campanile Hotel, where Lydiate was staying. 16. At the end of all this Kent was provided with clothing, put into a car and driven to another address where he was taken to an upstairs flat and handcuffed to a cot. It was here that someone cleaned and dressed his wounds. He was questioned again about Calderwood and Daffearn and there were threats made to kill him if he did not provide information. Guns were pointed at him and a trigger was pulled. 17. We turn now to Shenton, of whom we have already made brief mention. It was in the early hours of the 24th May when his front door was shattered by a shot from a 12-bore gun. He was shot in the leg and suffered a very serious injury to it. He was dragged out of his home and put into the boot of a car. He was driven then to the flat where Kent was still being held and put into a room. Presently, Kent was brought into the same room. A threat was made to kill Shenton and salt was poured into his wound. As well he had a gun thrust in his mouth and the trigger was pulled. 18. Shenton was questioned about Daffearn, Calderwood and the Jammas. They said they wanted to kill Daffearn. Shenton was told that his captors had his wife and child and one of them pretended to give instructions on the phone for her to be raped. 19. In the morning, now the 24th May, someone was sent out to get a van. Several hours later Shenton was taken from the flat and put into a van. He was driven then to a hospital where the van was abandoned, with him lying inside it. Just after five o'clock that afternoon a phone call was made to the ambulance service telling them where the van was to be found. Very soon after that a call was made to Lydiate 1. Shenton had been told that he was to explain what had happened to him by saying that Daffearn and Calderwood had kidnapped and shot him. 20. There had been another incident involving the use of guns that morning. It was about 11:15 a.m. when one Davidson was being driven in Salford in his BMW car by his partner. Their children were in the back of the car. Presently the car stopped to allow Davidson to get out. Then he dashed back to it and shouted to his partner to drive off as fast as she could. The car was then pursued by a stolen Rover car through Salford and the men inside it opened fire on the BMW. Two tyres were punctured and it came to a stop. Davidson got out and there followed a struggle in the course of which he was shot in the leg. The Rover drove off then at speed and was later abandoned and set on fire. In the debris of the car was found the remains of a mobile phone. Calls made from that phone were connected with some of those who had been active at Hickey Farm. 21. We return now to the flat where Kent was still held captive. He had been given sleeping tablets and he managed, when his guard was not in the room with him, to exchange his glass with the sleeping tablets in it with the guard's glass. Once the guard fell into a drugged sleep he managed to escape. That was not long before 10 a.m. Kent approached some workmen and enlisted their help. An ambulance was called and he reached hospital around 10 o'clock. This was on the 25th May. 22. Another part of the evidence dealt with a number of people who stayed over the weekend beginning Saturday the 22nd May at a hotel in the middle of Salford, the Campanile Hotel. They were Lydiate and his wife, Allerton and the girl friends of Shawcross, Gregson and Boyle. The bill for this stay at the hotel, made out to a false name, was later found at Lydiate's home. During the course of this visit the schedule of telephone calls shows that a good many phone calls were being made to the phone Lydiate 1. Lydiate did not spend the whole weekend at the hotel. He left, then returned for his belongings and after that went with his wife to a caravan they had in Wales. He was there for about two and a half weeks, he said. 23. A great many weapons and items of ammunition were found at two addresses in Salford, neither of them Lydiate's. However some of those to whom we have referred were connected with them. One of them was a flat in Redmires Court. Gregson, Boyle and Danson were at the flat when it was searched. In a bag which Boyle had brought there were found pieces of paper on which were written the names and addresses and telephone numbers of people connected with those who were being sought. A fingerprint of Lydiate was found on one of these pages and fingerprints of Gregson, Boyle and Shawcross were found on other pages. One document had written on it the name of Alan Jamma and the name of the primary school attended by his two children. 24. At Lydiate's home were found pieces of paper bearing phone numbers which were significant in relation to the issues in the trial. Phone calls had been received on Lydiate 1 on a number of occasions from these numbers. There was also a list of names and addresses and the name Norm against the number 5010. Shawcross's first name is Norman and the phone with the number 5010 is one on which he made numerous phone calls to Lydiate 1 and 2. 25. The evidence of the phone calls made to Lydiate 1 called for an explanation. In his evidence at trial Lydiate said that the two Lydiate phones were used in connection with the business which he and Rowles were carrying on. He had Lydiate 1 and Rowles had Lydiate 2. On the 20th May, however, Lydiate received a telephone call from Rowles' girl friend to say he had been abducted and his ear had been cut off. As a result, Lydiate went to see him that same afternoon in hospital. Rowles said he had lost Lydiate 2 in the incident and so Lydiate handed him his own phone, Lydiate 1. After that none of the phone calls to that phone were received by him. Lydiate 1 was not returned to him until well after all the incidents of violence had occurred. In this way Lydiate sought to avoid the incriminating effect of the evidence about the phone calls. 26. Two points have to be made in relation to this. Firstly, this did nothing to take the sting out of the evidence about the use of Lydiate 1 before Rowles was abducted. Secondly, it is instructive to see how Lydiate explained the use of the two Lydiate phones when he was interviewed. He told the police that Lydiate 1 was used by him and Lydiate 2 by Rowles, but that when Lydiate 2 went on the blink he would lend Rowles Lydiate 1. He said not a word about Rowles having lost Lydiate 2 when he was abducted and so lending him Lydiate 1 when he visited him in hospital. Indeed, the effect of what Lydiate did say to the police was inconsistent with this. 27. In his evidence Lydiate denied the allegations made against him. He said he knew or could easily discover the whereabouts of the people for whom others were looking. He had no reason to hunt down Calderwood or the Jamma brothers. He did not know Daffearn or Davidson. His evidence was that his fingerprint must have got onto the document found at Redmires Court as the result of a visit made to him by Gregson, when Gregson showed him a number of papers some of which he must have touched. Then Gregson had gathered them up and taken them away. It could also have been that the papers found at his, Lydiate's, home were Gregson's which had become mixed up with his own papers. In any event, there was no sinister significance so far as he was concerned in his possession of these documents or in the information set out on them. 28. The jury obviously disbelieved Lydiate and there was ample material upon which they could come to this adverse conclusion. Conviction grounds. 29. The first ground of appeal concerns the admission by the judge of the evidence given by Foster identifying Lydiate as the man whom he saw in the Audi car at Hickey Farm. 30. An important issue, going to the weight of any identification evidence Foster might be able to give, was whether he knew Lydiate by sight and, if so, how well and also whether the person he claimed to know by sight was in fact Lydiate. It is appropriate to deal firstly with the judge's decision to hold a voire dire upon this issue and the complaint that he should not have done. The judge took the view, rightly in our view, that the relevant passage in Foster's witness statement was not clear and that he should hold a voire dire before he gave any identification evidence to discover what it was he could say. Mr Bate QC objected. He submits to us that a voire dire in relation to a witness's identification evidence should only be held in the rarest circumstances. 31. Ordinarily, faced with a statement which, on an important point, is not clear but which ought, as a matter of caution and fairness, to be clarified before the witness deals with the point in evidence, a further statement can be taken from him to see whether the point can be clarified. This was not done. Mr Bate had asked that no approach be made to Foster by any police officer. It does not appear that he suggested the task might be carried out instead by a member of the Crown Prosecution Service. In the circumstances the judge, took what was in our view the sensible and obvious course of holding a voire dire. We asked Mr Bate what was the mischief in this. We listened carefully to his answer but are quite unable to see what mischief there was. The fact that clarity was achieved and that it was apparent that Foster was saying he was able to recognise the man who was Lydiate does not constitute a mischief, though it seems clear that Mr Bate's purpose in objecting to the voire dire was to avoid the outcome which it produced. 32. The principal limb of this ground is that although the decision in this court of Popat [1998] 2 CAR 208 was then good law and led to the judge admitting the identification evidence of Foster notwithstanding that, despite the fact Lydiate had disputed his identification when interviewed, no identification parade had been held. The position now is different since Popat was overruled by the House of Lords in Forbes [2001] 1 CAR 430. 33. Mr Bate submitted to the judge that notwithstanding Popat he should nonetheless exclude the identification evidence under section 78 of the Police and Criminal Evidence Act 1984 in view of the fact that there had been no identification parade. The case of Popat was an undoubted obstacle in his path but, he submits, the effect of Forbes is that an identification parade was required and so we should now exercise our discretion under section 78 in the light of that and conclude that the evidence of identification should in fact have been excluded, since the law to be applied to this issue is as stated in Forbes . 34. Two things have to be said about that. 35. Firstly, it was accepted in Forbes that if a case is one of pure recognition of someone well known to the eyewitness it may be futile to hold an identification parade. See paragraph 27 at page 443 of the speech of Lord Bingham of Cornhill, giving the considered opinion of the Appellate Committee. We venture to make these comments. Suppose a witness has seen someone whom he believes to be Mr A and he knows him and is able to recognise him when he sees him and thereafter he attends an identification parade believing it was Mr A whom he had seen, the likelihood is that if he is standing on the parade, the witness will pick him out because he believes the man he saw at the scene of the crime was Mr A. An identification parade in the circumstances may be thought not to add any strength to his assertion that it was Mr A whom he saw at the scene of the crime. To those who say that the position is not different in case of the witness who informally identifies the stranger shortly after the event and then picks out that stranger at an identification parade we would say that is not necessarily so. However, in any event it is the requirement of Code D of the Code of Practice issued under section 66 of the Act that in such a case there must be a parade. As Lord Bingham pointed out in Forbes in paragraph 26 at page 442 the Code is intended to be an intensely practical document which gives police officers clear instructions on the approach they should follow in specified circumstances. 36. Secondly, it does not follow that a failure to hold an identification parade when one is required by Code D will automatically result in the exclusion of identification evidence under section 78 . This point was made in Forbes in which, despite the failure to hold a parade, as required by the Code, the conviction was upheld. 37. Mr Bate submitted this was not a case of pure recognition but, as we understand him, even if it was demonstrated that it was, the change in Foster's evidence when he was cross-examined about his conversation with Kent, to which we have referred already, shows that the value of his evidence was so questionable that fairness to Lydiate required the holding of a parade to put his identification to the test. As this development did not occur until after the judge made his decision to admit the identification evidence it cannot be used as a basis upon which to challenge that decision. It is, though, something to be considered in the context of a case in which an identification parade was not held in deciding whether Foster's identification of Lydiate was unreliable so as to make the conviction unsafe. We shall look at this later. 38. Was this a case of pure recognition of someone well known to Foster? He said that, although he had never spoken to Lydiate, he had seen him on a lot of occasions over the period of about a year in public houses and various places and driving in his car and his Jeep. He was well known in the area. He knew this man to be Lydiate because he had seen and heard him addressed as Lidder and he responded to that name. Lydiate accepted that people did call him Lidder. 39. In our judgment that was sufficient evidence to establish a case of pure recognition of someone well known to Foster and we take the view that this was not a case, therefore, in which it was necessary to hold an identification parade. This would be sufficient to dispose of the challenge to the admission of Foster's evidence of identification. However, we recognise that in Forbes Lord Bingham does not say that in a case of pure recognition an identification parade need never be held. We therefore consider the challenge also on the basis that Foster's evidence about his knowledge of Lydiate did not go sufficiently far to make it appropriate for there to have been no parade. 40. As we have said already, the fact that an identification parade was not held when there should have been one does not lead automatically to the exclusion of the evidence of identification. The fact that there was evidence of recognition based on a significant number of sightings over a substantial period is an important factor to be taken into account in deciding whether it is established, on the balance of probabilities, that the admission of the evidence had such an adverse effect on the fairness of the proceedings that it ought not to have been admitted. Other factors to be taken into account, and which the judge did take into account, were the facts Foster was taken to a property of which Lydiate was the joint owner and that it was there that Foster said he saw him in a green Audi car and also the facts of the phone call of which Foster gave evidence and the call to Lydiate 1 logged at 11:50 a.m., to which we have referred already. 41. In our judgment, looking at these various factors in the context of this case, we conclude that the case is not made out for exclusion under section 78 . 42. A further complaint made is that Foster made an unsolicited dock identification of Lydiate at the conclusion of Mr Bate's cross-examination. It is said that the judge did not deal adequately with this in his summing up. We have considered the passage referred to. The judge said, "A purported identification of someone in the dock is worthless, you must put that piece of evidence entirely out of your mind." To say this direction was not adequate gives a fresh meaning to that word which we do not recognise. It was wholly adequate. Foster had said the man in the Audi car was a man he knew. Having given his evidence about the extent to which he knew Lydiate, we do not see that when he was asked if he could be mistaken and replied, "No, that man with the blue and white T-shirt on," his words would have been regarded by the jury as adding anything to his evidence, particularly after the clear and emphatic direction which the judge gave. 43. Then it is complained that the jury received no sufficient direction as to the failure, in breach of the Code, to hold an identification parade. In Forbes in paragraph 33 at page 444 Lord Bingham said: "...the trial Judge should in the course of summing up to the jury (a) explain that there has been a breach of the Code and how it has arisen, and (b) invite the jury to consider the possible effect of that breach." A few lines later he said: "But if the breach is a failure to hold an identification parade when required by D2.3, the jury should ordinarily be told that an identification parade enables a suspect to put the reliability of an eye - witness's identification to the test, that the suspect has lost the benefit of that safeguard and that the jury should take account of that fact in its assessment of the whole case, giving it such weight as it thinks fair." 44. The judge had correctly held, on the law as it was then understood to be, that there was no breach of Code D. However he directed the jury in these words about the fact there was no identification parade: "I make the point members of the jury that no identification parade was arranged so Lydiate is now disadvantaged by having been deprived of the opportunity of putting to the test Foster's assertion that he knew and could recognise Lydiate." 45. This direction seems to us to encapsulate the requisite warning in the second part of our citation from Forbes . 46. Next, it is complained that the judge did not warn the jury that mistakes in the recognition of close relatives and friends are sometimes made. What he said was this: "I must warn you of the special need for caution before convicting any defendant upon evidence of identification. That is because it is possible for an honest witnesses to make a mistaken identification. There have been wrongful convictions in the past as a result of such mistakes. An apparently convincing witness can be mistaken. So indeed can a number of apparently convincing witnesses. You should therefore carefully examine the circumstances in which the identification by each witness was made, you will need to examine for how long the witness had the person he says was the defendant under observation, at what distance, and in what light and in what conditions and circumstances, did anything interfere with the observation. Here each of the identifying witnesses claims to know the person he identified. So you need to ask did he really know him and if so how well did he know him, how often and how recently had he seen him?" 47. We do not think this direction can have left the jury in any doubt about the need for care and the fact that honest mistakes can be made. The jury would not have been left with the impression that because Foster claimed to know Lydiate this warning did not apply to his identification evidence. 48. Finally, complaint is made that the judge did not remind the jury of Foster's failure to give a fuller description of the Audi car and his ability to say whether it was an A6 or an A4 model. Having read and reread the passages in which the judge directed the jury on the subject of identification, and we have cited only a limited part of the whole, we are fully satisfied that the issues relating to identification, the need for care and the pitfalls were very fairly and adequately dealt with by the judge and that there is no sensible ground for complaint about them. 49. But before we leave this ground of appeal we wish to say that we have stepped back to consider the circumstances of the identification, the fact that there was no parade, what Foster said about his ability to recognise Lydiate and about his feelings and fears at the time he saw the Audi car, the change in his evidence when he was cross-examined about his conversation with Kent and the fact that there was a dock identification. We have looked at these matters for their cumulative effect in the context of the evidence in the case and asked ourselves whether the fact that Foster was permitted to give evidence of identification leaves us with any doubt as to the safety of Lydiate's conviction. We have no doubts. We reject this ground of appeal. 50. We now turn to the second of the grounds of appeal. 51. In evidence Lydiate said that on 22 nd May 1999 he received a telephone call from a friend named Brian Robinson. He was told by Robinson that he, Lydiate, had been shot by the man Shawcross; Robinson had seen the shooting in The Ship public house. Lydiate said in evidence that of all the rumours that he had heard, this seemed to him to be the most likely. 52. When Lydiate was questioned by the police he made no mention of this information given in the telephone call from Robinson. 53. This omission was one of the three omissions which the learned Judge directed the jury was capable of giving rise to an adverse inference under section 34 Criminal Justice and Public Order Act 1994 . 54. The learned judge gave to the jury a general direction as to the applicability of Section 34 ; no complaint is made about that. Of the telephone call and information given by Robinson in it, the learned Judge said this: (vol.5 p 7b) "In the circumstances existing at the time, was that something which he could reasonably have been expected to mention. If it was, as I’ve told you, you may draw such inferences as appear proper from his failure to do so. When being asked about the shooting (of him), do you think he could sensibly have omitted the fact that he had been told that he had been shot by Shawcross?" 55. Mr Bate submits that the information given by Robinson was not a ‘fact’ within the meaning of section 34 , it was a theory, a possibility of a piece of speculation provided by him in evidence at trial. Further, to the extent that Lydiate’s evidence led in examination in chief about the telephone call was ‘a fact’, it was not relevant to any issue in the case. Thus section 34 was of no application. 56. There can be no doubt that the telephone call itself was a ‘fact’; as to Lydiate’s belief in the information alleged to have been given to him by Robinson, the law is now settled: In R v Webber The Times 23 rd January 2004. Lord Bingham delivering the opinion of the appellate committee said: "Since the object of section 34 had been to bring the law into line with common sense, ‘fact’ should be given a broad and not a narrow or pedantic meaning. It covered any alleged fact that was in issue and was put forward as part of the defence case. If the defendant advanced at trial any pure fact or exculpatory explanation or account that, if it were true, he could reasonably have been expected to advance earlier, section 34 was potentially applicable." 57. Here the point was made that if Lydiate did indeed believe that Shawcross was the man who shot him, it was improbable that he would seek revenge against Calderwood, Daffearn and the two Jamma brothers which revenge the Crown submitted was the motive for the offences with which Lydiate was charged. Further, it was highly improbable that Lydiate would have conspired or associated with Shawcross as alleged by the Crown. Thus, contrary to Mr Bate’s submission it was highly relevant. 58. In our judgment, in this respect Lydiate was advancing an exculpatory account based on the fact of the telephone call and thus section 34 potentially applied. 59. However, Mr Bate further submits that even if section 34 did potentially apply, the learned Judge should not have invited the jury to consider drawing an adverse inference in these circumstances: 60. First, Lydiate had made it clear in interview that it had been suggested to him that a number of different people were responsible for shooting him. He was reluctant to name them to the police thus causing possible innocent persons to be arrested on the basis of mere speculation and rumour since he himself had been unable to identify his assailant. Secondly, that Lydiate’s then solicitor had advised him during the course of the interview not to indulge in speculation as to who had shot him. In our judgment the information given to Lydiate in the telephone call was not speculation or rumour; it was given by a friend who claimed to have been present at the shooting. Moreover it was relied on by Lydiate at trial as likely to be true. Further, it appears from the transcript of the interviews that at no time did the solicitor advise Lydiate not to answer questions of the police; he advised Lydiate not to speculate. The police officer asked: "I’m asking (you) to tell me what it is that (you’ve) been told, we’re not speculating about anything." To that, Lydiate gave a long reply in which no mention was made of the information given by Robinson. 61. It was for the jury to decide whether they considered it fair to hold that omission against Lydiate in accordance with the learned judge’s general direction. 62. Accordingly we find no merit in this ground of appeal. 63. The third ground of appeal was not pursued. 64. The fourth ground concerns evidence which was given by a Mrs Sylvia Roberts. A part of her evidence was to be about what she had heard Gregson say into a mobile phone in her presence. Mr Bate was anxious that she should not say anything about what Gregson told her, as opposed to what she heard him say over the mobile phone. Anything he said to her would not be admissible because it would not be something said in furtherance of the conspiracy. The judge said that this was so and it was common ground between prosecution and defence. Obviously Mr Bate was anxious lest Mrs Roberts should mention something Gregson had said to her about Lydiate. 65. He asked the judge to warn Mrs Roberts in the absence of the jury that she must confine her evidence to what she heard Gregson say into the phone. Complaint is made that the warning which the judge gave was inadequate. Having considered the terms of his warning we are satisfied that there is no substance in this complaint. 66. Mrs Roberts gave her evidence about two phone calls in which she heard Gregson talking to the person at the other end. She heard him ask, "You're backing us up, aren't you?" Mr Wright QC, for the prosecution asked her whether she heard anyone addressed by name. She answered, "Stephen Lydiate." Then it became apparent this name was spoken by Gregson to her after the phone calls and Mr Wright I asked her not to tell the court what was said afterwards. She went on to say that she had heard Gregson address someone as Steve. 67. Mr Bate took us to this part of the transcript and then took up the questions and answers several pages further on. We were given the clear impression that this was a continuation of the series of questions which he had already read out. These further questions and answers were to the effect that Gregson had said that Steve got shot and that they were looking for Jamma and his gang because he had shot Steve. Mrs Roberts was asked if she ever heard anything concerning the topic of Stephen being shot and replied that she thought not. No objection was taken to these questions and they came to an end when Mr Wright said there was a point of law he wanted to raise. 68. In Mr Bate's skeleton argument and in his submissions to us this further series of questions, eight in all, were presented as a deliberate breach by Mr Wright of the judge's ruling about what could not be asked. In his application to the judge that the jury should be discharged he spoke of defending counsel sitting on the edge of their seats as they were listening to these questions and of the gasps from the jury at what they were hearing. It seemed to us somewhat surprising, as we listened to Mr Bate, that Mr Wright had been able to continue his questions as he did with not a word of protest from any defending counsel. 69. Mr Bate's submission to the judge was that what the jury had heard was so damaging to Lydiate's defence that the situation could not be remedied except by discharging the jury. This was two weeks into the trial. He stressed to us the deliberateness of this flouting of the judge's ruling. The judge refused to discharge the jury, saying he proposed to give a warning to the jury then and there that they should pay no attention to these questions and answers. He said he would make it clear to the jury that, while they could if they chose to, there was no need for defending counsel to feel that they had to cross-examine Mrs Roberts about this part of her evidence. Mr Bate was not happy about this. He wished to cross-examine Mrs Roberts to try to limit the damage which had been caused by the answers she had given. The judge said he would defer the question of any direction to the jury until the conclusion of Mrs Roberts' evidence. 70. In fact, Mr Bate made some headway in his cross-examination of Mrs Roberts, eliciting from her that Gregson was a very dangerous and violent man and a man was not be trusted at all. It is hardly surprising in the circumstances that, at the conclusion of her evidence, the judge said he was not minded to say anything to the jury but he invited Mr Bate to make any submission he wished and Mr Bate made none. 71. It is complained that the judge’s summing up was wholly inadequate insofar as it attempted to deal with the prejudicial evidence given by Mrs Roberts. 72. In his summary of her evidence he said nothing about the questions and answers of which complaint is made. He gave the usual direction that what one defendant says about another defendant in his absence is not evidence against him, explaining that the rule was based on common fairness because the other was not present, and so had no opportunity to deny, challenge or explain what had been said about him. He finished his warning by saying: "You must therefore entirely disregard what one defendant said about another when you consider the case against the other defendant." 73. It is true that this warning was given in the context of the police interviews but it must have been obvious to the jury that the warning was not solely directed to what one defendant may have said to the police about another defendant. 74. In our view the judge was right not to mention the inadmissible evidence which had been given perhaps two months earlier than the time of his summing up. 75. But the accuracy of the suggestion that the questions complained of were asked in deliberate contravention of the judge's ruling, and despite the warning which Mrs Roberts had been given, must in fairness be considered. Mr Wright has demonstrated by reference to the transcript that the attack has, by moving several pages through the transcript from one passage to the other, elided the evidence about two distinct topics to make it appear that they both related to the same topic, what Mrs Roberts had to say about Gregson's phone calls. It is clear when one looks at the pages in between and at the witness statement of Mrs Roberts that Mr Wright had indeed moved on to a different topic. In her statement Mrs Roberts had spoken of the presence of Boyle when the things were said which gave rise to the application to discharge the jury. Things said in his presence about a conspiracy, even though not in furtherance of it, were evidence against him. Mrs Roberts had indeed said that Boyle was present when there was the conversation about which she gave evidence but then, after she had spoken about what had been said, she was asked again who had been present and then she placed Boyle in another room. There had been no deliberate flouting of the judge's ruling and that is not something which can be prayed in aid in support of this ground of appeal. It also explains why no objection was taken to Mr Wright's questions. It is plain from what Mr Wright said to the judge that Mr Bate' s protests about the reaction of the jury were not shared by all and the judge said this: "I am entirely unpersuaded by the suggestion made by Mr Bate that this evidence had a great impact on the jury. I have no reason at all to think that they will not loyally and dutifully follow the direction that I shall give in clear terms that they must ignore these matters." 76. It seems to us that the judge was in a very good position to make this assessment. In the event, because Mr Bate did not wish it, and no one else pressed the point, nothing was said to the jury. 77. It happens from time to time that things are said which the jury ought not to have heard. It seems to us that the exercise by the judge of his discretion not to discharge the jury was sound and sensible. The attempt to make more of the point by the suggestion that the evidence about Lydiate was adduced as a result of a deliberate flouting of the judge's ruling has failed and we are bound to say we think it unfortunate that it should ever have been made. In our judgment the judge's refusal to discharge the jury has not undermined the fairness of the jury's decision and this ground also must be rejected. 78. Finally we have an application to call fresh evidence, the evidence of Rowles, pursuant to section 23 of the Criminal Appeal Act 1968 . The hoped for purpose of this was to confirm Lydiate's account of how the phone, L1, was handed to him in hospital when he was being treated there for his injury. 79. In considering whether to receive any evidence, among the factors to which this court is required to pay particular regard is whether there is any reasonable explanation for the failure to adduce the evidence at trial: section 23 (2) (d). There is not a shred of evidence before us that any attempt was made by Lydiate or his legal advisers to communicate with Rowles when they were preparing for trial, or during the trial, with a view to trying to take a statement from him and calling him as a witness. Mr Bate said it was hoped to call him. However, if that was the case and there was a serious desire to call Rowles if this were possible there must have been some attempt to communicate with him and we cannot think that counsel experienced in this field of the law, who must have been well aware of the requirement of section 23 (2) (d), would have failed to see to it that evidence was placed before us by way of affidavit of any such attempt, if attempt there had been. 80. It is interesting to note that Lydiate was convicted on the 26 July 2000 and that it was not until the 23rd February 2001 that Rowles made a statement to Lydiate's then solicitors. That was a brief one. Well over two years elapsed after that before he saw Lydiate's present solicitors and, a few weeks later, made a fuller statement. Rowles does not suggest in either statement that any approach was made to him before or at the time of the trial to see whether he was prepared to come forward as a witness. Whether or not he would have been afraid is beside the point. The fact is that no approach was made to discover what was the position. 81. We conclude from the deafening silence on the point that no approach was ever made and, on reflection, that Mr Bate's memory, over three years later, has played him false. We think the reason why no approach was ever made to Rowles was a tactical one which left Lydiate free to try to exculpate himself by throwing suspicion on him without fear of being contradicted by him and that he decided, following conviction, upon a change of tactics in relation to Rowles. 82. We declined to receive evidence from him, it being clear that there is not a shred of explanation for the fact that he was not called at trial. 83. In our judgment the grounds of appeal which we have considered lack any substance and are unarguable. Sentence Application 84. Although this was an application for leave to appeal against sentence, we had a full skeleton argument from Mr Bate and his application was fully argued. 85. At the heart of the application for leave to appeal against sentence is the question: what was it that Lydiate had to be punished for? The inhuman cruelty meted out to the three victims was appalling. All of that was a consequence of the conspiracies in that, but for them, these things would not have happened. The brutality was in part to further the conspiracy to kidnap by reducing the victims into captivity, in part to further the conspiracy falsely to imprison by continuing that captivity and in a very substantial measure in furtherance of the conspiracy to murder by torturing the victims with the object of extracting from them information which would enable this particular conspiracy to be followed through to its intended conclusion: the death or deaths of one or more of those believed by Lydiate to be responsible for the attack upon him. 86. But Mr Bate submits that if Lydiate was to be held responsible for the brutality he should have been tried also and convicted on counts which reflected the violence and the manner of its infliction, including counts for firearms offences. Absent convictions on such counts it was wrong, he submits, to punish him for the violence and the manner of its imposition and the possession and use of firearms. When asked, what then should Lydiate have been punished for, his response was to repeat the same submission. It may be that failure to grasp this nettle helps to show where the answer to the question lies. The judge could not simply decline to impose any sentence because there had been no convictions upon substantive counts. So, we pose the question again: what he did Lydiate have to be sentenced for? 87. Mr Bate referred us to a number of authorities, one of which was Eubank [2002] 1 CAR 11, by which he sought to make good his point that it was wrong in law to punish Lydiate for the consequences which could and should have been made the subject of substantive counts on which he could have been tried. We point out, though, that one does not find in that case the answer to the question we have posed. The simple explanation is that the question we have to answer did not arise in Eubank . 88. The authorities in Eubank and its predecessors concerned offences in which, additionally, a firearm had been used. 89. A consideration of them begins with Faulkner (1972) 56 CAR 594. In that case the appellant had been convicted, among other offences, of having with him a firearm with intent to commit an indictable offence and of using it with intent to resist arrest. He was given consecutive sentences for these two offences and complained that as they formed part of one transaction they should have been made concurrent. His appeal was dismissed and it was said that where an offender carries a firearm with intent and pursues his criminal intention he can expect to receive a consecutive sentence for using it. The court stressed that, even so, the sentencer had to consider the totality of his sentence. 90. In French (1982) 4CAR (S) 57 the court had to consider consecutive sentences imposed for robbery and carrying a firearm. It considered two earlier decisions in which it had been said that the practice of adding a count for possession of a firearm to a count for robbery should not be followed. The judgment held that these two cases had been decided in ignorance of the decision of the court in Faulkner , which was binding on the court. 91. At page 62 the judgment reads: "...it is necessary for the indictment to be kept as brief as possible and as uncomplicated as possible. Unless there is a very good reason for including in an indictment two counts, then one should suffice. But we think that there are often good reasons for adding a count under the Firearms Act. First of all it is arguable, and indeed it is often argued, that a defendant ought not to be sentenced in respect of an offence with which he has not been charged or convicted. Secondly, the fact that an offence has not been charged might in some circumstances be taken as a concession by the prosecution that the offence was not committed. Thirdly, there may be occasions where the possession of the offending weapon is disputed, or may be disputed, by the accused, and the sentencing judge would, if there were no firearm count in the indictment, be deprived of the jury's view on the matter. Quite apart from the fact that we are bound by Faulkner , we think, with respect, that it was correctly decided and should in future be followed. The prosecution are entitled to use their discretion as to whether to include a count under the Firearms Act, and we do not regard it in general as bad practice to do so." 92. In Eubank [2002] 1CAR (S) 11, a robbery case in which a firearm had been used but in which there was no count in the indictment for the possession of one, following a plea of guilty the judge had held a Newton hearing and concluded the appellant had been armed with a gun. At page 14 the court said: "If the Crown are going to invite the judge to come to the conclusion that the offence was committed with a firearm, then the appropriate course is to include a count on the indictment to make the position clear. The crown may decide in a particular case that in all the circumstances it is not in the public interest to proceed to trial on a particular count which is disputed by defendant. So be it; but at least the defendant's position should be protected by a count in the indictment." And then this: "We would refer to the previous decision of the court in French , which accurately sets out its position in the head note, reflecting the judgment of the then Lord Chief Justice." 93. The head note is to the same effect as the passage I have cited from the judgment. The head note reads: "The prosecution were entitled to use their discretion whether to include a count under the Firearms Act, and it was not in general bad practice to do so. It was accordingly correct in principle to include two counts in the indictment, and correct in principle for the judge, if he thought it a proper course, to make the sentence for the firearms offence consecutive to the sentence for the robbery." 94. French did not say that the inclusion of an additional count for the firearm offence was required practice. In Flamson [2002] 2 CAR (S) 208 a mandatory sentence of life imprisonment had been imposed upon the appellant, who had pleaded guilty to section 18. The question was whether a previous conviction for robbery, not accompanied by a conviction for a firearms offence, amounted to a serious offence within section 2(5) (h) of the Crime (Sentences) Act 1997 , namely, the robbery where, at some time during the commission of the offence, the offender had in his possession a firearm or imitation firearm within the meaning of the Firearms Act. On the occasion of the plea of guilty to robbery there had been a further count charging the possession of a firearm and this had been allowed to lie on the file. The court investigated what had happened when the appellant had pleaded guilty and concluded that he had in fact admitted the firearms offence through his counsel. The judgment cites the passage quoted above from the judgment in French and considers what was said in Eubank about the need for a firearm count to be included in the indictment. It said: "All that was said and only said in the context of the situation where there was an issue as to whether the appellant had a firearm with him. Here there was no such issue. The defence acknowledged the appellant's involvement in robbery in which a gun was to his knowledge being carried and likely to be used. That is quite a different matter." The court therefore concluded that the appellant was guilty of the qualifying offence required by section 2(5) (h). 95. It seems to us that the effect of French and Flamson is that on a plea of guilty a firearms count is not required when the possession of the firearm is admitted. There is no suggestion that it has to be admitted formally as an offence taken into consideration. But Mr Bate submits that the Eubank principle applies when the defendant has been convicted by the jury and the indictment does not include counts to cover all the offences committed as the means of committing the offence of which the jury have convicted him? We have already said that we do not think this was the point in issue in Eubank . Nor is the point covered by the decision in Canavan [1998] 1 CAR 79. There is a clear distinction between committing the same offence a number of times on different occasions, which are not all included in the indictment and the commission of an offence which, on the facts of the particular case, could only have been committed by means of the commission of other offences. This is just such a case. It would make nonsense of the sentencing process if the court had to imagine what might have been the minimum violence required to kidnap, or to imprison, or to obtain the information required in the pursuance of the conspiracy to commit murder. The task would be artificial and impossible. 96. If it is to be said that other offences could be, and are therefore required to be, added to the indictment before, on conviction after a trial, the court can take them into account, where does one draw the line? Why should not there be counts for common assault or causing actual bodily harm? One may have the rape of a 15 year old girl in which a series of indecent assaults are committed all on the same occasion so that the offender can secure the initial acquiescence of his victim in order then to rape her. It is quite unnecessary to have several counts of indecent assault in the indictment in order to allow the sentencer, after a trial, to decide how the offender went about the commission of the offence of which he has been convicted, so as to be able to decide on the appropriate sentence. Again, it could not be suggested that if a convicted rapist exercised his will over his victim by putting a stupefying drug into her drink that fact must be ignored unless he has been convicted also of the offence of administering a noxious substance to her. 97. We conclude that as long as the other offences constitute the means chosen to work out the conspiracy or conspiracies the court is entitled, after a conviction, to take them into account in deciding what is the appropriate sentence, without there being any need to complicate the indictment by including counts for those other offences. In this case the trial judge was able to decide that Lydiate knew what kind of men he was recruiting to assist him in his legal purposes and what the consequences of his recruiting them were likely to be. 98. Our conclusions are a reflection of the fact that it has been the established and accepted practice for a very long time that on conviction following a trial the judge is always entitled to make his own assessment of culpability based on the evidence placed before the jury, provided always that his assessment is not at odds with that revealed by the jury's verdict. We are fortified in our conclusion by the words of Stuart-Smith, LJ in R v Nottingham Crown Court, ex parte DPP [1996] 1 CAR 283: "In my judgment, it is a cardinal principle of sentencing that the court should take into account when considering the gravity of the offence and the appropriate sentence, the consequences to the victim. This is because one of the purposes of the criminal law is to assuage the feelings of the victims and their friends and relations. The law must redress their grievance by inflicting an appropriate punishment and then there is no excuse for the victim or his friends to exact their own retribution. Moreover, it is not necessary in all cases to add a count to the indictment to reflect such conduct provided that the court's sentencing powers are adequate to reflect the actual gravity of the offending. Thus in Roberts and Roberts (1982) 4 CAR (S) 18 , which was a rape case, it was said that aggravating features which justify a longer sentence are: use of a weapon to threaten or injure the victim; if serious injury is sustained by the victim; violence used over and above that which is necessary to commit the offence; intrusion into the victim's home or deprivation of liberty for a period of time." 99. The judge being entitled to take into account the way in which the conspiracies were acted out, the question for us is whether 22 years imprisonment was wrong in principle or manifestly excessive for the totality of Lydiate's offending. We say the totality because the sentences being concurrent, the 22 year sentence had to reflect that totality. This sentence was passed as a longer than commensurate sentence, pursuant to section 2 (2) (b) of the Criminal Justice Act 1991 , though the judge took the view that 22 years might in fact be a commensurate sentence. In our view, judged as a commensurate sentence, 22 years was neither wrong in principle nor manifestly excessive. It is unnecessary, therefore, to consider whether a longer than commensurate sentence was appropriate. If we had concluded it was not, this could not have led to a reduction of sentence. 100. This would be sufficient to dispose of the sentence application, save for a disparity point and a Convention point which have been urged upon us. However, in deference to other submissions which Mr Bate made we will consider two of them before finally coming to these two points. 101. He argued that the conspiracy to murder was more serious than the other conspiracies and therefore it was wrong in principle to impose longer sentences for the two other conspiracies than the notional determinate sentence for the conspiracy to murder. In fact, the sentence for the conspiracy to murder could justifiably had been longer. In Ashton, Lyons and Webber , unreported, 6 Dec 2002, a sentence of 18 years imprisonment for a conspiracy to murder was upheld. Though that was a serious case, the present case is even more serious. However, this submission overlooks the fact that what we have to consider is whether a sentence of 22 years for the totality of Lydiate's offending was wrong in principle or manifestly excessive. We have concluded it was not. 102. Mr Bate also complained that the longer sentence for the conspiracies to kidnap and falsely imprison than the notional determinate sentence for the conspiracy to murder was wrong in principle because it deprives Lydiate of his entitlement to be considered for parole once he has served half that notional sentence. We are unable to see any error of principle here. One may often have concurrent sentences of differing lengths but each in excess of four years in which the effect of a longer sentence is to defer what would otherwise have been the date of eligibility for parole in respect of a shorter sentence. 103. The first of the two final points concerns disparity. Gregson initially stood in the dock with Lydiate but, for reasons which do not concern this application, the trial against him had to be abandoned and he was dealt with at a later date, when he pleaded guilty. The judge fixed the starting point at 20 years but gave a discount of four years, making a sentence of 16 years. Bearing in mind his very late plea and his very active role in the conspiracies it is argued that there is an unfair disparity between Gregson's sentence and that imposed on Lydiate. This is particularly so, Mr Bate argues, because the judge considered Gregson had gone further than was envisaged by the conspiracies in relation to some of the violence. Against this, it has to be remembered that Lydiate was convicted of a conspiracy whose object was to murder one or more people. Gregson did not have to be punished for this because he neither pleaded guilty to nor was convicted of this conspiracy. Nor was he the organiser of the conspiracies, though in the conspiracies to which he pleaded guilty he was plainly Lydiate's right hand man. Also, it has to be borne in mind that Lydiate knew the man whom he recruited and what sort of man he was. 104. Boyle received a sentence of 15 years imprisonment. It is said by Mr Bate that he was very actively involved in the violence and that there was therefore an unjust disparity between his and Lydiate's sentences. However, the judge who was well placed to determine the respective responsibilities of those he had to sentence, having presided over this long trial, concluded that Boyle was not the second in command. 105. In our judgment there is no substance in the complaint that there was an unfair disparity between the sentence imposed on Lydiate and those imposed on Gregson and Boyle. 106. The final point with which we have to deal concerns the delay there has been in bringing these applications to a hearing. It is argued that this amounts to a breach of Lydiate's rights under Article 6 (1) of the Convention on Human Rights to a hearing within a reasonable time. In AG's Reference No. 2 of 2001 , unreported 2 July 2001 it was recognised that where there has been delay in bringing a case to trial a breach of this right may in some cases be compensated by an adjustment in sentence. In Mills v HM Advocate General for Scotland it was recognised that the right to compensation applied where the delay which breached Article 6 (1) was between conviction and appeal. The appeal in that case had failed and it was held that a modest reduction in sentence was sufficient compensation for the breach. (See the opinion of the Privy Council given on 22 July 2002.) 107. This was followed by this court in Ashton Lyons and Webber. In that case the appeal against conviction was without merit and the original sentence had been neither wrong in principle nor manifestly excessive. The court pointed out in paragraph 83 of its judgment that the case was regarded as exceptional and that it should not be thought that delay which was outside the control of the court will necessarily lead to a similar result. We should point out that the duty owed under Article 6 (1) to the subject is the duty of the state and there is no breach unless there has been delay for which the state bears culpable responsibility. 108. We have been provided with a chronology of these proceedings which we have studied. Throughout the period covered by the chronology Lydiate and his legal advisers were very busy but we cannot see there has been any delay, still less culpable delay, caused by the Court Service. Indeed, as far back as August 2002 a hearing was vacated following a request made on Lydiate's behalf. In these circumstances we see no basis for any argument that there has been a breach of his rights under the Article 6 (1). 109. The grounds of appeal against sentence put forward were not, in our view, arguable and so we have refused leave.

2004_02_13-184.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/245/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/245

97a3ca058bf29098f4b98a4f13516459074e7746603aa1faa0d9af48379f58e8

[2003] EWCA Crim 1324

EWCA_Crim_1324

2003-05-13

supreme_court

Case No: 200301112Z1 Neutral Citation No: [2003] EWCA Crim 1324 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM HIS HONOUR JUDGE POLLARD AT NOTTINGHAM CROWN COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 13 th MAY 2003 Before : LORD JUSTICE MANTELL MR JUSTICE ROYCE and HIS HONOUR JUDGE METTYEAR - - - - - - - - - - - - - - - - - - - - - Between : REGINA - v - DAVID STEPHEN WADSWORTH - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Case No: 200301112Z1 Neutral Citation No: [2003] EWCA Crim 1324 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM HIS HONOUR JUDGE POLLARD AT NOTTINGHAM CROWN COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 13 th MAY 2003 Before : LORD JUSTICE MANTELL MR JUSTICE ROYCE and HIS HONOUR JUDGE METTYEAR - - - - - - - - - - - - - - - - - - - - - Between : REGINA - v - DAVID STEPHEN WADSWORTH - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr R Mayo (instructed by Robinsons ) for the appellant Hearing dates : 30 April 2003 - - - - - - - - - - - - - - - - - - - - - JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS) His Honour Judge Mettyear: 1. On the 25 th November 2002 at the Crown Court at Nottingham the appellant pleaded guilty to manslaughter. He had been indicted for murder and this was the first occasion on which the Crown had intimated a willingness to accept a plea to the lesser offence. Sentence was adjourned until the 11 th February 2003, when His Honour Judge Pollard imposed an extended sentence of 8years, pursuant to section 85 of the Powers of Criminal Courts Act 2000. This was made up of a custodial term of 6 years and an extension period of 2 years. 2. He appeals against sentence by leave of Hidden J. 3. The Court finds the decision to offer acceptance of a plea to manslaughter a surprising one. It seems that it was a surprise to the defence as well. Mr Mayo, counsel for the appellant, has told us that no offer of such a plea had been made by the defence because they had believed it would not be acceptable. We have not heard from the Crown on this issue and it is possible that there were factors of which we are unaware which explain what happened. We are not, therefore, to be taken as criticising anyone involved in the case. We do, however, make the general point that in difficult and sensitive cases like this, where the decision on what plea to accept is finely balanced it is often better to leave the matter to the jury to determine rather than for the lawyers to come to an agreement between themselves. 4. The Court is also concerned about the manner in which the taking of the plea occurred. The father of the victim has written: “I would like to describe my feelings concerning the judicial process surrounding this case…My wife and I have been made aware….of the dates the defendant has appeared at court. In an attempt to spare the feelings of my family, we have not attended these preliminary hearings, intending to attend the trial proper when it was to be heard in full. This was important to us for the sake and memory of our precious son….However, we were informed on Monday 25 th November 2002, that the defendant had appeared at Nottingham Crown Court, on what we had been told would be a hearing to discuss timetables for the trial, and the judge had accepted a plea, by the defendant, of guilty to the lesser charge of manslaughter. We were extremely upset by this news a) because we would have attended for the sake and memory of our son….b) because it would have been courteous to have been given some warning that… the charge had been reduced”. We have no reason to doubt that this is anything other than an accurate account of what happened and the family’s reaction. It is a matter of deep regret that they have been left with this feeling. It is of great importance that those involved in the administration of justice do all they can to promote confidence in the system. Consideration for victims and their families and where possible consultation with them should be part of this process. 5. Despite the concerns expressed above we must and do accept for the purposes of this appeal against sentence that this was a case of manslaughter and the plea was properly accepted. We also accept that any criticism of the way matters developed in the Crown Court is not the fault of this appellant. 6. On the evening of the 24 th August 2002 Luke Richmond, who was 16 years of age, went out with friends to celebrate his GCSE results and the fact that he had obtained employment with a local engineering firm. He was a young man with much to look forward to in life. He came from a good family, who are naturally devastated by what happened to him that night. He has been described as likeable and pleasant. 7. Having spent the evening visiting a number of public houses Luke met up with his elder brother and they started to make their way home, stopping on the way to buy some food. As they did so they saw a group of youths behaving in a rowdy manner. This was about midnight. Amongst the group was the appellant. Sensing that these youths might seek trouble and wanting to avoid it Luke and his brother crossed the road to avoid them. 8. As they passed the group, the appellant was heard to say something like “let’s go and smack those lads”. Unfortunately, Luke needed to urinate and did so in a bush-lined gateway. As he zipped up his trousers the appellant approached him and punched him in the face. A second blow was delivered with such force that Luke was knocked to the ground. He hit his head on the road surface. It was later discovered that as a result of that conduct he had suffered a scalp injury, a scull fracture and fatal brain injury. Not satisfied with the two punches the appellant moved a few paces back from Luke, as he lay helpless on the floor and then ran back and kicked him hard to the head. 9. The following morning the appellant was arrested. His right hand was swollen and injured. To the police, in interview, he falsely claimed that this was an old injury caused at work. Whilst accepting that he had been at the scene of the incident he lied about his involvement in it. 10. The appellant was born on the 2 nd August 1985. He is therefore 17 years old. He had no previous convictions and had expressed remorse and regret for his actions. 15 character references and a letter from the appellant were considered by the judge. 11. Mr Mayo began before us by making what he accepted was a bold submission. He claimed that the judge should have dealt with the appellant by the imposition of a Detention and Training Order. The maximum period that can be imposed is 24 months. From that would have to be discounted a period for his plea of guilty and account would have to be taken of the period during which he had been remanded in custody. The comparatively short period that would be left would, in our view, be wholly inadequate to reflect the seriousness of the appellant’s conduct. 12. Mr. Mayo’s alternative submission was that the authorities indicate that the appropriate sentence should be less than 4 years custody. 13. In considering the authorities a good starting point is the decision of this Court in R v Morby (1994) 15 CR. APP. (S) 53. The appellant had pleaded guilty to manslaughter. He had been involved in a fight with the deceased and admitted that in the course of the fight he had punched and kicked. The cause of death was said to be a single blow either from a punch or a kick. The appellant was 27 years old. He claimed that the violence started as a result of a homosexual advance from the deceased. A sentence of four and a half years imprisonment was upheld. Having reviewed a number of authorities, including a number of those relied on by Mr. Mayo, Beldam LJ., giving the judgement of the Court, said: “In this case it has been urged upon us that the learned judge in fixing upon 5 years as the starting point started with manifestly too high a figure. Bearing in mind the observations in the cases we have been referred to, we are unable to take that view. We consider that the range of sentences which is disclosed by those reported cases in which, on the highest authority, the various cases were considered and reconciled show that unless there is some exceptional feature, which there was not in the present case, 5 years is a sentence that can properly be imposed for manslaughter of this kind”. 14. We recognise, of course, that there are many cases where sentences of a much shorter duration than the 5 years mentioned in R v Morby are appropriate. Perhaps the most common example being cases where two men willingly engage in a fight and one receives a punch, not necessarily a hard one, which causes him to lose his footing, fall, bang his head on a hard surface or object and sustain fatal injuries. R v Coleman (1992) 13 CR. APP. R. (S) 508 (a case cited in R v Morby ) is a good example of such a case. The facts were somewhat unusual. The head note reads: “The appellant pleaded guilty to manslaughter. The appellant was walking home with his cohabitee, when he encountered two men who were shouting abuse and obscenities, although not directed at the appellant. The appellant confronted the two men, and punched each of them once in the face. Both fell to the ground; one of them tripped over a kerbstone, fell backwards, fractured his scull and died shortly afterwards. The appellant admitted he had struck the blow to the police who arrived at the scene. Sentenced to 2 years imprisonment”. The judgement of this Court, on an appeal against sentence, was given by Lord Lane CJ. Having reviewed the authorities he said, “It seems to us, having done our best to reconcile these various decisions – manslaughter is in an area where reconciliation of decisions is by no means easy- that the starting point for this type of offence strictly confined, as we have endeavoured to confine it, is one of 12 months imprisonment on a plea of guilty”. In the event the appeal was allowed and the sentence reduced to 12 months. 15. Mr Mayo referred us to a number of other authorities dealing with similar incidents involving little violence, but grave consequences. We need not refer to them as Mr Mayo accepts that his strongest case is R v Coleman . 16. It must be emphasised that the present case is very different from the R v Coleman type of case. Here Luke Richmond was an entirely innocent victim who was actively seeking to avoid trouble of any sort. He was the victim of an unprovoked attack from the appellant who was, in the words of the sentencing judge, “spoiling for a fight”. 17. As well as cases when sentences of less than 5 years have been held to be appropriate there have been cases where longer sentences have been upheld. In R v Kime (1999) 2 Cr. App. R. 3 a sentence of 6 year was imposed for the manslaughter of an 80 year old man. The facts, taken from the head note, were, “The appellant was convicted of manslaughter on an indictment charging him with murder. The appellant was engaged in an argument with his girlfriend in a car park when he heard a group of people, including the victim, taking part in a jovial conversation. The appellant approached this group and asked the victim… whether he was laughing. He then punched the victim once or twice in the head….he was taken to hospital where he suffered a cardiac arrest and died. His death had been hastened by the shock and haemorrhage resulting from facial injuries caused by the punches, but he was suffering from heart decease and could have suffered a fatal episode at any time.” In giving the judgement of this court Rose LJ stated: “…that although the appellant was convicted of the offence after a trial he had indicated that he was prepared to plead guilty to manslaughter if it was an acceptable plea...” One of the features relied upon by the court in distinguishing the case from those deserving of lesser penalty was the behaviour of the victim. As the court said, “…he was minding his own business. Not only was he not engaged in any sort of aggressive conduct, he was not engaged in conduct of any kind vis-à-vis the appellant”. 18. In R v Rumbol (2001) 2 Cr. App. R. (S) 299 a sentence of 7 year imprisonment, after a trial, was reduced to 6 years in a case where a single punch knocked the victim to the floor fatally rupturing the vertebral artery. The court regarded the aggravating features as being that the appellant was a professional boxer and that the attack was not in the heat of the moment. The victim was wholly innocent and no provocation was present 19. In his submissions to us Mr Mayo contended that our attention should be focused only upon the punches and the head hitting the ground. He submitted that the kick to the head should be ignored as it was delivered after the fatal blow. We do not agree. At the very least it shows a lack of remorse for the punches already delivered which had injured Luke so badly that he lay defenceless on the ground. The kick was hard. The appellant described it as like taking a penalty kick. We regard the kick as a serious aggravating feature. 20. In his sentencing remarks the judge made reference to the prevalence of unprovoked attacks in the area concerned. He was keen to send out a message that those who chose to attack the innocent will face substantial punishment and that the consequences flowing from such attacks will be a significant consideration in determining sentence even if those consequences are not foreseen. 21. We regard the custodial element of the sentenced passed as towards the top end of the acceptable range. However, it is clearly not wrong in principle and we have not been persuaded, despite the strong personal mitigation, that it is manifestly excessive. So far as the 2-year extension period is concerned the learned judge in passing sentence said, “I am going to extend the licence period at the end of your sentence by a period of 2 years. That is to prevent the commission of any further offences by you and to ensure your rehabilitation in your community”. 22. Whilst we can understand why the learned judge took this course Mr Mayo has persuaded us that it is unnecessary. The appellant is a young man with no previous convictions and it is to be hoped that the substantial custodial period and the normal period of license will be enough to achieve the ends desired by the judge. 23. The result is that the appeal is allowed to the extent that we quash the extension period of 2 years.

2003_05_13-67.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2003/1324/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2003/1324

bf8815ca12180c43c40c66a0ce2996edd0570e5d6171af9582bc9d4b6f2555cc

[2010] EWCA Crim 2243

EWCA_Crim_2243

2010-09-17

crown_court

No: 201003302 D5 Neutral Citation Number: [2010] EWCA Crim 2243 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 17 September 2010 B e f o r e : LORD JUSTICE HOOPER MR JUSTICE FLAUX MR JUSTICE SPENCER - - - - - - - - - - - - - - Prosecution application for leave to appeal against a terminating ruling under s.58 Criminal Justice Act 2003 R E G I N A v F - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave Interna

No: 201003302 D5 Neutral Citation Number: [2010] EWCA Crim 2243 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 17 September 2010 B e f o r e : LORD JUSTICE HOOPER MR JUSTICE FLAUX MR JUSTICE SPENCER - - - - - - - - - - - - - - Prosecution application for leave to appeal against a terminating ruling under s.58 Criminal Justice Act 2003 R E G I N A v F - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 0207 404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - Mr S Uttley appeared on behalf of the Prosecution/Applicant Mr R Frieze appeared on behalf of the Defendant/Respondent - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE HOOPER: Flaux J will give the judgment of the court. 2. MR JUSTICE FLAUX: The respondent, F, faced trial at Leeds Crown Court before HHJ Grant on an indictment containing one count of outraging public decency contrary to common law. Before the trial commenced, it was agreed between the prosecution and the defence that the judge would be invited to make a ruling in relation to the application of the so-called two-person rule in cases of outraging public decency. The rationale for this was that there was no merit in calling evidence and having a submission of no case to answer at the end of the prosecution case if the merits of that submission were unlikely to be affected by the evidence called at trial. 3. On 16 June 2010 the matter came before HHJ Grant for determination of the question whether, on the basis that the evidence of Mrs Margaret Howard (the prosecution witness) stood in the form of her witness statement, the case would get past the end of the prosecution case on the current state of the law. 4. It is important to emphasise that, as was accepted by counsel on behalf of the defendant before us, Mr Frieze, and Mr Uttley of counsel, who appeared on behalf of the prosecution in this court although he did not appear before the learned judge, the case therefore proceeded before the learned judge on the basis that Mrs Howard's statement was effectively the agreed facts in the case and that there were no more facts. On that basis, having considered the statement and heard the argument, the learned judge then ruled that the two-person rule was not satisfied on that evidence and that the trial should not proceed. 5. The prosecution seek leave to appeal that ruling under section 58 of the Criminal Justice Act 2003 on the basis that it was a terminating ruling. The application was referred to the full court by the Registrar on the understanding that if the application were granted, the court would proceed to hear the appeal. We will grant leave to make this application and we have heard the appeal. 6. The circumstances of the incident which led to the indictment as described in Mrs Howard's witness statement are as follows. Mrs Howard's house is in a street with local playing fields on the other side of the road. The fields are used by local football teams of young boys aged about 6 to 8. On 1 July 2009 at about 6.15pm she was at home and could see that there was a football team of young boys training on the fields. She noticed a car pulling up and parking outside her house. She thought it was a parent who had arrived early to collect one of the boys, as the training session finishes at about 6.45. 10 or 15 minutes later she looked out of her bedroom window and saw the same blue car outside her house. 7. A man, later identified as the respondent F, was inside masturbating with his right hand and feeling his chest with his left hand. She says in her statement that while doing this people were driving down the road or had come out from their houses. At these points the male would turn to the passenger seat, picking up a sheet of paper that was the size of A3 folded in half, and opening the paper up to cover himself. When there was no more movement in the street he would continue to masturbate. During this whole incident the male, while masturbating, was watching the children playing football. 8. Later in her statement she says this: "This whole incident from me noticing what he was doing lasted about 10 minutes; from my bedroom window when I could see clearly what he was doing it was a distance of 18/20 feet. When observing the male I had a clear unobstructed view. I do not know this male. I think I would recognise this male again." 9. This was the only evidence the court had of the respondent masturbating and ceasing to masturbate was during the period that Mrs Howard was observing him - that is to say that ten-minute period. 10. In making his ruling that the two-person rule was not satisfied in this case, the learned judge referred to and applied the law on this point as most recently expounded by Thomas LJ in the judgment of this court in R v Hamilton [2007] EWCA Crim 2062 . After a detailed and careful analysis of all the cases, particularly the 19th century cases as elucidated by the more modern cases, Thomas LJ identified the two elements of the offence of outraging public decency. The first element concerns the nature of the Act and the need for proof that it was of such a lewd, obscene or disgusting character as to outrage public decency. It was not in dispute in the present case that this element was satisfied. The debate centred on the second element, the so-called public element, in relation to which Thomas LJ said this at paragraph 31 of the judgment: "31. As to the second element - the public element - its precise ambit was the principal issue discussed in most of the cases. i) We accept that the public element first requires that the act done in a place to which the public has access or in a place, as set out in Walker where what is done is capable of public view. The filming by the appellant was done in a supermarket – a place to which the public had access – and in a place where what was done was capable of being seen. On either basis this part of the public element was satisfied. ii) The public element is not, however, satisfied unless the act is capable of being seen by two or more persons who are actually present, even if they do not actually see it (what is conveniently described by Rook and Ward as the two person rule). It was the scope of the two person rule that was the subject to which the submissions in this appeal were principally directed." 11. Later in his judgment at paragraph 39, Thomas LJ expanded on that point, having dealt with the further argument in the subsequent cases, by saying this: "The public element in the offence is satisfied if the act is done where persons are present and the nature of what is being done is capable of being seen; the principle is that the public are to be protected from acts of a lewd, obscene or disgusting act which are of a nature that outrages public decency and which are capable of being seen in public. As was pointed out in Bunyan and Morgan, a person committing such an act may wish as much privacy as possible, if there is a possibility of them being discovered in public, it would nonetheless be an offence." 12. In applying the second part of this public element, the so-called two-person rule, the learned judge in the present case concluded that it was not satisfied in these terms at pages 19 to 20 of the transcript: "... it is perfectly plain from the evidence of ... Margaret Howard, which is the only evidence which the Crown have, that when people other than herself were seen to be present by her, on each occasion that that occurred the defendant stopped indulging in the act and covered himself with a sheet of paper that was clearly placed on the seat next to him for that purpose. And it seems plain to me that although these people were present, they were not capable of seeing the act in which he was indulging because on each of the occasions that they were observed to be present by ... Mrs Howard, he ceased the act in which he was engaged and covered himself up. So ... the evidence available, therefore, does not in my view satisfy the requirement that at least two people are present and capable of seeing the nature of the act and being affected by it." 13. In our judgment, given that there is no question of the learned judge having failed to apply the law correctly as set out in Hamilton , the only basis upon which we could reverse this ruling would be if we were of the view that that conclusion was a conclusion that no reasonable judge could reach. 14. It seems to us that, although we ourselves would not, in the particular circumstances of this case, have necessarily gone down this route given that the question of whether or not people passing by might have seen what the defendant was doing was quintessentially a question for the jury, the fact is that here, for better or worse, both parties agreed to proceed on the basis of what were, in effect, agreed facts. 15. It seems to us that, on the basis of those agreed facts as set out in Mrs Howard's witness statement, and although if one were standing back and looking at this generally one might say that there was an element of unreality to the suggestion that nobody else could have seen the defendant masturbating, the fact is that Mrs Howard's evidence is that whenever there was anybody else hoving into view, the defendant covered himself. Therefore, for us to seek to go behind those agreed facts and to say that there must have been a possibility of people seeing the defendant masturbating would amount to impermissible speculation. 16. It follows that, on the basis on which both parties proceeded, there are no grounds for overturning the learned judge's ruling and we dismiss this appeal. 17. MR UTTLEY: My Lords, in relation to the matter, section 61(3) of the Criminal Justice Act 2003 states that where the Court of Appeal confirms the ruling, it must in respect of the offence or each offence which is subject of the appeal order that the defendant in relation to the offence be acquitted of that offence. 18. LORD JUSTICE HOOPER: We so order. 19. MR UTTLEY: I am grateful, my Lords. 20. LORD JUSTICE HOOPER: Anything more, Mr Frieze? 21. MR FRIEZE: No, thank you. I believe that the defendant's representation is covered by the Crown Court order because it is still part of the trial. 22. MR JUSTICE FLAUX: If it is necessary to have a representation order, we will make one. 23. MR FRIEZE: Thank you.

2010_09_17-2503.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/2243/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/2243

633f8a74f6eab52e43eb35e60b30750631e87095d56df6eb6ea619f729bc4ce0

[2009] EWCA Crim 379

EWCA_Crim_379

2009-02-20

crown_court

No: 200806497 A5 Neutral Citation Number: [2009] EWCA Crim 379 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 20th February 2009 B e f o r e : LORD JUSTICE HOOPER MR JUSTICE LLOYD JONES MR JUSTICE CRANSTON - - - - - - - - - - - - - - - - R E G I N A v KARL GREAVES - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Te

No: 200806497 A5 Neutral Citation Number: [2009] EWCA Crim 379 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 20th February 2009 B e f o r e : LORD JUSTICE HOOPER MR JUSTICE LLOYD JONES MR JUSTICE CRANSTON - - - - - - - - - - - - - - - - R E G I N A v KARL GREAVES - - - - - - - - - - - - - - - - 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 Cane-Soothill appeared on behalf of the Appellant - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE HOOPER: This appeal against sentence is dismissed for reasons to be given by Mr Lloyd Jones. 2. MR JUSTICE LLOYD JONES: On 16th October 2008 at the Crown Court at Doncaster, the appellant was convicted on one count of robbery. 3. On 27th November 2008, he was sentenced by Mr Recorder Foster to an extended sentence of 11 years pursuant to section 227 of the Criminal Justice Act 2003 , comprising a custodial term of seven and a half years imprisonment and an extension period, that is an extended period of licence, of three and a half years with 222 days spent in custody on remand to count towards the sentence. He now appeals against sentence by leave of the single judge. 4. The complainant, Mr Wolonciej was 87 years of age. He lived alone in a self contained, warden controlled, ground floor flat in Doncaster. At about 1.00 pm on 1st April 2006, as he approached the communal entrance to this sheltered accommodation, the appellant asked him for a glass of water. The claimant agreed and the appellant waited at the communal entrance just inside the door. When the complainant returned with the glass of water, the appellant, without provocation, punched him to the face and knocked him to the floor. The appellant then searched the complainant's jacket and took his wallet which contained over £30 in cash and a family photograph. As the appellant went to leave, the complainant got up and struck him with his walking stick. 5. The complainant said in his statement that he suffered cuts and bruises to his right arm, bruising to his left wrist and soreness to right side of his back. He said that the offence had made him angry. He had tried to be neighbourly and the appellant had abused his trust. 6. The claimant's daughter said in her statement that in the two years since the robbery, her father had deteriorated physically and mentally. He used to walk to town often twice a day, but following the robbery he stopped doing this. He felt vulnerable and had lost his confidence. On 2nd July 2008, the claimant died from lung cancer. 7. The appellant's fingerprint was recovered from the glass of water. He was arrested. He said he had been playing football and had been making his way to a friend's house to get a shower. The claimant saw him and asked whether he wanted a glass of water. The appellant's account was that the claimant had stroked his hand and made him feel uncomfortable. He said that the complainant then offered him whisky which he refused. He said that the complainant then flipped and attacked him with a walking stick. The appellant then left. 8. This appellant was born in the 1973 so he was 35 years of age. He has 16 previous convictions for 25 offences. The majority are for theft and burglary. They include one offence of actual bodily harm against his year old daughter committed in 1994 and one of robbery committed in 1996 during which he broke a man's jaw. 9. The Pre-Sentence Report indicated that at the time of the offence the appellant had been subject to probation supervision having been released from prison on 27th September 2007 from a sentence imposed for offences of burglary. The appellant, even after conviction, remained adamant that he did not commit the offence and complained that he was being stitched up. The author of the report observed that the appellant demonstrated a lack of respect for the law and for the victim. His inability to think about his own actions illustrated the fact that he did not think about the long term consequences of his offending. He lacked the skills needed to prevent him from re-offending. He had developed an established pattern of acquisitive offending and resorted to any means necessary, including violence, in order to satisfy his need for money. 10. At the time of the offences he was clearly affected by his lapse into drug misuse. The offence was part of an established pattern of offending but not an escalation. There was, in the author's view, a high risk of re-offending. The majority of his previous offending had been to fund his use of heroin, cocaine and amphetamine. There was, in the author's view, a high risk of causing serious harm to the public. 11. In sentencing the appellant the judge observed that he had a long and depressing history of offending. The offence was far too serious to be dealt with in any other way other than by a custodial sentence. A life sentence or a sentence of imprisonment for public protection were not necessary but an extended sentence was. The judge observed that were this to have been a personal robbery in the home, the sentencing range would have been 13 to 16 years. 12. The greatest assistance to the appellant, in the judge's view, came from guidelines in relation to street robbery or mugging. He considered that this offence was akin to a very aggravated street robbery, aggravated by the fact that this was a very vulnerable complainant and that he had used the cynical device of asking for a drink. There was some violation of the complainant's home but not as great as in many cases. 13. Before us, Mr Cane-Soothill simply submits that whilst this was clearly a serious offence, the sentence was manifestly excessive. 14. Robbery is a specified offence for the purpose of the dangerousness provisions of the Criminal Justice Act 2003 . The judge was required to consider whether there was a significant risk to members of the public of serious harm occasioned by the commission by the appellant of further specified offences. He concluded that there was. In coming to this conclusion he referred to the Pre-Sentence Report in which the author had assessed the risk of his causing serious harm to be at a high level. In this regard the author had referred in particular to his conviction in 1994 for assault occasioning actual bodily harm against his one year old daughter and a conviction for robbery in 1996 in which the victim suffered a broken jaw. Although these convictions were a considerable time ago, the judge concluded that the appellant satisfied the test of dangerousness. In our view, he was clearly entitled to do so. 15. We have considered the Sentencing Guideline Council's Definitive Guidelines in relation to robbery. It appears to us that this case falls within the second category. It is a case where force was used which resulted in injury to the victim. In the case of adult offenders the starting point for this category is four years custody and the sentencing range is two to seven years custody. 16. However, there are present in this case a number of grave aggravating features. The victim was very vulnerable, he was 87 years of age and living in sheltered accommodation. He was clearly targeted by the appellant. The victim was attacked not, we accept, within his home but nevertheless within its immediate precincts. I have referred to the statement by the victim's daughter in which she linked the deterioration in Mr Wolonciej's health, which followed this attack, with the attack itself. The point is made by Mr Cane-Soothill that there was no medical evidence to link the two and that this may simply have been a coincidence. However, she also referred in that statement to the loss of confidence which followed this attack which was undoubted. We also bear in mind in this regard that this appellant had a number of recent convictions for dwelling house burglary and that he was still under supervision at the time he committed this offences. 17. In support of his submissions, Mr Cane-Soothill has drawn our attention to two decisions of this Court. In Buck (Cameron) [2001] Cr.App.R. (S) 42 the Court considered the appropriate sentences in cases where old ladies have been targeted and robbed after collecting their old age pensions. There an old lady had been dragged off the highway into a driveway in order to rob her. The court indicated that a sentence of the order of five years was appropriate. 18. In Attorney General's Reference No. 114 of 2005, (Nicky Smith) [2006] 2 Cr.App.R (S) 90 the Court was concerned with a robbery involving the use of a claw hammer and a kitchen knife. The attack was on an elderly man in his home. In that case, a community sentence was held to be unduly lenient. The court indicated that a sentence of at least five years would have been expected. Allowing for double jeopardy the court substituted a sentence of four years imprisonment with concurrent sentences of 12 months imprisonment for the possession of offensive weapons. 19. However, we have found greater assistance from a more recent decision of this Court: Attorney General's References Nos. 38, 39 and 40 of 2007 (R v Campbell) [2007] EWCA Crim 1692 [2008] 1 Cr.App.R (S) 319. There, the Court placed particular emphasis on the aggravating feature that the robbery took place in the victim's own home. The facts there were that the victim was an elderly man. The first offender aged 30 went to visit him. The victim knew the first offender and admitted him to the flat. The second and third offenders, who were aged 20 and 21, accompanied the first offender and were also admitted to the flat. With the aid of weapons, the victim was threatened and demands were made to hand over money. The first offender went to the bedroom and ransacked it. At one stage the second offender struck the victim with his fist and caused the victim to fall backwards into his chair. The victim's partner sustained two punches. The offenders left, when challenged, having taken a quantity of electrical items including DVD players and mobile telephones. Eight days later the victim complained of a pain in his head. He was admitted to hospital for a brain scan. The scan showed that blood had collected within his skull and had been compressing his brain. He died that evening. 20. All three offenders pleaded guilty at the first opportunity to two counts of robbery. The second offender also pleaded guilty to manslaughter. The second offender had no previous convictions, the first offender had 34 and the third offender had seven. Both the first and third offenders had been in prison before for burglary. The judge sentenced the first offender to two years and nine months imprisonment, the second offender to two years and six months detention in a Young Offenders' Institution for the robbery count and three years and six months to be served concurrently for the manslaughter count. He sentenced the third offender to two years and six months imprisonment. The Attorney General applied for leave to refer the sentences to the Court of Appeal as unduly lenient. 21. This court concluded, having regard to the guidelines, that the offences could be classified under category two, with the additional aggravating feature that the robberies had taken place in the victim's home. On that basis, and taking into consideration the relevant authorities, an offender with no previous convictions following a trial should be sentenced to be a term of imprisonment in the region of seven to seven and a half years. In that case, the appropriate term for all three offenders, in the light of their individually aggravating circumstances, was in the region of eight to eight and a half years for the offence of robbery. 22. Having regard to this decision, we consider that it simply is not possible to criticise the sentence passed by the judge in the present case. The custodial term and the extended licence period were clearly justified. For these reasons we would dismiss the appeal.

2009_02_20-1833.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/379/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/379

57b59162867976e4df7ed779d6decd1b055cfb4096a780274c7c5cbdd7f6339f

[2008] EWCA Crim 2835

EWCA_Crim_2835

2008-09-02

crown_court

Neutral Citation Number: [2008] EWCA Crim 2835 No: 200802952/C1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London. WC2A 2LL Date: Tuesday. 2nd September 2008 Before: LORD JUSTICE LAWS MR JUSTICE JACK SIR CHARLES GRAY - - - - - - - - - - - - - - - - - - - - - REGINA v O - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 0

Neutral Citation Number: [2008] EWCA Crim 2835 No: 200802952/C1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London. WC2A 2LL Date: Tuesday. 2nd September 2008 Before: LORD JUSTICE LAWS MR JUSTICE JACK SIR CHARLES GRAY - - - - - - - - - - - - - - - - - - - - - REGINA v O - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr P Carter QC & Miss P Chandran appeared on behalf of the Appellant Mrs N Byrd appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - JUDGMENT 1. LORD JUSTICE LAWS: This is an unopposed appeal against conviction brought before the court by leave granted by Cox J on 26th June 2008. As will shortly appear the circumstances of the case are very troubling and, we hope, no less unusual. 2. On 17th March 2008 at the Canterbury Crown Court before Her Honour Judge Adele Williams, this appellant pleaded guilty to an offence of possessing a false identity card with the intention of using it as her own and was sentenced to 8 months' imprisonment less 16 days spent on remand. 3. The appellant had been arrested shortly after midnight on 29th February 2008 at the Dover Docks. She was on board a coach which was departing the United Kingdom bound for France. At French passport control in Dover she was asked for identification and she handed over a Spanish identity card in the name of Rosalia Majeda Segura, date of birth 10th November 1976. It was plain to the officer that the appellant did not resemble the woman on the photograph in the card. The police were called. The appellant insisted at that time that the identity card was hers. She said her name was Rosalia and she was 31. The arresting officer was to describe her as "a very young small black woman". On arrest she was taken to Dover police station where she persisted in giving the same details. However, at interview in the morning she admitted that the identity card was not hers. She gave her correct name and stated that she was a Nigerian national and had entered the United Kingdom about 2 months before on her own passport. She said that she was trying to get to France to see her uncle. She had lost her passport when her handbag had been stolen and she had obtained the false identity document from a friend. She gave a birth date in 1985. The Kent police custody record and charge sheet both give 10th December 1985 as her date of birth. 4. Entries in the custody record show that the officers had great difficulty understanding her, though she apparently stated that English was her first or her only language. There is also a comment at 1.28 am: "She appears to be very young and possibly juvenile." 5. Between 29th February 2008 and her plea of guilty in the Crown Court on 17th March 2008, her legal representatives obtained information from her on various occasions. In particular on 12th March 2008 she gave her date of birth as 10th December 1991, which would make her 16 though she said she was 17. She said that she had come to England with her boyfriend to escape from her father, who would kill her if she did not submit to an arranged marriage in Nigeria to a 63-year-old man who had five wives already. Once here she said she was "given to be a prostitute" and she ran away to avoid that. She said that she spoke the Edo language as well as broken English. 6. Also on 12th March 2008 the appellant's solicitors contacted the Crown Court to notify them that an interpreter would be required. The court officer said that would be difficult to arrange. At all events no interpreter was present at court on 17th March 2008, nor had there been one at the police station nor at any of the meetings between the appellant and her legal advisers. 7. Again on 12th March 2008 the appellant's solicitor was telephoned by a social worker from what is called "The Poppy Project". This is part of an organisation known as Eves Housing for Women. It was set up in 2003 and is funded by the Ministry of Justice. It supports vulnerable women who have been trafficked into England and forced into prostitution. The social worker suggested seeking an adjournment of the proceedings so that a member of The Poppy Project's outreach team could visit the prison and make an assessment of the appellant. The appellant remained in custody until bailed by Cox J on 26th June. 8. The brief that was delivered to counsel for the defence enclosed a letter from the Poppy social worker, and stated in terms that: "The Poppy Foundation allege that the defendant is a victim of a sex trafficking organisation". 9. There is an attendance note of what took place at the Crown Court on 17th March 2008. It was presumably prepared by the appellant's solicitor. It records a meeting with the client and counsel in the cells at court. It states that the appellant told her representatives that she discovered that payment for her trip to England was to be made by prostitution. The attendance note also includes this: "She makes no mention of the Witch Doctor in Nigeria or any of the information provided by the Poppy Project. As such, we are to deal with her on her instructions and her instructions alone." 10. At the hearing, after prosecuting counsel had opened the case very shortly, defending counsel first indicated to the judge that the appellant was 17. He then proceeded as follows (transcript page 3E): "As my learned friend stated, she travelled to this country legally with a passport and Visa, fleeing her village where her father wished for her to partake in an arranged marriage with a 63-year-old man. Her father would then receive some land. She did not wish to go through with that but was threatened by her father if she did not and he said he would kill her. So she came to this country really on credit, having been told that she would have work available to her when she arrived to repay her travel debt. That work involved prostitution. It was not something that she was prepared to go along with, and having no family in this country but an uncle in Paris, having lost her documentation and being scared that if she went to the police, she would simply be returned to Nigeria, she sought sanctuary in France and foolishly undertook to use a false instrument. [THE JUDGE]: Was she on the coach going to France? [COUNSEL]: Yes, and that is where she was stopped. She appreciates that it was wrong, but she had not appreciated the seriousness of these offences. Your Honour, I would ask that the inevitable prison sentence be kept to a minimum and the days so far served count against that sentence." 11. The first ground of appeal is the want of an interpreter. It is plain that there were some difficulties in understanding the appellant and she is clearly not literate in English or it seems at all. However, letters from her then solicitor confirmed that having met her on 1st March and 5th March 2008, he "was satisfied that she understood and spoke sufficient English without the necessity of finding an Edo interpreter." Apparently, she told the solicitor that for bail purposes she could come and live at his address and "be his daughter". Trial counsel for the defence, for his part, states that at first he had difficulty in following what she was saying but, "taking her account in stages", as he put it, it was quite possible to do so. At no time did she appear to have any difficulty understanding what he was saying to her. It is clear that the appellant has a strong accent which has presented some difficulty in following what she says. The solicitor's attendance notes, however, apparently record her instructions without any equivocation. 12. While we acknowledge that the representatives were sufficiently concerned at one stage to inquire of the court as to the availability of an interpreter, we do not consider in all the circumstances that the absence of an interpreter has of itself undermined the fairness of the proceedings or the safety of the conviction. We would not allow the appeal on this ground. 13. There are, however, much graver matters to consider. The second ground of appeal invokes the Council of Europe Convention on Action against Trafficking in Human Beings (Council of Europe Treaty Series 197/1975). A prime purpose of this Convention is to protect the human rights of the victims of trafficking. Article 10 requires the States Parties to identify and protect victims of trafficking. It is clear that the particular focus of the Convention is the protection of trafficked children: Article 10(3) provides that where the age of a victim is uncertain, and there are reasons to believe that he or she is a child (that is a person defined as someone under 18 (Article 4D)) then he or she is to be presumed to be a child. 14. The United Kingdom is a signatory to this Convention but has not ratified it. As Mr Carter QC for the appellant has pointed out in his written grounds, the United Kingdom is accordingly obliged by Article 18 of the Vienna Convention on the Law of Treaties to refrain from acts which would defeat the object and purpose of the Trafficking Convention. In fact it is submitted that the United Kingdom has taken some measures expressly to support that purpose. There is not only the creation of criminal offences of trafficking (see sections 57 and 58 of the Sexual Offences Act 2003) , but also the terms of two protocols: (i) on prosecution of defendants charged with immigration offences who might be trafficked to victims; and (ii) on prosecution of young offenders charged with offences who might be trafficked victims. These protocols are, we understand, both incorporated into the Code for Crown Prosecutors. 15. Under the first protocol, where a "credible" trafficked victim is prosecuted for an immigration offence, which includes possession of a false identity document, prosecutors are required to consider whether the public interest is best served in continuing the prosecution. The prosecution should set in hand appropriate enquiries into the question whether the person has in fact been trafficked and review the case. In the case of young defendants the Code says this: "Where there is clear evidence that the youth has a credible defence of duress, the case should be discontinued on evidential grounds. Where the information concerning coercion is less certain, further details should be sought from the police and youth offender teams, so that the public interest in continuing a prosecution can be considered carefully. Prosecutors should also be alert to the fact that an appropriate adult in interview could be the trafficker or a person allied to the trafficker. Any youth who might be a trafficked victim should be afforded the protection of our child care legislation if there are concerns that they have been working under duress or if their well being has been threatened. In these circumstances, the youth may well then become a victim or witness for a prosecution against those who have exploited them. The younger a child is, the more careful investigators and prosecutors have to be in deciding whether it is right to ask them to become involved in a criminal trial". 16. It is submitted for the appellant that the court's duty to protect the rights guaranteed by the European Convention on Human Rights should promote an approach to cases such as this which respects the Trafficking Convention. More straightforwardly, in our judgment, a question arises as to what should be the impact of these provisions in the Code for Crown Prosecutors, to which we have referred, in the light of the Convention's provisions. It will be convenient to consider this question compendiously with the other grounds of appeal. 17. We turn to the third ground of appeal. This is that the appellant may well have been entitled to rely on the defence of duress, on the footing that victims of trafficking are known to be at risk of physical violence if they seek to escape or obtain official help. This possibility should have been investigated, it is said, by the appellant's lawyers. Since it is a real and not a fanciful possibility the conviction must be regarded as unsafe. Again, we will consider this along with the other grounds. 18. Of these the fourth ground of appeal concerns the appellant's age. It was submitted to the Crown Court, as we have shown, that she was 17. Given the date of birth she had supplied (10th December 1991), she might have been no more than 16. Aged 17 or under, she should have been proceeded against, if at all, in the Youth Court. The case should not have been sent to the Crown Court. The court was obliged to enquire into the appellant's age (see section 99(1) of the Magistrates' Courts Act 1980) . Where such enquiry has been made and the court makes a finding: "The order of judgment of the court shall not be invalidated by any subsequent proof that the age of that person has not been correctly stated to the court, and the age presumed or declared by the court to be the true age of the person so brought before it, shall, for the purposes of this Act, be deemed to be the true age of that person." Here there was no such enquiry. It is perhaps unnecessary to enter into the nice question whether, absent such an enquiry, an erroneous assumption by the court as to the defendant's age might be fatal to its jurisdiction to entertain the proceedings. Here the court was in fact told that the appellant was 17. It made no further enquiry. There was no consideration of any kind given to any need to protect the appellant as a child or young person. That is a serious state of affairs in respect of any technicalities arising in the context of section 99(1) . We shall have more to say about it. 19. Grounds 5 and 6 are to the effect that the appellant's lawyers took no proper steps to appreciate her possible position as a victim of trafficking and a child or young person. Indeed they did not. On 17th March 2008 they determined to proceed without regard to any input from The Poppy Project. They failed entirely to consider whether she might have been a victim of trafficking, or what might have been the consequences of her age, if it was 16 or even 17 as stated. A note from trial counsel shows that he was unaware of the protocols to which we have referred; so it seems was his instructing solicitor and, if the prosecutor or his instructing solicitor from the Crown Prosecution Service was aware of them, they took no steps to act on them once reference had been made to the possibility that this appellant had been put to prostitution. 20. Mr Carter this morning has told us that the protocols (incorporated, as we have said, into the Code for Crown Prosecutors) make no appearance in either of the standard Criminal Law textbooks, Archbold and Blackstone. We earnestly hope that that omission will swiftly be corrected. 21. The seventh and last ground of appeal is not a ground of appeal at all but an application to admit fresh evidence in three categories: (i) a report by The Poppy Project prepared after the trial date, 17th March; (ii) the file of the trial solicitors; (iii) correspondence between the appellant's present solicitors and trial lawyer. We doubt whether we need the third of these. We have already referred to some of the materials contained in the second and that file is plainly rightly admitted before us under section 23 of the Criminal Appeal Act 1968 . 22. The report from The Poppy Project is dated 23rd June 2008. It is written by Ishah Jawaid, a senior outreach worker for The Poppy Project. It shows that, after the appellant's conviction and sentence on 17th March 2008, she was assessed by another senior outreach worker, who identified her as a victim of trafficking. A detailed history was at this stage obtained from the appellant. It is set out in the report. According to what she said, she was brought to the United Kingdom by a man called Osas, who insisted she would have to pay 60,000 Euros. In the United Kingdom she was installed in a flat with a woman called "Kate". She was threatened and raped by a man there. Before that she was a virgin. Kate told her that she would have to work as a prostitute in order to repay Osas; and she was forced to do so three days after she had been raped and thereafter for over a month before she escaped. The report, which is clearly carefully written in moderate and objective terms, makes horrifying reading. We admit it as fresh evidence on this appeal. 23. As we indicated at the outset, the Crown did not oppose the appeal. They made that plain before Cox J who gave leave on 26th June. On that occasion Cox J said this at transcript paragraph 1.6: "...having heard from Mr Carter QC today, it is clear that those representing the appellant wish to seek guidance from this court in relation to the issues which have arisen very starkly on the facts of this case concerning the trafficking of this appellant for sexual exploitation. For this reason, I have asked, and I agree, that the perfected grounds should all be considered by the full court at the hearing of this appeal." We have not accepted the ground of appeal concerning the absence of an interpreter. 24. It is convenient to deal with the other grounds compendiously. There was in this case material before the defence which should plainly have raised at least the apprehension that this appellant had been trafficked to the United Kingdom for the purposes of prostitution. The defence had information from her suggesting that she was at most 17, as counsel indeed submitted to the court, and perhaps only 16. From the custody record the Crown should have appreciated that she might have been a very young person. 25. No steps were taken by the defence to investigate the history. No consideration was given by the defence as to whether she might have a defence of duress. The possibility that she might have been trafficked was ignored. There is nothing in the transcript to suggest that any thought had been given to the State's possible duty to protect her as a young victim. Nobody considered that if she was 17 or less, she should not have been in the Crown Court at all. Counsel for the defence thought it right to refer to "an inevitable prison sentence". The judge passed what she described as an "inevitable prison sentence" of 8 months. If the appellant was 17 or less, a sentence of imprisonment as such was unlawful. For good measure the judge sentenced her without a report. 26. This appeal against conviction must obviously be allowed. We would put it most simply on the footing that the common law and Article 6 of the European Convention on Human Rights alike require far higher standards of procedural protection than were given here. There was no fair trial. We hope that such a shameful set of circumstances never occurs again. Prosecutors must be aware of the protocols which, although not in the text books are enshrined in their Code. Defence lawyers must respond by making enquiries, if there is before them credible material showing that they have a client who might have been the victim of trafficking, especially a young client. Where there is doubt about the age of a defendant who is a possible victim of trafficking, proper inquiries must be made, indeed statute so required. All this is obvious. It marches with what was said by the report of a joint Committee in the House of Lords and House of Commons on human trafficking published in October 2006 (see in particular paragraphs 134 and 159). We hope that this case serves as a lesson to drive these messages home. 27. For all those reasons then the appeal is allowed. An order by Cox J preserving the anonymity of the appellant will be maintained in being. 28. LORD JUSTICE LAWS: Mr Carter, outside court, check with the interpreter that the appellant has understood what has transpired. 29. MR CARTER: Indeed I will. Whilst your Lordship was out, I made sure that she understood what the consequences of the court's order were to be, and she confirmed that she did. Thank you very much for everything that has taken place today. 30. LORD JUSTICE LAWS: Nothing else arises? 31. MR CARTER: I think not, my Lord.

2008_09_02-1642.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/2835/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/2835

66293599d75f2c084223d084e95e304c8f3ec8ee2f674916b3d654c77389484a

[2010] EWCA Crim 2538

EWCA_Crim_2538

2010-10-19

crown_court

No. 2010/03824/A9 Neutral Citation Number: [2010] EWCA Crim 2538 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2 Tuesday 19 October 2010 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) MR JUSTICE IRWIN and MR JUSTICE HOLROYDE - - - - - - - - - - - - - - - - ATTORNEY GENERAL'S REFERENCE No. 51 of 2010 UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A - v - GORDON LAXTON - - - - - - - - - - - - - - - - Comp

No. 2010/03824/A9 Neutral Citation Number: [2010] EWCA Crim 2538 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2 Tuesday 19 October 2010 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) MR JUSTICE IRWIN and MR JUSTICE HOLROYDE - - - - - - - - - - - - - - - - ATTORNEY GENERAL'S REFERENCE No. 51 of 2010 UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A - v - GORDON LAXTON - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4A Telephone No: 020 404 1400; Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - Mr S Denison QC appeared on behalf of the Attorney General Mr R Onslow appeared on behalf of the Offender - - - - - - - - - - - - - - - - J U D G M E N T Tuesday 19 October 2010 THE LORD CHIEF JUSTICE: 1. This is an application by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court a sentence which he considers to be unduly lenient. We grant leave. 2. The offender is Gordon Laxton. He is now aged 52. He is subject to significant disabilities. He has no previous convictions. The offences were committed some years ago. 3. On 20 April 2010, in the Crown Court at Southampton, he pleaded guilty to six counts of indecent assault contrary to section 14(1) of the Sexual Offences Act 1956 . Four of those counts related to offences committed between 1980 and 1985 against his cousin, then a girl aged from 7 to 11 years. The indictment asserted that she was a girl under the age of 13 which was then of relevance to the maximum sentence. The other two counts related to offences committed between 1988 and 1994 against his niece, when she too was aged from 7 to 12 years old. On 18 June 2010 His Honour Judge Hooton imposed a Community Order with a supervision requirement for three years. A Sexual Offences Prevention Order was imposed to run indefinitely, the precise details of which have no bearing on the Reference. The offender was also made subject to the requirements of the Sex Offenders Register. 4. As a result of brain damage sustained at birth, the offender was markedly impaired in his mental development. That said, he had been in full-time employment for some thirty years. He has also suffered from poor eyesight, which has deteriorated in recent years. He is now registered blind and has been unemployed for the last seven years. 5. Between 1980 and 1985 he acted as a babysitter for his much younger cousins most weekends in their home. One of them was "S". Over the period when she was aged between 7 and 11 she was sexually assaulted by the offender on numerous occasions. The precise details do not require ventilation in open court. They included assaulting her by rubbing her vagina with his hand, first outside her clothes and then in direct contact by pulling aside her knickers. Gradually this process, which in someone with a higher intelligence quotient and insight would be described as grooming, progressed so that by the time she was 10 the offender regularly removed her knickers and digitally penetrated her. On two occasions he removed her nightie and her knickers, held her on top of him and moved her up and down so that his naked penis came into contact with her vagina. The assaults came to an end when S's older sister became old enough to act as a babysitter, and so the offender was no longer needed in that capacity. 6. Between 1988 and 1994, when he was aged between 30 and 36, the offender's nieces, L and her sister, regularly went to stay at his home where he lived with his mother, the grandmother of the two girls. On many occasions when L was aged between 7 and 12 she was assaulted by the offender in much the same way as S had been. The assaults stopped when her sister saw something of what was going on and told her mother about it. 7. There followed a family meeting and a discussion about what had happened. The family meted out its own punishment. Since 1994 very close attention has been given to ensure that the offender had no contact with young girls. 8. The brain injury which the offender suffered at birth occurred when the umbilical cord became stuck around his neck. There was significant retardation of his mental development. He attended special schools until he was 16. He then obtained modest employment with Ordnance Survey as a messenger, where he worked for very many years until his eyesight deteriorated. Apart from when he was away at school, he has always lived with his mother at her home in Southampton. 9. The counts to which the offender pleaded guilty were sample counts. Count 1 (a sample count) related to S, when the offender rubbed her vagina. Count 2 (another sample count) related to digital penetration of S's vagina. The third count (count 7) related to a specific occasion when S was 8 years old and the offender laid her on top of him and rubbed his penis with her vagina. The fourth count (count 8) related to a specific occasion when a similar allegation was made when she was 9 years old. It is important to our approach to this case to emphasise the long period over which the sexual activity occurred and the numerous occasions when the girl was subjected to it. 10. S is now a mature woman. In her victim impact statement she says that she will carry the scars of what happened to her for the rest of her life. She describes a childhood of fear, upset and vulnerability. She only felt safe with her mother. She wanted to be with her mother, but the family arrangements did not permit that. Because nobody knew about the indecency, nobody was in a position to do anything about it. S felt unable to complain. When she was 11 years old she made an attempt on her own life. Now, as an adult, she is a single mother out of choice because she does not trust any man to have any opportunity to ruin the lives of her children the way her own life was, as she sees it, ruined by the offender. It is plain that what she suffered at the hands of the offender has affected her life in a most damaging way. She says: "I will never be the person that I should have been. .... It [the abuse] has affected every aspect of my life. I will never be free from the memories, nightmares and horrendous legacy of this abuse." 11. The situation with L is much the same. Count 10 (a sample count) related to the offender touching her vagina on many occasions. Count 12 (a sample count) related to two occasions when he lay her on top of him and rubbed his penis against her vagina. 12. In her victim impact statement L (now an adult) describes how she lived a long and lonely silence because she found it very difficult, and continues to find it difficult, to share with others the extent of the emotional trauma that she endured. In her statement she describes how as a child she would be tearful, upset and withdrawn. She would lie in her bed at night crying, trying to suppress her tears so that nobody would hear her. She did not feel that she could turn to anyone for help because she was being molested by someone who was regarded as a trusted member of her family. She has suffered panic attacks and migraines which have continued throughout her life. Although she recognises that she is fortunate that with her loving partner she has three children, the abuse she suffered still continues to haunt her. 13. Full investigations have been made as to the extent of the offender's mental problems. A forensic psychologist was asked by those acting for the offender to assess his intelligence and his suggestibility. The result of verbal and non-verbal intelligence tests produced a score which would have put the offender in the bottom one per cent of the population. The conclusion expressed by the psychologist is that the offender "is an extremely limited individual who probably has a mental age of approximately 8 years. He would be unable to function as an adolescent, never mind as an adult." We approach that conclusion with serious reservation because an 8 year old would not be able to be in gainful employment, even of a modest kind, for thirty years. 14. A forensic psychiatrist, also instructed on behalf of the offender, addressed the issue of whether he was fit to plead and stand trial. The finding was that the offender understood the allegations made against him. The psychiatrist concluded that a diagnosis of mild mental retardation, a condition of arrested or incomplete development of the mind characterised by impairment of skills manifested during the offender's developmental period was associated with a standardised IQ test score in the range of 50-69. On the full-scale intelligence quotient score the assessment was 64. Plainly, that is very low indeed. The deficits identified by the psychiatrist were not in his judgment "so severe as automatically to render him under a disability". He commented that the suggestion that the functioning of the offender should be compared to that of an 8 year old was unhelpful because that oversimplified the matter. 15. The Crown instructed a forensic psychiatrist to examine the question of the offender's fitness to plead and stand trial. His finding was that the offender fulfilled the criteria for a diagnosis of mild mental retardation. He observed that the offender "had acquired some academic skills, he had been fairly self-sufficient and had been able to live reasonably independently with support from his family, in particular his mother". He pointed out that the offender had managed to engage in employment for most of his adult life. 16. The offender had always been viewed as a respectable member of the family. He was trusted to babysit, to travel by public transport to the homes of those for whom he babysat, to take them to dance classes and so on. Even now to some extent he acts as a carer for L's sister, who is also blind. He does her shopping, makes her medical appointments and arranges her holidays. Although the offender is able to do such practical things, he is plainly under serious disability. 17. In addition to the detailed, carefully prepared and structured pre-sentence report on the offender, we have a supplementary report prepared after the hearing in Southampton. 18. It is plain from his sentencing remarks that the judge was concerned with what he rightly described as the "untold misery" inflicted on the two young girls. The effect was "dreadful". If the offender had not suffered from disabilities he would have been sent to prison for a very long time. The judge considered the material relating to the offender's disability and concluded that a non-custodial sentence would be appropriate; hence the community order. 19. The sentence is criticised on behalf of the Attorney General as unduly lenient. Our attention has been rightly focused on the problems faced by the offender. We have not been invited to disregard them. It is accepted on behalf of the Attorney General that they have a significant impact on the sentencing decision. Our attention is also drawn, and rightly so, to the serious aggravating features in this case. The submission is that, although the judge was right to pay close attention to the offender's difficulties and disabilities, in that process he failed sufficiently to attend to the seriousness of the offences, their extent, the time over which the two young victims endured them, and the impact of the offences on their lives. 20. We have reflected on these submissions and on the issues raised in the context of the fact that, because of the age of the offences, the sentencing options available to the judge were significantly less than they would now be. Some of the offences, if committed now, would call for a sentence of imprisonment for life. Society has become more acutely aware of the dreadful impact of this kind of molestation of young children than ever society was. 21. At the same time we cannot ignore the sentencing realities. There are limitations on the sentences which can be imposed. Although they no longer exist, they bind us as they bound the trial judge. 22. These were dreadful offences. Two young girls were assaulted by a member of the family who was their babysitter. They were separately subjected to serious sexual molestation. 23. It is clear that whatever the extent of the offender's difficulties -- and we do not minimise them -- he knew that what he was doing was wrong. He is not so retarded as to have failed to realise that what he was doing was unacceptable. The consequences for each girl have been, and will be, lifelong. We can only hope that our view that this sentence was unduly lenient will give them some sense of vindication and perhaps that may -- and it is no more than a hope -- help them to come to terms with what happened to them when they were so young. 24. We have considered the offender's position. We have noted that there has been no further offending since 1994 when the family appeared to have resolved the problems to the limited extent that they understood them. However, because the victims were so young they could not have consented to the family solution. 25. These are sad events. The offender now is a pathetic, vulnerable man destined for a solitary old age. That is a significant feature of the sentencing decision. But in the end the suffering of the victims was profound and acute. The sentence was unduly lenient. We shall quash it. Despite all the offender's difficulties, we consider that a prison sentence was inevitable and should have been imposed. Although we have reflected on the fact that this case comes before us the offender not having been sentenced to custody, and although we have considered the further reports prepared on him since the decision reached by Judge Hooton, we do not think that a sentence of less than three years' imprisonment is appropriate. Accordingly, the sentence will be three years' imprisonment on each count, to run concurrently. 26. We direct that the offender shall attend and surrender at the Southampton Central Police Station, Civic Centre by 4pm today.

2010_10_19-2526.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/2538/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/2538

a76928f95b47ae8460fade5d4984ff0716b1e8d6b38858a90eb5bbad577c3e3e

[2020] EWCA Crim 1895

EWCA_Crim_1895

2020-12-02

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 202002182 A4 [2020] EWCA Crim 1895 Royal Courts of Justice Strand London WC2A 2LL Wednesday 2 December 2020 LORD JUSTICE HOLROYDE MR JUSTICE PICKEN MR JUSTICE HENSHAW REGINA v BRADLEY FINN __________ 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 JASON SMITH appeared on behalf of the Appellant _________ J U D G M E N T MR JUSTICE HENSHAW: 1. The appellant was on 3 July 2020 committed for sentence, having pleaded guilty before the magistrates to five offences committed on 30 June and 1 July 2020. These offences were: (1) receiving stolen goods, (2) dangerous driving, (3) driving without insurance, (4) going equipped and (5) driving while disqualified. The appellant was sentenced on 31 July 2020 in Newcastle-upon-Tyne Crown Court by Mr Recorder Sandiford QC. 2. After giving full credit for the appellant's guilty pleas, the Recorder imposed a sentence of 16 months' imprisonment for receiving stolen goods, a consecutive sentence of 14 months' imprisonment for dangerous driving, concurrent sentences of 2 months and 4 months respectively for going equipped and driving while disqualified, and no separate penalty for driving without insurance. The total custodial term was therefore 30 months. 3. The appellant appeals against sentence by leave of the single judge. 4. The main facts were as follows. Between 00.45 am and 10 am on 30 June 2020 there was a house burglary in which a jacket containing the keys to a Volkswagen Polo car was stolen from its owner's house while she was asleep. The car itself (valued at £1,000) was then stolen from outside her house. At just after 11 pm that night, staff at a restaurant in Pennywell, Sunderland contacted police because they were concerned as to the conduct of individuals inside that Volkswagen car and suspected that they may be drunk. Police officers attended the area. A police officer spotted the car and turned round to follow it. The appellant, who was driving the vehicle, saw this and made off at high speed. The officer activated his lights and sirens and followed the Volkswagen for about 10 minutes. He described it as reaching speeds of between 50 and 80 mph in roads with a 20 to 30 mph limit in densely populated areas. It went through red lights. For the majority of the pursuit the Volkswagen's lights were turned off. The officer was joined in the pursuit by a second officer. The Volkswagen went off the road onto a public footpath, and then a grassed area, and lost control. It came to rest against a garden fence. The appellant and two passengers made off, but the appellant gave himself up on a nearby road. 5. The vehicle was searched, and a number of empty plastic petrol drums were found in the boot. It was the prosecution case that these were to be used for stealing petrol. That was the basis of the going equipped charge. At the time the appellant was disqualified from driving and therefore had no insurance. In interview the appellant said that he had purchased the vehicle for £50. 6. The appellant was aged 21 when he committed the offences and 22 by the date of sentence. He had ten previous convictions relating to 36 offences. These included a robbery and numerous driving offences. In October 2015 he pleaded guilty to dangerous driving, failure to stop after an accident, failure to stop when required, driving while uninsured (twice) and driving without a licence (twice). In August 2016 he pleaded guilty to driving while disqualified and without insurance. In November 2016 he pleaded guilty to having committed each of those two offences on three further occasions; at that stage he was imprisoned for 6 weeks and disqualified from driving for 39 months. 7. On 13 April 2017 the appellant pleaded guilty to robbery, dangerous driving and driving while disqualified and without insurance. He was sentenced to 40 months' detention in a young offender institution for the robbery, with a consecutive sentence of 6 months for the dangerous driving. He was disqualified from driving for 41 months and disqualified from driving until he passed an extended test. 8. The appellant had been released on licence pursuant to the 2017 custodial sentence when he committed the present offences. 9. More recently, in September 2019 the appellant pleaded guilty to driving while disqualified, uninsured and without due care and attention. He was imprisoned for 12 weeks and disqualified from driving for 24 months. 10. The appellant thus had a previous conviction for robbery and he also had a very bad record for driving offences, including two previous convictions for dangerous driving, one of careless driving, six of driving while disqualified and eight of driving without insurance. 11. In sentencing the appellant for the present offences, the Recorder first considered the sentencing guideline for handling stolen goods. He took the view that the appellant's offence fell in the high culpability (culpability A) bracket because it involved possession of very recently stolen goods from a domestic burglary. As to harm, the Recorder felt it inevitable that the car would have been of substantial value to the victim. He found that the offence fell on the cusp between categories 2A and 3A and would justify, after trial, an adjusted starting point of 18 months. The aggravating features were the appellant's previous conviction for robbery and the fact that he had committed the offence while still on licence following the earlier conviction. Overall, the Recorder concluded that the appropriate sentence for the handling offence, before credit for plea, would be 2 years' imprisonment. 12. In respect of the going equipped offence, the Recorder noted that there was a degree of planning -- the use of the vehicle and the drums -- but the offence fell into the medium culpability band B. The Recorder assumed that the petrol drums were to be used to try to steal from a petrol station and that the lesser harm band applied. The starting point would therefore have been a high level community order, but the appellant's previous convictions and his licence breach were aggravating factors, so the sentence after a trial would have been at the top of the category, namely 12 weeks. 13. As to the driving offences, the Recorder noted, first, that the appellant had already been disqualified from driving; secondly, this was a serious case of dangerous driving, aggravated by the appellant's bad driving record. The appellant had been trying to evade police arrest for two offences that he had been committing; he ignored the police lights and sirens; he drove at grossly excessive speeds in pedestrian areas and places where people were living; he ran red lights; and he drove the vehicle onto a footpath used by pedestrians and then onto a grassed area. Notwithstanding the fact that nobody was injured, the offence fell towards the top end of the scale when the appellant's numerous previous driving convictions were taken into account. The maximum sentence was 2 years, and after a trial a sentence of 21 months' imprisonment would be justified. In reaching that figure the Recorder also took into account the separate offence of driving without insurance. 14. The Recorder considered that the further offence of driving while disqualified (which was the appellant's seventh such offence) would justify a consecutive sentence of 4 months -- the maximum after giving credit for the prompt guilty plea. 15. The Recorder took the view that, although consecutive sentences were justified for the handling, going equipped, dangerous driving and driving while disqualified, there must be some adjustment for totality. The present situation caused by the Covid pandemic in the prison system should also be taken into account, but to a large measure that was outweighed by the Recorder's duty to protect the public from further offences by the appellant. Looking at the case in the round, the appropriate sentence after credit for plea was 30 months' imprisonment, made up of 16 months for handling and 14 months for dangerous driving, with concurrent sentences for going equipped and driving while disqualified, and no separate penalty for driving without insurance. 16. In addition, bearing in mind the appellant's previous record, he would be disqualified from driving for 3 years, with an extension period of 15 months, and required to take an extended retest. 17. In his grounds of appeal the appellant makes no challenge to the total sentence imposed of 14 months' imprisonment for dangerous driving and driving while disqualified -- in our view, rightly so. The appellant was guilty of an appallingly dangerous piece of driving that might easily have resulted in death or serious injury to a member of the public or a passenger; moreover, it occurred while seeking to escape from the police and at a time when the appellant was disqualified from driving and uninsured. The sentence was amply justified. 18. The appellant, represented today by Mr Jason Smith, who also appeared at the time of sentencing, does take issue with the sentence for handling stolen goods, as well as questioning how the Recorder took account of totality. 19. The appellant contends that the handling offence fell at the very bottom of harm category 3 -- which in high (A) culpability cases has a category range from 26 weeks to 2 years' custody -- because the value of the stolen vehicle (£1,000) fell at the very bottom of the range for medium value goods which runs from £1,000 to £10,000. However, that contention overlooks the Recorder's conclusion that, as he put it, "somebody's motorcar, normally their second most valuable possession after their house”, would have been of substantial value to the user regardless of monetary worth. Mr Smith suggests in submissions today that the likelihood is that the car would have been returned to the victim very shortly after the incident, and he points out that there was no victim personal statement setting out details of any additional harm suffered. However, it seems to us that there is no basis on which it can or should be assumed that the vehicle would have been so promptly returned to the victim, and we consider that the Recorder cannot be said to have fallen into error by taking the approach he did and regarding this as a case of additional harm. 20. The definition of “low value” goods in harm category 4 is up to £1,000, and so goods worth £1,000 fall at the dividing line with medium value goods. Category 3 includes cases of “low value significant with additional harm to the victim or others”, whereas category 2 includes cases of medium value goods with significant additional harm. We therefore consider that the Recorder was right to take the view that this case fell on the cusp of harm categories 2 and 3, and so to use 18 months as the adjusted starting point, increased to 2 years in the light of the aggravating factors we have already mentioned. Even if the Recorder were wrong as to significant additional harm, we note that the starting point for category 2A is 3 years' custody whereas that for category 3A is 1 year's custody, and that the category ranges considerably overlap. It appears to us, viewing the matter in the round, that the adjusted starting point of 18 months, increased to 2 years as a result of the aggravating factors (which were significant), was justifiable and certainly not manifestly excessive nor involving any error of principle. It seems to us unrealistic in this case to suggest, as has been submitted this morning, that the starting point should have been towards the bottom end of category 3A. 21. As to totality, the Recorder did take account of totality when imposing concurrent sentences for going equipped and for driving while disqualified, and when imposing no separate penalty for driving without insurance. We consider that the sentence arrived at took full account of totality. 22. Overall, therefore, it seems to us that there was no error of principle and nor was the sentence manifestly excessive. We accordingly dismiss the appeal. 23. Two final matters arise in relation to the driving disqualification imposed on the applicant. 24. First, in accordance with the guidance of this court in R v Needham [2016] EWCA Crim 455 , the court is required to identify separately the appropriate discretionary period of disqualification, the extension period pursuant to section 35A of the Road Traffic Offenders Act 1988 , and any other discretionary period pursuant to section 35B. 25. The Recorder was obliged to disqualify the appellant for at least 2 years, by reason of sections 34(4) and (4B) of the Act, the appellant having within the preceding 3 years already been disqualified at least twice for 56 days or more. The Recorder considered that the appellant should in fact be disqualified from driving for 3 years, plus an extension period of 15 months as he would be in custody for at least the next 15 months. 26. As to the period of disqualification, we agree. In terms of the expression of the period in accordance with Needham , the relevant periods are as follows: (1) The appropriate discretionary period (so called) of disqualification is 3 years; (2) the extension period under section 35A (relating to the custodial term for dangerous driving) is 7 months; (3) the appropriate uplift under section 35B (relating to the custodial term for other offences) is 8 months; and (4) the total period of disqualification is therefore 51 months. 27. The second matter is that section 36(7) of the Act provides that the court shall not make a further order for an extended driving test where the person disqualified is already subject to such an order. The record indicates that the appellant is already subject to an extended driving test requirement following his previous conviction and disqualification in 2017. The extended driving test imposed for the current offence of dangerous driving is therefore incorrect and must be quashed, if and to the extent that it has not already been rectified under the slip rule pursuant to a letter which we were told this morning was sent to the Crown Court in August. In any event, however, the appellant does of course remain subject to the extended driving test requirement imposed in 2017. 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_12_02-5032.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2020/1895/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2020/1895

5b54d374cf97e37d5f1cd2f9e5eef6d28fbb0692f11064f9a9709f8ef0ec4d36

[2016] EWCA Crim 55

EWCA_Crim_55

2016-02-19

crown_court

Neutral Citation Number: [2016] EWCA Crim 55 Case No: 201502231/A8 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 19th February 2016 B e f o r e : LORD JUSTICE GROSS MR JUSTICE DOVE HIS HONOUR JUDGE BURBIDGE QC (Sitting as a judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v DEREK FRANCIS CHARLES MEDDLICOTT - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave Interna

Neutral Citation Number: [2016] EWCA Crim 55 Case No: 201502231/A8 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 19th February 2016 B e f o r e : LORD JUSTICE GROSS MR JUSTICE DOVE HIS HONOUR JUDGE BURBIDGE QC (Sitting as a judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v DEREK FRANCIS CHARLES MEDDLICOTT - - - - - - - - - - - - - - - - - - - - - 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) - - - - - - - - - - - - - - - - - - - - - Mr F Dillon appeared on behalf of the Appellant The Crown was not present and was unrepresented - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. MR JUSTICE DOVE: On 17th April 2015 the appellant was sentenced to a life sentence with a minimum term of 7 years for a sequence of offences which we shall shortly outline on a concurrent basis. He faced two indictments: the first indictment in time comprised some eight armed robberies in seven of which an imitation firearm was used. They occurred between 5th January 2014 and 29th April 2014. On seven occasions the premises that were targeted were bookmakers and on one occasion an off licence. The appellant's mode of operation was similar in all cases. He entered those premises on all bar the first occasion carrying his imitation firearm. He had his face covered and then demanded money and threatened staff who were present and who were, with one exception, female. Having administered the threats cash was then produced as a result of his demands and he made off with it. 2. The second indictment on which he was charged comprised some four offences. Count 1 on the indictment was an offence of robbery which was committed on 7th April 2014. On that occasion, with his co-accused, he attended the Lloyds TSB Bank. His co-accused on the indictment were his partner and her teenage son. The son entered the bank and asked about opening an account. He then left the bank following which the appellant entered it with his face covered carrying again the imitation firearm. The appellant demanded money and £1,000 in cash was handed over. 3. The second robbery on this indictment occurred on 21st April 2014. On that occasion the appellant visited the British Rail Northend Sports and Social Club. After he left the barman, who had been looking after the club on that evening, placed cash from the till in the club's safe. The barman then became aware of a very loud noise as two men, one of whom was the appellant, entered in helmets and masks. They ran into the premises, one armed with a gun and the other with a bottle of liquid which the barman believed was acid when it was sprayed over him. They demanded the contents of the safe and made customers give them their mobile phones by threatening them. 4. The third robbery on this indictment was committed on the 4th May 2014 at the Christ the King Social Club. Again, it was visited by the appellant and shortly after he left, two men, one of whom was him, came in wearing balaclavas or tights over their heads to disguise their appearances. One of the men was carrying a machete and the other the imitation firearm. They lined up the customers who were in the club and forced the bar staff to open the safe. As a result of that action they were able to obtain £4,500 and made off with it. On that indictment, therefore, there were three robberies together with a count of possession of an imitation firearm. 5. An extensive suite of impact statements were obtained in relation to those who had been effectively the direct victim of the appellant's offending, namely those who were serving in the various premises at the time when these offences were committed. It is unnecessary for us to recite those witness statements at length or to go through them individually. What is important for us to emphasise as a consequence of having absorbed that material is that it demonstrates some key and common features in relation to the impact that the appellant's offending had upon those people. Firstly, there was a serious and lasting psychological impact on those who were working in the premises at the time these offences were committed. Secondly, some of those people were effected to the extent that it was necessary for them to have medical treatment to assist them. Thirdly, some of the people who made statements simply could not return to work as a result of the psychological trauma that they suffered at the hands of the appellant. What is clear from all of those statements is that the appellant's offences had a devastating effect on the quality of life of those victims who were robbed of their confidence and their peace of mind as a result of his offending. 6. Faced with the indictments the appellant pleaded guilty to the eight counts of robbery on 31st March 2015. Prior to that he had pleaded guilty on 5th August 2014, to the first robbery on the second indictment and the offence of possession of an imitation firearm. The second and third robberies on the second indictment were pleaded to on the 17th October 2014. Thus, when he came before His Honour Judge Everett in the Liverpool Crown Court on 17th April 2015 he faced in aggregate 11 counts of robbery, all but one including an imitation weapon or firearm and eight counts of possession of an imitation firearm. 7. The judge concluded that the appropriate sentence on a determinate basis, after trial, was one of 21 years. He afforded credit for the fact that the appellant had pleaded guilty in excess of that which he would have been strictly entitled under the guidelines, on the basis that in respect of some of the robberies, he had made confessions to the police which meant that a substantial amount of police time had been saved in that there was no need to conduct extensive investigations. Thus, the judge concluded, giving credit for the appellant's plea, the appropriate determinate sentence would have been 14 years. However, he was persuaded, in the particular circumstances of the appellant's case, that the only disposable which was available was one of a life sentence, leading him to fix the minimum term in the period of 7 years. 8. In relation to this appeal Mr Dillon, who appears on behalf of the appellant, submits that the life sentence which was imposed in this case was wrong in principle and manifestly excessive. He accepts, in our view realistically, that the appellant satisfied the requirements of being found to be dangerous. He accepts that the court was entitled to be of the opinion that there is a significant risk to members of the public of serious harm being occasioned by the commission of the appellant of further specified offences. However, he goes on to submit that it would have been possible in this case and appropriate for the judge to have either dealt with the appellant by a determinate prison sentence or alternatively he could have addressed the merits of the offences by imposing an extended sentence. Furthermore, on behalf of the appellant, it is submitted by Mr Dillon, that the tariff which the judge identified of 21 years for the determinate sentence was itself manifestly excessive. 9. In assessing those submissions, attractively made as they were, it is necessary first and foremost to observe that not only was the concession in relation to the finding of dangerousness in relation to this appellant correct, on the basis of the offences that were before the court, he is a man who has previously been convicted of an offence of robbery which occurred in very similar circumstances, when he entered a shop with another, armed with a hammer and administered threats to the staff in the shop and obtained cash, for which he was sentenced to a prison term of 42 months. Thus, measured against both the offences with which he fell to be sentenced on this occasion and also his previous antecedent history it is beyond argument that this appellant satisfied the requirements of dangerousness. 10. Secondly, it is important to observe that the Sentencing Guidelines in relation to robbery, as the judge observed and as we would endorse, are of no help when dealing with a person who comes before the court for the extensive number and serious nature of the offences with which this appellant was charged. 11. Turning then to the question of the question of principle as to whether or not a life sentence would have been appropriate, it is important to bear in mind, as the judge did in his sentencing remarks, the importance in circumstances of this kind of the leading case of R v Burinskas [2014] EWCA Crim 334 . In that case this court observed as follows in relation to the implications of the changes to the legislation removing the IPP sentence, and the approach which the court should take to considering whether or not a life sentence is appropriate: i. "18. Save where imposed under s.224A, a life sentence remains a sentence of last resort. Where, as with IPP, there was an alternative indeterminate sentence short of that last resort, the courts could impose it. That is no longer the case. It is inevitable therefore that sentences of life imprisonment will be imposed more frequently than before the changes introduced by LASPO ... ii. 22. In our judgment, taking into account the law prior to the coming into force of the CJA 2003 and the whole of the new statutory provisions, the question in s.225(2)(b) as to whether the seriousness of the offence (or of the offence and one or more offences associated with it) is such as to justify a life sentence requires consideration of:- i) The seriousness of the offence itself, on its own or with other offences associated with it in accordance with the provisions of s.143(1). This is always a matter for the judgment of the court. ii) The defendant's previous convictions (in accordance with s.143(2)). iii) The level of danger to the public posed by the defendant and whether there is a reliable estimate of the length of time he will remain a danger. iv) The available alternative sentences." 12. Thus it is clear that the imposition of a life sentence is, as this court observed, "a last resort". Whether or not in this case it is a last resort depends upon analysis of the mitigation which was available to this appellant measured against the finding of dangerousness, and serious dangerousness, which the judge rightly made in his case. 13. In truth there is limited mitigation which can be advanced by Mr Dillon on his behalf. True it is there was no actual injury and that the weapon which was used was an imitation. However, as the judge observed, having had the opportunity to view the gun at first hand, it was a heavy piece of equipment, which would have left those before whom it was brandished in no doubt that it was clearly a weapon and which was capable of being properly perceived as a real gun. Secondly, in relation to injury, as we have set out above, the victim impact statements set out at length the real serious, lasting psychological harm, which arose as a result of these offences, and which in some cases required clinical treatment. 14. Mr Dillon rightly observes that the appellant pleaded guilty, and indeed, as we have set out above, confessed to the some of these offences short circuiting the need for further police investigation. He submits, as he is entitled to, that that goes to the risk of future harm in his case. 15. All of that said, however, there are, in the perhaps unique and certainly exceptional circumstances of this case very serious aggravating features. First and foremost this was a sustained campaign of serious robberies conducted over a number of months in the form of no less than 11 very similar offences. Secondly, it is clear from the pattern of those offences that the appellant targeted vulnerable victims, in the form of those who were staffing the shops which were targeted, very often at night, in order to conduct his campaign of robbing. Thirdly, as we have already observed, these offences caused, to those who were the victims of them, lasting psychological harm. Fourthly, the previous convictions to which we have alluded adds an aggravating dimension to the sentencing exercise. 16. Having assessed carefully whether or not there was realistically and properly any alternatives to the life sentence which the judge passed, we are satisfied that he was entitled to conclude that it was the last resort in this case and that there was no error in principle in him identifying that there was no proper alternative which fitted the risks to the public, and indeed the gravity of the offences which were presented both by the appellant and his offences in this case. There could be no reliable estimate of the length of time the appellant would remain a danger to the public given the history of his offending. Furthermore we are satisfied in the light of the aggravating features we have identified above that 21 years was the appropriate determinate sentence in this case. 17. For those reasons we are satisfied that this appeal should be dismissed. 18. Having made the observations that we have in relation to the principle of the sentence, it has been drawn to the court's attention there is a period of 283 days on remand which was overlooked by the judge at the first instance. We are of the view the sentence should be corrected to the extent that those 283 days on remand should count towards the minimum term which was imposed as a consequence of the judge's order.

2016_02_19-3709.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2016/55/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2016/55

7a609132a8a404cf6721ca376a7bc135434ac7830df51470a868706397af3e18

[2019] EWCA Crim 1812

EWCA_Crim_1812

2019-10-25

crown_court

Neutral Citation Number: [2019] EWCA Crim 1812 Case No 201804844 C2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT CHESTER HIS HONOUR JUDGE NORMAN WRIGHT Royal Courts of Justice Strand, London, WC2A 2LL Date: 25/10/19 Before : LORD JUSTICE HICKINBOTTOM MRS JUSTICE SWEENEY and SIR RODERICK EVANS (sitting as a Judge of the Court of Appeal (Criminal Division)) - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - and - ROBERT FREDERICK BINFIELD Appellant -

Neutral Citation Number: [2019] EWCA Crim 1812 Case No 201804844 C2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT CHESTER HIS HONOUR JUDGE NORMAN WRIGHT Royal Courts of Justice Strand, London, WC2A 2LL Date: 25/10/19 Before : LORD JUSTICE HICKINBOTTOM MRS JUSTICE SWEENEY and SIR RODERICK EVANS (sitting as a Judge of the Court of Appeal (Criminal Division)) - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - and - ROBERT FREDERICK BINFIELD Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - N R Johnson QC (instructed by Lloyds PR Solicitors ) for the Appellant Ben Lawrence (instructed by Crown Prosecution Service ) for the Respondent Hearing date: 25 October 2019 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Lord Justice Hickinbottom : Introduction 1. On 14 November 2018 in the Crown Court at Chester before His Honour Judge Norman Wright and a jury, the Appellant Robert Binfield was convicted of taking steps with a view to the fraudulent evasion of tax contrary to section 72(1) of the Value Added Tax Act 1994, for which, on 10 December 2018, he was sentenced by Judge Wright to 16 months’ imprisonment suspended for 18 months. With the leave of Sir Alastair McDuff sitting as a judge of this court, the Appellant through Nicholas Johnson QC now appeals against that conviction. In support of the appeal, he applies for leave to rely on fresh evidence under section 23 of the Criminal Appeal Act 1968; and it is upon that evidence that the appeal effectively depends. 2. The evidence comprises a Certificate of Registration for Value Added (“a VAT 4 certificate”) issued on 30 October 2018, to the provenance of which we will return shortly, as exhibited to a statement of the Appellant dated 19 November 2018; and further statements from the Appellant’s accountant Paul McAllen dated 16 November 2018 and from his solicitor Rachel Fletcher dated 21 November 2018. The statements go to when the Appellant received the certificate, which is not is issue. None of these witnesses were called to give evidence before us. 3. On the basis of that VAT certificate, the Appellant relies upon a single ground of appeal with two limbs, namely that his conviction was unsafe because: i) the certificate, which the Crown failed to disclose to the defence, completely undermined the prosecution case on an issue which may have been crucial to the jury’s finding of guilt; and ii) the manner in which this document was not disclosed calls into question the accuracy and completeness of all the digital records produced and relied upon by the Crown at trial. 4. At the trial, one of the Crown’s witnesses with regard to the issues raised in this appeal was John Clive Leech who prepared statements dated 19, 24 and 25 October 2019 and who gave evidence at the trial for the best part of a day on 26 October 2018. Mr Leech has worked for HM Revenue and Customs (“HMRC”) for 30 years, and within the VAT regime since 1994. He is currently an investigator for HMRC Proceeds of Crime – Operations, part of HMRC’s Fraud Investigation Service, who was involved in the investigation of the Appellant and was responsible for the generation of the relevant VAT 4 certificate. Unfortunately, due to ill health, Mr Leech was unable to give any evidence before us, but the evidence with which he dealt was effectively covered by other witnesses who made statements and gave oral evidence or were offered for crossexamination. The evidence of Mr Leech to which we refer in this judgment was either adopted and supported by another witness or was uncontentious. 5. In response to the section 23 application, the Crown relied on evidence from a number of witnesses who work for HMRC, including the following who made statements and were called to give oral evidence: i) Dawn Alison Chipperton: an HMRC officer since 1983, now working as a senior criminal investigation officer: statements dated 4 and 19 December 2018. ii) Julian Gordon Fowles: a Lead Developer in the Chief Digital Information Office of HMRC, for which he has worked since 1991: statement dated 23 January 2019. iii) Peter Kenneth Shersby: Mr Shersby has worked in VAT for nearly 30 years, now in HMRC Higher Office in Operational Excellence: statement dated 8 February and 21 October 2019. iv) Martyn William Brinton: HMRC SO Analyst and Developer: statement dated 24 January 2019. v) Paul Burden: Java Developer for Capgemini, a company which provides computer support for HMRC: statements dated 15 April and 22 October 2019. 6. A further witness employed by Capgemini, Alison Cheshire (a Senior Manager in the team which supports the Operational Data Store, the repository which supplies data to and supports processing by internet-facing HMRC services including VAT return display and submission) made a statement dated 23 October 2019 and was tendered for cross-examination, but in the event not called. 7. In addition, the Crown served evidence in respect of the following witnesses, whose evidence was agreed, and who therefore did not give oral evidence. i) Adam Allix: a Senior Mainframe Systems Manager in the Chief Digital Information of Office of HMRC, responsible for managing mainframe access, system monitoring and live incidence resolution: statement dated 3 December 2018. ii) Robert Gage: an HMRC HO Analyst and Developer, who has worked on the HMRC VAT Mainframe Team for over 20 years: statement dated 5 December 2012. iii) David Gareth Jones: a Client Delivery Manager with Communisis which has a contract with HMRC to provide all outbound customer communications: statement dated 21 December 2018. iv) Amish Patel: an HMRC Officer who simply produces the most recent VAT return for LP Investment Properties Limited (“LPIP”) (see paragraph 10 below) received by HMRC on 4 December 2018: statement dated 24 April 2019. 8. It was common ground between the parties that this appeal could not be properly or justly determined without consideration of the Appellant’s fresh evidence and that of the Crown in response. We agree; and we accede to the section 23 application and formally allow in all of the evidence to which we have referred. The Factual Background 9. The background to the prosecution is lengthy and not entirely straightforward, concerning, as it does, the detail of the VAT scheme including HMRC’s internal mechanics of the scheme. The trial lasted many days. However, the grounds of appeal are narrow, and for the purposes of the appeal we can deal with the background facts relatively shortly. 10. The Appellant is an accountant with his own practice which had as a client a Malcolm Cooper. Mr Cooper owned various units at Arklow Trading Estate, Deptford which he let out to other enterprises (“the Arklow units”). In 2006, the Appellant and an employee of Mr Cooper’s, Lee Reeves, set up LPIP which, with the assistance of a mortgage from Nationwide, bought the Arklow units from Mr Cooper for £3.8m. As landlord, LPIP thereafter collected rental income from the tenants of the units which was used to pay the mortgage payments. For some reason which is not apparent, Nationwide failed properly to register its charge on properties. 11. LPIP was registered for VAT with registration number 886253096 (“the 886 number”). VAT is generally not payable on land transactions; but it is open to the purchaser of land to enter into an “option to tax”, such that VAT liability attaches to its transactions with that land. LPIP entered into an option to tax in respect of the Arklow units. That option was irrevocable so that, even if (e.g.) LPIP’s VAT number was deregistered, that would not invalidate it and the sale of the units would still be treated as a taxable supply. 12. The business affairs of LPIP have been described as “chaotic”. In August 2008, the 886 VAT number was deregistered for failures to lodge VAT returns, but in May 2010 it was reinstated on application by the Appellant. However, due to a failure to submit returns to Companies House, the company received a number of warnings before in fact being dissolved and struck off the register on 28 June 2011. As a result, the 886 VAT number was deregistered again from 1 July 2012. 13. LPIP was by this time in financial trouble because of falling commercial property values and rental income which was insufficient to pay the mortgage instalments. Nationwide decided to take steps to enforce its security; and then realised not only that that its charge on the Arklow units had not been properly registered but that LPIP had been dissolved. Consequently, Nationwide made an application to the High Court for LPIP to be re-registered as a company, which it was on 20 September 2013. The Nationwide charge was registered shortly thereafter. 14. By this time, the property market was improving. Nationwide wanted the properties sold and the mortgage repaid from the proceeds of sale, and they had the right under the mortgage to take charge of the sale; but LPIP wished to sell the Arklow units privately to maximise its own return. The property was advertised and interest in it was shown by, amongst others, Anthology Deptford Limited (“Anthology”). Following negotiations, a purchase price of £8.5m was agreed which, because of the option to tax to which we have referred, attracted a 20% VAT charge of £1.7m. LPIP duly provided Anthology with a VAT invoice for £10.2m, using the 886 number; and Anthology paid that sum which included £1.7m VAT which was accountable to HMRC in the hands of LPIP. The addition of tax was of little if any real concern to Anthology, because, having paid over the VAT to LLIP, as a trading company it expected to be able to recover it from HMRC. It applied to “opt to tax” the properties, and, in its first VAT return, claimed repayment of the £1.7m from HMRC. However, that tax was not immediately repaid. 15. By this time, HMRC in the form of one its inspectors (Trevor Garrett) had become interested in the VAT position of LPIP. He had begun an inspection in respect of the tenant of one of the Arklow units, which was unable to provide VAT invoices from LPIP for the rental payments it had made. Mr Garrett’s further investigations showed that LPIP was not registered for VAT, because it had been deregistered from 1 July 2012 as we have described. LPIP accepted that it was not then registered for VAT, and asked for the 886 VAT number to be reinstated as it had been after deregistration in 2010. However, due to the length of time the company had been deregistered, HMRC informed it that the old number could not be reinstated: LPIP would have to make an application for a fresh registration, backdated to the deregistration of the 886 VAT number. 16. From 31 October 2012, HMRC deployed a new online registration service and VAT registration transformation (“VRT”) system. Customers could thereafter register for VAT, and make changes to their registration particulars, online; and most applications could be evaluated and dealt with automatically by the VRT system. 17. In their evidence, Mr Leech and Mr Shersby explained that, from the introduction of VAT in 1973 until October 2012, HMRC produced a hardcopy certificate that showed a trader’s trading partners that it was VAT registered, i.e. a VAT 4 certificate. Such a certificate was sent as standard to a customer on registration, and further copies could be requested by or through HMRC in one of two ways. First, HMRC could request a print out from its own departmental trader register (“DTR”). That would then be printed on the HMRC officer’s own printer. Second, it could be requested through HMRC’s VISION mainframe system – a system by which data could be viewed but not input or altered – in which case a copy would automatically be sent directly to the customer’s principal place of business. 18. However, Mr Shersby explained that, from October 2012, VAT 4 certificates were not routinely sent out, because, as we have indicated, from that date a customer could both register, and change and access, its registration details – and print off a VAT certificate – online through its own online account. A hard copy VAT 4 certificate would only be sent out if (e.g.) a paper registration application were made. He also explained that a VAT 4 certificate, no matter how produced, is a now a computer-template document populated by the data current at the date it is produced. Such a certificate merely shows the position as at that moment in time, and HMRC does not retain a copy of any certificates issued, even in electronic form; although it does retain a record of the dates VAT 4 certificates have been requested. 19. The 886 VAT number having been deregistered in July 2012, the Appellant submitted a new online VAT registration application for LPIP on 15 January 2015. The registration was completed on 18 March 2015, when the company was registered with a new VAT number (20788685, “the 207 number”) backdated to 7 June 2014. 20. Mr Leech explained that VAT is declared by registered traders each quarter. When VAT was first introduced, each trader was required to declare VAT on the calendar quarters, i.e. in March, June, September and December. However, given that there are about 2m such traders, this caused administrative difficulties for HMRC. Consequently, it staggered the declaration dates, splitting the traders into three groups assigned to “stagger” 1, 2 or 3; and, dependent upon which “stagger” a trader was assigned to, it was instructed to declare its VAT in the first, second or third month of each quarter. Mr Shersby explained that a trader can express a preference for which stagger it wishes to be assigned to; but, where it does not express a preference, it is assigned to one of two staggers depending on the date of registration, the third stagger having quarterly declarations of tax in the original months. No one is now allocated to that stagger except upon request, with the intention of equalising numbers of traders in each group. 21. The first VAT return period ends on the last day of the month following HMRC completion of registration, and the due date for an online filer is that end date plus one month plus 7 days. As we have indicated, LPIP’s registration with the 207 VAT number was completed on 18 March 2015. So, on this basis, the end date for the first VAT return period would have been 30 April 2015, and the due date for filing 7 June 2015. LPIP’s online account showed that the VAT return periods ended on the last day of April, July, October and January; and Martyn Brinton said that, from the audit data he has looked at, he “can state for certain” that LPIP’s stagger (i.e. the months of the year in which VAT returns are due) has never been changed. Mr Shersby confirmed that to be the case, and that there is no record of any request for any change in stagger. 22. In his statement of 23 January 2019, Mr Fowles said that the information held on the VAT database indicates that LPIP was informed that it should render a return for the period from the date of registration to 30 April 2015 (the end of the first VAT period) by 7 June 2015, and it would be expected to render returns for periods ending every three months after this; but HMRC do not have a copy of what was sent to LPIP giving it that information. However, it was clear from the evidence that, although the information was readily available to LPIP as a result of its access to the HMRC online system, no express notification or reminder was ever sent to LPIP. In his evidence, Mr Shersby explained that the notification of registration for VAT (Form VAT 9) referred the trader (i.e. LPIP) to that system; and, Mr Burden said, although through that system, LPIP could have requested reminders giving six weeks’ notice that a VAT return was imminently due, LPIP did not do so, opting for no reminders. Mr Burden explained that a trader can receive email reminders that a VAT return is due by opting to receive reminder and inserting its email address on a particular page of the online application form, the alternative and default being an option not to receive reminders. However, he said that the database shows that LPIP did not set up an email address or opt to receive reminders. 23. Returning to the chronology, on 18 March 2015, LPIP now having the new 207 VAT number, a fresh VAT invoice with the 207 number was issued by LPIP to Anthology in respect of the property transaction; and, on 9 April 2015, HMRC approved the repayment of £1.7m VAT to Anthology. 24. LPIP was of course liable to account to HMRC for that sum of VAT which it had received from Anthology. However, it did not do so. The Criminal Proceedings 25. On 25 June 2015, the Appellant and his wife were arrested and interviewed by HMRC officers. A few days later, on 1 July 2015, LPIP paid £535,000 to HMRC using the 207 VAT number. However, it was not accompanied by a VAT return, and no further payments were made. 26. The Appellant and his wife were charged with a number of offences, but in due course the charges against his wife were dropped or dismissed, as were some of the charges against the Appellant. 27. By the end of the trial in late 2018 before Judge Wright, the Appellant faced a single charge of taking steps with a view to the fraudulent evasion of VAT, namely that between 29 April 2014 and 27 June 2015 he took steps with a view to the fraudulent evasion of VAT in respect of the tax due from the sale by LPIP of the Arklow units in the sum of £1.7m. The particulars of the charge continued: “The ‘steps taken’ are one or more of the following acts or omissions: (1) Failed to apply to reinstate [LPIP’s VAT] number or to reregister [LPIP] for [VAT] prior to the 19 th day of June 2014. (2) Failed to register [LPIP] for [VAT] between the 15 day of July 2014 and the 15 th day of January 2015. (3) Failed to submit a [VAT] return by the 7 th day of June 2015.” 28. The jury could therefore convict the Appellant if they were satisfied that he failed to take one (or, of course, more than one) of those steps. Therefore, it was open to the jury to find him guilty if they were satisfied to the requisite criminal standard that he had failed to submit a VAT return by 7 June 2015 with a view to the fraudulent evasion of VAT, i.e. step (3). 29. In respect of step (3), there was a dispute at trial as to when the first VAT period for the 207 number ended, and thus when the first VAT return was due. That issue was of course crucial to the alleged failure to submit a VAT return on time. As we have indicated, the Appellant was arrested on 25 June 2015. It was the prosecution case that, on the basis of the analysis which we have already set out, the first return was due by 7 June 2015. It was the Appellant’s case that he thought the first return was not due until 7 July 2015, although he said he had intended to have completed the return earlier than that. 30. The Crown relied upon various pieces of evidence to show that the first VAT return under VAT number 207 was for the period ending 30 April 2015, and therefore the return was due no later than 7 June 2015. Mr Leech produced both the VISION print out for the 207 number, and the “current ledger” which recorded the period to 30 April 2015 as the first declaration period. Another witness (Richard Lang) also gave evidence to the same effect having consulted the Electronic Folder for that number. 31. At the trial, a number of HMRC officers were asked to help with further documentary evidence as to this issue which the Appellant considered would, if available, potentially assist his cause. In particular, they were asked to assist with (i) the location of the VAT 4 certificate for the VAT 207 number, which it was thought would have shown the date of registration and the date on which the first VAT return was due; (ii) the location of the email that it was thought would have been sent to LPIP asking for the first return (which should have been sent in mid-April if the prosecution was correct as to the stagger date); and (iii) the location of the digital return itself. The general response was not positive; and the judge therefore suggested that the prosecution obtain some definitive evidence on these issues. That prompted evidence in the form of statements being obtained from Mr Leech, to which we have already referred. 32. Mr Lawrence for the Crown submitted that the accounts given by the Appellant at trial on the issue of when the first VAT period ended – and when the Appellant believed it to end – were inconsistent and uncompelling. In any event, the jury found the Appellant guilty of the charge. As we have described, because of the way the particulars were put, it is not known whether they found step 1, 2 and/or 3 specifically made good – only that they found at least one proved. The jury may have found only step 3 proved. However, insofar as the jury did find step 3 to have been made out, they must have rejected the Appellant’s account that the first period ended later than 30 April 2015 and the VAT was therefore not due by 7 June 2015. The Appellant’s New Evidence and the Grounds of Appeal 33. On the day he was convicted, the Appellant received some post that had been forwarded to his home address from the correspondence address for LPIP. One letter was addressed to LPIP, which must have been received after 2 November and before 12 November 2018. It was opened by the Appellant on 14 November 2018. It contained what Mr Johnson describes in his advice on appeal (which includes the grounds of appeal and, essentially, the skeleton argument is support) as “the missing VAT 4 certificate”, which is dated 30 October 2018. This is the new evidence upon which the Appellant now seeks to rely. 34. The document is headed “Certificate of Registration for Value Added Tax”, and has the 207 number and 7 June 2014 as the effective date for registration. It says, “Copy of certificate issued on 30 October 2014”. The standard form part of the document says that the certificate confirms that LPIP is registered for VAT “from the date shown above”; and it goes on to say: “The details above include the end date of the next accounting period, the frequency of your VAT returns and the bank account details [HMRC] will use to make any repayments of VAT to your business. These details only apply from the date on which the certificate is issued.” 35. Mr Johnson submits through his advice that this new document vindicates the position taken by the Appellant at trial in that it proves that HMRC witnesses including Mr Leech were wrong to say that the VAT 4 certificate was only a “digital document”, and that HMRC did not have access to it. Furthermore, although the document says that “the details above include the end date of the next accounting period”, no such date is shown. Therefore, if it is correct, there was no legal requirement to complete a VAT return by 7 June 2015. 36. Had this VAT 4 been available at trial – which in his advice Mr Johnson submits it could have been, if disclosed by the prosecution as it ought to have been – it would have undermined Mr Leech’s evidence on these crucial points; and undermined the digital records upon which the prosecution relied with which it is inconsistent. The fairness of the trial was therefore subverted by material non-disclosure, if not deliberate suppression; and, in any event, the conviction must be unsafe. The Crown’s Response and Our Conclusion 37. However, the Crown has now submitted evidence as to how the VAT 4 certificate came to be sent to LPIP, and why it is in the form that it is. 38. As we have already indicated, Mr Leech is unfortunately unwell and was unable to produce a statement; but there is a statement dated 19 December 2018 from Alison Chipperton – another senior investigation officer with HMRC – who refers to emails from Mr Leech to her explaining that he had requested a VAT 4 certificate for the 207 VAT number to see whether that function worked at all. In short, he did not expect the form, if produced, to be sent to LPIP, especially because he did not receive a confirmation message from the system to say that it had; but the function did still work and, as he requested it through the VISION mainframe system, it was both produced and sent direct to LPIP. As we have already explained, when such a certificate is requested, the computer populates the template with then-current data. Mr Johnson, properly and realistically, accept that, on the basis of all the evidence, he could not gainsay that explanation of the provenance of the certificate and how it came to be sent to LPIP. We are satisfied that it is true. 39. In respect of the terms of the document, Mr Johnson relied upon the fact that, although its states “The details above include the end date of the next accountancy period [and] the frequency of your VAT returns…”, no such information is given in the document. He initially submitted that there was no date for any VAT period and consequently no legal requirement to complete a VAT return by 7 June 2018, which requirement was fundamental to the Crown’s case on step (3). The case in respect of that step is therefore fatally undermined, and with it the Crown’s case as a whole. 40. However, the evidence (notably of Mr Shersby) confirmed that a VAT 4 certificate is produced by the population of a template with data from the DRS system. It is the template which states “The details above include the end date of the next accountancy period [and] the frequency of your VAT returns…”, which therefore appears in a certificate irrespective of the data which might be inserted into it. Mr Shersby explained that, once a trader has been deregistered from VAT, no return period would be included in any VAT 4 certificate produced – because the data populating the form would have no next return date. However, Mr Shersby confirmed that, if a VAT 4 had been produced (or the online system viewed) prior to 30 April 2015, then details of the first return period would have been shown. Mr Brinton referred us to a print out from that part of the system which records changes to important data, which confirms that LPIP was deregistered on ceasing trading on 29 July 2015. There is no doubt that it was deregistered well before October 2018 when the VAT 4 certificate was produced. 41. Again, having heard the oral evidence, Mr Johnson properly accepted that, on the basis of all the evidence, he could not gainsay that explanation. We are again satisfied that it is correct. 42. Once it is understood that, by October 2018: i) a VAT 4 certificate was a computer-generated report using a template populated by the HMRC computer data as at the time of the request/generation; ii) there were no data for the next VAT period because LPIP had been deregistered for VAT; and iii) the VAT 4 certificate was sent to LPIP accidentally as a result of Mr Leech’s interrogation of the computer system; then the certificate ceases to have any possible relevance to the issues at trial – including the issue as to when the first period for VAT declaration under VAT number 207 ended and, as a consequence, when the first declaration was due. All of the evidence, including the several computer print outs generated in response to this application, are at least consistent with the proposition – accepted by the jury – that the first period ended on 30 June 2015 and therefore the first VAT return was due on 7 June 2015. Indeed, this fresh evidence strongly positively supports that proposition. 43. Through his advice, Mr Johnson submitted that the VAT 4 certificate which we have now admitted under section 23 is remarkable for a number of reasons. For example, it does not disclose when the original was issued. But that misunderstands the nature of this document and its provenance: as Mr Shersby explained, any VAT 4 certificate issued in April 2015 would have reflected different data. Mr Johnson emphasised that the details of the end date of the next accounting period were not included, and “this was the issue at trial”. But that submission lacks force for the same reason. Finally, he submitted that the certificate is a paper document, and the evidence at trial was that “these are never issued”. But this certificate was issued as a result of Mr Leech’s interrogation of HMRC mainframe computer system, at a time when he thought that that function no longer worked; and, in any event, the document produced was of no relevance to the issue at trial, because it reflected the post-deregistration VAT position of LPIP. In the context of the charge faced by the Appellant, the document is neither remarkable nor indeed relevant to the issues at trial. 44. Nor do we accept Mr Johnson’s submission that Mr Leech was wrong when he said a VAT 4 certificate “is only a digital document”. That was perhaps a shorthand; but it reflected the fact that, by October 2018, a VAT 4 certificate was a computer-template document populated by HMRC computer data as it stood at the moment of the request. What was relevant was not what a VAT 4 certificate, if generated in October 2018, would say; but what such a certificate would have said in (say) April 2015. That was a document which was not available to HMRC, and Mr Leech was not wrong to say that HMRC did not have access to it. 45. In his advice, Mr Johnson suggests that the VAT 4 certificate which the Appellant received in November 2018 was, or may have been, wilfully not disclosed, possibly as the result of suppression or other wrongdoing on the part of Mr Leech and/or other members of HMRC. The explanations given make clear beyond any doubt that there was no such wrongdoing. 46. Having heard the oral evidence of the HMRC witnesses to which we have referred, Mr Johnson, again realistically, said that he could not properly advance the case set out in the grounds that the VAT 4 certificate undermined the prosecution case, or that at trial the Crown wrongly failed to disclose the certificate to the defence. 47. For the reasons we have given, we agree. The material which we have agreed to admit does not assist the Appellant; and we cannot say that, as a result of it or otherwise, the jury’s verdict is unsafe. As a result, this appeal fails.

2019_10_25-4748.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/1812/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/1812

feeac8466e57a03eb43fa2f0e8eba9dab440862418b632433b86bc979a4063a0

[2022] EWCA Crim 448

EWCA_Crim_448

2022-04-01

crown_court

Neutral Citation Number: [2022] EWCA Crim 448 Case No: 202100703 B4 202100875 B4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT HARROW Her Honour Judge Wood T20187135 Royal Courts of Justice Strand, London, WC2A 2LL Date: 01/04/2022 Before : LORD JUSTICE EDIS MR JUSTICE JULIAN KNOWLES and HIS HONOUR JUDGE ALTHAM Sitting as a judge of the Court of Appeal Criminal Division - - - - - - - - - - - - - - - - - - - - - Between : CHIN LAM Appellant - and - THE CROWN Respond

Neutral Citation Number: [2022] EWCA Crim 448 Case No: 202100703 B4 202100875 B4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT HARROW Her Honour Judge Wood T20187135 Royal Courts of Justice Strand, London, WC2A 2LL Date: 01/04/2022 Before : LORD JUSTICE EDIS MR JUSTICE JULIAN KNOWLES and HIS HONOUR JUDGE ALTHAM Sitting as a judge of the Court of Appeal Criminal Division - - - - - - - - - - - - - - - - - - - - - Between : CHIN LAM Appellant - and - THE CROWN Respondent YIT GAN LAM Appellant - and - THE CROWN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. Will Martin for Yit Gan Lam Ms. Grace Forbes for Chin Lam Mr. Ben Holt for the Prosecution Hearing dates : 25 February 2022 - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment was handed down remotely by circulation to the parties’ representatives by email and released to BAILII. The date and time for hand-down is deemed to be 10:00am on Friday 1 st April 2022. Lord Justice Edis : 1. On 12 March 2021 Her Honour Judge Wood handed down a written ruling in the Harrow Crown Court. She had heard confiscation proceedings brought against Chin Lam over two days in January and had taken time to formulate her decisions on a number of issues. We would like to pay tribute to the care with which the judgment was prepared and the clarity of the reasoning. She had to decide many issues in addition to that which is the focus of the appeal, and there is no appeal against most of what she decided. 2. The decision under appeal is the determination under s10A of the Proceeds of Crime Act 2002 that Chin Lam (“Mr. Lam”) was the sole legal and beneficial owner of a property known as 11 Cavendish Road, Barnet. In so deciding, she rejected representations made on behalf of Yit Gan Lam (“Mrs. Lam”), who claimed a 50% beneficial interest in 11 Cavendish Road, having been given a reasonable opportunity to take part in the proceedings under s10A(2). Mr. Lam now appeals against sentence with leave of the single judge, contending that this decision led to an excessive confiscation order because the available amount reflected the full value of the equity in 11 Cavendish Road. Mrs. Lam appeals with leave of the single judge under s31(4) of the 2002 Act. By s32(2A) in such an appeal the Court of Appeal may:- i) Confirm the determination; or ii) Make such order as it believes is appropriate. 3. Mr. Lam pleaded guilty to three counts on an indictment which alleged that he was knowingly concerned in the fraudulent evasion of value added tax, contrary to s72(1) of the Value Added Tax 1994. He had operated two restaurants, each through a different company, Novari Limited and Novari at the O2 Limited. They both charged VAT to their customers but did not submit VAT returns and kept the money. This began in 2012 and ended at different dates, the most recent date being April 2017. He was sent to prison for three years. Mrs. Lam was charged along with Mr. Lam on a count of laundering the proceeds, but when he pleaded guilty the case against her was dropped and a not guilty verdict entered. 4. This was a criminal lifestyle case and Mr. Lam was charged on 16 April 2018 which means that the relevant period for the assessment of his benefit extended back as far as 16 April 2012. Coincidentally this happens to be about the time when the offending began. The benefit was agreed as £1,018,508 plus an increase for inflation. 5. It was also agreed that the only asset available to meet a confiscation order was 11 Cavendish Road. This was the matrimonial home where the appellants, who are married, have lived since about 2010. The available amount was the value of his beneficial interest in it. 6. The judge dealt with two issues raised by Mr. Lam on the value of the property, in addition to determining the question of whether Mrs. Lam had any interest in it. There is no appeal against her decisions on these questions which were themselves complex. First, Mr. Lam contended that the value of 11 Cavendish Road was £650,000-£750,000 and that the equity after payment of the first mortgage of £603,135.88 was therefore limited. Secondly, he contended that that equity was entirely extinguished as a result of a second legal charge which he had granted to his sister’s husband on 18 February 2018. The judge rejected both of these arguments. She found that the value of 11 Cavendish Road was £1,000,000. She found that the legal charge given to Mr. Lam’s brother in law was a tainted gift and that it did not operate to reduce the available amount. These two conclusions involved a careful analysis of the evidence before the court and were fully reasoned by the judge in her exemplary written decision. There is no appeal against them and it is not necessary to set out any of the evidence or arguments which the court heard in this judgment. The judge’s finding as to valuation was vindicated by events because 11 Cavendish Road was sold not very long after the decision for £1,050,000. The main relevance of these findings to the single issue before us is that they involved a finding that Mr. Lam had engaged in various ruses designed to reduce his liability under a confiscation order and was not approaching the proceedings in good faith. That finding is unassailable. Mr. Lam did not give oral evidence in the confiscation proceedings. The available amount was the value of the equity in 11 Cavendish Road. This was his, save to the extent that Mrs. Lam could show that she had a beneficial interest in it as well. It was therefore her claim rather than his which was determinative of the decision involved in this appeal. The facts relevant to the beneficial ownership of 11 Cavendish Road 7. Mr. and Mrs. Lam contended that the legal interest in this property was held by Mr. Lam subject to a constructive trust for them both in equal shares. The legal title is vested in him alone. They say that this trust was founded on their common intention that they would jointly own their home in which they intended to live together for the rest of their lives. 8. The judge considered documentary evidence, and heard oral evidence principally from Mrs. Lam on this issue. Mr. Lam provided some written evidence. Mrs. Lam was unable to explain many of the transactions about which she was asked. The judge’s general observation about her credibility is as follows:- “Mrs Lam was not an impressive witness. Her knowledge of her and Mr Lam's finances was limited, and her recollection of detail lacking. The provision of documents to support her claim appeared to me to be partial: no attempt had been made at a proper disclosure exercise.” 9. Mrs. Lam may have been both unimpressive and truthful if many of the transactions about which she was speaking were done by her husband without her knowledge. In that situation she would be genuinely unable to explain the reasons why things were done in a particular way. If he, rather than she, had control of the documents the criticism of the disclosure exercise would not properly be levelled at her. He was, of course, a criminal and she had been acquitted of any involvement in his crimes. He may have had his own motives for arranging the finances of the family in a particular way which he may or may not have explained truthfully to his wife. It does not follow from this passage that the judge had disbelieved Mrs. Lam on all the important questions on which she gave evidence. At paragraph 147(o) of her ruling the judge said that she was unable to accept Mrs. Lam’s evidence on a particular point, namely her evidence about how some of the proceeds of sale of the matrimonial home which they had lived in immediately prior to 11 Cavendish Road were dealt with. Mrs. Lam had said that that part of those monies had remained in the joint account and had been used to pay the mortgage and household bills and to fund household spending. We shall return to the basis on which this evidence was rejected later in this judgment. 10. The judge set out the detailed evidence she had heard, and we will summarise the lengthy passage from her judgment where she did that. This is an edited version of that passage, with some paraphrase in the interests of brevity. 84. Mrs Lam came to the UK from Malaysia in 1973 and trained as a nurse, qualifying in 1976. Mr and Mrs Lam married in 1985. Their elder son, Jonathan, was born later that same year. They purchased their first property, a flat at 54 Kings Court, in 1987. That property was held in joint names, subject to a joint mortgage. Mrs Lam's recollection in oral evidence was that she had contributed £8000 towards the deposit, raised from her savings in Malaysia. She could not remember whether Mr Lam had contributed to the deposit or not. In answer to questions in cross-examination she said she could not remember what deposit was put down. 85. Mr and Mrs Lam's daughter, Joanne, was born in 1991. The family moved in 1997 to 31 Kernerne Drive, Barnet. That property was bought for £148,000 and registered in the joint names of Mr and Mrs Lam, subject to a joint mortgage in favour of Abbey National PLC. Mrs Lam continued to work full-time as a nurse between 1976 and 1997, including the periods when her two elder children were born. She had given up work and taken on the role of full-time mother and housekeeper towards the end of 1997, after the house move. In her affidavit, Mrs Lam stated that, prior to giving up work in 1997, she had contributed from her salary to the joint mortgage and household outgoings. 86. In 2005, an 8-bedroom property at 57 Victoria Road North, Portsmouth was purchased for the sum of £320,000, in the joint names of Mrs Lam and a Ms Chin Ju May, subject to mortgage. Mr Lam provided no evidence as to how the purchase of this property had been financed. In her police interview on 20 July 2017, Mrs Lam said that 57 Victoria Road was purchased by Mr Lam from the sale of a previous business. She understood that the business was a success and that Mr Lam was bought out by associates. The property was put in her name because Mr Lam already had a mortgage in his name, and so she thought they might get a better rate on the mortgage. This was not her idea, but it sounded sensible and lawful, so she agreed. She said "we own 50% and another of my husband's associates own the other 50%". 87. In cross-examination Mrs Lam agreed that both she and Mr Lam had a joint mortgage on Kenerne Drive, so their positions were the same so far as already having a mortgage in their name was concerned. She said that maybe she had meant that Mr Lam already had a mortgage in Kenerne Drive. The rent went to pay the mortgage, the excess was divided up between her and the other wife. There was no evidence as to what Mrs Lam had done with the rental profits from 57 Victoria Road North. She did not suggest that any of those monies had been applied to payment of the mortgage on 11 Cavendish Road. 88. Both Mr and Mrs Lam provided various documents relating to their wills. On 14 September 2005 they both executed wills. In summary, each left everything to the other. 11 Cavendish Road 90. The Official Copy in respect of 11 Cavendish Road shows that Mr Lam was registered as sole proprietor with title absolute to the property on 15 th January 2007. The price stated to have been paid on 21 December 2006 is recorded as £395,000. Capital contributions to purchase of 11 Cavendish Road 91. No documentary evidence was provided by Mr or Mrs Lam as to how the purchase of 11 Cavendish Road was financed, including what sum, if any, was provided by way of deposit, and what sum, if any, was secured by way of mortgage. 92. Mr Lam stated in his section 17 response that the deposit was paid using monies that he received from the sale of his shares in a company of which he was a director in 2005. Asked about that in cross-examination, Mrs Lam said that she was sure that the money from that sale had gone into the purchase of 57 Victoria Road North. It hadn't gone into Cavendish Road. Her evidence was that the money to buy 11 Cavendish Road had all been borrowed, 100%. Express discussions between Mr and Mrs Lam as to how the beneficial interest in the property was owned 93. Mr Lam gave no evidence as to his intention at the time of the purchase of 11 Cavendish Road, or subsequently, as to whether Mrs Lam would have a share in the beneficial interest, and no evidence of any discussions between them as to whether she would have a share. In his section 18 response he asserted that although the property was in his sole name, Mrs Lam had an equitable interest of 50% in the property, as the property was their family home, and referred to her affidavit. 94. In that affidavit Mrs Lam said that the property was purchased in 2006 and put in the sole name of Mr Lam, subject to a mortgage in his sole name. At the time of the purchase she and Mr Lam jointly owned 31 Kenerne Drive, and they intended to sell that property once 11 Cavendish Road was ready to live in. As the couple's only source of income was from Mr Lam, the mortgage was based on his salary alone, and it therefore made sense to put the mortgage and the property in his sole name. She stated that it was nevertheless her and Mr Lam's intention as a married couple that the property would be shared equally between them as their new family home. She said that this intention was reflected in their wills. She pointed out that both had executed their wills in 2005, which she described as "just before this property was purchased". 95. In oral evidence Mrs Lam said that 11 Cavendish Road was intended by her and Mrs Lam to be their retirement home. Mrs Lam said that Mr Lam dealt with all the administration in connection with the purchase of 11 Cavendish Drive. In cross-examination she agreed that Mr Lam dealt with most of the financial dealings during the marriage. Asked about matters such as deposit, mortgage, mortgage rates, she said any big things that she didn't understand, he dealt with. She dealt with the day-to-day household bills, groceries and so on. 96. She said she was not concerned about the property being in Mr Lam's sole name. Everything they had was for each other and for the family. Whether the property was in his name or hers didn't matter: it was theirs, their home. She said that Mr Lam had not told her that he was putting the property in her sole name at the time. She had only found that out later. She said it hadn't worried her when she found out, because the property was still a family home. 97. Mrs. Lam rejected the suggestion that the reason 11 Cavendish Road was in Mr. Lam’s sole name was because the Portsmouth property in hers was treated as being in lieu of her interest in 11 Cavendish Road. She said, no, that was not her family home. She did not suggest, however, that this was a discussed and agreed position between her and Mr. Lam. Contributions to the re-development of 11 Cavendish Road 98. As at the date of the purchase, there was a bungalow on the site. 99. The Official Copy of the register of title shows that Mr Lam granted a legal charge dated 29 June 2007 in favour of The Mortgage Business PLC. No information was provided as to what sum was released by that mortgage, if any. I have no documentary or other evidence as to whether this was a first mortgage, a re-mortgage in the same amount as the amount outstanding under the mortgage, or a re-mortgage which released additional funds. 100. No documentary or written evidence was provided by Mr Lam as to the cost of the demolition of the bungalow and construction of the house now on the site, or as to how those costs were met. 101.Mrs Lam's oral evidence was that the total cost of the whole project, buying and rebuilding, cost about £600,000. She thought that the construction had cost about £300,000. She then said that the mortgage is £600,000, so the build must have been over £200,000. She ended by saying that, because Mr Lam had dealt with the building and everything, she was not sure. 102. Mrs Lam said that the money he borrowed was paid into the joint account, and they drew cheques on that account. She thought that the builders had billed intermittently throughout the project, rather than all at the beginning or all at the end. She said that there was a period of about two years when they were living at Kenerne Drive and 11 Cavendish Road was a building site. She said as long as there was enough money in the joint account to pay the bills and the mortgage, she left everything else to him to sort out. 103. She said because Mr Lam had already borrowed a lot of money, she thought she would try and see if she could borrow some. She had her asked Mr Lam's sister to help because Mr Lam had already borrowed a lot of money from Mr Loy. 105. Mrs Lam's oral evidence was that her sister-in-law had agreed to help. The purpose of the loan was to pay the builders. She said it wasn't a gift; she wouldn't expect a gift of that much money from her sister-in-law, because she is not her sister. Even had the money come from her brother, she would have paid it back. There were no terms agreed, no interest, no date for repayment. The money has not been repaid in whole or in part. 107.Mr Loy confirmed that his wife had agreed to loan money to Mrs Lam to help rebuild the property at 11 Cavendish Road. The money was paid into Mrs Lam's account. Mr Loy provided an application for remittance in which he said that the purpose of the investment was “investment” 108.Mrs Lam provided a statement from her NatWest sole account showing a transfer dated 18 August 2009 into the account in the sum of £49,993.00. Two cheques were drawn on that account on 24 th August 2009, cheque numbers 000945 and 000961, in the sums of £10,000 and £40,000 respectively. The stubs both record payments to the builders. The bank reviewed its records in 2020 at the request of Mrs Lam to find copies of those cheques, but had been unable to locate them due to the passage of time. 111. Mrs Lam dated the date on which the family were able to move from Kenerne Drive to 11 Cavendish Road as the end of 2009. 11 Cavendish Road, payment of mortgage and household bills 112. There was very limited evidence as to the history of payments made under the mortgage. I infer from the amount shown on the single bank statement provided which did show a mortgage payment that the mortgage must have been on an interest only basis. 113. In 2011, 31 Kenerne Drive was sold for £350,000. The net proceeds of sale of that property were £201,218.29. 115. Mrs Lam provided a copy of a statement dated 1 September 2011 from Mr and Mrs Lam's joint Halifax account showing that those monies were credited to that account on 31 August 2011. The statement shows that the opening balance on the account on 30 August 2011 was -£8,794.42. On 1 September 2011 a number of substantial withdrawals were made from the account by cheque. No explanation was advanced for those payments. A payment described as "DD -The Mortgage Bus" in the sum of £840.46 appeared to be a payment towards the mortgage. The closing balance on September was £131,942.54. 116. In oral evidence Mrs Lam said that the proceeds of sale of 31 Kenerne Drive were used to pay the mortgage and household bills and to fund household spending. In reply to questions in cross-examination she said that Mr Lam had used some of the monies for the business, and the rest was left in the joint account for their own use. [The judge then summarised the evidence from Mr. Lam about his own income during the period after the purchase and development of 11 Cavendish Road. The evidence left many questions unanswered but showed that after 1997 Mrs. Lam produced very little income and had very little capital. Her income tax returns showed an income from one or more of Mr. Lam’s companies, but it appeared that he had created these documents and she knew nothing about them]. 123. Mrs Lam's evidence was that she had not, to her knowledge, been in paid employment since she gave up work in 1997. She described her role as running the house and running after the children, as a full-time mother. She said that she did everything to do with the house, and made sure that all the bills were paid on time. She ran the house in order to give Mr Lam time to devote to the business. Mr Lam didn't do anything at home. He worked very long hours. She said that it wouldn't have been possible for him to work the hours he did without her support. 124. It had come as a surprise to her that she was stated to be an employee of the various companies. She knew that money was coming into the joint account, but she had thought it was Mr Lam's salary. She now appreciated that declarations had been made in her name to HMRC in respect of earnings from the company in her name. 125. Mrs Lam stated in her affidavit that the mortgage and many of the household bills were paid from Mr and Mrs Lam's joint Halifax account. Mr Andrews, the financial investigator, confirmed in cross-examination that the mortgage payments and bills for 11 Cavendish Road were paid from the joint account. Mrs Lam stated that the reason that the payments were set up in that way was because they intended to share the financial responsibilities for the house together. In oral evidence Mrs Lam said that she and Mr Lam shared all the money. 126. By Schedule 1 to the Legal Mortgage dated 18th February 2018 and made between (1) Boon Chen Loy (Lender) and (2) Chin Seong Lam (Borrower), Mr Lam represented and warranted as follows: 1. That he was the legal and beneficial owner of the property and had good and marketable title to the property 2. That the property was free from any encumbrances other than (a) a charge dated 29 June 2007 in favour of the Mortgage Business; and (2) the legal charge created by this legal mortgage 3. That apart from the encumbrances referred to in paragraph 2, the Borrower had not received or acknowledge notice of any adverse claim by any person in respect of the Property or any interest in it. 127. It appears from this document, and absent any other explanation, that Mr Lam's instructions to the solicitor who drew it up must have been that he was the sole legal and beneficial owner of the property. Mrs Lam's evidence was that she had not known about the charge, and Mr Lam had not discussed it with her. 128. In January 2019, 57 Victoria Road North was sold for £410,000. No completion statement was provided by Mrs Lam. Mr Andrews estimated from that that the mortgage outstanding as at the date of sale was in the region £141,500, but accepted that it may have been greater. On the basis of that estimate, and a 50/50 split of the net sale proceeds between Mrs Lam and Ms Chin, he estimated that Mrs Lam's share of the proceeds of sale would have been in the region of £131,000. Mrs Lam's oral evidence was that in fact her share of the proceeds of sale had been sixty something thousand, and that all those monies had been expended on lawyers' fees, and in paying the mortgage payments and household bills on 11 Cavendish Road and day-to-day living expenses whilst Mr Lam was in prison. In answer to questions in cross-examination she said that those monies had been paid into her sole account; the joint account was going to be closed, so she had no choice. 129. Mr and Mrs Lam continue to live at 11 Cavendish Road, with their two younger adult children. The Law as applied by the judge 11. The judge had earlier directed herself about the law she should apply when deciding whether Mrs. Lam had established a beneficial interest in 11 Cavendish Road, and, if so, to what extent. No criticism is made of this statement of the relevant law. The question on this appeal is whether she applied the law correctly when she came to her decision. 12. She said this. The Law 77. The leading authorities in relation to the approach to be taken by the courts in assessing the beneficial interest held by parties in matrimonial homes are the decisions of the House of Lords in Stack v Dowden [2007] 2 AC 432 and of the Supreme Court in Jones v Kernott [2007] 2 AC 432. Both of those cases involve a situation, unlike the present situation, where the property was registered in joint names, and one party sought to assert a beneficial interest of more than 50%. 78. In Jones v Kernott Lord Walker and Lady Hale, giving a joint leading opinion, set out the principles applicable in a case where a family home is purchased in the joint names of a cohabiting couple, both of whom are responsible for any mortgage, but without any express declaration of their beneficial interests at paragraph 51: (1) The starting point is that equity follows the law and they are joint tenants both in law and in equity. (2) That presumption can be displaced by showing (a) that the parties had a different common intention at the time when they acquired the home, or (b) that they later formed the common intention that their respective shares would change. (3) Their common intention is to be deduced objectively from their conduct: "the relevant intention of each party is the intention which was reasonably understood by the other party to be manifested by that party's words and conduct notwithstanding that he did not consciously formulate that intention in his own mind or even acted with some different intention which he did not communicate to the other party" (Lord Diplock in Gissing v Gissing [1971] AC 886, 906). Examples of the sort of evidence which might be relevant to drawing such inferences are given in Stack v Dowden , at para 69. (4) In those cases where it is clear either (a) that the parties did not intend joint tenancy at the outset, or (b) had changed their original intention, but it is not possible to ascertain by direct evidence or by inference what their actual intention was as to the shares in which they would own the property, "the answer is that each is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property": Chadwick LJ in Oxley v Hiscock [2005]Fam 211, para 69. In our judgment, "the whole course of dealing ... in relation to the property" should be given a broad meaning, enabling a similar range of factors to be taken into account as may be relevant to ascertaining the parties' actual intentions. (5) Each case will turn on its own facts. Financial contributions are relevant but there are many other factors which may enable the court to decide what shares were either intended (as in case (3)) or fair (as in case (4)). 79. They set out their view (in obiter remarks) as to the approach to be adopted by the courts where the legal title was registered is one party's name only. The starting point is different. The first issue is whether it was intended that the other party have any beneficial interest in the property at all. If he does, the second issue is what that interest is. There is no presumption of joint beneficial ownership. But their common intention has once again to be deduced objectively from their conduct. If the evidence shows a common intention to share beneficial ownership but does not show what shares were intended, the court will have to proceed as at para 51 (4) and (5) above. 80. In Stack v Dowden at paragraphs 69 and 70, Baroness Hale set out the following non-exhaustive list of factors which may be relevant to divining the parties' true intentions: [69] In law, 'context is everything' and the domestic context is very different from the commercial world. Each case will turn on its own facts. Many more factors than financial contributions may be relevant to divining the parties' true intentions. These include: any advice or discussions at the time of the transfer which cast light upon their intentions then; the reasons why the home was acquired in their joint names; the reasons why (if it be the case) the survivor was authorised to give a receipt for the capital moneys; the purpose for which the home was acquired; the nature of the parties' relationship; whether they had children for whom they both had responsibility to provide a home; how the purchase was financed, both initially and subsequently; how the parties arranged their finances, whether separately or together or a bit of both; how they discharged the outgoings on the property and their other household expenses. When a couple are joint owners of the home and jointly liable for the mortgage, the inferences to be drawn from who pays for what may be very different from the inferences to be drawn when only one is owner of the home. The arithmetical calculation of how much was paid by each is also likely to be less important. It will be easier to draw the inference that they intended that each should contribute as much to the household as they reasonably could and that they would share the eventual benefit or burden equally. The parties' individual characters and personalities may also be a factor in deciding where their true intentions lay. In the cohabitation context, mercenary considerations may be more to the fore than they would be in marriage, but it should not be assumed that they always take pride of place over natural love and affection. At the end of the day, having taken all this into account, cases in which the joint legal owners are to be taken to have intended that their beneficial interests should be different from their legal interests will be very unusual. [70] This is not, of course, an exhaustive list. There may also be reason to conclude that, whatever the parties' intentions at the outset, these have now changed. An example might be where one party has financed (or constructed himself) an extension or substantial improvement to the property, so that what they have now is significantly different from what they had then. 81. Taking these passages together, the following principles emerge. The starting point is that equity follows the law: where the legal title is vested in the name of one party alone, the evidential burden is on the person who seeks to establish that she has a share in the beneficial interest to show a common intention to share beneficial ownership. The court's task is to determine the common intention of the parties objectively from their conduct, taking into account factors such as those mentioned by Baroness Hale in Stack. 82. If the person asserting that they have a share satisfies that burden, the second issue is what that interest is. There is no presumption that the sharing is equal. The evidence in relation to issue 1 may establish what shares were intended, or it may not. Where it is not possible to ascertain by direct evidence or by inference what the parties' actual intention was as to the shares in which they would own the property, each is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property. "[T]he whole course of dealing ... in relation to the property" should be given a broad meaning, enabling a similar range of factors to be taken into account as may be relevant to ascertaining the parties' actual intentions. The judge’s decision 13. It is necessary to set out the judge’s reasoning in full. As we have said, there is no criticism in this case of her earlier statement of the law, and her reasons must be analysed with care to understand whether she applied the law correctly or not. 144. In my judgment it is important, in assessing the available evidence and the absence of evidence, to take into account the context of this case. This is not a case where a former couple are in dispute as between themselves as to who owns what share in their former home. This is a case where Mr and Mrs Lam, who remain a couple, are seeking together to assert that Mrs Lam has a share in the beneficial interest in their home. Mrs Lam has not previously asserted any such claim. Mr Lam has denied any such claim on the part of Mrs Lam until the commencement of these proceedings. There is an obvious motivation to make and concede such a claim now, to seek to preserve part of the value of the house, for their joint future benefit. 145. In my judgment I am entitled to draw the inference that further evidence, which could have been provided and which has not been provided, has not been provided because it would not support Mrs Lam's claim to a 50% share in the beneficial interest, but might tend to undermine it. The paucity of evidence as to Mr and Mrs Lam's intentions, in my judgment, results in part from the decision of Mr Lam not to give oral evidence, and in part from a deliberate decision to provide a minimal amount of documentation in the hope that what has been provided will be sufficient to persuade the court to decide that Mrs Lam, as Mr Lam's wife, must own half of the beneficial interest in their home. 146. The starting point is that equity follows the law: legal title is vested in Mr Lam's sole name. The evidential burden is on Mrs Lam to show a common intention to share beneficial ownership. The court's task is to determine the common intention of the parties objectively from their conduct, taking into account factors such as those mentioned by Baroness Hale in Stack. 147. I identify the following factors as of assistance in determining Mr and Mrs Lam's common intention as to whether and if so how the beneficial interest in the property should be shared: a. Mr and Mrs Lam have been married since 1985, and remain married and together, despite the undoubted stress of Mr Lam's conviction and subsequent imprisonment. b. The purpose for which 11 Cavendish Road was acquired in December 2006 was to provide a home for Mr and Mrs Lam and any of their three children, then approximately 21, 15 and 8, who continued to live at home. The house was built for them, and I accept Mrs Lam's evidence that it was envisaged to be their permanent and last home. c. There is no evidence as to any advice sought or received as to in whose name the title should be registered. There is no evidence as to why Mr Lam chose to put the property in his sole name. The conveyancing file was not provided and Mr Lam (who is the only person who might have been able to give evidence on this point) chose not to give oral evidence and did not deal with this question in his written evidence d. There was a paucity of evidence about how the initial purchase property was financed. No documentary evidence was provided by Mr or Mrs Lam as to how the purchase price of £395,000 was funded, including what sum, if any, was provided by way of deposit, and what sum, if any, was secured by way of mortgage. On Mrs Lam's evidence, it was Mr Lam who dealt with all major financial decisions and the administration associated with those decisions. Mr and Mrs Lam's evidence as to whether a deposit had been paid at all was in conflict: Mrs Lam said that all of the money to buy the property had been borrowed and Mr Lam's evidence that a deposit had been paid from the proceeds of sale of his shares in Aroma (presumably Aroma (Basildon) Limited), was directly contradicted by Mrs Lam, who said that those monies had gone towards the purchase of 57 Victoria Road North. Mr Lam's decision not to give oral evidence meant that he was unable to comment on this conflict, or clarify or correct his written evidence. e. Mr and Mrs Lam between them owned two other properties at the time of the purchase of 11 Cavendish Road: the family home at 31 Kenerne Drive, title to which was in their joint names, and the investment property at 57 Victoria Road North acquired in 2005. f. Title to 57 Victoria Road North was (with a third party) registered in Mrs Lam's sole name. The source of the funds provided towards the purchase of 57 Victoria Road North by Mr Lam was unclear on the evidence, but there was no suggestion that any of the funds had been provided by Mrs Lam. Mrs Lam's initial explanation as to why that property had been put in her name (that Mr Lam already had a mortgage) simply did not hold water, and when challenged, her evidence changed to Mr Lam had wanted to give it to her. The prosecution's attempt to introduce an argument that 50% of the proceeds of sale received by Mrs Lam in January 2019 were attributable to Mr Lam was strongly resisted by Mr Lam and ultimately abandoned by the prosecution as a result. There was no evidence from Mr Lam as to why this property was put into Mrs Lam's name. g. Mrs Lam had both joint and sole bank accounts. In terms of the accounts of which Mrs Lam had knowledge which were in her name, two were sole accounts (NatWest and Santander), one was a joint account with Ms Chin Ju May, the co-owner of 57 Victoria Road North, and one was a joint account with Mr Lam (Halifax). There was no evidence as to whether Mr Lam ran any personal accounts other than the joint Halifax account. Mrs Lam's evidence was that she kept her savings from her salary after she stopped work in 1997 in her sole NatWest account. The Santander was used to pay some household bills, but, as she put it, was used for the sole purpose of benefitting from their generous cash-back offer. No statements from that account were provided to show what bills had been paid. h. Mr and Mrs Lam, by their wills executed in September 2005, each left their estates to each other as primary beneficiary. i. There is no evidence of any express discussions between Mr and Mrs Lam at the time of the acquisition of 11 Cavendish Road which cast light on their intentions then. In his written evidence, Mr Lam simply asserted that Mrs Lam had a 50% equitable interest in the property, and provided no reason for that assertion other than that the property was their family home. As he chose not to give oral evidence, there was no opportunity for him to clarify or expand on his assertion. Mrs Lam's explanation as to why the property had been registered in Mr Lam's sole name did not stand up to scrutiny in cross-examination: in fact it transpired that the true position was that Mr Lam had not told her at the time that the property was to be registered in his sole name, and she had only found out later. She did not suggest that there had been any discussion at the point when she found out. She had found out, Mr Lam had not told her, and she did not appear to have broached the subject with him. Mrs Lam's confidence, (not expressed to and shared with Mr Lam), when she found out that 11 Cavendish Road was registered in Mr Lam's sole name, that it didn't matter, because it was theirs, their home, and he had made provision in his will for it to pass to her (along with the rest of his estate) if he predeceased her in my judgment is not sufficient to cast light on what Mr and Mrs Lam's joint intentions were as to whether she should have a share in the beneficial interest in the property. j. No documentary or other evidence was provided as to whether the legal charge dated 29th June 2007 in favour of the Mortgage Business PLC was a first mortgage, a re-mortgage in the same amount as the amount outstanding under a mortgage taken out to finance the purchase, or a re-mortgage which released additional funds. The conveyancing file for the mortgage was not provided. I have no evidence as to any advice which was sought or given. I have no evidence as to what, if anything, was said by Mr Lam to the mortgage lender as to whether any other person had a share in the beneficial interest in the property when the mortgage was taken. k. There was no evidence as to what advice Mr Lam received from any mortgage broker or financial adviser either in relation to the 2007 mortgage, or in relation to any mortgage taken when the property was acquired. There was therefore, no evidence as to whether there were any discussions as to whether the fact that the investment property and mortgage at 57 Victoria Road North was in Mrs Lam's name had any effect on the decision to put the property at 11 Cavendish Road in Mr Lam's sole name. 1. No documentary or written evidence was provided by Mr Lam as to the cost of the demolition of the bungalow and construction of the house now on the site, or as to how those costs were met. Mrs Lam's evidence was completely unclear as to how much the construction had cost, and as to how those costs had been paid, other than saying that Mr Lam had borrowed extra money for the re-build. Again, Mrs Lam's evidence was that Mr Lam concerned himself with these matters, and he chose not to give oral evidence. There was no documentary evidence provided to support her assertion that the money he borrowed had been paid into the joint account and that cheques had been drawn to pay the construction bills on that account. m. Mrs Lam claimed to have made a financial contribution to the construction project by applying monies borrowed from her sister-in-law to payment of a total of £50,000 to the builders. This loan was a soft family loan (no terms as to repayment, no interest charged, and still remaining unpaid and apparently still not pressed for more than 10 years after it was provided) from Mr Lam's sister. n. It was common ground that the mortgage and household bills were paid from Mr and Mrs Lam's joint Halifax account. Mrs Lam, to her knowledge, had no source of income after she stopped work as a nurse in 1997. To her knowledge, the monies which were regularly paid into the joint account were Mr Lam's salary. o. The proceeds of sale of 31 Kenerne Drive were paid into the joint Halifax account when that property was sold in 2011. Again, there was a conflict of evidence between Mr and Mrs Lam as to how those monies had been applied. Mrs Lam asserted that part of those monies had remained in the joint account and had been used to pay the mortgage and household bills and to fund household spending. The statement from the Halifax joint account showing the proceeds of 31 Kenerne Drive being paid into the Halifax joint account was provided. I was able to see that one payment towards the mortgage was taken from the joint account while some of the monies representing the proceeds of sale of 31 Kenerne Drive remained in the account. No explanation was advanced for the substantial payments out of the account, reducing the funds in the account by the end of the month to £131,942.54. Mrs Lam's evidence was directly contradicted by Mr Lam's evidence that the whole of the proceeds of sale of 31 Kenerne Drive were paid into Watermargin Limited. No evidence (such as subsequent dated bank statements) was provided to substantiate Mrs Lam's evidence that the balance of the proceeds of sale, after some of the monies were used for the business, was left in the account. In light of her evidence as to the responsibilities each of them took in the marriage for financial decisions and arrangements, absent any supporting documentary evidence, I am unable to accept her evidence on this point. p. P60s submitted on Mrs Lam's behalf recorded that she had been paid as an employee of various companies in which Mr Lam had an interest. On Mrs Lam's evidence, Mr Lam knew about these payments, as he prepared her tax returns. He did not comment on them in his written evidence. No attempt had been made to show that the monies notionally paid to Mrs Lam as an employee of the various companies had in fact been paid, or that they had been paid into the Halifax joint account. Assuming in her favour that they were, I am not persuaded that the fact that payments in her name, of which she was unaware, were made into the joint account from which the mortgage and household bills were paid is capable of casting any light on the parties' joint intentions as to the ownership of the property. It is difficult to see how Mrs Lam could be taken as intending by those contributions to acquire a share, because she was completely unaware of them. There is no evidence as to whether Mr Lam intended that Mrs Lam, by those contributions, should acquire a share in the beneficial interest in the property. q. To the extent that any payments from the Halifax account are beneficially attributable to Mrs Lam, in my judgment, as payments of interest due under the mortgage, rather than repayments of capital, they are to be given substantially less weight than would be afforded to repayments of capital, when seeking to determine the parties' joint intentions as to the ownership of the beneficial interest. r. Mr Lam, in executing the 18 th February 2018 Legal Charge in favour of Mr Loy, warranted that he was the sole legal and beneficial owner of the property. According to Mrs Lam's evidence, he did not discuss his intention to execute the charge with her at all. In my judgment, absent any explanation, this warranty is telling evidence of his intention as to the beneficial interests at the time the charge was executed. 148. I do not accept the submission made on behalf of both Mr and Mrs Lam that somehow Mrs Lam's contribution to the family falls to be taken into account. That contribution would be relevant in a matrimonial case, and might be relevant in a joint names case, but the property interests in this sole name case fall to be determined according to property law. The relationship provides the context, but is not to be counted as if it were a monetary contribution. I do not accept the submission that the 2005 wills cast any substantial light on Mr and Mrs Lam's intended joint beneficial ownership of a property purchased in December 2006. I reject the submission that the fact that mortgage payments were made from the joint Halifax account means that Mrs Lam contributed to the payment of the mortgage, and those payments in turn give rise to an inference of a common intention to share the beneficial interest in the property. The Halifax account was the account into which the household income was paid, and it was used for payment of all household expenditure. It was obviously necessary in that context for Mrs Lam, as the person who made the day-to-day payments of household bills and household expenditure, to be a joint account holder on the account. I am not persuaded that the bare fact that the mortgage payments were made from an account in joint names is sufficient by itself to justify the description of those payments as having been made beneficially by Mrs Lam. 149. For the reasons set out above, I am not satisfied as a matter of evidence that the proceeds of sale of 31 Kenerne Drive went towards paying the mortgage. I am not persuaded that Mrs Lam made any regular or substantial contributions towards the mortgage or household bills. 149A. As to Mrs Lam's contribution of the £50,000 paid towards the cost of building works, I do not accept that the fact that those monies were asked for by Mrs Lam, and paid by Mr Loy on behalf of his wife into Mrs Lam's sole NatWest account, necessarily means that they were provided beneficially by Mrs Lam, or that the use of those monies to pay bills outstanding in respect of the construction project necessarily supports an inference that Mrs Lam was intended to have a beneficial interest in the house. The monies were provided to Mrs Lam because of the familial relationship between Mr Lam and his sister. There is no evidence of any discussions between Mr and Mrs Lam as to whether the provision of these monies would affect the shares each of them held in the beneficial interest in the house. In my judgment this alleged contribution, absent any express discussions, to the extent that it can be regarded as being provided beneficially by Mrs Lam, would tend fall into the same category as the efforts of Mrs Rosset in Lloyds Bank v Rosset [1991] 1 AC 1 , and Ms James in Thomas v James [2008] 1 FLR 1598 : efforts by a non-owner to support the project of the owner designed to create a home for them both, not intended by either to give her a share in the beneficial interest in the home. 150. When I take all the evidence into account, the factors identified above which might point towards a shared intention are not sufficient to persuade me that there was a common intention to share the beneficial interest in 11 Cavendish Road, when weighed against the deliberate, unexplained and apparently undiscussed choice on the part of Mr Lam to register the property in his sole name, and his willingness in February 2018 to provide a warranty in the charge in favour of Mr Loy to the effect that he was the sole legal and beneficial owner of the property. In my judgment Mr Lam's motivation in now supporting his wife's claim is to reduce his available amount in these proceedings. The Grounds of Appeal 14. The court has received conspicuously able submissions from all three counsel in the case. We will not summarise them, but we will identify the Grounds of Appeal relied on. 15. Mr. Lam’s Grounds are as follows:- i) The determination was wrong in principle because the judge did not take into account Mrs. Lam’s contribution to the household and her role within the family when determining whether she had a beneficial interest. They had been married for 36 years and she gave up her career in order to raise their children. This allowed Mr. Lam to focus on his career and generate income. Therefore, the judge erred in concluding that Mrs. Lam’s contribution to the family was not to be counted as a monetary contribution. ii) The judge erred in distinguishing this case from “matrimonial cases” or “joint name cases”. Whilst the roadmap for considering beneficial interest in joint name cases was different, “context” is no less pertinent in this case than in joint name cases. In sole name cases, a person’s contribution to the family may be more significant when determining whether the parties intended to share the beneficial interest. iii) In matrimonial cases, the boundaries between the principles that the court must apply are inherently blurred. The leading authorities arise from disputes following the breakdown of a relationship. As a matter of principle, Mrs. Lam should not be left in a significantly worse position in relation to her beneficial interest simply because she had not divorced her husband. iv) The judge erred in concluding that “the relationship provided context but is not to be counted as if it was a monetary contribution”. The roadmap for considering the beneficial interest in sole name case was summarised in Jones v Kernott [2011] UKSC 53. The first issue is whether it was intended that the other party have any beneficial interest and the second issue is the level of the benefit interest. In respect to the first question, it would be wholly artificial to disregard the dynamic of the relationship in the search for the common intention. It would be “bizarre” if despite being married for 36 years, having three children together and giving up her nursing career to raise those children, the common intention was that she had no interest in the family home. It cannot be that Mr and Mrs Lam understood that following her decision to give up work to look after the home and the family, Mrs. Lam would have no beneficial interest in their family home. v) In relation to the second question, in cases where it is not possible to ascertain the parties’ actual intention, the share will be that which the court considers “fair”, having regard to the parties dealings. In this case, what is fair is that they have an equal benefit in the home, based on the length and nature of their relationship and their respective roles. vi) Whilst the consideration of fairness does not apply to the first question, in Jones v Kernott, Lord Walker and Lady Hale observed, “nor will it matter in practice that at the first stage of ascertaining the common intention as to the beneficial ownership, the search is not, at least in theory, for what is fair. It would be difficult (and perhaps absurd) to imagine a scenario involving circumstances from which, in the absence of expressed agreement, the court will infer a shared or common intention which is unfair”. vii) Additionally, the judge erred in failing to take into account Mrs. Lam’s financial contributions when considering her beneficial interest in the property. In Lloyds Bank PLC v Rosset [1990] 2 WLR 867, the Court held that financial contributions would readily justify the inference necessary for the creation of a constructive trust. The principle was upheld by subsequent courts. viii) Mrs. Lam arranged the £50,000 from her sister-in-law. It was paid into her sole bank account and used to fund part of the renovation work. The money was transferred at her request to her and into her account. Upon transfer, the money could only have been hers, whether it was hers alone or held jointly with Mr. Lam. The judge erred in concluding that in the absence of express discussions, the use of the £50,000 to fund the renovation did not support the inference that Mrs. Lam was intended to receive a beneficial interest in the house. Evidence of a discussion would have readily founded a beneficial interest without the need for the court to embark on the task of divining the parties’ common intention. However, a financial contribution alone would readily justify an inference that a beneficial interest was made absent explicit discussions. ix) In 1987, Mrs. Lam contributed £8,000 towards the purchase of 31 Kenerne Drive. This too should have been given weight when considering whether she had a beneficial interest. There was no evidence that following the sale of 31 Kenerne Drive, either £8,000 or half of the sale proceeds were reclaimed for her own personal use. Indeed, it was Mrs. Lam’s evidence that the money was put towards mortgage payments and household payments of 11 Cavendish Drive. The evidence before the court suggested that their financial resources were pooled. Neither her direct contribution of £8,000 nor the largely pooled nature of their resources were considered by the judge when determining the issue of beneficial interest. 16. Mrs. Lam’s Grounds are similar. They are as follows:- i) The judge erred in finding that Mrs. Lam’s contribution to the family should not be taken into account when determining whether she had an equitable interest in 11 Cavendish Road. Her contribution was plainly an important factor. ii) The judge implicitly recognised the importance of her contribution by accepting that it would be a relevant consideration if dealing with a matrimonial case or joint name case. However, the judge should not have distinguished between those types of case and a sole name case. The legal principles remain the same. As a result, the judge erroneously disregarded her non-financial contribution. iii) The judge erred in finding that Mrs. Lam’s contribution of £50,000 did not establish an equitable interest. The fact of the contribution was not in dispute and there was no proper basis upon which the judge could conclude that such a contribution did not establish any equitable interest. iv) The judge erred in finding that Mrs. Lam’s financial contributions were akin to those contributions of Mrs Rosset in Lloyds Bank v Rosset [1991] 1 AC 107 or Ms James in Thomas v James [2007] EWCA Civ 1212. In those cases, neither Ms Rosset nor Ms James made direct financial contributions to the construction of the property. At the hearing, the judge did not invite submissions on the matter. The cases were neither relied upon nor referred to by any party to the proceedings. The judge ought to have sought submissions on the point. v) Had the matters set out above been taken into account, the judge would have concluded that Mrs. Lam had a beneficial interest in the property of 50%. vi) Additionally, the judge erred in concluding that Mrs. Lam had deliberately withheld evidence because it would not support her claim to 50% share in the beneficial interest. It is accepted that the extent of the material available to the court is a relevant consideration when determining whether there is a beneficial interest. However, the judge’s conclusion was unfounded and amounted to mere speculation. It played a central role in the judge’s determination but was not raised during proceedings. In such circumstances, the judge should not have relied upon it. Decision and discussion 17. The first point to make is that this is an appeal about the facts. No new point of principle is involved. 18. We have come to the conclusion that the judge’s determination of Mr. Lam’s beneficial interest in 11 Cavendish Road at 100% cannot be sustained. This is because an examination of her paragraph 148 of the judgment holds by implication that Mrs. Lam’s “contribution to the family” is irrelevant as a matter of law. The judge said that it might be relevant in a matrimonial case or a joint names case, but that the case before her had to be decided “according to property law”. The judge’s subsequent reasoning is then entirely concerned with whether and to what extent Mrs. Lam made a financial contribution to the purchase price of 11 Cavendish Road, or paid any of the mortgage payments. This is an error of law, as her summary of the law at paragraphs 81 and 82 of her judgment, quoted in full at our paragraph 12 above, makes clear. In our judgment it is not right to say that evidence going to these issues which “might be relevant in a joint names case” is not relevant as a matter of law in a single name case. The exercise is the same in both types of case: to ascertain whether the common intention of the parties was that the legal ownership of an asset should he held on trust, and if so what the terms of that trust were. 19. Accordingly, it is necessary for us to re-evaluate the evidence having regard to all the evidence including Mrs. Lam’s “contribution to the family”. This means in this context the evidence (which was not rejected) that she used her income for the benefit of the family for the first 12 years of the marriage until 1997 when she gave up work in order to look after the family and the family home. At the time when she did that it is common ground that she was a joint legal and beneficial owner of the matrimonial home. The fact that the first two matrimonial homes were held jointly as to the legal and beneficial interests is evidence that this was their common intention between 1987 and 2006. There was no evidence of any agreement between her and her husband that this situation should change at the time of the acquisition of 11 Cavendish Road. The decision that 11 Cavendish Road should be conveyed into his sole name appears to have been taken by him alone and not to have been the result of any agreement between them both. Rather than looking for an express agreement that the property should be jointly owned in 2006, it would have been more appropriate to look at the conclusive evidence to that effect in respect of the previous matrimonial homes and to see whether there was any common intention that the position would be different when they moved house for a third time. There wasn’t. 20. The judge was right to evaluate the evidence she had heard in detail and to address the many problems in it. However, it might also have helped to stand back and look at the overall picture. A working wife had contributed to the family finances by contributing her income and some savings. She had also looked after the children and homes while the husband attended to his business. There was no reason to reject any of this evidence. When they bought their first two matrimonial homes the properties were in joint names and there would be no reason why equity would not follow the law in that instance. The last matrimonial home was acquired in a complex way, because it was purchased as a bungalow and then re-developed. During the long period when that was happening and while it was being funded in various ways which never became entirely clear, the family lived in the previous, jointly owned, matrimonial home. The proceeds of sale of that property, £201,218.29, were paid into a joint account. The only bank statement which was produced showed this, see the judge’s analysis at her paragraph 115 and 147(o) of the judgment, set out above. She did not accept the evidence of Mrs. Lam that the balance remaining in the account after payments made during the time covered by the single statement largely remained in the joint account to be used for mortgage payments, household bills and other such things. However, it follows from the findings that she did make that this was jointly owned money, half of which belonged to Mrs. Lam. If the mortgage payments and other household bills were not paid with this money, then they must have been paid with other money instead and the joint account money must have been used for some other purpose (it is agreed that it is not still there). The family finances appear to have been managed by Mr. Lam, but the assets he managed included a substantial amount of pooled joint money. 21. The judge began the passage of her judgment in which she sets out her decision on this issue with a finding that Mr. and Mrs. Lam were conspiring in these proceedings to preserve their joint family wealth. She said of their evidence in her paragraph 144 that:- “There is an obvious motivation to make and concede such a claim now, to seek to preserve part of the value of the house, for their joint future benefit.” 22. This, in our judgment, acknowledges the reality of the position. However opaque and devious Mr. Lam’s dealings have been over the years, there is really no reason to doubt Mrs. Lam’s evidence that as far as they were both concerned their family wealth, including in particular their home, was jointly owned for their joint benefit. They may well be gilding the lily now to try and strengthen their case, which is undermined by Mr. Lam’s inability to give any plausible evidence. There are certainly many missing documents and much missing information. If the central plank of their case, joint beneficial ownership of the family home, were implausible these things would be fatal to it; but actually it is not implausible at all. There is really only one piece of evidence which militates against it, which is Mr. Lam’s arrangement of the transfer of the legal title of the home into his sole name. This is unexplained. 23. We therefore turn to some aspects of the evidence concerning that acquisition of the title and the judge’s approach to them. First, we find that her approach to the Legal Mortgage dated 18 February 2018 and made between (1) Boon Chen Loy (Lender) and (2) Chin Seong Lam (Borrower) was unjustified. That approach was set at 147(r) of the judgment, quoted above. She found elsewhere in her judgment that this was a genuine legal charge created by Mr. Lam in favour of Mr. Loy but was a tainted gift actually designed by Mr. Lam to defeat the confiscation proceedings. The prosecution case was that it was a sham and thus conferred no beneficial interest in 11 Cavendish Road on Mr. Loy. The judge did not make that finding but held that it was effective to create a charge in favour of Mr. Loy to secure repayment of the loans made nine years earlier. It was carefully structured so that Mr. Loy could not force the sale of the property. Mrs. Lam’s evidence was that she had not known anything about the charge at the time when it was granted although she knew that in 2009 four payments of just under £50,000 had been made to Mr. Lam, because they were received into the joint account. She also knew that at the same time a further payment in the same sum was made by Mr. Loy to her which was a further loan, meaning that she knew that between them she and her husband owed Mr. Lam £250,000. The judge did not say whether she accepted that evidence or not. 24. The significance of this question to the present appeals is that the judge decided that the fact that Mr. Lam had declared that he was the sole legal and beneficial owner of the property in this (from his point of view) dishonest document was “telling evidence” that this was true. Since she rejected almost everything else which Mr. Lam had ever said, and since she gave a detailed and convincing explanation of his life of deceit and fraud, this is rather puzzling. It would seem that the reason why the charge was not a sham was that it was accepted in good faith by Mr. Loy, and that it reflected the agreement he thought he was entering into. From Mr. Lam’s point of view the charge was simply to preserve his home from the reach of the then anticipated confiscation proceedings, so that he and his wife could live in it. Although it did not, on its face, look like a gift by him that is what the judge held that it was. These findings are not challenged in this appeal, and the only live issue is whether Mr. Lam’s declaration in the 2018 charge that he was the sole beneficial owner of the property was of any evidential value. In our judgment it was clearly not. 25. The evidence concerning the reason why 11 Cavendish Road, unlike the previous two matrimonial homes, was conveyed into Mr. Lam’s sole name was very limited. He did not give evidence, and Mrs. Lam said she did not know that this had happened until much later. The court was therefore faced with deciding on the balance of probabilities whether this was done because the common intention of the parties was that Mr. Lam should be the sole legal and beneficial owner of the family home, or for some other reason. Mrs. Lam’s evidence was very clear that she and her husband both regarded the family assets including this property as jointly owned, and that the purpose of the acquisition and development of 11 Cavendish Road was to provide a home for them both for the rest of their lives. If that is true, what reason might Mr. Lam have for causing the legal title to fail to reflect this common intention? He was, it should be recalled, a dishonest businessman whose businesses were struggling. That would often cause such a person to ensure that the joint ownership of family assets was concealed as the sole ownership of his wife in order to protect them from creditors. Why might Mr. Lam choose a different course? Almost the only conceivable benefit to him of arranging matters so that the legal title in the matrimonial home was vested only in him was that it would enable him more easily to borrow against it without his wife’s knowledge and without potential lenders ensuring that she had been separately advised about whether she should agree to the proposed borrowing secured on her home. The fact that he did create a charge in 2018 using the apparent sole legal and beneficial interest and not telling his wife what he was doing may perhaps suggest that this was in fact his motive. If, in the absence of criminal proceedings, she had asserted a joint beneficial interest in the property and sought to rectify the title accordingly it is very difficult to see how she could have been defeated by what appears to have been a fraud on her. There is no finding by the judge that she was complicit in the way the purchase of 11 Cavendish Road was dealt with. 26. Further, the £50,000 loan to Mrs. Lam from Mr. Loy, which is described in paragraph 23 above, was paid to her and used to pay builders for the development of the property. The judge accepted that the loans made to Mr. Lam as part of the same series of transactions were genuine loans, and it is not clear why this fifth loan should be treated differently. If it was a genuine loan (a big “if”, but one accepted by the judge in respect of the loan arrangements generally) why should this not be treated as a contribution by Mrs. Lam to the development costs of 11 Cavendish Road? 27. There is no doubt that the dealings with 57 Victoria Road North, Portsmouth, muddied the waters and were never satisfactorily explained by either Mr. Lam in his written contributions or Mrs. Lam in her evidence. This purchase occurred in 2005 and was of a much cheaper property than 11 Cavendish Road and appears to have been associated with Mr. Lam’s business. In our judgment it was probably irrelevant to the common intention of Mr. and Mrs. Lam as to the ownership of their home. It was put to Mrs. Lam that she had acquired this in some way in substitution for her half interest in the matrimonial home and, unsurprisingly she rejected that suggestion. It was a poor swap in money terms, and it was not her home. The judge records her evidence on this issue at paragraphs 96 and 97 of her judgment which we have set out above. The Result 28. For all these reasons, as we have said, we find that the determination that Mrs. Lam had no beneficial interest in 11 Cavendish Road cannot be sustained and we allow both of these appeals to that extent. We find that it was established on the evidence that she held a 50% beneficial interest in it. The confiscation order made by the judge is therefore varied to that extent only. 29. It follows from this finding that the available amount is 50% of the proceeds of sale of 11 Cavendish Road after payment of the mortgage granted in 2007 in favour of the Mortgage Business. The available amount is not reduced to any extent by the charge in favour of Mr. Loy, by reason of the findings made by the judge. We say nothing further about the status of the charge in favour of Mr. Loy. There was no appeal in relation to that and the issue is not before us. It has been determined under s10A (Mr. Loy being present and represented as a person who held or may have held an interest in the property) that the charge was created by Mr. Lam alone and that Mrs. Lam did not know about it. It contained a false declaration by him that he was the sole legal and beneficial owner of the property and had good and marketable title to the property. 30. We invite the parties to draw up an amended confiscation order further to this judgment and to lodge it with both the Court of Appeal and the Crown Court at Harrow.

2022_04_01-5307.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/448/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/448

0ac49e4d37592218c7e8a6e099ee93d4dd1573ce66850f0b92157143485e56f8

[2022] EWCA Crim 753

EWCA_Crim_753

2022-05-12

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. IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202101923/B1-202101949/B1 NCN [2022] EWCA Crim 753 Royal Courts of Justice Strand London WC2A 2LL Thursday 12 May 2022 Before: LORD JUSTICE HOLROYDE MR JUSTICE SWEENEY MR JUSTICE EYRE REGINA v ANDREW MILNE JACOB DAMON BARNARD __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) _________ MR J BENSON QC appeared on behalf of the Applicant Milne. The Applicant Barnard did not appear and was not represented. _________ J U D G M E N T 1. LORD JUSTICE HOLROYDE: At about 1.00 am on 10 July 2018 a fire was deliberately started at a house in Eastbourne by pouring petrol through the letter box and igniting it. The fire rapidly spread. Toby Jarrett, his partner Gina Ingles and her 4-year-old son, Milo, were trapped on the first floor. Gina Ingles and Milo died as a result of smoke inhalation. Toby Jarrett was badly burned and sustained other serious injuries. A CCTV camera nearby recorded two men leaving the scene. The prosecution alleged that these two applicants were the arsonists. At their trial before Whipple J (as she then was) and a jury in the Crown Court at Lewes, they were convicted of two offences of murder and one offence of attempted murder. Milne was also convicted of possessing a prohibited weapon, a Taser found when his home was searched. They were sentenced to life imprisonment with long minimum terms. Their applications for leave to appeal against conviction were refused by the single judge. They are now renewed to the full court. 2. We have been assisted by written submissions on behalf of both applicants and of the respondent, and by the oral submissions of Mr Benson QC on behalf of Mr Milne. We are particularly grateful to Mr Benson because he has been good enough to appear pro bono . 3. For convenience, and meaning no disrespect, we shall for most part refer to people by their surnames only. 4. The prosecution case was that Barnard was a drug dealer, living in Portugal; that Milne acted as a debt collector and enforcer for Barnard, using violence if necessary; and that the fire was started because Jarrett owed a drugs debt to a man called Saunders who was said to be associated with Barnard. 5. The prosecution relied mainly on circumstantial evidence, including evidence to the following effect: (a) A green plastic petrol container was found outside the front door of the house, and a lighter was found nearby. DNA was recovered from both items, linking Milne to the petrol container and Barnard to the lighter. (b) On 6 July 2018 Milne bought 15 litres of petrol at a local petrol station. (c) ANPR evidence showed movements of a vehicle owned by Barnard which were consistent with a reconnaissance two days before the fire. (d) ANPR recorded another vehicle owed by Barnard, a Mercedes, driving towards the scene at 0024 on the night of the fire and driving in the opposite direction less than an hour later. The Mercedes was driven out of the country on a car ferry later that day. (e) Milne is a Glaswegian. His phone number was stored in Barnard's phone under the name "Scotty". Milne's phone had Barnard's number stored in its address book and had sent texts from "Scottish". (f) The applicants' phones were in communication on 9 July 2018. They were cell-sited in close proximity to each other at 8.45 that evening. They were both disconnected from the network after about 11.00 pm until a time after the fire. (g) A later search of Milne's home found not only the Taser but also a number of knives and other weapons. 6. The prosecution also relied on evidence that Barnard had confessed to an employee in Portugal, namely Sherwood, that he had to get a Mercedes out of the country because it had been used in a crime. He said that he and "a Scottish guy" had poured petrol through a letter box and set fire to a house in order to make an example of someone who owed him money. 7. Although it was not necessary in law for the prosecution to establish any particular motive, they sought to show that Toby Jarrett's drugs debt provided the motive for the applicants to have set his house on fire. The prosecution therefore applied to adduce evidence from a number of sources in support of that allegation. Their primary contention was that it was evidence which "has to do with the alleged facts of the offence with which the defendant is charged" and was therefore excluded from the definition of "bad character evidence" by section 98 of the Criminal Justice Act 2003 . In the alternative they contended that it was admissible as bad character evidence under one of three of the subparagraphs of section 101(1) of the 2003 Act , on the basis that it was important explanatory, paragraph (c); evidence going to an issue in the case, paragraph (d); or evidence to correct a false impression, paragraph (g). 8. So far as is relevant to these applications, the evidence in respect of which the application was made included the following. 9. First, evidence that on 10 January 2019 Nicholas Mann was assaulted in his home by two men. In summary, it was alleged that the two men had gained entry to Mann's home by pretending to be working for DHL Delivery. There was no evidence of any drug connection, nor of any debt owed by Mann. Mann said he did not know why he was assaulted or who the men were, but a box which they had left behind contained a card on which Milne's fingerprint was found. Further, a pair of gloves later recovered from Milne were found to bear the DNA of at least three people, one of whom matched Mann's DNA profile. Mann, at first, refused to make a statement, and the prosecution initially sought only to adduce the contents of his 999 phone call, which was said to be admissible under the res gestae principle and was therefore one of the exceptions to the hearsay rule preserved by section 118 of the 2003 Act . Later however, Mann agreed to give evidence and was cross-examined. 10. Secondly, evidence from Wayne Dedman, a neighbour of Milne, to the effect that Milne had said that he was a debt collector and had offered him work. Dedman's account was that he was told that Milne intended to cut or brand a drug user in Eastbourne who owed money to Milne's friend in Portugal. Dedman was offered money to help by restraining the victim and anyone else who was present, an offer which he declined. 11. Thirdly, evidence from Terry Taberer, who said he received a threatening note relating to payment of a debt, followed by several from a man with a Scottish accent repeating the threats. 12. These applications were resisted by counsel for both applicants, though Barnard did not dispute that evidence showing him to be a drug dealer could be adduced. The judge, having listened to the recording of Mann's 999 call and considered relevant case law, was satisfied that the possibility of concoction or distortion of Mann's account that he had just been attacked by two men could be discounted, and that the contents of the call were admissible as res gestae . She accepted the submission that all the evidence was relevant to the alleged motive of the applicants for starting the fire and was therefore admissible pursuant to section 98 . In the alternative, if it was bad character evidence, the judge held that it was admissible under either paragraph (c) or paragraph (d), though not paragraph (g), of section 101(1) . 13. The trial proceeded accordingly. Both applicants gave evidence denying any involvement in the fatal fire. 14. Milne called as a defence witness a girl (aged 15 at the time of the trial) who lived opposite the house which was attacked. She had been 12 at the time of the fire. She had given an account to the police, which was recorded on video, in which she said that she had seen a man dressed in black, with a green petrol can, who had been hunched over by the front door of the house opposite and who had then run off taking the petrol can. A short time later she had seen that the house was on fire. In answer to further questions she said she was not sure whether the petrol can was taken away. Her account was inconsistent with the prosecution case, which relied on the CCTV footage showing two men leaving the scene, neither of whom was dressed in black. She was not relied upon by the prosecution. She was however called as a defence witness, with her recorded statement standing as her evidence-in-chief, and she was cross-examined. 15. The grounds of appeal of both applicants challenge the judge's ruling admitting the evidence of Mann. On behalf of Milne, Mr Benson emphasises the absence of any evidence that the assault on Mann was connected to a drug debt or indeed any debt owed to Barnard. He submits that there therefore could be no basis for viewing this as evidence showing an example of Milne enforcing a debt on behalf of Barnard. The evidence accordingly could not be said to have to do with the facts of the case. It did not meet the criteria for admissibility as bad evidence under either paragraph (c) or paragraph (d), in particular because it was not necessary to explain other evidence and in any event related to an event months after the fire. Mr Benson argues in the alternative that even if it were admissible as evidence of bad character, the evidence should have been excluded on grounds of fairness because it was highly prejudicial. 16. The written submissions of counsel on behalf of Barnard add that, even if it were relevant to the case against Milne, the evidence could not in any way be linked to Barnard and was therefore purely prejudicial in his case. 17. Milne has a further ground of appeal relating to the young defence witness. Mr Benson submits that the judge should have given the jury some guidance as to their approach to an account given by a witness as young as 12, but instead summarised the evidence in such a way as to suggest that it was inherently unreliable. It is further submitted that the judge's summary of the evidence was unsatisfactory, for example, because it reminded the jury of the girl's assertion that the petrol can had been taken away but did not remind them of her later acceptance that she was not sure about that point. 18. In his oral submissions Mr Benson indicated that he no longer pursued a ground of appeal which had challenged the rulings admitting the evidence of Dedman and Taberer. 19. Counsel who represented Barnard put forward only the one ground of appeal to which we have referred. Barnard himself has however put forward further written grounds, to which he has added additional points helpfully passed to the court by his mother on his behalf. In summary, Barnard contends that: (a) The jury who returned majority verdicts were rushed into giving those verdicts. (b) Reference was wrongly made to an inquiry into a man called Eldridge who had been reported missing in Portugal. (c) Reference was wrongly made to Saunders owing a drug debt to Barnard, when there was no such debt. (d) Police officers in court influenced the jury. (e) Others should have been charged, but the judge wrongly directed the jury that they could only consider the applicants as suspects. (f) Prosecution evidence had been altered or tampered with. (g) The jury were not shown all relevant material, for example, relating to the cell-siting of one of his phones, and matters had been covered up. (h) Prosecution witnesses were untruthful or unreliable, and parts of the evidence were inconsistent or contradictory. (i) His instructions were not followed by his legal representatives. (j) The judge's summing-up was unfair. (k) The trial was unfair because the applicants were not provided with iPads similar to those used by the jury. 20. We have reflected on all the arguments advanced on behalf of the applicants. 21. It is, in our view, important to keep well in mind the CCTV footage which showed two men leaving the scene and the scientific evidence which established a clear DNA link between the applicants and the petrol container and lighter found at the scene. The jury were plainly entitled to infer from that evidence that the applicants were the arsonists. The jury could also infer that those who started the fire intended to kill the occupants of the house and so find them guilty of the offences charged in counts 1 to 3. That was so whether or not the jury accepted the prosecution case as to the alleged motive. Similarly, whatever the jury made of the evidence relating to motive, they were entitled to accept Sherwood's evidence that Barnard had confessed to setting the house on fire. It was not necessary for the prosecution to prove the alleged or any motive. 22. In her ruling on the admissibility of the evidence relating to motive, the judge expressly adopted the approach that this was a borderline case in which it would be appropriate to consider the application, both on the basis that it was evidence excluded from the statutory definition of bad character and on the basis that it was bad character evidence admissible only if one of the provisions of section 101(1) was satisfied. We respectfully agree. We also agree with the judge that whichever approach be adopted, the fact that evidence related to matters occurring after the fatal fire was not in itself necessarily a bar to it being admissible as evidence of motive. In particular, the case of R v Sule [2012] EWCA Crim 1130 ; [2013] 1 Cr App R 3 , which was relied upon in argument, does not impose such a bar. That case was concerned with whether, on the facts, it was necessary to establish a close temporal link between the alleged offence and the earlier events which were said to have provided the motive. 23. We see no basis on which the judge's summing-up of the evidence of the young witness can be criticised. The evidence was summarised briefly but fairly. The direction which is said to have been necessary was not set out in precise terms, but Mr Benson submitted that there should have been a direction modelled on one recommended in the Crown Court Compendium at section 10-29 in relation to a very young complainant giving evidence of a sexual offence. That model is appropriate in a case where the allegation against the accused is based on the evidence of a very young child who, by reason of age, may for example have little or no understanding of the significance of the conduct he or she is describing. There does not appear to us to have been any reason why an analogous direction was necessary in relation to a defence witness aged 12, describing the actions of a person at the door of a neighbour's house in the early hours of the morning. The jury would be well able to evaluate her evidence and to consider the significance of the fact that her account of one man leaving the scene was inconsistent with the CCTV footage. It is, we think, significant that the judge was not asked at the time to give such a direction. That is not a matter of criticism; it is, on the contrary, a reflection of the fact that no direction was needed. 24. So far as the grounds of appeal put forward by Barnard in person are concerned, we understand of course that the points which he makes are important to him. However, we can see nothing in them which even arguably casts doubt on the safety of his convictions. Some of the points relate to matters which either were considered by the jury or could have been, but were not, raised before the jury. Others are based on a misunderstanding by Barnard of the relevant law or procedure. In particular, the applicant appears to have misunderstood the process by which the prosecution and defence are able to decide what evidence they wish to put before the jury, and for submissions to be made if the admissibility of evidence is in dispute. We note that the timing of the judge's majority verdict direction was specifically discussed with counsel, and there is no basis for criticising it. 25. We therefore turn, finally, to the grounds of appeal relating to the assault on Mann. The complicating features of his initial refusal to co-operate with the police, the application by the prosecution to adduce the content of his 999 call under the res gestae principle, and the subsequent willingness of Mann to attend court and give evidence, may well have had the unintended effect of diverting attention from the real issue, namely whether the incident at his home was of any relevance to the issues in the trial, and focusing instead on matters which could only be significant if the evidence were indeed relevant. 26. We cannot see that the incident was of any relevance at all. It was an assault 6 months after the fatal fire, on a man who was not shown by any evidence to be in debt to Barnard or to anyone else involved in Barnard's drugs business. At most, it was evidence of an assault for which no explanation was given. The judge in summing-up at page 71A concluded her reference to this evidence by saying: "There's nothing to link this assault directly with Mr Barnard. There's nothing to link this assault with any drug debt that might have been being enforced on Mr Barnard's behalf. It is just one assault in January 2019, some months after the fire. It is an example of violent behaviour. That is all." 27. With all respect to the judge, we see considerable force in the submission that she fell into error in admitting the evidence in those circumstances. The prosecution had been permitted to adduce the evidence relating to motive in order "to explain the relationship of Barnard as drug dealer and Milne as debt enforcer to show the motive for the setting of the fire". Evidence of an example of violent behaviour by Milne 6 months after the fire could not be relevant in that way. No application had been made to adduce evidence showing a general propensity to violence, unconnected with debt collecting or enforcement, and no such application could have succeeded. The judge was entitled to conclude, in relation to the 999 call, that there was no real prospect that Mann had fabricated his report of an assault; but the mere fact that he had been assaulted was of no relevance to the case against either applicant, and it could therefore have no probative value. It was merely prejudicial evidence of violent behaviour by Milne. 28. We have therefore considered whether, if that evidence should not have been admitted, its wrong admission renders all or any of the convictions unsafe. We are satisfied it does not, even arguably, do so. At its highest, the evidence neither advanced the case for the prosecution nor caused any significant prejudice to the case against Milne. The jury were directed that there was no evidence connecting this incident to Barnard, and it therefore could not cause any prejudice to his defence. For the reasons we have summarised earlier in this judgment, there was a very compelling case against both accused regardless of any evidence as to their motive. Their own evidence that they had no involvement in the fatal fire must have been disbelieved by the jury. 29. For those reasons, grateful though we are to Mr Benson, these renewed applications fail and are refused. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk

2022_05_12-5328.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/753/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/753

06ef6d754ebb6a71311933fc05601c0ce8ad456ca43a624113e046540b48de3c

[2013] EWCA Crim 2312

EWCA_Crim_2312

2013-11-19

crown_court

Neutral Citation Number: [2013] EWCA Crim 2312 Case No: 201301477 C5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 19 November 2013 B e f o r e : LADY JUSTICE SHARP DBE MR JUSTICE GRIFFITH WILLIAMS MR JUSTICE LINDBLOM - - - - - - - - - - - - - - - - - - - - - R E G I N A v ROBERT FRANCIS - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Co

Neutral Citation Number: [2013] EWCA Crim 2312 Case No: 201301477 C5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 19 November 2013 B e f o r e : LADY JUSTICE SHARP DBE MR JUSTICE GRIFFITH WILLIAMS MR JUSTICE LINDBLOM - - - - - - - - - - - - - - - - - - - - - R E G I N A v ROBERT FRANCIS - - - - - - - - - - - - - - - - - - - - - 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 J McCrindell appeared on behalf of the Appellant Mr L Chinweze appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. LADY JUSTICE SHARP : This is an appeal with the leave of the Single Judge against conviction. On 4 March 2013, the appellant, Robert Francis, was convicted after a trial at the Crown Court of Kingston upon Thames of one count of assault occasioning actual bodily harm, contrary to section 47 of the Offences against the Person Act 1861 and affray, contrary to section 3 of the Public Order Act 1986. These were counts 1 and 2 respectively on the indictment. 2. On 12 April 2013, he was sentenced to concurrent community orders of 12 months, with a requirement to complete 100 hours of unpaid work and to observe a daily curfew between 21.00 hours and 6.00 hours for eight weeks. 3. The facts which gave rise to the appellant's conviction are these. On 16 May 2012, after the appellant had been working for two days on a building site as a brick layer, he discovered his laptop was missing. The appellant was angry about this and an altercation broke out in the canteen between the appellant (holding a brick or claw hammer), two brothers Lee and Gary Parker, who were working as plumbers on the same site and a third plumber, Adam Clark. 4. The site manager, a Mr Dutton, saw the appellant outside with the hammer making threats and called the police. When the police arrived about 20 minutes later, the appellant was abusive, made racial slurs and had to be restrained using handcuffs and leg restraints. He denied the offences in interview. 5. The prosecution case was that the appellant went to attack Lee Parker with the hammer. He was then restrained by Gary Parker and Adam Clark, and during the struggle he cut Gary Parker's hand with the hammer, either intentionally or recklessly (count 1); and after the altercation once outside he brandished the hammer in an aggressive and threatening manner, threatening to kill one of the plumbers (count 2). 6. At the trial, Lee Parker said when the appellant came into the canteen he was angry and aggressive and demanded to know who had taken his laptop. The appellant left but returned, and Mr Parker told him to calm down. The appellant became abusive saying, "I'll show you fucking calm". He left the canteen again and returned holding the hammer raised above his head. Lee Parker raised his arms to shield himself. Gary Parker and Adam Parker intervened and all three of them ended up struggling with the appellant on the floor. 7. Gary Parker and Adam Clark gave similar accounts. Adam Clark said that the tables in the canteen had gone everywhere as the appellant tried to get at Lee Parker with the hammer. Gary Parker said that the appellant subsequently appeared outside with the hammer. All three denied the suggestion put to them in cross-examination that they had attacked the appellant for no reason. 8. Mr Dutton said he had been called to the front office. When he arrived the appellant was running around with a hammer using foul language, accusing the plumbers of stealing his laptop and threatening to use the hammer and kill one of them. Mr Dutton said he was fearful for his life and for others. He tried to calm the appellant down, but the appellant yelled at him and was aggressive. Mr Dutton called the police and there was a confrontation between the appellant and the police when they arrived. 9. The police officers who attended gave evidence that the appellant was holding the hammer aggressively and pacing up and down with his teeth clenched. Initially he would not let the hammer go, despite being told to do so. When he threw it to the floor they were fearful he might attack them and grabbed his arms. The appellant tried to pull away so they took him to the floor with the assistance of a woman passer-by. One of the officers held his head to stop him biting and spitting and he was restrained with two sets of handcuffs. The appellant was arrested and cautioned but was so busy shouting and swearing and struggling he may not have heard. Other units were requested to attend by which time the appellant was kicking out with his legs and leg restraints were therefore applied. 10. The appellant said he had been angry when he discovered his laptop had disappeared. He was holding the hammer because he had been working with it. He went to the canteen and the second time he spoke to the plumbers and demanded to know who had taken his laptop. He said he flipped, but only verbally because he did not get a response. The plumbers then “jumped him”, pinned him to the ground and removed the hammer. He did not know how Lee Parker cut his hand. 11. When they got off him he walked around for about half an hour asking people about the laptop. He did not brandish the hammer, nor was he aggressive. He did not put the hammer down immediately when asked to by the police because he could not understand why they were more concerned about that than his laptop. When he put it down they grabbed his arms and took him to the ground. He accepted he was abusive and made racial slurs. He was not told he was being arrested until he was in the back of the police van. The bad character applications 12. At the beginning of the trial the defence applied pursuant to section 100 (1)(b) of the Criminal Justice Act 2003, for leave to adduce bad character evidence in respect of Lee Parker and Adam Clark. The defence wished to put to Lee Parker his conviction for violent disorder in June 2001, for which he was sentenced on 15 August 2002 to 18 months' imprisonment. The conviction had arisen out of a large street fight in Derby 13. The defence wished to put to Mr Clark a formal warning that he had received on 19 January 2010 when he was 17 for an offence of assault occasioning actual bodily harm. The warning had been given after an incident on 1 January 2010, when he had kicked and punched the complainant causing minor injuries. This followed an argument between them in which he said the complainant had insulted his mother. 14. Section 100 of the Criminal Justice Act (the Act) provides, so far as material, as follows: 15. "100 Non-defendant’s bad character (1)In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if— ... (b)it has substantial probative value in relation to a matter which— (i)is a matter in issue in the proceedings, and . (ii)is of substantial importance in the context of the case as a whole ... ... (3)In assessing the probative value of evidence for the purposes of subsection (1)(b) the court must have regard to the following factors (and to any others it considers relevant)— (a) the nature and number of the events, or other things, to which the evidence relates; (b) when those events or things are alleged to have happened or existed; (c) where— (i)the evidence is evidence of a person’s misconduct, and (ii)it is suggested that the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct," 16. The defence submitted that the issue on count 1 was whether the aggressor was the appellant or the plumbers. This was an issue of substantial importance in the context of the case as a whole, and both the conviction and the warning were of substantially probative value in relation to that issue, particularly because they involved both "group" violence similar to that which had occurred in this case. 17. The judge refused the applications. She said that neither the conviction nor the warning were of substantially probative value given the age of the conviction, the low-level nature of what was alleged against Mr Clark (resulting, as it did, in a warning rather than a conviction) and the lack of similarity between those incidents, which involved street violence, and this case which concerned an incident at work. She mentioned too that the matters might divert the jury from its real task without enlightening them and would lead to the introduction of satellite issues. 18. The application in respect of Mr Clark alone was renewed following an answer given by him to a question put in cross-examination. It was suggested the plumbers had assaulted the appellant. Mr Clark said he had not done it and he had not done it on any other occasion. The defence said this “opened the door” to the admission of bad character evidence since by that answer Mr Clark was seeking to give the impression he would never have behaved violently. The judge dealt with the submission in short order. She refused it for the same reasons, she said, as she had given for refusing the application on the first occasion on which it was made. 19. Mr McCrindell, who appears for the appellant today and appeared for him at trial, submits that in refusing the bad character applications the judge fell into error. He relies before us on the same arguments as those made unsuccessfully to the judge; and has referred us to the a number of authorities, including R v Brewster and Cromwell [2010] EWCA (Crim) 1194 , R v S (Andrew) [2006] EWCA (Crim) 1303 and R v Braithwaite [2010] EWCA (Crim) 1082 , which are relevant to the admission of bad character evidence pursuant to section 100 of the Act. In the event, we have not found it necessary to hear oral argument from Mr Chinweze for the prosecution, though we have been assisted by his submissions in writing. 20. In Braithwaite Lord Justice Hughes said this at paragraph 10: 21. "This assessment [under section 100 of the Act] is, by definition, highly fact-sensitive in each case. It is an assessment of whether the evidence in question substantially goes to show (prove) the point which the applicant wishes to prove on the issue in question. The issue will often, but not always, be either the propensity of the person against whom the application is made to behave in a particular way, or his credibility. The probative value of the evidence advanced falls to be assessed in the context of the case as a whole…” 22. In relation to the first application, the evidence which the defence wished to adduce was potentially relevant to an issue of substantial importance to the case, that is, who was the aggressor. However, we do not consider the judge was wrong in her assessment of its probative value or therefore to refuse the application, broadly for the reasons she gave in her ruling. In our view, on the facts of this case, the jury would not have been assisted in their deliberations by reference to either the conviction or the warning. 23. It is true as Mr McCrindell has pointed out that the judge referred at the end of her ruling to the potential for the introduction of satellite issues. In R v Brewster v Cromwell at paragraph 24 this court said in relation to the admission of bad character evidence pursuant to section 100 of the Act : 24. "Once it is decided that [such bad character evidence is] …of substantial probative value in relation to an issue of substantial importance in the context of the case as a whole, there is no residual discretion except in the exercise of case management to refuse the admission of the evidence..." However, as we have said, the judge refused to admit the evidence because of its lack of probative value; she did not, in our view, purport to exercise a residual discretion to exclude it. 25. As for the second bad character application, we do not consider that the way in which Mr Clark answered the question he was asked, on a fair reading of his answer in context opened the door to the bad character evidence the judge had already excluded. 26. Although this is sufficient to dispose of this appeal we should add that even if the judge erred in the manner suggested we are in any event, of the view that the conviction of this appellant was entirely safe. On his own admission the appellant got very angry about the disappearance of his laptop. He returned to the canteen with a claw hammer, having failed to receive a satisfactory response from the plumbers and then verbally flipped, as he put it, at what he regarded as Lee Parker's dismissive response. There was also ample independent evidence from Mr Dutton and the officers of the appellant's aggressive and threatening behaviour, including of his continuing to hold onto the hammer, after he had left the canteen. 27. Mr McCrindell has renewed his application for leave to appeal against conviction on a further ground, for which permission to appeal was not expressly given by the Single Judge. It was that the judge declined to direct the jury that if the appellant had been unlawfully arrested by the police he would have been entitled, as matter of law, to use reasonable force. 28. We do not think there is anything in this further point. The appellant’s misconduct after the police arrived was not relied on by the prosecution as part of the affray and the appellant did not face a discrete charge relating to his behaviour on arrest. We take the view that in those circumstances such a direction was unnecessary. 29. For these reasons the appeal against conviction is dismissed.

2013_11_19-3283.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/2312/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2013/2312

28e55cadda7b5dceb3a80b6ad0602a2adb377e1dd2e230e02aeb146741473206

[2010] EWCA Crim 63

EWCA_Crim_63

2010-01-13

crown_court

Case No: 200905394/B5 Neutral Citation Number: [2010] EWCA Crim 63 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 13th January 2010 B e f o r e : LORD JUSTICE LAWS MR JUSTICE BEATSON MR JUSTICE BLAKE - - - - - - - - - - - - - - - - - - - - - R E G I N A v ADAM WALKER APPEAL UNDER S.3(C) OF THE COSTS IN CRIMINAL CASES REG 1991 - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave Internati

Case No: 200905394/B5 Neutral Citation Number: [2010] EWCA Crim 63 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 13th January 2010 B e f o r e : LORD JUSTICE LAWS MR JUSTICE BEATSON MR JUSTICE BLAKE - - - - - - - - - - - - - - - - - - - - - R E G I N A v ADAM WALKER APPEAL UNDER S.3(C) OF THE COSTS IN CRIMINAL CASES REG 1991 - - - - - - - - - - - - - - - - - - - - - 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) NON-COUNSEL APPLICATION - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE BLAKE: This is an appeal to this court by a solicitor pursuant to the Costs in Criminal Cases (General) Regulations 1986 and regulation 2C of those regulations governs appeals to this court. It concerns a order that wasted costs in the sum of £53.48p should be made against the appellant in respect of events in August 2009. 2. On 31st July 2009 a defendant, who was a client of this appellant before the Skipton Magistrates' Court was committed for sentence on bail by the Justices to the Bradford Crown Court. The defendant was handed a notice in the following terms: "Case adjourned to week commencing 24th August 2009 at 10.00 am." The Justices' register records the following: "Results. Committed to Crown Court for sentence on unconditional bail. Committed to Bradford Crown Court for sentence [giving the section of the Powers of Criminal Courts Act] on 24/08/2009 or such other date, time or place as the Crown Court directs on unconditional bail. Text During week commencing 24/08/2009." 3. The appellant understood that the committal for sentence was to a date in the week commencing 24th August 2009 that would be listed in due course and he would be informed of that date so as to inform his client. It appears that the Crown Court listing office took the view that those directions were to date certain, 10 o'clock on 24th August 2009, unless the Crown Court directed another time, date or place. It may be that the defendant (the client of the appellant) understood that he had to surrender his bail at 10 o'clock, as it appears he did in fact turn up on that date but there was no representation for him because of this appellant's understanding that it was a matter to be remanded for a date to be listed in that week. He in fact telephoned the Crown Court on 24th August to find out why he had been informed of no date, had been told the matter was in the list for that date, attended court, explained the position to the judge and apparently relayed the same information to the client. The judge put the matter over to 27th August when the sentence was determined for the appellant's client and then dealt with the wasted costs matter in the way indicated. 4. The grounds of appeal essentially suggest that there was no or no sufficient fault to justify the making of this order in these circumstances and moreover insufficient information had been given as to the basis on which an order was minded to be made for the appellants to make representations to the judge on that matter as is required under the scheme of the regulations. 5. Although the authority of this court indicates the case of DPP v Denning [1991] 2 QB 532 , that the words used in regulation 3, a result of unnecessary or improper act or omission on behalf of a party do not necessarily require grave impropriety, there has to be something which reaches the certain threshold. In this particular case, having regard to the possible ambiguity of the terms of the notice that was granted to the defendant about what the justices had intended to achieve, and no doubt anything that this appellant had been told as to what the basis of the justices decision was, there appears to have been a genuine misunderstanding which led to the failure to secure representation was available on 24th August itself. Moreover it does appear that the basis on which a wasted costs order might be made against this appellant was not sufficiently clearly identified because it was only after until the order was made that the appellant got the relevant documents from the justices and put them before the Crown Court. It is necessary that there be a fair opportunity to respond to an allegation of omission that would justify a wasted costs order, if there was uncertainty as to precisely what the justices had said, the position was not right for adjudication. 6. Having regard to both those matters, the conclusion of this court is that this appeal should be allowed and the wasted costs order set aside. Nothing is intended to discourage solicitors where there is an ambiguous order from making the appropriate enquiries before the date on which it is too late to do what is necessary has past, but in this particular case it was a short period of remand, with some degree of uncertainty, as indicated.

2010_01_13-2212.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/63/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/63

dd62d62b56a5e2ecf0d5183436fe6c7739962d8bded9a1e269b17f4678669d6c

[2020] EWCA Crim 1028

EWCA_Crim_1028

2020-08-04

crown_court

Neutral Citation Number: [2020] EWCA Crim 1028 Case No: B4/2019/2730 , 03089 + B4/02987, 02988 + 03184 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT NOTTINGHAM MR JUSTICE GOOSE T20187421 Royal Courts of Justice Strand, London, WC2A 2LL Date: 04/08/2020 Before: LADY JUSTICE MACUR MR JUSTICE JAY and HIS HONOUR JUDGE MARKS QC - - - - - - - - - - - - - - - - - - - - - Between: CN, FN & DW Appellants - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2020] EWCA Crim 1028 Case No: B4/2019/2730 , 03089 + B4/02987, 02988 + 03184 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT NOTTINGHAM MR JUSTICE GOOSE T20187421 Royal Courts of Justice Strand, London, WC2A 2LL Date: 04/08/2020 Before: LADY JUSTICE MACUR MR JUSTICE JAY and HIS HONOUR JUDGE MARKS QC - - - - - - - - - - - - - - - - - - - - - Between: CN, FN & DW Appellants - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr A Waterman QC and Mr A Vout (instructed by Stephen Burdon Solicitors ) for the 1st Appellant (CN) Mr M Auty QC (instructed by Messrs Bhatia Best ) for the 2nd Appellant (FN) Mr M Duck QC (instructed by Johnson Partnership ) for the 3rd Appellant (DW) Mr P Joyce QC and Miss J King (instructed by Crown Prosecution Service ) for the Respondent Hearing date: 23 July 2020 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Macur LJ: 1. Esrom Ghide (EG) died in the late afternoon of 5 September 2018. He had been stabbed 17 times, to 12 different areas of his body. The fatal stab wound entered the left side of his chest and penetrated his heart. CN and FN were convicted of his murder, as was Daniel Williams (DW). Two other defendants were acquitted of all counts. CN and FN appeal their conviction, and if necessary, sentence with leave of the single judge. Their respective grounds of appeal against conviction criticise the judge’s “approach” to accessory liability, his admission of their previous convictions and his decision to admit covert recordings of DW at trial, which implicated them both. DW also appeals sentence with leave of the single judge. All three contend that the sentences, detention at HM Pleasure with minimum terms of 15 years for CN and FN and 18 years for DW, were manifestly excessive. 2. Pursuant to s 45 of the Youth Justice and Criminal Evidence Act 1999 , no matter relating to the appellants CN and FN shall, while they are under the age of 18, be included in any publication if it is likely to lead members of the public identifying them as persons concerned in the proceedings. Summary of facts. 3. CN, FN and DW arrived together at the scene of the stabbing with one other youth; another youth joined them shortly afterwards. The deceased and others were already present. DW deliberately provoked a fight with EG. They fell to the ground together, whereupon the two appellants, CN and FN, kicked and punched the deceased while he was fighting DW. The other two youths in their group were shouting encouragement. When the deceased rose to his feet at the end of the fight it became obvious that he had been stabbed, although witnesses had not seen a knife or knives used during the fight, and no knives have subsequently been identified in the police investigation that followed as having caused the wounds. The deceased collapsed, bleeding profusely and died at the scene. CN, FN, DW and the other members of their group ran off. 4. The prosecution opened their case as follows: “Save that [DW] clearly used a knife to stab Esrom Ghide, it is not as clear how many of the others may have done as well, although it is clear that all five were involved in the fatal attack, either as stabbers or doing other violence to him or giving encouragement to the others. What is clear is that the prosecution case is that all these defendants shared the intention to attack and cause Esrom Ghide really serious harm, or to kill him.” 5. Neither FN, DW or the two other acquitted defendants gave evidence and no evidence was called on their behalf. DW’s case was that he was attacked by the deceased, a stronger man, who got the better of him in the fight. DW had a flick knife with him and stabbed the deceased in the left thigh acting in lawful self-defence. FN’s case was that he punched the deceased, or kicked, at the same time as his brother. He was also trying to defend DW from the deceased, who appeared to be winning the fight. He did not see a knife; any wounds must have been caused by DW. CN gave evidence and accepted that he kicked the deceased in the head whilst he was on the ground, two or three times, because he was trying to lawfully defend his friend DW and distract the deceased’s attentions. He denied that he saw or had a knife; any knife wounds must have been caused by DW. Both CN and FN admitted that they had lied about not being present at the scene when first interviewed. 6. A forensic scientist gave evidence that she had examined the deceased's clothing. In her opinion, the stab cuts observed on the T-shirt and jeans were caused by multiple actions and it was possible that more than one bladed implement was used to cause the stab cuts. There was no blood recovered from any clothing or item belonging to CN or FN which linked them to the deceased. 7. Mr Waterman QC and Mr Auty QC have common cause in the appeal, and sensibly agreed that the submissions would be led by one, on behalf of both. At the outset of his address to us, Mr Waterman QC identified the “core of the appeal” to be: “(1) the lack of clarity about the Prosecution case: and (2) the means deployed by the judge to obviate the difficulties when he came to sum up to the jury.” The judge made knives the central issue and the trial took place in a “febrile media atmosphere highlighting the use of knives by young men”. They submit that the judge’s decisions in allowing evidence of CN and FN’s previous convictions for the possession of knives and the covertly recorded conversations of DW when on remand, which implicated CN and FN in the use of a knife, were wrong. What is more, they say, the direction he gave in relation to joint liability was deficient. 8. In view of the issues raised in the appeal we think it is necessary to refer in some greater detail, than would usually be the case, to the eyewitness evidence and to reproduce the relevant sections of rulings and the summing up. We take the factual detail, which Mr Waterman QC and Mr Auty QC agree to be accurate from the summing up. 9. CN, FN and DW were identified by eyewitnesses as present at the scene and involved in the fight. Three eyewitnesses agreed that DW had provoked the fight and that CN and FN had joined in. Unsurprisingly, their evidence was not identical in all respects but neither, we find, was it contradictory. Significantly, one of the witnesses, Duane Mullins, saw something passed from CN or FN to DW during the fight, and then saw DW with a bloodied knife. He said, "I cannot say when the stabbing happened, but I saw the guy with a knife and blood on it. It was [DW] who had that knife. When I was pushing and punching them off, one of the twins threw something to [DW] under my leg. I thought it was a knife and when I saw [DW] with a knife and blood on it, I realised it must have been a knife. Before that, I had not seen [DW] with a knife." In cross-examination he accepted that he: "didn't see that it was a knife. Something was passed through and next I saw the knife in DW's hand, with blood on it. I saw something go through my legs from behind, which I thought must have been a knife. I felt something go through my legs. … Everyone joined in, including those two. I stepped in to throw them off and when I turned round, I saw that [EG] had been stabbed. [DW] and the twins were the main characters." 10. The same witness also gave evidence about an incident that had occurred approximately two weeks before the stabbing on 5 September. He had seen the twins and the deceased at a distance. He could not see what was happening, but they walked towards him. He described the deceased as “shaken up”. He saw the twins; the taller one [identified as CN] held a knife and the other one, [FN], said the witness should, 'Talk to your boy, man's going to get shanked up.' Duane Mullins was dealing cannabis and took the knife in exchange for two bags of weed. He later gave the knife to a police officer. In his evidence at trial, CN denied that he or FN had a knife. He said they had argued with the deceased about two to three weeks earlier. The deceased was not shaken up and FN had not told Duane Mullins that the deceased would be “stabbed up.” The incident was “over”; he and his brother got on “all right” with the deceased. 11. Another witness, Robert Ryan said that the group of five surrounded the deceased. He saw the deceased being kicked and punched when he was tussling with DW on the ground. He saw DW strike the side of the deceased's body. He thought that it was punches to the left side of his belly, but he saw they were stab wounds after the deceased got up. The punches were in the same area as three of the wounds. He said: “I could tell from the atmosphere that something was going to happen when the group arrived. It looked like it was planned, the way they arrived." He said the fight happened quickly. There was a lot of noise and shouting. He did say there was more than one person stabbing but clarified that he was describing a male “punching, which I thought was stabbing, but I didn't know that [the] male was stabbing him. He was punching him in the ribs, which I thought was him stabbing the deceased. … I didn't actually see a knife being used by anyone.” 12. Cordell Somersall-Heath saw one of the twins throw two punches to the body of the deceased in the midriff “left side, I think. The other, [FN] punched. …[CN] kicked him to the head. The whole fight lasted about 90 seconds. I did not see the stab happen, nor did I see a blade.” The kick was “half-hearted” to the head. The witness actually indicated the right side of his body when describing the location of the punches. 13. CN and FN each have two previous convictions for carrying a knife. Covert recordings of DW’s conversations with family members, whilst he was on remand contained admissions, but also implicated CN and FN. Mr Waterman QC and Mr Auty QC objected to its admissibility. Subsequently, CN in evidence, confirmed that he had previous convictions for carrying a knife in 2017 and 2018, but denied that he had carried a knife thereafter for fear of imprisonment if arrested. When cross examined about DW’s comments, he denied knowing in advance of DW or anybody else carrying a knife or carrying one himself on the relevant day. 14. We agree with Mr Joyce QC, who appeared on behalf of the prosecution below, that this was a ‘fast moving’ episode. We think it would be remarkable if all three had the same perspective or had said that they had seen exactly the same as any of the others. Mr Joyce QC declined to give “further particulars” at the outset of the case or to indicate how he put the case specifically against CN and FN. The judge was required to rule and did so in terms: “Whether CN participated by repeatedly kicking the deceased’s head whilst he was on the ground or by passing a knife to DW, these are examples of participation as a secondary party and are not essential elements of the offence. The jury do not have to be sure whether it was one or the other. The prosecution is not, therefore, required to elect which witness’ evidence they prefer where there is inconsistency, provided that the evidence is capable of proving one way or another active participation in the violence with the necessary intention.” 15. We agree with the judge’s determination. There can have been no prejudice to CN or FN in advancing their defence. Their case would remain the same. The trial process provided the necessary opportunity for their counsel to cross examine the witnesses and to highlight any differences in closing speeches to the jury. 16. In their extensive skeleton arguments/advice and grounds of appeal, Mr Waterman QC and Mr Auty QC seek to establish that commencing the trial on such an imprecise prosecution basis, caused and contributed to consequent erroneous rulings and deficient directions which undermines the safety of the convictions. The oral submissions have realistically conceded that, “on reflection” some of the criticisms they levelled in writing are not applicable and can be “glided over”. However, whilst they attempt to argue the appeal by incremental steps, we consider that in doing so the effect is to artificially dissect the court process, rulings and summing up to an unhelpful and inappropriate extent. So, we identify the issues that we need to address in this appeal against conviction to be: 1. Was the judge wrong to admit evidence of CN and FN’s previous convictions for possession of a bladed instrument? If so, was his subsequent direction to the jury satisfactory? 2. Was the judge wrong to admit the transcript of the covert recording of DW? If so, was his subsequent direction to the jury satisfactory? 3. Was the judge’s direction on accessory liability deficient? Bad character: 17. In ruling on the Prosecution application to admit CN and FN’s previous convictions, the judge referred to the evidence of the pathologist and forensic scientist regarding the wounds inflicted upon EG and said: Taken together, this evidence is capable of leading to a reasonable inference that more than one knife or knives were used in the attack upon the deceased. DW has admitted that he used a knife, but only to stab the deceased in the left leg in the act of self-defence. There remains, therefore, a real issue as to whether other defendants took knives to the scene which, in a fast moving and violent attack, were used by them or passed to a co-accused for use in stabbing the deceased… this evidence is relevant for the jury to consider whether CN and FN had a knife at the scene which they used in the attack. Although it is properly observed that no witness describes seeing them use a knife or knives, the injuries to the deceased and damage to his clothing will permit the jury to draw a proper inference that more than one knife or knives were used in this attack. 18. The appellants’ submissions on this point seek to restrict the judge’s parameters to consideration of individual eyewitness accounts, rather than assessing the evidence globally, including that which may reasonably be inferred from the scientific evidence. Looking at the evidence as a whole, including CN and FN’s alleged threatening behaviour towards the deceased two weeks before and the arrival of the three convicted defendants together at the scene and their participation in the violence, we do not consider this to have been “a weak case” which the prosecution sought to “bolster” or otherwise to “prejudice the mind of the jury” by introduction of the previous convictions for possession of a bladed article. The judge’s decision to admit the evidence is well reasoned. We consider he was justified as seeing this as probative of a central issue in the case namely the use of a knife or the provision of a knife to DW. 19. Thereafter the judge’s direction to the jury in relation to the appellants’ previous convictions was measured and correctly identified the issues to which the evidence of propensity, if the jury so found it to be, could be used. Viz: If you are sure that these convictions do provide evidence of a propensity to carry a knife, then it may lend support to the prosecution’s case. The prosecution argue that this is relevant to the issue as to whether CN and/or FN produced a knife to threaten the deceased, in the presence of Duane Mullins (“Flash”), about two weeks before the deceased was killed. Also, they argue that it is relevant to the issue of whether they carried a knife at the time of the killing and when they joined in the violence, when the deceased received 17 incised wounds to 12 areas of his body. The defence for CN and FN say that these convictions do not provide evidence of a propensity or tendency to carry a knife: they are two offences only and both defendants were very young at the time; at the age of 13 and 14 events that happened 4 months and 9 months earlier are significantly more distant in time than for an adult. These defendants also argue that no threats were made to the deceased two weeks earlier and there is no witness who has described seeing either CN or FN with a knife at the time of the killing. Therefore, the way you should approach this is step by step: Firstly , decide whether you are sure that the convictions do establish a propensity or tendency in CN and FN to carry a knife or blade in public. If you are sure, then it’s for you to decide whether and to what extent that propensity helps you to decide guilt of the offences you must consider. If you are not sure that CN and/or FN has such a propensity, then put aside the fact of these convictions. Secondly , it is for you decide how much this evidence assists the case against these two defendants. It is important that you consider it with all the other evidence. It is also important that you should not convict the defendant solely or mainly on the basis of the previous convictions. 20. We do not agree that “by directing the jury in this way, the judge was “inviting the jury to use the bad character evidence to establish that the applicant had carried a knife on the day of the killing of the deceased.” He made clear that even if the jury decided that the convictions did establish a propensity to carry a knife, it was important to consider with “all the other evidence”. In other words, the jury were being carefully directed that whether either appellant in fact used a knife or passed one to DW was to be determined by considering all the evidence in the case, and was by no means limited to propensity. Covert recordings: 21. The covert recordings made of the conversations between DW and persons visiting him in custody, was evidence against him. It was not evidence against any other coaccused. We agree with the judge that “contrary to the submissions made on behalf of CN, the fact that a co-accused may speak about the role played by others in their absence, does not necessarily mean that a fair trial is impossible. Such conflicting evidence in the course of a multihanded case is inevitable and I am satisfied that no unfairness will be caused to CN or any other defendant, with a proper direction being given to the jury. …This evidence is admissible against the co-accused, [i.e. DW] and therefore must be heard by the jury. … None of this evidence can be admissible against CN, FN or any other coaccused.” 22. It is inconceivable that DW should be tried separately from his co-defendants. Some very limited editing may have been possible but, in the circumstances was unnecessary. We reject Mr Waterman QC’s submissions that this evidence should have been regarded as different from the interviews of co-accused by reason of the safeguards and disclosure requirements surrounding the interview procedure. We struggle to understand why he requested disclosure of the materials to which DW’s visitors had access, or to what purpose he would have used them in this trial. DW did not give evidence. The interview record, these covert recordings, or any co-accused statement in whatever form in the absence of the person s/he implicates or accuses is hearsay evidence and inadmissible against them. As with an interview, the questions/comments of others are irrelevant and are not evidence in the case, and only evidence against the interviewee in so far as s/he accepts the proposition made. Mr Waterman QC and Mr Auty QC agree that the judge did give a clear direction that the covert recordings were not evidence against CN or FN. Mr Joyce QC reminds us that the written directions to the jury emphasized the oral directions on this point, by bold print. We assume, as is appropriate, that the jury follows the legal directions of the judge. It therefore follows that the jury would disregard this evidence save in the case of DW. The defence had no need to ‘deal with it.’ 23. We do, however, agree that CN should not have been cross examined by specific reference to the covert recordings. We have been supplied with an agreed note of the discussion between counsel and the judge in the absence of the jury about the expressed intention of Mr Joyce QC to cross examine CN on the transcript. However, the note is unclear on the point. Mr Waterman QC said he objected to any specific reference to the covert recordings, whilst recognising that Mr Joyce QC was at liberty to ask questions derived from the information, albeit bound by the answers. Mr Joyce QC does not agree that this was the outcome of the discussions and maintains that he was entitled to do so. 24. We do not consider it necessary to resolve the difference between Counsel’s recollections on this point. Mr Waterman QC has referred this court to the case of Lobban [1995] 1 WLR 877 , although it was not available for the trial judge. We agree with Mr Waterman QC that the prosecution should have been prevented from referring to the covert recording in cross examination of CN, lest it suggest any probative value. However, as we remarked in discussion with Mr Waterman QC, having read the note of the cross examination on this issue, CN made no concessions whatsoever as to its accuracy. In the event we do not consider that this error has undermined the fairness of the court process nor the safety of the conviction. Direction on joint liability: 25. The judge’s direction on joint liability rightly referred to self-defence or defence of another, causation, and intent. Again, in view of the criticisms made, we set out the direction in its relevant terms: “To be guilty of murder, the prosecution must prove so that you are sure that: 1, the defendant whose case you are considering … used or participated; 2, in unlawful violence, which; 3, caused the death of the deceased; 4, intending to cause him at least really serious harm. Those are the elements of the offence of murder. … The prosecution's case is that the violence inflicted upon the deceased was part of a joint attack by them. It started as a fight between DW and the deceased, after DW provoked him into fighting, with the other defendants joining in after the fight started. … The defendants did not each act in the same way during the course of this incident. Some may have played more of a physical role, while others may not have done. How do you approach this? It is possible for a number of defendants to have acted together to achieve an intended result; not all of them need to do the same thing: One or more may have used force by means of a knife or knives to stab the deceased. Others may have used force by joining in the violence, whether by kicking, punching, or otherwise physically taking part, whilst not possessing a knife but knowing that knives would be used. Others may have stood to the side intending to encourage the violence and participating in it by encouragement, by cheering on or shouting “get him”, but not joining in with the attack physically, but also knowing that knives would be used. In law each of these is a different form of participation in the use of force. You must decide in respect of each defendant whether you are sure that they used force or participated in the attack upon the deceased knowing that knives would be used. “Unlawful force” … In respect of the defendant (whose case you are considering), you will have to decide if you are sure that the force used by him, or in which he participated against the deceased, was unlawful. (A direction as to the meaning of self-defence followed, which is not impugned.) If you are sure that this was, as the prosecution say, a joint attack by the defendants who (except for AB) each knew that knives would be used against the deceased, then you should look at the whole of the injuries caused to him and decide if you are sure that the defendant (whose case you are considering) participated in unlawful force. You do not have to decide who actually inflicted that wound, nor who actually inflicted any specific wound. However, if you are not sure that this was a joint attack, but may have been a one on one fight between DW and the deceased in which the other defendants participated, not knowing that knives would be used by another, then you should look at what the defendant (whose case you are considering) actually did. Decide if you are sure that he participated in unlawful force or whether it may have been in lawful selfdefence or defence of another. Therefore, you must consider in respect of each defendant whether you are sure that they did not act lawfully, in defence of themselves or another. “Caused the death” Whilst the stabber who inflicted the fatal wound obviously caused the death of the deceased, anyone else who participated and intended to participate in the attack, knowing that knives would be used, will also have caused the death. This is because, in a joint attack by a number of defendants who know that knives may be used, each of them plays a role in carrying out the attack and causing the death. “Intending to cause really serious harm” This means that you must be sure that the defendant (whose case you are considering) intended to cause really serious harm to the deceased, whether by himself, or by acting together with others. You might easily conclude that the 3 deep stab wounds (Incised 1 – 3) were obviously inflicted, intending to cause really serious harm. However, other wounds, taken individually or collectively may not have been inflicted intending really serious harm; they were described as superficial wounds by Professor Rutty. In this case the intention to cause really serious harm for the offence of Murder, means that it must be proved that the defendant (whose case you are considering) knew that knives would be used by himself or another defendant to cause the injuries.” 26. We do not accept that the summing up in this regard was inadequate. Mr Waterman QC and Mr Auty QC’s arguments proceed on the basis that the eyewitnesses did give “very different” and inconsistent accounts of the scene and dissect the terms of this direction in the summing up, relying upon discrete text and sentences which, we find, are taken out of context or require a particular and unnatural construction. The summing up more than adequately catered for the possibility that the jury may determine this was a spontaneous or premeditated fight. What did matter and was rightly emphasized in the circumstances of this case is that the jury should be sure that CN and FN used or knew that a knife or knives would be used with the intent, at least, to inflict grievous bodily harm, and which was/were used and led to the death of EG. We reject the submission that there was no evidential basis upon which any jury could have been sure that CN and FN knew a knife or knives would be used. Such an assertion ignores the evidence as is indicated above. This direction was neither deficient nor failed to assist the jury. It fully encompasses the principles derived from R v Jogee [2017] AC 387 at [8] – [12], as restated in [88] – [98]. The direction was clear. This needed no addition. The “requirements of R v Brown [1984] 79 Cr App R 115 ,” were surplusage. The jury were directed that the prosecution must make them sure that the defendant, whose case they were considering, had acted unlawfully, as a principal, or accessory. 27. The convictions are not unsafe. We dismiss the appeals against conviction. Appeal against sentence. 28. In sentencing DW, CN and FN, the judge expressed that he was satisfied that this murder was because of territorial and gang-related violence. He was sure that more than one knife had been taken to the scene and used to stab EG; although he could not be sure which of CN and FN had taken the knife, he was sure that both knew that it was to be used. He could not reach a sure finding as to which of the three inflicted the fatal wounds, although DW appeared to be the protagonist in the events leading up to the start of the fight. Their culpability was substantially reduced because of their age and immaturity. Because of their ages, the starting point for the minimum term was 12 years. The most serious aggravating factor was that knives had been taken to the scene and there had to be a significant increase in the minimum term. Additionally, their antecedent history and the background of territorial drug and gang-related violence were aggravating factors. The judge found that there was a significant degree of planning but that this was largely subsumed in the finding that more than one knife was taken to the scene to challenge and fight the deceased. In terms of mitigation, the judge took into account their youth and background, particularly the difficult childhoods of CN and FN and that both had expressed remorse, and also there was no intention to kill, only to cause grievous bodily harm. Further, although their youth was largely reflected in the lower starting point, there should be additional adjustment because they were significantly younger than 18. CN and FN were 14 and DW was 16 at the time. 29. Although two years younger than DW, we note that CN and FN, now 16, were more heavily convicted. CN had three previous convictions for possessing a bladed article and two convictions of possessing Class A drugs with intent to supply. FN had a previous conviction for robbery and two convictions of possessing a bladed article. DW, now 18, had one previous conviction for possessing an offensive weapon for which he received a referral order. 30. We have reminded ourselves of the principles to be derived from the Overarching Sentencing Guideline for Sentencing Children and Young People, specifically that the seriousness of the offence will be the starting point but that the sentence must be focused on the young person rather than offence focused. We caution ourselves, that rather than make deduction of what would have been the appropriate sentence for an adult committing the offence, which would have been in excess of 25 years, we must take the appropriate starting point in determining the minimum term to be 12 years. ( Criminal Justice Act 2003 Sched 21 para 7.) 31. Recognising the judge’s advantage of presiding over the trial, we nevertheless come to the conclusion that as monstrous as this crime was and deserving of condign punishment, and albeit that the reductions we make will appear minimal, the sentences were manifestly excessive bearing in mind the age and circumstances of the three appellants. We also consider that Mr Duck QC, who appears on behalf of DW, makes good his submission that the sentence of DW as compared with CN and FN was disproportionately gauged. That is, on the judge’s findings that either CN and/or FN had taken a knife to the scene and used it and he could not determine who had inflicted the fatal wound but was satisfied that it was not with the intent to kill, there is nothing to differentiate between the appellants. We take into account that DW started the violence on the 5 September, but he had not been present when CN and FN had threatened EG with a knife two weeks previously and CN and FN were considerably more heavily convicted than he was. 32. We bear in mind the “shocking fact” that the antecedent history of these young appellants should be seen against the background of territorial and gang related violence, but bearing in mind their significant youth and assumed lack of maturity, we consider that the least possible minimum term congruent with their welfare and necessary rehabilitation should be, in relation to CN and FN 14 years, and in respect of DW 16 years. To that extent these appeals against sentence are allowed.

2020_08_04-4952.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2020/1028/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2020/1028

a6ded16695c7b3ab306100b334781c661347a03d502945bd4ec7f74d11a6c670

[2004] EWCA Crim 1830

EWCA_Crim_1830

2004-07-02

crown_court

No: 200401429/A2 Neutral Citation Number: [2004] EWCA Crim 1830 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 2nd July 2004 B E F O R E: LORD JUSTICE KEENE MR JUSTICE MITTING SIR JOHN ALLIOTT - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 27 OF 2004 - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel

No: 200401429/A2 Neutral Citation Number: [2004] EWCA Crim 1830 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 2nd July 2004 B E F O R E: LORD JUSTICE KEENE MR JUSTICE MITTING SIR JOHN ALLIOTT - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 27 OF 2004 - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR M HEYWOOD appeared on behalf of the ATTORNEY GENERAL MR C TEHRANI 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 HM Attorney General for leave to refer a sentence to this Court because it appears to him to be unduly lenient. We grant leave and we treat this therefore as the hearing of the reference. 2. On 15th January 2004 at Leeds Crown Court this offender was convicted after a three day trial of causing death by dangerous driving. On 10th February 2004 he was sentenced by His Honour Judge Spencer QC to a Community Punishment Order of 180 hours and was disqualified from driving for a period of five years. An order was made for the endorsement of his licence and it was directed that he remain disqualified until he had passed an extended driving test. 3. Both the offender and the victim were young men and both were, by coincidence, serving soldiers stationed at Catterick. The offender was aged 19 at the time of the offence, as was the victim, Anthony Broadhead. The offender had passed his driving test about a month before, in June 2002, and had bought a car. On 4th July 2002 he drove from Catterick to Ashton under Lyne near Manchester and spent the evening in a public house from about 8.30 p.m. to 1.30 a.m.. After about two hours sleep he set off back to Catterick, at about 4.30 in the morning, via the motor network and the A1. The driving conditions at the time were poor. It was raining heavily and spray was being thrown up by the traffic. 4. At about 5.50 a.m., while on the northbound carriageway of the A1 at Wetherby, the offender pulled to the offside to overtake a vehicle. At this stage the road was a dual carriageway. According to what he said in interview, as he pulled out the rear end of his car skidded, causing it to hit the central reservation. The vehicle travelled back across the carriageway and along the nearside banking. It then overturned and it came to rest on its roof just to the offside of the line dividing the two northbound lanes of that carriageway. There were various estimates of the speed at which the offender's car had been travelling, but the majority of eye witnesses put it at between 80 and 85 miles per hour. There was a 70 mile per hour speed limit on this stretch of road. 5. The sudden and erratic movement of the offender's car caused the driver of the following vehicle to take evasive action. This was a heavy waste carrying lorry, drawing a double axle skip trailer, which steered to its offside and stopped in the outer lane. It is clear that it stopped quite suddenly. A van behind the lorry managed to pass it in the inside lane, but a car, a Fiesta being driven by Anthony Broadhead, struck the side of the van and then collided at speed with the rear of the lorry's trailer, causing massive damage to the front of the car. Anthony Broadhead died from his injuries. 6. The offender's vehicle was found to have no defects likely to have caused or contributed to the accident. 7. There was evidence that Mr Broadhead's car, the Fiesta, had been travelling at 70 miles an hour on the road, a speed which in itself was regarded as excessive by some onlookers. Certainly the sentencing judge found on the evidence he had heard it was likely that the deceased was driving too fast. There was also evidence that the deceased was not wearing a seat belt, and the sentencing judge accepted evidence given during the trial that it was entirely possible that had he been wearing such a belt it might have saved his life. Both the front tyres of the Fiesta, Mr Broadhead's car, had excessive wear, and it may also have been that he was sitting in a position close to the steering wheel of the car which may have made him more vulnerable. 8. The offender's blood alcohol level at the time of the accident was calculated as being between 59 and 68 milligrammes of alcohol in 100 millilitres of blood. Even though the legal limit for driving is 80 milligrammes per 100 millilitres, it was agreed evidence in the trial that the effect of extensive scientific research was that levels of blood alcohol over 40 milligrammes per 100 millilitres significantly increased the deterioration in driving ability due to sleepiness, without the driver being aware of his level of fatigue, and that alcohol itself would have affected the offender's driving directly and also by exacerbating his tiredness. It might have reduced his perception of his own tiredness. 9. After the accident the offender was on sick leave for seven to eight months, following a diagnosis of post-traumatic stress disorder by an army psychiatrist. Thereafter he was discharged from the army on medical grounds. 10. At the time of the offence he had no previous convictions, although since then he, on two occasions, drove without third party insurance. 11. A psychiatric report on him refers to him expressing spontaneous remorse for the victim and the victim's family. His mental state was described by then as being anxious and depressed, and, indeed, he was on anti-depressant drugs. 12. The Attorney General contends that the sentence passed was unduly lenient in that it failed to mark the gravity of the offence, the aggravating features present, the need to protect the public from harm by the dangerous use of motor vehicles on the road, and the public concern about cases of this kind. It is submitted that an immediate custodial sentence ought properly to have been imposed. By "aggravating features" is meant the fact that the offender drove at excessive speed for a distance along this trunk road in poor driving conditions with the result that he lost control of his vehicle. 13. Mr Heywood, who appears for the Attorney General, has referred us, in particular, to the leading case of R v Cooksley [2004] 1 Cr App R(S) 1 , where the Lord Chief Justice, giving the judgment of this Court, set out guidelines for sentencing in such cases based upon the recent advice of the Sentencing Advisory Panel. We shall return to those guidelines later in this judgment. 14. While it is acknowledged by Mr Heywood that there were mitigating features present, it is argued that none of those were exceptional so as to warrant a non-custodial sentence in this case. The Attorney General submits that this case would have come into the intermediate category of the categories set out in the case of Cooksley , a category which begins with a starting point of between two and four years' imprisonment. 15. On behalf of the offender Mr Tehrani emphasises those mitigating features conceded by the Attorney General. The offender was only 19 at the time with little driving experience, having only recently passed his test. He is described as being genuinely remorseful about the death of Anthony Broadhead and is suffering, as we have indicated, from post-traumatic stress disorder which has meant the end of his army career. We have been shown letters which suggest that he is now beginning to put his life back on an even keel after a period of considerable psychiatric disturbance. 16. Furthermore, it is pointed out that to some extent the death of the deceased was contributed to by the speed at which he was driving, plus the fact that he was not wearing a seat belt, the fact that the tread of the front tyres of his car were worn to a degree below the lawfully prescribed minimum depth and the apparent fact that his driving seat was incorrectly adjusted. Mr Tehrani submits that that those factors amount to exceptional circumstances which would have allowed for a non-custodial sentence in this particular case. 17. He particularly emphasises that the offender's driving was not the sole cause of death. He also stresses that, although there was no plea of guilty here, that was because there was an issue as to whether the offender's dangerous driving did in fact cause, or contribute, to the death of Mr Broadhead. There was no real issue at trial as to the dangerousness of the offender's driving. That is a proposition which we accept. It is accepted by Mr Tehrani that this was a lenient sentence passed by the learned judge, but his submission is that it was not unduly lenient. 18. So far as the factors of alcohol consumption and lack of sleep are concerned, it is argued on behalf of the offender that there was no evidence before the judge as to why the offender lost control of his car. It seemed to have been a misjudgment that caused the loss of control and it should be borne in mind that this was a fit young man on whom the lack of sleep, at least, may well not have had as much effect as it would have done on someone who was older. 19. For our part we accept that there was substantial mitigation in this case as set out by counsel, although we do not accept that a full discount for a plea of guilty could be given. There was no such plea because, even though the offender did not deny the dangerousness of his driving, he was, nonetheless, seeking to deny responsibility for Mr Broadhead's death. Even though Mr Broadhead's own actions may have contributed to his own death, it is clear from the jury's verdict that they found that the offender's dangerous driving was itself a cause of that death. 20. In the case of Cooksley at page 10 the Lord Chief Justice, giving the judgment of this Court, said this: "A factor that courts should bear in mind in determining the sentence which is appropriate is the fact that it is important for the courts to drive home the message as to the dangers that can result from dangerous driving on the road. It has to be appreciated by drivers the gravity of the consequences which can flow from their not maintaining proper standards of driving. Motor vehicles can be lethal if they are not driven properly and this being so, drivers must know that if as a result of their driving dangerously a person is killed, no matter what the mitigating circumstances, normally only a custodial sentence will be imposed. This is because of the need to deter other drivers from driving in a dangerous manner and because of the gravity of the offence." 21. The decision of this Court in that case makes it clear that a non-custodial sentence can only be justified if there are exceptional mitigating circumstances present. 22. We do not regard the age and inexperience of this offender as being in any sense exceptional. They are characteristics possessed by many young drivers on the roads of this country. Nor do we accept that the fact that the deceased's actions contributed to his death amounts to an exceptional circumstance. Given the complexity of road accidents in this country, it will not be rare for the deceased's actions to have made some contribution to his own death. 23. We conclude that there should here have been a custodial sentence. Indeed, we note that in the course of his submissions in mitigation at first instance the offender's counsel accepted that custody was the only option. That, in our view, was a realistic approach to adopt. There were aggravating features present. The excessive speed in the driving conditions, which, even to an inexperienced driver, should have made it plain that such speed was dangerous. But this Court also would not have overlooked the fact that there was alcohol in the offender's bloodstream to a significant degree, even though below the legal level and that he had had very little sleep that night. Those factors must have affected his driving capability. 24. In the judgment of this Court a custodial sentence was called for and the Community Punishment Order was unduly lenient. What should it have been at first instance? Nothing, of course, that a court of law does can undo the tragedy of the loss of a human life. The sentence has to reflect that loss, but it also has to reflect the degree of culpability by the offender and cases vary enormously in that respect. In the present case we bear in mind the mitigating factors to which we have already referred and the age of the offender. In the judgment of this Court, at first instance a custodial term of around two years' imprisonment would have been appropriate. 25. That is not the end of the exercise which we have to perform. We now have to decide whether to intervene in the circumstances as they stand today. We have to allow for the element of double jeopardy. Any term of imprisonment would have to be reduced to allow for the fact that this young man is now having his sentence dealt with a second time and that he has been performing a non-custodial sentence in the meantime. Furthermore, he has completed a substantial part of the 180 hours of the Community Punishment Order which was imposed on him. We have been told that he has now completed 106 hours, well over half the sentence imposed. That, too, is a consideration which we have to take into account. When we put those factors together, it seems to us that only a very short sentence at most could properly now be imposed. When we then bear in mind the offender's own current position there seems to be little point in sending him to prison for such a very small time with the potentially deleterious effects that that is likely to have. 26. Consequently, while the sentence imposed here was unduly lenient, and we do not criticise the Attorney General for bringing this reference, as a matter of discretion the Court in the present circumstances declines to interfere with it. The Community Punishment Order and the ancillary orders made below will, therefore, stand.

2004_07_02-277.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/1830/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/1830

4b3664e23ce44a45ac582bc7d7f7652d7f573bf67423e4158bf57c694257c368

[2023] EWCA Crim 1100

EWCA_Crim_1100

2023-07-31

crown_court

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. [2023] EWCA Crim 1100 IN THE COURT OF APPEAL CRIMINAL DIVISION Case No: 2021/00625/B4 , 2021/00723/B4 2021/01061/B4 Royal Courts of Justice The Strand London WC2A 2LL Monday 31 st July 2023 B e f o r e: VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION ( Lord Justice Holroyde ) MRS JUSTICE FARBEY DBE MR JUSTICE COTTER ____________________ R E X - v - MOHAMMED SADDAM HUSSAIN FAISAL FIAZ ____________________ Computer Aided Transcription of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) _____________________ Mr B Bhatia KC and Mr M McCarthy appeared on behalf of the Applicant Mohammed Hussain Dr F Gerry KC and Mr U Shahzad appeared on behalf of the Applicant Faisal Fiaz Mr M Burrows KC appeared on behalf of the Crown ____________________ J U D G M E N T ( Approved ) ____________________ Monday 31 st July 2023 LORD JUSTICE HOLROYDE: 1. On 15 th February 2021, the applicants were convicted of murder and sentenced to life imprisonment. 2. On 16 th June 2023, this court handed down its judgment refusing an application by Hussain for leave to appeal against his conviction, and applications by Fiaz for leave to appeal against his conviction, leave to adduce fresh evidence, leave to vary his grounds of appeal to add a further ground, and leave to appeal against his sentence. 3. Both applicants now apply for this court to certify that our decisions involved 11 questions of law of general public importance and to grant leave to appeal to the Supreme Court. 4. We have directed written submissions in response by the respondent, and we have directed this oral hearing to ensure that all points which any party wished us to consider had been made. 5. The first of the suggested questions is as follows: "Is the Criminal Appeal Act 1968 preventing appeal to the Supreme Court of the United Kingdom on points of law of general public importance (when leave to appeal has been refused by the Court of Appeal) incompatible with the Human Rights Act 1998 and the Bill of Rights Act 1689?" The remaining ten questions, which overlap with one another in a number of respects, criticise the decisions refusing the applications for leave. The questions reflect the argument advanced in writing in the joint grounds for the present applications, to the effect that the law was misinterpreted in those decisions, thereby “wrongly widening complicity liability to those who do not in fact assist or encourage and thus carry no culpability or responsibility for the crime". 6. It is submitted that the effect of our decisions is to make submissions of no case to answer otiose, to offend against the principle of legality, to make it impossible for members of the public in group situations to understand where criminal liability begins and ends, and improperly to widen the ambit of joint criminal liability. It is submitted that Fiaz's sentence of life imprisonment with a long minimum term was grossly disproportionate to his alleged criminal conduct and constitutes cruel and unusual punishment. 7. We begin by considering the statutory provisions and case law relevant to the first proposed question. Each of the applications for leave to appeal was made to this court pursuant to Part I of the Criminal Appeal Act 1968 . They were referred to the full court by the Registrar and were considered at a lengthy hearing at which all parties were represented. By section 33(1) of the 1986 Act, as amended, an appeal lies to the Supreme Court at the instance of a defendant "from any decision of the Court of Appeal on an appeal to that court under Part I of this Act ". By section 33(2) : "The appeal lies only with the leave of the Court of Appeal or the Supreme Court; and leave shall not be granted unless it is certified by the Court of Appeal that a point of law of general public importance is involved in the decision and it appears to the Court of Appeal or the Supreme Court (as the case may be) that the point is one which ought to be considered by the Supreme Court." 8. In R v Garwood and Others [2017] EWCA Crim 59, the effect of those statutory provisions was considered by a constitution of this court comprising the Lord Chief Justice, the President of the Queen's Bench Division and the Vice-President of the Court of Appeal, Criminal Division. The court's decision at [7] could not be clearer in its terms: "… The phrase 'decision of the Court of Appeal on an appeal' clearly refers to the determination of an appeal which has been pursued with leave (whether from the trial judge or the Court of Appeal) and determined on its merits." 9. In R v Dunn [2010] EWCA Crim 1823, [2010] 2 Cr App R 30, this court addressed the submission that section 33(2) was incompatible with rights under Articles 6 and 14 of the European Convention on Human Rights. It did so in the context of a refusal to certify a point of law of general public importance following its dismissal of an appeal against conviction. The appellant in that case accepted, having regard to Delcourt v Belgium (1979-80) 1 EHRR 355, that there would be compliance with Article 6 if there were no right of appeal to the Supreme Court at all; but he submitted that a right of appeal had been provided and that it must be compliant with Article 6. At [22] the court rejected the suggestion, implicit in the appellant's submissions, that in deciding whether to certify, this court may be influenced by an oblique motive, namely the wish to avoid the Supreme Court considering the case and possibly overruling the decision of the Court of Appeal. It held that: "… in deciding whether or not to certify the court is not sitting on an appeal against its own decision. It is not determining any criminal charge. It is merely assessing whether its decision contains an important point of law. The well informed and rational observer would conclude that the court which reached the decision in the first place is in the best possible position to decide whether a point of law of general public importance was involved in it." At [29] the court in that case accepted the submission of counsel for the respondent that the Strasbourg case law established the following five principles: "(i) Article 6(1) does not itself guarantee a right of appeal. (ii) Where there is a right of appeal, the application of Article 6 to the proceedings before the appeal courts depends on the special feature of the proceedings in the domestic legal order. (iii) Any limitation on the right of appeal must pursue a legitimate legal aim and not infringe the very essence of the right of access to a court. (iv) In this context, the fair administration of justice is a legitimate aim. (v) Access to the final court of appeal may be more limited than is the case with a first tier court of appeal." The court held that section 33(2) pursues a legitimate claim, a filtering mechanism being essential to avoid the Supreme Court becoming clogged with hopeless cases; reflects a coherent and proportionate approach to second appeals; and does not deny the essence of an applicant's access to the Supreme Court. The court also rejected the submissions based on Article 14, and so refused to certify any point of law of general public importance. 10. We find it surprising that counsel for the applicants did not mention either the case of Garwood or the case of Dunn in their joint written grounds. Nor were they mentioned in a later written response on behalf of Fiaz to the submissions on behalf of the respondent, which did refer to those cases. Dr Gerry KC, on behalf of Fiaz, suggested to us that the only omission from the joint grounds was the failure to cite the two cases in a footnote. 11. We disagree. The decisions in those two cases, in our view, present insuperable obstacles to the present applications. As Garwood makes clear, the plain words of the 1968 Act have the effect that this court may only certify a point of law of general importance if that point was involved in a decision on an appeal for which leave had been given. As a matter of statutory interpretation, this court has no power to certify a point of law which was involved in a decision refusing leave to appeal. In the present case, accordingly, we have no power to do what the applicants ask us to do. 12. One of the arguments advanced on behalf of the applicants, in an endeavour to escape the consequences of that decision, is the contention that the relevant provisions of the Criminal Appeal Act 1968 are incompatible with their human rights, in particular under Article 6. That argument failed in R v Dunn , and must for the same reasons fail here. As we have said, the applicants' submissions were heard and considered at a lengthy oral hearing of their applications for leave to appeal. They were rejected for reasons explained in a written judgment. There was no breach of any of the applicants' Convention rights. The applicants are dissatisfied with our decisions, but that does not entitle them to a further right of appeal. 13. The applicants advanced two further arguments to the effect that the court is not bound by statute and authority to conclude that it has no power to certify points of law. The arguments were based upon references to the Bill of Rights Act 1689 and to the Accessories and Abettors Act 1861 . We are not persuaded that it is possible to argue that either of those provisions permits the court to depart from the law clearly laid down by Parliament in the Criminal Appeal Act 1968 . 14. For those reasons this court cannot answer the first proposed question in the affirmative. This court has no power to certify points of law of general public importance involved in a decision refusing leave to appeal, and in particular these decisions refusing leave to appeal. That is dispositive of the present applications. 15. In any event, even if this court had power to certify all or any of the remaining ten proposed questions, the applicants' submissions would fail on their merits. In reaching the decisions refusing leave, the court applied established principles, including in particular those stated by the Supreme Court in R v Jogee [2016] UKSC 8 to the facts and circumstances of the case. It did not, as is now suggested, widen secondary criminal liability, thereby wrongly bringing the applicants within its ambit. Rather, it rejected submissions on behalf of the applicants which were aimed at narrowing secondary criminal liability. The fact-specific application of established principles did not involve any of the suggested points of law of general public importance. 16. We do not think it necessary to address each of the ten proposed questions in detail. Questions 2, 3 and 4 are all based on the premise that our decisions departed from and were inconsistent with the principles stated in Jogee . We do not accept that premise. 17. Questions 5 to 10 are all based on the premise that our decisions altered the boundaries of joint criminal responsibility by "removing any significant or even measurable contribution". Again, we do not accept the premise. As [84] of our judgment made clear, and consistently with Jogee , a secondary party must be proved to have assisted or encouraged the principal to commit the crime or type of crime which the principal in fact committed. The suggested need for a measurable contribution is no more than a restatement of that requirement. 18. Question 11 appears to overlook section 322(4) of the Sentencing Act 2020 , which requires the court to have regard to the general principles set out in Schedule 21 to that Act , and paragraph 8 of that Schedule, which permits the court to specify a minimum term of any length "whatever the starting point". 19. These applications therefore fail and are refused. _________________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk ______________________________

2023_07_31-5781.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1100/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1100

b6aa86475cd94a2c4ac791d5e376b1c7ca1b6e618cdc316ed8fceead403d116a

[2018] EWCA Crim 857

EWCA_Crim_857

2018-02-27

crown_court

Neutral Citation Number: [2018] EWCA Crim 857 Case: No: 201701446/B1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 27 February 2018 B e f o r e : LORD JUSTICE HOLROYDE MR JUSTICE GREEN MRS JUSTICE McGOWAN DBE - - - - - - - - - - - - - - - - R E G I N A v KHALED OUDAHAR - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 740

Neutral Citation Number: [2018] EWCA Crim 857 Case: No: 201701446/B1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 27 February 2018 B e f o r e : LORD JUSTICE HOLROYDE MR JUSTICE GREEN MRS JUSTICE McGOWAN DBE - - - - - - - - - - - - - - - - R E G I N A v KHALED OUDAHAR - - - - - - - - - - - - - - - - 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) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - NON-COUNSEL APPLICATION J U D G M E N T (Approved) If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person. 1. MR JUSTICE GREEN: On 3rd March 2017 at the Blackfriars Crown Court the applicant was convicted of rape (counts 1 and 2) and assault occasioning actual bodily harm (counts 3, 4, 5, 7 and 6). On count 2, rape, the applicant was sentenced to 9 years' imprisonment. On count 1, rape, he was sentenced to 7 years' imprisonment concurrent. On counts 3 - 6, assault, he was sentenced on each to 3 years' imprisonment concurrent to count 2. 2. The applicant renews his application for leave to appeal conviction following refusal by the single judge. 3. 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 prohibition if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless and until waived or lifted in accordance with section 3 of the Act. 4. The facts may be summarised as follows. The applicant was born in Algeria in 1978. The complainant was born in Sweden in 1972. They met in London and became a couple in 2012 though they had been friends for some time prior to that. They lived together in a rented bedsit in North London. They shared a bathroom and kitchen with a second bedsit on their floor although in January 2016 there was no one renting the adjacent room. The complainant worked as a retail manager. In January 2016 the applicant had been unemployed for several years and was receiving treatment for anxiety and depression. He was also an alcoholic. 5. The prosecution case at trial was that the relationship between the applicant and the complainant had been deteriorating due to his abusive, violent and erratic conduct towards her. In January 2016 there was a particularly violent episode in which, over the course of three days, the applicant anally raped the complainant and beat her around the head and body. Because of the ferocity of the assault she finally plucked up the courage to do something in order to protect herself. 6. On Saturday 30th January 2016 the complainant contacted the police and informed them that she had been anally raped and physically assaulted. She was interviewed on 31st January and her injuries were photographed. 7. The complainant explained to the police that on the morning of 28th January, on the Thursday, she went to have a shower in order to prepare for work. When she returned the applicant was going through her phone. He noticed a photograph of her with a male work colleague for whom she had knitted a scarf. He became loud and aggressive and he started to assault her. He struck her around the head and arms and he pinched her breast. He insulted her by calling her a "whore". He forced her to kneel down on the floor because he wished to punish her for being a whore. He penetrated her anally. She objected and told him that she did not consent and she was crying but he persisted. He told her to be quiet because someone might hear. At the end he attempted to kiss her, she resisted so he forced her head to the side so he could kiss her face. She fell onto the floor. 8. Subsequently the applicant got up and said he was going to make breakfast. He kept coming back into the bedroom to ask her what she wanted, just as if nothing had happened. The complainant got ready and then she left for work. 9. On Friday 29th January it was the complainant's birthday. She had previously booked the day off work. That day the applicant started arguing about the photograph on her phone again. He continued the assault by punching her in the face, this caused her nose to bleed. She sat over the bin in the kitchen because the blood flow was heavy. The applicant kept saying that there was nothing wrong with her and she was a whore because she had a photograph of a man on her phone. 10. As it happened they booked a table for dinner in the evening. During that dinner the applicant drank a great deal and he purchased a bottle of wine on the way home which he consumed. On their arrival back home he became abusive again. He started to hit her around the head. She had to protect herself by holding a duvet to her head. He kept telling her to be quiet in case anyone else heard them. 11. The following morning, yet again, he continued with the assault by punching her. Once again he abused her. She was very frightened and it was then she decided she simply had to go to the police. 12. She told the police that in addition to the recent incidents of violence, in December 2015 he had assaulted her very badly. He had on that occasion hit her on the head, arm and he had bit her shoulder and kicked her thigh. She went to a general practitioner who noted her injuries. She said that he had anal sex with her against her will on a number of occasions. He only ever wished to engage in anal sex. He did it regardless of her wishes or her consent. She said she wished to leave him and had done so for a long time but she had nowhere to go. She was afraid of what would happen to her if she left him and she had no family in the United Kingdom. 13. The applicant suffers from mental health problems which had recently become worse. He was controlling and obsessively clean. He suffered from panic and anxiety attacks and he drank to excess. He did not take his prescribed medication. 14. The applicant was arrested in the early hours of the morning of 31st January for rape and actual bodily harm. He made no reply. En route to the police station he said: "There was maybe shouting but no rape. We had sex on that day but it was not rape. We had dinner at Zizzi's the next day and she paid. Would that happen if it was rape?" 15. In interview he gave an account which foreshadowed his evidence at trial. 16. The defence case at trial was that the applicant and the complainant had been in a relationship for about 7 years. He accepted that he drank a lot but he had been trying to reduce his consumption. He said normally they had anal sex. He did not recall when they had last had vaginal sex. He did recall that she had picture of a man on her phone and he accepted that he did not like that. He did not however remember her telling him that she had knitted the man in the picture a scarf. He never complained about that nor told her off for having a picture of a man on her phone. They did not argue about that, but they had argued about other things. He did not tell her she could not speak to other men. He denied pulling a towel off her neck when she came back from the shower. He did not call her a whore. He denied any form of assault. He denied rape. The only sex that they had was anal sex and this was consensual. They were making love. Everything was consensual. To the extent that the complainant said otherwise she had lied. 17. During the course of his evidence in the trial he indicated his view that the tape of the police interview had been tampered with. 18. We have before us a lengthy series of manuscript submissions prepared by the applicant in person. We have read these carefully. They are repetitive, in that the same point is made on multiple occasions. 19. The essence of the arguments raised concerns the facts as advanced before the jury and as determined and adjudicated upon by the jury. Having read the submissions we would summarise the principal six points as follows. First, the complainant in her evidence in court had lied. All of the sex had been consensual, that this was established by reference to the fact that the complainant had invited the applicant to meet her family in Sweden and he had given her a substantial sum of money. The second, the police officer, had misled him in the course of police interviews. Third, the judge made errors in his summing-up. Fourth, he did not have a fair trial. Fifth, his case at trial was mishandled by his various teams of solicitors leading up to and including at trial. Sixth, his trial legal team failed to spot or bring adequately to the court's attention the fact that the tape recording of the police interview had been tampered with and did not accord with the transcript of the interview. This had never been adequately addressed by the judge or by his own legal team. 20. In view of the criticisms made of trial lawyers the applicant was invited to and did waive privilege. The court has before it the responses from solicitors and counsel. We do not need to rehearse the responses of those lawyers, needless to say they forcibly and in detail reject the criticisms made of them. 21. Detailed grounds of opposition have been tendered by the Crown. We have read these. We can summarise the main points which have been made as follows. As to the complaint that the victim had numerous opportunities to report matters when he was out of the country but she had not done so, the Crown observed that the complainant was cross-examined about this matter. She gave explanations which included that she was fearful of losing her home, that she had insufficient funds to rent another flat because the applicant had taken her money, that she was worn down by years of physical and mental abuse. She had no family in the United Kingdom to turn to for help. But she had told friends and a general practitioner about the physical violence but not given the complete picture. She finally went to the police in January 2016 because she had suffered extreme physical and sexual violence over the course of three consecutive days and was now scared as to what would then happen. The judge dealt with all these matters properly and adequately in summing-up. This was a classic jury question. There are no arguable grounds of appeal arising from this point. 22. The second point raised by the Crown concerns the allegation that the applicant was invited more than once to visit the complainant's family in Sweden, which reinforced his argument that the relationship was consensual. The Crown observed that the complainant accepted in evidence that the applicant had visited her family in Sweden on two occasions. She explained that she would have preferred to visit her family in Sweden alone but that he insisted on accompanying her. She had not told her family of the abuse or violence. The applicant's behaviour improved whilst they were in Sweden, in that he did not sexually assault her. Once again these were matters covered extensively and adequately in evidence and do not give grounds for appeal. 23. The third point addressed by the Crown concerns the audio tape. The applicant raised this matter with the solicitor prior to trial. The tape was examined by an expert instructed on the applicant's behalf. The expert report was that the interview had not been tampered with in any way. This was dealt with in the course of the trial. The judge addressed it in summing-up. There is nothing in the point. 24. The fourth matter raised by the Crown concerns the allegation that the victim was not interviewed on the date and at the time that the police recorded. The Crown observed that the police officer who attended the ABE interview with the complainant did get the date wrong at the beginning of recording but she corrected the date at the end of the ABE interview. Once again this was adequately and fairly dealt with by the judge in the course of the trial. 25. In short, the Crown say that the applicant has not raised any new matters in appeal. All matters were raised in trial, dealt with in the summing-up and considered by the jury. 26. The single judge refused leave to appeal. The judge observed that the applicant was convicted by the jury of the offence following trial in which he had a full opportunity to challenge the evidence of the complainant and give his own account, all matters were properly summed up by the judge in accordance with the law. The issue was whether the jury was sure of the accuracy of the complainant's evidence and by their verdicts they were. The assessment of the evidence was for the jury and not for the Court of Appeal. 27. The single judge observed that the grounds of appeal were set out in lengthy correspondence which were incoherent and inadequate in explaining why the verdicts were unsafe. The applicant was obsessed with the accuracy of the tape recording but the evidence before the court adequately dealt with that. There was nothing in the extensive grounds of appeal. The application was misconceived. 28. The single judge also stated this: "You should be aware that if you persist in making it, the full court may well decide that a period of time spent in custody should not count towards sentence." We endorse the full reasoning of the single judge. We have read all the papers carefully. There are no remotely arguable grounds of appeal raised in those papers. 29. As observed, the applicant was warned that the pursuing of the application could lead to a loss of time order. In our judgment, this is a case where we should make such an order. We direct that there be 42 days loss of time under the Criminal Appeal Act 1968 and the Prosecution of Offences Act 1985. 30. For all these reasons the application for leave to appeal is refused. WordWave International Ltd trading as DTI hereby certify that the above is an accurate and complete record of the proceedings or part thereof.

2018_02_27-4182.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/857/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/857

b8e7fe02908156a148327b2e8150666046a0ab5952bfa9d77ac8cd6533949197

[2019] EWCA Crim 227

EWCA_Crim_227

2019-02-26

crown_court

Neutral Citation Number: [2019] EWCA Crim 227 Case No: 201703698 C2 ; 201703699 C2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SOUTHWARK CROWN COURT HHJ BEDDOE T20160038 Royal Courts of Justice Strand, London, WC2A 2LL Date: 26/02/2019 Before: LORD JUSTICE LEGGATT MRS JUSTICE CUTTS DBE and HIS HONOUR JUDGE WALL QC (SITTING AS A JUDGE OF THE CACD) - - - - - - - - - - - - - - - - - - - - - Between: The Queen Respondent - and - Squibb Group Ltd Appellant - - - - - - - - - - - - - - -

Neutral Citation Number: [2019] EWCA Crim 227 Case No: 201703698 C2 ; 201703699 C2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SOUTHWARK CROWN COURT HHJ BEDDOE T20160038 Royal Courts of Justice Strand, London, WC2A 2LL Date: 26/02/2019 Before: LORD JUSTICE LEGGATT MRS JUSTICE CUTTS DBE and HIS HONOUR JUDGE WALL QC (SITTING AS A JUDGE OF THE CACD) - - - - - - - - - - - - - - - - - - - - - Between: The Queen Respondent - and - Squibb Group Ltd Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Sailesh Mehta (instructed by the Health and Safety Executive ) for the Respondent Stephen Hockman QC and Mr Watson QC (instructed by Womble Bond Dickinson ) for the Appellant Hearing date: 15 February 2019 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Lord Justice Leggatt: 1. The appellant, Squibb Group Ltd (“Squibb”), was tried at Southwark Crown Court in July 2017 on an indictment alleging breaches of duty under two provisions of the Health and Safety at Work Act 1974. On count 1, Squibb was charged with an offence of failing to comply with its duty under s.2(1) of the Act “to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all [its] employees.” Count 2 charged Squibb with an offence under s.3(1) of failing to conduct its undertaking “in such a way as to ensure, so far as is reasonably practicable, that persons not in [its] employment who may be affected thereby are not thereby exposed to risks to their health or safety.” 2. Squibb was convicted by the jury of the offence under count 1 alleging breach of its duty towards its own employees, but was acquitted of the offence under count 2 alleging breach of its duty to others. The sentence imposed for the offence of which Squibb was convicted was a fine of £400,000. 3. Squibb has appealed, with leave, both against its conviction and, if that appeal does not succeed, against its sentence. Factual background 4. The prosecution arose from Squibb’s involvement as a contractor in a project to refurbish a school called Warwick School South in the London Borough of Waltham Forest. The project was managed on behalf of the local authority by a company called NPS London Ltd. 5. The school was built at a time when asbestos was routinely used in construction. Under the Control of Asbestos Regulations 2006 there is a legal duty on everyone who has an obligation of any extent in relation to the maintenance or repair of non-domestic premises, to manage the risk from asbestos. This includes a duty to ensure that a suitable and sufficient assessment is carried out as to whether asbestos is or is liable to be present in the premises. To that end, NPS commissioned a survey from a company called Redhill Analysts, which prepared a report. The final version of the Redhill report was issued on 1 July 2011. The report identified the presence of asbestos in various places in the school building and steps were taken to remove this asbestos safely. The first phase of the refurbishment project was then carried out. 6. The main contractor appointed to carry out the second phase of the project was a large construction company then known as Mansell Construction Services Ltd and since renamed as Balfour Beatty Regional Construction Services Ltd. We will refer to it as “Balfour Beatty”. As part of this phase of the project, Squibb was engaged as a subcontractor to carry out demolition work. Part of the demolition work was carried out between 4 and 14 April 2012 during the school’s Easter holidays. The work resumed on 23 July 2012. On 24 July an employee of Squibb, when inspecting an area above a suspended ceiling, discovered a large clump of asbestos. All work then immediately ceased while a new asbestos survey was carried out by a different surveyor. This confirmed the widespread presence of asbestos sprayed on ceilings throughout the school and demonstrated that parts of the building which had been demolished had contained asbestos. 7. NPS London Ltd, Balfour Beatty and Squibb were all charged with offences under the Health and Safety at Work Act 1974. NPS London Ltd and Balfour Beatty pleaded guilty to the offences charged but Squibb did not, and Squibb was tried before HHJ Beddoe and a jury between 4 and 19 July 2017. 8. At the trial, Squibb did not dispute that there was asbestos in the building which was disturbed during the demolition work, with the result that both Squibb’s own employees and others (including staff and children at the school) were exposed to a risk of inhaling asbestos fibres. It was also not in dispute that such inhalation carries a long-term risk to health of contracting a potentially fatal asbestos-related disease. 9. The argument at the trial was about whether Squibb had done all that it was reasonably practicable for it to do to protect its employees and others against the risks to their health created by exposure to asbestos. That is a matter on which under s.33(1)(a) of the Act, the employer (i.e. Squibb in this case) bears the burden of proof, with the standard of proof being the balance of probability. 10. The prosecution case was, in short, that, to comply with its duties under sections 2(1) and 3(1) of the 1974 Act, Squibb needed to satisfy itself that there was no risk of finding and disturbing asbestos during the demolition works. That required Squibb to obtain and study carefully the Redhill report. Had Squibb done this, it would or should have realised from the caveats in the report that the survey undertaken by Redhill was inadequate and that a further and more thorough survey was required before the demolition works could safely be commenced. 11. Squibb’s first line of defence was that it had reasonably relied on assurances given to it by Balfour Beatty that all asbestos in the areas where it was engaged to carry out work had been identified and removed. The evidence of Squibb’s employees was equivocal at best as to whether they had examined the Redhill report. But Squibb also argued, relying on the evidence of an expert witness, that the report would reasonably have been understood as confirming that all relevant areas had been surveyed. A particular point of controversy concerned the proper interpretation of a table on page 17 of the report setting out a list of areas of the building to which it was said that access was required. The prosecution maintained that the report made it clear that the areas listed in the table were areas which Redhill had not accessed and which should be presumed to contain asbestos. Squibb contended that, to the contrary, the report was reasonably read as indicating that these were areas which Redhill had surveyed. 12. The judge directed the jury to give separate consideration to each count. He handed out written directions which included the following passage: “ Separate consideration The essential difference between the two counts are the persons said to be put at risk and it may be that the counts stand or fall together, i.e. that your verdicts on each count will be the same. However, it does not necessarily follow that they will be and although you are entitled to look at the whole of the evidence when considering each of the two counts, you must give each count and your verdict on each count careful and separate consideration.” Similar directions were given orally in summing up the case to the jury. 13. In relation to each count, the judge directed the jury to consider three questions, which were also set out in a document showing “routes to verdict”. For each count, the first question was whether the jury was sure that during the period identified Squibb was an employer. The judge indicated to the jury that this question was unlikely to cause them any difficulty, as Squibb accepted that it was an employer and they had heard from witnesses who were employees of Squibb at the material time. 14. Under count 1 the second question which the jury was asked to consider was whether they were sure that during the period identified one or more Squibb employees was exposed to the risks of asbestos and thereby exposed to risks to their health and safety. The corresponding question posed in relation to count 2 was whether the jury was sure that, through the way that Squibb carried out its undertaking during the period in question, persons not employed by Squibb were exposed to risks to their health and safety by exposure to the risks of asbestos. 15. In connection with these questions, the judge reminded the jury of undisputed evidence that asbestos was found in various parts of the ground, first and second floor of the building and represented a risk of exposure to asbestos to Squibb employees and others. He also reminded them that they had heard unchallenged evidence about the potentially serious harm caused by breathing in asbestos and therefore that, if one is exposed to asbestos, it is easy to see how there is a risk to the person’s health and safety. 16. On count 1, the third question for the jury, if they were sure of both the first two matters, was whether Squibb had proved to them, on a balance of probabilities, that during the period identified it did all that was reasonably practicable to reduce the risk of exposure to asbestos for its employees. On count 2, the same question was posed in relation to persons not employed by Squibb. The grounds of appeal 17. There are three grounds of appeal. These are, in summary: i) that the verdicts which the jury returned on the two counts were inconsistent with each other, such as to make the conviction on count 1 unsafe; ii) that the jury should have been directed that it was not open to them to return different verdicts on the two counts; and iii) that the judge should have directed the jury to consider the work done by Squibb in April and in July separately. 18. Although Mr Hockman QC in presenting the appeal on behalf of Squibb put the third ground of appeal at the forefront of his submissions, we will consider them in numerical order. Ground 1: inconsistent verdicts 19. In our system of criminal justice where the constitutional responsibility for judging the guilt or innocence of a defendant is entrusted to a jury, it is only in exceptional circumstances that a court is entitled to interfere with the verdict of the jury, reached after being properly directed by the judge, that the defendant was guilty of an offence. One such circumstance is where a jury has returned inconsistent verdicts. But the test of inconsistency is a high one. The appellant must persuade the court that the jury has returned verdicts which cannot stand together, in the sense that no reasonable jury applying its mind to the evidence could have reached the differing verdicts which the jury has in fact reached and that the inconsistency is such as to demand interference by an appellate court because they think that it makes the defendant’s conviction unsafe. The leading case which established this test is R v Durante (1972) 56 Cr App R 708. It has been followed on many occasions since. A recent example to which we were referred is R v Electricity North West Ltd [2018] EWCA Crim 1944 ; [2018] 4 WLR 148 . 20. Squibb contends that, although the jury was directed to consider each count separately, there was on analysis no rational basis for differentiating between the two counts. The evidence clearly showed, and Squibb did not dispute, that the persons exposed to risk to their health as a result of the demolition works comprised both the employees of Squibb who carried out the works and also other people who were not employees of Squibb. The prosecution case as to what steps it was reasonably practicable to take to address the risk also drew no distinction between the two categories – the fundamental allegation being that Squibb should have obtained, read and acted upon the Redhill report. It was not alleged that there were particular steps which Squibb could and should have taken, but which it did not take, to protect its own employees but not others, or vice-versa. Likewise, Squibb’s defence that it did all that was reasonably practicable in the circumstances and was entitled to proceed on the basis that all asbestos in the relevant areas had been removed did not differentiate between its own employees and others. Hence, Mr Hockman submitted, logic dictated that the jury’s verdicts must be the same on each count. 21. Had the risks caused by the disturbance of asbestos to the health of employees of Squibb and to the health of others been identical, that logic might indeed have been inexorable. On the evidence, however, the jury was entitled to find that Squibb’s employees were exposed to much higher levels of asbestos than anyone else. It is not in dispute that the level of exposure to asbestos would have been at its highest when parts of the building contaminated with asbestos (and especially walls which had asbestos trapped on top of them) were being knocked down. That demolition work was carried out by employees of Squibb who therefore bore the brunt of the exposure. A high level of exposure would also have occurred when the rubble was cleared up and removed from the building – a task also performed by Squibb’s employees. 22. There was evidence that Squibb managed the works in a way that reduced the risks to others. Thus, the work was scheduled during the school holidays when no children and few members of staff were present. Access to staircases leading to the area of the works was shut off and plastic sheeting was put up to contain the dust. Rubble was bagged up and the sacks of rubble were removed by Squibb employees via the fire escape, so as to avoid carrying it through the school. 23. It is common ground that these precautions would not have prevented some people who were not Squibb employees from being exposed to dust, and that some of this dust would have contained asbestos. The other persons most exposed would have been a janitor who entered the area of the works on a daily basis and employees of other contractors who carried out work in the affected areas after the demolition had been completed. It was also accepted by Squibb that, despite the steps taken to contain it, some dust would inevitably have found its way into the rest of the school and would have lingered after the demolition work had been done, thereby exposing children and teachers to some degree of risk. It is clear, however, that the jury would have been entitled to find that the risks caused to persons who were not Squibb employees were substantially lower than the risks to the employees of Squibb who carried out the works. 24. The judge directed the jury that doing what is reasonably practicable “involves balancing on the one hand the degree of risk – i.e. how likely it is that the harm will occur – with the steps necessary to avert the risk on the other hand.” In considering whether Squibb had discharged its duty to ensure, so far as is reasonably practicable, the health and safety of its employees, the judge accordingly told the jury that: “… you will have to make an assessment in which you weigh up the benefit of taking each step to ensure employees’ health and safety and compare it to the burden which would have been involved in taking each such step.” A similar balancing exercise was required in relation to non-employees. 25. Applying these directions – of which no criticism has been or could be made – the jury was entitled to consider that, as the degree of risk of harm to Squibb’s employees was substantially greater than the degree of risk of harm to others, the measures which Squibb was required to take to avert the risk to its employees were correspondingly more onerous. Approached in that way, there was a rational basis on which a jury, applying its mind properly to the evidence, could find that Squibb had done all that was reasonably practicable to protect the health of persons other than its employees but had failed to do all that was reasonably practicable to protect its own employees from the risks of asbestos. 26. Accordingly, while we understand why the acquittal of Squibb on count 2 in circumstances where Squibb was convicted on count 1 caused the judge and no doubt others involved in the trial some surprise, we are not persuaded that the two verdicts are inconsistent with one another, let alone that any inconsistency between them is such as to demand intervention by an appellate court. Ground 2: no direction that the jury could not return different verdicts 27. If the position had been that no reasonable jury applying its mind properly to the evidence could have reached different verdicts on counts 1 and 2, as the jury did in this case, then this should have been reflected in the judge’s directions. In such a situation it would have been necessary to direct the jury that it was not open to them to return different verdicts on the two counts. As it is, it follows from our conclusion that the verdicts were not inconsistent that the judge cannot be faulted for telling the jury to give separate consideration to each count and for directing them that it did not necessarily follow that their verdicts on each count would be the same. Hence, the second ground of appeal adds nothing to the first. Ground three: no direction to consider April and July works separately 28. At the trial, counsel for Squibb requested the judge to direct the jury that they should consider separately the works undertaken by Squibb in April 2012 and the further works in July and should only find Squibb guilty on either count if they concluded unanimously that Squibb had failed to comply with its duty (to its employees or to others, as the case may be) in relation to the April works, or in relation to the July works, or in relation to both. The judge declined to give such a direction. Squibb’s third ground of appeal is that he was wrong not to do so and that the absence of such a direction makes its conviction unsafe. 29. In developing this argument on behalf of Squibb, Mr Hockman relied on a line of authority exemplified by R v Beckingham [2006] EWCA Crim 773 . In that case the appellant, a council employee, was convicted of an offence under section 7 of the 1974 Act of failing to take reasonable care for the health and safety of persons who might be affected by her acts or omissions at work, thereby exposing them to a risk of contracting Legionnaires’ disease. The prosecution served particulars alleging 10 different acts or omissions said to constitute breaches of the appellant’s duty. Her conviction was quashed because the judge did not direct the jury that they must unanimously be sure that one or more of the particulars relied on by the prosecution was made out. 30. Mr Hockman submitted that it was incumbent on the judge to give a similar direction in the present case. He argued that there were material differences between the works performed by Squibb in April and the works in July. For example, the April works involved the first floor of the building, whereas the July works involved the second and ground floors; separate risk assessments and method statements were prepared for each phase; different employees of Squibb were involved in April and July; and the April demolition works were carried out, whereas no actual demolition had commenced in July before Mr White discovered the presence of asbestos, whereupon all work immediately ceased. 31. Mr Hockman submitted that in these circumstances it was necessary for the jury to consider separately whether Squibb had done all that was reasonably practicable to ensure that its employees (or others) were not exposed to risk from asbestos, first of all in April, and then secondly and separately in July. The failure to direct the jury that they must be unanimous in their conclusion that Squibb was in breach of duty in relation to one of the two phases (or both) before they could find Squibb guilty means that there is a risk that Squibb was convicted without the jury being agreed upon a factual basis which amounted to the commission of an offence. 32. In our view, there is no substance in this argument. There were certainly factual differences of the kind identified by Mr Hockman between what Squibb did in April and in July. But in the way the prosecution put its case, those differences were not material. As already noted, the prosecution case was straightforward. It was that, before commencing any demolition work, Squibb should have obtained and read the Redhill report and realised that a full and proper assessment of the extent to which asbestos was present in the school building had not been made. On the prosecution case, as soon as demolition work began which created a risk of exposure to asbestos, Squibb was in breach of its duty. That breach continued for as long as the work continued and Squibb’s employees (and others) were thereby exposed to further risk. 33. Having regard to the way in which the case was presented by the prosecution, it was unnecessary – and, in our view, would have been wrong – to direct the jury that they must treat the April and July phases of Squibb’s work as if they were the subject of separate or discrete allegations. 34. We would add that, so far as we can see, there was equally no material distinction drawn as part of the defence case between what it was reasonably practicable for Squibb to do in April and in July. The principal elements of Squibb’s case – that it was entitled to rely on assurances from Balfour Beatty that all asbestos had been removed and that reading the Redhill report would merely have confirmed that understanding – applied just as much to both phases of the work. When the question was explored in argument, it seemed to us impossible to construct a realistic scenario in which some members of the jury might conceivably have thought that Squibb had done all that was reasonably practicable to ensure the health of its employees in July but not in April, but yet at the same time others might have concluded that Squibb had done all that was reasonably practicable to that end in April but not in July. In these circumstances, giving a direction of the kind which Squibb sought would simply have caused unnecessary complication by introducing a possible distinction which bore no relationship to the realities of the case. Conclusion on the appeal against conviction 35. We conclude that none of Squibb’s grounds of appeal against its conviction is wellfounded and that there is no reason to think that its conviction is unsafe. The sentencing decision 36. In sentencing Squibb, the court was required to follow the Definitive Guideline for Health and Safety Offences issued by the Sentencing Council. To determine the offence category within the guideline, the court must assess the offender’s culpability in committing the offence and the risk of harm (along with any actual harm) which the offence caused. A fine is then fixed based on the size of the offender’s turnover and other financial circumstances, adjusted where appropriate to take account of aggravating or mitigating factors. 37. The judge assessed Squibb’s culpability as “high”. He considered that the company had fallen far short of appropriate standards. It was incumbent on the company, working as it does in a field where they are very likely to have to address the risk of asbestos on a frequent basis, to have a system in place for doing so. This should include a system to ensure that, where an asbestos survey has been carried out, the survey report is obtained, read and acted upon. Instead, Squibb had sent its employees to carry out demolition works in a building where asbestos was likely to be found relying on what the judge described as “false and lazy assumptions … made on the basis of word of mouth.” 38. The assessment of harm under the guideline requires a consideration of both the seriousness of the harm risked and the likelihood of that harm arising. It was agreed that the seriousness of the harm risked by Squibb was at level A because exposure to asbestos can potentially lead to a person who has inhaled asbestos fibres contracting a fatal disease. Although he did not say so in terms, it is apparent from the offence category that he used that the judge assessed the likelihood of that harm arising as “medium” and the relevant harm category as harm category 2. 39. Squibb’s turnover as shown in its most recent annual accounts was £43.4m, making it a medium-sized organisation for the purpose of the guideline. For such an organisation, for an offence involving high culpability in harm category 2, the starting point for a fine is £450,000 – which was the starting point taken by the judge. 40. The judge gave Squibb some credit for having no previous convictions and for having put in place improved procedures following the incident, though he considered that the case put forward at trial which sought to excuse Squibb’s conduct and put all the blame on others reflected a poor attitude towards health and safety on the part of its senior management. Taking these factors into account, the judge decided that the appropriate sentence was a fine of £400,000. Squibb’s grounds of appeal 41. Mr Watson QC, who presented the appeal against sentence on behalf of Squibb, focused his submissions on the judge’s assessments of culpability and harm. He argued that, in assessing each of those factors, the judge had placed the offence in the wrong category, resulting in a sentence which was manifestly excessive. Culpability 42. On the question of culpability, Mr Watson submitted that the judge failed to take any proper account of the jury’s finding by its verdict on count 2 that Squibb had done all that was reasonably practicable to ensure the health and safety of persons other than its own employees. Squibb’s breach of duty towards its own employees had also to be seen against the background that its employees had been properly trained to manage asbestos risks; that other contractors had previously done work at the site over many months without any alarm bells being raised; that Squibb had received assurances from Balfour Beatty, a large and reputable contractor, that it was safe to commence works at the site; and that, save for its failure to review the Redhill report, Squibb had prepared suitable risk assessments and method statements. Mr Watson further submitted that the judge failed to distinguish Squibb in terms of culpability from the other defendants, and in particular NPS (London) Ltd, who were materially more culpable. 43. As well made as these arguments were by Mr Watson, they do not persuade us that we would be justified in disturbing the assessment of culpability made by the judge who heard all the evidence given at the trial. Within the guideline, the general description given of offences which fall into the category of “high” culpability is that the offender “fell far short of the appropriate standard” (examples of which are given) and that there has been “serious and/or systemic failure within the organisation to address risks to health and safety”. The corresponding descriptions for the category of “medium” culpability are that the offender “fell short” of the appropriate standard and that “systems were in place but these were not sufficiently adhered to or implemented.” In this case, no challenge is or could be made to the judge’s finding that Squibb failed to have a proper system in place to obtain, review and act upon any relevant asbestos report before carrying out demolition works in a building which was known, or was likely, to contain asbestos. The judge was also entitled to find that Squibb’s failings reflected a lax approach on the part of its senior managers towards their responsibilities which subsisted over a significant period of time. Overall, dealing as he was with an organisation that specialised in this type of work and could routinely expect to encounter the risks created by the presence of asbestos, the judge was entitled to conclude that Squibb had fallen far short of the appropriate standard and that there had been a failure within the organisation which was both serious and systemic to address a material risk to the health of its employees. That squarely justified assessing Squibb’s culpability as “high”. Harm 44. On the issue of harm, however, while it was common ground that the seriousness of the harm risked was at level A, there does not appear to us to have been any proper basis for the judge’s conclusion that there was a medium likelihood of such harm arising. The likelihood or otherwise that exposure to asbestos at a particular level for a particular period of time will ultimately cause a fatal disease is not something which is rationally capable of being assessed simply on the basis of supposition, impression or imagination. It is a scientific question which should be answered, if possible, with the assistance of scientific evidence. 45. In this case the court was provided with a report from an independent expert instructed by Squibb which sought to estimate the risk to Squibb’s employees (and others) of contracting an asbestos-related disease as a result of their likely level of exposure. The estimates were based on statistical data derived from published studies. The expert’s best estimate was that, if 100,000 people were exposed to asbestos to a similar extent to Squibb’s employees, about 90 deaths would result. To put this estimated risk in context, the risk of dying from smoking cigarettes is around 1 in 5 (i.e. 20,000 cases per 100,000) and the risk of dying from working in the construction industry for 40 years or from an accident on the roads is around 500-600 chances per 100,000. On this basis, the likelihood that one of Squibb’s employees will die as a result of their employer’s breach of duty in this case is on any view extremely small. 46. The prosecution did not adduce any expert evidence either to put forward any alternative estimate of risk or to criticise the methodology or assumptions used by Squibb’s expert. Undoubtedly, as Squibb’s expert acknowledged, any estimate of the kind which he made can only be very rough. Long-term risks of this nature are inherently difficult to assess and quantify, the relevant scientific knowledge is very far from perfect and any estimate must be subject to a wide margin of error. But that is not a reason to reject or disregard whatever scientific evidence is available. The rational approach for a court to adopt in these circumstances is to rely on the best evidence that it has. 47. The judge in this case did not give any reason for disregarding or disagreeing with the expert evidence of risk adduced by Squibb and, in our view, he was wrong to do so. We see no justification for assessing the likelihood of harm in this case as medium. The only reasonable conclusion on the available evidence was that the likelihood of harm arising from the offence was low. 48. On that basis, the offence fell in harm category 3, for which the starting point, for an offence involving high culpability committed by a medium-sized organisation, is £210,000. The judge made a modest downwards adjustment, of the order of 10%, from his starting point to take account of mitigating factors. Making a broadly similar adjustment from the starting point which in our view he should have taken, we conclude that an appropriate sentence for Squibb’s offence is a fine in a sum of £190,000. 49. Squibb has also sought to challenge the judge’s order that it should pay £175,000 towards the costs of the prosecution. However, it is not suggested that the judge made any error of principle in his approach to costs and we do not consider that there is any basis on which this court could properly interfere with his assessment. Conclusion on the appeal against sentence 50. In the result, we will vary the sentence by substituting for the fine imposed by the judge a fine of £190,000.

2019_02_26-4521.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/227/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/227

9b35b85295e7f11705ea2748b16b8befb75066cc412a193dcbfffbc05a5f1ebb

[2010] EWCA Crim 496

EWCA_Crim_496

2010-03-17

crown_court

Case No: 200804719 , 200804737 , 200805477 Neutral Citation Number: [2010] EWCA Crim 496 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT CARDIFF Mr. Justice Wyn Williams T20077497 Royal Courts of Justice Strand, London, WC2A 2LL Date: 17 March 2010 Before : LORD JUSTICE MOORE-BICK MR JUSTICE SILBER and MR JUSTICE KENNETH PARKER - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN Respondent - and - RHYS THOMAS LEWIS LEE JAMES WARD MARK DAVID COOK Appellants

Case No: 200804719 , 200804737 , 200805477 Neutral Citation Number: [2010] EWCA Crim 496 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT CARDIFF Mr. Justice Wyn Williams T20077497 Royal Courts of Justice Strand, London, WC2A 2LL Date: 17 March 2010 Before : LORD JUSTICE MOORE-BICK MR JUSTICE SILBER and MR JUSTICE KENNETH PARKER - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN Respondent - and - RHYS THOMAS LEWIS LEE JAMES WARD MARK DAVID COOK Appellants - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. Alun Jenkins Q.C. for the first appellant Mr. Gerard Elias Q.C. for the second appellant Mr. Cook in person Mr. John Charles Rees Q.C. for the respondent Hearing dates : 4 th February 2010 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Moore-Bick : Background 1. These appeals and applications arise out of a series of violent incidents involving two groups of men who had been out drinking in Bridgend on the evening of 8 th July 2007. The appellants, Rhys Lewis and Lee Ward together with the applicant, Mark Cook, were out together to celebrate Cook’s birthday. Lewis and Ward were in their early thirties; Cook was in his early forties. 2. Also on a night out in Bridgend was a group of younger men comprising Ryan Edwards, Ricky Williams, Ashley Evans, Mark Kilnan, Andrew Saunders and Jonathan Diamond. They were referred to at the trial as “the Croeserw boys”. We shall refer to them for convenience as “the boys”, as did everyone at the trial and on the appeal. 3. At about 9.45 pm Lewis, Cook and Ward went to a bar called Bar Inc. Later, at about 10.40 pm, the boys went to the same bar. Lewis and a young woman must have left the bar at about that time or very soon after, because they just missed a train to Cardiff at about 10.50 pm, having walked up Court Road, which leads from Bar Inc to Bridgend railway station. 4. Ward and Cook became separated in the bar. A minor altercation took place between Cook and Ricky Williams, after which Williams and his friends started to leave. Whatever exactly had occurred, it appears that it had angered Cook, who followed Williams towards the door. There was a further skirmish between them just inside the entrance to the bar, in the course of which Cook headbutted Williams. Cooke followed Williams into the street where blows were exchanged. At that point Ashley Evans also became involved. 5. Ward came out of the bar looking for Cook and to find out what was going on. Cook walked off and Ward went after him. It is not clear whether they exchanged words, but shortly afterwards Cook walked away. Ward then made two telephone calls to Lewis, as a result of which Lewis and Ward set off to meet each other. After meeting in Court Road, they walked back to the bar to look for Cook. 6. In the meantime Cook had walked by an indirect route to the station and was making his way back down Court Road when he saw the boys. As he ran past them he struck Williams once with his arm, breaking his nose and causing bruising and swelling of his cheek and cuts around one eye. 7. Cook, Lewis and Ward met up outside the bar. After a short discussion they went back up Court Road to the station, arriving there at about 11.07 pm. The boys were already there. As soon as the two groups came close to each other in the station car park fighting broke out, in the course of which Ashley Evans was injured, Mark Kilnan was knocked down and rendered unconscious and Ryan Edwards sustained an injury to his head from which he later died. The whole incident lasted only about a minute and was captured on two CCTV cameras. 8. As a result of these events Lewis, Cook and Ward were all jointly charged on an indictment containing the following counts: Count 1: Murder of Ryan Edwards; Count 2: Causing grievous bodily harm with intent to Ricky Williams; Count 3: Causing grievous bodily harm to Ricky Williams (alternative); Count 4: Attempting to cause grievous bodily harm with intent to Ashley Evans; Count 5: Attempting to cause grievous bodily harm with intent to Mark Kilnan; Count 6: Violent disorder. 9. With the exception of counts 2 and 3, the indictment was directed to events that had occurred in the station car park at the end of the evening. The Crown’s case was that Lewis, Cook and Ward had been acting together in pursuit of a common purpose when they attacked the boys in the station car park. When they regrouped at the bar they had decided to find the boys and give them a severe beating to teach them a lesson. With that in mind they set off up Court Road towards the station where they came upon the boys at the entrance to the car park and immediately attacked them. Lewis, Cook and Ward denied that there had been any plan to beat up the boys; they said that they had gone to the station to catch a train to Cardiff and came upon them in the car park by chance. The fight had been provoked by the boys, who were being abusive and aggressive. Lewis admitted that he had punched Edwards once because he had heard the sound of breaking glass and thought that Edwards was about to attack Cook. He said that the blow had not caused Edwards to fall down. Cook denied having assaulted Edwards altogether. It was accepted that at that stage Ward had been fighting with Ashley Evans some distance away and had not himself touched Edwards. 10. All three of them admitted having assaulted Evans; Ward and Cooke denied any intention to cause him really serious harm; Lewis said that he had been acting in defence of Ward. 11. The assault on Kilnan occurred very close to the place where the attack on Edwards had taken place and very shortly after Lewis had punched Edwards. Cook and Lewis both said that they had acted in self-defence, but Lewis later accepted that his actions might have gone beyond that. However, he denied having intended to cause really serious harm. 12. Counts 2 and 3 of the indictment related to the earlier incident in Court Road when Cook had struck Ricky Williams in the face as he was returning from the station to the bar. Cook said that he had been running through the group of boys when Williams tried to stop his progress. He admitted that he had feared attack and had struck Williams once in the face, but he did not accept that he had caused Williams’ injuries or that he had intended to cause really serious harm. Lewis and Ward said that the incident had had nothing to do with them. 13. It will be apparent from this somewhat abbreviated description of the events and the charges in the indictment that the case raised complicated issues of fact as well as the principles of law relating to self-defence and joint enterprise. It therefore presented a challenge to the judge, especially given the need to direct the jury on the application of the law to a wide range of possible findings of fact. 14. The trial took place before Wyn Williams J. and a jury at the Crown Court at Cardiff between 4 th June and 31 st July 2008. On 31 st July 2008 Lewis and Cook were convicted on count 1 of the murder of Edwards; Ward was found not guilty of murder but guilty of manslaughter. All three were convicted on count 4 of attempting to cause grievous bodily harm to Evans and on count 5 of attempting to cause grievous bodily harm to Kilnan. Cook was also convicted on count 2 of causing grievous bodily harm with intent to Ricky Williams, no verdict being taken on count 3. The judge directed that Not Guilty verdicts be entered on counts 2 and 3 in respect of Lewis and Ward. He ordered that count 6 (violent disorder) be left on the file on the usual terms. The appeals and applications 15. Lewis and Ward now appeal against conviction by leave of the single judge. Cook renews his application for an extension of time in which to apply for leave to appeal against conviction and sentence following refusal by the single judge. (a) Count 1, murder and manslaughter 16. Attention has been directed primarily to the convictions on count 1. Lewis appeals against his conviction for murder on two grounds: first, that the verdicts returned by the jury on Ward in relation to this count and count 5 are inconsistent, thus demonstrating that they failed to understand the judge’s directions on joint enterprise; second, that the judge failed to direct the jury in accordance with the decision in R v Powell and English [1999] 1 A.C. 1 , [1998] 1 Cr. App. Rep. 261 and thereby deprived them of the opportunity of finding that Cook had gone beyond the scope of any joint enterprise in the attack on Edwards. 17. Ward appeals against his conviction on count 1 on the following grounds developed in counsel’s skeleton argument: first, that the judge failed to direct the jury correctly on joint enterprise; and second, that the verdict on count 1 is inconsistent with the verdict on count 5 and is therefore unsafe. 18. Cook seeks leave to appeal against his conviction on count 1 on the following grounds: that the verdicts returned by the jury on Ward in relation to count 1 and count 5 are inconsistent, (i.e. the same ground as that relied on by Lewis); that the judge failed to draw the jury’s attention to the fact that the evidence showed that he did not have time to strike Edwards; and that the evidence as a whole shows that he did not in fact strike Edwards. (i) The evidence 19. Before turning to consider the various submissions made in relation to the convictions on count 1 it is necessary to describe in a little more detail the CCTV evidence of what occurred that evening. There were cameras both inside and outside the bar which captured some of the earlier events of the evening and two cameras in the station car park which captured the events there from different angles. None of the cameras captured the events to which counts 2 and 3 of the indictment related. 20. The recordings of events inside the entrance to the bar and outside in the street show Lewis, Cook and Ward together at various times, in particular before they set off to the station for the last time. That is scarcely surprising, however, since it has never been disputed that they were spending the evening together and could therefore be expected to join up again if they became separated for any length of time. Mr. Rees Q.C. for the Crown submitted, however, that their behaviour and actions immediately before they set off for the station for the last time, viewed in the context of their earlier behaviour, tend to support the conclusion that they set off with the common intention of finding and attacking the boys, or at any rate of giving them a good beating if they should come across them. 21. Earlier that evening Cook had displayed an aggressive attitude towards Williams when he was leaving the bar and had become involved in a violent scuffle with him and others after they had both emerged into the street. The jury had the benefit of seeing the CCTV recordings and were also provided with still photographs which enable one to grasp without too much difficulty the nature of their behaviour. The material was by no means conclusive; indeed, it hardly could be. However, taken in conjunction with the evidence of what followed, it was certainly capable of supporting the conclusion that the three men set off for the station together with the common intention of beating up the boys if the opportunity presented itself. 22. The events which unfolded when they reached the car park are dramatically recorded in the CCTV footage and the still photographs derived from it, in which the movements and gestures of the various participants are clearly visible from different angles. Together they provided evidence that was capable of supporting the conclusion that Lewis, Cook and Ward were acting together from the moment they arrived at the entrance to the car park and had instigated the violence. The picture that emerges from this and other evidence is that two of the boys, Jonathan Diamond (who was holding a bottle) and Andrew Saunders, ran off almost at once, leaving Evans, Kilnan, Williams and Edwards. Lewis struck the first blow against Evans, then he and Ward started to fight with Evans and the others. It seems likely that while that was going on Edwards moved away from the group towards the station and Williams ran off. While Lewis and Ward were fighting, Cook walked in the direction of the station building. Ward continued to fight with Evans, but Lewis soon left that group and followed Cook. Cook walked along the offside of a dark coloured vehicle parked facing the station and confronted Edwards, who by that time had had become separated from the rest of the group. Lewis walked along the nearside of the vehicle and approached Edwards from behind. 23. What happened next was not caught by the CCTV cameras because the vehicle obstructed their view, but was described by Lewis and Cook, albeit in somewhat different terms. Lewis, fearing, as he said, that Edwards had a bottle and was threatening Cook, admitted that he had struck him a forceful blow on the right side of the head, designed, as he later said, to “stop him in his tracks”. It had the desired effect. Edwards went to the ground, where he was punched several times by Cook, causing his head to strike the ground with considerable force on a number of occasions. Kilnan then ran up to assist Edwards and tackled Lewis. Lewis went to the ground, but was soon up again. Cook knocked Kilnan to the ground and both he and Lewis kicked him repeatedly, rendering him unconscious. The latter part of these events occurred in view of the cameras. While all that had been going on Ward had been fighting with Evans. Lewis and Cook joined him and the three of them can be seen fighting with Evans for a short time before Cook broke off and the incident came to an end. The assault on Edwards lasted no more than eight seconds; the whole incident lasted just under a minute. (ii) Joint enterprise 24. It is convenient to consider first the question of joint enterprise and the nature of the judge’s direction. The defendants all denied that they had set off for the station with any purpose in mind other than to catch a train to Cardiff; the violence, they said, had been spontaneous and had been provoked by the boys. However, if the jury were satisfied that they had left with the common intention of beating up the boys, they had not intended to cause any of them really serious harm and none of them had contemplated that any of the others might do so. Anyone who went beyond that was acting on his own. As to the attack on Edwards, Ward said that in any event he had had nothing to do with it. Lewis said that, insofar as he and Cook were acting together, he did not intend to cause Edwards really serious harm and had not contemplated that Cook might do so. On that basis Mr. Jenkins Q.C. and Mr. Elias Q.C. both submitted that the judge ought to have directed the jury that they could not convict either Lewis or Ward of the murder of Edwards unless they were sure that he had contemplated the possibility that Cook might use sufficient violence to cause him really serious harm. It is common ground that the judge did not direct the jury in those terms, but Mr. Rees submitted that, having regard to the evidence before the jury, a direction of that kind was not required in this case. 25. The leading cases on liability for the acts of another committed in pursuance of a joint enterprise are R v Powell and Daniels; R v English [1999] 1 A.C. 1 and R v Rahman [2009] 1 A.C. 129 . In Powell and Daniels three men visited a drug dealer. As he opened the door one of them shot him, as a result of which he died. In English the two defendants attacked a man with wooden posts. One of them, unbeknown to the other, was carrying a knife which he drew and stabbed the victim, causing his death. The question for the House in each case concerned the state of mind of the secondary party necessary to support a conviction for murder. In the case of Powell and Daniels there was one question for consideration, namely, whether it is sufficient for a secondary party to a killing to have realised that the primary party might kill with intent to do so or to cause really serious harm, or whether it is necessary for the secondary party to hold that intention himself. In the case of English there was in addition a second question, namely, whether it is sufficient to support a conviction for murder that the secondary party intends or foresees that the primary party will or may act with intent to cause grievous bodily harm if the lethal act carried out by the primary party is fundamentally different from the acts intended or foreseen by the secondary party. As to the first question, the House held that it is sufficient to found a conviction for murder for a secondary party to have realised that in the course of the joint enterprise the primary party might kill with intent to do so or with intent to cause grievous bodily harm: per Lord Hutton at page 27. As to the second question, the House held that that if the act of the primary party causing death was not something which the secondary party had foreseen as a possibility, it took the killing outside the scope of the joint venture and the secondary party is not guilty of any offence: per Lord Hutton at page 30. 26. In Rahman a group of persons, including the four defendants, who were armed with various blunt weapons attacked a man who collapsed to the ground, where he was further assaulted with blunt weapons and kicked. He was subsequently found to be dead. The cause of death was one or two of three knife wounds, the infliction of which would have required considerable force. Each defendant denied having used a knife and said that he had joined in the attack with at most an intention to cause serious harm and without knowing or foreseeing that anyone else involved intended to kill the victim. The House clarified its earlier decision in Powell and Daniels and English , holding that, where the principal commits an unlawful killing with the requisite intent for murder, an accessory is liable for murder on the basis of his foresight of what the principal might do rather than his foresight of the intention with which the principal’s act might be performed; and that an undisclosed and unforeseen intention to kill on the part of the principal was not relevant to whether the principal’s act had been fundamentally different from the act or acts which the accessory had foreseen as part of the joint enterprise. (iii) The judge’s direction 27. In a case such as this, in which a number of possible findings of fact are open to the jury, it is important that the judge ensures as far as possible that he gives the jury such directions on the law as are necessary to enable them to address the real issues and does not risk confusing them with unnecessary directions relating to findings that are no more than a theoretical possibility. In the present case the judge gave the jury nine pages of written directions covering the law relating to murder, manslaughter, causing grievous bodily harm with intent, self defence and joint enterprise. The directions were inevitably complicated; to have added what has been called an English direction would have made them even more so. The judge was right to consider whether it was necessary to add to the directions of law in that way. He decided that it was not; the question is whether he was right about that. 28. None of the defendants in this case used a weapon of any kind other than their fists and feet. The only joint enterprise alleged by the Crown was to give the boys a severe beating. If the jury was satisfied that there was a joint enterprise, therefore, it was one that involved punching, kicking and stamping. Whatever the precise degree of harm that any one of them may have intended or contemplated, it must, therefore, have been harm of the kind that may be caused in that way. It is well known, however, that a person who falls to the ground in a sudden and uncontrolled manner may suffer a life-threatening injury, for example, by hitting his head on the kerb. It is also well known that equally serious injuries may be caused by kicking or stamping on the head of a person lying on the ground. 29. If, as we think, there was evidence from which the jury could find that Lewis, Cook and Ward set off up Court Road on their way to the station with the common intention of giving the boys a severe beating, it then becomes necessary to consider what evidence there was of the nature and scope of the joint enterprise in which they were all participating. The behaviour of Cook when he attacked Williams outside the bar earlier that evening and his assault on Williams on his way back from the station provided some insight into his state of mind. The aggressive actions of all three in the station car park, however, provided the best indication of what they had in mind. We think it was beyond doubt that each of them intended to fight with the boys and in doing so to use such force as might be necessary to administer a severe beating, using their fists and feet. It was certainly open to the jury to find that each of them individually intended to cause really serious harm, but even if they did not, as a matter of common sense each of them must have realised that either or both of the other two might punch or kick repeatedly with such force as to cause really serious harm. Punching and kicking of a severity that was liable to cause really serious harm cannot in those circumstances have been unforeseen; it was an obvious possibility, if not the very kind of act they each had in mind. 30. In those circumstances the judge was right to hold that there was no need for an English direction in this case; to have given one would only have served to lengthen the already complicated directions and risk confusing the jury. Whatever the intention of Lewis or Cook at the time he struck or kicked Edwards, his acts were of a kind that the others must have foreseen as part of the joint enterprise. Mr. Jenkins submitted on behalf of Lewis that the degree of violence meted out by Cook was far greater than he had foreseen and thus fundamentally different from that which he had foreseen, and no doubt a similar submission could be made on behalf of Cook in relation to Lewis’s punching of Edwards to the ground. In our view, however, such a submission is wholly unrealistic in the circumstances of this case. On behalf of Ward Mr Elias submitted that the attack on Edwards went far beyond anything that he had either intended or foreseen, but for the reasons we have already given we do not consider that to be realistic. The fact is that the attack on Edwards was a part of a single enterprise in which all three joined in the understanding that fists and feet would, or might, be used to inflict really serious harm. 31. It follows that the judge’s failure to give an English direction in this case does not render the convictions on count 1 unsafe. (iv) Inconsistency – Lewis and Cook 32. Ward was convicted of manslaughter on count 1 of the indictment and of attempting to cause grievous bodily harm with intent to Kilnan. Since he had not been directly involved in the assault on Edwards or Kilnan, he could be convicted of those offences only on the basis that he was a party to a joint enterprise with Lewis and Cook which had been formed at the time the three of them set off for the station. That being so, the verdicts returned on counts 1 and 5 in relation to Ward are inconsistent in law, since, if he foresaw that Lewis or Cook might assault Kilnan in such a way as to cause him really serious harm (as the verdict on count 5 required), he must also have foreseen that one or other of them might assault Edward in the same manner, thus rendering himself guilty of murder on count 1. Indeed, Mr. Rees did not seek to argue the contrary. 33. We shall consider in a moment what the consequences of that inconsistency are for Ward, but we shall first consider what implications those verdicts have for Lewis and Cook. Mr. Jenkins submitted that they show that the jury misunderstood the judge’s directions on joint enterprise and therefore any convictions which depended on the application of those principles are unsafe. Mr. Elias made a similar submission, arguing that the judge had failed to provide the jury with a written summary of the directions which set out a clear and coherent route to verdict, leading to confusion and inconsistent verdicts. 34. As we have already mentioned, the judge did provide the jury with written directions on the law, including the law on joint enterprise, the formulation of which has not been criticised, apart from the omission of an English direction which we have held to have been unnecessary. Nothing in those directions has been identified as being unclear or likely to have caused confusion. Whatever may be said about the verdicts in relation to Ward, there is nothing to indicate that the jury may have been confused in any way when considering their verdicts in relation to Lewis and Cook on count 1. There was, as we have said, ample evidence on which they could find that the two of them were parties to a joint enterprise to inflict really serious harm on all or any of the boys whom they might encounter and the verdicts on counts 1 and 5 reflect such a conclusion. The fact that different verdicts were returned in relation to Ward may raise a question in his case, but does not do so in theirs. 35. For all these reasons we are satisfied that the convictions of Lewis and Cook on count 1 are not unsafe. (v) Inconsistency - Ward 36. One can approach the verdicts returned in relation to Ward on counts 1 and 5 in a number of different ways. Mr. Elias submitted that the jury must have found that, if he was a party to a joint enterprise of any kind, he did not foresee that Lewis and Cook might inflict really serious harm on Edwards, otherwise they must have convicted him of murder. Equally, however, they had no rational basis for distinguishing between the assault on Edwards and the assault on Kilnan. Ward was therefore not criminally responsible for the actions of Lewis and Cook in assaulting Edwards or Kilnan in such a way as to cause really serious harm. The jury should therefore have acquitted him on both counts and both convictions are unsafe. 37. However, Mr. Rees advanced another interpretation. He submitted that the better view is that although the jury was satisfied that all three defendants had been parties to an agreement to give the boys a beating and that Ward had foreseen that one or more of them might suffer really serious harm as a result, they were reluctant to convict him of murdering Edwards, since he had played no direct part in the attack on him. They did not, however, feel the same reluctance to convict him of attempting to cause grievous bodily harm to Kilnan because the way in which he fought with Evans showed that he was willing for a considerable degree of violence to be used with that purpose in mind. 38. We were referred to a number of cases in which the court has considered the effect of inconsistent verdicts. In R v Drury (1971) 56 Cr. App. R. 104 the appellant, a lorry driver, had been charged with the theft of 28 boxes of oranges and with two counts of obtaining by deception. He had short-delivered a consignment of oranges to a wholesale fruiterer, retaining the 28 boxes on his lorry with the connivance of his foreman and subsequently selling them to various local greengrocers. The Crown put its case on the basis that the appellant had dishonestly appropriated the oranges by selling them and that by selling them he had also obtained money by deception from the buyers. Since all three counts depended on whether the sales were dishonest, they stood or fell together, but for some reason the jury convicted the appellant of obtaining by deception but acquitted him of theft. The court rejected the proposition that whenever the jury has returned inconsistent verdicts the convictions must necessarily be quashed, saying that it all depends on the facts of the case. In that case, however, the court considered the verdicts to be so violently at odds that it felt obliged, to quash the convictions. notwithstanding the cogency of the evidence against the appellant. 39. A similar question arose in R v Durante [1972] 1 W.L.R. 1612, (1972) 56 Cr. App. Rep. 708. The appellant had been charged with handling a stolen cheque and endeavouring to obtain money on a forged instrument, namely, the same cheque. A blank cheque was stolen from a company’s cheque book. The appellant went to a public house and asked the manager to cash a cheque for him. He later admitted that he had bought the blank cheque for £2 from a man in a pub and had made it out himself, but he said he had been too drunk to form the necessary criminal intent for either offence. The jury convicted him of handling the cheque, but acquitted him of attempting to obtain money on a forged instrument. 40. The court referred to the case of Drury and to the earlier case of R v Hunt (1968) 52 Cr. App. Rep. 580 in which Lord Parker C.J. had cited the following passage from the judgment of Devlin J. in the unreported case of R v Stone : “When an appellant seeks to persuade this Court as his ground of appeal that the jury has returned a repugnant or inconsistent verdict, the burden is plainly on him. He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they were an unreasonable jury, or that they could not have reasonably come to the conclusion, then the convictions cannot stand. But the burden is on the defence to establish that.” The court formally approved and adopted that as a correct statement of the law. Having done so it was satisfied that no reasonable jury who had applied their minds properly to the facts in the case could have arrived at the two differing conclusions and therefore held that the conviction was unsafe. 41. In R v Segal [1976] R.T.R. 319 the appellant was charged with driving in a dangerous manner and driving at a dangerous speed. Although he was said to have made some dangerous manoeuvres in the course of a ten mile journey through a built-up area, the essence of both charges was that he had driven at a very high speed. The appellant denied that he had done either. The jury, preferring the police evidence, convicted him of driving at a dangerous speed but acquitted him of driving in a dangerous manner. Scarman L.J. observed that since the evidence of the police officer and that of the appellant had been in direct conflict, the only real issue for the jury was which of them was to be believed. Scarman L.J. giving the judgment of the court said: “By their verdict of guilty on the count of driving at a dangerous speed it is plain that the jury did reach the view that the speed was dangerous, and it is also plain by their verdict that on the broad issue of who was telling the truth the jury preferred, and indeed accepted, the evidence of the police officer, at least so far as that evidence was concerned with the speed at which the car was being driven. As a matter of common sense and justice the jury might seem to have reached a very reasonable conclusion. They brought in a verdict of guilty of dangerous speed. They felt, or this is a fair interpretation of what they may well have felt, that really in those circumstances it was quite unnecessary, and perhaps indeed unfair, to bring in a verdict of guilty of driving in a dangerous manner since that verdict added nothing to the guilt of the appellant, who in their view was to blame for driving too fast. Nevertheless, as Mr Levene has submitted, those verdicts are as a matter of legal logic inconsistent.” 42. Having then adverted to the principle enunciated in Drury , he continued as follows: “Mr Rylance for the Crown in the course of some very helpful observations pointed out that, though the legal logic of the matter is that these verdicts are inconsistent, the practical common sense of the jury in reaching the verdict that they did reveals no inconsistency in approach, but rather reflects the way in which the case for the Crown had been presented to them. He reminded the court that the jury might well have seen this case as consisting of two parts, linked of course, but nevertheless capable of being assessed separately. One part was the dangerous driving in coming suddenly without warning out of a minor road on to a major road, in overtaking at the brow of a hill and in zigzagging. The other part was the continuous high speed to which the officer spoke and which the officer said in his opinion was a dangerous speed. The jury may well have thought that it sufficed, for the reasons we have indicated, to bring in a verdict of guilty to the dangerous speed and to reach no final conclusion on the other incidents of the driving but to give the defendant the benefit of an acquittal there. Inconsistent? Yes, in law. Unsafe, unsatisfactory or lacking in common sense? No, a perfectly understandable approach, in the view of this court. This is not a puzzling case. In Reg. v Drury (1971) 56 Cr. App. R. 104 the court was puzzled. In this case we are not; and certainly the existence of a formal logical inconsistency does not lead us to doubt the safety of the verdict on speed. At the end of the day it is for this court to make up its mind under section 2 of the Criminal Appeal Act 1968 whether the verdict of guilty in all the circumstances was safe and satisfactory. We have reached the unhesitating conclusion that, although it is formally inconsistent with the verdict of not guilty on driving in a dangerous manner, it is nevertheless a safe, satisfactory and sensible verdict once the jury had decided that they preferred the evidence of the police officer to the evidence called for the defence.” 43. The circumstances which gave rise to the appeal in R v McKechnie, Gibbons and Dixon (1992) 94 Cr. App. Rep. 51 were somewhat closer to the present case inasmuch McKechnie was said by the prosecution to have committed an assault on an elderly man, which ultimately contributed to his death, in the course of a joint enterprise with his two co-accused, Gibbons and Dixon, neither of whom had any direct hand in it. All three defendants were charged on count 1 of the indictment with murder and on count 2 with causing grievous bodily harm with intent. That second count had been included to cater for the possibility that the jury might not be satisfied that the injuries sustained by the victim had contributed to his death. In the event McKechnie was convicted of manslaughter on the grounds of provocation and Gibbons and Dixon were convicted of causing grievous bodily harm with intent. 44. All three appellants appealed against conviction on the grounds that the verdict on count 1 in relation to McKechnie was inconsistent with the verdicts on count 2 in relation to Gibbons and Dixon. The prosecution had put its case to the jury on the basis that they only had to consider count 2 if they were unsure that McKechnie’s attack had caused the victim’s death. The appellants argued, therefore, that the verdict in relation to McKechnie on count 1 could only be supported if they were sure that it had, but the verdicts in relation to Gibbons and Dixon on count 2 could be supported only if they were not sure of that. 45. Auld J., giving the judgment of the court, referred to Drury and Durante . He then pointed out that the real inconsistency between the verdict on count 1 and the verdicts on count 2 lay in the fact that Gibbons and Dixon could be guilty on either count only if they had been parties to McKechnie’s attack. However, the jury’s finding that McKechnie was or may have been provoked, which led to a verdict of manslaughter by reason of that provocation, made it impossible to conclude that there had been any joint enterprise between them. The court concluded that there was ample evidence to support McKechnie’s conviction and that a proper direction had been given on causation and provocation. It therefore upheld his conviction. It also held, however, that the jury had not been told how to approach the position of Gibbons and Dixon if they were satisfied that McKechnie may have been provoked into committing the assault and for that reason quashed their convictions. 46. In R v McCluskey (1994) 98 Cr. App. Rep. 216 the appellant, who had been involved in a fight in the street in which another man had been killed, was charged with murder and affray. He said he had acted in self-defence. The judge directed the jury that if they convicted the appellant of murder or manslaughter, there was no defence to the charge of affray. However, the jury convicted the appellant of manslaughter but acquitted him of affray. The primary ground of appeal was that the verdicts were inconsistent and that the conviction was therefore unsafe. Giving the judgment of the court Henry J. said: “The general rule in this Court is that where the jury convict on one count but acquit on another, this Court will quash the conviction on grounds of inconsistency if, and only if, the conclusion reached by the jury is one at which no reasonable jury who had applied their minds properly to the facts of the cause could arrive. (See the unreported decision of Devlin J. in Stone [1955] Crim.L.R. 120 C.C.A., formally adopted by this Court in Durante (1972) 56 Cr. App. Rep. 708, 714, [1972] 1 W.L.R. 1612, 1617E). But in the case of Trundell (unreported, June 28, 1991) it was emphasised that the fact that two verdicts were shown to be logically inconsistent might not by itself be a reason for quashing a verdict unless the only explanation for the inconsistency must or might be that the jury was confused and/or adopted the wrong approach, thus making the verdict complained of unsafe. In this case, these verdicts were clearly inconsistent. Might the reason for that have been that the jury was confused and/or adopted the wrong approach? The appellant submits that that might have been the case. The submission is that as the only basis for acquittal on the affray charge is that the appellant was not acting unlawfully because he was acting in self-defence, so the jury must have believed that self-defence only reduced murder to manslaughter, rather than offering a complete defence. The appellant has not satisfied us that that is a possibility. The jury here were trying the most serious crime of the calendar. Central to that was self-defence. They had had the direction on self-defence three times, put in the clearest terms. To emphasise the point, the last time was in the passage last quoted above – a plain and unambiguous answer to the jury's specific question. It is inconceivable that they misunderstood it. The matter can be approached in another way by testing that conclusion against what other explanations there may be. Here, this jury, having taken time, acquitted of murder and convicted of manslaughter. They could justifiably have felt that they had then reached the only important decision in this case and that all that followed, namely count 2 affray, was academic — as in reality it was. A consecutive sentence would have been wrong as all arose out of the same incident. We regard the acquittal on the relatively minor charge of affray as reflecting no more than that. Certainly that acquittal goes no way to persuading us that this jury misunderstood the main issue on the murder charge. To make such a finding on so slight a basis would be an insult to the jury.” 47. None of the cases to which we have referred is quite on all fours with the present, which is hardly surprising. Apart from anything else, all of them, other than McKechnie , are cases in which the appellant had been acquitted on another count, thereby casting doubt on the findings on which the conviction was based. Nonetheless, the principles that emerge from them are reasonably clear: the only question for the court is whether the conviction is safe and it is for the appellant to satisfy the court that it is not by showing that the only satisfactory explanation for the inconsistency is that the jury is likely to have been confused or to have adopted the wrong approach when reaching their verdict. As McCluskey makes clear, whether the conviction is unsafe is a matter to be judged by the circumstances of the case as a whole. 48. In the present case the judge made it very clear to the jury, both in relation to count 1 and again in relation to count 5, that they could not convict Ward of either offence unless they were satisfied that he was a party to the joint enterprise from the outset. We think that there can be no doubt, therefore, that in convicting him on both those counts they were satisfied of that fact. Moreover, in convicting him on count 4 (attempting to cause grievous bodily harm with intent to Evans) it is clear that they were satisfied that when he took part in the violence he intended to cause really serious harm. In those circumstances we find it impossible to believe that the jury was not satisfied that he had foreseen that Lewis and Cook might act in a similar way. If that is so, Ward’s conviction on count 5 is safe. The anomaly is the conviction for manslaughter on count 1; on that basis the jury should have convicted him of murder. In our view the explanation offered by Mr. Rees is clearly the more plausible: the jury was unwilling to convict Ward of murder in circumstances where he had played no direct part in the death of Edwards. He may be fortunate in having been convicted of manslaughter rather than murder, but we are quite satisfied that the conviction is not unsafe. (vi) Cook – other grounds 49. In addition to the grounds with which we have already considered Cook seeks leave to appeal against his conviction for murder on the grounds that the evidence did not support the conclusion that he struck Edwards intending to cause him really serious harm. In support of that argument he produced for the hearing photographs of the deceased and diagrams showing his injuries together with written submissions based on various aspects of the evidence. 50. Having reviewed the evidence, in particular the CCTV evidence and the stills taken from it, there is in our view no merit whatsoever in any of his arguments. It goes without saying that it was for the jury to evaluate the evidence before them and none of the points made in the written submissions provides any grounds for thinking that the conviction is unsafe. Although the assault on Edwards happened very quickly, there was enough time for Cook to strike Edwards several forceful blows and the evidence of Lewis tended to confirm that he did so. It cannot be said that there was insufficient evidence to support the jury’s finding. (b) Count 4, Attempting to cause grievous bodily harm to Evans 51. The attack on Ashley Evans began almost as soon as Lewis, Cook and Ward reached the station car park. Lewis struck the first blow, after which he and Cook moved away to confront Edwards, leaving Ward and Evans fighting. After the attacks on Edwards and Kilnan were over, Lewis and Cook returned to join in the fight, which was still going on. Mr. Jenkins submitted that as far as Lewis was concerned (and the same is true for Cook), the assault on Evans fell into two quite separate stages, in relation to each of which the issue of self-defence was raised. Accordingly, he submitted, it was necessary for the judge to direct the jury that they had to reach agreement on the facts relating to the first or second stage before they could convict. In other words, it would not do for (say) six of them to find that Lewis acted in self-defence at the first stage but not at the second and the other six to find that he acted in self-defence at the second stage but not at the first. The direction which it is said that the judge should have given is sometimes known as a Brown direction (see R v Brown (K) (1984) 79 Cr. App. Rep. 115). Mr. Jenkins submitted that since the judge did not give such a direction, Lewis’s conviction on count 4 is unsafe. Mr. Rees, on the other hand, submitted that the attack on Evans constituted a single continuing course of conduct and that therefore no direction of that kind was required. 52. It has often been said that the jury should not be overburdened with unnecessary warnings and directions which serve only to confuse them and that a Brown direction will be necessary only in comparatively rare cases where there is a risk that the jury will not realise that they need to agree upon the particular ingredient which they rely upon to find the defendant guilty of the offence charged. A number of cases in which the need for a Brown direction has been discussed were considered in R v Boreman [2000] 2 Cr. App. Rep. 17. Among them was the case of R v Gianetto [1997] 1 Cr. App. R. 1, in which the appellant was charged with the murder of his wife. The Crown’s case was that he had either murdered her himself, or had arranged for someone else to kill her. The defence asked the judge to give a Brown direction, but he declined to do so. The appeal was dismissed on the grounds that the appellant was guilty of murder in either event, being either the principal or a secondary party to what was a single offence. 53. In R v Christopher Smith [1997] 1 Cr. App. R. 14 the appellant had been present at a family party which degenerated into violence. He was alleged to have committed various assaults on those present, both while he was in the house and after he had gone outside. He was charged with two offences of assault and with affray, the latter being intended to cover what had gone on both inside and outside. He appealed against his conviction on the grounds that the judge should have given a Brown direction because there was a possibility that some of the jury might have been minded to convict on the basis of what had taken place only inside the house and others on the basis of only what had taken place outside. The appeal was dismissed on the grounds that it is unnecessary for the Crown to prove particular incidents in order to obtain a conviction for affray. As Lord Bingham C.J. pointed out at page 17, affray “ . . . typically involves a group of people who may well be shouting, struggling, threatening, waving weapons, throwing objects, exchanging and threatening blows and so on. Again, typically it involves a continuous course of conduct, the criminal character of which depends on the general nature and effect of the conduct as a whole and not on particular incidents and events which may take place in the course of it. Where reliance is placed on such a continuous course of conduct it is not necessary for the Crown to identify and prove particular incidents.” 54. However, he recognised that in some cases the position may differ, since he went on to say this: “Different considerations may, however, arise where the conduct which is alleged to constitute an affray is not continuous but falls into separate sequences. The character of the conduct relied on in each sequence may in such a case be quite different and so may the effect on persons who are (or might hypothetically be) present at the scene. The possibility then arises that half the jury may be persuaded that the first sequence amounted to an affray and the second did not, and the other half of the jury may be persuaded that the second sequence amounted to an affray and the first did not. The result would then be that there was no unanimous jury verdict in support of conviction based on either sequence.” 55. Unlike affray, the offence of causing grievous bodily harm with intent is not directed to the overall impression made on third parties by what is typically a continuous course of conduct, but concerns one or more acts committed by the defendant against another person. Those acts may, of course, form part of a continuous course of action, but the overall course of action is not itself what constitutes the offence. In the present case the assault on Evans was continuous, since Ward was engaged throughout, following the initial punch by Lewis, but the contributions made by Lewis and Cook were separated in time. We doubt therefore whether they can properly be regarded as part of one continuous course of action in quite the same way as would have been possible if they had been charged with affray. Nonetheless, we do not think that the lack of a Brown direction in this case renders the convictions of Lewis and Cook on count 4 unsafe. The verdicts on counts 1 and 5 make it clear that the jury was satisfied that there was a joint enterprise involving all three defendants and that each of them intended or foresaw the use of violence of a kind that might cause really serious harm. In those circumstances, whatever part each played in the attack, Lewis, Cook and Ward were each criminally liable for the assault on Evans, either as principal or secondary parties. To have given a Brown direction would only have risked confusing the jury. 56. For all these reasons the appeals of Lewis and Cook against conviction are dismissed. Since there is no merit in the substance of Cook’s renewed application for leave to appeal against conviction, his application for an extension of time is refused. (c) Sentence 57. Cook was sentenced to life imprisonment with a minimum period of 16 years in custody. Lewis was also sentenced to life imprisonment, but in his case the minimum period in custody was set at 14½ years. Cook renews his application for leave to appeal against sentence on the grounds that the minimum period in his case was manifestly excessive having regard to the fact that no weapons were used, that there was no intention to kill and that there was no significant premeditation. He also submits that there is objectionable disparity between the sentence imposed on him and that imposed on Lewis. 58. In our view there is no merit in any of these arguments. The judge was well-placed at the conclusion of the trial to assess the relative culpability of each defendant. As he rightly pointed out, there were aggravating factors in this case, in particular the fact that the offence was committed jointly, in a public place, late at night and was in the nature of a revenge attack. Cook was significantly older than Lewis or Ward and could have been expected to be a moderating influence; instead there was reason to think that his actions in repeatedly striking Edwards were the principal cause of his death. In our view neither the length of the minimum term itself nor the fact that it was somewhat longer than that imposed on Lewis is open to criticism. 59. Again, since there is no merit in the substantive application, we refuse the necessary extension of time.

2010_03_17-2328.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/496/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/496

25cde9ddda458b2c541937e8089a2a2e488db052b90859ac934134de924dd6a6

[2023] EWCA Crim 1096

EWCA_Crim_1096

2023-09-01

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 No. 202300424 B5 Royal Courts of Justice Neutral Citation Number: [2023] EWCA Crim 1096 Friday, 1 September 2023 Before: LORD JUSTICE POPPLEWELL MRS JUSTICE CHEEMA-GRUBB MRS JUSTICE TIPPLES REX - v - FAISAL HUSSAIN __________ Transcript prepared from digital audio by Opus 2 International Ltd. Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 CACD.ACO@opus2.digital _________ MR B BATRA appeared on behalf of the Appellant. THE RESPONDENT did not appear and was not represented. _________ JUDGMENT MRS JUSTICE CHEEMA-GRUBB: 1 This is an appeal against sentence with leave of the single judge. The appellant, Faisal Hussain, who is now aged 26, appeared before the Crown Court at Burnley on 16 January 2023 for sentence on two indictments, both concerning the supply of Class A drugs. On the earlier indictment, dating back to 2020, he pleaded guilty to two counts of possession with intent to supply Class A drugs. On the second indictment, concerning conspiracies to supply Class A drugs, he pleaded guilty to two counts, referring to cocaine and heroin respectively. 2 He was otherwise of good character. All the pleas were entered very late. He was sentenced to a total of 7 years’ imprisonment. The 2020 offences were committed on 9 January that year, when the appellant was seen by plainclothes police officers supplying drugs to a user in Burnley. On that occasion, he was found in possession of £1,329 cash together with cocaine and heroin with a combined street value of £930. He was plainly engaged in street-level dealing. 3 The background to the conspiracy counts was that of a sophisticated, organised crime group operating out of Burnley in Lancashire. A number of drugs lines were involved, and each time these were closed down following police investigation, others sprung up, managed by the same group of offenders. At the sentencing hearing, the judge dealt with seven defendants and had to assess the role played by each of them individually and against the background of the overall offending. 4 To give a flavour of their activities, between January and May 2022, police identified 43 different days where drugs were being supplied through the familiar route of bulk messages being sent out from the various telephone numbers to large groups of drug users. Transactions took place on the streets of Burnley and surrounding areas, usually during daylight hours. 5 Those engaging in the street dealing were generally well below the position of the seven defendants in the drug dealing hierarchy before the judge. Premises at Todmorden Road were used by the group to stash drugs, and one of this appellant’s co-defendants, Matthew Hefford, had a principal role in managing that property. The police calculated that a minimum of 6,000 messages were sent to mobile phones during this five-month period and, as a general estimate of the quantity of drugs that were supplied at street level, the case proceeded on the basis that between four and just less than five kilograms of Class A drugs, worth around £300,000, was involved over the period of the indicted conspiracies. 6 This placed the case generally in Category 2 of the Sentencing Council’s Guideline for supplying Class A drugs, with a starting point of 8 years’ custody within a range of 6½ years to 10 years for those playing a significant role in the course of supply. Of course, here, the court was dealing with conspiracies, which are generally considered more grave than the substantive offences. 7 The appellant’s role, however, was limited in time and quantity of drugs involved. He controlled and operated one of the drugs lines on occasions between mid-March and early April 2022, under the direction of the principal figure within the conspiracy, a man called Adeel Khan. It is clear that the appellant had taken on a more significant role in the 2022 conspiracies than simply dealing drugs on the street, on his own, as he had been in 2020. 8 Against this background, the prosecution placed the appellant towards the bottom end of the order of seniority within the conspiracy, and described his role in a sentencing note prepared for the judge as follows: “The January 2020 offences appear to be straightforward street dealing of Class A drugs. Whilst his role in the conspiracy is towards the lower end, on balance the court may feel that his role is properly categorised as significant.” 9 Offending while the earlier indictment was still being investigated was an aggravating feature, as well as those 2020 offences, justifying a consecutive sentence. At the hearing itself, the prosecution opened the case against the appellant as we have summarised above and, again consistent with the sentencing note, prosecution counsel submitted: “It may be that, on balance, the court should take the view that Faisal Hussain, looking at the previous matter and his involvement in the conspiracy, albeit for a limited time, had played a significant role in the street dealing of Class A drugs.” 10 This categorisation for this appellant was, it appears, the agreed position of the prosecution and the defence. Category significant role has a starting point in the guideline of 4½ years’ custody within a range of 3½ to 7 years. In sentencing the appellant, the judge did not apply that categorisation, but placed the appellant in a Category 2 significant role, equivalent to the offender Hefford, who we have mentioned, and who had plainly played a more substantial role in the conspiracy. 11 Taking a starting point of 6 years’ imprisonment and allowing an unobjectionable one twelfth discount for the late admissions and adding 18 months for 2020 offences, the judge indicated he had allowed for totality. To illustrate further the context in which he dealt with this appellant: in respect of the conspirator at the head of this group, Adeel Khan, the judge took a starting point of 9 years’ imprisonment. 12 The grounds of appeal have merit. In respect of the conspiracy counts and the particular circumstances of this case, especially the decision that even those at the very top of the indicted conspiracy should be treated as playing a significant role rather than a leading one, the appropriate starting point for this offender was that for a significant role in Category 3 of the Class A drug supply guideline. 13 Category 3, as the guideline states, is the category into which street suppliers usually fall. To recognise the shorter period over which this appellant was involved, and the limited mitigation open to him from his age and personal circumstances, including the progress he has made in custody and the fact that he was acting under the influence of more sophisticated offenders, it is appropriate to reduce slightly within the category to 4 years’ imprisonment. 14 After application of the limited discount for his guilty pleas and maintaining the 18 months’ imprisonment imposed for each of the 2020 offences, we have concluded that the sentence of 7 years’ imprisonment in total is manifestly excessive, and we reduce it to 5 years, 2 months, which is made up of 44 months on each of the two conspiracy counts and 18 months on each of the earlier possession with intent counts. All subsidiary orders will remain as before, and to that extent, this appeal succeeds. __________

2023_09_01-5799.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1096/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1096

f8f50c18b53226a894ef045fb8be7361e3652ed92ce86190b44cae136424d19c

[2009] EWCA Crim 2393

EWCA_Crim_2393

2009-10-28

crown_court

Neutral Citation Number: [2009] EWCA Crim 2393 Case No: 200902627/B3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 28th October 2009 B e f o r e : LORD JUSTICE STANLEY BURNTON MR JUSTICE PENRY-DAVEY MRS JUSTICE SHARP DBE - - - - - - - - - - - - - - - - - - - - - R E G I N A v RAKESH LAL - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications C

Neutral Citation Number: [2009] EWCA Crim 2393 Case No: 200902627/B3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 28th October 2009 B e f o r e : LORD JUSTICE STANLEY BURNTON MR JUSTICE PENRY-DAVEY MRS JUSTICE SHARP DBE - - - - - - - - - - - - - - - - - - - - - R E G I N A v RAKESH LAL - - - - - - - - - - - - - - - - - - - - - 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 Chandler (Solicitor Advocate) appeared on behalf of the Appellant Miss S Gates appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE PENRY-DAVEY: On 20th April 2009 in the Crown Court at Harrow this applicant was convicted following his change of plea to guilty on rearraignment of damaging property, theft and attempted theft. On 18th September he was sentenced to 3 months' imprisonment on each concurrent. On the same occasion, on a separate indictment, he received a consecutive term of 3 months' imprisonment, making a total of 6 months less 32 days served on remand, under section 240 of the Criminal Justice Act 2003 . He seeks an extension of time in which to renew his application for leave to appeal against conviction after refusal by the single judge. 2. We should indicate that the matter that has proved determinative of this application was not raised expressly in the original grounds, it was not therefore before the single judge and on the material that he had before him, we find his conclusion entirely understandable. Thereafter the renewals form was received, it appears by fax at the Criminal Appeal Office on 9th October 2009, two-and-a-half months out of time, although it is contended that solicitors had sent the document at an earlier stage. 3. The allegations against the applicant were these. On 16th February 2008 he been caught leaning in through a smashed window of a car belonging to Mr Habte, attempting to remove the car stereo and, when searched, was found to have the stereo remote control already in his pocket. He was arrested. It was not possible to interview him immediately because he was both deaf and non speaking and there was no sign language interpreter available. He was eventually interviewed in the presence of a solicitor on 14th April 2008, in the course of which he accepted smashing the window and taking the remote and attempting to remove the stereo. However, he stated that he was acting under duress from someone who had previously stabbed him and broken his jaw. 4. During the trial evidence was admitted of a number of incidents in which the applicant was the victim of crime. There was a robbery in 2004, in which he suffered a cut to his leg and £1500 was stolen. He stated that the assailants were known to him and gave evidence that these people were the same as put him under duress in the instant case. Secondly, an assault on 12th September 2004, when he was punched by an ice cream van driver seemingly without motive. He said his assailant knew the robbers from an earlier incident. Thirdly, a robbery on 7th February 2006 when he was confronted by three men who stole his bike, jacket and phone. 5. His previous convictions, for some 21 offences, were adduced by agreement and he gave evidence that he had pleaded guilty in each case. The prosecution case was that the applicant had deliberately caused criminal damage to the vehicle, thereafter stolen the remote control and attempted to steal the stereo. The defence case was that the applicant was acting under duress at the material time. 6. The applicant gave evidence that he was cycling along one afternoon when he met two men who forced him to break into the car and steal the stereo. He had known these men for many years, they were called "Jitty" and "Satty". They were responsible for getting him addicted to heroin in 2001. He had been purchasing drugs from them ever since. They were responsible for the attack upon him in 2004 when he was stabbed and robbed. He also believed that they knew the ice cream van driver who had assaulted him later that same year. They had forced him to commit crimes for them in the past and indeed all the post 2005 convictions he said had been committed whilst acting under duress. 7. Prior to the summing-up the judge heard submissions regarding the appropriate directions to the jury on duress. It is put thus by Mr Chandler in the perfected grounds: "As is usual, before closing speeching and in the absence of the jury the learned judge discussed various issues relating to the law which would need to be addressed in the summing-up. Most interesting of these was duress and in particular the concept of voluntary exposure to risk. Both prosecution and defence made written submissions and engaged in oral argument in which two issues were live. Firstly, the extent to which the relationship between Mr Lal and his alleged duressors ought to have led him to foresee the possibility of compulsion to commit crimes from threats of violence, and secondly, the consequence of Mr Lal having stopped voluntarily. It was implicit in argument, although perhaps never made clear to the court, that the prosecution and the defence were in agreement that these issues were fit to be left to the jury, albeit that the learned judge had some decisions to make in the form of her directions to the jury." 8. In the event, when the judge having made a number of findings of fact came to the end of her ruling she said this: "I conclude, therefore, having considered all matters, that despite the defendant's previous experiences of association with his drug dealers, he voluntarily exposed himself to risk he knew and ought reasonably to have foreseen the risk of being subjected to compulsion to commit crimes by threats of violence. As a result of this ruling, I propose that the defence of duress is withdrawn from the defendant." 9. What counsel for both parties were expecting, following the submissions was an indication by the judge of the nature of the direction on duress that she intended to give to the jury. What, however, the judge did in the event was to rule that the applicant had voluntarily exposed himself to the risk of duress and could not therefore rely upon it as a defence to the charges. In other words, she withdrew the defence of duress from the jury's consideration, in a situation where neither counsel had had any opportunity to address her on that aspect of the matter, and it is in consequence submitted that the conviction of the applicant, albeit on his own confession, following that ruling is therefore unsafe, more particularly where it is conceded by the Crown that this was not a case where the facts were so clear or undisputed that there was no case on duress to be left to the jury. In other words, it was not a case where no reasonable jury, properly directed, could have failed to find the defence disproved. 10. It may be that the applicant's account was at least unlikely, if not very unlikely. But in the light of the concession that has been made and the misunderstanding that clearly arose, in our judgment, the judge was wrong to withdraw the matter from the jury in her ruling or at any rate, to do so without giving counsel any opportunity to deal with the matter. In the result we cannot regard the conviction as safe. 11. What we propose to do in the circumstances, this being an application for leave, is to grant the necessary extension of time, to grant leave to appeal against conviction and with the consent of both sides to treat this as the hearing of the appeal, which we do. In the result, we quash the conviction. 12. We have heard submissions on the question of retrial. It is the fact that the appellant has served very much the greater part of the sentence imposed. The Crown do not seek a retrial, although Miss Gates indicated she has no express instructions on the matter. In our judgment, it is not an appropriate case in all the circumstances for the court to order a retrial and accordingly we do not.

2009_10_28-2140.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/2393/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/2393

aea6aeabcd47a4beeddcd49856ed1fe603f68cd2b0b702b4f7d0f5ee0d38da57

[2022] EWCA Crim 412

EWCA_Crim_412

2022-03-28

crown_court

[2022] EWCA Crim 412 Case No: 202102857 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT PLYMOUTH HIS HONOUR JUDGE MOUSELEY QC Ind. No. T20200123 Royal Courts of Justice Strand, London, WC2A 2LL Monday 28 th March 2022 Before : LORD JUSTICE HADDON-CAVE MRS JUSTICE MAY and MRS JUSTICE COLLINS RICE - - - - - - - - - - - - - - - - - - - - - Between : ABDULNASRI ABDULAHI Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

[2022] EWCA Crim 412 Case No: 202102857 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT PLYMOUTH HIS HONOUR JUDGE MOUSELEY QC Ind. No. T20200123 Royal Courts of Justice Strand, London, WC2A 2LL Monday 28 th March 2022 Before : LORD JUSTICE HADDON-CAVE MRS JUSTICE MAY and MRS JUSTICE COLLINS RICE - - - - - - - - - - - - - - - - - - - - - Between : ABDULNASRI ABDULAHI Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Nicholas Lewin (instructed by Woollcombe Yonge LLP) for the Appellant Ms Francesca Whebell (instructed by the Crown) for the Respondent Hearing date: Thursday 10 th March 2022 - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment was handed down remotely by circulation to the parties’ representatives by email and released to BAILII. The date and time for hand-down is deemed to be 9am on Monday 28 th March. REPORTING RESTRICTIONS This is a case in which the following restriction(s) will apply: The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. [See para.2.1 of the Practical Guide to Reporting Restrictions in CACD]. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with s.3 of the Act. Lord Justice Haddon-Cave: 1. On 17 th August 2021 in the Crown Court at Plymouth before His Honour Judge William Mouseley QC, the appellant (then aged 24) was convicted of sexual assault, contrary to section 3 of the Sexual Offences Act 2003 (Count 1) and common assault, contrary to section 39 of the Criminal Justice Act 1988 (Count 2). The appellant is awaiting sentence. 2. The appellant appeals against conviction on Count 1 by limited leave of the single judge. We are grateful to Counsel, Mr Lewin and Ms Whebell (both of whom appeared below) for their able arguments and assistance in this appeal. The Facts 3. Shortly after 8am on 20 th March 2020, the appellant was taken into custody having allegedly attempted to punch a pedestrian near Plymouth’s main railway station. He was observed to be behaving oddly, with behaviour some described as grandiose and flamboyant or simply drunk and unable to stand unaided. As a result, at the custody centre he was examined by a nurse, CS, who determined his blood sugar level to be 2.1 millimoles per litre (mmol), as opposed to the normal range of between 5 and 8 mmol. She prescribed that he be given some glucose gel and provided with food and drink and she would return later and reassess him. 4. CS returned to assess the appellant some four hours later. She re-tested his blood sugar levels and found them by this stage to be 6.0 mmol, i.e. within the normal range. She then proceeded to examine him. She described how during what followed, the appellant lifted his hand and deliberately touched her breast. She later reported the incident to the police. 5. The appellant was interviewed on 20 th March 2020 about the assault on the pedestrian. He denied the offence and said it could have been anyone. He was asked if he had been under the influence of anything or had any diagnosed medical issues or had taken any medication that might have affected his behaviour at the time. He declined to answer. 6. The appellant was asked to attend a second interview on 28 th April 2020 about the incident involving CS. He provided a prepared statement in which he denied intentionally or deliberately reaching out or touching CS’s breast or in that area. He accepted he may have moved his arms around and accidentally brushed against her. He had no specific recollection of doing that, but if there was any touching, he said it would have been accidental. 7. The Prosecution case was that the appellant sexually assaulted CS when he intentionally touched her breast (Count 1) and committed common assault when he deliberately attempted to strike the pedestrian (Count 2). 8. To prove the case on Count 1, the Prosecution relied on the evidence of CS about the incident and the statement of a colleague who gave evidence of first complaint by CS who told him the appellant had grabbed her breast and she had said something along the lines of, “What are you doing?” The defence case on Count 1 was a denial that the appellant intentionally or deliberately reached out or touched CS on the breast or in that area. The appellant accepted that he may have moved his arms around and accidently brushed against CS, but denied any sexual assault. The appellant further relied on non-insane automatism on the basis of his low blood sugar level. 9. In relation to Count 2, the defence case was a denial that the appellant tried to strike the pedestrian as alleged or at all. He could not remember any confrontation with the pedestrian, but may have been unable to control his actions by reason of low blood sugar (as was subsequently found), unrelated to any alcohol intoxication. Evidence 10. CS, who had worked as a Healthcare Professional at the custody centre for a number of years, gave evidence that the appellant was brought into the examination room by two officers. She described him as ashen in colour, sweating profusely, fidgety and acting in a weird manner. He was very excitable and had no idea why he was in the medical room or who CS was, despite her introducing herself. He had previously signed the consent form but had no idea that it was his signature on the form. At the time, she was not sure whether the appellant was suffering from a medical condition or was under the influence of drugs or alcohol, so she did a routine set of observations, which included checking his blood sugar levels. Those levels turned out to be very low (2.1 mmol when the normal range was between 5 and 10 mmol) and would have accounted for the way he was acting. The low reading meant the appellant was medically unfit and she was not able to carry on with the examination. 11. She said that during the examination the appellant lay down on the couch but could not keep still and was rolling about. Concerned that he would fall off the couch, she stood right next to it. As the appellant rolled around, his knee came into contact with her chest, however, she did not believe it was intentional because he was unwell. She gave the appellant some Glucagon and asked the detention officers to give him some food and sugary drinks and left him to rest. 12. About four hours later, CS returned to re-examine the appellant. His blood sugar reading at that point was back within the normal range at 6.4 mmol. He presented as much better, not confused. He could answer questions and acknowledged his signature on the consent form. She said he was acting normally. She had no concerns about him and he was fit for her to carry on with the examination. 13. CS was required to examine and take samples from the appellant and, therefore, she and the appellant were separated from the officers by a screen. The screened-off area was fairly small. She conducted a visual examination of the appellant’s body. On her request, the appellant sat on the edge of the couch and removed his top so she could examine his chest and back. Having put his top back on, she asked the appellant to face the wall and drop his trousers so she could examine his bottom and the backs of his legs. She said the appellant was very compliant and she remained satisfied that he was fit to be detained. 14. Following the examination, the appellant was sat on the couch facing her. She was stood approximately 18 inches in front of him. She thanked him for his co-operation. He made no reply and then, without warning, he raised his left hand and placed the back of it on her right breast. She said it was not a grab, it was a definite touch which lasted for a matter of seconds. Nothing was said. She described herself as being completely shocked. The appellant was looking at her while he did it. When asked whether it could have been accidental, she replied “No, definitely not”. 15. She did not say anything to the two officers on the other side of the screen. She explained she was in shock and did not know what to do. She did, however, tell a colleague at the end of the shift when they were handing over and subsequently reported the matter to the police. 16. During cross-examination, she confirmed that when she first saw the appellant it was obvious to her that he was either medically unwell or under the influence of something making him behave in an extremely bizarre way. He was flamboyant in his behaviour, was waving his arms around a lot and saying all sorts of weird and strange things. She concluded his behaviour might have been due to something other than drink or drugs so she took a blood sugar reading from him. She explained that someone with hypoglycaemia should start to recover once they had been given sugar and there was no delay between the recovery of the blood sugar level and the recovery of the normal motor functions. 17. When she examined the appellant the second time, it was obvious that he was much better. His blood sugars were 6.4 mmol. His mannerism had not changed and he was still being very flamboyant and saying odd things. However, she said he looked better, was able to communicate with her and understood why he was in the medical room. 18. She said the appellant touched her breast, he did not grab it. It was a touch to the right breast with the back of his hand. At that time the appellant was sitting still on the couch. He was looking directly at her face as he touched her. There was no doubt in her mind that the appellant had sexually assaulted her. 19. During cross-examination, the appellant admitted that the day before the 20 th March 2020 he had been drinking alcohol, but could not remember how much he had consumed. He accepted that his legs, knees and arms were moving around and may have accidentally brushed across the nurse. The Statutory Provisions 20. Section 3(1) of the Sexual Offences Act 2003 provides: “A person (A) commits an offence if — (a)  he intentionally touches another person (B), (b)  the touching is sexual, (c)  B does not consent to the touching, and (d)  A does not reasonably believe that B consents.” 21. Section 3(2) provides: “Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.” 22. Section 78 provides: “78. For the purposes of this Part (except section 71), penetration, touching or any other activity is sexual if a reasonable person would consider that — (a)  whatever its circumstances or any person's purpose in relation to it, it is because of its nature sexual, or (b)  because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.” 23. “Touching” is defined in section 79(8) as follows: “79 (8)  Touching includes touching — (a)  with any part of the body, (b)  with anything else, (c)  through anything, and in particular includes touching amounting to penetration.” Summing up 24. The judge, His Honour Judge William Mousley QC, withdrew the defence of non-insane automatism from the jury’s consideration of Count 1 on the basis that the appellant’s blood sugar levels had returned to normal levels by the time of the alleged sexual assault. He directed the jury as to their approach to Count 1 as follows: “Count 1, a person commits the offence of sexual assault if he or she intentionally sexually touches another person without that person’s consent and not reasonably believing that person consented. Touching is sexual if a reasonable person would consider it so, because of its nature alone or by its nature and the circumstances and purposes of it. In this case the only question to be answered by you is whether the Defendant intentionally touched [CS]’s breast over her clothing.” 25. The judge, therefore, directed the jury on the basis of section 78(a) to the effect that if they found the appellant had intentionally touched CS’s breast over he clothing, they must find him guilty. Submissions 26. On behalf of the appellant Mr Lewin originally raised two points by way of appeal on Count 1. First, that the Judge erred in withdrawing the defence of non-insane automatism from the jury. Second, that the Judge ‘overly simplified’ the issues for the jury as to whether the assault was sexual. 27. Mr Lewin rightly pursued only the second ground. He submitted that the judge was wrong to direct the jury that there was just a single question which they had to answer, i.e. as to the actus reus of (intentional) touching. He submitted that the judge should have directed the jury on the basis of section 78(b), and that they had to be satisfied as to both limbs: (i) that by its nature the touching may be sexual and (ii) that because of its circumstances or the purpose of any person in relation to it (or both) it was sexual. He submitted that the question of whether or not any touching was sexual was not clear cut, given the appellant continue to behave oddly following his earlier hypoglycaemic episode, and the judge should have directed the jury to consider what the appellant’s purpose was when he touched CS’s breast with the back of his hand. 28. Ms Whebell submitted on behalf of the Crown that the nature of the act itself, the touching of a woman’s breast, was by its nature sexual and the judge was right to approach the matter on the basis of section 78(a). The Judge was correct in the question he posed for the jury, namely whether it was an intentional touching of her breast. The Crown’s case was that it was a deliberate touching, the defence advanced that it did not happen or, if it did, it was accidental. The single question was therefore entirely appropriate based on the evidence and case advanced. Analysis 29. The single judge, Stacey J, succinctly summarised the issue in this appeal as follows: whether it should have been left to the jury to decide if the touching was sexual and whether the reduction of the issue in the case to the single question of whether the touching had been intentional was insufficient as regards Count 1. 30. The terms of section 78(a) are clear: the question whether or not a reasonable person would consider a touching or other activity is “ because of its nature sexual ” must first be answered be reference to the nature of the act itself, i.e. “ whatever its circumstances or any person's purpose in relation to it”. 31. The nature of the touching was explored in detail during CS’s oral evidence. During examination-in-chief by Ms Whebell, CS described how the appellant placed his left hand onto her right breast without warning. She was asked to describe his hand movement: “It just literally came up and, and touched my breast. It wasn’t a grab, it was a definite touch. ... A matter of seconds.” She said the appellant said nothing but was looking at her. She said she was completely shocked. She said there was no possibility that it could have been accidental. 32. During cross-examination by Mr Lewin, CS accepted that, although the appellant looked better and communicated better once his blood sugar levels had returned to normal, he was still excitable and behaving quite oddly. She described again how the appellant’s hand came up and with the back of it, touched her right breast before going down again. She was then asked: Mr Lewin: ... Were you immediately sure that he had sexually assaulted you? CS: Yes. Mr Lewin: So there was no doubt in your mind at all at the time? CS: No. 33. The Judge asked CS if she could describe how far the appellant’s hand travelled in order to touch her. She explained that he was sitting on the edge of the couch with his hands down by his sides: CS: And it just came up, left hand came up and went onto my right breast. HHJ William Mousley: So he raised his hand from, as it were, on the couch – CS: .... [His hand] went from the couch straight up to my breast. It wasn’t up and down or anything like that, it was straight, straight onto my breast. 34. In further cross-examination by Mr Lewin, CS was asked again whether she was immediately sure it was deliberate: CS: I was so shocked that it’d happened that I, I really had to think, but I know the way from his hand movement it was deliberate. 35. In the light of this clear evidence, the Judge was entitled to take the view that a reasonable person would consider the nature of the act itself, i.e. the deliberate touching of a woman’s breast in the manner described, was obviously and inevitably sexual ( c.f. R. v H (Sexual Assault: Touching) [2005] EWCA Crim 732; [2005] 1 W.L.R. 2005, Lord Woolf at [8]). He was right to conclude that this was a case which fell under section 78(a) and there was only a single question which had to be left to the jury as to whether the touching was intentional. It is noteworthy that no point or objection was raised by counsel at the time as to the Judge’s proposed direction. 36. Mr Lewin’s argument – that the jury should have been allowed to consider the possibility that the appellant's continuing odd behaviour offered an alternative characterisation of the touching as 'non-sexual' - seeks illegitimately to import an extraneous consideration into the simple question posed by section 78(a), namely whatever its circumstances or his purpose in relation to it, the touching was because of its nature sexual. Section 78(a) was, in our view, designed to obviate just this sort of extraneous argument as to motive or other considerations. 37. CS was immediately sure she had been sexually assaulted. The Judge took the view that a reasonable person would have been sure too. On the facts of this case, the nature of the act spoke for itself. 38. Accordingly, we consider the conviction safe. The appeal is dismissed.

2022_03_28-5301.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/412/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/412

74e5d06410833144d6c004642f8ba87fbb2edbf630d2a3b5b73d20e9e9e984ea

[2014] EWCA Crim 2245

EWCA_Crim_2245

2014-11-07

crown_court

Case No: 201402543 A7 Neutral Citation Number: [2014] EWCA Crim 2245 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Southwark Crown Court His Honour Judge Leonard QC T20137220 Royal Courts of Justice Strand, London, WC2A 2LL Date: 07/11/2014 Before : LORD JUSTICE TREACY MR JUSTICE TURNER and HIS HONOUR JUDGE PERT QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - Between : R - and - Frank Maxwell Clifford - - - - - - - - - - - - - - -

Case No: 201402543 A7 Neutral Citation Number: [2014] EWCA Crim 2245 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Southwark Crown Court His Honour Judge Leonard QC T20137220 Royal Courts of Justice Strand, London, WC2A 2LL Date: 07/11/2014 Before : LORD JUSTICE TREACY MR JUSTICE TURNER and HIS HONOUR JUDGE PERT QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - Between : R - and - Frank Maxwell Clifford - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Richard Horwell QC (instructed by BCL Burton Copeland Solicitors ) for the Appellant Rosina Cottage QC & Tom Little (instructed by CPS ) for the Crown Hearing dates : 9 October 2014 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Treacy : Introduction 1. This offender, commonly known as Max Clifford, was convicted after a trial at Southwark Crown Court. He applies for leave to appeal against sentence, the matter having been referred by the Registrar to the full court. We grant leave. 2. On 2 nd May 2014 he was sentenced to a total of 8 years on eight counts of indecent assault contrary to s14(1) of the Sexual Offences Act 1956 . 3. Those counts related to four victims. The anonymity provisions in relation to victims of sexual crime are in place, and we shall refer to the victims as B, C, D and E. The offences took place between 1977 and 1984. 4. Counts 3-6 relate to B; these offences took place in 1977 and 1978. The appellant was sentenced to a total of 4 ½ years with 12 months for count 3, 18 months consecutive for count 4, 24 months consecutive for count 5, and 24 months concurrent for count 6. 5. Count 8 concerns victim C. A term of six months consecutive was imposed. 6. Counts 9 and 10 concern the victim D. In all, 21 months consecutive was imposed, represented by 6 months on count 9, to run concurrently with 21 months on count 10. 7. Count 11 concerns victim E. 15 months consecutive was imposed for this offence. 8. In addition the appellant was ordered to pay £55,000 towards the costs of the prosecution. On counts 1, 2 and 7, relating to other alleged victims, the jury either disagreed or acquitted. Counts 3-6 9. Counts 3-6 relate to victim B. She met the appellant whilst on holiday with her family in August 1977. The appellant told her and her family that she was pretty and that he could get her promotional work. Contact was maintained after their return to the UK. The appellant began grooming B telling her that she could be like Jodie Foster. 10. On one occasion he pretended to be somebody else on the phone and made her repeat sexual words. He asked her to come to his office where he made her take off her bra and made derogatory comments about her breasts as she did so. He visited B’s home and gained the trust of her parents so that they agreed to let him take her out in his car. They believed that the appellant would take her to meet people who could help with her career, and he provided B with false stories about whom she had met to tell her parents. In all B went out in the car with him on about ten occasions. 11. The appellant would park in different places and abuse her in the car. He showed her his erect penis and told her to masturbate him and indeed showed her how to do it. This conduct is reflected in count 3, it occurred on some seven occasions. 12. Count 4 represents an occasion when the appellant penetrated B’s vagina with his fingers as she sat in the passenger seat of his car. There was also evidence that he had degraded her by taking her to buy a revealing bra and then taking her to visit the home of a friend, telling her to dress in bra and pants to seduce the friend whilst he watched. 13. Count 5 and 6 represent the appellant making B perform oral sex on him. There were three such occasions, and counts 5 and 6 reflect the first and third. The appellant instructed B how to go about the task. On the second occasion the appellant told B that a photographer had been in some bushes and taken photographs of her performing oral sex. He said that the photographer wanted to publish the photographs but that he would be able to prevent that from happening. 14. B was extremely distressed and thought her life was over. She said that she was going to kill herself. This was no idle threat. After she had said this the appellant stopped contacting and visiting B. 15. The offences relating to B were the most serious on the indictment, she had only come forward after telling her sister and receiving protracted counselling. Her victim impact statement showed that after the abuse her life had been significantly affected in addition to the feelings of intimidation and fear which she had felt during the abuse. Count 8 16. C was aged 19 when she was contacted by the appellant in 1982 after being offered a part in a movie. He pretended she was suitable for a role in a Charles Bronson film and told her he would need to take some photographs of her in lingerie. He then took photographs of her in his office wearing lingerie and tried to persuade her to put her legs apart for the camera. He engineered a telephone conversation with C in which another person pretended to be Charles Bronson. He grabbed C around her shoulders and tried to kiss her upon the lips. She struggled and he pushed her onto a sofa and lay on top of her trying to kiss her. He touched her legs and upper body during the struggle. Eventually C escaped by kicking the appellant between the legs. Counts 9 and 10 17. D was aged 16 or 17 when she was introduced to the appellant in 1982-3, after she was told that he could assist in her career. He arranged to meet her in his London office. When she came in, he locked the door behind her. He told her to take her dress off so that he could see her figure. She was reluctant to do so but after the appellant had spoken further to her, she ended up taking off her dress. He said he was turned on by her tights, and began to grope her. This conduct is reflected in count 9. 18. As D was putting her dress back on, the appellant’s wife telephoned. As he spoke to his wife, he pulled his erect penis out in front of D and began masturbating. When the call was over, the appellant approached D and tried to force his penis into her mouth. He managed to get it part of the way in. The appellant ejaculated over D’s face and onto her shoulder. 19. The appellant then invited D to dinner with him and his wife and a third person, who he said would get her into a James Bond movie. The appellant told D that he wanted her to masturbate him under the table whilst he sat next to his wife. D left the office and although she received calls regarding the dinner, she never met the appellant again. Count 10 covers this conduct. Count 11 20. E was 18 when she met the appellant in 1984; she was auditioning at a night club for a dancing job. The appellant approached her and asked if she was interested in acting. He told her he could get her a screen test for the new James Bond movie. He arranged for E to speak with the producer of the movie on the phone at the nightclub. Whoever she spoke to, (certainly not the producer), said that she could have the part on condition that she could establish whether the appellant was circumcised. 21. The appellant then took E into the gentleman’s lavatory and locked the door. He put her hand on his penis and fondled her breasts whilst forcing her to masturbate him. Eventually he ejaculated and E made her escape and ran from the venue. As she was leaving the appellant told her that no one would believe her in a way which made clear the she was not to tell anyone. The effect on the victims 22. We have already described the effects of the offending against B. C, D and E also provided statements to the court. Each was young and vulnerable at the time. Each was affected in respect of confidence and relationships and was harmed by what had been done to her. We have considered each of the statements made by the four victims with care. As s143(1) of the Criminal Justice Act 2003 states, in considering the seriousness of any offence the court must consider the offender’s culpability and any harm which the offence caused. Sexual offending will by its very nature cause harm at the time the offence is committed, but it is well recognised that for many victims significant harm persists for a considerable period afterwards. This is a case where it is clear that the effect of what was done to the victims was not something from which they recovered quickly. The appellant’s actions towards these victims had long term consequences for their lives. This is clearly a highly material circumstance for this court to consider. Aggravating features 23. Looking at the matter in the round we identify the following aggravating features. There were four girls or young women involved; one of them was under 16. The offending took place over a period of several years. There was a significant age difference between the appellant and his victims. His offending involved an abuse of a powerful position coupled with deceit. In relation to B there was a clear abuse of trust and grooming. All of the victims were affected by what had happened to them. In relation to some counts there were findings of coercion. The appellant’s character 24. By the time of sentence the appellant was 71. When he offended he would have been in his mid thirties to early forties. Thus, there was a significant age gap between himself and his victims. The appellant had never been convicted of any other criminal offence and the trial did not reveal any other evidence of sexual offending after the period with which the counts were concerned. Thus there was a period of nearly thirty years without further offending before these matters came to court and the appellant was convicted. 25. Over that period there was evidence before the Judge of a positive nature showing involvement in a variety of charitable works which the appellant had not publicised. The Judge also had a number of positive character references. 26. It is clear, however, that over the period of offending, these young women were targeted by the appellant who actively misled them and exploited their desire to succeed in their careers for his own purposes. The appellant was a dominant personality and in a powerful position within the world of entertainment and media. This enabled him to do what he did and to convince the victims that there was no point in complaining because no one would listen to them. He was thus able to lead a double life, progressing in his career, whilst his victims, affected by what he had done to them, felt powerless to complain. Mitigating Factors 27. The appellant lost potential credit by contesting the trial and in addition lost potential mitigation as he showed no remorse at any stage for what he had done. The fact that there had been a delay between his abuse of his victims and the matter coming to light is not a fact that avails him. His behaviour towards the victims coupled with his use of his prominent position meant that the delay involved was substantially of his own making. There is some mitigation available to the appellant based on the fact that he has not further offended since the mid 1980’s and that the judge accepted he had done considerable charitable work during that period. However, his claims to credit in this respect are much reduced by the fact that this was offending of a serious sort. It is a well established principle of sentencing that the mitigation of good character weighs less in the scales where the offending is serious. The appellant is 71, he has some health difficulties but they are not of a nature significantly to affect matters. The appellant’s age is noted but does again, not carry significant weight in the context of this case. Grounds of Appeal 28. The overall submission made by Mr Horwell QC is that the sentence of 8 years is manifestly excessive. His arguments consist of a number of strands. It was pointed out that the maximum sentence available in this case for any count of indecent assault is 2 years imprisonment. That was the case at the relevant time, although the maximum sentence for that type of activity was subsequently increased by Parliament. It is settled law that an offender is not to be sentenced on any count more severely than the maximum term available at the time of the commission of the offence. The increase in the statutory maximum has been accompanied by the development of sentencing guidelines. The Sentencing Council’s definitive guideline on sexual offences applies to the offences before the court. It came into effect on 1 st April 2014. 29. Against that background, Mr Horwell argues that for a number of reasons the judge’s approach to sentence resulted in an overall term which was too long. In particular, he submitted that the judge should not have approached counts 5 and 6, involving the performing of oral sex as being the equivalent of rape offences as they are now understood. Under the guidelines they carry severe sentences with a maximum available of life imprisonment. A similar submission could have been made in relation to count 10. The effect of this was unfair and disproportionate because of the very large disparity between the maximum sentence available at the time of the commission of the offence and the maximum available for rape in modern times. 30. Mr Horwell drew attention to paragraph 3 of Annex B of the definitive guideline which states; “..the court should have regard to any applicable sentencing guidelines for equivalent offences under the Sexual Offences Act 2003 ” His submission was that the reference to equivalent offences in the guidelines may have led the judge into error. Annex B of the guideline is very closely based on the principles enunciated by this court in R v H & Others (2012) 2 Cr App R (S) 21 . It seems to us firstly that the words “should have regard to” are important in setting the reference to equivalent offences in context. Equally, paragraph 1 of Annex B which makes clear that the offender must be sentenced in accordance with the sentencing regime applicable at the date of sentence, and paragraph 4 which states that the court should not seek to establish the likely sentence had the offender been convicted shortly after the date of the offence, provide additional context. Paragraph 4 goes on to state that the seriousness of the offence (having regard to the culpability of the offender and the harm done), is the main consideration. The guideline is not seeking to impose an unthinking and mechanistic search for equivalent offences under the 2003 Act . What is required is that sentencing should reflect modern attitudes, (a proposition fully accepted by Mr Horwell), in the course of which the court may take account of the modern guidelines. The way in which the matter is dealt with in R v H at paragraph 47 (a) pithily sums up the position. “Sentence will be imposed at the date of sentencing hearing, on the basis of the legislative provisions then current, and by measured reference to any definitive guidelines relevant to the situation revealed by the established facts ” In our judgment Annex B of the guideline reflects that approach. 31. In the circumstances of this case, the maximum sentence available on any individual count was markedly less than the maximum available for a number of offences under the 2003 Act , a fact of which the judge was perfectly aware. There was therefore, an inherent limitation on the count by count sentencing process which operated in favour of the appellant and operated as a counterbalance to higher figures in the guidelines. 32. In our view, the judge was entitled in the course of his sentencing remarks to observe that some of the offending would now be charged as offences as serious as rape or assault by penetration. 33. The judge was entitled to draw attention in this way to the gravity of this offending by modern standards, which are to be reflected if old offences such as these are sentenced in the present day. 34. The judge might more profitably have drawn attention to the starting points for a single offence of sexual assault or sexual activity with a child, which, on the facts of this case, would under the guidelines have starting points of 4 and 5 years respectively, again substantially above the maximum available at the relevant time. 35. It must be recognised in any event that the judge was sentencing in relation to a multiplicity of incidents involving four different victims. Even with the limitations on the maximum sentence per count, the judge was entitled to structure his sentence by imposing consecutive sentences which would reflect the overall criminality involved according to modern standards and attitudes. Moreover, the use of consecutive sentences was consistent with the Sentencing Council’s guideline on totality (see page 7). 36. We are not persuaded that the reference to rape in regard to counts 5 and 6 distorted the sentencing process in the way asserted. The limited maximum sentences available coupled with the court’s ability to deal with a series of offences in the way described ensured this. 37. A further submission made was that it was unfair to sentence an offender more heavily for committing an offence which he must be deemed to have known only carried 2 years imprisonment as opposed to the heavier term which would be available for a comparable offence under the 2003 Act . The court should have assessed the offender’s culpability by reference to the 2 year maximum. We find such a proposition unsustainable. Firstly, the judge could not pass a sentence greater than 2 years for any individual offence; secondly the suggestion that the appellant would have been prepared to commit this offence in the knowledge that the maximum was 2 years but might not have had he been aware of a higher maximum available some years later is unreal. He deliberately committed these offences because he was sure he could get away with them, not because of some calculation as to the possible level of punishment. For a person like the appellant, the deterrent would be the possibility of exposure which he thought he had successfully guarded against, rather than the level of sentence available to the court. Moreover, it was no part of the appellant’s case that he would not have committed these offences, had he thought that a greater maximum level of penalty than 2 years would subsequently be enacted by Parliament. His case was a total denial of any misconduct. 38. In written submissions it was tentatively suggested that there was a breach of Article 7(1) ECHR. This was somewhat modified in oral submission to the argument that if the letter of Article 7 was not breached, its spirit was. There is no question of a breach of Article 7 in this case by the imposition of a heavier penalty than what was applicable at the time the offence was committed, because the judge in no case exceeded the maximum sentence available. See R (Uttley) v Secretary of State for the Home Department [2004] 1 WLR 2478 , and R v H at paragraph 18. See also R v Bao [2008] 2 Crim App R (S) 10 in relation to Article 7 and the use of sentencing guidelines which have become applicable by the date of sentence. 39. However, in an echo of his earlier submissions relating to the guidelines Mr Horwell invited the court to consider that if an offence is reclassified by statute and the maximum sentence is increased, then Article 7(1) is breached in fact or in spirit if the total sentence reflects a different offence and a higher maximum. 40. We do not accept in the circumstances there is a breach of Article 7 or anything approaching it. The court is entitled to reflect modern attitudes to historic offences, and to look to modern sentencing guidelines. Where the court looks to a modern offence containing equivalent elements to the historic offence and where the maximum under the 2003 Act is significantly higher, then the task of the judge will be to make due allowance for that. That is why the phase “have regard to” is used in paragraph 3 of Annex B to the guideline and why in R v H the court spoke of “measured reference” to guidelines. If the court proceeds in this way, then no complaint can be made. We find that there is no actual breach of Article 7(1), nor is there any breach of retrospectivity principles. The matter is to be tested by a consideration of whether the overall sentence imposed was excessive and disproportionate for the offending revealed taking into account modern sentencing practice. 41. A further submission made was that in imposing terms of 2 years in relation to counts 5 and 6, the judge imposed the maximum available in circumstances where he acknowledged that neither offence was the gravest imaginable of their type. Thus it is said that the principle in Carroll [1995] 16 Crim App R (S) 488 , that the maximum for any offence should be reserved for the most serious offences of its kind was breached. 42. We do not think that consideration comes into play in this case. The sentences imposed on counts 5 and 6 were in fact ordered to run concurrently with one another. Had the judge decided to impose consecutive sentences of 12 months on each count for the two offences that would have given the same overall sentence of 2 years but could not have been the subject of any legitimate complaint given that the counts represented two distinct offences committed on separate occasions. We do not think there is any substance in this point, which merely reflects a choice as to the structure of the sentence legitimately open to the judge. 43. It is to be noted that with the exception of counts 5 and 6, the judge did not impose the maximum sentence on any count, and no criticism is made of the individual sentence on other counts. In relation to every count the judge respected the maximum available sentence of 2 years but was entitled to reflect the fact that different victims were involved at different points in time and that each of them had been subjected to significant sexual abuse. We are not persuaded that any of the grounds advanced by Mr Horwell concerning the approach to sentence are sustainable. 44. That however, is not the end of the matter, as there are two discrete further areas, which Mr Horwell says the judge fell into error during the sentencing process. Bad Character evidence 45. A discrete area of attack by Mr Horwell relates to the judge’s handling of bad character evidence which was admitted during the course of the trial. The evidence consisted of a number of instances involving young women of a similar age to the victims in this case who gave evidence of sexual assaults of a similar type. The Crown had not included this bad character evidence in the indictment because it accepted it would be unable to prove that the appellant did not believe that any of the complainants was consenting to the sexual acts that took place. The evidence was admitted to rebut his defence that all the allegations were totally untrue and to demonstrate a propensity on his part to commit the type of offences contained in the indictment. In addition, the judge admitted evidence of a complaint of an indecent assault on a 12 year old said to have taken place in Spain. That count would have been on the indictment, but for the fact that it could not be tried here until the coming into force of section 72 of the Sexual Offences Act 2003 . 46. Mr Horwell complains that when the judge came to sentence the judge wrongly took this evidence into account in aggravation of the sentence. Page 9F of the transcript says “….so long as I am sure that the events took place, as I am, I can take them into account as far as the evidence informs me as to the offences for you are to be sentenced”. Later at page 15B he said: “I have already explained why I feel able to take into account as context to the offences which I am to sentence you for, the other matters about which the jury heard convincing evidence ” 47. Mr Horwell relied on R v Canavan, Kidd and another [1998] 1 Cr App R (S) 243 . In that decision the court held that where a defendant has been convicted following a trial he cannot be sentenced for conduct which has not formed, expressly or by necessary implication, the subject of charges laid and proved against him. The only exception to this would be where a defendant has explicitly assented to counts on the indictment being treated as representative of a longer course of conduct. See R v BDG [2003] 1 Cr App R (S) 26 . 48. For the Crown Ms Cottage QC submitted that what the judge did was not improper; he was entitled to look at the bad character material as context and background underlining the serious view to be taken of the predatory offences on the indictment. The judge was merely using the bad character evidence to underline the view he had taken of the indicted offences. He would still have passed the same sentence. 49. A sentencing judge is of course entitled to take account of all the relevant aggravating and mitigating features relating to the offences for which the offender is to be sentenced. These features will have formed part of the evidence in the case. In addition, the judge is entitled to assess the offender as a person, taken together with other information such as material in psychiatric, pre-sentence or antecedents’ reports. Moreover, it seems to us that a judge would be entitled to draw on evidence given at the trial to reject unrealistic mitigation. See for example R v Twisse [2001] 2 Cr App R (S) 9 ; where an offender charged with a single count claims this was an isolated transaction, this may be rejected if the evidence establishes that this was not the case. The offender should be given the appropriate sentence for a single offence but without the credit he would receive if it were an isolated incident. That, however, is not the situation here since no unrealistic mitigation had been advanced which required rebuttal of this sort. The convictions on the counts on the indictment meant that the judge was well aware that there were multiple offences committed over a significant period of time by a predatory offender against a series of victims. 50. The issue before us was considered in the case of Restivo which is reported as part of R v Oakes and Other [2013] 2 Cr App R (S) 22 . In Restivo’s case, which involved a murder committed in 2002, similar fact evidence was admitted of a murder of another woman, which took place in Italy in 1993. Restivo was closely linked to that offence but by the time of the trial for the 2002 murder he had not been convicted of the 1993 murder by an Italian court. Restivo was convicted of the 2002 murder, and in passing sentence the judge said that the evidence proved without doubt that Restivo was also guilty of the 1993 murder. Whilst he recognised that Restivo had not been convicted of that crime and would not sentence him in respect of it, he intended to approach sentence for the 2002 murder on the basis that Restivo had killed before. After taking into account the 1993 killing, he imposed a whole life order. 51. The appeal raised the question as to whether in assessing the appropriate minimum term the judge could take into account his assessment that the appellant had committed a previous murder with which he had not been charged and of which he had not been convicted. At paragraph 79 Lord Judge CJ commented that a defendant cannot simply be sentenced for offences for which he has not been convicted, on the basis that he has in fact committed them, subject to certain exceptions. He then continued: “…..the ability of the judge to make findings that other offences have been committed does not extend to reaching a non jury verdict about allegations put before the jury by way of similar fact evidence, at least unless the jury must have been satisfied that they were proved, or unless the defendant has been convicted of them in the past.” 52. At paragraph 84 His Lordship continued “The principle is clear. Even when evidence which served to establish the defendant’s guilt of an offence charged on the indictment is deployed as similar fact evidence, the sentencing decision cannot proceed on the basis that he is guilty of a distinct and separate offence of which he has not been convicted and which he denies. Although we sympathise with the judge’s approach, it was inconsistent with what is now an axiomatic principle that, subject to considerations like those identified in [79] the ambit of the sentencing decision cannot extend to reflect a specific, distinct offence of which the offender has not been convicted." 53. In the present case the judge did not specifically say that he was treating the bad character evidence as an aggravating feature; he said he would take it into account insofar as it informed him as to the offences for which he had to pass sentence. However the judge had also said in terms that he rejected Mr Horwell’s submission that this behaviour should be ignored entirely in the sentencing exercise, and he did set out at some length in his sentencing remarks the details of the bad character evidence. He devoted almost as much time to that as he did to the counts on the indictment. We think that the impression given must have been that the judge regarded this evidence as aggravating the case to some extent, albeit he did not say so in terms. What he did not do was explain what place it had had in the case. If he had said that it confirmed that the appellant was a serial predatory offender who abused his position in order to offend, that could not have been criticised. However the judge did not say that or anything similar; nor did he make clear that the bad character evidence would have no effect on the level of sentencing. 54. In the circumstances we consider that the judge’s comments fell foul of the principle established in the case of Canavan and reiterated in subsequent decisions of this court including R v Hartley [2012] 1 Cr App R 7 . However, it is clear to us that, working on the assumption that the judge did aggravate the sentence to some extent to reflect the bad character matters, he cannot have done so to any significant extent as the wording he used in passing sentence demonstrates. Having found that the judge was in error we have to approach the question of sentence afresh and consider whether it follows that the sentence passed was manifestly excessive. However before we do that, it is necessary to turn to another aspect of this appeal. The Appellant’s conduct surrounding the trial 55. In passing sentence the judge referred to certain behaviour of the appellant. Some of it had been commented on in the victims’ impact statements. They had been upset by it. The judge said that the “additional element of trauma” caused by the applicant’s “contemptuous attitude” was something that he would take into account in passing sentence. There were 3 specific matters identified by the judge. 56. First, there was behaviour prior to the trial. This was identified by the Crown in the hearing before us as consisting of (i) at the appellant’s first appearance at the Magistrates Court in May 2013 the appellant informed reporters “this has been a nightmare, I am totally innocent of these allegations … these allegations are without foundation”. (ii) Outside Southwark Crown Court on 4 October 2013 on the occasion of the PCMH hearing the appellant told reporters “I am totally innocent of these charges from the seven anonymous women … I don’t think it is fair that they remain anonymous because their accusations are so damaging. Just the accusations. Effectively, I have been punished since I was arrested last December in a very public fashion while they remain totally anonymous”. Both these statements were widely reported. 57. The Crown said that these can only have been intentional statements made by someone skilled in using the media for his own purposes. Mr Horwell submits that there was nothing objectionable in the matters relied on. In Attorney General’s Reference No. 38 of 2013 (Stuart Hall) 2014 1 Cr App R (S) 61 , the Court recognised that public denunciations of allegations can amount to a seriously aggravating feature. In that case, Hall had publicly denounced his victims in particularly virulent terms. In the present case we do not regard either of the two statements made as being comparable. The first statement was a forceful claim of innocence reflected later in the defence advanced, but not directly referring to the victims. The second statement was a reiteration of innocence followed by a vehement complaint about the fact that the victims were entitled to anonymity. The reiteration of innocence again did not directly impugn the victims. The complaints about anonymity relate to a feature of the criminal process. They concern a topic which arouses public debate from time to time and which has been the subject of different views in Parliament on different occasions. 58. Whilst we readily understand that victims who were eventually vindicated would find such comments upsetting, we think that great care needs to be taken by sentencing courts not to elevate denials, albeit vehement, into something deserving of further punishment in the absence of some more explicit traducing of the victim. The court, of course, is perfectly entitled to reflect these matters in withholding available mitigation since the offender has shown no sign of remorse. Similarly, an offender who has contested the trial will lose what might be substantial credit for a guilty plea. We think that these remarks, properly considered, would of course justify a withholding of mitigation, but they should not have been used by way of positive aggravation. 59. The second matter considered by the judge was what he described as “reports of your attitude during the trial, laughing and shaking your head in the dock at the accusations made against you”. This appears to derive from something said by a victim in her victim impact statement. The press reports themselves were never put before the court; nor was there any verification of them. Neither counsel had any recollection of the judge commenting on the appellant’s conduct during the course of the trial. The only occasion that either could recall was an incident whereby a witness caused widespread laughter in court by derogatory comments about the appellant’s genitalia. We note that the judge himself made no finding that the appellant had behaved as alleged, he merely referred to the victim as being very upset by the press reports. In those circumstances we think there is justification in the complaint that this was a matter which should not have been taken into account. 60. The third matter related to an incident after verdict, but before sentencing, which the judge had himself witnessed on television. The appellant had apparently stood behind a TV reporter outside the court whilst the reporter was on camera, making gestures which mimicked the reporter’s actions. None of the victims had commented on this episode in their witness statements. The judge had regarded this behaviour as something designed to trivialise the trial. Whilst many would describe such antics as ridiculous, there was no evidence that the victims were aware of this conduct and the matter had not been dealt with as a contempt of court. 61. In the circumstances we do not think that this clowning should have been reflected in sentencing save in relation to withholding mitigation. 62. Since the judge’s comments referred to an additional element of trauma caused by the matters we have analysed, it is clear that he must to some extent have regarded them as a factor increasing sentence. For the reasons given we do not think he was entitled to do so. Conclusion 63. The findings above demonstrate that were two areas of the case in which the judge wrongly treated matters as impacting upon sentence. The question for us is whether, stripping those matters out, the sentence imposed was manifestly excessive as Mr Horwell contends. 64. These were offences with a significant number of aggravating features already identified, but including two victims abused to the extent of penetrative activity, and a gross abuse of power and influence. We have noted the ongoing and long term effects on all the victims. 65. The effects on B’s life have been particularly serious. The offences against her involved breach of trust and penetrative activity on more than one occasion. She was only fifteen at the time. We do not consider that a sentence of 4 ½ years to reflect what was done to her and its effects is in any way open to criticism. 66. As far as C is concerned, this was a unpleasant sexual assault on a different victim which was properly made the subject of a consecutive sentence of moderate length. As to D, count 10 involved the partial forcing of the penis into the victim’s mouth followed by ejaculation. A further consecutive term was justified as it was in the case of E . 67. It seems to us that, after consideration of the individual offences and the application of modern sentencing attitudes reflected in the guidelines, but tempered by the need to have regard to the statutory maximum available at the time, an overall sentence of 8 years was justified and correct. We make this analysis without any reference to the factors that the judge wrongly took into account. Accordingly, although the judge below fell into error, it does not affect what was in fact a just and proportionate sentence; taking account of considerations of harm and culpability together with aggravating factors and such mitigation as was available to the appellant. Accordingly, this appeal is dismissed.

2014_11_07-3500.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2014/2245/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2014/2245

fe6856355462ecf47a06fa8e261b29ae98e0e15a338994b64fcc72c53d1fc772

[2011] EWCA Crim 1093

EWCA_Crim_1093

2011-05-06

crown_court

Neutral Citation Number: [2011] EWCA Crim 1093 Case Nos: 200904474-C3 , 200904536-C3 , 200904673-C3, 200905942-C3 AND 201006251-C3 COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT MANCHESTER HIS HONOUR JUDGE ATHERTON T20057095 and T200557136 Royal Courts of Justice Strand, London, WC2A 2LL Date: 06/05/2011 Before : LORD JUSTICE AIKENS MR JUSTICE IRWIN and HIS HONOUR JUDGE ROBERTS QC (Sitting as a Judge of the Court of Appeal Criminal Division) Between : R Respondent - and -

Neutral Citation Number: [2011] EWCA Crim 1093 Case Nos: 200904474-C3 , 200904536-C3 , 200904673-C3, 200905942-C3 AND 201006251-C3 COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT MANCHESTER HIS HONOUR JUDGE ATHERTON T20057095 and T200557136 Royal Courts of Justice Strand, London, WC2A 2LL Date: 06/05/2011 Before : LORD JUSTICE AIKENS MR JUSTICE IRWIN and HIS HONOUR JUDGE ROBERTS QC (Sitting as a Judge of the Court of Appeal Criminal Division) Between : R Respondent - and - (1) Naripdeep Singh BAJWA (2) Harish Kumar SAHNAN (3) Mark Anthony MIDGLEY (4) Baljunder Singh SOHI (5) Stephen Mark MALLINSON Appellants - - - - - - - - - - - - - - - - - - - - - Mr Christopher Finch (instructed by Creed Lane Law Group, Solicitors, London ) for Naripdeep Bajwa Mr Graham Henson ( instructed by Murria. Solicitors, Birmingham ) for Harish Sahnan Mr Kenneth Hind ( instructed by Farnsworth Morgan, Solicitors, Blackburn) for Mark Midgley Mr Mohammed Khamisa QC and Miss Felicia Davy ( instructed by ABV, Solicitors, Hayes, Middlesex) for Baljunder Sohi Mr James Gregory (instructed by Burton Copeland, Solicitors, Manchester ) for Stephen Mallinson Robert Dudley and Kevin Slack (instructed by CPS Proceeds of Crime Unit ) for the Crown Hearing date : 18 th February 2011 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Lord Justice Aikens : 1. This is the judgment of the court to which all of us have contributed. Outline of the case 2. The appellants Bajwa, Sahnan and Sohi appeal confiscation orders made against them. The applicant Midgley renews his application to appeal the confiscation order made against him. We grant leave. Mallinson’s renewed application for an extension of time in which to seek leave to appeal the confiscation order made against him was referred to the full court by the Registrar. We grant the necessary extension of time and we grant leave to appeal in his case also. 3. At the heart of these appeals are two issues of interpretation of sections 75(2)(c), 76(4) and (5) of the Proceeds of Crime Act 2002 (“POCA”) concerning the conditions that have to be fulfilled in order for a defendant to be deemed as having a “ criminal lifestyle” within section 75(2)(c) of POCA. If a defendant is deemed to have a “criminal lifestyle” then it has consequences for how his “ benefit” from his criminal conduct is to be determined under section 6(4) of POCA. However, this statement that the appeal raises two issues of construction of three provisions of POCA is deceptive. To decide the answers to those issues on the facts of this case it has been necessary to look at other statutes, at statutory instruments and many cases, as well as the facts. Our consideration of the issues has resulted in having to engage in a long and complicated paper trail in order to answer what ought to be simple questions. The questions raised are not easy to answer and the convoluted process we have felt constrained to go through to reach the answers is bad enough on appeal. But these complications are a nightmare for judges at first instance who regularly have to apply the Proceeds of Crime Act in confiscation proceedings which result from offences of smuggling tobacco products into this country by sea in containers. It is not in the interests of justice or of the public that the law should be so complicated; it is high time that it was simplified. 4. The key sections of POCA for the purpose of this appeal are sections 75(1) – (4) and section 76. In order to put them in their context it is sensible to set out also section 6(4)-(7), which stipulate what a Court must do if proceeding to consider whether to make a Confiscation Order against a defendant under the provisions of POCA. 5. Section 6(4), (5) and (7) and section 75(1)-(4) and section 76 of POCA provide as follows: “ 6 Making of order E+W …… (4) The court must proceed as follows— (a) it must decide whether the defendant has a criminal lifestyle; (b) if it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct; (c) if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct. (5 ) If the court decides under subsection (4)(b) or (c) that the defendant has benefited from the conduct referred to it must— (a) decide the recoverable amount, and (b) make an order (a confiscation order) requiring him to pay that amount. …… (7) The court must decide any question arising under subsection (4) or (5) on a balance of probabilities. …… 75 Criminal lifestyle E+W (1) A defendant has a criminal lifestyle if (and only if) the following condition is satisfied. (2) The condition is that the offence (or any of the offences) concerned satisfies any of these tests— (a) it is specified in Schedule 2; (b) it constitutes conduct forming part of a course of criminal activity; (c) it is an offence committed over a period of at least six months and the defendant has benefited from the conduct which constitutes the offence. (3) Conduct forms part of a course of criminal activity if the defendant has benefited from the conduct and— (a) in the proceedings in which he was convicted he was convicted of three or more other offences, each of three or more of them constituting conduct from which he has benefited, or (b) in the period of six years ending with the day when those proceedings were started (or, if there is more than one such day, the earliest day) he was convicted on at least two separate occasions of an offence constituting conduct from which he has benefited. (4) But an offence does not satisfy the test in subsection (2)(b) or (c) unless the defendant obtains relevant benefit of not less than £5000. 76 Conduct and benefit E+W (1) Criminal conduct is conduct which— (a) constitutes an offence in England and Wales, or (b) would constitute such an offence if it occurred in England and Wales. (2) General criminal conduct of the defendant is all his criminal conduct, and it is immaterial— (a) whether conduct occurred before or after the passing of this Act; (b) whether property constituting a benefit from conduct was obtained before or after the passing of this Act. (3) Particular criminal conduct of the defendant is all his criminal conduct which falls within the following paragraphs— (a) conduct which constitutes the offence or offences concerned; (b) conduct which constitutes offences of which he was convicted in the same proceedings as those in which he was convicted of the offence or offences concerned; (c) conduct which constitutes offences which the court will be taking into consideration in deciding his sentence for the offence or offences concerned. (4) A person benefits from conduct if he obtains property as a result of or in connection with the conduct. (5) If a person obtains a pecuniary advantage as a result of or in connection with conduct, he is to be taken to obtain as a result of or in connection with the conduct a sum of money equal to the value of the pecuniary advantage. (6) References to property or a pecuniary advantage obtained in connection with conduct include references to property or a pecuniary advantage obtained both in that connection and some other. (7) If a person benefits from conduct his benefit is the value of the property obtained. ” 6. The single count on the Indictment concerning all the appellants alleged that “…between 1 March and 22 September 2004 they conspired….fraudulently to evade the duty chargeable on goods namely a quantity of cigarettes”. It is of note that the appellants were charged with being party to a conspiracy fraudulently to avoid duty, not with the offence of having done so. The object of the conspiracy was to smuggle into the UK a container load of 7 million Chinese counterfeit Benson & Hedges Gold cigarettes, with the intention of evading the duty chargeable on them which would have totalled £1,069,740.00. The container had been loaded on board a container carrier at Chiwan, in the Peoples’ Republic of China, for carriage to Felixstowe. Before the vessel arrived, HMRC arrested all the appellants on 13 and 14 September 2004, although they were then released on bail and not charged until February 2005. The vessel arrived at Felixstowe on 21 September 2004. HMRC intercepted the container upon its discharge on 22 September 2004. Its contents were seized at 18.40 hours that day in a secure examination shed in Felixstowe docks when the seals on the container were broken by HMRC officials and the counterfeit cigarettes were found inside. As we shall explain, the precise period during which the conspiracy lasted, the precise times of involvement of the appellants in it and the precise circumstances by which HMRC came to intercept the container may have great importance to the outcome of these appeals. 7. On 22 February 2006, in the Crown Court at Manchester, Mark Midgley pleaded guilty on re-arraignment to conspiracy to contravene section 170(2)(b) of the Customs and Excise Management Act 1979 (“CEMA”). That section provides that: “(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 the fraudulent evasion or attempt at evasion – ….. (b) of any prohibition or restriction for the time being in force with respect to the goods under or by virtue of any enactment ….. shall be guilty of an offence under this section and may be arrested”. 8. On 7 March 2006 Stephen Mallinson pleaded guilty on re-arraignment to the same count. On 13 April 2006 Naripdeep Bajwa and Baljinder Sohi were convicted on the same count after a trial lasting 6 weeks before HHJ Atherton and a jury in the same Crown Court. On 19 April 2006 Harish Sahnan was convicted on the same count, before the same court. On 29 June 2006 the appellants were sentenced by Judge Atherton to various terms of imprisonment ranging from 4 years in the cases of Bajwa and Sohi to 2 ½ years in the case of Midgley. 9. Meanwhile proceedings under POCA were started against all the appellants. The case of the Crown against each of them was that the conspiracy had lasted longer than six months and that each had benefited from his conduct which constituted the offence of conspiring to contravene section 170(2)(b) of the CEMA. Each of the appellants was said to have benefited from his criminal conduct because each had obtained a pecuniary advantage as “ a result of or in connection with ” his conduct which constituted the offence of the conspiracy, viz. fraudulently to evade the prohibition or restriction on the importation of cigarettes without payment of the excise duty payable on them. The Crown argued that each of the appellants satisfied the conditions set out in section 75(2)(c) and section 76(4) and (5) of POCA and therefore each had a “ criminal lifestyle ” within section 75(1) of POCA and that each had benefited from his “ general criminal conduct”, within section 6(4) (b) of POCA, as well as benefiting from his “ particular criminal conduct” within section 6(4)(c) of POCA. 10. All the appellants challenged the Crown’s assertion that the conditions of section 75(2)(c) were fulfilled in their case, but did so on different bases. The appellants Bajwa, Sohi and Sahnan argued that they had not been involved in the conspiracy for a period of at least six months and so, in relation to them, the conspiracy was not “ an offence committed over a period of at least six months” for the purposes of section 75(2)(c) of POCA. This is the first issue that arises on this appeal. We will call this question “the six month issue”. The appellant Mallinson accepted that he had been involved in the conspiracy for more than six months. Before HHJ Atherton, counsel for Midgley also accepted that was so in his case. 11. All the appellants denied that they had benefited from the conspiracy because they all denied that they had obtained any “ pecuniary advantage ” within section 76(5) of POCA. They all argued that, on the facts, they had never become liable to pay any duty on the cigarettes and so could not be said to have evaded any duty on the cigarettes. This is the second issue that arises on this appeal. We will call this question “the pecuniary advantage issue”. 12. HHJ Atherton heard argument on these two issues and delivered a reserved judgment on 8 June 2008. On the question of the construction of section 75(2)(c), ie. “the six month issue”, he held that when the relevant offence was a conspiracy then the crucial question was whether that offence itself had been committed over a period of at least six months. He held that it was irrelevant that the particular defendant concerned had only participated (or alleged he had) for a period shorter than six months: see pages 6-7 of the judgment. 13. On the question of the construction of section 76(5), ie. the “pecuniary advantage issue” the judge concluded that it was a question of fact whether a particular defendant who was a party to a conspiracy had benefited from that “ conduct” for the purposes of section 76(4) and (5) of POCA. He held that he was entitled to and would adopt the findings of fact that he had made for the purposes of passing sentence on the appellants, in particular the fact that each had played a substantial role in planning and/or carrying out the conspiracy. The judge also relied on his earlier conclusion that he should start from the premise that “ each defendant’s participation was the same from the point of view of culpability”. In his judgment of 8 June 2008, Judge Atherton pointed out that none of the appellants had given evidence to undermine the conclusion which he drew which was that each had a “ joint interest” in the cargo of counterfeit cigarettes. The judge continued: “ … I find that each of you has in fact received a pecuniary benefit in that working together you have caused that importation. The actual negotiations in China were probably made by Mr Mallinson. I think that he and Mr Midgley were probably to have the responsibility for the carriage and storage of them if they had successfully cleared Customs. The other defendants played their parts with Mr Sohi and Mr Bajwa having dealings with the Bills of Lading ”. 14. The consequence of the judge’s ruling on 8 June 2008 was that all the appellants were to be treated as having a “ criminal lifestyle” for the purposes of section 6 of POCA. This meant that, in each of their cases, the court had to decide whether the particular defendant had benefited from his “ general criminal conduct”, pursuant to section 6(4)(b). The court would do so making the “assumptions” set out in section 10 of POCA unless a particular assumption was shown to be incorrect or there was a serious risk of injustice if a particular assumption were made. 15. The judge reserved determination of the questions of the total “ benefit ” that each defendant had obtained from his criminal conduct and what sum was recoverable from each under section 6(5) and 7(1) of POCA. There were then a number of hearings before Judge Atherton in the first part of 2009 on the issue of what “ benefit ” each appellant had obtained from his general and particular criminal conduct and what realisable assets each had. In a hearing before him on 23 January 2009, Judge Atherton dealt with the issue of apportionment of the purchase price of the cigarettes. The judge held: (1) although there were five defendants, other conspirators had been substantially involved, including one in China, so that for the purposes of apportioning the purchase price of the cigarettes, he would take it that there were 8 conspirators substantially involved. (2) No one had argued that one conspirator should be treated more or less favourably than any other. Therefore each of the eight conspirators, and so each defendant, should be treated on an equal basis. 16. On 21 January 2009 this court delivered its judgment in R v Mitchell [2009] EWCA Crim 214 . The issue in that case was whether a loader of a lorry which was used to smuggle tobacco into the UK from France had evaded the duty payable on the tobacco and so had obtained a “ pecuniary advantage ” within section 76(5) of POCA. That in turn depended on whether the loader was a person liable to pay duty on the tobacco upon its importation into the UK. This court reviewed the relevant statutory provisions, the regulations and the relevant EC Directive. It decided, in agreement with the judgment of Mr Recorder Stephen Males QC given below, that the loader had no personal liability to pay the duty, therefore he had not evaded payment and had not obtained any “ pecuniary advantage ” thereby. We will have to examine that decision further. We mention it here because once the Crown became aware of it, each of the solicitors acting for the appellants was sent a letter drawing attention to it. Those acting for Bajwa thereafter made further legal submissions to the judge before he made his final order on 31 July 2009. However, we understand that neither Bajwa nor the other appellants sought to submit to the judge that he had been wrong to conclude that the appellants were liable to pay the duty on the counterfeit cigarettes in this case. Nor did any appellant seek to give further evidence to clarify his involvement (or lack of it) in relation to the conspiracy to smuggle in the cigarettes into the UK. 17. Subsequently, on 31 July 2009, Judge Atherton made his final rulings on the “ benefit ” that each defendant had obtained from his criminal conduct, the “ realisable assets ” of each defendant and thus the confiscation orders that should be made against each of them. The judge noted that: (1) as a result of his ruling on 8 June 2008, in relation to each defendant it was a “ criminal lifestyle ” case; (2) the total duty evaded was about £1.411 million; (3) three defendants, Sohi, Midgley and Mallinson, did not have assets greater than that sum of “ general criminal conduct benefit ”; (4) but the defendants Bajwa and Sahnan did have. The judge reiterated his conclusion that he was not able to distinguish between one defendant and another so far as culpability was concerned. He continued: “….. Whilst I have great sympathy with the view that it is harsh to make any particular defendant responsible for the whole benefit, I think that the conclusion from Regina v May is that although there is a residual discretion in certain circumstances, those circumstances do not here apply, and that I am forced by reason of the law, to make a joint and several liability order in the way in which the Crown have submitted.” 18. The judge then ruled on the total benefit obtained by each defendant and the realisable assets of each and therefore the confiscation orders that were to be made in respect of each defendant. His conclusions were as follows: Defendant Benefit Realisable assets/ confiscation order/ imprisonment in default Bajwa £1,167,622.42 £599,810.54 33 months in default. Sahnan £992,014.05 £424,155.17 30 months in default Midgley £1,405,928.69 £297,651.39 2 years in default Sohi £1,664,736.58 £887,583.89 3 years in default Mallinson £631,183.78 £16,709.46 18 months in default 19. We heard argument on the appeals on Friday 18 February 2011. We reserved judgment. The facts concerning the importation in more detail 20. On the question of the correct construction of section 75(2)(c) of POCA, the appellants Midgley continues to accept that he was involved in the conspiracy for more than six months. As already noted, counsel for Midgley had conceded in the confiscation proceedings that Midgley’s involvement was for longer than six months. The judge therefore made no findings of fact on this issue. In his perfected Grounds of Appeal, fresh counsel for Midgley sought to withdraw that concession of fact and sought leave to re-open the “six month issue” on behalf of his client. We will have to consider that issue below. However, whether or not Midgley can pursue the “six month issue” , both he and Mallinson do not accept that they have a “ criminal lifestyle ” for the purposes of POCA because they say that they have not “benefited” from the conspiracy, relying on their arguments under the “pecuniary advantage” issue. 21. In respect of the appellants Bajwa and Sohi, the Crown accepted before Judge Atherton and before us that their first involvement in the conspiracy was on 17 March 2004 when they met their co-conspirator at the Oxford Service Station on the M40 motorway. In the case of Sahnan, the Crown accepted before Judge Atherton and before us that it could not show that he was involved in the conspiracy at least six months. There are no further facts to be set out in relation to the “six month issue”. 22. The Crown argues the conditions in section 75(2)(c) are fulfilled if (a) the offence of the conspiracy overall was committed over a period of at least six months, and (b) the defendant concerned has benefited from the conduct which constitutes the offence of the conspiracy to evade duty on the counterfeit cigarettes to which that defendant was a party, whether or not he was himself involved in the conspiracy for more or less than six months. Accordingly, the Crown asserts that it does not matter whether it cannot prove that individual defendants were involved in the conspiracy for at least six months. On the Crown’s primary case each of the appellants fulfils the first condition of section 75(2)(c), so that the only remaining question is whether the appellant obtained a “benefit” from their conduct which constituted the conspiracy by obtaining a “ pecuniary advantage ” by evading the duty. The Crown’s second argument before us was that the involvement of Bajwa and Sohi in the conspiracy was at least six months because they did not withdraw from the conspiracy and it did not come to an end upon their arrest on 13 and 14 September 2004 or when HMRC seized the bill of lading on 13 September 2004. Their involvement in the offence continued until the seizure of the cigarettes by HMRC on 22 September 2004. 23. In relation to “pecuniary advantage issue”, Judge Atherton made his principal fact findings concerning the importation in his ruling of 8 June 2008. His findings have not been challenged on this appeal. We were shown a photocopy of the front page of an original bill of lading for the 40 foot container which was loaded on board the vessel. We understand that this photocopy was before the jury at the original trial. There was no photocopy of the reverse. 24. In summary the facts (which we have taken from the judge’s sentencing remarks on 29 June 2006, the judgment of 8 June 2008 and the photocopy of the bill of lading) are: (1) a 40 foot container, No CCLU 5033098 (“the container”) was loaded on board mv “ Xin Xia Men” (“the vessel”) at Chiwan, China on 22 August 2004. (2) The bill of lading, on a standard form of China Shipping Container Lines (Hong Kong) Co Ltd acknowledged the receipt for shipment and shipment on board of the container. The bill of lading states that the container contained 520 cartons which were said to contain (“STC”) patio heater parts. The shipper is identified as Guangdong Chant Group and the named consignee is Associated Finishers Ltd at an address in Birmingham. The Notify Party is stated to be Paulan Export Services. We were informed by Mr Dudley, appearing for the Crown, that the consignee and Notify Party were legitimate companies. Freight was pre-paid. The bill of lading states that there were three originals. The photocopy of one of the original bills of lading that we saw bears a signature on behalf of the carrier, named as China Shipping Container Line Shenzen Co Ltd. There is no indication of the bill of lading having been endorsed. (3) The container actually contained the 7 million counterfeit “Benson & Hedges” Gold cigarettes. (4) On 13 September 2004 all the appellants apart from Mr Bajwa were arrested. He was arrested on the afternoon of 14 September 2004. (5) When Mr Mallinson was arrested on 13 September 2004 at a meeting with Mr Sohi in a car park near the M40, HMRC took from him one original bill of lading. They also took £15,000 in cash. (6) The appellants were questioned but made “no comment” and were released on bail. (7) At that time the vessel was sailing between Valencia, Spain, and Rotterdam. The position of the container on board the vessel was such that it could not, in normal circumstances, have been unloaded before the vessel’s arrival at Felixstowe. (8) On 21 September 2004 the vessel entered the port of Felixstowe. (9) On 22 September 2004 the container was discharged and the cigarettes were seized after HMRC officials had broken the seals on the container and seen that it contained the counterfeit cigarettes. The counterfeit cigarettes have been forfeited to the Crown. (10) No one attempted to claim the container or its contents. 25. Before we outline the arguments of the parties on the “ pecuniary advantage” issue, it is necessary to set out the relevant legislation concerning duty on imported tobacco and who is liable for its payment. We must also refer to some of the case law insofar as it relates to confiscation under POCA when tobacco has been smuggled into the UK by sea. The relevant legislation concerning duty on imported tobacco and liability for its payment 26. Section 5(1), (2)(a), (3) and (8) and section 43(1) of CEMA provide as follows: "(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". 27. Section 43(1) of CEMA states the general rule that no imported goods shall be delivered or removed on importation until “ the importer” has paid to the proper officer any duty chargeable on the goods imported. However, section 43(2D) of CEMA states that this general rule has no effect for the purposes of any duty of excise chargeable on any goods for which the “ excise duty point” is fixed by regulations made under section 1 of the Finance (No 2) Act 1992 and the applicable rate of duty is fixed by section 1(2) of that Act. 28. Section 1(1) of the Tobacco Products Duty Act 1979 (“TPDA”) defines what is included within the phrase “ tobacco products” to which the TPDA applies; it includes cigarettes. Section 2(1) provides that “ there shall be charged on tobacco products imported into or manufactured in the United Kingdom a duty of excise at the rates shown….in the Table in Schedule 1 to this Act”. Section 6 stipulates that the rate of duty can be increased or decreased by statutory instrument. Section 7 gives HM Commissioners of Revenue and Customs the power to make regulations “ …with a view to managing the duty charged by section 2 …”. 29. Section 1(1) of the Finance (No 2) Act 1992 (“the 1992 Act”) grants HM Commissioners of Revenue and Customs the power to make regulations for fixing the time when the requirement to pay any duty with which goods become chargeable is to take effect. In section 1(1) that point in time is called “ the excise duty point ”. Section 1(3) of the same Act 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…”. Section 1(4) of the same Act provides: “ 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 liable to pay the duty, specifying whether the liability is to be both joint and several”. 30. In 1992 Regulations concerning the payment of duty on imported tobacco were made pursuant to section 7 of the TPDA and section 1(1) of the 1992 Act. In White, Dennard, Perry and Rowbotham v The Crown [2010] EWCA Crim 978 at [55], Hooper LJ, giving the judgment of the court, considered the issue of who was liable to pay duty on imported tobacco under the 1992 Regulations. He said that, with regard to the 1992 Regulations: “…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”. 31. The 1992 Regulations were replaced by The Tobacco Products Regulations 2001 (SI 1712 of 2001) (“the 2001 Regulations”). Those are the relevant regulations for the purposes of this case. They were made in order to implement the Council Directive 92/12/EEC and another, immaterial regulation. The 1992 Directive was repealed and replaced by Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangement for excise duty. Member States were required to adopt, by 1 January 2010, the necessary provisions to comply with the 2008 Directive so as to be effective as from 1 April 2008. Given the chronology in this case, we need not concern ourselves with issues of the effect of that Directive and the UK legislation giving it domestic legal effect: viz. the Excise Goods (Holding, Movement and Duty Point) Regulations 2010: SI 2010/593, which came into force on 1 April 2010. Regulations 12(1) and 13(1), (2), (3)(e) and 14(1) provide as follows: “ Excise duty points 12. —(1) 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. …. Person liable to pay the duty 13. —(1) The person liable to pay the duty is the person holding the tobacco products at the excise duty point. (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— … (e) any person who caused the tobacco products to reach an excise duty point. … Payment and calculation of the duty 14. — (1) Except where regulations 17 to 19 below (deferred payment) apply, the duty must be paid at or before the excise duty point.” 32. Regulation 12(1) does not define the moment when tobacco products are charged with duty; it simply says that they are charged at the “ excise duty point”. Section 2(1) of the TPDA does not take the matter that much further because it only says that excise duty will be charged when tobacco is imported into the United Kingdom. But, the effect of that section, plus the 2001 Regulations and sections 5(2),(3) and (8) of CEMA is that when tobacco is imported by sea into the UK in a ship, then duty is payable the moment when the ship comes within the limits of the port at which the goods are to be discharged. We think that is confirmed by the decision of this court in White, Dennard, Perry and Rowbotham v The Crown [2010] EWCA Crim 978 at [57]. That means, in this case, that duty became payable the moment the container carrier came within the limits of the port of Felixstowe. However, there is a complication to which we refer at [75] and footnote 7 below. 33. Regulation 13 of the 2001 Regulations determines who is liable to pay the duty. By virtue of Regulation 13(1) the principal liability is that of the person “ holding” the tobacco products at the excise duty point. “Holding” is an imprecise term which could embrace actual possession of the tobacco products and, perhaps, both constructive possession (which we shall explain below) and also control of the tobacco products. The case law on Regulation 13(3): Who is liable to pay duty on tobacco products imported by sea in a ship into the UK? 34. The ambit of Regulation 13(3)(e) has been considered by this court in three important recent decisions: R v Chambers [2008] EWCA Crim 2467 ; R v Mitchell [2009] EWCA Crim 214 and White, Dennard, Perry and Rowbotham v The Crown [2010] EWCA Crim 978 . In Chambers it was conceded for the Crown that it had to show that the particular defendant concerned was liable to pay the duty before it could be said that he had evaded it and obtained a “ pecuniary advantage ”. 35. In Mitchell the 2001 Regulations were analysed in more detail. Toulson LJ gave the judgment of the court. The principal points decided were: (1) the 2001 Regulations are primarily concerned with civil liability for duty. It is wrong to approach the construction of who has civil liability for the duty under Regulation 13 as if the Regulation were aimed primarily at crooks, because it is aimed at importation in general: [24]. (2) Because Regulation 13 was intended to give effect to the 1992 Directive , it is necessary to look at the scope of that Directive, in particular Article 7(3) : This provides: “ 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 body governed by public law”. [31]. (3) The intent of Article 7(3) is that the person liable for the duty is primarily the consignor or consignee of the goods to be imported, or where one and the same person is the “ holder ” of the goods both before and after importation, that person: [31] (4) That is the rational way to interpret Regulation 13(3)(e) of the 2001 Regulations: [31]. The different language in Regulation 13(3)(e), viz. “ any person who caused the tobacco products to reach an excise duty point” may have been used 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”, so that, eg. it would be the corporate employer, not the driver, who is liable: [31]. (5)The court said that it would not make final decisions on those points because it had not heard full argument on them. However, the court did say that “… it appears to us that [ Regulation 13(3)(3)] is directed at that person or body who had real and immediate responsibility for causing the product to reach [the excise duty] point, which will typically and ordinarily be the consignor”: [32]. 36. In White, Dennard, Perry and Rowbotham v The Crown , this court had full argument on all aspects, including European law issues on which specialist counsel were instructed to argue the matter. Mr Connor Quigley QC appeared for the appellants and Mr David Anderson QC was instructed by the Respondent Crown. Hooper LJ gave the judgment of the court. He stated at [61]: “Although Regulation 13 [of the 2001 Regulations] 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 Crown] 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”. 37. The judgment next considered in detail the relationship between the 1992 Directive and the 2001 Regulations . The court did not reach any final view on whether there was any incompatibility between those made liable to pay duty under the 1992 Directive and under Regulation 13 of the 2001 Regulations, although it thought this unlikely: [103]. However, the court also saw “ force” in the submission of the appellants that Article 7(3) of the 1992 Directive was prescriptive, so that Member States could not add further categories of persons liable to pay duty beyond those identified in Article 7(3) . The court’s view was that if the 2001 Regulations had done so, then it was to be “disapplied” to the extent it had. 38. The judgment then examined the decision in Mitchell, in particular the passage at [32] that we have quoted above. At [115] the court concluded: “ In the light of the acceptance in these appeals that a person who caused the tobacco products to reach the excise duty point (ie. 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 [in Mitchell at [32] ] will have to be considered”. The passage in [32] of Mitchell is “… but it appears to us that [Regulation 13(3)(e)] is directed at that person or body who had real and immediate responsibility for causing the product to reach that point…”. 39. The upshot of the decisions in Mitchell and White, Dennard, Perry and Rowbotham v The Crown appears to be that, under Regulation 13, a person cannot be liable to pay duty on tobacco imported by sea in a ship unless one of two conditions is satisfied. Either he must be “ holding” the tobacco at the excise duty point, or he must both have “ caused” the tobacco products to reach the excise duty point and he must also have retained a connection with the goods at that point. We respectfully suggest that the phrase used by Toulson LJ at [32] in Mitchell that the person or body must be the “ real and immediate responsibility for causing the product to reach that point” is an elaboration that only underlines the fact that the person or body “ causing” the product to reach the excise duty point must not have too remote a causal connection. It will be a question of fact in each case whether a person has “ caused” the product to reach the excise duty point and whether that person retains a connection with the goods at the point of importation. 40. The argument for the Crown is that each of the appellants “caused” the importation of the counterfeit cigarettes and each retained a sufficient connection with them at the moment that the container vessel reached the limits of the port of Felixstowe. Therefore each became liable to pay duty on the cigarettes and each evaded that liability, thereby obtaining a “ pecuniary advantage”. The arguments of the appellants: “the six months issue” 41. The argument advanced on behalf of the appellants on the correct construction of the first part of section 75(2)(c) (ie. “the six months issue”) can be summarised as follows: (1) the aim of the “ criminal lifestyle ” provisions in section 6(4) and 75 of POCA is to ensure that serious and long-standing criminals are stripped of the benefits of all their “ general criminal conduct ”. (2) Therefore section 75(2) is intended to identify classes of serious and long-standing criminals to which the “ criminal lifestyle ” provisions will apply. The offences listed in Schedule 2 (to which section 75(2)(a) refers) are serious offences. The list includes such offences as people, arms and drug trafficking, and also money laundering. Section 75(2)(b), as explained by section 75(3), is also aimed at serious and long-standing criminals. (3) It cannot have been the intention of Parliament to catch those who only played a small or short – time part in a larger conspiracy (itself of over six months) because that is inconsistent with the aim of section 75(2). (4) Therefore section 75(2)(c) must be construed so as to be “defendant focused”. Accordingly, it should be interpreted as if it read as follows: “ it is an offence committed by this defendant over a period of at least six months and the defendant has benefited from the conduct which constitutes the offence over a period of over six months”. (Additional words have been added in bold). (5) The appellants’ involvement in the conspiracy must have ended upon their arrest on 13 and 14 September 2004 or when HMRC seized the bill of lading on13 September 2004. Therefore, in respect of the appellants Bajwa, Sohi and Sahnan the prosecution cannot establish that they committed the offence of conspiracy of which they have been charged for a period of at least six months. 42. Counsel for the appellants and for the Crown said that they had been unable to find any authority on the construction of this part of section 75(2)(c) . We are unaware of any that is specifically in point. After the hearing our attention was drawn to the decision of this court (to which Aikens LJ and Irwin J were a party) in R v Evwierhowa [2011] EWCA Crim 572 . That case concerned the question of whether confiscation proceedings should be brought under the provisions of the Criminal Justice Act 1988 (as amended) or POCA. It concerned a conspiracy to make false instruments, namely false passport applications. The particulars of offence in the indictment stated that the conspiracy ran from 1 January 2003 to 16 May 2007. The appellant pleaded guilty to the conspiracy, but in his basis of plea he stated that he had countersigned the first false application on 29 October 2003. The relevant provisions of POCA came into force on 24 March 2003. This court held that the appellant had been convicted of an offence which had begun before the commencement date of POCA, so that, on the correct construction of the Proceeds of Crime (Commencement No 5, Transitional Provisions, Savings and Amendment) Order 2005 (SI 2003/333), the 1988 Act applied: see [28]-[31]. The present argument about the correct construction of section 75(2)(c) was not raised at the hearing nor considered in the judgment, because the issue was which statutory regime applied, which depended on the dates of the conspiracy to which the appellant had pleaded guilty. The case did not turn on whether the particular appellant fulfilled the “six month” test in section 75(2)(c) of POCA. The arguments of the appellants: “the pecuniary advantage issue” 43. This question of whether the appellants have obtained a “ pecuniary advantage” is relevant to two aspects of these confiscation proceedings. First, it is relevant to the question of whether the conditions in section 75(2)(c) are fulfilled so that the relevant defendant is to be regarded as having a “ criminal lifestyle”. Whatever the answer to the “six month issue”, the Crown has to prove that the particular defendant concerned had also “ benefited from the conduct which constitutes the offence”. In this case that “ benefit ” is said by the Crown to take the form of evading the duty payable on the counterfeit cigarettes, thereby obtaining a “pecuniary advantage” within section 76(5). By the same provision, the person who has obtained the “pecuniary advantage” is “ to be taken to obtain as a result of or in connection with the conduct a sum of money equal to the value of the pecuniary advantage” that he has obtained. Because “ money” falls within the definition of “property” by virtue of the terms of section 84(1)(a) of POCA, if someone has obtained a “ pecuniary advantage” as a result of or in connection with conduct, he is therefore deemed to have “obtained property” as a result of or in connection with that conduct and so he will have “ benefited from the conduct which constitutes the offence” within section 75(2)(c). If so, the second part of the condition in section 75(2)(c) will be fulfilled in respect of that particular defendant. 44. Secondly, the question of whether the appellants have obtained a “ pecuniary advantage” is relevant to the court’s decision on what, if any, “benefit” each of the appellants have obtained, either from his “ general criminal conduct” or his “ particular criminal conduct”, for the purposes of section 6(4) of POCA. The points raised are the same. 45. The argument for all the appellants on this issue is that none of them was ever liable to pay the duty on the counterfeit cigarettes, so that none could have evaded the duty and thus none could have obtained any ‘pecuniary advantage”. There are a number of strands to the argument. The first point taken is that none of the appellants is a person who is liable to pay the duty within the terms of the 2001 Regulations . In support of this the appellants rely on the fact that HMRC seized the bill of lading on 13 September 2004. Therefore, it is said, none of the conspirators could be “ holding” the cigarettes at the excise duty point, because none possessed the bill of lading, which was “the key to the goods” and none had any other right to obtain possession of the cigarettes anymore. The appellants also rely on the fact that all the appellants were arrested on 13 and 14 September 2004, which meant that they must have impliedly ceased to have any further interest in the goods. Furthermore, in the circumstances none of the appellants could have “ caused” the tobacco to reach the excise duty point, nor did they retain a sufficient connection with the goods as at the duty excise point. 46. The second point taken is that, even if one or more of the appellants was liable to pay the duty, none evaded it. In this regard the appellants submitted that their part in the conspiracy ended when they were arrested so they could not be said to be conspiring to evade the duty on the cigarettes any longer. Therefore they were not “evading” the duty. Moreover, it is submitted that the judge did not investigate or make a finding as to whether particular defendants were liable to pay the duty on the cigarettes within Regulation 13 of the 2001 Regulations and this court cannot do so in the absence of relevant findings of the judge. Issue One: the “six month issue” 47. The resolution of this issue depends entirely on the correct construction of section 75(2)(c). We make two observations at the outset. First, section 75(2)(c) must be construed in the context in which that provision appears, which context embraces both POCA in general and the provisions in POCA concerning “ criminal lifestyle ” in particular. In the “Endnote” in R v May [2008] 1 AC 1028 at [48], Lord Bingham of Cornhill enjoined all courts and judges who have to construe the legislation dealing with confiscation orders to focus very closely on the language of the statutory provision in question, in the context of the statute and in the light of any statutory definitions. He said that the language used was not arcane or obscure and “ any judicial gloss or exegesis should be viewed with caution”. He also emphasised that guidance should be sought in the statutory language rather than the “ proliferating case law”. We bear those passages very much in mind. 48. Secondly, we observe that if the Crown establishes (on a balance of probabilities) that a defendant falls within one or other of the tests for having a “ criminal lifestyle ” as set out in section 75(2), the consequences for him are serious. In the first place, if he does so then the court has to enquire into whether he has benefited from his “ general criminal conduct ”. That inquiry can be far wider and have far more serious consequences than an inquiry simply into his benefits from “ particular criminal conduct ”. Secondly, the court investigating whether a defendant who is held to have a “ criminal lifestyle ” has benefited from his “ general criminal conduct ” will, prima facie, use the four statutory “ assumptions ” set out in section 10 of POCA. Therefore, following basic canons of construction of penal statutes, if there is any ambiguity in the language of section 75(2)(c) then that must be resolved in favour of those who would otherwise be subject to the draconian regime that would be imposed on them if they were to be held to have a “ criminal lifestyle ”. 49. The starting point for the construction of section 75 must be the statement of Lord Bingham of Cornhill in Jennings v Crown Prosecution Service [2008] 1 AC 1046 at [13] and [14] that the object of the confiscation legislation is to deprive individual defendants of the product of his crime or its equivalent, so that the focus of any enquiry under the legislation is the benefit “obtained by him”. It seems to us that, consistent with this legislative objective, the focus of section 6(4) and section 75 is upon identifying the circumstances in which individual defendants will be regarded as having a “ criminal lifestyle ”. If the individual defendant has one, then the court must investigate his benefit from his “ general criminal conduct ”. That is why section 75(1) states that “ a defendant has a criminal lifestyle if (and only if)…” one of the conditions set out in section 75(2) is fulfilled. 50. If one then examines section 75(2)(a) in particular and asks: how is the condition set out in section 75(2)(a) fulfilled in relation to a particular defendant, the answer must be that the particular defendant must have committed one or more of the offences set out in Schedule 2 of POCA. The schedule sets out a list of offences under the general heading of “Lifestyle Offences: England and Wales”. Paragraph 10 of Schedule 2 states, under the heading “ Inchoate offences”: “(1) An offence of attempting, conspiring or inciting the commission of an offence specified in this Schedule. (2) An offence of aiding, abetting, counselling or procuring the commission of such an offence.” 51. Therefore, for example, if an individual defendant has committed the offence of conspiring to possess prohibited drugs with intent to supply, over whatever period he has been involved in such a conspiracy, he will fulfil the condition set out in section 75(2)(a). Under that paragraph there is no additional requirement that the particular defendant has also benefited from the conduct that constitutes the offence. The “minimum benefit” provision (of £5000) in section 75(4) does not apply to section 75(2)(a). 52. In the case of section 75(2)(b), the condition, or “ test” to use the statutory word, is that the offence (or offences) concerned “ constitute conduct forming part of a course of criminal activity”. The phrase “ conduct forming part of a course of criminal activity” is defined in section 75(3). Conduct will only form part of a course of criminal activity if (1) “ the defendant has benefited from the conduct”, and (2) either “ (a) in the proceedings in which he was convicted he was convicted of three or more other offences, each of three or more of them constituting conduct from which he has benefited”, or “ (b) in the period of six years ending with the day when those proceedings were started…he was convicted on at least two separate occasions of an offence constituting conduct from which he has benefited”. ( We have added the (1) and (2) for convenience). 53. Thus in all cases coming within section 75(2)(b) the “ test” focuses on what a particular defendant has done. In all cases he has to have benefited from his criminal conduct, subject to the minimum of £5000 set out in section 75(4) . He also has to have been convicted of a certain number of offences. He does not have to have been involved in one any particular offence for any particular length of time. However, the requirements of section 75(3)(a) and (b) that the defendant has to have been convicted of three or more offences in total over the last six years make it clear that section 75(2)(b) is aimed at long-standing criminals who have benefited by at least £5000 from their extensive criminal conduct. 54. Thus, we think it clear that both section 75(2)(a) and (b) are aimed (“ the offence (or any of the offences) concerned”) at the offence or offences committed by the defendant whose case is being considered to see whether or not he has a criminal lifestyle. Both are focusing on what offences the particular defendant has committed. 55. Against that background we can now analyse section 75(2)(c) . In our view the wording “ it is an offence committed over a period of at least six months” must relate to the particular defendant’s part in an offence, so that the defendant being considered must have committed the offence for at least six months. We say this for four reasons. First, that approach is consistent with the object of section 75, which is to identify particular defendants who have a “ criminal lifestyle ”. Secondly, section 75(2)(c) is the third set of “ tests ” for establishing whether a defendant has a criminal lifestyle. It only needs be considered if a defendant does not fulfil the other two. It should be construed consistently with paragraphs (a) and (b) in which the first question is whether the particular defendant has committed the offences identified in those paragraphs. Thirdly, if it were enough for paragraph (c) that “the offence” at large was committed over a period of at least six months, it produces a startling anomaly. It would mean that in a case where there is only one defendant involved in the offence, it would have to be demonstrated that he had committed the offence concerned for at least six months. But if there is more than one defendant involved in the same offence, then (on that construction) the defendant (A) committing the offence only on the last day of a period of at least six months would be caught by the paragraph, but only if it could be demonstrated, for at least one other co-defendant (B), that the offence had been committed over at least six months. For example, if there was a long-standing conspiracy to smuggle counterfeit cigarettes into the UK with the intention of fraudulently evading the duty payable and one defendant (of previous good character) was engaged, for a fee of £5001, to be the driver on the day prior to the last run before all the defendants were arrested, he would be caught by this paragraph. Yet it would seem almost perverse to describe that driver as having a “ criminal lifestyle ”. Fourthly, the practical consequences of accepting the Crown’s submissions would produce a difficulty. No matter how short a period a particular defendant (A) was involved in a conspiracy, so long as one other co-defendant was involved for at least six months then defendant (A) could never enter a basis of plea that would avoid him being treated as having a “ criminal lifestyle ”. Consequences of our conclusion on construction on the “six month issue”. 56. Our conclusion, contrary to the decision of HHJ Atherton, that a particular defendant will only come within section 75(2)(c) if it is demonstrated that he had committed the relevant offence for a period of at least six months has consequences for the position of the appellants Sahnan, Bajwa, Sohi and Midgley. In relation to Sahnan, the Crown has conceded that it cannot show that he had been involved in the conspiracy for at least six months. It must follow therefore that he cannot come within section 75(2)(c) and so cannot be subject to the “ criminal lifestyle ” provisions of POCA. 57. In relation to Bajwa, Sohi and Midgley, the judge made no finding of fact on how long they were involved in the conspiracy, because it was not necessary for him to do so on his interpretation of section 75(2)(c). The submission to us on behalf of the appellants was that the earliest date of their involvement in the conspiracy was 17 March 2004. They also submit that their involvement must have terminated by 14 September 2004 at the latest because (a) by then they had been arrested; and (b) HMRC had seized the bill of lading on 13 September 2004. Therefore, either those appellants must have withdrawn from the conspiracy or the conspiracy must have terminated because its object was no longer capable of being fulfilled because the conspirators could not obtain possession of the container as they could not present the bill of lading upon discharge of the container to do so. The Crown submits that if Midgley is permitted to re-open the issue of the extent of his participation in the conspiracy, the evidence demonstrates that he was involved before 17 March 2004, so that even if his participation ended on 13/14 September, overall it was for longer than six months. 58. The burden of proving fulfilment of the statutory criteria under any of the three paragraphs of section 75(2) must lie on the Crown. In accordance with section 6(7) of POCA, any question concerning whether a defendant has a “ criminal lifestyle” must be decided on a balance of probabilities. On our construction of section 75(2)(c), the Crown must therefore prove, on a balance of probabilities, that Bajwa and/or Sohi and/or Midgley were involved in the conspiracy alleged for at least six months. 59. Before considering the parties submissions, we remind ourselves of some elementary points on the law of criminal conspiracies. First, a conspiracy is an agreement, or a common understanding, between the conspirators that a particular course of conduct should be pursued which will involve the commission of the crime that is specified in the Indictment. Secondly, the existence of such a common understanding may, in some cases, be proved by specific evidence of words or writings in which the conspirators evinced such an understanding. But more commonly the existence of the conspiracy has to be inferred from all the circumstances, including the “overt acts” of the conspirators. Thirdly, the duration of the conspiracy or of a particular conspirator’s part in it may also have to be proved by drawing inferences from all the circumstances, including “overt acts” of those involved. Fourthly, in the absence of any specific evidence of words or writing which demonstrate the point at which the common understanding was formed, the start date of the conspiracy will usually have to be proved by reference to the earliest “overt acts” on the part of any of the conspirators. Similarly, the start date of the involvement of one particular conspirator’s participation will have to be proved by proof of his earliest “overt act”. 60. Fifthly, once the conspiracy has begun, it will normally (in the absence of evidence to the contrary) be a reasonable inference that it continues until its object had been achieved. Evidence to the contrary might include specific evidence of words or writings by which the conspirators agreed to call the whole thing off, or of actions on their part from which it can reasonably be inferred that they must have done. Likewise, once a particular defendant has joined a conspiracy, it will normally (in the absence of evidence to the contrary) be a reasonable inference that he remained a party to it until the conspiracy as a whole came to an end, typically because its object had been achieved. Evidence to the contrary might include specific evidence of words or writings by which that defendant indicated an intention to withdraw, or of actions on his part from which it can reasonably be inferred that he must have done. Often that will be in the form of a communication by conspirator (A) to another conspirator (B), or to a non- conspirator, that (A) was ceasing to be involved. 61. Lastly, we consider, in general, what the position is if the object of the conspiracy becomes impossible of achievement; ie. in this case, that it would no longer be possible to import the counterfeit cigarettes and evade the duty payable on them because HMRC knew about the plot and were going to seize the container and its contents. We think that the result will depend on whether or not the conspirators know that the object of their common understanding is no longer capable of being fulfilled. Broadly, if they do know, then the inevitable inference is likely to be that the agreement or common understanding to pursue a course of conduct which involves the commission of the offence which can now no longer be achieved will have come to a full stop. There might be specific evidence of words or writings to show that the unlawful plan is at an end, but that hardly seems necessary. 62. On the other hand, if the conspirators do not know that the object of their common understanding is no longer capable of being fulfilled, the offence will carry on. We think that this distinction is well illustrated by the case of R v Green (Harry) [1976] QB 985. That was an appeal against convictions of the appellant for (a) being knowingly concerned in the fraudulent evasion of the prohibition on the importation of cannabis, contrary to section 304 of the Customs and Excise Act 1952, (the forerunner of section 170(1)(a)(iii) of CEMA) and (b) conspiring to evade the prohibition on the importation of a controlled drug. Crates containing the cannabis had, unbeknown to the conspirators, been intercepted by HM Customs after discharge from a vessel at Southampton. The crates had been refilled with peat and paper by Customs officers and then sent on their way. The appellant had been involved in this enterprise but only after the cannabis had been seized and the peat and paper substituted. He knew nothing of the interception. It was argued that the appellant could not be guilty of the offence of being knowingly concerned in the fraudulent evasion on the prohibition of the importation of cannabis because the objective, ie. to evade the prohibition, was impossible of attainment by the time he became involved. It was also argued that his agreement to be involved after the cannabis had been seized could not amount to him being party to a conspiracy to commit the substantive offence. 63. The Court of Appeal rejected both arguments. In giving the reserved judgment of the Court, Ormrod LJ said in relation to the substantive offence (at page 993D): “ The actus reus of this offence is being concerned in the evasion or attempted evasion of a prohibition on the importation of the goods in question, not the successful evasion. All the necessary ingredients were proved or admitted: cannabis is a prohibited drug; it was imported in breach of the prohibition; so evasion was established. We accept [counsel for the Crown’s] argument that evasion is a continuing offence, that is, that it does not cease when the cannabis was seized by the authorities. Once imported the evasion of the prohibition continues until the goods ceased to be prohibited goods, or, possibly, are re-exported”. 64. Ormrod LJ then dealt with the offence of conspiracy. He said (at page 993F): “There is ample authority for the proposition that the actus reus of conspiracy is the agreement to effect an unlawful purpose, and that the offence is committed whether or not any act is done in pursuance of the agreement. It must follow that the fact that, unknown to the conspirators, the unlawful purpose could not be achieved is no defence…in the present case only the lifting of the prohibition could prevent their purpose from being unlawful”. 65. In DPP v Nock [1978] AC 979 , the House of Lords considered some remarks of Ormrod LJ in Green on the effect of statements of Lord Hailsham of St Marylebone in R v Smith [1975] AC 476 , but the correctness of the principal analysis and the decision in Green was not doubted. In R v Sissen [2001] 1 WLR 902, this court followed the principles set out by Ormrod LJ quoted at [59] above in the context of a charge under section 170(2)(b) of CEMA of evading an EU restriction on the importation of rare macaws into the EU. 66. In this case, on our construction of section 75(2)(c), it must be for the Crown to prove, on a balance of probabilities, that a particular defendant was involved in the conspiracy for at least six months; it is not for a defendant to establish that either the conspiracy as a whole or his part in it has come to an end. We accept that the Crown might be able to discharge the burden by producing positive evidence that, even after the object of the conspiracy had, in fact, become unachievable, some or all of the conspirators were nonetheless trying to find ways of retrieving the situation and obtaining their objective after all. 67. Because this court is a court of review, not one for making primary findings of fact, we cannot make new findings of fact except on the basis of either the material that was before the judge or the facts that he has already found: see R v Mark Barrington Grainger [2008] EWCA Crim 2506 at [14] and [16]; R v Seager; R v Blatch [2009] EWCA Crim 1303 at [56] and [92]. There are no findings of fact by Judge Atherton on this particular point, so we can only draw inferences from those findings that he has made and any other relevant material that was before him. 68. In relation to the start-date of Midgley’s participation in the conspiracy, counsel had conceded, in the course of the hearing before HHJ Atherton on 3 June 2008, that Midgley’s first contact with Mallinson was 1 February 2004, although in fact the Crown accepts that it was only 1 March 2004. It is submitted that the concession was made without instructions, so that Midgley should now be permitted to re-open this issue of fact. We do not accept that he should be permitted to do so in the absence of any compelling argument or evidence to show that the concession of fact was wrong. The concession must stand. Therefore, even assuming Midgley’s participation in the conspiracy ended on 14 September 2004, he is in the same position as Mallinson on the “six month issue” on the facts. 69. In relation Bajwa and Sohi and the end date of the conspiracy, the fact that the bill of lading was seized by HMRC on 13 September 2004 cannot, by itself, terminate the conspiracy. Its seizure did not make the object of the unlawful agreement impossible to achieve. There are, unfortunately, many reported instances of a person gaining possession of containers without production of the bill of lading, even if presentation of the bill of lading by the lawful holder is the normal, legitimate, means of obtaining possession of goods upon discharge from a vessel. Nor would the seizure of the bill of lading by HMRC, by itself, persuade us that Bajwa and Sohi had withdrawn from the conspiracy. 70. However, we think that the combination of the arrest and interview of the appellants plus the fact of the seizure of the bill of lading by HMRC, which all of the appellants must have known about, leads to the inevitable inference that all the appellants must have appreciated that HMRC knew all about the plan to smuggle in the cigarettes in the container and that HMRC was in complete control of the situation. As soon as HMRC got the bill of lading, it knew which ship the container was loaded on and which port it would be discharged at and when. There was no means by which the container could have been diverted and unloaded at another port. 71. We accept that there is no direct evidence that the original intention of the conspirators to deceive HMRC had ended. However, we think that the reasonable inference, on the facts that we have, must be that Bajwa and Sohi did not continue with that intention after 14 September and that the original common understanding between the conspirators, particularly Bajwa and Sohi, could no longer have been in existence. We think the only common sense conclusion is that from 14 September 2004 they must have known that the attempt at deception of HMRC had failed or was doomed to failure. 72. The Crown emphasised the fact that neither Bajwa nor Sohi gave any evidence in the confiscation proceedings that explained what their position was after 13/14 September 2004. The Crown relied on cases such as R v Olubitan [2004] 2 Cr App R (S) 70 at [25] for the proposition that a court may be entitled (using the proper standard of proof) to make robust inferences if convicted defendants remain unhelpful as to which of them obtained what benefit as defined by POCA or similar Acts. In our view that does not assist the Crown in this case for three reasons. First, the burden was on the Crown to establish that a particular defendant’s part in the “offence” continued for at least six months and the Crown’s own evidence led to the opposite conclusion in the case of Bajwa and Sohi. Secondly, there are difficulties in expecting a defendant who has pleaded not guilty but been convicted (as had both Bajwa and Sohi) to give evidence in the subsequent confiscation proceedings to the effect that he had, after all, been guilty of the conspiracy but over a period of less than six months. Thirdly, given the Crown’s case on the “six month” point, it appears to us that these issues of fact were not given the focus that they now have to receive as a result of our conclusion on the correct construction of section 75(2)(c) of POCA. It would be unfair to invoke the principle of “robust inferences” against the appellants in those circumstances. Conclusion on the “six month” issue. 73. Our conclusion, therefore, is that the Crown has failed to show that either Bajwa or Sohi was involved in the conspiracy offence for at least six months. Accordingly, Bajwa, Sohi and Sahnan do not fall within the ambit of section 75(2)(c). As already noted, Mallinson accepts that they cannot take the “six month” point. Midgley is bound by the concession of fact made by counsel before HHJ Atherton so that fulfils the six month “ test” on the facts. 74. Having reached those conclusions, we must go on to consider the arguments on the “ pecuniary advantage ” issue in order to decide whether Mallinson and Midgley fall within the terms of section 75(2)(c) . The outcome of this question will also determine whether, in relation to the duty on the counterfeit cigarettes, any of the appellants “ obtained a benefit” for the purposes of sections 76(5) and 6(4) of POCA. Issue Two: the “pecuniary advantage” Issue. 75. We state first of all some principles which cannot be challenged in this court. (1) A person “ obtains a pecuniary advantage” within section 76(5) of POCA if he evades or defers a debt that is then due and owing. R v Smith (David) [2002] 1 WLR 54 at [18] per Lord Rodger of Earlsferry with whom all the other law lords agreed, approving the statement of Laws LJ in R v Dimsey and Allen [2000] Cr App R (S) 497 at 500. Smith concerned the provisions in section 71(5) of the Criminal Justice Act 1988. But the principle was followed in R v Varsani [2010] EWCA Crim 1938 in relation to section 76(5) of POCA: see the judgment of Rafferty J at [14]. (2) Duty is payable on tobacco imported by sea in ships when the ship enters the limits of the port where the goods are to be imported. See [32] above. (3) Duty will be “evaded” when the duty becomes payable but it is not paid. The precise point at which evasion occurs is, however, controversial. R v Mitchell [2009] EWCA Crim 214 at [26]. When precisely the excise duty is “evaded” when tobacco is imported by sea appears to be a point on which two divisions of the Court of Appeal Criminal Division have given conflicting views. In Mitchell, at [26] Toulson LJ said that “evasion” occurs only when the importer “ ought to declare”. In White, Dennard, Perry, Rowbotham v The Crown [2010] EWCA Crim 978 , Hooper LJ said, at [46] that this statement was not right and that the evasion takes place when the ship carrying the tobacco enters the limits of the port because that is when the duty is payable. We discuss this below. (4) If goods are smuggled into the UK past the “excise duty point” and excise duty is thereby evaded, a “pecuniary advantage” to the extent of the duty evaded will be obtained even if the goods are thereafter seized by HMRC or are lost or destroyed. R v Smith; R v Varsani. (5) a person is only liable to pay excise duty on tobacco imported by sea in a ship if (a) he is “ holding” the goods at the excise duty point, or (b) he caused the goods to reach the excise duty point and he retained a sufficient connection with the goods at that point. See [35] and [36] above. As noted, the qualification on “ caused” suggested by Toulson LJ in Mitchell is obiter but may not add too much in any case. (6) The Crown must prove, on a balance of probabilities, that a particular defendant has (a) evaded the duty payable, so that (b) a “ pecuniary advantage ” within section 76(5) has been “ obtained by him ” and that defendant has thus obtained a “ benefit ” to the extent of the monetary value of that pecuniary advantage. Jennings v The CPS [2008] 1 AC 1046 at [13] and [14]; applied in R v Middlecote [2011] EWCA Crim 548 at [14]. 76. It seems to us that three questions therefore arise in this case under this issue. They are: (A) on the facts of this case, which of the appellants, if any, was liable to pay excise duty on the counterfeit tobacco; (B) if any were so liable, when did that liability arise in principle; (C) was there any “evasion” of that duty by any particular appellant so as to obtain a “pecuniary advantage” within section 76(5) of POCA, with the consequence that that appellant obtained a “benefit” for the purposes of section 76(4) and so section 75(2)(c) (relevant only to Mallinson and Midgley) and section 6(4) of POCA, which is relevant to all appellants. (A) Which appellant, if any, was liable to pay excise duty on the tobacco? 77. The first question is whether any appellant was “ holding” the counterfeit cigarettes at the time that it entered the port of Felixstowe on 22 September 2004. As the law currently stands, that depends on whether any of them had possession or control of the cigarettes at that point. Obviously, none of them was physically in possession of the cigarettes at the time. However, it is elementary commercial law that if a person is the lawful holder of a bill of lading then he has “symbolic” or “constructive” possession of the goods that are identified in the bill of lading, such that he can demand their delivery up by the shipowner at the completion of the contractual voyage. We are prepared to assume, without deciding the point, that for the purposes of Regulation 13(3)(e) of the 2001 Regulations, a person who is the lawful holder of a bill of lading for the goods in respect of which he intends to import will be “ holding” those goods, whether or not he is the consignor or consignee named in the bill of lading. 78. However, there are two difficulties about establishing “possession” by that means in this case. First, although the bill of lading identified the right container, it did not identify the cigarettes as being within the container. Second, and more importantly, at the time the ship entered the port of Felixstowe none of the appellants was the lawful holder of the one bill of lading we know about because it had been seized by HMRC on 13 September 2004. 79. There were two other bills of lading in the set of three that had originally been issued by the carriers upon shipment of the container in China. However, there was no evidence before the judge about who possessed those documents on 21/22 September 2004 and so there is no basis on which we can find that any of the appellants actually held one of the other bills of lading at the relevant time. It might be argued that another of the total of eight conspirators held one of the other two bills of lading at the time the vessel entered the port of Felixstowe. Therefore (it might be argued), as all eight conspirators had a joint interest in the cigarettes, therefore all eight must have had joint “symbolic” or “constructive” possession of the cigarettes at that time. We accept that this is a theoretical possibility, but there are no findings of fact which enable us to reach that conclusion. We therefore do not need to consider whether any of the conspirators was a “lawful holder” of one of the bills of lading. 80. For similar reasons we must reach the conclusion that none of the appellants had “control” over the cigarettes at the time that they entered the port of Felixstowe. Therefore we conclude that it is not established that any of the appellants was “ holding” the cigarettes when they entered the port of Felixstowe. 81. Accordingly, we have to go on to consider whether any of the appellants “ caused” the cigarettes to reach the excise duty point, viz. when the vessel carrying the container entered the port of Felixstowe, within regulation 13(e) of the Tobacco Products Regulations 2001. If so, then we must consider whether that person has also “retained a connection with the goods at that point”: see [39] above. In his ruling of 8 June 2008 the judge did consider the question of whether any of the appellants “ caused ” the cigarettes to reach the excise duty point. However, he did so by asking whether any defendant had “benefited” from smuggling in the cigarettes and he referred to the decision of this court in R v Houareau [2006] 1 Cr App R (S) 89 . 82. In that case the appellant had been the organiser of the importation of two million cigarettes by lorry from France. The question was whether, for the purposes of making a confiscation order under the Criminal Justice Act 1988, he had obtained a “ benefit ” by evading the duty payable on the cigarettes, within section 71(5) of the 1988 Act. The case was decided before the leading House of Lords cases of R v May and Jennings v Crown Prosecution Service. Keene LJ gave the judgment of the court. It does not appear that the court in Houareau was referred to all the relevant legislation concerning importation and the imposition of duty that we have set out above. In particular, the court was not referred to the fact that the general rule in section 1(1) of CEMA, that an “importer” is liable to pay duty on imported goods, gives way to a specific regime with regard to imported tobacco products. Keene LJ concluded, at [18], that a judge could find that a person who has knowingly played his part in the importation of cigarettes has a “beneficial interest” in the goods, so that the appellant was to be regarded as an “importer” of the cigarettes (within section 1(1) of CEMA) and therefore liable for the unpaid duty. Keene LJ concluded that :“ It then follows that, on the authority of Smith , he derived a “pecuniary advantage” within the meaning of section 71(5) of the 1988 Act”. However, because Houareau did not deal with the 2001 Regulations , it is cannot assist us on the question of whether any of these appellants “ caused” the cigarettes to be imported within Regulation 13(3)(e). 83. In his ruling of 8 June 2008, HHJ Atherton said he would rely on facts found for the purposes of sentencing when making his ruling on issues concerning confiscation orders. In his sentencing remarks of 29 June 2006, the judge found: (1) all the appellants played a part in the arrangements for the importation of the cigarettes into the UK: (page 3B). (2) Mallinson was involved in setting things up in China: (page 3G-4B). (3) Bajwa, Midgley, Sohi and Sahnan were involved in arrangements in the UK: (page 4B-F). (4) Mallinson met Sohi on 13 September 2004 in the car park of the Lambeth Arms near to the M40 so that the bill of lading would be handed over: (page 4H). Overall, the judge concluded that each appellant “..has played a substantial role in the planning or carrying out or both of this conspiracy…the roles of all these defendants were, in my view, complimentary to the common purpose, namely to smuggle these counterfeit cigarettes in the United Kingdom and thereby defraud the Revenue and incidentally those who were going to buy these cigarettes”: (page 6G-H). 84. On the basis of those findings of fact we think that it would have been open to the judge to find that each of the appellants “ caused” the counterfeit cigarettes to reach the relevant excise duty point: viz. the limit of the port of Felixstowe. In addition, we think that on those facts it would also have been open to the judge to conclude that each of the appellants was a person who had “ real and immediate responsibility for causing” the cigarettes to reach the excise duty point, viz. the limit of the port of Felixstowe. As the Crown pointed out in argument, there was nothing more that any of the conspirators needed to do for the container and the cigarettes to sail past the limits of the port of Felixstowe and it was as a result of their actions that the container and the goods got onto the quayside at Felixstowe. 85. Therefore we must go on to the next question: did any of the appellants “ retain a connection ” with the cigarettes at the excise duty point? This is, we think, a more difficult question to answer, not least because the judge (unsurprisingly because the relevant case law had not been developed as at June 2008) did not make any specific findings of fact on this issue. As already noted, we cannot make any new findings of fact except on the basis of either the material before the judge or the actual findings he has made. 86. Effectively (although it was not put in the terms of the judgment of Hooper LJ in R v White, Dennard, Perry and Rowbotham), the argument of the appellants is that when the vessel entered the port of Felixstowe on 21 September 2004, they no longer retained any connection with the cigarettes because (a) HMRC had seized the bill of lading on 13 September; and (b) they had all been arrested on 13 and 14 September and so (c) the conspiracy had come to an end then because its object was no longer capable of being achieved, and (d) they had terminated any part in the conspiracy when the cigarettes were seized by HMRC on 22 September 2004. 87. We point out again that it must be for the Crown to prove, on a balance of probabilities, that the appellants retained a sufficient connection with the cigarettes as they passed the excise duty point on 21 September 2004. If we are correct in our analysis above that the result of the combined effect of the seizure of the bill of lading by HMRC on 13 September 2004 and the arrest and questioning of the appellants on 13/14 September 2004 is that (a) the appellants must, by inference, have ended their common understanding to carry out the conspiracy and (b) it was no longer possible to achieve the object of the conspiracy, then that must have an impact on whether any of the appellants retained a connection with the cigarettes by the time they passed the excise duty point. In our view, on the facts as found by the judge and on the material before him, it is impossible for us to conclude that the Crown could prove, on a balance of probabilities, that any of the appellants had retained a connection with the cigarettes by the time the vessel passed the excise duty point. The conspiracy was impossible of completion; the basis of the common understanding had come to an end. The obvious inference is that the appellants had abandoned any connection they had with the cigarettes by 21 September 2004. 88. Accordingly, we must conclude that none of the appellants were persons who were liable to pay the excise duty on the cigarettes at the moment that the vessel, loaded with the container, passed within the limits of the port of Felixstowe on 21 September 2004. (B) When did the liability to pay excise duty arise in principle? 89. We have answered this question in the course of answering question (A). The excise duty became payable upon the container and its contents passing within the limits of the port of Felixstowe on 21 September 2004. Once a ship comes within the limits of its discharge port it is then and there at the “excise duty point”: see Glyn Edwards v The Crown [2004] EWCA Crim 2923 , per Newman J at [9]. However, for the reasons we have given above, that conclusion does not matter on the facts of this case. (C) Was there an evasion of the excise duty by any of the appellants? 90. As we have concluded that none the appellants were persons who were liable to pay duty on the cigarettes once the cigarettes had passed the “duty excise point”, we do not need to consider the three questions that remain. But we think that we should briefly express a view on them nonetheless. The questions are: first, does any further action or inaction have to be proved, on a balance of probabilities, to demonstrate that the appellants “evaded” the duty that was due once the cigarettes had passed the “duty excise point” such that a “pecuniary advantage” is obtained. We note that the Crown accepted before us that it had not proved that any of the appellants had done anything positive in relation to the conspiracy after their arrests on 13/14 September 2004. Secondly, when does the action or inaction have to take place? Thirdly, can the position of any of the appellants be differentiated? (i) What constitutes “evasion” of the duty? What (if any) actions or inactions are needed to “evade” the duty? 91. If we consider this point first without reference to the cases, it seems to us that “evasion” involves avoiding doing something which a person is under an obligation to do. A person can only avoid doing something if he knows that he is obliged to do it. The person will “evade” the obligation if he deliberately so organises affairs that he is able to avoid doing what he knows he has to do. For the purposes of this point, we assume (contrary to our conclusion above) that in this case each of the appellants was, by law, obliged, or liable, to pay duty on the cigarettes the moment they entered the port of Felixstowe. Logically, therefore, if each appellant has deliberately so organised things that this liability to pay duty is avoided, then he would be “evading” his liability. If this is translated into criminal law terms: a person fraudulently evades an obligation if, at the time the obligation arises, he dishonestly intends not to fulfil it. 92. We think that this is approach is consistent with the decision of this court in Attorney-General’s Reference (No 1 of 1981) [1982] 1 QB 848. The court considered whether, on a prosecution for fraudulent evasion or attempted evasion of a prohibition or restriction in respect of goods or duty chargeable on them, it was necessary for the prosecution to prove acts of deceit were practiced on a customs officer in his presence. The court held that it was not necessary to do so. Lord Lane CJ, giving the reserved judgment of the court, held that the prosecution had only to prove “… fraudulent conduct in the sense of dishonest conduct deliberately intended to evade the prohibition or restriction ...or the duty chargeable on the goods”: see page 856D-E. Therefore there does not need to be proof of any positive act of deceit face to face with HMRC. The question is whether the person concerned (the appellants in this case) has taken steps to avoid an obligation he knows he has to pay the duty. 93. We also think that our analysis is consistent with the House of Lords’ decision in R v Smith (David) [2002] 1 WLR 54 , where the defendant did nothing more than sail the motor vessel up the Humber, past the customs houses at Immingham and Hull and then on to Goole where he berthed. He was held to have evaded the duty payable and thereby obtained a “pecuniary advantage” for the purposes of section 71(4) of the CJA 1988. It was enough that the defendant had the cigarettes on board his vessel and was intent on not presenting them so that duty could be assessed and paid. It is also, we think, consistent with the reasoning in R v Edwards (Glyn) [2004] EWCA Crim 2923 . That was a confiscation case under the CJA 1988 where the appellant had successfully got his lorry containing over 3 tonnes of tobacco through the customs point at Hull docks but was then stopped by HM Customs before leaving the port gates. Newman J said at [16]: “ 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”. Conduct before and after that point will be relevant to the person’s intention at the time of importation. (ii) When does the evasion of the duty occur? 94. Upon this analysis, we think that we must respectfully agree with the analysis of Hooper LJ in White, Dennard, Perry and Rowbotham v The Crown [2010] EWCA Crim 978 at [46], viz. that when goods are being smuggled into the UK with the intention of avoiding the payment of any duty due on them, the evasion will take place when the vessel enters the limits of the port. We accept that there may be factual situations where evasion will take place at a later stage, as we think the court may have contemplated in Mitchell at [26]. But on the facts of the present case, if any of the appellants had been liable to pay the duty the evasion would have taken place when the cigarettes passed the limit of the port of Felixstowe. (iii) Can the position of any of the appellants be differentiated? 95. In our view if we are correct in concluding that all the appellants “caused” the importation of the cigarettes and if we had concluded that they retained a connection with the goods at the moment the excise duty point was passed, then all must be in the same position on the question of “evasion”. No contrary argument was addressed to us on behalf of individual appellants. Conclusions on the “pecuniary advantage” point 96. In the light of our analysis, we have concluded that the judge was not correct to conclude that all the appellants had obtained a “ pecuniary advantage ” within section 76(5) of POCA and, therefore, a “ benefit” within section 76(4). We emphasise that, unlike the judge, we had the benefit of fuller argument and we have had the benefit of the analysis of more recent case law. But it must follow that none of the appellants satisfy the conditions needed to fall within section 75(2)(c). The judge was therefore not correct to conclude that the appellants had a “ criminal lifestyle” for the purposes of section 6(4) of POCA. 97. It must also follow from our conclusions that none of the appellants has obtained any “ benefit” from his particular criminal conduct in relation to the conspiracy fraudulently to evade the duty chargeable on the counterfeit cigarettes, for the purposes of section 6(4) (c) of POCA. Overall Conclusions 98. Because we have concluded that none of the appellants falls within section 75(2)(c) and therefore none has a “criminal lifestyle”, Judge Atherton was wrong to determine the appellants “ benefit” on the basis of “ general criminal conduct” pursuant to section 6(4)(b) of POCA. Furthermore, as we have concluded that none of the appellants was liable to pay the duty on the cigarettes, therefore none could have evaded that liability and so none have obtained a “ pecuniary advantage” in relation to that duty. Therefore, the judge’s conclusions on the appellants’ “benefit” based upon that supposed “ pecuniary advantage” concerning that “ particular criminal conduct” cannot be maintained. 99. Accordingly, these appeals must all be allowed and the confiscation orders imposed by HHJ Atherton must be set aside. Postscript 100. Since handing down a draft of this judgment, the Crown has submitted, in writing, that it should be entitled to obtain a deprivation order, pursuant to section 143(1) of the Powers of the Criminal Courts (Sentencing) Act 2000, (“PCCSA”) in relation to the £15,000 cash that was seized when Mallinson and Sohi were arrested on 13 September 2004. In the confiscation hearing before HHJ Atherton, that sum plus the interest that had accrued on it was treated as an asset of Mallinson. The Crown now submits that if there is to be no confiscation order against Mallinson, then it is entitled to obtain a deprivation order in relation to the principal sum of £15,000 and accrued interest. 101. Section 143(1) and (5) of the PCCSA provide: “ Where a person is convicted of an offence and the court by or before which he is convicted is satisfied that any property which has been lawfully seized from him, or which was in his possession or under his control at the time when he was apprehended for the offence… (a) has been used for the purpose of committing, or facilitating the commission of any offence, or (b) was intended by him to be used for that purpose, The court may (subject to subsection (5) below) make an order under this section in respect of that property. …….. (5) In considering whether to make an order under this section in respect of any property, a court shall have regard – (a) to the value of the property; and (b) the likely financial and other effects on the offender of the making of the order (taken together with any other order that the court contemplates making)”. 102. The Crown submits that its case in relation to the £15,000 cash has always been that it was intended to be handed over to Sohi by Mallinson in return for the bill of lading. Therefore, it is said, the cash was intended by Mallinson to be used for the purpose of facilitating the commission of the offence of the conspiracy and that the cash was both lawfully seized from him and was in his possession and under his control at the time when he was apprehended. 103. The cash was placed in an interest-bearing account. When the final confiscation order against Mallinson was made he signed a form consenting to the sum of £16,244,29 and any accrued interest being paid over “in respect of the confiscation order against me”. The Crown submits that, although it was inappropriate at the time of the confiscation order of HHJ Atherton for there to be a deprivation order in respect of this cash, if the confiscation order against Mallinson is to be quashed, this court should now make a deprivation order, because the Crown Court would have been invited to make one if it had not made the confiscation order. 104. We are not prepared to consider this application, which is raised at this stage for the first time and could involve some difficult technical issues concerning sections 13 – 15 of POCA and section 11(3A) of the Criminal Appeals Act 1968 as amended. There were no findings of fact by the judge below that Mallinson intended to use the £15,000 to “purchase” the bill of lading or that it was otherwise to be used for the purpose of committing or facilitating the commission of the conspiracy charged or any other offence. This court cannot find facts and we are not prepared to infer them.

2011_05_06-2723.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/1093/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/1093

292caaa4078a0ba380bfa6d96dc43fc6c81548a3277bd9c78bdd239d75910883

[2009] EWCA Crim 311

EWCA_Crim_311

2009-02-18

crown_court

No: 2008/5938/A7 2008/6242/A7 2008/6231/A7 Neutral Citation Number: [2009] EWCA Crim 311 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 18 February 2009 B e f o r e : LORD JUSTICE THOMAS MR JUSTICE BLAKE MR JUSTICE BURNETT - - - - - - - - - - - - - - - - R E G I N A v RORY BOOKER TYE HUNTER GAVIN STANNARD - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications

No: 2008/5938/A7 2008/6242/A7 2008/6231/A7 Neutral Citation Number: [2009] EWCA Crim 311 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 18 February 2009 B e f o r e : LORD JUSTICE THOMAS MR JUSTICE BLAKE MR JUSTICE BURNETT - - - - - - - - - - - - - - - - R E G I N A v RORY BOOKER TYE HUNTER GAVIN STANNARD - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - Mr P Genney appeared on behalf of Booker Mr I Groom appeared on behalf of Hunter Mr C Lowe appeared on behalf of Stannard - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE BLAKE: On 16th October 2008 at the Grimsby Crown Court, His Honour Judge Moore sentenced these three appellants to the following terms. The appellant Booker on his plea of guilty to burglary was sentenced to four years' imprisonment. The appellants Hunter and Stannard offered pleas to handling stolen goods that were acceptable to the Crown in lieu of burglary and they were both sentenced to 30 months' imprisonment. Times spent on remand were ordered to count towards sentence. For completeness it should be mentioned that the appellant Hunter was in breach of an 18 month community order for taking a vehicle without consent. That order was revoked and no separate penalty was imposed. All the appellants appeal to this court on the basis that the starting point must have been too high in respect of the sentence for Booker; four years on a plea suggests that the learned judge had six years in mind and the handling stolen goods sentences were equally too high in terms of the relationship to the sentence imposed upon Booker. 2. Dealing with the burglary itself, this was a day-time burglary of a dwelling-house, unoccupied at the time, where goods of some £1,100 were taken and it seems that there was damage to the property in the level of some £500. Other than that there was no particular feature that aggravated it beyond the understandable distress and concern that any burglary of a dwelling-house would cause to an owner occupier. The goods stolen were found in the possession of the other two appellants and it is on that basis that their plea to handling proceeded. 3. The appellant Booker, who was 25 at the date of sentence, had substantial previous convictions but the sentencing problem that the learned judge faced was as follows. On 16th September 2004 at the Great Grimsby Crown Court for a variety of offences of robbery, aggravated vehicle taking, being carried in a motor vehicle taken without consent, another count of aggravated vehicle taking and one separate occasion of wounding with intent to do grievous bodily harm and finally for attempted robbery, the appellant was sentenced to a total of six years in a young offender institution, the sentence being made up of three years plus 18 months consecutive plus 18 months consecutive. By reason of the burglary that he had committed on release from licence he was in breach of those licence conditions and he was recalled. He had in fact at the time of sentence another 20 months to serve in respect of the breach of licence. That would be time that he would serve to the end and therefore effectively if a further determinate sentence was to be imposed it would make no difference to the custodial term unless it was a custodial term of more than 40 months, since he would serve half of the determinate term before being released on licence. 4. It is accepted before us that the learned judge had no power to make any sentence on the burglary consecutive to the period that he had to serve for breach of his licence condition, but it is submitted that that does not justify imposing a sentence that is longer than otherwise would be the case for the burglary. We are grateful for the submissions advanced but we cannot accept them. As Parliament has made it plain that the criminality has to be reflected in a single sentence imposed after the recall to licence and that sentence cannot be made consecutive, as might otherwise have been the case, then in order for any additional punishment to be imposed for a burglary then a longer than normal sentence within the maximum range of course has to be imposed. That is what the judge explained he was doing and that is what he did, with the effect that for the burglary before he is released on licence again this appellant will only in fact serve an extra four months. Four years' imprisonment gives a release on licence of 24 months; he is already serving 20 months for the breach of his previous licence and so that is why the period of four months is calculated. In all the circumstances of his very serious offending and the fact that the return to licence was because of the breach of his licence, and not a substantive sentence for the burglary itself, we conclude that the judge was entitled to take the course that he did and this application does not succeed. 5. Turning then to the appellants Hunter and Stannard, they also have substantial records but the problem of return to prison on licence did not arise in their case. We would accept the submission that on pleas of guilty to handling sentences of two-and-a-half years would be too high and the sentence imposed upon the appellant Booker has been explained in the remarks that the court has just made. Therefore the judge had to think again in terms of the total sentence that should be imposed for handling. In our judgment the sentence of two-and-a-half years was too long and we propose to quash those sentences and impose in their stead sentences of 18 months' imprisonment. The periods spent in custody on remand will count towards that sentence and to this extent their appeals are allowed.

2009_02_18-1824.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/311/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/311

a589904fb8a8b94ba565899fa7fea6bffe971aa6de5dc35573e417bb2c3be443

[2007] EWCA Crim 2332

EWCA_Crim_2332

2007-10-16

supreme_court

Neutral Citation Number: [2007] EWCA Crim 2332 Case No: 2006/05414/C1(1) 2007/03229/D4(2) IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT CROYDON Mr Recorder King (1) ON APPEAL FROM THE CROWN COURT AT CROYDON His Honour Judge Tanzar (2) Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/10/2007 Before : THE PRESIDENT OF THE QUEEN'S BENCH DIVISION MR JUSTICE ELIAS and MR JUSTICE GRIFFITH WILLIAMS - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2007] EWCA Crim 2332 Case No: 2006/05414/C1(1) 2007/03229/D4(2) IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT CROYDON Mr Recorder King (1) ON APPEAL FROM THE CROWN COURT AT CROYDON His Honour Judge Tanzar (2) Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/10/2007 Before : THE PRESIDENT OF THE QUEEN'S BENCH DIVISION MR JUSTICE ELIAS and MR JUSTICE GRIFFITH WILLIAMS - - - - - - - - - - - - - - - - - - - - - Between : R - v - Farida Said Mohammed (1) R -v- Abdullah Mohamed Osman (2) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Miss Fiona Rutherford (instructed by Tosswills ) for the Appellant ( Mohammed) (1) Daniel Bunting (instructed by Wilson & Co ) for the Appellant ( Osman) (2) Alex Chalk (Instructed by CPS ) for the Crown in both appeals Hearing date: 11 th July 2007 - - - - - - - - - - - - - - - - - - - - - JUDGMENT President of the Queen's Bench Division: 1. These appeals against conviction, heard consecutively, raise interesting questions about the offence created by section 2(1) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (the 2004 Act), that is, failing to produce at an asylum interview an immigration document that is in force and that satisfactorily establishes the identity, nationality or citizenship of the applicant. 2. On 21 July 2005 in the Crown Court at Croydon, before Mr Recorder King and a jury, Farida Said Mohammed was convicted of this offence. She was sentenced to four months imprisonment, reduced on appeal to one month imprisonment. 3. Leave to appeal against conviction was referred to the full court and granted on 15 th March 2007. The Registrar of Criminal Appeals invited the Secretary of State for the Home Department to attend the appeal and, if he wished, to make representations. The invitation was not accepted. 4. On 18 August 2005 in the Crown Court at Croydon, before His Honour Judge Tanzer and a jury, Abdullah Osman was convicted of an identical offence. He was sentenced to nine months imprisonment and recommended for deportation. An application for leave to appeal against conviction was abandoned. An appeal against he recommendation for deportation was dismissed on 15 January 2007. Following a deportation order made on 25 August 2006, by a decision promulgated on 27 May 2007, the Asylum and Immigration Tribunal allowed an appeal against this determination on asylum, humanitarian and human rights grounds. The Criminal Cases Review Commission referred the conviction to this court on 18 June 2007. Farida Said Mohammed – The Facts 5. On 5 April 2005 the appellant, then heavily pregnant, arrived in the United Kingdom. She presented herself to the Asylum Screening Unit at Lunar House in Croydon. At her screening interview she informed a member of the immigration staff that she was a Somali national, born on 8 September 1979. She was asked if she could produce her passport or the travel document she had used to enter the United Kingdom. She replied, “no, agent took passport”. She was also asked if she could produce any such document within three days. She replied, “no”. 6. In interview, conducted with the assistance of a solicitor, and with an interpreter, she stated that she had arrived in the United Kingdom early that morning but was unable to remember her port of entry. She had travelled with an agent. She had never owned a national passport because “nobody had to help me to, you know, get a passport”; so she herself had never made an application for a passport or appropriate documents. The “passport” she had used to enter was given to her by the agent after she had disembarked from the aeroplane that morning. She handed the “passport” to the immigration officer, and once through immigration control, handed it back to the agent. She was afraid not to follow his instructions. 7. At trial the appellant gave evidence that she left Somalia with her lover on 21 March 2005. She came from a small village which had no electricity. She had never been to school. She had been the victim of rape on two occasions. She decided to leave. She and her lover took a boat to Kenya. She stayed with him until 4 April 2005. Her lover paid for everything, including the passport. Through him she met an agent, who she named. He arranged her journey to the United Kingdom where she arrived on 5 April. She did not organise any of her travel documents herself. She had not applied in her own right for a passport in her name as a national of Somalia, and she had not applied for a visa. Everything was arranged by her agent. He was in possession of the passport, and the first time she saw it was “when we were in the UK after we had left the aircraft. It was near to where the plane had landed…he gave it to me to show the investigation officer”. He opened the passport and gave it to her so that she could show it to immigration officials. It was open at the page with her photograph and her name, Said Mohammed, but not Farida, on it. After they went through immigration, the agent took back the passport. She asked him to return it to her but he asserted that the passport was his. He had earlier told her that it belonged to her, but she gave it back to the agent because she did not know the regulations in this country. The agent took her straight to Lunar House. She came to know about the possibility of seeking asylum after she had arrived in the United Kingdom. She did not know what help she could get. She claimed asylum. She did not know where the agent went. 8. In cross examination she denied getting rid of the passport to delay her asylum application. If she had the power she would have taken the passport back from the agent. In answer to a question from the judge, she said that the agent had not done anything to make her frightened, rather she was afraid of the situation in Somalia. Abdullah Mohamed Osman – The Facts 9. This appellant presented himself to the Asylum Screening Unit at Lunar House, Croydon on 4 November 2004. He made an application for asylum. He claimed to be a Somali national, born on 2 October 1972. During the screening process it was established that he did not have any immigration documents. He was unable to produce a passport, or any document used to travel to the United Kingdom, and said that he would not be able to do so within three days. He explained that the agent who he met in Kenya was a foreign black man, who may have been Eritrean or Ethiopian, to whom he was introduced by a broker. He used a “forged British passport” to enter the United Kingdom via Heathrow, and had travelled here via Kenya and The Netherlands. When he was asked how the document was taken from him, he said “I gave him back the passport, because he had told me that when you arrive, I will take the passport”. He handed the document back “outside Heathrow Airport”. Later that day he was arrested. 10. In interview under caution, assisted by a solicitor, in the presence of an interpreter, he said that he was unable to produce any immigration documents. He had never owned his own passport because he had never travelled before. He travelled to the United Kingdom with the help of an agent, arriving on 2 November. He used a false British passport with a different name and date of birth but similar photograph. He returned it to the agent after passing though immigration control. 11. It was not possible to confirm whether or not the appellant used the flight he claims to have used, or to establish his name, date of birth, nationality, date or means of entry, travel route or indeed whether he had applied for a visa. It was admitted on behalf of the appellant that he was indeed unable to produce any genuine or false immigration documents at his immigration interview. 12. The appellant’s evidence at trial was that he was a native of Somalia, born in October 1972. In the troubles his family were vulnerable, and targeted. His father was kidnapped by armed militia men. A ransom was demanded, which was not paid. The family home was broken into. His sister was sexually assaulted. When their mother tried to intervene, she was killed. His sister was then sexually assaulted and killed. His father was murdered. He was the next intended victim. 13. He left the city, travelling overland to Kenya. He stayed there for three months before making his way to the United Kingdom. He could not get any documents in Somalia, because there were no authorities to issue them. He paid an agent, while in Kenya, who provided him with a passport. The agent promised to take him to a country where he would be safe. He was unaware which country, and the agent also said that the passport would be “removed” once he had arrived at his destination. He did not say why, and the appellant did not ask. He left Kenya on 1 November 2004. The agent went on the flight with him. He was later told that they had arrived at Heathrow. He did not even know that he was being brought to the United Kingdom. Once through immigration control he returned the passport to the agent on the basis that the passport did not belong to him, “so I returned it to its owner and he took it off me”. At the airport he did not seek asylum, because he did not know what was to happen to him, and in particular whether he would be left by the agent, or continue on elsewhere. The agent told him to look for other Somalis. He found some of them at the airport. They assisted him. 14. He explained in cross-examination how he sat next to the agent on the flight, but accepted the instruction that he should “stick” to him, but not ask anything. He left Heathrow airport with the agent. They passed through a desk where he had to show his passport. At that stage nothing was said. Afterwards the agent told him that he was now in a safe country and that he should return the passport, which he did, because it did not belong to him. That was the last he saw of the agent. He agreed that he could simply have kept the passport and that he was not threatened. The agent simply took it off him and walked away. He accepted that at Lunar House he attended without any immigration documents, passport or other form of identification. It was an admitted fact that “there was no claim by Mr Osman that he travelled to the United Kingdom without an immigration document at any stage of the journey”. Section 2 of the 2004 Act 15. The feature common to both appeals is that when they sought asylum the appellants were not in possession of any genuine, or indeed any document, which established their identity, nationality or citizenship. They entered the United Kingdom using false passports. Thereafter neither retained the false passport, or any other immigration document, and they produced none at their asylum interview The offence of which the appellants were convicted is created by section 2(1) of the 2004 Act. This provides: “(1) A person commits an offence if at a leave or asylum interview he does not have with him an immigration document which – (a) is in force, and (b) satisfactorily establishes his identity and nationality or citizenship.” The offence is clearly defined in unambiguous language. However it is not absolute. To begin with, a statutory period of grace, permitting late production of appropriate documentation in defined circumstances is provided by s. 2(3). Thereafter when the facts which give rise to the offence under s. 2(1) are established, specific defences are expressly provided. It is this aspect of the legislative language and structure which gives rise to both appeals. 16. Section 2(4) provides: “It is a defence for a person charged with an offence under subsection (1)— ………… (c) To prove that he has a reasonable excuse for not being in possession of a document of the kind specified in subsection (1), (d) To produce a false immigration document and to prove that he used that document as an immigration document for all purposes in connection with his journey to the United Kingdom, or (e) To prove that he travelled to the United Kingdom without, at any stage since he set out on the journey, having possession of an immigration document. (6) Where the charge for an offence under subsection (1) or (2) relates to an interview which takes place after the defendant has entered the United Kingdom – (a) subsection (4)(c) and (5)(c) shall not apply, but (b) it is a defence for the defendant to prove that he has a reasonable excuse for not providing a document in accordance with subsection (3). (7) For the purposes of subsections (4) to (6) – (a) the fact that a document was deliberately destroyed or disposed of is not a reasonable excuse for not being in possession of it or for not providing it in accordance with subsection (3), unless it is shown that the destruction or disposal was – (i) for a reasonable cause, or (ii) beyond the control of the person charged with the offence, and (b) in paragraph (a)(i) “reasonable cause” does not include the purpose of – (i) delaying the handling or resolution of a claim or application or the taking of a decision, (ii) increasing the chances of success of a claim or application, or (iii) complying with instructions or advice given by a person who offers advice about, or facilitates, immigration into the United Kingdom, unless in the circumstances of the case it is unreasonable to expect non-compliance with the instructions or advice.” 17. Sub-s. 12 explains the meaning of “immigration document” for the purposes of the section and sub-s. 13 does not define, but is descriptive of, the circumstances in which an immigration document will be treated as a false immigration document. “(12) In this section – ….. ‘immigration document’ means - (a) a passport, and (b) a document which relates to a national of a State other than the United Kingdom and which is designed to serve the same purpose as a passport, and ‘leave or asylum interview’ means an interview with an immigration officer or an official of the Secretary of State at which a person – … (a) seeks leave to enter or remain in the United Kingdom, or (b) claims that to remove him from or require him to leave the United Kingdom would breach the United Kingdom’s obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 (c42) as being incompatible with his Convention rights. (13) For the purposes of this section – (a) a document which purports to be, or is designed to look like, an immigration document, is a false immigration document, and (b) an immigration document is a false immigration document if and in so far as it is used – (i) outside the period for which it is expressed to be valid, (ii) contrary to provision for its use made by the person issuing it, or (iii) by or in respect of a person other than the person to or for whom it was issued.” Discussion 18. This statutory framework represents the current stage in the process by which the United Kingdom gives effect to the obligations created by Article 31(1) of the 1951 Convention and Protocols relating to the Status of Refugees. This reads: “The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence ”. 19. In R v Uxbridge Magistrates’ Court, ex parte Adimi [2001] QB667 , the broad purpose of Article 31 was addressed by Simon Brown LJ. He said “…self-evidently it was to provide immunity for genuine refugees whose quest for asylum reasonably involved them in breaching the law…that Article 31 extends not merely to those ultimately accorded refugee status but also to those claiming asylum in good faith (presumptive refugees) is not in doubt”. In the light of the observations of the Divisional Court in Adimi , section 31 of the Immigration and Asylum Act 1999 created a statutory defence to some of the offences which then applied to the possession or use of false documents. Thereafter, in R (Pepushi) The Crown Prosecution Service [2004] EWHC 798 (Admin) the Divisional Court reached the clear conclusion: “….that the scope of the defence available to the claimant is that set out in section 31 and not in Article 31; Parliament has decided to give effect to the international obligations of the UK in the narrower way, but that is, on the authorities that are binding on us, the law which must be applied in the UK.” 20. Section 31 of the 1999 Act was followed by section 2 of the 2004 Act. In R v Navabi and Embaye [2005] EWCA Crim 2865 Kennedy LJ observed that in section 2: “Parliament sought to address directly the problem of those seeking asylum or leave to enter without documentation to establish their identity nationality or citizenship. It was recognised that some of those seeking assistance may never have had documentation, or may have only had false documentation, but even false documentation might assist immigration authorities, and the aim was at least in part to prevent wilful disposal or destruction of documents which ought to be produced, and which would assist the immigration authorities if they were produced, so the section created a new offence ”. These observations are plainly consistent with and derived from the Home Office guidance that: “The offence is intended to discourage persons from destroying or disposing of their immigration documents en route to the United Kingdom. In particular to discourage them from doing so in order to conceal their identity, age or nationality in an attempt to increase the chances of success of a claim or application or to make consideration of their claim or application more difficult and/or to thwart removal… ” Finally we note that, in effect for the reasons identified by Simon Brown LJ in Adimi, the court accepted that the offence created by section 2 of the 2004 Act fell within the ambit of Article 31, and indeed that Article 31 was to be “generously interpreted”. 21. The legislation is therefore directed to the exercise of proper control over those who seek to enter the United Kingdom. While we, in the United Kingdom, can obtain our passports without significant difficulty or delay, this is not the universal experience. In other countries, living conditions can be intolerable, the fear and danger of persecution rife, and passports or similar documents not available in our accustomed way. Indeed the very act of seeking to apply for a passport may bring with it the wrath of the authorities. It is therefore unsurprising that refugees sometimes arrive in this country using false documents or without any documents at all. A reasonable compromise has to be maintained between necessary control over entry, with arrangements which reflect the stark realities faced by refugees whose claims are genuine, encompassed in a structure which addresses the equal certainty that some of those claiming to be refugees are bogus. For these purposes, each and every document used to gain entry, whether genuine or false, may provide valuable information to the authorities responsible for border controls, not least in the context of bogus claims, because combined with other information in the possession of the authorities, they may at least reveal the applicant’s true country of origin. The legislation therefore provides not only that those who enter the United Kingdom should normally do so using genuine and current immigration documents, but that each and every document used to gain entry, whether genuine or false, should be retained and produced. 22. With these considerations in mind we must return to the statutory defences themselves. Reading sub-ss 4(c)-(e) together with sub-s. 6, the individual who brings himself or herself within one or more of the defined circumstances is provided with a defence. These are: i) that he has a reasonable excuse for not producing a genuine document; (s2(4)(c)) ii) that he travelled to the United Kingdom without at any stage being in possession of any immigration document; (s2(4)(e)) iii) that he used a false document as an immigration document for all purposes in connection with his journey to the United Kingdom, and produces it. (s2(4)(d)) 23. Sub-s. 7 qualifies or explains the ambit of the statutory defences provided by sections 4 and 6, with which it is inextricably linked. It identifies specific circumstances in which they will not apply, when the purported excuse for not being in possession of or providing the requisite document is in effect deemed to be unreasonable. Thus, it cannot be “reasonable cause” for the applicant’s inability to provide the document, or failure to be in possession of it, that his purpose was to delay the resolution of the claim to asylum, or to increase the chances of a successful application, or that he complied with the instructions or advice given by an individual offering advice about or facilitating immigration into the United Kingdom, although this in turn is subject to reasonable “non-compliance”. These limitations underline the importance in the overall statutory structure which is attached to the preservation and production of every available document. 24. Before examining the defence provided by sub-s. 4(c) we note that the position of the immigrant without any documents, and the individual who has entered using a false document is expressly distinguished in sub-ss 4(e) and (d) respectively. The former cannot realistically be expected to produce any immigration document; he has never had one. However to come within the defence which appears to apply to his case, the latter, not unreasonably, and in accordance with the legislative purpose, is required to do so. This approach to sub-ss 4(d) and (e) and the distinction between them seems clear enough. However sub-s. 4(c) provides a defence for the applicant who has a “reasonable excuse for not being in possession of a document” of the kind required by s. 2(1) – that is, a genuine document – and is mirrored in relation to a post-entry asylum interview by sub-s. 6(b). The wide ambit of this subsection was not fully appreciated until the decision of the Divisional Court presided over by Lord Phillips, CJ, in Thet v Director of Public Prosecutions [2006] EWHC 2701 (Admin) . 25. Thet entered the United Kingdom using a false passport. At the hearing he satisfied the District Judge that it was impossible for him to obtain a passport in his country of origin. The District Judge concluded that section 2(3) and 6(b) covered only a genuine immigration document. The defences did not apply where no genuine document had ever existed. He specified two questions for the opinion of the Divisional Court: “(i) is the defence under s2(6)(b) available to a defendant in relation to a genuine document, as defined by s2(1) where no such document exists? (ii) if so, can s2(6)(b) provide a defence in relation to a genuine document where the accused has travelled to and entered the United Kingdom using a false document which is not provided in accordance with s2(3) and has no reasonable excuse for not having done so? ” 26. The appeal was allowed. The Divisional Court concluded that although Thet had failed to produce the false passport used on entry, he nevertheless had established a reasonable excuse for not providing a genuine document. It was “impossible for him to obtain a passport in his country of origin”, and “he clearly had a reasonable excuse for not providing an immigration document, that is a genuine document, within three days of his asylum interview. In these circumstances he had a valid defence to the charge”. This language is as relevant to sub-s. 4(c) as to sub-s. 6(b), and the Crown before us accepted that the defence under sub-s. 4(c) can extend to the individual who enters on the basis of a false document and who, with a reasonable excuse, does not produce it. That concession however did not apply to any purported defence under sub-s. 4(d). The distinction is not without some practical importance, and required us to address a further observation at paragraph 26 in Thet to which we were told by Mr Chalk, who appeared for the respondent in the Divisional Court, specific argument was not directed. 27. Lord Phillips CJ added that sub-s. 4(e) also provided a defence if it were proved “that from beginning to end of the journey he has not possessed a valid immigration document and on its face would appear to provide that defence even if he had entered on false documents which he has subsequently disposed or destroyed”. As the judgment makes clear, Lord Phillips was not seeking to express any final or concluded view about the ambit of sub-s. 4(e). The Appeals 28. These appeals against conviction largely echo the successful appeal to the Divisional Court by Thet. Farida Mohamed’s grounds of appeal assert that the directions to the jury involved a misinterpretation of both section 2(6) (b), and by implication section 2(4)(e). The same misdirections are relied in by Osman. The distinction between the two grounds is readily demonstrated. If the appeals are successful on the basis of the defence in sub-s. 4(e) then they are bound to succeed. There would be no issue to be left to the jury. By contrast, if the appellants cannot bring themselves within sub-s. 4(e) and have to rely on sub-s. 4(c) alone, then the separate question whether they had a reasonable excuse for not being in possession of genuine documents would arise. The appeal under s 2(4)(c) 29. We need not repeat the text of the summings up. It is accepted in Osman’s appeal by Mr Chalk, after careful analysis of the relevant provisions, that in the light of the decision in Thet , the jury was not correctly directed about the impact of section 2(6)(b) in the context of a possible statutory defence. The same concession was not made in relation to the appeal by Mohamed, on the basis of the evidence actually given at trial. The argument on the facts was that this particular appellant’s reasons for not having obtained a genuine passport in Somalia did not constitute explanations capable of amounting to a “reasonable excuse”. Our views can be briefly expressed. We disagree with Mr Chalk. As a matter of fact it would have been open to the jury, properly directed, to have found that this appellant’s excuse was reasonable. For both appellants, this ground of appeal succeeds. 30. These conclusions do not imply any criticism of either trial judge. Until the legal principles have been clarified in Thet, where section 2 was described by the Lord Chief Justice as both “ill-drafted” and “difficult”, their approach to the directions of law would have appeared logical and consistent. The appeal under s 2(4) (e) 31. As we have already indicated, the significance of this ground is that if the observation in paragraph 26 of the judgment in Thet is correct, irrespective whether the appellants could bring themselves within section 2(4)(c), both would have a complete defence. 32. Mr Chalk submitted, with appropriate courtesy, that the obiter observations about sub-s. 4(e) in Thet should not be followed. We had the advantage of detailed submissions on the point. 33. Without depriving them of their cogency, the conflicting arguments can be simply summarised. For the appellant it is pointed out that sub-s. 12 defines an immigration document as a passport or, for non UK nationals, a document, however described, designed to serve the same purpose. This, it is submitted, plainly means a genuine and valid passport. Insofar as there may be any ambiguity, as this is a criminal statute, it should be resolved in favour of the appellant. If the definition in sub-s. 12 is applied to sub-s. 4(e), whenever the defendant begins his journey to the United Kingdom without a genuine document, he is provided with a defence in all circumstances. The failure of the appellants to keep and produce the false documents used to effect entry did not deprive them of this defence. They fell within the ambit of sub-s. 4(e) simply because they were never in possession of genuine documents. Although it was proved that they entered on the basis of false documents which were not presented at interview, or within the period of grace, the defence was available, and should have been left to the jury. 34. The contention for the Crown is that this construction would wholly defeat the purpose of the legislation. Although, taken in isolation, the definition of “immigration” document in sub-s. 12 would apply more naturally to a genuine rather than a false document, it is contended that an alternative construction of the definition is to treat a false immigration document as one “designed to serve the same purpose as a passport”. More significantly, however, the Crown suggests that the construction adopted in Thet , and now advanced on behalf of the appellants, would in practice render sub-s. 4(d) a dead letter. Anyone who travels on a false document is not travelling with a genuine one. If the appellants are right, it would be open to them to rely on sub-s. 4(e) even if they travelled on a false document which they destroyed or refused to produce. This would frustrate the purpose of the legislation. 35. It would lead to a further curiosity. When two individuals travel together, one may have a genuine passport, the other a false one. If after entry into the United Kingdom, and for no good reason, they both give their passports to an agent in accordance with his instructions, the holder of the genuine passport would be unable to advance a reasonable excuse falling within sub-s. 4(c), but equally, he could not rely on sub-s. 4(e) since he started out with a genuine passport. By contrast, the holder of the false passport or immigration document, although lacking any reasonable excuse for having disposed of his false passport, could still rely on sub-s. 4(e) precisely because he started out without any genuine document at all. 36. We are persuaded that the Crown’s fundamental premise is correct. The contention advanced by the appellants would mean that the only defendants who would be criminally liable under s. 2(1) would be those who started off in possession of genuine documents and thereafter, without reasonable excuse, parted with them, whereas those who entered on the basis of false documents, and without good reason destroyed or disposed of them, would be provided with a defence. It seems improbable that the legislative structure providing for defences in the limited circumstances specified within a statutory framework should achieve such an odd result. If it did, although the defence provided by sub-s. 4(d) is categoric and self-contained, the distinct defences created by the structure of sub-s. 4(c)-(e) would be elided, Accordingly, consistent with the legislative purpose, a defendant seeking to avoid criminal liability under s. 2(1) by reliance on the defence in sub-s. 4(d) is required to produce the false documents relied on by him. The same defendant, seeking to rely on sub-s. 4(c), must show that he has a reasonable excuse (as defined and limited by sub-s. 7) for not being in possession of a genuine document, and although, in accordance with Thet , this defence extends to the defendant who enters using a false document, it nevertheless remains subject to the same sub-s. 7 limitations. In these circumstances we are unable to agree with a construction of sub-s. 4(e) which would effectively strike out the express provision in sub-s. 4(d) and deprive it of any meaning, and simultaneously remove the limits on the defence in sub-s. 4(c) imposed by sub-s. 7. On this analysis, the combination of statutory defences acknowledges the plight of those who cannot reasonably obtain genuine immigration documents and who enter without any documents at all or relying on false ones, while at the same time providing some measure of control over those who enter using false documents by requiring them either to produce them (in accordance with s. 2(4)(d)) or to demonstrate a reasonable excuse for their non-production which is not otherwise excluded by sub-s. 7 (sub-s. (4)(c)). 37. This conclusion is reinforced by a number of further considerations. The provisions in sub-s. 1(a) and (b) are superfluous. That view was expressed in Thet. However, unsurprisingly, s. 2 addresses both genuine and false documents. Sub-s. 13(b) supports our preferred construction, by providing that “an immigration document is a false immigration document” if certain conditions are satisfied. It is not identifying a false immigration document in contrast to a genuine one, but rather treating it as a sub-species of the species “immigration document”. Moreover, we agree with Mr Chalk that notwithstanding that the express purpose of sub-s. 4(d) is to require the immigrant to produce the false documents relied on by him to effect entry, he would still be provided with a defence under sub-s. 4(e) if he blatantly refused to hand over or deliberately destroyed or disposed of the documents. It is also difficult to see any logical basis for depriving someone of a defence who without reasonable excuse parts with possession of a genuine passport, while making one available to an individual who, in identical circumstances, chooses to part with possession of a false one. Conclusion 38. The appeal with respect to s 2(4)(e) fails. It provides no defence to these appellants. However the appeals will be allowed on the basis that the jury was not directed to consider whether each appellant’s excuse for failing to produce the false document used to gain entry to the United Kingdom may have been reasonable. At this late stage however, no useful purpose would be served in either case by an order for retrial.

2007_10_16-1244.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/2332/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/2332

e2eae6bf5a880c993ee31fb04811f695fd41eb910b390599df39d3147207b156

[2016] EWCA Crim 1817

EWCA_Crim_1817

2016-11-08

crown_court

No: 20163960 C4 Neutral Citation Number: [2016] EWCA Crim 1817 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday 8 November 2016 B e f o r e : LORD JUSTICE DAVIS MR JUSTICE GLOBE HIS HONOUR JUDGE TOPOLKSI QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - R E G I N A V TOMAS JUSKELIS - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph Notes of WordWave International Limited trading as DTI 165 Fleet Street London EC4

No: 20163960 C4 Neutral Citation Number: [2016] EWCA Crim 1817 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday 8 November 2016 B e f o r e : LORD JUSTICE DAVIS MR JUSTICE GLOBE HIS HONOUR JUDGE TOPOLKSI QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - R E G I N A V TOMAS JUSKELIS - - - - - - - - - - - - - - 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 B Eaton appeared on behalf of the Appellant Miss S Crane appeared on behalf of the Crown - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE DAVIS: Introduction 2. On 22nd July 2016 after a trial at the Crown Court at Blackfriars before a Recorder and a jury, the appellant was convicted of a count of inflicting grievous bodily harm, contrary to section 20 of the Offences Against the Person Act 1861 . He was acquitted on count 1 of the indictment which was a count of causing grievous bodily harm with intent. In due course he was sentenced by the Recorder to a term of 18 months' imprisonment. He appeals against his conviction by leave of the single judge. 3. The appeal raises as its central point - although other points are also raised - a question of whether the written statement of a witness was properly held by the trial judge to be admissible in evidence by an application of the facts of the case to the provisions of section 116(2) (c) and/or (d) of the Criminal Justice Act 2003 . Background facts 4. The background facts are these. The appellant is a Lithuanian national. In December 2015 he was remanded in custody for a driving offence and was placed in Her Majesty's Prison Pentonville. He was put in a cell with the complainant, a man called Narutavicius. He was on remand for an offence of causing grievous bodily harm, an offence for which Narutavicius was in fact subsequently convicted in January 2016 and sentenced to a term of 12 months' imprisonment. It appears that Narutavicius had, for no obvious reason, attacked an elderly man on the street causing him nasty injuries. He also was sentenced for two offences of criminal damage and one of assaulting a police officer. 5. As for the appellant, he himself was convicted in January 2016 of driving whilst disqualified. He was sentenced to nine weeks' imprisonment. Although the appellant has previous convictions for minor theft and drink related matters, he has no previous convictions for offences of violence. 6. At all events, the complainant and the appellant had shared a cell for a few days whilst in Pentonville Prison without trouble. However, at lunchtime on 31st December 2015 there was a serious incident. A prison officer was summoned by an alarm bell to the cell. When he looked in he noticed that the floor was covered in blood. The appellant was, according to the prison officer, standing calmly at the back of the cell. The complainant then "came tumbling out" (in the words of the prison officer) of the cell lavatory. The officer summoned more staff and the cell door was then opened. The complainant appeared to be in a bad way, as it was said. The appellant on the other hand was not observed to have any injuries. The complainant said to the prison officer that he had been assaulted in the cell but the complainant was not fit enough to be interviewed at the time. Subsequent agreed medical evidence showed the complainant to have had four facial fractures - a fractured eye socket, a fracture to each cheek and a fracture at the top of the mouth. 7. In due course, on 7th January 2016, the complainant made a statement. Amongst other things he described how it was that he had come to share the cell with the appellant and that he had initially been pleased as they were both fellow Lithuanians. According to the complainant, the appellant indicated that he was keen on kick boxing and regularly trained and practised whilst in the cell. The complainant said that the appellant appeared obsessed with shadow boxing and fighting of that kind. 8. The complainant was to say that on the date in question he was sitting down at the table eating lunch when all of a sudden the appellant said something aggressive towards him. The complainant said that he was puzzled by what the appellant was doing and continued to eat. He then said this in his statement: "The table I was at was facing the wall so I couldn't see what Tomas was doing but knew he was stood up behind me. I suddenly got punched in the side of the head by Tomas. I started to feel dizzy and Tomas punched me several more times very quickly. I think I must have passed out. I was trying to block the punches by holding my head in my hands, but I blacked out and fell on the floor. The next memory I have was waking up in the toilet near the corner. I was really scared and could tell I was seriously injured as I had lumps all over my head and I was bleeding a lot. I heard a prison officer at the door ... " The statement carried on to describe his memory of what thereafter happened. 9. It would not be right to say that the evidence of the complainant was the sole evidence available to the prosecution. There was also the evidence of the prison officer and the agreed medical evidence which of itself lent potentially very strong support to the prosecution case. Nevertheless, only the complainant and the appellant could have known what had happened inside the cell. Thus the evidence of the complainant, and his credibility and reliability, was central to the prosecution case. 10. The appellant was arrested on 4th February 2016, just as he was about to be released from prison after serving the relevant part of his own sentence. He was interviewed on that date. In interview he was to say that he had acted in self-defence. He stated that the complainant had mental health issues, was known to be violent and had been behaving strangely towards the appellant and had said things such as he suffered from paranoia and schizophrenia. He said that on the day in question the complainant had been argumentative and aggressive in the cell and then had attacked him with a plastic cutlery knife. The appellant had then sought to defend himself by punching the complainant once and then restraining him when he went to the floor, before trapping him in the lavatory cubicle. The appellant said that it was he who had pressed the alarm bell. He insisted that he had hit the complainant only once. He suggested, when the point was put to him, that the other injuries noted to the complainant may have occurred when the complainant fell to the floor or by striking cell fittings. The appellant was charged that day with a section 18 offence and was further remanded in custody. 11. What then happened was this. On 26th February 2016 the complainant was served with a notice of deportation to Lithuania. This was, it seems, not made known to the prosecution or the police at the time. Certainly no mention was made of that point at the plea and trial preparation hearing held at Blackfriars Crown Court on 4th March 2016, when the trial was fixed to start in the week commencing 18th July 2016. However, on 22nd March 2016 (that is to say, after the plea and trial preparation hearing) the complainant was deported to Lithuania. At all events, on 12th April 2016 the officer in the case was informed by the prison that the complainant had been deported. The defence was not informed of this however, although the Crown Prosecution Service was. 12. There was then an amount of email communication between the officer in the case and the Home Office. As we gather from Miss Crane, who appears for the Crown, it appears that by the end of May the Crown Prosecution Service was preparing a hearsay application with regard to the complainant's written statement. But no letter of notice of intention to make such an application was given to the defence until that was done by letter served on the defence on 1st July 2016. That letter enclosed an application notice dated 28th June 2016, together with witness statements of the complainant and of the officer in the case, DC De Asha, which was dated 8th June 2016. 13. In his statement of 8th June 2016 the officer in the case set out the background and noted the discussions he had had with representatives of the Home Office and the details he had been given about the deportation of Mr Narutavicius. The officer then said this: "When I interviewed Mr Narutavicius in HMP Pentonville he provided me with some contact details for him for when he was released. The first was a mobile number. I have rung this several times over the past couple of months. It appears to be inactive and continually goes straight to the voicemail system. I have left messages, but never had any response. Mr Narutavicius also provided me with a home address of a cousin, who resides in Enfield. I sent a letter to this address in mid-April but had no reply. I conducted some research into the address and it appears to be a house of multiple occupancy. I discovered a phone number for someone linked to the address and spoke to him on 8th June 2016. He gave his name as 'Alexandros' and said that he knew of Mr Narutavicius as he had lived in the property around a year or so ago. Alexandros said Narutavicius's cousin lived at the property and may have forwarding details for him. I was given a phone number for Mr Narutavicius's cousin. The phone claims that it cannot take incoming calls. I have sent a text message to the phone requesting that they call me. I then sent a further letter, addressed to his cousin ... on 8th June 2016." The Hearing below 14. It appears that the actual hearsay application notice was not in fact lodged with the court itself until the date of trial, that is to say 18th July 2016. Miss Crane has frankly told us that she herself was not aware of the position and had attended court assuming that Mr Narutavicius was still in prison and may be giving evidence from prison over a video link, which of course could not have been the case. In addition, a further statement was put in dated 18th July 2016 by DC De Asha setting out further details of the flight which had taken Mr Narutavicius back to Lithuania when he was deported. 15. It seems that nobody made any suggestion that there be at least a short adjournment to see if further enquiries could usefully be made. The matter proceeded to argument as to whether or not the proposed hearsay evidence in the form of the claimant's statement should be admitted. 16. In that context Mr Eaton, appearing then as he does now for the appellant, submitted to the Recorder that the application was made very much out of time and, as he submitted, was made much too late. Mr Eaton opposed the extension of any time to serve the application notice, saying the delay was unexplained and inexplicable. Mr Eaton in any event referred to the provisions of section 116(2) (c) and (d) which indeed was the statutory basis on which the Crown was seeking to admit this hearsay evidence. He argued that the requirements of the statute were simply not satisfied in this case. 17. There was a hearing at which DC De Asha gave oral evidence. We have not ourselves seen a transcript of his evidence. It appears that much of the cross-examination in fact related to what was said to be a further serious failure by the prosecution, notwithstanding repeated defence requests, to make full disclosure of the complainant's medical records, particularly those relating to his mental health history, or to have obtained from the complainant his consent in that regard. It was also put that far more steps should have been taken either to stop the complainant's deportation, pending the present trial, or at all events to ascertain his future whereabouts. Furthermore, no one had caused any actual visit to be made to the address in the United Kingdom which had been given. Nor had any enquiries been made, for example of the Lithuanian Consulate or some other relevant medium, to seek to ascertain the whereabouts of the complainant in Lithuania after his deportation. Such steps as had been taken were, overall, criticised as in effect cursory, superficial and inadequate. 18. One point that Mr Eaton had sought to argue was that the evidence was not even sufficient to show that the complainant had indeed been deported and was now in Lithuania. Mr Eaton has wisely not sought to pursue that point before us. It is now accepted that the Recorder was fully entitled to proceed on the footing that the complainant had indeed been deported. Discussion 19. The relevant, or potentially relevant, statutory provisions are to be found in section 114 and section 116 of the Criminal Justice Act 2003 . In the relevant respects, those provide: "114 Admissibility of hearsay evidence (1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if— (a) any provision of this Chapter or any other statutory provision makes it admissible (b) any rule of law preserved by section 118 makes it admissible (c) all parties to the proceedings agree to it being admissible, or (d) the court is satisfied that it is in the interests of justice for it to be admissible. (2) In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors (and to any others it considers relevant)— (a)how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case; (b)what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a); (c)how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole; (d)the circumstances in which the statement was made; (e)how reliable the maker of the statement appears to be; (f)how reliable the evidence of the making of the statement appears to be; (g)whether oral evidence of the matter stated can be given and, if not, why it cannot; (h)the amount of difficulty involved in challenging the statement; (i)the extent to which that difficulty would be likely to prejudice the party facing it. ... 116 Cases where a witness is unavailable (1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter 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— (a) that the relevant person is dead; (b) that the relevant person is unfit to be a witness because of his bodily or mental condition; (c) that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance; (d) that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken; (e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence." 20. The most convenient starting point in cases of the present kind is now the authority of Riat [2013] 1 Cr.App.R 2. That reviews the relevant previous authorities and sets out the relevant principles to be applied in a structured way. No actual reference, however, is made by the Recorder in his lengthy ruling to the case of Riat . In his ruling the Recorder at all events set out the background facts and duly referred to the provisions of section 114 and section 116 . Amongst other things, he found as a fact, as we have indicated, that the complainant had indeed been deported. That being so, the focus of the enquiry was perhaps more obviously to be directed at section 116(2) (c) than section 116(2) (d). Be that as it may, it is to be emphasised that the application notice issued by the Crown placed reliance solely on those two subsections. No reliance was placed on an alternative basis, on section 114(1) (d). 21. The Recorder ruled that an extension of time for serving the notice was appropriately granted under the provisions of Rule 2015 of the Criminal Procedure Rules notwithstanding the non compliance with Rule 20.2 The Recorder shortly stated: "In my judgment and under my discretion there is not such unfairness caused by the late notice to such an extent that the defendant cannot have a fair trial." Although Mr Eaton remains critical of that ruling, saying that the delay had not been effectively explained, he acknowledged that the Recorder did have a discretion in this regard. 22. Having so indicated, the Recorder then went on, perhaps rather puzzlingly, to "start with" section 114(2) of the 2003 Act . That is puzzling just because the application notice was based solely on section 116(2) (c) and/or (d). At all events, the Recorder made an appraisal of the matters set out in section 114(2) and concluded that the defence was in a position to challenge the written statement of the complainant. Having done that, the Recorder then turned to the provisions of section 116(2) (c) and (d), although for some reason he linked that at that stage with reference also to section 78 of the Police and Criminal Evidence Act 1984 . 23. The Recorder then reviewed DC De Asha's evidence about his discussions with the Home Office and attempted contact with the various numbers which had been given to him. Among other things the Recorder said this: "In cross examination he accepted that he had not been to the address. I think he said that he phone was a multiple address. So the result of that is that he has not been able to locate the witness. In addition to that and a matter which causes me concern in terms of this judgment, is what has happened in terms of the officer's attempt to find out from the Lithuanian consulate or embassy, Lithuania being part of the European Union what information either from the consulate in this country or in Lithuania where the witness whether they have any information as to where the witness is. Indeed I asked DC Daisha about that this morning and the answer from the officer was that he made no enquiry with the consulate here or in Lithuania. It did not occur to him. It was not a situation he had before nor he said 'did I have any guidance.'" 24. The Recorder then referred to Mr Eaton's submission that the defence could not do justice to the defence case in view of the absence of the complainant for oral examination, coupled also with the complaint about the lack of proper medical disclosure being given. 25. The Recorder then came to what he identified as the nub of his ruling towards the end of his decision. He said this: "So I come to my ruling. In terms of the sections which I have been through, I have concluded that first of all as I have already said, the fact that the application is made out of time is not one which causes me to rule that the statement should not go in. I don't see anything in terms of section 114(2) which persuade me that it would be unfair for the statement to go in. So far as section 116(2) (C) and (D) are concerned as indicated it is clear that he is outside the United Kingdom and in terms of what is perhaps the most important part of this judgment, namely that it is not reasonably practicable to secure his attendance and that such steps as reasonably practicable taken to find him have been taken, although it is seems to me regrettable and that more could have been done by the officer to ensure that there was some effort made to find out through the Lithuania consulates that he should have been here, the fact is that it seems to me that the failure of communication between the prison service, the Home Office, the police and the Crown Prosecution Service to establish that he was actually outside the United Kingdom because he was deported, do not persuade me that I should exclude the statement under (C) or (D) or indeed under section 78 ." 26. With all respect, this somewhat garbled passage seems to involve an unwarranted conflation of three separate points: whether the evidence was admissible under section 116(2) (c) and/or (d); whether it was admissible under section 114(1) (d); and whether, it if it was admissible, it should be excluded either under section 78 of the Police and Criminal Evidence Act 1984 (or, it may be, section 126 of the 2003 Act itself). But, to repeat, the application was based solely on section 116(2) (c) and/or (d). If the requirements of those subsections were not met by the prosecution, then the precondition for admission of the evidence was not there. As Riat states at paragraph 15, the general principle underpinning section 116 is that the necessity to resort to secondhand evidence must be demonstrated. 27. Further, as Riat itself also cautions, section 114(1) (d) cannot be used in itself routinely to avoid the statutory requirements of sections 116 to section 118: which is doubtless why the Crown had never sought to rely on section 114 at all in its application notice. 28. In our view, it was and is important to have regard to the context here. The complainant was not a peripheral witness. On the contrary, he was the central witness so far as the prosecution case was concerned. Further, the appellant had been charged with a very serious offence - an offence under section 18 with an alternative count under section 20 . 29. So far as one can tell from the Recorder's ruling, he seems to have approached matters on the broad basis that the evidence could be admitted as a matter of fairness and justice, albeit that he, the Recorder, had a discretion to "exclude the statement" under section 116(2) (c) or (d) if not also under section 78 . But that is not the approach sanctioned under section 116 . 30. Moreover, the Recorder's finding on the facts that "more could have been done by the officer in the case" was, we think, eminently justified. Indeed, we do not think it fair simply to focus on what the officer in the case himself had done or not done. No doubt he had done what he thought was his best. But he himself admitted that he had not given thought to other matters and he seems to have been given little advice or guidance in circumstances of which he had had no previous experience, as he said. In any event the Crown Prosecution Service had its own responsibilities, they being aware by now of the complainant's deportation. So not only could more have been done but also, as the Recorder again found, there demonstrably had been a "failure of communication" between the prison service, the Home Office, the police and the Crown Prosecution Service. It is clear overall that the complainant's movements had not been monitored as they should have been and there was a further unfortunate failure, when the deportation had been noted, to make any enquiries of the Lithuanian consulate or some other such source to seek to ascertain the whereabouts of the complainant in Lithuania. Further, Lithuania being a member of the European Union it can be assumed that had he been located arrangements could have been made, if need be by video link, for the complainant to give his evidence orally at trial. Conclusion 31. In those circumstances, and given the Recorder's own primary findings of fact, we consider that this appeal must be allowed. We make clear that we do not do so simply because of the unfortunate and unsatisfactory delay in formulating and serving the hearsay application notice: although we would observe that had the hearsay application notice been served more promptly the need in truth to make further and better enquiries might well then have been appreciated. But the fundamental point, as we see it, is that in the events which happened it had not been shown that the requirements of section 116(2) (c), or for that matter (2)(d), had been met. 32. In those circumstances, we need not deal with Mr Eaton's further complaint about the alleged late or inadequate disclosure of relevant medical notes relating to the complainant's mental health: although Mr Eaton in any event did make the point that that failure was more generally indicative of an unacceptable degree of inactivity on the part of those prosecuting this case. Nor in the circumstances need we deal with Mr Eaton's criticism of the Recorder's subsequent rejection of an application made under section 125 of the 2003 Act . Since the basis of admitting the written statement of the complainant had not been made out under section 116(2) and since there was no other alternative application under section 114(1) (d), the evidence was, quite simply, wrongly admitted. The conviction was thereby rendered unsafe. Hence we allow this appeal. 33. Do you have any application, Miss Crane? 34. MISS CRANE: No, my Lord. I am instructed not to make any further application.

2016_11_08-3857.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2016/1817/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2016/1817

fb57ce45f21fcdac7546263e49ca0b41322b7720600ab5bce4bbcd62ca8f1383

[2022] EWCA Crim 1808

EWCA_Crim_1808

2022-10-11

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 CASE NO: 2022 00072/74 B2 NCN [2022] EWCA Crim 1808 Royal Courts of Justice Strand London WC2A 2LL Tuesday 11 October 2022 Before: THE VICE PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION LORD JUSTICE HOLROYDE MR JUSTICE DOVE MR JUSTICE BOURNE REX v KYLE NEIL SMITH BERNIE PETER SMITH __________ 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 IGNATIUS HUGHES KC appeared on behalf of the Applicant Kyle Smith MR MARK FENHALLS KC appeared on behalf of the Applicant Bernie Smith MR JEREMY BENSON KC & MR TIM HARRINGTON appeared on behalf of the Crown _________ J U D G M E N T (Approved) THE VICE-PRESIDENT: 1. This case involves the application of principles relating to joint enterprise. It also provides a reminder of the importance of the time limit for giving notice of an appeal against conviction. 2. Kyle Smith and his younger brother Bernie Smith were convicted of manslaughter following a violent incident in which Craig Robins was stabbed to death by a young man called Gavin Brown. They contend that their convictions are unsafe because the judge declined to direct the jury that Brown's stabbing of Mr Robins was capable of being regarded as an ‘overwhelming supervening act’ which relegated the conduct of the applicants to history so as to be outside the scope of any joint enterprise. 3. Their applications for extension of time to apply for leave to appeal against conviction have been referred to the full court by the single judge. 4. The incident occurred many years ago, on 30 October 2006. Kyle Smith was then aged 18; Bernie Smith was approaching his 16th birthday. They had attended a large party, at which word spread that an armed man was driving around the area. That man was Mr Robins, who had travelled from his home some miles away and had told various passers-by that he was looking for members of a gang who he believed had damaged his car. He said that he had a knife and a gun. A machete could be seen in the car, either beside him or on his lap. 5. Bernie Smith and others of a similar age were outdoors. Kyle Smith and others went out to join them. Kyle Smith approached the car and asked why Mr Robins was threatening the “kids". Mr Robins said that he would shoot people. Kyle Smith then punched him, and both brothers kicked at Mr Robins either through the car window or an open door. Milligan, a fourth member of the group, opened the passenger door and swung his legs into the car to kick Mr Robins. Brown then grabbed the knife, which Mr Robins had in his possession, and stabbed him with it at least four times. 6. Mr Robins survived but lost a great deal of blood. In consequence of his injuries, he was in a vegetative state for many years. 7. The four accused initially stood trial in 2007, when Mr Robins was still alive. Brown pleaded guilty to attempted murder. The applicants and Milligan pleaded guilty to violent disorder. 8. Mr Robins died on 18 March 2019, having developed sepsis. Brown was then charged with murder, to which he pleaded guilty. The applicants and Milligan were charged with manslaughter. Milligan pleaded guilty; the applicants contested the trial. There was no issue as to the medical causation of Mr Robins' death. 9. Both applicants gave evidence. Kyle Smith's defence was that he was acting in self-defence and defence of others. His evidence was that he was trying to prevent any violence taking place and to protect his brother. Mr Robins said he had a gun and made a movement which Kyle Smith feared was reaching for the gun. Kyle Smith admitted hitting Mr Robins, but denied having any involvement in Brown's stabbing of Mr Robins. He relied on evidence given by a prosecution witness to the effect that Kyle Smith had pulled Brown away from the car, shouted words of rebuke at him, and then walked away shaking his head. 10. Bernie Smith's defence was that he had not participated in any violence. His evidence was that he did not remember punching or kicking anyone. 11. Both applicants gave evidence to the effect that they had only pleaded guilty to the charge of violent disorder in 2007 in order to get out of custody. 12. In the course of submissions of no case to answer, it was argued on behalf of each applicant that Brown's stabbing of Mr Robins was an overwhelming supervening act which could not have been anticipated by the applicants or anyone else. The judge, Her Honour Judge Montgomery KC, rejected the submissions. Directing herself in accordance with the decision of this court in R v Tas [2019] 1 Cr App R 26; [2018] EWCA Crim 2603, she concluded: "The court is enjoined to make an assessment of the evidence in the case so as to establish whether the defendants participated in an assault of escalating violence in which some harm to Craig Robins was bound to result or whether the harm that befell Craig Robins was as a result of an act that 'nobody in the defendant’s shoes could have contemplated might happen and is of such a character as to relegate his conduct to history'. The submission raised by Mr Hughes QC relies on a distinction without a difference to that test. In my view Gavin Brown’s conduct was an escalation of violence and not an 'overwhelming supervening act'. It is worth noting that even had I concluded that Gavin Brown’s conduct was capable of amounting to an 'overwhelming supervening act', whether or not the evidence supported that conclusion would remain a matter for the jury." 13. Later in her ruling the judge said: "The evidence is not completely consistent, and not every witness entirely credible. However, there is a clear theme to the evidence: The attack on Craig Robins was launched by a group of men who came from the direction of 60 Lomax Road. The defendants were part of the group that approached Craig Robins’ vehicle. What happened at the car was short lived and furious, and Craig Robins was badly injured in the course of it. The group quickly dispersed, not to return. In relation to the participation of each of the defendants, there is witness evidence of each issuing blows to Craig Robins and an admission by Kyle Smith to the same." 14. Consistently with her ruling, the judge in her later directions to the jury made no reference to any issue of an overwhelming supervening act. Her declining to do so is, as we have said, challenged in the grounds of appeal. No complaint is now made about any of the judge's other rulings; and it may be noted that her direction about the jury's approach to the 2007 guilty pleas to an offence of violent disorder was more favourable to the applicants than the law required. 15. In submissions to this court, counsel for the two applicants argue that the facts of the present case are unusual, that the case of R v Tas can be distinguished on its facts, and that the judge was error in concluding that Brown's conduct could not be an overwhelming supervening act. They submit that even the evidence adduced by the prosecution suggested that Brown's stabbing had been spontaneous, unforeseeable and contrary to each applicant's wishes, so that the jury would have been entitled to conclude that any unlawful act by either applicant had been relegated to history. 16. The point is made that the evidence at trial was to the effect that Craig Robins had come to completely the wrong area in his apparent search for whoever may have damaged his car. On that basis, it is argued there was no history of ill-will between those at the party and Mr Robins, and therefore no reason to anticipate any violence, still less the use of a weapon. The point is further made that a distinguishing feature of the circumstances here is that the weapon used to inflict injury was in the possession of Mr Robins. There was no evidence suggesting that anyone at the party was carrying any weapon of any form. 17. Those submissions are opposed by the respondent. Counsel for the respondent emphasises that the defence of both applicants involved a denial of using unlawful violence rather than any reliance on an overwhelming supervening act. The point is made that the defence of Kyle Smith (namely, that he was acting in defence of himself or another) was rejected by the jury, who found him to have participated in unlawful violence. The defence of Bernie Smith was that he did not participate at all; but again, the jury rejected that and were sure that he did. 18. It is submitted that if the law is as R v Tas makes clear, that there may be guilt of manslaughter where a weapon is picked up in the course of an attack by one of a number of persons acting as a group, it is all the more readily anticipated that a weapon held by the eventual victim will be turned against him. Such an event, it is submitted, is by no means unusual. The evidence of the applicants shows that when they went outside to the car and took part in the attack on Mr Robins, they knew that he had a machete. 19. As to the applications for an extension of time, counsel for the applicants frankly accept that there was a collective oversight by all defence counsel at trial of the need to give notice of an appeal against conviction within 28 days after conviction even if, as happened in this case, sentencing does not take place until a later date. They emphasise that no blame for this oversight can be attached to the applicants themselves, who should not be prejudiced by it. 20. We are grateful to all counsel, whose written and oral submissions to this court have been, if we may say so, admirably focused and concise. The Procedural Issue 21. In the experience of this court, legal representatives sometimes do fall into the error of thinking that the time for appealing against conviction does not begin to run until after sentence. We therefore take this opportunity to emphasise that that is not the position. By section 18(2) of the Criminal Appeal Act 1968: "Notice of appeal, or of application for leave to appeal, shall be given within twenty-eight days from the date of the conviction, verdict or finding appealed against, or in the case of appeal against sentence, from the date on which sentence was passed or, in the case of an order made or treated as made on conviction, from the date of the making of the order." Rule 39.2 of the Criminal Procedure Rules is to a like effect. It follows that it is incumbent upon the legal representatives of a convicted person to take the necessary action within 28 days after conviction whether or not sentencing has been adjourned. 22. Regrettably, all defence counsel fell into that error in this case. We of course accept the apologies which have been offered, and we accept that the applicants should not be prejudiced by the error. The Merits of the Grounds of Appeal 23. The judge helpfully provided the jury with a written route to verdict in which she rightly posed a number of questions. It is in our view clear that the jury could properly answer those questions in terms which led to the guilty verdicts which were returned. There was ample eyewitness evidence to support the conclusion that each applicant participated in the attack upon Mr Robins by using force upon him and/or by intentionally assisting or encouraging Brown to do so. In addition, the applicants accepted that they had pleaded guilty in 2007 to a charge which involved the use or threat of unlawful violence; and by section 74 of the Police and Criminal Evidence Act 1984 each of them was to be taken to have committed that offence unless the contrary was proved, the burden being on the defence to prove the contrary on the balance of probabilities. 24. In Kyle Smith's case, the jury were entitled to reject his evidence and to be satisfied that he was not acting in reasonable defence of himself or another. In relation to each applicant, they could properly conclude that they were sure he had participated in an assault which carried a risk of some harm being caused to Mr Robins. Indeed, as the judge noted, no one had suggested that the assault on Mr Robins could have been viewed by any reasonable person as being without risk of harm to him. 25. It follows that the convictions are safe unless it can be said that the judge erred in her decision not to allow the jury to consider whether the stabbing by Brown was an overwhelming supervening act. The core submission on behalf of the applicants is that there was a crucial omission of a final step which the judge should have included in the route to verdict, it being open to the jury on the evidence to consider whether Brown had acted in a way which neither the applicants nor anyone else could have anticipated. 26. In considering this issue the starting point must be the decision of the Supreme Court in R v Jogee [2017] AC 387 ; [2016] UKSC 8 . The Supreme Court was there concerned with issues relating to joint enterprise. At § 33 Lord Hughes and Lord Toulson, with whom the other Justices agreed, referred to the general principle that a person who takes part in an unlawful attack which results in death will be guilty of murder or manslaughter according to whether he had the necessary intention for murder. They added that previous case law had recognised that "... there could be cases where the actual cause of death was not simply an escalation of a fight but 'an overwhelming supervening event'". 27. Later in their judgment Lord Hughes and Lord Toulson returned to those principles, saying at § 96-98: "96. If a person is a party to a violent attack on another, without an intent to assist in the causing of death or really serious harm ..., he will be not guilty of murder but guilty of manslaughter. So also if he participates by encouragement or assistance in any other unlawful act which all sober and reasonable people would realise carried the risk of some harm (not necessarily serious) to another, and death in fact results: R v Church [1965] 1 QB 59 , approved in Director of Public Prosecutions v Newbury [1977] AC 500 and very recently re-affirmed in R v F(J) & E(N) [2015] EWCA Crim 351 ; [2015] 2 Cr App R 5 . The test is objective ... 97. The qualification to this (recognised in R v Smith (Wesley) , R v Anderson, R v Morris and R v Reid ) is that it is possible for death to be caused by some overwhelming supervening act by the perpetrator which nobody in the defendant's shoes could have contemplated might happen and is of such a character as to relegate his acts to history; in that case the defendant will bear no criminal responsibility for the death. 98. This type of case apart, there will normally be no occasion to consider the concept of 'fundamental departure' as derived from R v English . What matters is whether D2 encouraged or assisted the crime, whether it be murder or some other offence. He need not encourage or assist a particular way of committing it, although he may sometimes do so. In particular, his intention to assist in a crime of violence is not determined only by whether he knows what kind of weapon D1 has in his possession. ..." 28. The application of these principles to a factual situation which was in many ways similar to the present case was considered by this court in R v Tas . Sir Brian Leveson, President of the Queen's Bench Division, giving the judgment of the court observed at § 37 that one of the effects of Jogee was that knowledge on the part of the secondary party of the weapon which was used by the principal to kill "impacts as evidence (albeit very important if not potentially irresistible) going to proof of intention, rather than being a pre-requisite of liability for murder". 29. Sir Brian went on to say (at § 38 and 39) that where there is a joint enterprise to participate in an attack on another, and one of those involved goes further than to inflict “some harm”, then "consistent with the principles identified in the authorities and the modern approach to knowledge of a specific weapon, there is no reason to distinguish the case where the victim is kicked to death or killed with a weapon either that is picked up off the ground or brought by the principal to the scene". 30. At § 41 Sir Brian said: "We repeat that in the light of the relegation of knowledge of the weapon as going to proof of intent, it cannot be that the law brings back that knowledge as a pre-requisite for manslaughter. In our judgment, whether there is an evidential basis for overwhelming supervening event which is of such a character as could relegate into history matters which would otherwise be looked on as causative (or, indeed, withdrawal from a joint enterprise) rather than mere escalation which remained part of the joint enterprise is very much for the judge who has heard the evidence and is in a far better position than this court to reach a conclusion as to evidential sufficiency." 31. In the light of those authorities, there is in our judgment no basis on which the judge's ruling in this case can be challenged. The applicants took part in a joint attack in which they used violence. Although none of the attackers had brought any weapon to the scene, the applicants knew when they approached the car that they outnumbered Mr Robins and that he was armed with a machete. It was not beyond the contemplation of the participants in the attack that one of their number would gain control of the machete and use it against Mr Robins. Brown's action in doing so was certainly an escalation of the joint enterprise, but the judge was clearly entitled, and in our view correct, to rule that it was not of such a character as to relegate to history the applicants' actions moments earlier. Her ruling does not even arguably render the convictions unsafe. 32. If we had thought that the ground of appeal was arguable, we would have granted the necessary extension of time. As it is, no purpose will be served by granting that extension as an appeal could not succeed. 33. The applications for an extension of time and for leave to appeal against conviction accordingly fail and are refused. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: Rcj@epiqglobal.co.uk

2022_10_11-5460.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/1808/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/1808

c994a667b6407e1a873b47fa5c2f0c020d9bb95a9b6ee87819bd195d46367466

[2007] EWCA Crim 243

EWCA_Crim_243

2007-02-16

supreme_court

Neutral Citation Number: [2007] EWCA Crim 243 Case No: 2007/00579/B5 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM WOOLWICH CROWN COURT THE HON MR JUSTICE MACKAY Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/02/2007 Before : THE PRESIDENT OF THE QUEEN’S BENCH DIVISION MR JUSTICE FORBES and MR JUSTICE IRWIN - - - - - - - - - - - - - - - - - - - - - Between : R Appellant - v - F Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2007] EWCA Crim 243 Case No: 2007/00579/B5 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM WOOLWICH CROWN COURT THE HON MR JUSTICE MACKAY Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/02/2007 Before : THE PRESIDENT OF THE QUEEN’S BENCH DIVISION MR JUSTICE FORBES and MR JUSTICE IRWIN - - - - - - - - - - - - - - - - - - - - - Between : R Appellant - v - F Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Geoffrey Robertson QC and Mr A Suterwalla for the Appellant Mr David Perry QC, Mr Nicholas Hilliard and Miss R Franton for the Prosecution Hearing dates : 5 th and 6 th February 2007 - - - - - - - - - - - - - - - - - - - - - Judgment President of the Queen's Bench Division : 1. This is an appeal with leave of Mackay J from his decision on 25 th January this year at Woolwich Crown Court following a preparatory hearing held under s29 of the Criminal Procedure and Investigations Act 1996 . It raises important questions about the construction of the Terrorism Act 2000 ( the 2000 Act ). We have received helpful written and oral submissions from Mr Geoffrey Robertson QC on behalf of the appellant and Mr David Perry QC on behalf of the Crown, and with their agreement, we admitted written submissions prepared by Mr Keir Starmer QC on behalf of Justice. The Facts 2. A very brief summary will be sufficient. 3. The appellant is a native of Libya. We are told that members of his family as well as his friends were murdered in Libya by or on behalf of the present regime. He fled to the United Kingdom in 2002, where, in 2003 he was granted asylum. This decision demonstrated that he had a well justified fear of persecution if he were returned to his native country. 4. In October 2005 his accommodation in England was raided. After the material taken from it was analysed, on 27 th March 2006 he was arrested and charged with offences under the 2000 Act . The indictment contains two counts. Each alleges a contravention of s58 (1)(b) of the Act. The appellant is alleged to have been in possession of a document or record containing information of a kind “likely to be useful to a person committing or preparing an act of terrorism”. In view of some of the submissions by Mr Robertson, it is perhaps worth emphasising that the documents in question appear, if the Crown’s case is right, to go very much further than the passionate expression of implacable opposition to the present regime in Libya or abhorrence of a tyrannical dictatorship. 5. The first count relates to part of one of twenty one files contained on a CD downloaded from a Jihadist website, entitled “a special training course on the manufacture of explosives for the righteous fighting group until God’s will is established”. The Crown suggests that this document provides detailed instructions on how explosive devices may be made, and that s58(1)(b) applies to the information contained in it. The second count refers to a handwritten document which, according to the Crown’s case, describes in detail how a terrorist cell may be set up. It is said to be a “blueprint” for such a cell. It points a route to Jihad, the removal of Colonel Gaddafi from power in Libya and establishing the rule of Allah. It recommends the acquisition of firearms suitable for action within cities and the need “to try to learn to use explosives and mining”. Accordingly this material, too, falls within s58(1)(b). 6. The appellant denies possession of the document identified in the first count. In summary, his defence is that he did not have it, alternatively if it was in his possession, he was ignorant of its contents. It is also suggested that the information would be unlikely to be of assistance to a would-be terrorist. The appellant accepts that he was in possession of the handwritten document which is the subject of the second count. The defence is that this document was passed to him by a leader of a resistance movement in Libya, as part of an intended plan to establish a movement in Libya opposed to the present regime headed by Colonel Gaddafi. The defence draw attention to its condemnation of the injustice and oppression of the Gaddafi regime, and an asserted insistence that the activities of the proposed opposition movement should not harm civilians or foreigners. Its targets are Colonel Gaddafi himself, his secret police and his army. The document anticipates that the Gaddafi regime will be replaced by a popular movement of devout Muslims. General 7. Terrorism is an international modern scourge. In recent years, New York, Bali, Madrid, London and Sharm el-Sheikh have all suffered the dreadful experience of indiscriminate slaughter resulting from terrorist activity. Sadly, it would be wrong to conclude that a line can now be drawn underneath that list, or that the names already on it will never reappear. The protection of the community as a whole is one of the first great responsibilities of government, and in this country it is Parliament which provides the legislation appropriate to address the threat posed by terrorism. 8. We shall not attempt to discuss the history of political thought, or the principles of political theory and obligation, as developed in this country and abroad, or indeed to refer to the many important texts included in our papers and referred to in argument. However as the argument advanced it became increasingly clear that, despite the commonality of view that terrorism was detestable, subtle refinements and differences about its true meaning could legitimately arise for discussion. Much thought was given to the right to rebel against a tyrannous or unrepresentative regime. We were shown that John Locke observed in his Second Treatise of Government that the “people” were entitled to resume “their original liberty” when the legislators sought to “reduce them to slavery under arbitrary power”. The United States Declaration of Independence (1776) having identified the famous “self evident” truths, added that “whenever any Form of Government becomes destructive of these ends, it is the Right of People to alter or to abolish it, and institute new Government”. The preamble to the Universal Declaration of Human Rights 1948 acknowledges the possibility of citizens having recourse “as a last resort to rebellion against tyranny and oppression”. Article 1 of the International Covenant on Civil and Political Rights 1966 underlines that “all peoples have the right to self determination”. By virtue of that right they freely determine their political status. We rather doubt whether the authors of these texts would have supported terrorism in its modern form. That said, we were also told that protection is provided in international law for a number of categories of “freedom fighters”, by making it clear that if they avoid “war crimes”, they may be treated as legitimate combatants. If so, violence in a justified cause cannot be said to be the exclusive prerogative of governments. 9. The call of resistance to tyranny and invasion evokes an echoing response down the ages. We note, as a matter of historical knowledge, that many of those whose violent activities in support of national independence or freedom from oppression, who were once described as terrorists, are now honoured as “freedom fighters”. Others, who continued to use violence to maintain resistance to national enslavement by invading forces, after the official surrender by their own governments, are regarded as heroes and heroines. Those who died in these causes were “martyrs” for them. Indeed we can look about the world today and identify former “terrorists” who are treated as respected, and in one case at least, an internationally revered statesmen. In many countries statues have been erected to celebrate the memory of those who have died in the course of, or have been executed as a result of, their violent activities, but who in time have come to be identified as men and women who died for the freedom and liberty of their countries or their consciences. 10. Violence, of course, is not the only way. In “Non-Violence in Peace and War” (1942) Mahatma Ghandi posed the question which demands an answer every time violence is used, even in a just cause. “What difference does it make to the dead, the orphans and homeless, whether the mad destruction is wrought under the name of totalitarianism or the holy name of liberty or democracy?” 11. The next general matter which requires attention, in view of the arguments, is rather different. This feature relates not to the activities of terrorists, but to the impact on law-abiding citizens of legislation, intended to protect them from the terrorist threat, which nevertheless interferes with their ordinary freedoms and liberties. Mr Robertson suggested that the current terrorism legislation has had this effect. In due course, we shall address the argument that legislation of this kind should be construed so as to ensure that so far as possible the ordinary rights enjoyed by citizens are maintained, and that they should not be lost through oversight or ambiguity. That said, Parliament has been and will no doubt continue to be aware of the dangers of over-zealous, unnecessary interference with them. For example, we note that in December 2005 the Joint Committee on Human Rights spoke of the problems arising from the fact that “counter-terrorism measures were capable of application to speech or actions concerning resistance to an oppressive regime overseas…” 12. These are some of the considerations which give rise to uncertainties about the true definition of terrorism, and the difficulties of resolving them. The debate can be lengthy. For present purposes, however, the only definition which requires our attention is found in section 1 of the 2000 Act . The 2000 Act 13. Section 1 of the Act is central to the current anti-terrorism legislation. It does not create any offence, but rather defines the word which permeates the entire legislative structure. This includes not only the Act, with insertions made by the Crime (International Co-operation) Act 2003 , but also the Anti-Terrorism Crime and Security Act 2001 , the Prevention of Terrorism Act 2005 , and the Terrorism Act 2006 . The definition has also been incorporated into a number of different recent Acts of Parliament, of which one example is s31(1) of the Civil Contingencies Act 2004. 14. We immediately accept Mr Robertson’s submission that when construing this section, we should bear in mind that the legislation as a whole creates serious inroads into and restrictions on what we in this country have for many years regarded as inalienable freedoms, now cemented and amplified in the European Convention of Human Rights (ECHR). 15. Section 1 of the 2000 Act provides: “(1) In this Act “terrorism” means the use or threat of action where (a) the action falls within sub-section (2), (b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and (c) the use or threat is made for the purpose of advancing a political, religious or ideological cause. (2) Action falls within this sub-section if it (a) involves serious violence against a person (b) involves serious damage to property (c) endangers a person’s life, other than that of the person committing the action, (d) creates a serious risk to the health or safety of the public or a section of the public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system. (3) The use or threat of action falling within sub-section (2) which involves the use of firearms or explosives is terrorism whether or not sub-section (1)(b) is satisfied. (4) In this section (a) “action” includes action outside the United Kingdom (b) a reference to any person or to property is a reference to any person, or to property, wherever situated, (c) a reference to the public includes a reference to the public of a country other than the United Kingdom (d) “the government” means the government of the United Kingdom, or a Part of the United Kingdom or of a country other than the United Kingdom.” 16. Terrorism therefore extends to terrorist activities here and abroad, and terrorist actions against foreign governments fall within its ambit. The extension of terrorism offences to include terrorist activities abroad is a constant theme of the legislation, no doubt reflective of the international nature of terrorism, and perhaps also, of the need to avoid the United Kingdom becoming or appearing to be a safe haven for terrorists of any nationality, whether ultimately intent on pursuing their objectives in this country, or abroad, or in their own native countries. On the face of it, governments of countries other than the United Kingdom are to be protected from terrorist activities organised and planned here. This aspect of the legislation was reinforced by the insertion of s63 A-E into the 2000 Act by the Crime (International Co-operation) Act 2003 , which makes clear that a resident in the United Kingdom would be guilty of an offence here if his actions abroad would have constituted an offence under s54 or ss56-61 of the 2000 Act if perpetrated in the United Kingdom. 17. Section 58 provides: (1) A person commits an offence if (a) he collects or makes a record of information likely to be useful to a person committing or preparing an act of terrorism, or (b) he possesses a document or record containing information of that kind… (3) It is a defence for a person charged with an offence under this section to prove that he had a reasonable excuse for his action or possession…” Section 118 deals expressly with a number of provisions providing expressly for defences of the kind identified in s58 (3). S118 (2) provides that where a defendant “adduces evidence which is sufficient to raise an issue with respect to the matter the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not”. 18. These sections of the Act only arise for consideration if the first ground of appeal fails. The First Ground of Appeal 19. The first issue in the appeal is whether the phrase “the government” in s1(1)(b), as explained in s1(4)(d) in relation to foreign governments, indicates and is limited to those countries which are governed by what may broadly be described as democratic or representative principles. The submission on behalf of the appellant is that governments which constitute, for example, a dictatorship, or a military junta, or a usurping or invading power, are not included within the protective structure of the Act. Mackay J rejected this submission, which we must now address. 20. On this issue the submission for the appellant is based on two linked strands of argument. It is suggested that Mackay J’s conclusion was wrong on the basis of ordinary techniques of statutory construction. Alternatively, if this argument is not self-sustaining, his conclusion fails when the statutory framework is put into the context of ordinary principles of construction, our own political and legal traditions, the ECHR itself, and our international commitments. 21. What we may describe as the construction argument proceeds by way of emphasising the penal nature of the legislative structure and the well known principle that any ambiguities in such legislation should be resolved in favour of the defendant. Attention is drawn to s1(4)(d) in which the language which would apply to Libya in the present context – “the government…of a country other than the United Kingdom” – should take its meaning from the previous phrases “the government of the United Kingdom, or a Part of the United Kingdom”. It is said that the application of the eiusdem generis rule makes clear that as the governments of the United Kingdom and its parts, Scotland and Wales, are representative, the same quality must infuse the governments of countries other than the United Kingdom before they fall within the protective ambit of the legislation. 22. More complex issues arise from the second strand to the argument. The interpretation for which Mr Robertson contends is said to be “mandated” by s3 of the Human Rights Act 1998 , which requires domestic legislation to be interpreted “so far as possible” to conform with Article 3 of Protocol 1 of the European Convention of Human Rights (“ECHR”), adopted in 1952, and expressly incorporated into United Kingdom law by s1 (1) (b) of the Human Rights Act . The countries which have incorporated Protocol 1 are committed to representative or democratic rule. The fundamental rights and freedoms enjoyed by countries which are parties to the Convention are best preserved by “an effective political democracy”. In effect, no other system of government in countries which are party to the Convention is permissible. (See, for example, United Communist Party of Turkey and others 26 EHRR 121 ; Kjeldsen, Busk Madsen and Peddersen v Denmark 1EHRR 711) 23. No authority is needed for the proposition that democratic government based on the consent of the people, and subject to the rule of law, is the lodestar for modern civilised communities. We agree that it is an essential qualifying characteristic of the governments of countries which adhere to the European Convention that they should be democratic representative governments. That however is far from saying that the only governments which can be included in legislation which provides for protection against terrorism are to be found in countries which adhere to the Convention or governed in accordance with its principles. Mr Robertson reminded us of Lord Steyn’s observation in Ghaidan v Godin-Mendoza 2 (2004) 2 AC 557 , at paragraph 50, that there is “a strong rebuttable presumption in favour of an interpretation consistent with Convention rights”. From this foundation he suggested that, even if the inevitable infringement of the freedoms provided at common law and under the ECHR were proportionate and justified in relation to countries governed by representative governments, as a matter of construction, these rights, and in particular the right to freedom of expression, should not be restricted in order to protect governments which were unrepresentative. A distinction should be drawn between tyrannous government, for whose benefit the infringement on the liberties enjoyed by citizens here would be wholly inappropriate, and the innocent citizens of countries subject to such governments. Their protection would justify some at any rate of the restrictions created by the terrorist legislation, but did not extend to the tyrants under whose yoke they were forced to live. 24. The argument does not stop with the Convention. The interpretation of “terrorism”, as defined in s1, is subject to the presumption that “Parliament does not intend to act in breach of “public” international law, including their unspecific treaty obligations; and if one of the meanings that can reasonably be attributed to the legislation is so consonant, it is to be preferred”. (Per Diplock LJ in Salomon v Customs and Excise Commissioners [1967] 2 QB 116 of 143.) We have already noted the preamble to the Universal Declaration of Human Rights. The United Kingdom has ratified the International Convenant on Civil and Political Rights, which underlines the right of every citizen to vote and “to be elected” and to be granted an “effective opportunity to enjoy the rights” protected by the Convention. For present purposes, no further citation is necessary. The links established between the principles enshrined in the law of England and Wales and the international obligations of the United Kingdom were deployed to reinforce Mr Robertson’s basic submission. 25. In summary, Mackay J’s interpretation of section 1 of the 2000 Act has produced a result which means that Parliament deviated from its obligations under the Convention, and international law, by treating as terrorists individuals who oppose regimes in countries subject to dictators, and invaders, and indeed to regimes which are denied recognition in the United Kingdom, or are involved in war or warlike confrontation with the forces of the United Nations, NATO or indeed the United Kingdom itself. The measures included in the legislation extend to significant interference with the normal principles of liberal democracy. They may be an appropriate response to protect such communities from the threat of terrorism. It is not acceptable for, and the legislation is not intended to provide, the same restriction to hinder or prevent the activities of those seeking to establish the freedoms which we enjoy here. In these circumstances, Mackay J’s construction of s1 was wrong. 26. We have examined these arguments with the deference that their importance deserves. We must return to the legislation. We have no difficulty with the principles of construction. However, we are unable to see how they apply to assist the appellant. We cannot identify any ambiguity or absurdity in section 1(4)(d) . In our judgment the meaning of the phrase – “a country other than the United Kingdom” – is plain enough. It follows entirely logically from the references to actions outside the United Kingdom (s1(4)(a)) and “public of a country other than the United Kingdom” (s1(4)(c)), and serves to reinforce the international dimension of the protection against terrorism provided in domestic legislation. We can see no reason why, given the random impact of terrorist activities, the citizens of Libya should not be protected from such activities by those resident in this country in the same way as the inhabitants of Belgium or the Netherlands or the Republic of Ireland. More important, we can see nothing in the legislation which might support this distinction. 27. What is striking about the language of s1, read as a whole, is its breadth. It does not specify that the ambit of its protection is limited to countries abroad with governments of any particular type or possessed of what we, with our fortunate traditions, would regard as the desirable characteristics of representative government. There is no list or schedule or statutory instrument which identifies the countries whose governments are included within s1(4)(d) or excluded from the application of the Act. Finally, the legislation does not exempt, nor make an exception, nor create a defence for, nor exculpate what some would describe as terrorism in a just cause. Such a concept is foreign to the Act. Terrorism is terrorism, whatever the motives of the perpetrators. 28. The forensic focus in argument on s1 (4) (d) may have distracted attention from s1 as a whole, and in particular the provisions of s1 (3), which refers to activity involving the use or threat of firearms or explosives. Terrorist action outside the United Kingdom which involves the use of firearms or explosives, resulting in danger to life or creating a serious risk to the health or safety of the public in that country, or involving (not producing) serious personal violence or damage to property, or designed seriously to interfere with an electronic system, “is terrorism”, whether or not its use is “designed to influence the Government or an international governmental organisation or to intimidate the public or a section of the public”. The offences alleged in the two counts in the present indictment contemplate the use of firearms or explosives. 29. In the context of the ECHR, we draw attention to Article 2, and the right to life, and the obligation on the state to take appropriate steps to safeguard life and, for that purpose, to ensure an effective system of criminal law. By its nature terrorism is indiscriminate. An assassin may target an individual national leader. If Mr Robertson is right it may then be argued that his fatal stroke would not amount to terrorism for the purposes of the Act. It was however open to Parliament to decide that because of the evils of terrorism and the manifold dangers that terrorist activities create, it should impose a prohibition on the residents of this country from participating or seeking to participate in terrorist activities, which may have a devastating impact wherever in the world they occur. The same potential for criminal sanctions has been applied to British citizens who commit or solicit murder abroad. It would be strange if a British citizen could involve himself in terrorist activities which ended in the assassination of Colonel Gaddafi in Libya, and be liable to conviction for his murder, but immune from prosecution under the terrorist legislation if his activities came within the definition of terrorism, but his plan to kill Colonel Gaddafi was prevented by the security services, or by his own incompetence. 30. The other feature of the debate which lends support to Mackay J’s conclusion, is that the construction for which the appellant is contending would require the jury to assess whether or not the particular government against which terrorist activity was planned or carried out, fell within the description of a representative or democratic government. Some governments are undeniably representative, although even our own constitutional arrangements are sometimes chided as an elected dictatorship. Other countries are subject to governments which are definitely not representative. Where such countries are identified it is assumed that the inhabitants would immediately welcome the substitution of the government which they have for one answerable to democratic principles, but even under the yoke of tyranny, not all the inhabitants would welcome terrorist violence. There are yet other countries where the issue – democratic or not - is subject to serious debate. Mr Perry added a further consideration, to the effect that if it were ever permissible to visit terrorist activities on a tyrannical government, would that immunity extend to a group seeking by violent means to foist its own different but equally undemocratic principles on the country whose tyrant was overthrown? 31. We note that the membership of the United Nations includes countries run by governments not all of which share our commitment to or exemplify the operation of the democratic process. We do not abandon our membership of the United Nations because of the doubtful democratic credentials of some of the other members. And on occasions recent history shows that elected governments here have decided, in the national interest, to make common cause with the governments of countries whose representative credentials were open to profound reservations. It would be unrealistic to approach the terrorist legislation on the basis that Parliament envisaged that it should not apply to countries allied to us or to other members of the United Nations. That is not what this legislation provides. 32. In our judgment, in agreement with Mackay J, the terrorist legislation applies to countries which are governed by tyrants and dictators. There is no exemption from criminal liability for terrorist activities which are motivated or said to be morally justified by the alleged nobility of the terrorist cause. The second ground of appeal 33. This ground arises from our conclusion about the construction and ambit of s1 of the Act. It is contended that Mackay J was wrong to conclude that as a matter of law the appellant was not entitled to argue that s58 (3) of the Act permitted him to advance as a “reasonable excuse” for the possession of the documents which form the basis of the allegations in the indictment that they “originated as part of an effort to change an illegal or undemocratic regime”. Consideration of this ground requires us to assume that the prosecution will demonstrate that the activities and behaviour of the appellant did indeed constitute the terrorist offences alleged against him. Only then would the “reasonable excuse” issue arise. 34. Mackay J was anxious for it to be understood that his ruling was limited to this single specific “just cause” question. He was not considering, and in particular not ruling out in advance any alternative “reasonable excuse” which the appellant might seek to advance on the facts. He was also prepared to approach the argument by assuming that the appellant would be able, by evidence or admission, to demonstrate that the current regime in Libya is indeed unrepresentative and tyrannical. 35. As the argument developed we detected a suggestion that the documents identified in the two counts amounted to no more than an attempt to impart information and ideas which merited protection under ordinary principles relating to established rights to freedom of expression at common law and under the ECHR. We have already explained, however, that if the jury were to conclude as a realistic possibility that the documents were addressing argument and exhortation against and expressing disapproval and opposition in the strongest terms of the current regime in Libya, and no more, the appellant would be entitled to be acquitted. The right to freedom of expression is not in issue in these proceedings. 36. Various arguments were advanced before us. We shall deal with them briefly. It was suggested that the decision represented a judicial usurpation of the function of the jury. This was impermissible ( R v Wang [2005] 1 WLR 661 , [2005] UKHL 9 ). The statutory defence in s58 (3) required a decision of fact which should be left to the jury. It was also suggested that Mackay J was wrong to rely, the extent that he did, on R v Jones [2006] 2 Cr App R 9 ; [2006] UKHL 16 . In Jones the House of Lords considered the question whether criminal damage committed at military installations in the United Kingdom was excused by s 3 of the Criminal Law Act 1967 , which provides that an individual may use “such force as is reasonable” to prevent crime. It was argued in Jones that the government in the United Kingdom was acting contrary to customary international law. Mackay J drew attention to the speech of Lord Hoffmann, that a defendant could not act “as if he was a sheriff in a Western, the only lawman in town”. This graphic observation underlined the essential reasoning that the use of force must be tightly controlled if society is not to slide into anarchy. In a modern, properly functioning state, the remedy of “self help” was limited, and save in exceptional circumstances, it is inappropriate for an individual to use violence in order to champion his own, or a third party’s, or even a perceived view of the public interest. 37. Mackay J acknowledged that Jones was directed to entirely domestic issues. Mr Robertson suggested that the decision, and the basis for it, was distinguishable because Jones related to events within England and Wales, a developed liberal democracy, rather than activity focussed, as it is in this case, on a foreign undemocratic country, where resort to self help might be more compelling. We recognise the distinction, but even if the long term target for the appellant was the present government in Libya, the prohibited activities alleged against him took place here. 38. The fundamental flaw with Mr Robertson’s submissions is that, on analysis, they are circular. They depend on the proposition that a reasonable excuse for conduct which constituted a crime may be found in the commission of the very crime prohibited by the statute. If correct, this would introduce an impossible incoherence into the statutory provisions. And for such an excuse to be “reasonable”, the carefully constructed definition of terrorism in s 1 of the Act would become inoperative. Given the overall context, if Parliament had intended that this defence should apply in such circumstances, it is inconceivable that the statute would not expressly have addressed the problem either by an express restriction on the application of the Act to countries with a representative, democratic government, or by providing that an individual with a genuine grievance about a tyrannical regime should fall outside the statutory provisions which create terrorist offences. In reality, our conclusion on this second ground of appeal follows inexorably from our rejection of the first ground. 39. Mackay J was required to address a question of law. Unless the purported excuse was capable of being “reasonable” as a matter of law, it was not relevant to any issue at trial and evidence in support of it would be inadmissible. In our judgment his ruling did not usurp the function of the jury, nor interfere with its normal fact-finding responsibilities. We agree with, and respectfully adopt his conclusion that, as a matter of law, the defence under s58 (3) is not available “to achieve in effect a construction of the statute which is contrary…to the intention of Parliament which passed it”. Moreover we should add that for case management purposes he made this ruling at an entirely appropriate point in the proceedings. 40. Two subsidiary points need brief mention. Reference to Parliamentary material as an aide to the construction issues was unnecessary. Pepper v Hart [1999] AC 593 did not apply. Second, our decision about the proper construction of terrorism for the purposes of the Act was wholly uninfluenced by the statutory arrangements in s117 of the Act, requiring the consent of the Attorney General, or Director of Public Prosecutions (as the case may be) to a prosecution. Such consents no doubt contribute to sensible decision making by the prosecution, but the process which requires them does not bear on the proper construction of statutory language affecting the administration of criminal justice. 41. This appeal is dismissed.

2007_02_16-1033.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/243/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/243

79ebaecf0634202b7800d114079bc0272cf1dbde82eadad36e7ac9e896ba06f6

[2023] EWCA Crim 1376

EWCA_Crim_1376

2023-06-09

crown_court

IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202201541/B3 Neutral Citation Number: [2023] EWCA CRIM 1376 Royal Courts of Justice Strand London WC2A 2LL Friday 9 June 2023 Before: LADY JUSTICE MACUR DBE MR JUSTICE CHOUDHURY MR JUSTICE CONSTABLE REX V TAUN VAN NGUYEN __________ 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) _________ DR F GERRY KC app

IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202201541/B3 Neutral Citation Number: [2023] EWCA CRIM 1376 Royal Courts of Justice Strand London WC2A 2LL Friday 9 June 2023 Before: LADY JUSTICE MACUR DBE MR JUSTICE CHOUDHURY MR JUSTICE CONSTABLE REX V TAUN VAN NGUYEN __________ 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) _________ DR F GERRY KC appeared on behalf of the Applicant. _________ J U D G M E N T (APPROVED) 1. MR JUSTICE CHOUDHURY: This is a renewed application for leave to appeal against conviction following refusal by the single judge. On 10 November 2017, in the Crown Court at Woolwich before Mr Recorder Bryan, the applicant (then aged 27) pleaded guilty to two counts, production of a Class B drug and possession with intent to supply Class B drug, the drug in question being cannabis. On 6 April 2018, before the same court, the applicant was sentenced to 18 months' imprisonment concurrent on each count. The applicant also seeks an order for anonymity, an extension of time of 1621 days and leave to adduce evidence relating to his status as a victim of trafficking. 2. The background to this matter is as follows. On 14 September 2017, police executed a search warrant issued under the Misuse of Drugs Act 1971 at an address in SE12 London. Having forced entry to the house, they found that three of the rooms were filled with cannabis plants at various stages of cultivation. There were large hydroponic systems in each of the rooms, and a CCTV system, which appeared to be controlled from inside the property. In total there were 294 cannabis plants in the property, with a potential yield of 12 kilograms and four bags of approximately 4 kilograms of skunk cannabis ready packaged for onward supply. The applicant and another person, Huy Manh Nguyen (the co-accused), were sleeping in a room located off the hallway. They were both arrested. They were both in possession of mobile phones. The police were able to interrogate one of the phones in the applicant's possession and it showed significant use of calls and messages sent and received. On further investigation the police discovered that the property had been rented from the landlord using a false Chinese passport and residence permit in the name “Huy Chen”. 3. The applicant was interviewed with the assistance of an interpreter. He gave a full account stating that he had paid to come to the United Kingdom with the promise of work 2 years earlier. However, 2 months before his arrest, he had been taken to this property and forced to look after the plants. He said that he was unable to leave the property as he did not have a key, and he was scared of the person that he thought owned the property, a man called "Dat", because that man had previously attacked him, injuring his eye. The applicant was given the phones by this person so that he could contact him, and he had also been able to speak to his family. In light of the applicant's account, the day after his arrest the police made a referral through the National Referral Mechanism to the Single Competent Authority. On 16 September 2017 the applicant appeared at Bromley Magistrates' Court, on which occasion he was represented by counsel, Mr Walker. An attendance note of the same date, produced for these proceedings in accordance with the McCook procedure, indicates that the applicant had "instructed that he had been threatened and physically attacked by individuals who forced him to work in the property". The attendance goes on to state that on the basis of those instructions the applicant was raising the defence of duress. The applicant indicated a not guilty plea. 4. On 21 September 2017, the Single Competent Authority concluded that there were reasonable grounds to believe that the applicant was a victim of modern slavery. Upon review the Crown decided that the prosecution of the applicant remained in the public interest. On 13 October 2017, the applicant appeared at Woolwich Crown Court for a plea and trial preparation hearing. On that occasion he was represented by Mr Dacre of counsel. Mr Dacre's attendance note records that the applicant gave instructions consistent with his police interview, namely that he had been forced, under threat of violence, to work at the cannabis factory. The applicant indicated that he wished to plead not guilty. 5. Mr Dacre notes that the issues for trial were summarised on the online PTPH form as follows: i. "Forced to undertake work - defence under section 45 of the Modern Slavery Act and duress. No intention to supply." 6. Whilst Mr Dacre's note does not record the advice given in respect of these defences, he confirms that it was his usual practice to provide such advice and that he would not have identified the defence he did, had he not advised the applicant about its availability during his conference. Mr Dacre's note also records a conversation with prosecution counsel. He said that inquiries were going to be made by the Crown as to whether the applicant's claims in interview about being trafficked could be substantiated. On that basis Mr Dacre applied for the arraignment to be adjourned, to allow for those inquiries to be made. The judge on that occasion agreed and the arraignment was adjourned to a further hearing on 10 November 2017. The judge also agreed that credit available at the PTPH stage should be preserved until that later hearing. 7. Mr Dacre was not available for the hearing on 10 November. The applicant was therefore represented by another colleague, Mr Renteurs. Mr Renteurs did not make a note of the conference with the applicant, but a note was made by the applicant's solicitor, Mr Snodgrass, of a firm then known as "Murry Partnership Solicitors". That note refers to advice having been given in relation to the defence of duress, although it makes no express mention of the defence available under section 45 of the Modern Slavery Act 2015. Mr Renteurs considers it to be extremely unlikely that he would not have discussed the section 45 defence as well as the defence of duress. He notes that he is fortified in his view by the fact that the issues identified at the previous hearing expressly referred to that defence. He also notes that the very reason for adjourning the PTPH on the previous occasion was in order for the Crown to review its position, in light of the positive reasonable ground’s decision issued by the Home Office in respect of the human trafficking claims made by the applicant. In those circumstances, Mr Renteurs considers it extremely unlikely that he would not have discussed and advised the applicant in relation to the section 45 defence. He also points out that, in his experience, duress and the section 45 defence tend to be discussed "in very much the same breath as there is in practice considerable overlap between applicability of those defences given the requirement for compulsion and of no realistic alternative." Mr Snodgrass's attendance note further records that, having had the defence explained to him, the applicant said that he wished to plead guilty as he "desperately wants to get shorter sentence as possible as he wants to see his family. He understands he could fight the case via duress but does not want to risk longer sentence." Following that conference at court, the applicant was arraigned and entered guilty pleas to both of the counts that he faced on the indictment. Sentencing was adjourned. 8. In a letter sent to the applicant following the hearing Mr Snodgrass stated that a long conference had taken place at court and that: i. "You explained that you had been forced to stay at the address and tend to the plants as payment to people smugglers. They have made veiled threats to you and your family. Mr Renteurs went on to explain the defence of duress. You stated however that you did not want to pursue the matter to trial and that you wanted to plead guilty. You explained that you basically just wanted to get the shortest sentence as possible so that you can see your family." 9. The applicant received a negative Conclusive Grounds Decision on 27 February 2018. That decision noted that there was a "vast array of inconsistencies" in the applicant's account, and that it was not accepted that he was a victim of modern slavery. 10. The applicant's co-accused had given a "no comment" interview and pleaded not guilty. He claimed to be a victim of trafficking and modern slavery but was convicted of both offences by a jury in March 2018. 11. Both the applicant and co-accused were sentenced on 6 April 2018. The applicant was represented at the sentencing hearing by Ms Stephenson of counsel. She does not recall any information being provided to her that caused her any concern that the defences have not been properly considered. Upon meeting the applicant on 6 April, he did not raise any desire to vacate his guilty pleas. Ms Stephenson took instructions on his personal circumstances and matters to be raised in mitigation. Her attendance note records that she "advised whilst I could not put forward defences of duress and trafficking in mitigation, I could argue that the conditions in which he was working placed him in a lesser role." In so doing, Ms Stephenson confirms that she was not seeking to advise the applicant on the availability of those defences given that he had already pleaded guilty. Ms Stephenson went on to advise the applicant that she would tell the court about the difficult circumstances that he was living and working in but did not intend to make submissions amounting to advancing the defence of duress or a defence under section 45 because that would be inconsistent with his earlier guilty pleas. Ms Stephenson records that no issue was raised by the applicant and there was no indication from him that he did not understand what he was being told or that he wanted to vacate his pleas. In other words, there was no indication that the applicant had changed his mind. As far as Ms Stephenson was concerned, her instructions were that the applicant had accepted his guilt, that he wished to maximise credit for his guilty pleas and did not wish to rely on any defence but put forward mitigation which amounted to a defence. 12. We have considered the transcript of the sentencing hearing before Mr Recorder Bryan on that occasion. The contents of that are consistent with Ms Stephenson's account. The judge expressly stated, and Ms Stephenson confirmed, the plea of guilty excluded duress and trafficking. However, Ms Stephenson did rely upon the circumstances, quite properly, as amounting to a form of exploitation which lessened his role in the offence. 13. On 15 June 2018, having served the custodial period of his sentence of imprisonment, the applicant was detained under immigration powers. On 2 July 2018, the applicant claimed asylum. His claim was refused. He then appealed to the First-tier Tribunal. The final outcome of the immigration proceedings and his current immigration status remain unclear on the papers. 14. Following judicial review proceedings, the Single Competent Authority reconsidered the applicant's status as a victim of trafficking and modern slavery. On 7 February 2022 the applicant received a positive conclusive grounds decision. The Single Competent Authority noted that the applicant said in his recorded interview that he had not sold or been involved in cultivating cannabis. He had also noted that he had however pleaded guilty to two counts of production of cannabis and possession with intent to supply. The decision goes on to deal with this inconsistency as follows: i. "It is noted that you addressed this inconsistency in your witness statement, in which you stated that your criminal solicitors advised you to plead guilty to decrease your sentence. You added that you did not realise that you could raise trafficking and modern slavery as a defence. It is considered that you have offered inadequate explanation as to the reason for your delay in disclosure as such for this inconsistency". 15. The Single Competent Authority further concluded that the cumulative medical evidence adduced in support of the applicant's case mitigates the inconsistencies in his account and that: "looking at the evidence in the round, it is considered your account has met the required threshold namely, 'on the balance of probabilities' it is more likely than not to have occurred." 16. This positive conclusive grounds decision is relied upon as fresh evidence in support of the applicant's appeal. The applicant also seeks to rely upon a number of witness statements prepared for the purposes of immigration proceedings. In the first of those statements, he claims he was advised to plead guilty to decrease the sentence and that the solicitors never spoke to him about trafficking or modern slavery and so he did not realise he could raise it as a defence in his case. 17. In a statement prepared for the purposes of this application, he states: i. "I cannot recall what advice I was given regarding entering a guilty plea, it has been a significant period of time that has passed, and I also suffer from mental health problems and I am still on medication which includes Fluoxetine and Quetipine. I am also on medication for my eye post-acid attack which includes Doxycycline and Maxidex. I have been on this medication for two years." 18. This fresh evidence and the fresh expert evidence referred to below has been considered by this Court de bene esse for the purposes of this application without making any final decision as to its admissibility under section 23 of the Criminal Appeal Act 1968. Grounds of Appeal 19. The applicant is represented before us by Dr Gerry KC. She relies upon three grounds of appeal. These are that the convictions are unsafe because the applicant's guilty plea was entered despite a positive reasonable ground decision of trafficked status. Had his true status been known, either the Crown's evidential test for prosecution would not have been met or he would have been acquitted at trial. Secondly, the positive conclusive grounds assessment renders it reasonable to conclude that the applicant was compelled to commit the crimes to which he pleaded guilty and, had this been known, he would not have been prosecuted and/or his guilty plea would not have been entered. Thirdly, his criminality is so significantly diminished, this Court should quash his conviction following the decision in R v AAD & Ors [2022] 1 Cr App R(S), that to maintain the conviction would be an abuse of process. 20. Dr Gerry seeks to rely on fresh expert evidence including two independent trafficking expert reports and medical evidence that he was a victim of human trafficking at the time, that his offending was a direct consequence of his trafficked status and that he has suffered significantly as a result of his experiences. As we have said, we have considered those reports. 21. Dr Gerry submits that the applicant does not recall being advised in 2017 that he could really raise duress or human trafficking as defences. She submits that this is understandable given the level of trauma he suffered and the risk that he and his family were under at the time. These matters should, she submits, have led to the obtaining of expert evidence of the type that has now been obtained. She further submits that had he been advised to pursue the conclusive grounds assessment he could have had his evidence heard. As such his guilty plea was premature and apparently put forward without full and clear advice on available challenges and where relevant expert evidence was not obtained. 22. Dr Gerry acknowledges that some consideration was given to the issues of duress and modern slavery but maintains, in her written submissions, that there remains an issue as to the extent and effect of such advice. It is suggested in her written submissions that the advice did not appear to have been complete. Although she does rein back from that somewhat in her oral submissions, she acknowledges that there were plainly differences as to the advice and it is not possible to challenge the McCook responses. 23. Similar grounds to those summarised were relied upon before the single judge, who concluded as follows: i. "I have considered the papers in your case and your grounds of appeal. ii. The applicant pleaded guilty to cultivation of cannabis. He was represented by solicitors and counsel. To have an arguable appeal against conviction he must bring himself within one of the three categories of case identified at [155] to [157] of AAD and others. The grounds of appeal assert that his plea was equivocal. In strict terms that is not correct. The applicant's real submission is that he was not properly advised about a defence which probably would have succeeded and/or that there was a legal obstacle to him being tried in that the prosecution would have been stayed as an abuse of process had the full position been known. iii. The applicant made a statement in 2019 in which he said that his solicitors advised him to plead guilty to decrease his sentence. He also said that his solicitors never spoke to him about trafficking or modern slavery so he did not realise that he could raise it as a defence. In a statement made in 2022 the applicant said that he did not recall at any stage being advised on a Section 45 defence or an [National Referral Mechanism] referral. If there were any prospect of those propositions being established, it would be necessary to consider whether it is arguable that a defence based on trafficking probably would have succeeded. In fact, the contemporaneous documentary evidence supported by the recollection of solicitors and counsel contradicts what the applicant has said. iv. Even at the magistrates' court there was discussion about the possibility of a defence based on duress or on trafficked status. This appears from the solicitors' attendance note. At the PTPH the applicant was not arraigned because the prosecution wished to consider their position in relation to the applicant's status. There had already been a reasonable grounds decision from the Single Competent Authority in the applicant's favour. Counsel noted on the PTPH form that the issues in the case were defence under S.45 of the Modern Slavery Act and duress. Counsel's clear recollection is that there was discussion with the applicant in relation to those issues. The contemporaneous material is clear and unequivocal. v. The adjourned case management hearing took place about 6 weeks later. There is some disparity between the recollection of the solicitor who attended and instructed counsel. The solicitor's attendance note refers to advice in relation to the defence of duress. Counsel considers that this must be taken as shorthand for duress plus trafficking given the overlap between the two and given the reason why arraignment had been postponed. In any event, there is agreement that the impetus for the plea came from the applicant. He did not wish to run any available defence. Rather, he wished to plead guilty in order to reduce his sentence. The judge at the PTPH had indicated that whatever credit was available at that point would be preserved until the adjourned hearing so there was a real benefit to be obtained from a plea at the adjourned hearing. vi. By the time of sentence the issue of plea was no longer immediately relevant. However, counsel who appeared for the applicant explained to him that, whilst the defences of trafficking and duress no longer were in issue, she could use the matters relevant to the potential defences in mitigation. This is recorded in a contemporaneous attendance note. There was an exchange with the sentencing judge which confirms the accuracy of the note. vii. Given all those matters, the proposition that the applicant was not advised about his defence is untenable. It also is not sensibly arguable that the applicant was advised to plead guilty to reduce his sentence. All of the contemporaneous material supports the proposition that it was his decision to take that course in order to obtain the benefit of a plea of guilty. viii. This is not a case in which the position was not appreciated by the prosecution. They considered the issue of whether the applicant was trafficked and how this might affect the proceedings. It is not arguable that there was or is any obstacle to the applicant being tried. It is to be noted that he had a co-accused who pleaded not guilty and who was convicted. The co-accused's personal position was similar to that of the applicant. ix. In those circumstances, the proposed appeal is not arguable. It falls at the first hurdle with the applicant's plea of guilty." 24. We agree entirely with the analysis of the single judge. Our reading of the contemporaneous notes of the various conferences with the applicant leading up to his guilty pleas and of the exchanges thereafter at the sentencing hearing as set out above is entirely consistent with that of the single judge. 25. Dr Gerry's suggestion, in her written submissions, that the advice given to the applicant by his legal advisors was somehow incomplete is wholly untenable. The applicant was given clear advice as to the availability of the defences but decided, of his own volition, to enter guilty pleas in order to minimise his sentence and the time away from his family. 26. It is notable that the positive conclusive grounds decision, which has provided much of the impetus for this application, is based in part on an acceptance of the applicant's assertions in statements that he had not been advised about the defences or that he had not realised he could raise such defences. For reasons already set out, those assertions appear to us to be unsustainable. 27. Dr Gerry's further submission is that even if there is a decision to plead guilty, by which we understand her to mean a plea which cannot be set aside for any of the available grounds summarised at paragraphs 155 to 157 of AAD & Ors , the United Kingdom's international obligations in respect of the protection of victims of trafficking means that the review process of the Appeal Court is engaged but the non-punishment principle applies and that the applicant should not have a criminal record or suffer the consequences of such a criminal record. She submits that it is either: (a) not necessary in circumstances where a victim of trafficking is involved for the vitiation of plea to fall within one of the broad categories identified in AAD & Ors; or (b) that there is a further category that protection remains necessary notwithstanding the advice and plea because "justice must be seen to be done". Furthermore, it is suggested that protection for victims of trafficking is an exception to the general principle of finality. In oral submissions this morning Dr Gerry elaborated on that and suggested that, given the applicant is worthy of protection by reason of his trafficked status, a different approach ought to be taken by the court to the guilty pleas in question. 28. In our judgment, none of these points is remotely arguable. Dr Gerry did not specify originally the international obligations upon which she relies. She has taken the opportunity to identify those obligations before the Court this morning. However, the Court of Appeal's decision in AAD & Ors was plainly reached with those obligations in the context of trafficking in mind. Thus, in relation to the question of whether the definition of "compulsion" in section 45 of the 2015 Act is too narrow, the Court there held: "153. Given the clear terms of section 45 which aptly reflect the United Kingdom’s international obligations in this context (as summarised above), there is no sustainable foundation for the submission that this legislative provision should be reformulated in the manner suggested, substituting the 'compulsion' element of the defence with that of 'causation'. That would involve the wholesale rewriting of a statutory defence without any, or any material, justification. At least since the Council of Europe Convention came into force domestically on 1 April 2009, the United Kingdom has subscribed to and implemented a binding international approach, now reflected in section 45, which provides a defence to certain crimes for trafficked individuals if the prosecution is unable to make the court sure the 'compulsion' defence does not apply." 29. The Court went on in the very next section of its judgment (at paragraphs 155 to 157) to consider whether a victim of trafficking could seek to argue that a conviction following a guilty plea is unsafe. There can therefore be no credible suggestion that in so doing the Court of Appeal did not have in mind those international obligations which it had just considered. Thus, the circumstances in which a guilty plea may be set aside by a victim of trafficking are those contained in the three broad categories set out at paragraphs 155 to 157 of the decision in AAD & Ors . The Court of Appeal did not see fit on that occasion to add any further category that would, if Dr Gerry were correct, enable victims of trafficking to set aside their plea irrespective of the circumstances. We see no arguable justification for such an expansion which would be an affront to the principle of finality. Accordingly, leave to appeal is refused. In the circumstances, any extension of time would be futile and is also refused. 30. We deal finally with anonymity as is said to be required for the protection of the applicant's safety. We bear in mind the importance of the principle of open justice. Although there is an extant positive conclusive grounds decision, there are reservations, as we have set out above, as to some of the evidence on which that decision is based. We have no information before us as to whether anonymity has been granted or continued in other proceedings. The principle of open justice requires that the identity of those who commit crimes be published unless it is strictly necessary and proportionate not to do so. The applicant was here properly convicted of serious offences having pleaded guilty. In the circumstances, we are satisfied that anonymity is not strictly necessary, and the principle of open justice prevails. This case should therefore be listed under the applicant's name and previous reporting restrictions, if there are any, should be revoked. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk

2023_06_09-5706.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1376/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1376

f684c7893b73bc24369a99e9a99ef314b2daa0bd2dabc1ab0077a85b423afcb1

[2024] EWCA Crim 341

EWCA_Crim_341

2024-03-20

crown_court

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making are that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. I N THE COURT OF APPEAL CRIMINAL DIVISION Case No: 2023/01957/B5 Royal Courts of Justice The Strand London WC2A 2LL Neutral Citation: [2024] EWCA Crim 341 Wednesday 20 th March 2024 B e f o r e: LADY JUSTICE MACUR DBE MR JUSTICE HOLGATE HIS HONOUR JUDGE PATRICK FIELD ( Sitting as a Judge of the Court of Appeal Criminal Division ) ____________________ R E X - v - CHRISTOPHER KYEI ____________________ Computer Aided Transcription of Epiq Europe Ltd, Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) _____________________ Mr L Walker KC appeared on behalf of the Applicant ____________________ J U D G M E N T ____________________ Wednesday 20 th March 2024 LADY JUSTICE MACUR: Introduction 1. On 15 th May 2023, the applicant, Christopher Kyei changed his plea to guilty to a single offence of possessing ammunition without a firearm certificate, contrary to section 1(1)(b) of the Firearms Act 1968 following a ruling from the prospective trial judge. He was sentenced to ten months' imprisonment. The period of 843 days spent in custody or on tagged curfew was ordered to count towards sentence. An order was made for the forfeiture and disposal of the ammunition, pursuant to section 52(1) Firearms Act 1968. The Facts 2. On 17 th August 2020, the applicant was arrested on an unconnected matter. The police searched his vehicle and recovered a shoe box with a Nike logo, and covered by black tissue, from the boot. The lidless box contained a further box inside a latex glove which contained ten unfired rounds of 9 millimetre ammunition. 3. When the applicant was arrested for possession of the ammunition, he replied "My boot?" When he was interviewed, he declined to answer questions. Two of the applicant's fingerprints were found on the outside of the box. 4. A man named Abukor gave a prepared statement to the applicant's solicitors, but declined to answer questions thereafter. He said that on 10 th August he had been present at a video shoot. The applicant was also present and had left his vehicle unlocked for the participants to use as a changing room and to relax. Abukor had been given the box to look after by someone he knew, and whom he described as dangerous. He had worn gloves to avoid leaving his fingerprints. The police had arrived at the shoot, and at that point he had panicked, put the box on the back seat of the applicant's vehicle and had run off. 5. There was evidence that Abukor suffered from some mental health issues and was sectioned. He was never charged and was out of the country at the time the applicant's trial was listed. 6. On the day of the trial, and prior to swearing a jury, counsel sought a ruling on whether the applicant had a defence in law. The judge ruled that he did not. 7. The applicant then pleaded guilty and tendered a basis of plea which was not accepted, and a Newton hearing was conducted prior to sentence. 8. The applicant's case was, or would have been before the jury, that he was a successful rap artist and had attended the video shoot for a fellow artist. He had one previous conviction for possession of ammunition ten years previously. He had seen the box on the back seat of his vehicle for a couple of days before he had pushed it through to the boot. He had no idea of its contents. He had not looked inside; nor had he been told. He had not answered questions in interview on the advice of his solicitor who was present throughout. 9. The judge accepted for the purposes of the Newton hearing that Mr Abukor had put the box into the car. 10. Seeking a ruling on the defence, Mr Walker submitted: (i) that the box containing the ammunition was "planted" in the applicant's vehicle without his knowledge; consequently, (ii) that he was not "in possession" of the same; and therefore, (iii) that the prosecution could not prove actus reus nor mens rea . 11. Mr Walker initially sought to distinguish between sections 1 and 5 of the Firearms Act 1968. He therefore advanced the matter before the court on the basis that section 1 should be distinguished since it was less serious and therefore different policy considerations should apply. 12. The judge rejected the arguments . In summary, he said that in R v Zahid [2010] EWCA Crim 2158, this Court had examined the argument that different considerations applied between sections 1 and 5, and had determined that both sections imposed strict liability. Further, in R v Hannat Hassan [2022] EWCA Crim 786, this Court found that a vehicle in which a container had been found was itself capable of description as a container. Pausing there, we note that Hannat Hassan relates to a renewed application for leave to appeal which was refused. There has been no indication in the authority, or otherwise sought from the presiding judge of that constitution, to refer to the judgment as authority in any future considerations if similar facts. 13. On the facts of this case, the judge found that the offending article had been placed into the boot of the applicant's car no less than seven days prior to his arrest, and had there been discovered by the police. It was not "planted" in the sense that the applicant had had the opportunity to exercise control over the item since it was deposited. He had been in possession of the vehicle, itself a container, in which the box and ammunition must have been present for seven days; he was "in possession" of it. 14. We summarise the draft grounds of appeal. First, it is said that the applicant did not "possess" the ammunition, since he had no knowledge of it. The question of whether the ammunition was "planted" on the applicant was a question of fact that should have been left to the jury. 15. Secondly, it is said that the judge should not have found that the principle to be derived from Hannat Hassan applied to an offence under section 1 of the Firearms Act 1968. 16. Thirdly, it is said that the judge was wrong to conclude that the car and the shoe box were a "container"; and that the applicant's knowledge of the ammunition box should have been left to the jury. 17. A Respondent's Notice was filed which, in summary, supported the judge's ruling. It emphasised the public policy considerations that apply for interpreting section 1 and section 5 as creating absolute offences: see R v Bradish [1990] QB 981. None of the "plant" authorities allow for the possibility of a defence where a defendant has the opportunity to ascertain the true contents of a container or package. The applicant had had ample opportunity to inspect it; he said that he had moved the box to the boot of the car. The law in regards to "strict liability" is settled. The Court of Appeal in Zahid concluded that the line of authority should not be reopened. Either the box, or the car were capable of being containers. 18. The single judge refused leave to appeal in terms: "The difficulty with grounds 1 and 2 is that the law relevant to your offence is settled and there is no realistic prospect of establishing otherwise. The Court of Appeal has interpreted the provisions of sections 1 and 5 of the Firearms Act as imposing strict liability. The prosecution need prove no more than that (i) the item in question is prohibited, and (ii) it was in your possession. This is clear from the decision of Zahid [2010] EWCA Crim 2158, in which the court cited, with approval, Bradish [1990] 90 Cr App R 271, and stated that the exposition of the law in that case as to the effect of sections 1 and 5 constituted binding authority and that in a 'container' case a defendant could not raise a defence that he did not know what was in the container noting 'this was an absolute offence'. Whether it is an offence of strict or absolute liability does not matter on the facts of your case. The shoe box was placed on the back seat of your car seven days before your arrest. When found by the police it had your fingerprints on it, and, as you subsequently conceded, you had moved it within the car (by some method). You were clearly aware of, and had ample opportunity to inspect the contents of, the shoebox and your case is clearly distinguished from a classical "plant" case. Ground 3 also has no merit. It is arguably the case that a shoebox (open or closed) is a container; indeed, a commonly used one." 19. Mr Walker has revived the written submissions made in his Advice and proposed Grounds of Appeal. He provides a comprehensive exposition on the issues of "possession", and makes frequent reference to Warner v Metropolitan Police Commissioner [1969] 2 AC 256 , without, we note, seeking to address the point that, as Latham LJ (then Vice President of the Court of Appeal Criminal Division) pointed out in R v Deyemi and Edwards [2008] 1 Cr App R 25, that "their Lordships were not ad idem about the meaning to be ascribed to the word 'possession'". 20. Nevertheless, Mr Walker concedes that the courts have determined that section 1 offences attract strict liability, but he submits that it would be wrong to describe the section 1 offence as one of absolute liability. The prosecution must prove that a defendant had knowledge that the item was in their possession. 21. We accept this proposition as well established by the authorities in so far as it applies to "planted" articles, of which an applicant literally has no opportunity to "take control" of the item by ejection or otherwise before its discovery. 22. However, that was not the applicant's case. He was aware of the presence of the box which transpired to contain the ammunition, albeit concealed under different layers, and he said that he had moved it within his vehicle. Deliberate ignorance – that is the applicant's seeming lack of curiosity of an item located on the back seat of his vehicle and its removal to the boot – does not support this article being "planted" and present without his knowledge. 23. The applicant was, of course, entitled to have his case of "plant" (if that is what it was) considered by the jury, but in our view these were not the facts that were put before the judge who was asked to give a ruling as to the defence in law. Thereafter, the applicant entered his guilty plea. 24. Mr Walker recognises that this court in Bradish concluded that there could be no defence for a defendant to claim that they did not know what was in a container; possession of a container is possession of its contents. Mr Walker challenges the extension of the definition of container to a motor vehicle, as was recently endorsed, he says, in Hannat Hassan on the basis that there was "no discussion on the impact on vehicle owners by extending liability in this way". He further suggests that it was obiter dicta on the facts of the case, as were such determinations in Bradish and Deyemi . He submits that this court is yet to consider a "container" case in the context of section 1 of the Firearms Act. 25. Frankly, we fail to see the relevance of this point to the applicant's case. There is no question but that the ammunition in this case was in a box which was, in itself, within the car. In any event, the "container" is only relevant for the purpose of considering "possession". 26. In Zahid , counsel for the appellant sought to submit that a distinction should be drawn between (i) cases where the defendant's case is that he was unaware of the contents of the relevant container, and (ii) cases where the defendant's case is that he believed that the contents of the container were something innocent, in the sense that the defendant believed that the contents of the container were something other than a firearm and/or ammunition, but as this court determined in Zahid : "Whichever category of case, the essence of the defendant's argument is: 'I did not know that the object in my possession was a firearm'. …" That is the point here – and there is no possible valid differentiation of the meaning of "possession" between sections 1 and 5 to require the court to define "container" differently in this case. 27. That a broader definition of "container" may bring a far broader range of conduct within the net of serious criminal penalty should be seen in the context of the offence charged and the facts of the individual cases. The definition of "container" only becomes an issue in section 1 and section 5 offences in terms of considering knowledge and possession. 28. We regret that we conclude that Mr Walker's conspicuous display of knowledge fails to advance any argument that has not been previously considered in this court. The single judge was right. There is absolutely no merit in this renewed application. The conviction is not arguably nor remotely unsafe. 29. The applicant is not in custody. The only order we can make, therefore, is an order under section 18(6) of the Prosecution of Offences Act 1985 for the applicant to pay the reasonable costs of the transcripts in this case. That cost is £56.70. We so order. ________________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk ______________________________

2024_03_20-6097.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2024/341/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2024/341

d4d88c91574456277a8c90e6968927eef09c1d0f5a50d3da52919cbac4ec416d

[2013] EWCA Crim 436

EWCA_Crim_436

2013-04-16

crown_court

Case No: 201203689D2 Neutral Citation Number: [2013] EWCA Crim 436 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SWANSEA His Honour Judge H. Davies Q.C. T20110620 Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/04/2013 Before : LORD JUSTICE LEVESON MR JUSTICE MITTING and MR JUSTICE MALES - - - - - - - - - - - - - - - - - - - - - Between : DARYL HOWARD MORRIS Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Case No: 201203689D2 Neutral Citation Number: [2013] EWCA Crim 436 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SWANSEA His Honour Judge H. Davies Q.C. T20110620 Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/04/2013 Before : LORD JUSTICE LEVESON MR JUSTICE MITTING and MR JUSTICE MALES - - - - - - - - - - - - - - - - - - - - - Between : DARYL HOWARD MORRIS Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Sarah Waters (instructed by the Registrar of Criminal Appeals) for the Appellant Dean Pulling (instructed by the CPS) for the Crown Hearing date : 12 March 2013 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Leveson : 1. On 22 May 2012, in the Crown Court at Swansea before His Honour Judge Davies Q.C. and a jury, Darryl Howard Morris was convicted of dangerous driving. He was later sentenced to a community order involving 180 hours of unpaid work, disqualified from driving for a period of 12 months and ordered thereafter to undertake an extended driving test. He now appeals against conviction by leave of the single judge. 2. The facts fall within a very small compass. The appellant was a taxi driver and, at about 3.30 am on 12 March 2011, he accepted a fare consisting of four young men (including Martin Walters) who emerged from Aspers Casino in Swansea, having spent the evening together. They had been drinking and were quite noisy. They arranged to be taken to the Brynhyfryd area, it being intention of the four men that there would be more than one drop off point. One of them (Jamie Thompkins) said that he specifically told the appellant when they got into the taxi that there would be two destinations. 3. As instructed, the appellant drove to Eaton Road in Landore, Swansea and stopped. Three of the men alighted and started walking away at a fast speed (two were chasing each other, the third was trying to catch up). That left Jamie Thompkins in the taxi: he intended to pay the fare. Meanwhile, however, the appellant did not realise that he still had a passenger in the cab and to stop what he thought was an evasion of the fare, he drove his taxi onto the pavement and caused Martin Walters, at the front of the group, to fall to the ground and suffer a broken ankle: there was an issue about the way in which that injury was sustained. 4. After the incident, the police were called; they were unable to interview the four men (due to their state of intoxication) and only a very basic investigation was undertaken: there was no independent evidence of Martin Walter’s position after the collision and the taxi had, in any event, been moved. 5. The case for the prosecution was that the appellant deliberately drove his taxi onto the pavement at speed, revving the engine, and pursued the pedestrians, driving into Mr Walters and causing him to fall under the taxi: this was dangerous driving and the appellant had acted unreasonably in all the circumstances and had used unreasonable force in any event, regardless of what had occurred. The defence case was that although he had not looked back into the taxi (a seven seater) to check that all four passengers had alighted and thus had not realised that one had remained, he believed that they had shared an intention of making off without payment of the fare. He drove the taxi onto the pavement to prevent them from making off and/or to assist in their lawful arrest (in the absence of a constable); he had done so at a slow speed to block the escape of his erstwhile passengers whereupon Mr Walters had fallen over the bonnet of the car and to the ground: that had caused his injuries. Those actions, it was contended, were reasonable. 6. The appellant also relied on his previous good character; he called evidence in support of his positive character traits and professional driving skills. During the course of the evidence, he spoke of 6-8 previous occasions when passengers had run off without paying the fare which had led to him running after them. He admitted, however, that on one previous occasion, in Llanelli, he had driven onto the pavement. 7. Before considering the issue of dangerous (or alternatively careless) driving, it was common ground that the jury had to consider the general defence contained within s. 3(1) of the Criminal Law Act 1967 which provides: “A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.” 8. An issue arose as to which limbs of this provision should be left to the jury. Miss Waters, for the appellant, argued that the jury should be directed to consider whether the appellant was seeking to prevent crime, prior to considering the alternative, namely whether he was assisting in the lawful arrest of offenders. The judge ruled that the only defence that could be left to the jury was the latter: the appellant could not have been preventing a crime under the first limb of s. 3(1) because the offence of making off without payment was made out (and completed) when Mr Walters and his friends alighted from the taxi. 9. Miss Waters challenges that ruling and also criticises the way in which the learned judge used the appellant’s admission that he had previously driven on the pavement in order to modify the good character direction which he gave. The Directions as to the Defence 10. In carefully prepared directions (copies of which were provided to the jury), amongst other directions, the judge dealt with the use of force in effecting the lawful arrest of a suspected offender in this way: “6. The first issue for you to resolve, therefore, is whether the prosecution has proved, so that you are sure, that the defendant was arresting Martin Walters unlawfully when he used his taxi to stop him going where he wanted to go. An arrest of Martin Walters by the defendant would have been lawful if and only if: (a) either (1) Martin Walters was in the act of making off without payment or (2) if he was not doing so the defendant had reasonable grounds to suspect that he was doing so and (b) it appeared to the defendant that it was not reasonably practicable for a constable to make the arrest instead of him and (c) the defendant had reasonable grounds to believe that it was necessary to arrest Martin Walters to prevent him making off before a constable could assume responsibility for him. 8. If it was lawful for the defendant to arrest Martin Walters then he was entitled to use such force as was reasonable in effecting such an arrest. 9. If you are sure that it was not lawful for the defendant to arrest Martin Walters then it is not necessary for you to decide any question about whether the degree of force used was reasonable and you will proceed to decide whether the prosecution have proved an offence of dangerous or careless driving without further reference to the concept of the use of force to effect a lawful arrest. 10. If you think it was or may have been lawful for the defendant to arrest Martin Walters, the question whether the degree of force he used was reasonable in the circumstances is to be decided by reference to the circumstances as you find the defendant genuinely believed them to be, even if his belief was mistaken and even if it was an unreasonable one. 11. Reasonable force means proportionate force. The degree of force the defendant used would be reasonable if it was proportionate in the circumstances as the defendant believed them to be. So the degree of force the defendant used would not be reasonable if it was disproportionate in the circumstances as the defendant believed them to be. 12. Remember that a person using such force in order to effect the lawful arrest of a suspected offender may not be able to weigh up to a nicety the exact measure of any necessary action. 13. Remember too that if the defendant was using only such force as he believed was necessary to effect the lawful arrest of a suspected offender, that would be strong evidence that the force he used was reasonable in the circumstances. 14. If you think that it was or that it may have been lawful for the defendant to arrest Martin Walters then you will proceed to decide whether the prosecution have proved an offence of dangerous or careless driving in the light of the fact that a person effecting a lawful arrest may do so using such force as is reasonable in the circumstances as he believes them to be.” 11. This direction accurately deals with the effect of the provisions of s. 24 A of the Police and Criminal Evidence Act 1984 and s. 76 of the Criminal Justice and Immigration Act 2008 and, so far as it goes, is not contentious. The issue, however, is whether it goes far enough. In particular, assuming that Mr Walters had not in fact made off, or was not making off, without payment (and the appellant accepted that the fourth passenger remained in the vehicle and did not, in the event, contend that his passengers were guilty of that offence), it required the appellant to have reasonable grounds to suspect that they were. 12. The argument advanced by Miss Waters is that it should have been left to the jury to decide whether the appellant genuinely (however unreasonably) believed that his passengers were in the act of making off without payment, in which event, the jury should then have been directed to consider the degree of force used, again by reference to the appellant’s genuine belief. 13. The reason for the judge’s rejection of that approach is essentially to be gained from a consideration of Attwood [2011] RTR 173 which decided that dangerous driving to force another car to stop some time after an alleged accident could not be justified as preventing the crime of failing to stop after an accident since any offence of failing to stop was already by then complete. The parallel is not, of course, exact because the requirement to stop follows immediately on the accident; there is no room for a driver who knows that he or she has been involved in an accident to take time (and distance) before complying with the obligation. 14. Nearer to these facts, but to like effect, is Aziz (1993) Crim LR 708. Two passengers in a taxi asked to be taken some 13 miles; on arrival, they refused to pay the £15 fare asserting that it was only 4 miles for which they would pay £4. The taxi driver’s controller confirmed the fare in the hearing of the passengers and suggested that the driver take them to the police station if they would not pay. The passengers then falsely claimed to be police officers so the driver said that he would take them back to their hotel but, en route, decided to go to the police station. One passenger tore the radio lead from its socket and tried to engage reverse gear; the driver pulled into a petrol filling station and asked the attendant to call the police. The same passenger released the central locking and they both ran away. The taxi driver drove after them and caught the other passenger after half a mile and told him to get back into the taxi to await the police, which he did. The passenger was charged with making off without payment. 15. Making off without payment is defined by s. 3 of the Theft Act 1978 and is committed by a person “knowing that payment on the spot for …. service done … dishonestly makes off without having paid as required or expected and with intent to avoid payment”. “Payment on the spot” includes “payment at the time … in respect of which service has been provided”. It was contended that making off involved a departure from the spot where payment was required, namely the end of the journey, so that the jury should have been directed to consider whether the requirement for payment had ceased because the taxi driver had announced his intention of taking the passengers back to the hotel where the journey had started. 16. This court rejected that argument, concluding that the words “dishonestly makes off without payment” were not qualified in any way; the words “makes off” involved a departure without paying from the place where payment would normally be made. In the case of a taxi, payment might be made while sitting in the taxi or standing by the window. In this case, payment was requested whilst the fares were still in the cab when it became apparent that the fare was disputed. The fact that the taxi driver drove off to the police station, or somewhere else, locking the door, did not mean that when the defendant ran off he could not be making off without having paid, dishonestly intending to avoid payment. It was for the jury to say on the evidence whether the offence was made out. It was the time at which he made off which was critical at which he had to have formed the intention to avoid payment. 17. To apply the words “in the case of a taxi, payment might be made while sitting in the taxi or standing by the window” too literally would be to misunderstand the legislation. Thus, if a passenger were to explain (honestly) to the taxi driver that he had to enter his house in order to obtain the fare, the moment for payment would be deferred for him to do so. A decision not to return to the taxi would mean that, from that moment, the passenger is making off without payment. The taxi driver would never be in a position to know precisely when the passenger decided not to pay and, in our judgment, must be able to follow the passenger to challenge him in an attempt to prevent the commission of the offence. 18. The same principle can be applied in relation to a restaurant bill. If a diner approached the reception, credit card in hand, was distracted and then walked away, the owner of the restaurant would not know whether (or, if so, when) a decision had been made dishonestly to make off without payment. It would be reasonable for him to follow the diner and stop him on the basis that he was seeking to prevent the commission of the offence of making off or (alternatively) reminding the diner that he had forgotten to pay. He should not thereby risk a complaint of assault. The fact is that a restaurant owner (or a taxi driver) should not be required to make an accurate assumption of the intention of the person who has not, in fact, paid the bill or fare: he needs to be able to find out all the while as the person involved is ‘making off’. 19. The use of reasonable force in self defence or in defence of another person is lawful. The essence of these defences is the honestly held belief of the defendant as to the facts (but not the law: see Jones [2007] AC 137 per Lord Bingham at paragraph 24 and Lord Hoffmann at paragraph 72). In relation to use of force in the prevention of crime (such as to prevent an unlawful attack on another), the defence is afforded by s. 3 of the Criminal Law Act 1967 . If honest belief affords a defence under s. 3 in those circumstances, it must equally do so a person who claims to have used reasonable force to prevent the commission of a crime other than a crime of violence against another. 20. Accordingly, if, as the appellant contended in this case, he honestly believed that the men were making off without payment, he was entitled to use reasonable force in order to prevent the commission of that offence; the jury would thus be required to consider whether driving onto the pavement (howsoever that occurred) was the reasonable exercise of the use of force. The difficulty with the way in which the judge put the case was that his direction required the jury to consider whether the appellant had reasonable grounds to believe that it was necessary to arrest Mr Walters to prevent him making off before a constable could assume responsibility for him. If they concluded that he did not have reasonable grounds (perhaps because he should have realised the fourth man was still in the cab), they never get to the question of the use of reasonable force. 21. The learned judge did not deal with the possibility that the jury could conclude that the appellant was acting to prevent crime because he concluded, as a matter of law, that once the passengers had moved away from the window of the taxi (ie where they should have paid the fare), they had ‘made off’. He thereby failed to ensure that the jury focussed on what the appellant honestly (i.e. genuinely) believed were the facts before using their conclusions as to that belief to go on to decide whether he may have had reasonable grounds for suspecting that an offence was being committed (or had been committed such that he had a reasonable belief that an arrest was necessary) and crucially, whether the force used may have been reasonable. This approach is consistent with Faraj [2007] EWCA Crim 1033 . 22. In the circumstances, we accept the submission that there was an error of law in the direction of law that the jury were given. Although we have real reservations about the question whether a jury properly directed could ever have concluded that the use of force in this case was or may have been reasonable and, thus, that the offence of dangerous driving was not made out, in the light of the failure to focus on the honest belief of the appellant, we conclude that the conviction is unsafe. 23. In the circumstances, we do not deal with the second ground of appeal concerning character, save only to observe that the appellant relied on his good driving skills and (albeit arguably not in the context of a Lucas direction) cannot complain if the judge refers adversely to his admission that there had been a previous occasion when he had driven onto the pavement to prevent a passenger from making off. 24. In the circumstances, this conviction is quashed. An application was made for a retrial on the grounds that taxi drivers have a particular responsibility in relation to their driving and the safety of the public is paramount. Having said that, however, the appellant has completed the unpaid work ordered and almost completed the period of disqualification. Although the quashing of his conviction will mean that he is entitled to the return of his driving licence with no question of any re-test, rather than order a re-trial, it seems to us that the better course is not to do so but to refer the facts of the case to the relevant licensing authority.

2013_04_16-3149.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/436/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2013/436

7b227e76efec6b1ec727800a09535c608fd084e63a492a16db7694cefde3e73a

[2013] EWCA Crim 2638

EWCA_Crim_2638

2013-11-29

crown_court

No: 201204482 C2; 201303225 C2 Neutral Citation Number: [2013] EWCA Crim 2638 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 29th November 2013 B e f o r e : LORD JUSTICE ELIAS MR JUSTICE SUPPERSTONE MR JUSTICE JEREMY BAKER - - - - - - - - - - - - - - R E G I N A v WILLIAM LUCAS BATCHELOR - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Stree

No: 201204482 C2; 201303225 C2 Neutral Citation Number: [2013] EWCA Crim 2638 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 29th November 2013 B e f o r e : LORD JUSTICE ELIAS MR JUSTICE SUPPERSTONE MR JUSTICE JEREMY BAKER - - - - - - - - - - - - - - R E G I N A v WILLIAM LUCAS BATCHELOR - - - - - - - - - - - - - - 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 Stone QC appeared on behalf of the Appellant Mr D O'Mahoney appeared on behalf of the Crown - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE ELIAS: This is an appeal against conviction and renewed application for permission to appeal against sentence. The only ground advanced with respect to the conviction appeal is a submission that the judge was wrong in law to refuse to allow a defence of duress to go to the jury. 2. Following that ruling the appellant pleaded guilty and was given a sentence of four years' imprisonment. This was for the offence of cheating at common law, although the single offence involved a number of different dishonest incidents. 3. It is unnecessary to set out in any detail the background to this offence. The appellant was sole director and shareholder of JCV Properties, a company that bought disused land with a view to obtaining planning permission and developing it. It was registered for VAT and over a period in excess of two years JCV's accountants submitted VAT returns at the behest of the claimant. The returns claimed refunds of VAT based on invoices provided by the appellant who had fabricated most of them. Nine of the false returns, totalling almost £675,000, were paid by Her Majesty's Revenue and Customs to JCV. The last claim was in excess of £96,000 but it was not paid because the fraud was discovered. 4. The appellant lived in Monaco but travelled regularly to the UK and had various bank accounts in both jurisdictions. The monies were used mainly for the appellant's business and personal expenditure. When the fraud was discovered, the appellant said to his accountants, "The game is up". He admitted making up the invoices and said he would repay the money. He answered no comment to all interviews. He did not raise the issue of duress until his defence case statement in April 2011. 5. At trial, he gave evidence about the alleged duress over many days. The gist of it was that he was in dispute with another man about a piece of land he had bought in Sutton for £14,000. He said that he was twice beaten up by men in Monaco who carried guns. They had demanded money from him and threatened him and his family with incidents of violence. He said this continued throughout the whole period of the indictment. There was another occasion when he had been visited in France and the assailants, the same as had originally attacked him in Monaco, had produced a photograph of his children and made threats in relation to them. It was at that stage that he produced the first false invoice which was submitted to Customs and Excise. He was given a mobile phone on which he was telephoned almost every day by a man named John. John frequently reiterated the threats, including on one occasion at least that his children would be tortured. At one point he told John that he would get a VAT rebate on property and John was very interested in that and later told him to make up invoices. He said the only monies he had actually paid to those threatening him were £10,000 a quarter. through an English friend, which allegedly constituted interest, and a lump sum of £200,000 in April 2011 after his arrest and interview. 6. The judge referred to the extensive evidence relating to this matter. There was also some evidence from other witnesses who lent support to his contention that he had been feeling unwell and had suffered certain injuries during the relevant period. In addition, the judge had before him medical evidence, which at that point had not been placed before the jury, and which suggested that the applicant was suffering from post-traumatic stress disorder. 7. The judge had to consider whether or not evidence of duress should go to the jury and he concluded that it should not. He summed up the relevant principles to be derived from the authorities in the following way: "( unchecked ) ... The requirements of a particular defence are that the threat relied upon has to have been one of serious injury or death, that the harm has to have been directed at the defendant, a member of his immediate family, or someone else close to him and someone whose safety the defendant reasonably regards himself as being responsible for. The defendant genuinely and reasonably has to believe that the threat, but for his compliance, will be carried out immediately or almost immediately, and the threat of a defendant's reasonable belief has to be the direct cause of the defendant's actions. The reasonable person in the defendant's situation would have been driven to act as the defendant did, the reasonable person being treated as being stable or ordinary firmness, of the same age and gender of the defendant but otherwise sharing his relevant characteristics. Of course it is agreed that there has to have been no action to evade the effects of the threat being available; in other words, if there were available to a defendant a reasonable course of action for him to take to evade the threat, he is expected to take it." 8. The judge applied this principle and concluded that in the circumstances, even if the appellant had been subject to the sustained and indeed terrifying attacks that he claimed, he had every opportunity to go to the police. As the judge noted, the appellant did not dispute that he had an opportunity to go to the police over the period of two and a half years during which time he had been coming backwards and forwards to this country. When asked the question why he had not gone to the authorities, he said: "I did have the opportunity but there was no way that I was going to because of the threats that I was under, both to me and those close to me." 9. Applying the relevant principles, the judge concluded that there was no evidence from which a jury could find that he had acted under duress. He summarised his conclusions as follows: " Reminding myself, as I must, as to what is required to raise in law the defence of duress, I have come to the view that it has not been raised. There is not sufficient evidence to amount to duress in this case. There was ample opportunity to evade the threats which the defendant says he was subject to. I also remind myself as to the particular offence of which the defendant is accused and the harm that was threatened of the defendant, which he tells us about, was not directed to him to commit this particular crime directly. This is not one of those cases where someone has a gun at someone's back and says 'commit this particular crime'. The defendant has, on his own account, resorted to committing this VAT fraud in an effort to raise money to pay others." 10. There are therefore two distinct grounds on which the judge felt that the case should not go to the jury: first, that there was ample opportunity to evade the threats, and, second, that the threat was not directing or causing the appellant to commit this particular crime. 11. The appellant now contends that the judge was wrong in this conclusion that duress was inapplicable and that he ought to have allowed the defence to go to the jury. Mr Stone QC, counsel for the appellant, submits that it is a highly unusual step to withdraw evidence from the jury in this way; it should have been for them to decide whether the appellant was overborne by the nature and extent of these threats. In that context he says the judge also ought to have considered the psychiatric evidence which was available to him. Taking evasive action 12. We were taken to a number of authorities relating to the defence of duress, but in our judgment we need only refer to the speech of Lord Bingham of Cornhill in Z [2005] 2 AC 467 , a judgment with which Lord Steyn, Lord Rodger and Lord Brown agreed. We focus first on passages which deal with the proposition that the defence is not available if a defendant could reasonably be expected to take evasive action. That proposition rests on what Lord Bingham identified as the sixth of seven limitations to the defence in paragraph 21 of his speech. He said this: "The defendant may excuse his criminal conduct on grounds of duress only if, placed as he was, there was no evasive action he could reasonably have been expected to take. It is necessary to return to this aspect also, but this is an important limitation of the duress defence and in recent years it has, as I shall suggest, been unduly weakened." He then returned to the point at paragraph 28 and made it plain that the requirement should be very strictly applied: "... It should however be made clear to juries that if the retribution threatened against the defendant or his family or a person for whom he reasonably feels responsible is not such as he reasonably expects to follow immediately or almost immediately on his failure to comply with the threat, there may be little if any room for doubt that he could have taken evasive action, whether by going to the police or in some other way, to avoid committing the crime with which he is charged." 13. In this context it is also helpful to note what Lord Bingham said in paragraphs 26 and 27: "The recent English authorities have tended to lay stress on the requirement that a defendant should not have been able, without reasonably fearing execution of the threat, to avoid compliance. Thus Lord Morris of Borth-y-Gest in R v Lynch [ (1975) AC 653 ], at p 670, emphasised that duress 'must never be allowed to be the easy answer of those who can devise no other explanation of their conduct nor of those who readily could have avoided the dominance of threats nor of those who allow themselves to be at the disposal and under the sway of some gangster-tyrant.' Lord Simon of Glaisdale gave as his first example of a situation in which a defence of duress should be available (p 687): 'A person, honestly and reasonably believing that a loaded pistol is at his back which will in all probability be used if he disobeys ...' In the view of Lord Edmund-Davies (p 708) there had been 'for some years an unquestionable tendency towards progressive latitude in relation to the plea of duress.' 27. In making that observation Lord Edmund-Davies did not directly criticise the reasoning of the Court of Appeal in its then recent judgment in R v Hudson and Taylor [1971] 2 QB 202, but that was described by Professor Glanville Williams as 'an indulgent decision' (Textbook of Criminal Law, 2nd ed, 1983, p 636), and it has in my opinion had the unfortunate effect of weakening the requirement that execution of a threat must be reasonably believed to be imminent and immediate if it is to support a plea of duress. The appellants were two teenage girls who had committed perjury at an earlier trial by failing to identify the defendant. When prosecuted for perjury they set up a plea of duress, on the basis that they had been warned by a group, including a man with a reputation for violence, that if they identified the defendant in court the group would get the girls and cut them up. They resolved to tell lies, and were strengthened in their resolve when they arrived at court and saw the author of the threat in the public gallery. The trial judge ruled that the threats were not sufficiently present and immediate to support the defence of duress but was held by the Court of Appeal to have erred, since although the threats could not be executed in the courtroom they could be carried out in the streets of Salford that same night. It was argued for the Crown that the appellants should have neutralised the threat by seeking police protection, but this argument was criticised as failing to distinguish between cases in which the police would be able to provide effective protection and those when they would not. The Court of Appeal placed reliance on the decision of the Privy Council in Subramaniam v Public Prosecutor [1956] 1 WLR 965 . That case, however, involved a defendant who sought at trial to advance a defence of duress under a section of the Penal Code of the Federated Malay States which provided that, with certain exceptions 'nothing is an offence which is done by a person who is compelled to do it by threats, which, at the time of doing it, reasonably cause the apprehension that instant death to that person will otherwise be the consequence ...' The appeal was allowed because evidence relied on by the appellant to show that he had had a reasonable apprehension of instant death was wrongly excluded. It is hard to read that decision as authority for the Court of Appeal's conclusion. I can understand that the Court of Appeal in R v Hudson and Taylor had sympathy with the predicament of the young appellants but I cannot, consistently with principle, accept that a witness testifying in the Crown Court at Manchester has no opportunity to avoid complying with a threat incapable of execution then or there. When considering necessity in R v Cole [1994] Crim LR 582, 583, Simon Brown LJ, giving the judgment of the court, held that the peril relied on to support the plea of necessity lacked imminence and the degree of directness and immediacy required of the link between the suggested peril and the offence charged, but in R v Abdul-Hussain [[1999] Crim LR 570], the Court of Appeal declined to follow these observations to the extent that they were inconsistent with R v Hudson and Taylor , by which the court regarded itself as bound." 14. Finally, it is also pertinent to note that in the course of his speech Lord Bingham referred to two cases in which he said the defence of duress should have failed for lack of immediacy since the threat was not to be executed immediately. In the case of Ali [1995] Crim LR 303 the appellant became involved in drug dealing. He said he had been compelled to rob a bank at the instigation of his supplier, who had threatened to kill him if he did not do so. The trial judge and this court both focused on the question whether he had voluntarily put himself in a position where he would be required to perform criminal acts and therefore could not rely upon duress. As Lord Bingham noted, the defence should in any event have failed because the threat was not to be executed until the following day, and therefore the defendant had an opportunity to take evasive action. He said the same about the case of Cole [1994] Crim LR 582, where again there was an opportunity for the defendant to take evasive action before committing the offence in question because the threat was not to be executed until the following day. 15. In our judgment, there can be no doubt that, applying these principles, it would extend the defence of duress well beyond permissible limits if we were to accede to this appeal. If the defence was not available to the teenaged girls in Hudson , and Lord Bingham made it plain that the Court of Appeal Criminal Division erred in overturning the decision of the circuit judge in that case, then we see no grounds at all on which it could apply here. The appellant could have gone to the police at any time over a period of two and a half years. Moreover, he was not placed under such fear that he was being forced immediately to pay John, the individual allegedly putting him in fear. That is not to say, as the judge pointed out in his sentencing remarks, that the appellant may not have been subject to some deeply unpleasant intimidation, but even he if his account was true in all the particulars, the appellant could not reasonably believe that the execution of the threat was imminent and immediate. The law requires a certain degree of fortitude to be shown by victims in circumstances such as these. The teenaged girls were no doubt in genuine and real fear of their safety in Hudson , but that was not a justification for applying the defence of duress because they had the opportunity to avoid complying with the threat. The CACD in that case had allowed its sympathy to distort legal principles. Were we to accede to this appeal, then even assuming that the account of the intimidation was true, we would be doing the same thing. 16. Given that in our view a properly directed jury could not possibly find the defence applicable, in our view the judge was right not to allow this matter to be left to the jury. 17. We agree with the observations of Laws LJ in the case of Bianco [2001] EWCA Crim 2516 at paragraph 15. He also was faced with a case where it was being contended that the issue of duress should have been left to the jury. The recorder ruled that it should not and the Criminal Division of the Court of Appeal considered her ruling to be entirely correct. It was urged upon the court, as it has been urged upon us today, that nonetheless the matter ought to have been left to the jury and that it was wrong for the judge to withdraw the defence because that was usurping the jury's function. His Lordship said this: " It is important however to acknowledge the submission made by Mr Bell on the appellant's behalf that the ruling in truth usurped the function of the jury and therefore deprived the appellant of a fair trial or a proper trial in English law. He says that there should be no minimum evidential requirement for a defence to be left to the jury. It is certainly true that once a defence such as duress is left to the jury then it is for the Crown to disprove it to the criminal standard. In our judgment, if the case is one where no reasonable jury properly directed as to the law could fail to find the offence disproved, no legitimate purpose is served by leaving it to the jury. It is not generally within a jury's constitutional function to arrive at what ex hypothesi would be a perverse result in circumstances such as these. There must at least be some evidence upon which a jury could properly conclude the defence of duress had not been negative." He went on to say that there was no breach of Article 6 in these circumstances. 18. We respectfully agree with that analysis. We were, however, taken to some criticisms of Bianco in Archbold, paragraph 17-125 of the 2014 edition. The authors suggest that it may have been wrong in that case for the issue of duress not to be left to the jury, and they add this: " If there is evidence of duress, then the judge is duty bound to leave the issue to the jury. The fact that a judge may think that no reasonable jury could fail to find the defence disproved provides no justification for not leaving the issue to the jury." 19. We respectfully disagree with that observation and we note that it seems to be also at odds with the observation that Lord Bingham made about the case of Hudson . In Hudson the judge had withdrawn the case of duress from the jury. The Court of Appeal had held that that was wrong, but Lord Bingham indicated that in fact the recorder had been correct. We agree with Laws LJ that there can be no purpose in leaving a defence to the jury which the jury considering the evidence could not properly reach. Of course it is right to say that if there is evidence of duress then the judge is bound to leave it to the jury, but by "evidence" it must mean evidence which would in principle be sufficient to justify a jury concluding that the defence is established. 20. I should add that it was submitted that the judge had erred in not taking into account in his ruling the psychiatric evidence advanced by the relevant psychiatrist. 21. We think the short answer to that is that all counsel involved, and the judge, considered that this evidence was irrelevant at the stage at which the judge was considering whether or not the question of duress should go to the jury. We do not see how it could have had any bearing on the question of whether or not this defendant had the opportunity to take evasive action. 22. In the circumstances it is not necessary for us to consider the alternative basis on which the judge held that the defence should not be left to the jury, namely that the threat was not directed to causing him to commit this particular offence. 23. We then turn to the question of sentence. The judge in his sentencing remarks accepted that the appellant may have been subject to some intimidatory treatment. He referred to the fact that it was a serious offence and that it had taken place over a number of years. He specifically referred to the medical evidence that was before him and he said that he was, by analogy, having regard to the guidelines. 24. There are essentially two criticisms of this sentence, but it is not said that the judge's starting point was wrong. If one looks at the analogous guidelines in relation to fraud, the starting point would be five years for an offence of this nature and the range would be four years to seven years. But Mr Stone submits that the judge failed to give proper weight to the psychiatric evidence in particular, and also failed to give credit for the guilty plea. 25. We see no basis for saying that the judge failed to give proper regard to the psychiatric evidence, he referred to it, he had it before him and we have no doubt that he did take it into consideration. The contention has to be that he gave it insufficient weight, but we would not accept that submission. 26. The second ground is that the judge did not give any credit for the guilty plea. He did not specifically refer to the fact that he was giving such credit, but it must be remembered that this plea came extremely late in the day, three days into the trial, and therefore any credit would have been very small. If once looks at this sentence overall and compares it with the guidelines, as the judge did, then it seems to us it cannot possibly be said that four years is manifestly excessive given the amounts involved and the period of time over which these offences occurred. 27. Accordingly, we reject this application. We think the judge reached a perfectly proper sentence and there are no grounds on which it could be said to be manifestly excessive.

2013_11_29-3293.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/2638/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2013/2638

3912672c77a61bd800efd93bcde0aae34a1d26d422e94589a679bc8ffe74163e

[2008] EWCA Crim 1761

EWCA_Crim_1761

2008-07-11

crown_court

Neutral Citation Number: [2008] EWCA Crim 1761 No. 2007/05804/D3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Friday 11 July 2008 B e f o r e: LORD JUSTICE RICHARDS MR JUSTICE SILBER and SIR CHRISTOPHER HOLLAND __________________ R E G I N A - v - OSAMA EL HUDAREY __________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Off

Neutral Citation Number: [2008] EWCA Crim 1761 No. 2007/05804/D3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Friday 11 July 2008 B e f o r e: LORD JUSTICE RICHARDS MR JUSTICE SILBER and SIR CHRISTOPHER HOLLAND __________________ R E G I N A - v - OSAMA EL HUDAREY __________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) __________________ Miss F Arshad appeared on behalf of the Appellant Miss N Sharma appeared on behalf of the Crown ____________________ J U D G M E N T LORD JUSTICE RICHARDS: 1. On 22 March 2006, at Isleworth Crown Court, before Mr Recorder Lucas, the appellant pleaded guilty on re-arraignment to an offence contrary to section 2(1) of the Asylum and Immigration (Treatment of Claimants) Act 2004 . He was sentenced to a conditional discharge for 12 months. His plea was entered on a written basis which is now said to have disclosed a defence to the charge such that he should not have been convicted on that plea. An extension of time and leave to appeal have been granted by the single judge. The appeal is not opposed by the Crown. 2. The facts are these. The appellant, a Libyan national, entered the United Kingdom on 19 October 2004 as an asylum seeker. He obtained a false passport in his home country. While on the flight here he destroyed that false passport, believing that it would be a more serious offence to arrive in this country with a false passport than with no documents at all. When he arrived here he immediately claimed asylum and indicated that he had no identification documents on his person. 3. He was arrested and interviewed the following day by immigration officers. In interview he stated that he had boarded the plane with a false passport. He had torn it up during the flight and flushed it down the toilet. He said initially that he had previously owned a genuine passport but that the Libyan authorities took it from him. Later he confirmed that his passport was at home. He said that he had fled from his own country because his life was in extreme danger. He said that when he arrived in the United Kingdom he held up a piece of paper with the word "REFUGEE" upon it. He apologised for causing inconvenience. 4. The appellant's basis of plea, which was set out in a written document, the content of which was accepted by the Crown and which was signed by prosecuting counsel as well as by defence counsel, was in these terms: ".... due to persecution in Libya [the appellant] felt unable to travel to the UK with his own genuine passport. He left Libya on a false document to prevent his apprehension in Libya as he made to leave the country. That false document was destroyed en route to the UK as the [appellant] wrongly believed that he would be committing an offence to arrive in the UK with a false passport." 5. The relevant provisions of the 2004 Act have been considered in detail by this court presided over by the Lord Chief Justice in Soe Thet v Director of Public Prosecutions [2006] EWHC 2701 (Admin) , and also by the Court of Appeal, Criminal Division, presided over by the President of the Queen's Bench Division in R v Mohammed [2007] EWCA Crim 2332 . We can therefore deal with the matter in summary form. 6. Subsection (1) of section 2 provides: "A person commits an offence if at a leave or asylum interview he does not have with him an immigration document which -- (a) is in force, and (b) satisfactorily establishes his identity and nationality or citizenship." It was held in Soe Thet that the reference here and in the other provisions to which we will refer is to a genuine immigration document. Subsection (3) provides: "But a person does not commit an offence under subsection (1) .... if -- (a) the interview .... takes place after the person has entered the United Kingdom, and (b) within the period of three days beginning with the date of the interview the person provides .... a document of the kind referred to in that subsection [a genuine immigration document that relates to the immigrant and is in force]." Subsection (4) provides, so far as relevant: "It is a defence for a person charged with an offence under subsection (1) -- .... (c) to prove that he has a reasonable excuse for not being in possession of a document of the kind specified in subsection (1) [a genuine immigration document]." Subsection (6) provides: "Where the charge .... relates to an interview which takes place after the defendant has entered the United Kingdom -- (a) subsection (4)(c) shall not apply, but (b) it is a defence for the defendant to prove that he has a reasonable excuse for not providing a document [a genuine immigration document] in accordance with subsection (3)." As explained in Soe Thet , the purpose of subsection (6) is that where the interview take place after entry into this country the offence is not committed by not being in possession of the document when the interview takes place, but by failing to provide the document within three days of the interview. Subsection (6) adapts the defence of subsection (4)(c) to that situation. In each case, therefore, the substance of the matter is that it is a defence to prove that the offender had a reasonable excuse for not producing a genuine immigration document. 7. In Soe Thet the appellant, a Burmese national, entered the United Kingdom on a false passport supplied by a facilitator, which he handed back to the facilitator as instructed. He did not produce a genuine passport either at his asylum interview or thereafter. He had been unable to obtain a genuine passport in Burma as he was a former political prisoner. On those facts he was found to have a reasonable excuse for not providing a genuine immigration document. The defence in Soe Thet appears to have been under subsection (6). 8. Miss Arshad on behalf of the appellant submits that the present case is on all fours with Soe Thet and that the defence of reasonable excuse is equally clearly made out on the basis of plea entered by the appellant. Owing to persecution in Libya he felt unable to travel with his own genuine passport. He left Libya on a false document to prevent his apprehension in Libya as he made to leave the country. Those matters, it is said, were accepted by the prosecution. It follows that the basis upon which the appellant entered his plea disclosed a defence to the charge and the plea should not have been accepted. The conviction is therefore unsafe. 9. In our judgment those submissions are in substance correct. As it seems to us, this case falls within subsection (4)(c) since the interview with the appellant appears to have taken place before he passed through border control, rather than under subsection (6) which relates to a situation where an offender is interviewed after he has entered the United Kingdom. In that respect this case differs factually from Soe Thet , but that does not affect the principle because, as we have indicated, the substance of the defence is the same under subsection (4)(c) as under subsection (6). Just as the appellant in Soe Thet had a reasonable excuse, so in our view the appellant in this case had a reasonable excuse on the undisputed facts. That was apparent from the basis of plea and meant that the plea should not have been accepted and the appellant should not have been convicted. The correctness of that is accepted by the Crown, represented before us today by Miss Sharma. It was previously accepted in writing by Miss Thompson who appeared for the Crown before the Recorder. She stated in terms that she had erred in her understanding of the relevant section. That error resulted in her agreeing the written basis of plea. She was not in a position to demur from the opinion expressed by counsel for the appellant. It follows, she said, that she had been unable properly to assist the Recorder in the manner expected of her as prosecution counsel. That is an expression of regret very properly made. 10. It follows from what we have said that this appeal succeeds and that the conviction is quashed. Miss Sharma has informed the court that she is instructed to apply for an order for a retrial of the appellant on this count. We are very surprised that any such instruction should have been given to her. We note that this case took a very long time from when charges were brought to when the matter was resolved. There were no less than thirteen hearings. We note, too, that the matter was resolved by a conditional discharge, which makes it all the more surprising that the Crown should be seeking to pursue the appellant further at this stage. Most importantly, however, it seems to us to be clearly contrary to the interests of justice to allow the Crown to go back on the express acceptance at the time of the plea of the matters that formed the basis of that plea. That acceptance was recorded in a document signed by prosecuting counsel at the time. The fact is that on the position accepted at that time the appellant was not guilty of the offence charged. It would plainly be wrong to require him now to face trial simply because the implications of the position accepted at the time have become clear to the prosecution and the prosecution want to go back on what they did accept at the time. 11. Accordingly, we refuse to order a retrial. No more need be said about this appeal. MISS ARSHAD: My Lord, there is one application for the costs of those instructing me. I make the application somewhat tentatively, but I make it for this reason. The matter was referred to those instructing me by Mr El Hudarey's immigration solicitors because there was concern that he had been advised by his original solicitors that he had no appeal, even after the decision in Soe Thet had been handed down. The new solicitors took on the matter, but of course legal aid even for appeal rested with the previous solicitors and it has not been transferred to those instructing me. They have carried out the work so far on a pro bono basis, but I am instructed to make an application for their costs from central funds up to the court instructing me. I, of course, am instructed under a representation order. LORD JUSTICE RICHARDS: Yes, and the representation order was limited to counsel only? MISS ARSHAD: Counsel only, as is usual in appeal matters. But, of course, the normal course would be that the original legal representation order for the solicitors would cover them for some of the work up to counsel being instructed to advise on appeal. That has not happened in the present case. LORD JUSTICE RICHARDS: You are saying that this would run from the time when they were instructed post-conviction -- MISS ARSHAD: Yes. LORD JUSTICE RICHARDS: -- to the time when you were instructed under the representation order? MISS ARSHAD: I think that would be right, my Lord, because that would be the usual position in criminal matters. That is my understanding. LORD JUSTICE RICHARDS: Is this a matter on which you can give the court any assistance, Miss Sharma? MISS SHARMA: My Lord, no. LORD JUSTICE RICHARDS: Thank you. ( The court conferred ) LORD JUSTICE RICHARDS: No, Miss Arshad, we refuse your application.

2008_07_11-1582.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/1761/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/1761

6b10fbe8379842b81280c511001d914c07326c643d76d04d2051483af01c1172

[2006] EWCA Crim 1404

EWCA_Crim_1404

2006-06-20

supreme_court

Neutral Citation Number: [2006] EWCA Crim 1404 Case No: 200504953/B2 200504944/B1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM DORCHESTER CROWN COURT His Honour Judge Wiggs ON APPEAL FROM LEEDS CROWN COURT The Recorder of Leeds Royal Courts of Justice Strand, London, WC2A 2LL Date: 20/06/2006 Before : THE PRESIDENT OF THE QUEENS BENCH DIVISION MRS JUSTICE RAFFERTY and MR JUSTICE OPENSHAW - - - - - - - - - - - - - - - - - - - - - Between : R - v - Jonathan

Neutral Citation Number: [2006] EWCA Crim 1404 Case No: 200504953/B2 200504944/B1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM DORCHESTER CROWN COURT His Honour Judge Wiggs ON APPEAL FROM LEEDS CROWN COURT The Recorder of Leeds Royal Courts of Justice Strand, London, WC2A 2LL Date: 20/06/2006 Before : THE PRESIDENT OF THE QUEENS BENCH DIVISION MRS JUSTICE RAFFERTY and MR JUSTICE OPENSHAW - - - - - - - - - - - - - - - - - - - - - Between : R - v - Jonathan Charles Walker Snell R -v- Malcolm Wilson - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr R Offenbach for the Applicant Snell Mr T. Bradbury for the Crown Mr M Davies for the Applicant Wilson Mr S. Waley for the Crown Hearing dates : 16 th May 2006 - - - - - - - - - - - - - - - - - - - - - Judgment President of the Queen’s Bench Division: 1. On 18 th August 2005, at Dorchester Crown Court, before His Honour Judge Wiggs and a jury, Jonathan Snell was convicted of one count of attempted buggery, five counts of indecent assault and one count of inciting a child to commit an act of gross indecency. The victim of these offences was C, born on 21 May 1985, the youngest son of the appellant and his wife. The sexual interference with the boy began when he was about six years old and went on until his eighth birthday. It then stopped. The trial took place when C was 20 years old. The defence was straightforward: nothing of this kind had ever happened. 2. Snell was sentenced to a total of six years imprisonment, with consequential orders arising from the nature of his convictions. He seeks leave to appeal against conviction. 3. On 21 January 2005, at Leeds Crown Court, before the Recorder (HH Judge Norman Jones QC) and a jury, Malcolm Wilson was convicted of two counts of indecent assault (counts 2 and 3) and rape (count 7). He was acquitted on three further counts of indecent assault (counts 1,5 and 6) and attempted rape (count 4). The victim in each case was S, who was twenty seven years old at the date of the trial. The appellant was her grandfather. He indecently assaulted the complainant over a number of years from before the age of three years or so until she was just under eleven years old, and thereafter raped her. The offences took place when the appellant visited the complainant’s family home, both at the home and in the car, and on occasions when she was visiting him at his home. The defence was straightforward, identical to that of Snell: nothing of the kind had ever happened. 4. Wilson was sentenced to a total of seven years six months imprisonment, and made subject to the appropriate requirements which followed his conviction of sexual offences. He also seeks leave to appeal against conviction. 5. Neither application suggests that there was insufficient evidence on which to found proper convictions. No criticism is made of the conduct of Wilson’s trial. One criticism is made of Snell’s trial. Subject to that one matter no other criticism is advanced. Neither application involves any criticism of the summing up or the directions to the jury. We shall therefore not require to address the detailed evidence on which the convictions were founded. 6. With the agreement of counsel, these applications were heard together. They raised an identical point arising from “fresh evidence”, to which we will come in due course. However we must first deal with the admissibility point arising in the Snell case. Admissibility (Snell) 7. C’s parents separated in 1998, when he was twelve or thirteen years old. Thereafter he visited his father and indeed worked for him in his repair business. C was able to use the computer, and he had his own personal files segmented into the office computer. One day he opened a file in his segment marked “Chris’s BMW”. He there found not only photographs of BMW cars, but also photographs of naked, pierced and decorated male genitalia. No further description is needed. The Crown’s case was that the photographs were indeed sent by the appellant to C, and that they were photographs of the father’s genitalia. When C found these images, he complained to his mother, at first she did not believe him. He copied the material on to a floppy disc to show them to her. She took issue with her husband, warning him against showing children pornographic material, but at the same time preserving the confidentiality of C’s report to her. At a much later date, when these offences were investigated, this floppy disc was made available to the investigating authorities. So the photographs from C’s section of the computer were available to be examined. 8. It was submitted to the judge that this area of evidence should be excluded. He admitted it, and the decision is now criticised on a number of different grounds. It is said that there was insufficient evidence to confirm that the images had indeed come from the defendant’s hard disc. That was a question for the jury to consider. It was also argued that even if the material had been transferred by the appellant to his son’s computer files, they did not prove a sexual interest in the son at the time when the alleged offences took place, several years earlier. Moreover the suggestion that the transfer demonstrated a sexual interest by the appellant in his son was purely speculative, a theory without foundation. 9. These arguments are without merit. Dealing with it briefly, the Crown’s case is that this father had demonstrated perverted sexual interest in his son which extended to childhood sexual abuse. The photographs had plain sexual connotations, and even on the most dispassionate view, it was bizarre for a father to be sending such photographs to his adolescent son. They tended to confirm that it was indeed true that the father’s attitude to his son was sexually warped. Therefore the material was rightly admitted. In due course the judge carefully directed the jury about their approach to this material, and presented them with a fair and balanced summary of the relevant evidence. There is nothing in this proposed ground of appeal. Fresh Evidence 10. The single issue in these applications arises from “fresh evidence” provided by Professor Martin Conway on the topic of childhood amnesia, not, we emphasise, the problems of false memory syndrome or recovered memory. As already indicated, the applications were heard together. Counsel in each application heard the submissions in the other. Professor Conway gave evidence de bene esse on a single occasion, and where appropriate, his evidence was treated as common to both appeals. He gave evidence in the Snell application first, and was examined in chief and cross-examined by counsel in that case. The process was then repeated by counsel in the Wilson application. 11. The submission on behalf of these applicants is largely dependent on the partially successful applications in R v JH: R v TG (deceased) [2005] EWCA 1828 that the fresh evidence of Professor Conway be admitted under section 23 of the Criminal Appeal Act 1968 . JH was convicted of six counts of sexual abuse of his daughter. His daughter, then twenty one years old, gave a claimed, detailed account of sexual abuse which began before she was three years old, which continued thereafter. The appellant was convicted of six counts of sexual offences against his daughter, the first of which was said to have occurred when she was aged four or five years. She gave significant detailed evidence of this, and indeed the first such incident, when she was under three years old, as well as her emotional response to them. According to Professor Conway’s evidence in the present applications, she gave “highly specific and very detailed” memories of one off experiences at a very early age indeed. 12. The complainant also alleged that she had been separately subjected to significant abuse by TG, a peripatetic music teacher, who began indecently assaulting her when she was just ten years old. 13. In addition to the evidence of Professor Conway, post trial medical records were put before the court. These revealed that the complainant had said things which were inconsistent with her earlier evidence at trial, and that one of the statements made by her to her doctor was demonstrably untrue. Indeed reports of the first consultations with the psychotherapist suggested that the complainant had given “at least an exaggerated or over-dramatised” account of past events. There were significant inconsistencies between her evidence at trial and her original witness statement in respect of one count of alleged rape by her father in the presence of four other adult men. No doubt these inconsistencies contributed to his acquittal of this count. The court was also asked to reflect on the “inherent implausibility” that the complainant would have been abused by two completely unconnected men at the same time. 14. The evidence of Professor Conway was admitted as expert evidence which provided information likely to be outside “the knowledge and experience of the jury”. Nevertheless where he expressed the view that some parts of the complainant’s evidence were “unreliable”, the evidence was inadmissible because it usurped the responsibilities of the jury. In essence, Professor Conway suggested that adults do not remember events of their very early childhood in such a way that they can give a coherent narrative account of events. Their recall of this part of their lives is usually “fragmentary, disjointed and idiosyncratic”. In the judgment of the court, the case was “exceptional” in that the adult complainant provided “quite remarkably detailed accounts of events” which had taken place when she was aged three, four and five years. Although the evidence on this topic would be admitted, the court emphasised that it “would be relevant only in those rare cases in which the complainant provides a description of very early events which appears to contain an unrealistic amount of detail. A witness’s ability to remember events will, absent the special considerations arising from the period of early childhood amnesia, ordinarily be well within the experience of jurors. We would not wish it to be thought that the introduction of evidence such as that heard from Professor Conway will be helpful in any but the most exceptional case”. (the emphasis is provided in the judgment). In summary, the evidence admitted in R v JH: R v TG was very limited in its scope. It was confined to cases in which an adult claimed very detailed memory of events said to have taken place when the adult was very young indeed. Although not expressly argued, the reality is that the present applications seek to widen the ambit of R v JH: R v TG . It is this issue which requires attention. 15. In the result, the appeal in respect of the allegations made by the complainant against her father was allowed, and a retrial ordered. The appeal by the deceased music teacher was adjourned, pending the outcome of the retrial. The present applications 16. We need not repeat Professor Conway’s qualifications. He is the Director of Research at the University of Leeds, Institute of Psychological Sciences, who has made a study of human memory for approaching thirty years. He describes himself, and we have no reason to doubt that he is, “probably a world expert” in the study of people’s memories and the experiences of their lives. 17. An important aspect of his 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. Professor Conway’s essential theory was that all memory was inherently unreliable and malleable. That did not “…. mean to say that it is always false or always wrong. It does not mean to say that you cannot have memories which are simultaneously true and incorrect”. Memory researchers were seeking to find a way to assess these challenges. Research techniques which allowed a study of what the brain was doing when people were “remembering” had only been developing in recent years. Even so, it was too “state of the art” for the present at any rate to feed into the “very practical issues that the courts are concerned with”. Although Professor Conway believed that in the future this would be “influential and important”, this commendable acknowledgement of the current limitations of this “very difficult science” needs emphasis, and, as we have borne it, should be clearly in mind whenever it is sought to adduce evidence relating to childhood amnesia. 18. Professor Conway suggested that the memories of adults, going back into their childhood, could often be wrong. That is unremarkable. The memories of adults about relatively recent events can similarly be wrong. That, too, is unremarkable. If witnesses were dealing with a “trauma memory” arising from what was described as “an awareness of mental defeat”, then the memory might combine to produce some three to five “hot spots”, that is, very vivid images of moments during the trauma, either related to the trauma itself, or to the inner feelings of the person undergoing the trauma, which would be very difficult to handle. However the question whether there was indeed any such traumatic event depended on the perception of the victim at the time when it was suffered. As we understood it, that would mean that although an adult might perceive a particular event as traumatic to any child, the child, at the time, might not be of an age or understanding to see it, and therefore remember it, in the same way. Again, this is unremarkable. 19. Professor Conway was extremely concerned about claims for detailed memories of events from the age of three and below, less so, but still with considerable reservations for such detailed memories from three to five, and less so, again, from five to seven years. He emphasised, as we fully understand, that these delineations by age represent generalisations, and that the boundaries are inevitably fuzzy, varying from individual to individual. His clear opinion was that the quality of memory by an adult of detailed events taking place when the adult was aged three or under would be very doubtful. This evidence was admitted in R v JH: R v TG . However so far as events occurring at six to eight years (again emphasising the dangers of over-generalisation) an adult’s recall of such childhood events is much more like that of an adult recalling events which occurred in adulthood. Professor Conway thought that these memories would not be quite the same in their qualities as adult memories of adult experiences, but he had “no problem” with the view that adults could recall specific events that happened when they were seven and eight years old. That view was subject to his overall reservations about the inherent unreliability or fallibility of all human memory, including adult memory, which led him to the conclusion that the truth of the content of memory could not fully be assessed without independent corroborating evidence. It is of course elementary to our process that the evidence of a single uncorroborated witness may be sufficient to justify conviction. 20. It was therefore not suggested that an adult, looking back at his or her childhood, could not remember whether he or she was abused. In the context of the study of memory, it was possible that the adult would be fantasising, or lying, deliberately or unconsciously (because he had come to believe the truth of what he was saying) or telling the truth. The expert could simply say that the record of memory described in the witness statement either looked like memory or that it did not. Professor Conway said that the point of his reports in the present applications was that the memory described in the witness statements looked “unusual in my perspective as a memory researcher”, but that did not rule out any of the possibilities of fantasy, lies or truth. 21. The broad issue addressed by Professor Conway in the present applications was whether the contents of witness statements made by adult witnesses were or could be based on memories of events experienced before they were seven years old. He was particularly concerned at the production of a “rather polished narrative”, rolling account, and indeed the witness statements given by the complainants in the present applications seemed to him to reflect a kind “joint effort” between the interviewing officer and the complainants. He based his assessment exclusively on this material. He did not consider, perhaps because he was not asked to do so, the actual evidence given by the complainants at the trials, but he would in any event have discounted any suggestion that an expert in this field should make an assessment of the character or demeanour of the witnesses. As a memory researcher, and psychologist, he knew that he would be influenced in “unconscious ways” if he encountered the individuals giving evidence. His opinion about the accuracy of their memories would be influenced by his assessment of their characters. 22. Effectively, of course, this is the antithesis of the decision making process in court to which the demeanour and character of the witness is integral. The trial process is intended to enable the accuracy, or fallibility, of the witnesses, particularly when they purport to speak directly from their own experience, to be tested and assessed. Their evidence is subject to a close scrutiny, and after such scrutiny, evaluation by the jury. As it seems to us, one of the potential problems created by Professor Conway’s exclusive focus on the “witness statement” is illustrated by the following passage from his evidence. “A …. What I would say is that sometimes one has the powerful impression that what has been produced in a kind of joint effort between the interviewer and interviewee. It is a difficult thing to do I guess. But if you were a memory researcher and you wanted to know about someone’s childhood memory, what you would say to them is: remember an event…do not edit it, do not try to present, do not try to put it in any coherent order, just tell me what you had in mind. What people have in mind is usually rather fragmentary, disorganised, disordered bits of information that they often do not know why they remember… if one then encounters something that is very different from that one does wonder what its source is. It cannot simply be one of these fragmentary, idiosyncratic, enigmatic childhood memories. Mrs Justice Rafferty: Does that translate, Professor Conway, into the more coherent the presentation, the more worried you become? The witness: It pretty much does……I would want to wonder how has this account arisen, where has it come from. Perhaps the person has thought about this experience again and again and again and developed a rather elaborate narrative. That is one possibility. Another possibility is that questions which have been to them by people who have spoken to them about the event, have led them to introduce information which is not remembered as such but which is consistent…. An example might be of somebody who said to you, can you remember the colour of the pyjamas you were wearing? Then the implication is that you probably can, otherwise why would they ask you the question. So, then you might say: well, I used to wear blue stripey pyjamas when I was three years old, probably what they were, blue stripey. So that might add to a narrative which for me as a memory researcher would be a straight account of memory at the very least… Q: would be ? A: would not be ” In effect, therefore, the introduction of the detail about the blue stripey pyjamas might not be “a straight account of memory”. 23. It is elementary that any witness statement should accurately reflect the most precise recollection which the witness has. It purports to be the truth. In fact, however, our process recognises that many witnesses describing events of which they have a clear memory, do not immediately provide an utterly coherent, sequential, narrative account. Often, the account has to begin earlier than where the witness would otherwise have started. It is interrupted from time to time, for clarification purposes, and indeed to check for further details, not so as to “fabricate” the story, but to enable the details themselves to be checked against other accounts. Sometimes the words used by the witness may convey a slightly inexact account of what the witness is saying. All this is “translated” into the witness statement. In the end the complainant usually gives evidence at trial. 24. Professor Conway said that he was unaware of police practices. He did not realise that police officers taking a statement would ask a series of questions, and then, having received the answers, and taken notes in relation to them, proceed to draft a statement for the witness to read, and sign. He appeared concerned that a statement might include “scene setting”, or prompting, and appeared troubled at the language sometimes used in witness statements made by adult complainants about incidents in childhood. If we understood this correctly, (and we should indicate that we may not be doing full justice to this part of the evidence) we should record that we would expect an adult, describing early childhood experiences, to use adult language. An adult referring to, say, the penis or vagina, would not use, nor should be expected to use, what ever childhood nomenclature the witness would have used when a child. The fact that a childhood experience is being described does not require the witness to confirm the accuracy of his memory by reverting to childishness, or childish names. 25. 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. 27. We can now return to the individual cases. C complained of abuse by his father which started when he about six years old and went on for eighteen to twenty four months. It happened regularly. It stopped on his birthday; he thought when he was eight years old. Having been reminded of the significance he attached to the age of seven in this context, and Professor Conway responding that he had already pointed out that the boundary was fuzzy, the eventual criticism of C’s evidence was that if the abuse had continued as frequently as he asserted, over this period, there would or should have been “other memories” and greater detail. This possible area of criticism contrasts with the specific concern about the presence of highly specific detail for which the witness in R v JH: R v TG was criticised. In any event, however, there being nothing to suggest that C’s mental capacity and maturity did not reflect his actual age, Professor Conway’s evidence did not fall within the area of expertise regarded as permissible in R v JH: R v TG . And in fairness to him, he acknowledged that if C had clearly said “this is a memory of abuse that happened when I was aged eight or aged seven and a half or around about that age,” then this account “might well” fall outside his area of concern when adults describe memories of early childhood experiences. 28. In relation to the complainant’s evidence in Wilson the essence of the complaint was of a pattern of sexual abuse which went on until S was about thirteen years old. She estimated that it began when she was about three and a half years old, but she could not remember precisely when. In essence what she was saying was that the pattern of abuse went back as long as she could remember. As before, Professor Conway emphasised that his focus related to memories for the period of about seven years and earlier. His concern about this complainant’s evidence was the absence of specific memories in the context of abuse at or before seven years. He found it “extraordinary” that the complainant did not have early memories of when the abuse first occurred. 29. In our judgment, however, it is difficult to see how this expert evidence can properly be tendered to establish a justifiable criticism of an adult witness who says that she suffered abuse throughout her childhood, which must have begun at too early an age for her to remember the first occasion. Second, the concerns in this case are the opposite of the concerns which troubled the court in R v JH: R v TG, that is, the presence of highly specific details of abuse at such an early age. It was this area of expertise which was regarded as admissible, not as suggested here, the contrary. Finally, this issue was addressed at trial. In the submissions advanced to the jury by counsel for the applicant, he suggested that the jury should consider their own experiences, searching their recollections for their earliest memories, and analysing what they could actually remember, and how far back their memories went. The judge, too, carefully addressed the issue of delay in all its relevant manifestations. The jury appeared to have acknowledged the force of a legitimate argument, because they acquitted the applicant of count one, which was directly linked to the complainant’s earliest memory of sexual abuse. They did not require, and would not have been assisted by the evidence of an expert. 30. Having examined Professor Conway’s evidence closely, we have come to the conclusion that it should not be admitted, and would not have been admissible at either of these trials. Neither falls anywhere near the category of “exceptional case” referred to in R v JH: R v TG. Accordingly these applications are refused.

2006_06_20-842.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/1404/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/1404

d7ba2a4edb4a508fce0f7b71b258461da8754dd1e8953bb578c96ddf11c98e1f

[2023] EWCA Crim 406

EWCA_Crim_406

2023-03-15

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. [2023] EWCA Crim 406 IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202203599/A4 Royal Courts of Justice Strand London WC2A 2LL Wednesday 15 March 2023 Before: LADY JUSTICE CARR DBE MR JUSTICE JEREMY BAKER HIS HONOUR JUDGE TIMOTHY SPENCER KC (Sitting as a Judge of the CACD) REX V MICHAEL HARVEY __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) _________ MISS L SPADA appeared on behalf of the Appellant _________ J U D G M E N T LADY JUSTICE CARR: Introduction 1. The appellant, now 52 years old, pleaded guilty on 4 May 2022 to possession of a class A drug (cocaine), contrary to section 5(2) of the Misuse of Drugs Act 1971. He was sentenced on 10 November 2022 by Ms Recorder Presland ("the judge") to four weeks' imprisonment. A victim surcharge, forfeiture and destruction orders were made and 109 days were ordered to count towards the sentence (pursuant to section 325 of the Sentencing Act 2020). 2. This is his appeal against sentence, for which purpose he has had the benefit of representation by Ms Spada. The facts 3. In the early morning of 22 March 2022 a warrant under section 23 of the Misuse of Drugs Act 1971 was executed on an address and entry gained. The appellant was found inside the premises, which did not belong to him, with a small amount (0.656 kilograms) of crack cocaine near him. He admitted that the drug belonged to him and claimed that it was worth around £5. 4. In interview he provided a prepared statement to the effect that the drugs were for his own personal use and that the cash that the police had seized was his benefit money. 5. The appellant was placed on bail subject to a qualifying curfew condition (from 9.00 pm to 6.00 am), and an electronic monitoring condition (both as defined in section 326(3) of the Sentencing Act 2020). By the time of sentence he had been subject to those conditions for 219 days. The sentence 6. The appellant had 48 previous convictions for 125 offences spanning between July 1985 and March 2022, including for burglary, theft and robbery, driving offences and assault. He also had convictions for seven drug offences, the most recent in 2018. 7. The judge sentenced the appellant without a pre-sentence report and we agree that one was unnecessary. She afforded him a full one-third credit for his guilty plea. She stated that, following trial, because of the appellant’s offending record, she would have imposed a custodial sentence of six weeks. After credit for guilty plea the term would be one of four weeks' custody. Accordingly she sentenced the appellant to a term of four weeks’ imprisonment. She emphasised, however, that that would be “time served”, the appellant having already served the equivalent of 109 days in custody. Grounds of appeal 8. Ms Spada submits that, given the small quantity and value of drugs recovered, coupled with the appellant's guilty plea, the sentence was simply too high. The offending was low-level and the custody threshold was not passed. Even if it was passed, a shorter term of imprisonment should have been imposed. She emphasises in particular the mitigation available to the appellant, not only in terms of the quantity and value of drugs involved, but also the steps being taken by the appellant to address his drug addiction. He had been off drugs for some five months, seeking assistance from the Harbour Project in Lambeth. Discussion 9. As is common ground, the relevant starting point under the Sentencing Council Guideline for Drug Offences was a Band C fine, with a range of a Band A fine up to 51 weeks' custody. Despite the small quantity and low value of the drugs in question, taking into account the appellant's offending record as a whole, the judge was fully entitled to reach the conclusion i) that the custodial threshold was passed and ii) that a term of six weeks' custody before credit for guilty plea was justified. It was well within the relevant sentencing range, as set out above. 10. The judge reached that conclusion independently of the fact that the appellant had served time on qualifying curfew. The appellant's offending record, as we have indicated, included not only multiple drug offending but also other serious offending, including for offences of dishonesty. Taken in context and as a whole, we do not consider that there is any legitimate criticism to be made of the ultimate outcome. 11. For these reasons we dismiss the appeal. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk

2023_03_15-5606.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/406/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/406

3fb251fc466acd86ec2ad3e2c9a0c9670f2e3f0c6b299e3fd5cb265158b552ba

[2022] EWCA Crim 1487

EWCA_Crim_1487

2022-10-25

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 202104068/B3-202104069/B3 [2022] EWCA CRIM 1487 Royal Courts of Justice Strand London WC2A 2LL Tuesday 25 October 2022 Before: LADY JUSTICE SIMLER DBE MR JUSTICE JAY MRS JUSTICE COCKERILL DBE REX V IBRAHIM KHAN __________ Computer Aided Transcript of

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 202104068/B3-202104069/B3 [2022] EWCA CRIM 1487 Royal Courts of Justice Strand London WC2A 2LL Tuesday 25 October 2022 Before: LADY JUSTICE SIMLER DBE MR JUSTICE JAY MRS JUSTICE COCKERILL DBE REX V IBRAHIM KHAN __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) _________ MR N MIAN KC & MS M KARAISKOS appeared on behalf of the Applicant. _________ J U D G M E N T LADY JUSTICE SIMLER: Introduction 1. Between 15 and 29 November 2021 in the Crown Court at Luton before Goss J and a jury, the applicant, Ibrahim Khan, was tried and ultimately convicted of murder (count 2) and having an article with a blade or point in a public place (count 1). He was sentenced on 30 November 2021, by the same judge, for the offence of murder, to be detained during Her Majesty's Pleasure with a minimum term of 16 years less 169 days spent on remand and in relation to count 1, no separate penalty imposed. Appropriate ancillary orders were made. 2. The applicant was represented at trial by Liberty Law Solicitors and counsel, Mr Naeem Mian KC leading Ms Maria Karaiskos. The applicant now renews his applications for leave to appeal against conviction and sentence and for representation orders in respect of his defence team, who appear pro bono on these applications. We are grateful to both counsel for the written and oral submissions that we have received. The facts 3. On 8 June 2021 Humza Hussain (then 16 years old) like the applicant, was fatally stabbed to death outside Challney High School for Boys in Stoneygate Street in Luton. Three stab wounds were inflicted to his chest, using a knife which the applicant had taken with him to the scene. One of the stab wounds involved the knife passing almost through Hussain's body to a depth of just over 20 centimetres. A second wound travelled 13 centimetres into his chest and back. The stabbing took place in a busy street in broad daylight when children were leaving the school. Members of the public and emergency services tried to save Hussain's life, but he was pronounced dead approximately two hours later at 6 pm that evening. 4. There was no issue that it was the applicant who inflicted all of the fatal injuries to Hussain. The only issue was whether the applicant was acting in self-defence and used the knife in self-defence or accidentally. 5. The stabbing was the culmination of a history of animosity between the applicant and Hussain. Both were at primary school together and then attended Challney High School for Boys. There had been an occasion when both their fathers had attempted to resolve the conflict between the two boys by way of a mediation type meeting undertaken by a football coach. During that meeting both boys agreed to stay out of one another's way. 6. Notwithstanding that meeting, on 7 October 2020, the applicant was set upon by Humza Hussain and three friends in the school playground. The applicant was punched, kicked and stamped on. He suffered a bloody nose and other soft tissue injuries, all of which were captured on CCTV. As a result of the attack on the applicant, three of Humza Hussain's group (his friend Sameer Idrees, his cousin Abdul Hussain, and another boy) were permanently excluded from the school. 7. A month later on 7 November 2020, another incident took place. This time Humza Hussain and his cousin Abdul were lured to Chaul End Park and attacked by the applicant and four other boys. They were punched and kicked. At one point the applicant recorded the attack on a mobile phone, demanding that Humza Hussain apologise for the school playground attack. During that incident Humza Hussain was stabbed in his arm with a small knife and the applicant could be heard urging the boy with the knife, who was in fact the applicant's cousin, to "shank him" and then saying: "Humza just remember you got shanked". This was recorded on a mobile phone. Humza Hussain was detained in hospital for four days following that attack. 8. The occasion of the fatal stabbing was preceded by a period during which the applicant was on his bicycle loitering outside the school. Adeeb Idrees (aged 14) and the younger brother of Sameer Idrees, was leaving school at about 3 pm. Before he left the grounds, the applicant confronted Adeeb and said he wanted to talk to him in a nearby alleyway. Adeeb was scared. He saw the outline of a knife in the applicant's tracksuit. Teachers intervened at that point and Adeeb was taken back into the classroom for his own safety. Adeeb immediately telephoned his older brother Sameer. That telephone call led Sameer Idrees and Humza Hussain to travel to the school. Sameer Idrees came armed with a hammer which appeared to have been broken and had the head and handle in two parts. Though at trial and now, it is asserted on the applicant's behalf that Sameer Idrees was also armed with a knife, no knife was in fact recovered and evidence of any such knife was far from clear. Humza Hussain was armed with a metal file or rasp. 9. At trial the Crown relied on evidence of the animosity between the applicant and Humza Hussain, including the CCTV footage of the earlier incidents and Humza Hussain’s witness statement, which was read, regarding the incident in the park. 10. There was CCTV footage from the school grounds on the day of the stabbing which showed the applicant outside the school gates on his bicycle and also the start of the confrontation between the applicant and the two boys. 11. The Crown’s case was that the applicant attacked both boys with the knife and the footage demonstrated his thrusting motions in the direction of Humza Hussain and showed him to be the aggressor holding a dangerous knife. There were also eyewitness accounts of the stabbing, and the knife (described as a "savage" weapon) was an exhibit. There was expert medical evidence about the number of stab wounds, their depth and force and there were also photographs of the deceased's injuries taken at the scene. These were relied on as part of the prosecution case that the injuries were not inflicted in lawful self-defence. The knife was found in the shed in the garden belonging to the applicant's home. It was forensically tested. Blood was found on the tip and was forensically linked to Humza Hussain. 12. The Crown relied on lies told by the applicant to police and ambulance staff including that he had been a victim of an attack and had been set upon by two men wearing masks and hoods each carrying knives (in one case a Zombie knife, 22 inches long and the other a Rambo knife, 18 inches long). 13. The Crown also relied on lies told in the applicant's prepared statement to police and on the fact that his mobile telephone disappeared notwithstanding that it was depicted in CCTV footage on the day of the stabbing. The Crown also relied on bad character evidence in relation to the previous attack in Chaul End Park and on the applicant's failure to give evidence at his trial. 14. The applicant's defence case was that he was attacked outside the school by Sameer Idrees and Humza Hussain in a joint attack by chance. It was his case that Sameer threw the head of the hammer at him and that Humza Hussain grabbed him from behind. He drew the knife that he had been carrying in self-defence to ward off his attackers and he stabbed Humza Hussain in self-defence and/or by accident. 15. The applicant had given a prepared statement to police in interview, in which he explained that police and youth services had previously warned him that his life was in danger. He said that was why he had resorted to carrying a knife in self-defence, believing that he was in imminent danger. Otherwise the applicant did not answer questions in interview and nor did he give evidence in his own defence at trial. He relied on his previous good character, on the evidence that Sameer Idrees and Humza Hussain arrived at the scene armed with weapons, namely the hammer and the rasp, and that another prosecution eyewitness said Sameer Idrees had a knife. He relied on the evidence from the Crown showing that Sameer Idrees was first to produce and use a weapon, namely the hammer, and that it was a joint attack by two against one. He also relied on the suggestion in the Crown's opening that Sameer Idrees was defending himself from the applicant and their suggestion of evidence of the seriousness of the defensive wounds caused to his hands, arguing that it was not consistent with the prosecution failing to call Sameer Idrees as a witness for the prosecution. He relied on the fact that the applicant himself was injured in the attack and on the trail of blood that was left by him from the scene to his home, where he arrived and collapsed in the garden, requiring hospital treatment. He sustained a cut to his wrist which severed the tendons in his arm and required surgery as well as a puncture wound to his left arm and a wound to his temple. Those injuries were also photographed at the hospital where he was treated. The applications 16. On the application for permission to appeal conviction, both in writing and orally, Mr Mian KC submitted that the judge failed to sum up the defence case in a balanced and comprehensive way. Particular complaint is made about the way in which the judge addressed the prepared statement to police. Moreover, whilst recognising that it was not obligatory for the judge to summarise the defence closing speech, he submitted that the judge nonetheless made insufficient reference to much of the evidence relied upon by the defence in the course of his summing-up. 17. Carefully, as those submissions were made, we do not accept them. It is undoubtedly the case that it is part of a judge's duty to identify the defence in his or her summing up, but the way in which that is done inevitably depends on the circumstances of the case. Here the applicant made a prepared statement rather than answering questions in interview, and he did not give evidence in his defence at trial. 18. In R v Singh-Mann [2014] EWCA Crim 717, this Court (Fulford LJ) said at paragraph 90: "... it is clear that when a defendant has said little or nothing in interview and has elected not to give or call evidence, ordinarily the limit of the judge's duty is simply to remind the jury of 'such assistance, if any, as (defence) counsel had been able to extract from the Crown's witnesses in cross-examination' and any 'significant points made in defence counsel's speech'. In this context, it is to be stressed that in order to present a defence to the charges the defendant is not compelled to give or to call evidence; instead, he is entitled to rely on evidence presented by the prosecution or by his co-accused when advancing arguments for the jury's consideration as to whether the prosecution has established his guilt. The rehearsal of this material by the judge does not necessarily have to be extensive or detailed – indeed, frequently it will be sufficient merely to identify the central submissions and the evidence that underpins them – but the judge must generally ensure that the jury receives a coherent rehearsal of the main arguments that are being advanced by the accused." Those observations were approved and applied by this Court in R v Lunkulu [2015] EWCA Crim 1350 , and we too endorse them. 19. In our judgment, the summing up was sufficiently balanced and fair and the defence case was adequately summarised by the experienced judge in this case. 20. Early on in his summing up the judge set out the defence case based on the prepared statement at interview. He referred expressly to the warning that the applicant said that he had received that his life was at risk, and that he had been advised to wear a stab vest. He referred to the fact that the applicant said he had a knife on him "out of fear for my safety". He said the defence say he had good reason to be armed to defend himself from what he feared was an imminent attack. A little later the judge set out the defence case relating to murder. He said: "The defendant raises two potential defences to the charge of murder. It is not for him to prove either of them. It is for the prosecution to make you sure that neither applies in his case. His case is that the use of the knife was not unlawful because he did not deliberately stab Humza Hussain and he was acting in reasonable self-defence, as I shall define it. Let me explain these elements in more detail." 21. The judge then went on to do precisely that. He provided the jury with what was a detailed and clearly analysed summary of the defence case against the legal framework. This was more than merely the identification of the central submissions in the case. The judge provided a coherent rehearsal of the main arguments advanced on the applicant's behalf. 22. In the second part of the summing up the judge referred to the prepared statement and made clear that the jury would have the prepared statement in retirement. He told the jury that the applicant's reason for being in the area of the school was that he was going on a bike ride with his friend. He went on to summarise for the jury that the applicant had: "... stated he had been attacked without warning by Humza Hussain and [Sameer] who were armed with a machete and a large knife [respectively]. He did not pull out his knife until he got hit on the forearm by Humza with a machete. He did that in order to defend himself. He was struck several times with the knives and simply stood his ground with his arm outstretched when Humza came at him and swung at him with his machete. He took the opportunity to escape on his bike and went home. He had his knife on him when he went out – when he went back into his home but he did not know where it went. He only struck each of them, that’s Humza and [Sameer], once. He was just trying to save himself. As I say, you can refer to his statement when you retire." 23. The judge also referenced the background between these boys. He referenced the attempt at mediation and the long standing animosity, together with the incidents that preceded the fatal attack. The judge expressly referred the jury to the agreed facts. It was not unfair not to recite those agreed facts given that they were contained in a document that the jury had in retirement. 24. Moreover, we can see nothing wrong or unfair in the fact that the judge did not seek to analyse each and every one of the points made on behalf of the defence in a single passage. It seems to us, overall, that the judge sufficiently set out the evidence heard by the jury in a way that made that evidence relevant to their considerations. He identified the four prosecution witnesses Muhammad Haroon, John Fanning Milstead, Adil Ahmed and Ronald Burk and summarised what was said by those witnesses. He referred to the phone evidence and timeline and he addressed the absence of the applicant's own mobile phone in a way that was far from unfair. 25. Mr Mian expressly accepted that the judge was not obliged to rehearse the closing submissions made by the defence, notwithstanding the initial written complaint to this effect. That was a correct concession to make. The judge referred to the submissions and also to the difference between submissions and evidence. We can see no basis for criticising his approach in that regard either. Ultimately, we are entirely satisfied that the jury were properly directed in relation to the applicant's defence case. There is nothing in the written grounds of appeal or the ground advanced in relation to the prepared statement that even arguably undermines the safety of the applicant's conviction in this case. Accordingly, the application for permission to appeal against conviction is refused. 26. We turn therefore to the sentence application. The applicant was born on 27 April 2005. He was of good character. By agreement between all parties no pre-sentence report was requested in relation to him. We are satisfied that such a report was unnecessary then and is not now necessary. 27. The court had victim personal statements from Asim Hussain (Humza Hussain's father) dated 23 November and 26 November 2021 and we too have read those moving statements. The judge applied the provisions of section 322 and schedule 21 of the Sentencing Act 2020 . By reason of the applicant's age he took the appropriate starting point of 12 years for determining the minimum term. 28. There can be no doubt that an appropriate upward adjustment had then to be made to address the full seriousness and circumstances of this offence. The judge said the offence was aggravated by being a planned and premeditated confrontation, whereby the applicant in effect lured Sameer Idrees and Humza Hussain to the school for a fight. The applicant took with him to the scene a large and fearsome knife which he took out to use in a busy public place, close to a school, in the presence of many people, including children, who were no doubt distressed and traumatised by the horror of the event. There was an attempt to conceal the weapon and the applicant disposed of or arranged for the disposal of his mobile phone, thereby making his communications over social media irrecoverable. 29. In terms of mitigating factors, the judge identified the use of the large knife to inflict two very deep stab wounds to the front of the chest and said the nature and position of the wounds meant he could be sure that the applicant used the knife with an intention to kill in that moment. This was not therefore a mitigating feature. 30. The applicant had no previous convictions or cautions but the judge was in no doubt that he planned the previous attack on Humza Hussain and his cousin in Chaul End Park on 7 November, in which the applicant had incited one of the other boys to use a small knife to wound Humza Hussain. Although the applicant did not give evidence the judge reached the conclusion that he was clearly streetwise, not unintelligent and not unduly immature or led by others. The judge, as we have said, took account of the offence of having a bladed article in a public place in fixing the minimum term. 31. On behalf of the applicant, in relation to the application for leave to appeal against sentence, Mr Mian accepted that there were undoubtedly aggravating factors that warranted an upward adjustment from the starting point of 12 years in this case. However, he contended that the end point of 16 years was simply too high and failed to have regard to the applicant's youth (he was 16 at the date of the offence) and the principles of sentencing children and young people. Moreover, he submitted that the judge failed to have regard to the wider context of this case, including the earlier incidents involving these boys and to the significant fact that at the time the applicant inflicted the fatal stab wounds, he was being attacked by two other armed boys. 32. We have considered those grounds with care but have concluded that they too are unarguable. In our judgment the judge fully and fairly accounted for the applicant's age, both in the lower starting point taken by the judge and in the relatively limited upward adjustment ultimately made from that starting point to an end point of 16 years. This was a case in which the aggravating factors significantly outweighed any mitigating factors. The applicant took a very serious knife to be used to commit an offence in the street. There was planning. The offence was committed outside a school, in the presence of children and there was concealment of both the knife and a mobile telephone. Those factors undoubtedly justified a move significantly beyond the 16 year end point reached by the judge in this case. This sentence was proportionate to the seriousness of the offending and not arguably manifestly excessive. Despite the cogent submissions made on the applicant's behalf, attractively presented by Mr Mian we therefore refuse this application. 33. Accordingly all applications are refused . MR MIAN: My Lady thank you. The "cogent written submissions"; I cannot take credit for; they were drafted by Ms Karaiskos who sits behind me. What flows from that is an application - as you know we both appear pro bono. I am happy do so, as we both are - on behalf of Ms Karaiskos alone for a representation order, not for me, just to reflect the work that has been done by her. (The Bench Conferred.) LADY JUSTICE SIMLER: Mr Mian it is tempting in situations like this to accede to such an application, particularly where it is as attractively presented as it has been, but I am afraid we cannot grant it. MR MIAN: One can but ask. LADY JUSTICE SIMLER: We are grateful though for the assistance we were provided with. Thank you both. 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_10_25-5471.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/1487/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/1487

4d516cd2c0a7cd4f77333b318bbcbc3862311c17e2f0669409011a63e645e02c

[2007] EWCA Crim 1118

EWCA_Crim_1118

2007-05-15

supreme_court

Neutral Citation Number: [2007] EWCA Crim 1118 Case No: 2006/03746/B2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LEWES CROWN COURT HIS HONOUR JUDGE NIBLETT T 2005 -7144 Royal Courts of Justice Strand, London, WC2A 2LL Date: 15 May 2007 Before : LORD JUSTICE THOMAS MR JUSTICE PENRY-DAVEY and MR JUSTICE WYN WILLIAMS - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Ian Anthony Jones Appellant - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2007] EWCA Crim 1118 Case No: 2006/03746/B2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LEWES CROWN COURT HIS HONOUR JUDGE NIBLETT T 2005 -7144 Royal Courts of Justice Strand, London, WC2A 2LL Date: 15 May 2007 Before : LORD JUSTICE THOMAS MR JUSTICE PENRY-DAVEY and MR JUSTICE WYN WILLIAMS - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Ian Anthony Jones Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Jeffrey Lamb for the Appellant Christine Laing QC and Henrietta Paget for the Respondent Hearing date: 28 February 2007 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Thomas : 1. The appellant was indicted at Lewes Crown Court on a number of counts arising out of an investigation conducted by several police forces into a widespread network of child abuse. At the outset of the trial submissions were made on the appellant’s behalf in relation to a number of counts in the indictment, including Count 21 which charged the appellant with an attempt to commit an offence under s. 8 of the Sexual Offences Act 2003 . It was contended by the appellant that proceedings on this count should be stayed as an abuse of process on a number of grounds, including entrapment by the police. Judge Niblett in a succinct and clear ruling given on 25 April 2006 rejected that submission and submissions on other counts. In consequence the appellant entered pleas of guilty on those counts in addition to counts to which he had pleaded earlier. He was sentenced on count 21 to a period of life imprisonment with a minimum period of 10 years less time spent on remand; he was sentenced on the other offences to determinate periods of between two and 12 years. He appeals against his conviction on count 21, by leave of the single judge, on the ground that the judge’s ruling was wrong in law. 2. Three other defendants were charged with him. The principal person involved in the network was Trevor Haddock; it was clear from the evidence which emerged that he had been abusing young children for 20 years; he also pleaded guilty to a number of offences. He was sentenced to life imprisonment with a minimum term of 12 years; there is no appeal in his case. The two other defendants, John Farmer and Derek Moody also pleaded guilty to similar offences; their appeals against sentence have been heard by us and dismissed. The factual background 3. The appellant’s application to stay the proceedings on Count 21 was made on the basis of facts which were not controverted for the purpose of the judge’s ruling or the appeal before us: i) From about 2000 the police received numerous reports of graffiti being written on the toilets of trains and stations in London, Hertfordshire and Sussex. These graffiti were in black marker pen and set out explicit messages seeking girls of ages between 8 and 13 for sex, offering payment and asking the girls or anyone to telephone or text a mobile telephone number. An example was: “Girl 8-13 wanted for sex. Girls only; text [telephone number] Will pay you” These reports became increasingly frequent in 2004. ii) On 3 March 2005, a journalist, Ms Ruth Lumley, when travelling on a train to Brighton, saw graffiti of this type on the toilet door. The message was in capital letters in black marker pen and as she could best recall stated: “Wanted for sex Girls from 8-13. Text only [mobile number]”. Ms Lumley telephoned the number twice. a) It was not answered, but within 30 minutes she received a text from the number she had rung: “U male or female How old Whr u c my number? Txt bk only”.” b) She sent a text message back: “Female on train, 11”. c) Within minutes she received the reply, “U up 4 it R U a virgin or not Wht skol u go 2 Whr u live Tx bk. My name Dave. What urs What time train u c number? Tx bk”. iii) The appellant then proceeded to send a number of messages to Ms Lumley but he got no response. He also telephoned her, leaving a voicemail message inviting her to call him and another text message inviting her to send a naked picture of herself to him. iv) He persisted on the following day trying to persuade her to meet him, sending further texts suggesting a meeting after school, enquiring if she was prepared to perform oral sex and later on that day asking how her school day had been. v) Ms Lumley contacted the British Transport Police. They began an undercover operation on 18 March 2005 using an officer who was known as “Amy”. vi) There then followed an exchange of texts beginning on 18 March 2005. The messages began with Amy sending a text to the appellant in which she stated that she was Amy and had seen his message on a train, that she was on holidays and asking if he would really pay. He texted back within 90 minutes asking how old she was and where she was on holiday. The exchange of texts then continued: Amy: Hi am 12. Am near Brighton how old r u The appellant: I am 35 how long are u on hol 4. R u a virgin. Tx bk Amy: Cpl of weeks staying with Nan yes I am. Why? The Appellant: Can you be on Brighton pier Saturday at about 5.30 and can you wear a nice short skirt. You ever sucked a cock or wanked 1. vii) Further messages clarified arrangements for the meeting for Saturday 19 March 2005 but the appellant did not turn up. It is apparent from the messages that he was suspicious as to whether a trap was being laid for him. viii) A further exchange of messages took place between 20 and 29 March 2005 in which the appellant set out various sexual acts which he expected he would be able to perform upon Amy. ix) Amy and the appellant arranged to meet to meet on 29 March 2005 at Burger King in Brighton. On that occasion he did turn up and was arrested. x) He was searched and found in possession of a black marker similar to the type which had been used for writing the messages. A handwriting expert compared the writing in a number of the messages to that of the appellant and concluded that he probably wrote the graffiti. He was also found in possession of two mobile telephones, one of which had been used to send the text messages to Amy. xi) He was charged with a number of offences relating to other matters revealed as a result of the police investigation that followed. In relation to the graffiti on other trains and at stations, he was charged on counts 16-20 of the indictment with offences under s. 62 of the Sexual Offences Act 2003 ; Count 16 was withdrawn as the offence antedated the coming into force of the Act . The remainder, counts 17-20, were all specimen counts; by way of example count 17 of the indictment was in the following terms: “ Statement of Offence Committing criminal damage with intent to commit a sexual offence, contrary to section 62 of the Sexual Offences Act 2003 . Particulars of Offence Ian Jones on or before the 24 th day of October 2004 criminally damaged property namely train toilets belonging to South Central Trains, with intent to commit a sexual offence, namely an offence within sections 5 to 8 of the Sexual Offences Act 2003 .” xii) S. 8 of the Act provides for a more serious offence: “8(1) A person commits an offence if – (a) he intentionally causes or incites another person (B) to engage in an activity (b) the activity is sexual, and (c) (B) is under thirteen. (2) A person is guilty of an offence under this section, if the activity caused or incited involved – (a) penetration of B's anus or vagina, (b) penetration of B's mouth with a person's penis, (c) penetration of a person's anus or vagina with a part of B's body or by B with anything else, or (d) penetration of a person's mouth with B's penis, is liable, on conviction on indictment, to imprisonment for life. (3) Unless subsection (2) applies, a person guilty of an offence under this section is liable - (a) on summary conviction, to imprisonment for a term not exceeding 6 [12] months or to a fine not exceeding the statutory maximum or both; (b) on conviction on indictment, to imprisonment for a term not exceeding 14 years.” xiii) Count 21 charged the attempt to commit the offence under s. 8 in the following terms: “ Statement of Offence Attempting to cause or incite a child to engage in sexual activity, contrary to Section 1(1) of the Criminal Attempts Act 1981 . Particulars of Offence Ian Jones, between the 17 th day of March 2005 and the 30 th day of March 2005, being a person aged 18 or over, attempted to intentionally cause or incite a child under the age of 13 years to engage in sexual activity involving penetration of the mouth, anus or vagina with a penis.” xiv) It was the prosecution case, based upon the messages exchanged, that the appellant intended to meet with Amy and engage in penetrative sex with her. The defence application to stay 4. The appellant’s application before the judge for a stay was based on three submissions. i) This was a case of entrapment; the offence was brought about by the State. ii) Count 21 disclosed no offence known to the law of England and Wales. The appellant could not have had the requisite intention to commit the alleged attempt because he did not intend to incite any actual person under the age of 13 to engage in sexual activity. iii) The actions of the appellant were no more than merely preparatory to the commission of the offence. 5. As to the third submission made to the judge, the judge in his ruling held that the actions of the appellant were capable of being viewed as more than merely preparatory to the commission of the offence; it was not appropriate for a judge at that stage to withdraw the count from the jury for that reason. The judge made it clear that the issue could be revisited at the close of the prosecution case, if appropriate, and, if the case proceeded to the jury for determination, it would be for them to determine whether what the appellant had done in the particular instance amounted to more than mere preparation for the alleged offence. No appeal is brought against that part of the judge’s ruling. 6. The appeal before this court was brought on the basis of the first two submissions before the judge; a third was also advanced – namely that the appellant should have been charged with an attempt to commit an offence under s. 10(1) of the Sexual Offences Act 2003 , a less serious offence than the offence under s.8 . 7. We turn to consider each of the three submissions put forward by the appellant in turn. (1) Entrapment 8. The first and principal submission of the appellant was that he had been entrapped by the police into committing the offence with which he was charged in relation to the communications with Amy. 9. It was common ground that the relevant principles in relation to entrapment are to be derived from the judgments of the House of Lords in R v Loosely [2001] UKHL53 which considered the judgment of the European Court of Human Rights in Teixeira de Castro v Portugal (1998) 28 EH RR 101. In the leading judgment, Lord Nicholls of Birkenhead, sought to identify the limits to the type of police conduct which in any set of circumstances were acceptable. At paragraph 23 he said: “On this a useful guide is to consider whether the police did no more than present the defendant with an unexceptional opportunity to commit a crime. I emphasise the word unexceptional. The yardstick for the purpose of this test is, in general, whether the police conduct preceding the commission of the offence was no more than might have been expected from others in the circumstances. Police conduct of this nature is not to be regarded as inciting or instigating crime, or luring a person into committing a crime. The police did no more than others could be expected to do. The police did not create crime artificially.” Other factors were to be taken into account but, as he said at paragraphs 24 and 25: “24. ..The investigatory technique of providing an opportunity to commit a crime touches upon other sensitive areas. Of its nature this technique is intrusive, to a greater or lesser degree, depending on the facts. It should not be applied in a random fashion, and used for wholesale 'virtue-testing', without good reason. The greater the degree of intrusiveness, the closer will the court scrutinise the reason for using it. On this, proportionality has a role to play. 25. Ultimately the overall consideration is always whether the conduct of the police or other law enforcement agency was so seriously improper as to bring the administration of justice into disrepute. Lord Steyn's formulation of a prosecution which would affront the public conscience is substantially to the same effect: see R v Latif [1996] 1 WLR 104 , 112. So is Lord Bingham of Cornhill CJ's reference to conviction and punishment which would be deeply offensive to ordinary notions of fairness: see Nottingham City Council v Amin [2000] 1 WLR 1071 , 1076. In applying these formulations the court has regard to all the circumstances of the case. The following comments may be made on some circumstances which are of particular relevance” He then set out his comments on the considerations relating to the nature of the offence, the reason for the particular police operation and the nature and extent of police participation in the crime. Lord Hoffman considered a number of the circumstances which a court should examine in determining whether the involvement of the court in the conviction of the defendant who had been subjected to such behaviour would compromise the integrity of the judicial system. Those circumstances included the distinction between causing an offence and providing the opportunity for its committal, the distinction between obtaining evidence in relation to a crime which a person is about to commit or on which he is engaged and tempting a person into committing a crime and the degree of supervision over the officer involved. Lord Hutton approved the four factors set out in the dissenting judgement of McHugh J of the High Court of Australia in Ridgeway v The Queen (1995) CLR 19 at 92: “ (1) Whether conduct of the law enforcement authorities induced the offence. (2) Whether, in proffering the inducement, the authorities had reasonable grounds for suspecting that the accused was likely to commit the particular offence or one that was similar to that offence or were acting in the course of a bona fide investigation of offences of a kind similar to that with which the accused has been charged. (3) Whether, prior to the inducement, the accused had the intention of committing the offence or a similar offence if an opportunity arose. (4) Whether the offence was induced as the result of persistent importunity, threats, deceit, offers of rewards or other inducements that would not ordinarily be associated with the commission of the offence or a similar offence.” The contentions 10. The appellant’s contention that there had been entrapment in relation to the matters with which he was charged in relation to the communications with Amy was in summary: i) The prosecution case was that the appellant was guilty of an attempt because he committed the actus reus , inciting a child via a text, with a clear intention of inciting a child to engage in a sexual act, in the belief he was communicating with a child. If he had been communicating with a real child, then he would have committed the full offence. ii) It followed that, if the appellant had not believed he was communicating with a child, no offence would have been committed. On the way the prosecution put the case, the appellant was guilty of an attempt only because he believed the facts to be such that, if they had been as he believed, he would have been guilty of the full offence. iii) The appellant believed he was communicating with a real child only due to the deception practised upon him by the police. No offence would have been committed if it had not been for the appellant’s alleged belief that he was communicating with a real child. The offence was therefore created by the police. iv) The police could easily have ascertained who he was as they had the phone number for some considerable period of time; they had never communicated with him. v) There was no evidence that any child had ever been approached. The messages, although deeply offensive, were a fantasy or a joke in appalling taste. vi) It therefore followed that the conduct of the police fell into the unacceptable category. 11. The prosecution contended: i) The public interest required the identification of the author of the messages on the toilet doors and establishing the extent of his offending behaviour. ii) Although the appellant subsequently pleaded guilty to the four specimen counts, counts 17-20, of causing criminal damage with intent to commit a sexual offence relating to the writing of the messages, until his arrest there was no information or evidence to link him or any other person to the graffiti. It was therefore essential that the operation initiated by the police was carried out. 12. Before turning to consider the various factors set out in Loosely , it is first necessary to consider the scope of the offence under s.8 and in particular whether it was necessary for there to be an identified or identifiable child whom the offender incited. Is it necessary to identify a specific child under s.8 ? 13. The prosecution had charged the appellant specifically in relation to the messages sent to Amy rather than in relation to the graffiti on the toilet doors; they had done this as they wished to rely on communications which made it clear that the appellant was inciting penetrative sex and therefore potentially subject to life imprisonment under s. 8(2) . The hearing before the judge was conducted on the basis that the offence as charged in count 21 had as the object of the appellant’s incitement a specific person. However, the prosecution contended that as a matter of principle, the offence could be committed without there being a specific child, though in this particular case the count in the indictment had been based on conduct in relation to an identified person. The prosecution had therefore charged the appellant with an attempt as it was impossible to commit the offence as charged on the basis of the conduct in relation to Amy, as Amy was over 13. 14. For the appellant it was contended that the offence under s.8 required incitement of an identified or identifiable child: i) This was because s.8 required the incitement of “another person (B)” and that that other person, B, be under 13. Although the words “another person” could mean “any person”, the section read as a whole meant that the term “another person” must refer to a specific child under 13 rather than any child under the age of 13, as the section was focussed on particular activity with a child under the age of 13. ii) That child could be identifiable by name or characteristic; for example, the person could be identifiable by being sent an e-mail, such as an e-mail addressed to each of a class of 12 year old girls. However, the offence could not be committed simply by graffiti of the type we have set out, as the graffiti were not addressed to an identifiable person. 15. It is, we think, helpful first to consider the decision in R v Most (1881) LR 7 QBD 244 on the scope of the offence of solicitation to murder under s.4 of the Offences against the Person Act 1861 (as amended). The offence is defined as “Whosoever shall solicit, encourage, persuade or endeavour to persuade, or shall propose to any person, to murder any other person, whether he be a subject of her Majesty or not, and whether he be within the Queen's dominions or not, shall be guilty of a misdemeanour, and being convicted thereof shall be liable to imprisonment for life.” The editor and publisher of an anarchist German language newspaper published in London an article praising the assassination of the Russian Czar Alexander II and commending it as an example of tyrannicide to be followed. He was charged with offences of common law criminal libel and 10 offences under s.4 of soliciting or encouraging the murder of the sovereigns of Europe, including in separate counts the Kaiser and the Czar. Some counts in the indictment identified those whom the defendant had encouraged as a named person or a class of persons (the readers of the newspaper) and other counts as unnamed and unidentified persons. It was contended on behalf of the defendant that some personal communication encouraging murder was needed to a defined person. The Court for Crown Cases Reserved decided that the publication of the article could amount to an encouragement to murder, even though it was not addressed to a specific person. The court considered that the issue was one of the construction of the section of the statute. Lord Coleridge CJ expressed the principle in these terms at page 252: “An endeavour to persuade or an encouragement is nonetheless an endeavour to persuade or an encouragement, because the person who so encourages or endeavours to persuade does not in the particular act of encouragement or persuasion personally address the number of people, the one or more persons, whom the address which contains the encouragement or the endeavour to persuade reaches. The argument has been well put that an orator who makes a speech to two thousand people, does not address it to any one individual amongst the two thousand; it is addressed to the number. It is endeavouring to persuade the whole number, or large portions of that number, and if a particular individual amongst that number by the orator is persuaded, or listens to it and is encouraged, it is plain that the words of this statute are complied with; because according to well known principles of law, the person who addresses those words to a number of persons must be taken to address them to the persons who, he knows, hears them, who he knows will understand them in that particular way, and do act upon them.” 16. It seems to us that the principle is the same in relation to section 8 . The gravemen of the offence is the incitement of children under the age of 13 to engage in sexual activity; it is not concerned with the effect on a particular child. The criminality at which the offence is directed is the incitement and it matters not that this is directed at a particular child or a very large group of children or whether the child or children can be identified or not. 17. There is no significance in our view that the term “another” is used as opposed to “any other”. As a matter of language the terms mean the same. It is clear that the term “another” is used in other enactments where it refers to a person who need not or cannot be identified, as for example in s.1(2) of the Protection of Children Act 1978 and s. 5(3) of the Misuse of Drugs Act 1971 . 18. In our view therefore the offence under s.8 can be committed by a person who, with the requisite intention, makes a statement which in specific terms directly incites a child or children under the age of 13 to engage in sexual activity. It matters not that it is not possible to identify any specific or identifiable person to whom the statement is addressed. In this case, however, the prosecution chose to charge the appellant in relation to incitement of a particular person, as had been the case in some of the counts in Most , but it is nonetheless relevant to the argument on entrapment that the offence could have been charged without identifying a particular person. Was there entrapment? 19. We therefore turn to the principal question as to whether this was a case where the police had lured the appellant into attempting to commit the offence under s.8 . We have considered the various formulations set out in R v Loosely and in particular whether the police conduct was so seriously improper as to bring the administration of justice into disrepute. It was accepted by the prosecution that any predisposition that the appellant may have shown to commit the offence was irrelevant on the basis of paragraph 68 of the opinion of Lord Hoffman in Loosely : “Since the English doctrine assumes the defendant's guilt and is concerned with the standards of behaviour of the law enforcement officers, predisposition is irrelevant to whether a stay should be granted or not. The facts which lead the police to suspect that crimes are being committed and justify the use of an undercover officer or test purchaser may also point to the accused and show predisposition. But that is a coincidence. The fact that, for example, the accused has previous convictions is in English law neither necessary nor sufficient. Suspicion may attach to a person who has previously escaped conviction and, contrariwise, the fact that a person has been previously convicted may provide no ground for suspecting a current course of criminality which would justify the use of covert operations. Nor is the fact that a person is a drug addict and therefore likely to know a supplier a sufficient ground in itself for tempting him to move altogether outside his usual way of life and act as intermediary in the supply of a substantial quantity of drugs. Such persons may be particularly vulnerable to unfair pressures of this kind. It may be possible to justify them for the purpose of securing the prosecution and conviction of the supplier but not the prosecution and conviction of the intermediary.” 20. We have therefore had no regard to the appellant’s predisposition, but we have considered the factors set in the following paragraphs in reaching our conclusion: (i) The nature of the offence 21. Causing or inciting children under the age of 13 to engage in sexual activity is by its nature a crime which a person will seek to commit in covert circumstances, using modern methods of communication such as the internet or mobile telephones. Using these methods, a person engaged in this activity can conceal his identity until such time as he has the young person in his presence and is in a position to commit the further offence of actually engaging in sexual activity. It is therefore a crime in which the secrecy by which those engaged in it proceed and the difficulty of detection are highly material circumstances which point to the need for the police to engage in covert activity. 22. As we have set out above, the essence of the criminality is the incitement; the crime does not need an identifiable person as the object of the incitement. It is in this context that the actions of the police primarily must be seen. We do not therefore accept the appellant’s contention put in several different ways that the police created an offence of this type. (ii) Instigation or providing the opportunity 23. It is clear, in our view, from the appellant’s conduct in relation to the journalist, that he was looking for opportunities to incite a child to penetrative sexual activity; the incitement in those communications went beyond what was stated in the graffiti and included a specific incitement to penetrative sexual activity. The police officer’s conduct in relation to the appellant followed on from those events. Far from instigating the offence, the police officer’s conduct provided only the opportunity for the appellant to attempt to commit a similar offence and provide the evidence necessary for a conviction. The police officer’s response to the invitation in the graffiti by pretending to be a child was a necessary pretence to that end; the pretence did not go beyond providing the necessary opportunity for the appellant to attempt to commit the offence by inciting a person whom he believed to be under the age of 13 to engage in penetrative sex. The police officer’s replies thereafter to the text messages were entirely acceptable in a covert operation of this kind, as otherwise the nature of her actions would have increased the suspicions of the appellant. It was the appellant who, after he had been told of the person’s age, continued and went on to incite penetrative sexual activity on more than one occasion on the days that followed. (iii) The reason for the particular police operation: gathering evidence 24. In this case, the police plainly had good grounds for believing that whosoever was writing the graffiti had committed an offence under s. 8 and, after the contact between the journalist and the writer of the graffiti, that the incitement to sexual activity would include incitement to penetrative sexual activity. It was thus only necessary for the police to identify the writer of the graffiti and to provide the opportunity, when the writer of the graffiti identified himself, for that person to make a further attempt to incite penetrative sexual activity. 25. The obtaining by the police of the details of the mobile telephone subscriber would not in themselves have been sufficient to identify the writer of the graffiti. The evidence was that this was a “pay as you go” number and anyone who was arrested in possession of the mobile phone could claim they had just found it and it might be difficult to disprove that. The prosecution therefore needed to show who was actually using the mobile telephone in question. 26. If the prosecution wished to rely on the more serious activity under s 8(2) , it had to provide evidence of an attempt to incite penetrative sexual activity. An offence under s.8 was, in our view for the reasons we have given, complete without the need to identify a particular child, but the graffiti did not unequivocally incite penetrative sexual activity. Although the writer of the graffiti had shown he would attempt to incite penetrative sexual activity by the communications with the journalist, the police had no evidence at that stage against the appellant in relation to that attempt. The scope of the police officer’s involvement was thus essentially limited to providing an opportunity to attempt to commit that offence and to provide the evidence. As we explain more fully at paragraph 28, it would always have been open to the appellant to claim that the graffiti were pure fantasy (as was done on his behalf in this court as we have set out at paragraph v) or directed at non penetrative sexual activity. It was therefore quite proper for them to seek such evidence by providing an opportunity. The evidential position was quite different to that in Most , as in that case there was in the court’s view no doubt that the defendant intended to encourage the murder of the Czar or Kaiser or other heads of state. It would have been wholly inappropriate for the police to have asked an actual child of the age in question to respond to the advertisements. It was, in our view, legitimate therefore for the police to use an adult within the police force pretending to be a child; as we have said the pretence did not go beyond that. 27. If contrary to our view, the offence did require that the incitement be directed at a specific child, and that therefore the essence of the offence was incitement in relation to a particular child, the appellant contended that it was clear the police had created the offence for the reasons set out at paragraph 10. However, even though on that analysis, the scope of police activity in relation to the particular offence could be seen as greater, it is our view that the police officer in fact did no more than give the appellant the opportunity to commit the offence. What the officer did was no more than to pretend to be a child of a particular age; it was the appellant who thereafter went on to incite penetrative sexual activity. 28. Furthermore, as we have mentioned, it was likely that the contention would be made (as it was in this court) that the messages on the toilet doors were a pure fantasy. It was necessary for the police to be able to show that they were not. This was also the position in respect of the offences under s.62 (the subject of counts 17-20); if a person was charged as a result of writing the graffiti with the offence of causing malicious damage with intent to commit a relevant sexual offence, it would always be open to that person to say that his message was a pure fantasy; as he did not have the relevant intent, he had done nothing more, given the value of the damage, than commit the summary offence of malicious damage. The prosecution would need to be in a position to prove that it was not a fantasy and he had an intention to incite sexual activity; it is difficult to see how they could obtain such evidence without engaging in the type of covert operation in which they became engaged in this case. (iv) The nature and extent of police participation in crime 29. The operation was properly authorised as part of an ongoing investigation into a paedophile ring and the placing of the sexually explicit graffiti on toilet doors. This is not a case where there was any ulterior motive other than to apprehend the appellant and to provide the necessary evidence. 30. There is a clear record of what the officer did. We have carefully considered the full range of the text messages and do not consider that in this case the police officer engaged in any forceful or persistent overtures or did anything that would bring about the commission of a crime by a person who would normally avoid a crime of that kind. This is not the case of a vulnerable defendant, but of a person who full well understood what was being said to him about the age of the person with whom he thought he was communicating and in that knowledge went on to incite penetrative sexual activity. 31. We do not therefore consider that this is a case where the police did anything that was not proportionate or in any way in contravention of Article 8 of the ECHR. Conclusion 32. The judge concluded that the offence was not instigated by the police; it was instigated by the appellant’s own actions. We agree with that observation and with his conclusion. We have endeavoured to set out in the preceding paragraphs all the relevant circumstances. Lord Hoffman referred at paragraph 55 of his judgment in Loosely to the test of whether the law enforcement officer behaved like an ordinary member of the public was more suited to regulatory offences than to offences in which members of the public were unlikely to be involved. However, we consider it is also relevant to take into account the actions of the journalist in answering the message as a further measure by which the acceptability of the conduct of the police can be judged. It is clear to us looking at all the circumstances that the police were not inciting or instigating a crime or luring the appellant into committing it. The officer was obtaining the necessary evidence by providing an opportunity for the appellant to commit an offence which he had attempted to commit in his conversations with the journalist in circumstances where no harm could come to a victim. That officer’s behaviour far from bringing the administration of justice into disrepute was necessary if the appellant was to be apprehended before he incited an actual child. This was not a case of abuse of state power which would deny the appellant a fair trial. The judge was right therefore in refusing a stay on that basis. (2) No offence known to the law 33. On behalf of the appellant it was submitted that he could not have had the requisite intention to commit the alleged attempt because he did not intend to incite any actual child under the age of 13 to engage in sexual activity. It was an essential element of the offence that the appellant intended to cause an actual child under the age of 13 to engage in sexual activity. There was no actual child in this case, only a fictional child; therefore the appellant could not have committed an attempt. 34. As we have already observed, the prosecution accepted that the way in which the count had been framed required proof that it was the intention of the appellant to cause or incite a specific person to engage in sexual activity, but that it was no more than an attempt as the person was not a child under 13. However, it was contended that the decision of the House of Lords in R v Shivpuri [1987] A.C.1 meant that on the basis of the facts not in dispute the defendant was guilty of the offence in question. 35. In Shivpuri the defendant was charged with importing heroin; a suitcase had been sent from India which the defendant believed contained heroin or cannabis. Analysis revealed that the substance was in fact harmless vegetable matter. The House held that the actus reus of the offence of attempt required an act which was more than merely preparatory to the commission of offence and which the defendant did with the intention of committing an offence, notwithstanding the commission of the actual offence was on the true facts impossible. 36. It is contended by the appellant that Shivpuri was distinguishable from the present case on the basis that the intention of the defendant in Shivpuri was real; he really intended to evade the prohibition on the importation of drugs; his mistake was merely as to the content of the packages. In the present case, it was submitted, the object of the appellant’s intention was fictional in that the person he allegedly sought to incite was an adult not a child under 13. 37. We cannot accept this is a proper basis on which to distinguish Shivpuri . In the present case it would have been open for the jury to conclude that the appellant had the objective and intention of inciting a particular child to engage in penetrative sexual activity. His intention was to evade the prohibition in the law, just as it was in Shivpuri . In a case where the police had substituted innocent material for unlawful drugs, it was now unarguable that a defendant who believed that they were drugs, could escape conviction for attempting to importing unlawful drugs. In this case the police had substituted an adult for a child; the appellant could not argue that by reason of that substitution, provided the other elements of the offence were made out, there was a defence in law to the charge. 38. In Shivpuri , Lord Hailsham set out at page 12 three questions. i) What was the intention of the appellant throughout? ii) Was the knowing evasion of the UK Customs in the manner envisaged in the appellant’s intent an offence to which Section 1 of the Act of 1981 applies? iii) Did the appellant do an act which was more than preparatory to the commission of the offence? 39. Answering three similar questions by reference to the offence under s. 8 of the Sexual Offences Act on the facts before the judge at the time he had to consider them, it was clear first that the appellant throughout intended to incite penetrative sexual activity with a child under 13. Secondly, it was clear that acting in the manner envisaged by the appellant’s intent would be an offence contrary to s. 8 of the Sexual Offences Act 2003 . Thirdly, at the time the learned judge gave his ruling there was evidence that the appellant intended to do an act which was more than merely preparatory to the commission of the offence. In considering two similar questions posed by Lord Bridge of Harwich at page 19, it is clear first that the appellant intended to incite a specific child to engage in penetrative sexual activity and on the material before the judge, he did an act more than merely preparatory to the commission of the offence. He could not complete the offence and do an act that was more than merely preparatory because in the circumstances commission of the offence of incitement of the person was impossible. 40. Therefore we agree with the ruling of the learned judge that this ground for seeking to stay the indictment was ill-founded. (3) No factual basis for the offence charged 41. The final submission made on behalf of the appellant was that the appellant had been charged with a more serious offence than that which was warranted even on the prosecution’s own case. This was not a submission that was made to the trial judge, but can be summarised as follows: i) If the appellant’s intention was to incite a particular child to engage in sexual activity, then it was submitted that it was incidental that the age of the fictional child was under 13. It was the police officer, Amy, who had chosen the age of 12; if the police officer had chosen to tell appellant that the age of the fictional child was 13 or over then the appellant should have been charged under s. 10(1) of the Sexual Offences Act 2003 . ii) It was only because the police had chosen the age of 12 that the appellant was charged under s. 8 of the Act with its more serious sanction. iii) There was no evidence that it mattered to the appellant that Amy was 12 rather than 13 and there was no evidence that the appellant would have behaved any differently had Amy claimed to be 13. 42. Ss. 8 and 10 create two similar offences, but at differing levels of seriousness with different penalties. The question, therefore, is whether the police behaved improperly in choosing an age of the younger group rather than the older group. 43. We do not consider that they did. We reject the submissions made on behalf of the appellant. It is self evident that sexual activity with a child is much more serious, if committed with a child below the age of puberty; for that reason, Parliament made incitement directed at a child below the age of 13 a much more serious offence. Furthermore, it is clear that age was not immaterial to the appellant. From the graffiti on the train, it was self evident that the appellant was directing his activities to females of the age of eight to 13. It was the appellant who asked Amy for her age. When Amy clearly gave the age of 12, the appellant believed from that time that he was inciting a child under 13 and proceeded to incite penetrative sexual activity in that belief. Conclusion 44. Each of the grounds put forward on behalf of the appellant fails and the appeal is dismissed.

2007_05_15-1110.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/1118/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/1118

d76c63f25bf2329831c9f0cd35ba5c8c2c919788ae6292e0f1ff7db91d89bd83

[2006] EWCA Crim 2637

EWCA_Crim_2637

2006-10-16

crown_court

No: 2006/3683/A8 Neutral Citation Number: [2006] EWCA Crim 2637 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Monday, 16 October 2006 B E F O R E: LORD JUSTICE HOOPER MR JUSTICE AIKENS MR JUSTICE LLOYD JONES - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 81 OF 2006 - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A

No: 2006/3683/A8 Neutral Citation Number: [2006] EWCA Crim 2637 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Monday, 16 October 2006 B E F O R E: LORD JUSTICE HOOPER MR JUSTICE AIKENS MR JUSTICE LLOYD JONES - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 81 OF 2006 - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MISS B CHEEMA appeared on behalf of the ATTORNEY GENERAL MR D SHELLEY appeared on behalf of the OFFENDER - - - - - - - J U D G M E N T 1. LORD JUSTICE HOOPER: This is a reference by the Attorney General under section 36 of the Criminal Justice Act 1988 . We grant the necessary leave. During the course of the oral argument it became clear that Mr Shelley, who appears for the offender, conceded that the sentence which the learned judge passed was unduly lenient and the judge ought to have passed a sentence of imprisonment for public protection. In those circumstances this judgment can be brief. 2. Having previously pleaded not guilty at a Plea and Case Management Hearing on 23rd January 2006, the offender pleaded guilty before His Honour Judge Burgess at Derby Crown Court to one count of arson being reckless as to whether life was endangered, contrary to section 1(2) and (3) of the Criminal Damage Act 1971 . The offence was committed on 1st August 2005. Sentence was adjourned for the preparation of reports. 3. On 12th April 2006 the case was listed for sentence and opened in full to His Honour Judge Pugsley, but sentence was adjourned so that a psychiatrist, Dr Mendelson, could attend court to give evidence and a psychologist could be instructed. 4. On 29th June 2006 the offender was sentenced to four years' imprisonment. The offender was given credit for time spent in custody on remand and a total of 330 days was to be counted pursuant to section 240(3) of the Criminal Justice Act 2003 . The prosecution offered no evidence on an alternative count on the indictment of arson with intent to endanger life and a not guilty verdict was entered. 5. The facts in summary are that the offender who, after three-and-a-half years of separation, could not accept that his relationship with his former partner was over, formed a particular animus against her female friend. After an evening drinking he took petrol to the friend's home where the friend was sleeping with her children aged six, nine and 11 years. The offender set light to the floor inside the porch of the first floor flat, which has only one safe access point, by pouring petrol in through that door and setting fire to it. A smoke alarm awoke the occupants and the fire was put out. The friend and her children were treated for the effects of smoke inhalation and there was limited damage to the porch area at the front door. The offender was arrested at the scene and provided a breathalyser sample of 210ug alcohol in 100ml of breath. He denied the offence in interview. 6. The facts in more detail are that the offender had a relationship with a woman called Michelle Hattersley lasting some 12 years but which ended three-and-a-half years before the offence. The reason given by Michelle Hattersley for the break-up was the offender's possessive nature. They had three sons. Since the separation Miss Hattersley had become best friends with the victim, Tracey Crawford, who had three daughters aged six, nine and 11. By the time of the offence the offender had been evicted from his flat and was sleeping in his car. He seemed destitute and in desperate circumstances. 7. The offender pursued Miss Hattersley and found it impossible to believe that their liaison was indeed finally finished. He would attend at her home and disturb her, often after he had been drinking. He made threats to kill her and any new boyfriend she had. He formed the view that Miss Crawford was deliberately preventing the relationship from reforming and that she was introducing Michelle Hattersley to other men. This had been a subject of discussion between the offender and Miss Hattersley on many occasions. 8. On the day of the incident, 31st July 2005, the offender spoke to his ex-girlfriend in person and twice on the telephone. He told her that he hated Tracey Crawford. At about 7.40 pm he went to her house and was in the usual belligerent mood. They argued. At 9.00 pm Miss Crawford visited Michelle Hattersley and the two women talked until about 11.30 pm when Miss Crawford left and returned home with her children. They immediately went to bed. 9. In the meantime the offender had been drinking at his brother's house nearby. He was drinking cider and during the evening looked out of the window in the direction of Miss Crawford's home and said: "She won't be laughing this weekend." 10. At about 12.40 am the offender's brother saw him take a petrol can and a magazine out of the boot of his car and then walk in the direction of Miss Crawford's flat which is above a social club. Access to the flat is via an external staircase. At the front door there is a porch near which a gas meter is housed. 11. The offender poured petrol onto the doormat inside the flat. He removed the letter box flap and was able to set light to the petrol using matches. Miss Crawford was woken by the smoke alarm and used water to extinguish the flames, assisted by her 11-year-old daughter. The children had to leave the flat by running through the smoke to escape. The fire brigade was called at 1.04 am. 12. The family was treated with oxygen for the effects of smoke inhalation, although no other injury was caused. There was a small amount of damage to the door and area around it and the carpet in the hallway. There was light smoke damage to the rooms of the flat. 13. After entering his guilty plea the offender wrote a letter to the sentencing judge in which he expressed his regret, stated that the offence was out of character and set out his priorities when released as being to get a place to live and to see his children. He also apologised to the judge and to Tracey Crawford and her family. 14. The offender has old burglary and drink driving convictions and in September 2004 he was convicted of an offence of battery against Miss Hattersley. He had punched her in the face several times during a heated argument. At North East Derbyshire and Dales Magistrates Court he was sentenced to a community punishment order of 100 hours which was eventually breached and varied to a community rehabilitation order for 12 months on 21st February 2005. The offender was by then also the subject of a community rehabilitation order made by Sheffield Magistrates Court on 7th January 2005 for an offence of driving whilst disqualified and using an uninsured vehicle. The offender also has a caution for two matters of common assault on 20th November 2001, both of which were also assaults against Miss Hattersley. 15. A pre-sentence report was prepared and is dated 28th February 2006. The author of the report makes the following central points: 1. The offender was unable to give an account of the offence which he blamed on alcohol. 2. His attitude to Miss Hattersley was still possessive and he persisted in minimising the history of violence in their relationship. 3. He had a serious alcohol problem at the time of the offence and although he was dry in custody he had no fixed plans how to remain abstinent on release. 4. The offender was assessed as posing a medium risk of reoffending but of posing a high risk of causing serious harm to known adults, namely his ex-girlfriend and any adult she became close to. 5. There was a passage in a prosecution witness statement in which it was said that the offender had put petrol through his sister's letterbox six months before this offence although the matter had not been reported to the police at that time. 16. Two psychiatric reports were prepared by Dr Mendelson dated 23rd February 2006 and 27th March 2006. During the interview for the first report the offender denied having any previous convictions. Dr Mendelson was of the view that by the time of this offence the offender had developed a full alcohol dependency. There was no history of physical or mental ill health. The offender said that it was in drunken desperation and, on the failure of his attempts to win back Michelle Hattersley's affections, he impulsively set fire to Miss Crawford's front door. He believed the fire would be quickly and easily detected but Miss Crawford would be frightened enough to leave the town and hence her influence be removed from Michelle Hattersley. The of tender told Dr Mendelson that he was now reconciled to the end of his relationship and was looking forward to meeting new women through work. The conclusion of the report was a hope that the court might be able to be lenient towards the offender given the lengthy time he had spent on remand and consider a probation disposal: "I would consider the risks of him returning to the community at this stage to be acceptably small. There was no indication that the harbours any inclinations towards further fire setting and there appears to be no residual resentment or hostility. Moreover he does seem to have been genuinely greatly shocked by his alarmingly irresponsible behaviour." 17. In the second report Dr Mendelson recognised that the offender still harboured resentment against his ex-girlfriend but he had remained stable in prison and intended to get involved with abstinence programmes when released from custody. The recommendation was for a combination order to so that the offender could be properly supervised in the community. There was still a risk that if fuelled by alcohol his resentments could result in further serious offending but such a risk would remain however long the sentence and only abate once the offender was settled in the community and perhaps with a new partner himself. 18. Subsequently a psychological assessment was carried out on the offender and a consultant psychologist Rebecca Lawday provided a report for the court dated 25th June 2006. The central findings were that the offender still had ambivalent feelings towards Michelle Hattersley but that going to prison had been a wake up call for him and he now recognised that she was not interested in him. He had let his financial situation get out of hand by trying to win back Michelle through the purchase of presents for the children and giving her a car. He had been evicted and felt considerable social stigma and shame from having become almost destitute. The alleged earlier incident with petrol was denied. He had now begun to address his alcohol dependency with regular sessions in prison and the expert formed the view that the offender was expressing genuine remorse for his acts. 19. When addressing the issue of risk the report is less emphatic than the author of the pre-sentence report. 20. The following aggravating features appear to be present: A) the offence was premeditated; B) the victims included three children who the offender knew were asleep in bed when he set light to the only means of escape from their first floor flat; C) the offender was motivated by a hatred of his ex-girlfriend's friend; D) the offender did nothing to raise the alarm; E) the offender's antecedents reveal a history of domestic related violence; F) the offender's response to punishment and rehabilitation in the past has been poor. 21. The following mitigating features appear to be present: A) guilty plea; B) no intent to endanger life; C) remorse; and. D) no moderate or serious injury caused and only minor damage to property. 22. In so far as the reference in the pre-sentence report to an allegation that the offender had committed this offence on another occasion, we do not need to consider whether that was a factor which the sentencing judge was entitled to take into account given the concession that is being made by Mr Shelley. 23. Mr Shelley makes his concession because having had a number of passages drawn to his attention in the course of proceedings in the court below, he accepts that the judge had reached the conclusion that not only was this a serious offence but in the opinion of the judge there was a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences. As Mr Shelley concedes, once the learned judge has reached that conclusion then he had no alternative under section 225 other than to impose either a life sentence or a sentence of imprisonment for public protection. It is the latter which the Attorney General rightly submits is the appropriate sentence in this case. 24. The result therefore of this reference is that we substitute for the sentence of four years' imprisonment a sentence of imprisonment for public protection. The specified minimum term will be two years, minus the 330 days which he has spent on remand.

2006_10_16-936.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/2637/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/2637

679987078c9341090d9446c218f3d9037e383a4cac4afce6a7f2a9281417ee71

[2019] EWCA Crim 1075

EWCA_Crim_1075

2019-06-12

crown_court

Neutral Citation Number [2019] EWCA Crim 1075 No: 201804483/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday 12 June 2019 B e f o r e : LORD JUSTICE HOLROYDE MR JUSTICE MARTIN SPENCER HIS HONOUR JUDGE PICTON (Sitting as a Judge of the CACD) R E G I N A v COREY THEON ALLARD 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

Neutral Citation Number [2019] EWCA Crim 1075 No: 201804483/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday 12 June 2019 B e f o r e : LORD JUSTICE HOLROYDE MR JUSTICE MARTIN SPENCER HIS HONOUR JUDGE PICTON (Sitting as a Judge of the CACD) R E G I N A v COREY THEON ALLARD 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. Miss N Chbat appeared on behalf of the Appellant J U D G M E N T (Approved) 1. LORD JUSTICE HOLROYDE: Over the course of three trials in the Crown Court at Aylesbury, this appellant was convicted of a number of very serious offences. On 5 October 2018 consecutive extended sentences were imposed upon him, amounting in total to an extended sentence of 26 years, comprising of a custodial term of 21 years and an extension period of five years. He appeals against his total sentence by leave of the single judge. 2. The appellant was born on 23 March 1997 and so is now 22 years old. The offences with which the court is concerned were all committed when he was aged 20. Serious though they were, we can for present purposes summarise the facts quite briefly. We shall do so in chronological order. Intending no disrespect, we shall refer to people only by their surnames. 3. On 2 September 2017 the appellant and his co-accused Green went to the flat of an acquaintance. Others present included Eedle and Gary. After a period of initial high spirits, there was a sudden change of atmosphere when Green began to argue with Gary. Eedle tried to leave but was prevented from doing so by Green, who brandished a knife towards him and demanded that he empty his pockets. In fear, Eedle tried to escape through the window of the lounge. He was grabbed from behind by Green, who held onto his legs and tried to go through his pockets. Eedle's head and shoulders were projecting through the window. The appellant, by now outside the building, punched him in the head at least twice. 4. The appellant was arrested on 19 October 2017. He made no comment when interviewed under caution. He was then released on bail and so was on bail at the time of the subsequent offences. On indictment T20187045 the appellant was convicted of offences of attempted robbery of Eedle and assault occasioning actual bodily harm to Eedle. 5. On 11 January 2018 the appellant was seen riding a motorcycle which had been stolen two months earlier. The person who saw him, Allnutt, recognised the motorcycle and rang its rightful owner (Martin) to alert him. Arrangements were then made by telephone for Allnutt, accompanied by Wilson, to meet the appellant and his friend O'Brien, ostensibly with a view to buying the motorcycle from them. Martin then joined that meeting and identified himself as the rightful owner of the motorcycle. A struggle began between Martin and the appellant, in which Martin put the appellant to the ground. The appellant then shouted to O'Brien to "get the blade, bring the blade" and O'Brien stabbed Martin in the buttock. Wilson grabbed the appellant and struggled with him on the ground. O'Brien then stabbed Wilson in the chest. Both the injured men were taken to hospital. Martin had suffered a stab wound to his hip. Wilson had suffered a puncture wound to his chest which resulted in a pneumothorax. On indictment T20187012 the appellant was convicted of an offence of wounding Wilson with intent to do him grievous bodily harm. 6. About a month later, on 13 February 2018, police officers in an unmarked police vehicle saw the appellant driving a Vauxhall Astra. He was accompanied by Burke and, as it later transpired, Green. The police officers saw what appeared to be a drug deal being carried out from the Astra. They followed the Astra intending to stop it when it reached a less busy area. However, Burke then leaned out of the window and appeared to realise that police officers were following. The appellant stopped the car in an area where there were many people, including children. The officers pulled in at an angle which prevented the Astra from moving forwards. One of the officers, Gavin, ran towards the passenger side of the Astra with his baton extended. The appellant reversed the Astra away from the police car and then drove forwards at speed directly at Gavin. Realising that collision was inevitable, Gavin jumped onto the bonnet of the Astra. He was propelled from the bonnet to the roof. After holding on for a short time he rolled off the roof and landed in the road head first. His colleagues found him bleeding from a head injury and unresponsive. 7. Meanwhile, the appellant continued on his way at speed, driving dangerously in an attempt to get away. The Astra was later found abandoned. CCTV footage showed that the appellant and Burke had attempted to wipe the car down, succeeding in removing some but not all relevant fingerprints. It also showed that Green had been a passenger in the rear of the car. 8. Having successfully escaped from the scene, the appellant stayed for two nights in hotels before being found and arrested. Examination of his mobile phone revealed evidence that he had been dealing in cannabis. On indictment 20187023, the appellant was convicted of wounding Gavin with intent to resist or prevent the lawful apprehension of himself and with dangerous driving. He pleaded guilty to being concerned in supplying a controlled drug of class B. 9. Wilson, the victim of the stabbing on 11 January 2018, made a victim personal statement a few days later in which he indicated that he had been in hospital for five days and expected to be off work for about six months which would cause him severe financial hardship. He was at that stage suffering with constant flashbacks. His sleep was badly affected. He was frightened to answer the door at home in case something similar happened again and he was reluctant to leave the house. 10. Gavin made two personal statements relating to the consequences of his being struck by the Astra. In the first, made about three weeks after the events, he described injuries to his neck and to the back of his head which had resulted in a small dent in his head. He complained of extreme stiffness and muscle fatigue and an inability to move his head for several days. He had returned to duties but continued to suffer from a stiff neck and felt under great strain. He did not like to think about the incident because he could so easily have been killed. In his second statement, made five months after the events, Gavin said that the incident with the appellant had occurred only about a week after an unrelated incident in which Gavin had been injured whilst pursuing a criminal. He spoke of his continuing fear that he could easily have died when struck by the Astra. He felt that he could have dealt with the earlier incident, and with subsequent threats made to him and his family, but for the fact that he had also been run over by the appellant. He recorded that a recent psychological test had indicated he was suffering a high level of stress and he had been advised that PTSD was likely to be an issue later in his life. He was still suffering from an extremely stiff neck at least twice a month. He felt that the incident had left a lasting psychological and emotional mark which would stay with him all of his life. 11. The appellant had a number of previous convictions. When he was aged 18 he was fined and made subject to community orders for offences of possession of drugs, theft and possession of a knife. Some months later, still aged 18, he committed offences of possessing an offensive weapon and failing to answer bail. He was ultimately sentenced for those offences on 27 July 2017, when a total of 12 weeks' imprisonment suspended for 12 months was imposed. The appellant was subject to that suspended sentence at the time of the present offences. 12. A pre-sentence report indicated that the appellant continued to deny the offences, making it difficult to make a thorough assessment of his reasons for committing them. The author of the report noted however a pattern of anti-social behaviour linked to peer association, and recorded that the appellant acknowledged that this was a problem for him and an influence on his overall offending behaviour. The author also noted that the appellant showed no remorse and seemed to lack insight into or empathy with the effect of his offending on his victims. The appellant described his childhood as a good one with stable love and care from his mother. He had however been disruptive at school and it seems that his associations with others had led to his being the victim of a knife attack, after which, he said, he carried a knife for his own protection. The author of the report expressed the view that the appellant required work to address his thinking and his behaviour in order to reduce the likelihood of re-offending and the risk of serious harm which he currently posed. The appellant stated that he wanted to make changes to his life in order to avoid spending his life in prison, although the author of the report doubted whether he was yet sufficiently motivated to achieve this. The appellant recognised that he would receive a custodial sentence and expressed an intention to make constructive use of his time in custody, in particular by obtaining training. 13. The judge had presided over all of the trials and was therefore in the best position to assess the appellant's overall criminality. She also had to sentence a number of co-accused. In the appellant’s case, she made a finding of dangerousness, which is not challenged in this appeal. She gave careful consideration to the relevant sentencing guidelines. She regarded the robbery on 2 September 2017 as a Category 2B offence in the street robbery guideline, aggravated by the appellant's previous convictions and the fact that he was under the influence of alcohol at the time. She took into account that it was an attempted robbery rather than a completed offence. She imposed for that offence an extended sentence of five years, comprising a custodial term of four years and an extension period of one year. She imposed no separate penalty for the offence of assault occasioning actual bodily harm to Eedle. 14. The wounding with intent of Wilson on 11 January 2018 involved both greater harm and higher culpability, giving a starting point in the guideline for offences of wounding with intent to do grievous bodily harm of 12 years' custody and a range from nine to 16 years. The judge indicated that viewed in isolation, the least sentence commensurate with the seriousness of that offence was 10 years in the case of an adult offender. Having regard to totality, she imposed a consecutive extended sentence of 10 years, comprising a custodial term of eight years and an extension period of two years. 15. As to the wounding with intent of Gavin on 13 February 2018, the judge again had regard to the guideline for offences of wounding with intent to do grievous bodily harm and concluded that this was a Category 1 offence. The judge acknowledged that the physical injuries suffered by Gavin were not particularly serious in the context of the offence, but referred to his victim personal statements to explain the full effects of the offence upon him. The offence was aggravated by the subsequent attempt to dispose of evidence by wiping down the Astra. In isolation, that offence required a sentence of at least 12 years' imprisonment. Again having regard to totality, the judge imposed for it a consecutive extended sentence of 11 years, comprising a custodial term of nine years and an extension period of two years. She imposed a concurrent determinate sentence of one year's imprisonment for the dangerous driving and eight months' imprisonment for being concerned in the supply of a controlled drug. She disqualified the appellant from diving for 18 months, on the basis of a disqualification for the minimum term of 12 months for the offence itself, extended under section 35A of the Road Traffic Act 1988 by six months in respect of the 12-month sentence for the offence of dangerous driving. As to a further uplift under section 35B of the 1988 Act, the judge indicated that she would not impose any further disqualification because she felt it would be excessive and because she did not know when precisely the appellant would be released from his sentence. 16. Thus, the total extended sentence imposed by the judge was, as we have indicated, 21 years' custody and an extension period of five years. 17. Two grounds of appeal against sentence are advanced, and we are grateful to Miss Chbat for the care and skill with which she has set them out in her written and oral submissions. First, she submits that the judge was wrong to treat the offence of wounding Gavin with intent to resist arrest as a Category 1 offence under the guideline in respect of wounding with intent to do grievous bodily harm. Counsel submits that the offence should have been categorised as one of higher culpability but lesser harm and so placed in Category 2, with a starting point of six years' custody and a range from five to nine years. Secondly, Miss Chbat submits that the judge failed to have sufficient regard to totality. She notes as a matter of arithmetic that the judge reduced the sentences which would have been appropriate for the individual offences viewed in isolation from 26 years to 21 years' custody. She submits that such a reduction did not adequately reflect totality in all the circumstances of this case. She further submits that a total custodial term of 21 years was in any event excessive in all the circumstances, in particular having regard to the appellant's young age. 18. We have reflected on those grounds of appeal. The guideline for offences of wounding with intent to do grievous bodily harm did not strictly apply to this offence of wounding Gavin with intent to resist arrest. But it was obviously appropriate for the judge to consider it, and it would have been inappropriate to refer instead to the guideline for offences of unlawful wounding contrary to section 20 of the Offences Against the Person Act 1861 - see Haywood [2014] EWCA Crim 2006 and Smith [2018] EWCA Crim 2393 . 19. It must however be kept in mind that the sentencing levels in the wounding with intent guideline reflect the fact that the guideline relates to cases in which the offender intended to cause really serious injury. It follows that in that guideline the greater harm factor of "injury which is serious in the context of the offence" relates to injury which has in fact been caused, as opposed to injury which was intended or likely to be caused. An intention to commit more serious harm than actually resulted from the offence is a factor identified in the list of considerations relating to culpability. 20. Whilst we do not underestimate the significant physical and psychological injury caused to Gavin, it fell in our view somewhat below the high level which can properly be regarded as injury which is serious in the context of a section 18 offence. We therefore accept Miss Chbat's submission that this offence was to be equated with a Category 2 offence under the guideline. That said, however, we regard the level of injury as in itself justifying an increase in the Category 2 starting point of six years, taking it high in a range which goes up to nine years. It is then necessary to consider no fewer than five aggravating features: the appellant's previous convictions; the fact that he was subject to a suspended sentence and on bail; the fact that the victim was a police officer acting in the execution of his duty, as the appellant must have known; the commission of the offence in a busy area where others, including children, were put at risk of injury and were exposed to a distressing and frightening sight; and the attempt to conceal or remove evidence. Taking all those matters together, the judge was in our view entitled to move above the Category 2 sentence range. 21. The principal issue, in our view, is that of totality. The judge had a very difficult sentencing process to conduct, involving a number of defendants and a number of serious offences and she clearly approached her task with considerable care. There is no doubt that a substantial total custodial term was necessary, nor is there any doubt that the judge was entitled to make the finding of dangerousness and entitled to conclude that one or more extended determinate sentences were necessary. We conclude however that the judge made insufficient allowance for totality in a case in which the seriousness of the offending has to be set in the context of the appellant's young age. Although an adult, he was only 20 at the material time. His previous convictions when analysed were less serious than at first appears, and it is noticeable that his convictions only began when he was aged 18. That is a somewhat unusual pattern of offending, and we therefore think it significant that the pre-sentence report indicates a clear problem of the appellant associating with undesirable influences. That report also gives some limited ground for thinking that the appellant is beginning to recognise the need to follow a different course in the future and has some motivation to do so. These considerations lead us to the conclusion that just and proportionate punishment for the overall offending could have been achieved without imposing a total custodial term of 21 years, which was equal in length to the entire span of the appellant's life as at the date of sentencing. 22. The judge's approach of imposing three consecutive extended determinate sentences was not unlawful but it may give rise to difficulties in the future in considering when the appellant will be eligible for consideration for release on licence. Given that we are persuaded that there should be some reduction in the total custodial term, we think it appropriate also to vary the structure of the sentencing. 23. In all the circumstances and giving increased emphasis to totality in the context of the appellant's young age, we allow this appeal to the following extent. On indictment T20187045, we quash the extended sentence imposed for the offence of attempted robbery and substitute for it a determinate sentence of three years' imprisonment. As before, there will be no separate penalty for the offence of assault occasioning actual bodily harm. 24. On indictment T20187012, we quash the extended sentence imposed below and substitute for it an extended determinate sentence of 20 years, comprising a custodial term of 15 years and an extension period of five years. 25. On indictment T20187023, we similarly quash the extended sentence imposed below and substitute for it an extended determinate sentence of 20 years, comprising a custodial term of 15 years and an extension period of five years. 26. The concurrent determinate sentences for dangerous driving and for being concerned in supplying a controlled drug remain as before, as does the period of disqualification from driving. 27. The extended sentences which we now impose on indictments 7012 and 7023 will run concurrently with one another, but consecutively to the determinate sentence on indictment 7045. 28. The effect of these sentences is that the appellant will first serve half of the three-year sentence for attempted robbery. He will then serve the concurrent custodial terms of 15 years, becoming eligible for consideration for release on licence after he has served 10 years of those terms. It will be for the Parole Board to decide whether he is to be released at that stage or at any later stage prior to completion of the total custodial term. When released, he will remain on licence for the remainder of his total sentence and for a further five years thereafter. 29. Miss Chbat, I hope that the structure and effect of our sentences is clear to the appellant, but no doubt you will be speaking to him after the hearing and you will be able to assist him if he is in any doubt about it. The practical effect from his point of view is of course to bring forward by a significant margin the earliest date at which he will be eligible for consideration for release. 30. MISS CHBAT: Yes, my Lord. 31. LORD JUSTICE HOLROYDE: The learned judge below, for reasons which are apparent from the transcript, did not have an opportunity to address directly to the appellant her wish that he recognise the need to put these matters behind him and to do what he can to show that he is safe to be released before he has completed the totality of his term. We echo the view she expressed in that regard. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: Rcj@epiqglobal.co.uk

2019_06_12-4622.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/1075/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/1075

8bcd21a7b42ba744b54a211e2b85019fb978a10b1869a1fbec436291e50f834b

[2011] EWCA Crim 1690

EWCA_Crim_1690

2011-06-27

crown_court

Neutral Citation Number: [2011] EWCA Crim 1690 No: 2011/0381/C2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Monday 27 June 2011 B e f o r e : LORD JUSTICE LEVESON MR JUSTICE GRIFFITH WILLIAMS MR JUSTICE HOLROYDE - - - - - - - - - - - - - - - - - - - - - R E G I N A v ADAM E - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street Lon

Neutral Citation Number: [2011] EWCA Crim 1690 No: 2011/0381/C2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Monday 27 June 2011 B e f o r e : LORD JUSTICE LEVESON MR JUSTICE GRIFFITH WILLIAMS MR JUSTICE HOLROYDE - - - - - - - - - - - - - - - - - - - - - R E G I N A v ADAM E - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr S McGarry appeared on behalf of the Appellant Mr M Blakey appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - Judgment 1. LORD JUSTICE LEVESON: On 20th December 2010 in the Crown Court at Manchester Minshull Street, before His Honour Judge Blake and a jury, this appellant was convicted of 11 counts of indecent assault contrary to section 14 of the Sexual Offences Act 1956 , six counts of sexual activity with a child, contrary to section 9(1) of the Sexual Offences Act 2003 and one count of attempting to have penetrative sexual activity with a child under the age of 16. On 1st February 2011 he was sentenced to seven years' imprisonment for the offence of attempting to have penetrative sexual activity with a child and four years' imprisonment on each of the remaining counts, the sentences all to run concurrently, making seven years in all. The judge made the appropriate ancillary orders and directed that time spent on remand counted towards the sentence. He now appeals against conviction by leave of the single judge. 2. The facts can be summarised comparatively briefly. The complainant, C, was born in [a month] 1990 and was the stepdaughter of the appellant, the appellant having met her mother in 1995. The family lived in P between 1995 and 1998 and, when C was 8 years old, moved to an address in W. In October 2000 the complainant's half sibling (A) was born. From 2001 to 2005 the complainant attended school in the N area, staying with her maternal grandmother during the week and returning to the family home at the weekends. It was said that her mother suffered from post natal depression and also spent time at her mother's home in N and was absent from the family home. In January 2005 the complainant enrolled at a school in W and in the latter part of 2005 started a sexual relationship with a young man, R. This was discovered by her mother and the appellant and as she was underage a report was made to the police. R was arrested but no charges were brought. 3. In February 2003 the family moved and three years later the relationship between the appellant and C's mother ended, whereupon the appellant left the family home and went to live in P. The complainant went to live with the family of R. 4. In May 2008, C alleged that she had been abused by the appellant. She was interviewed on 23rd June 2008 and the appellant was arrested and interviewed on 3rd June 2009. 5. The prosecution case was that between 2000 and 2006 when C was between 10 and 15 years old, the appellant had sexually assaulted her at both W family homes. In addition to her account through an ABE interview, the prosecution relied upon the evidence of complaint to R and to his mother. Reliance was also placed on evidence from the complainant's friends regarding the appellant's inappropriate behaviour towards C. There was also evidence from staff at the school concerning his overbearing behaviour. Finally, there was evidence of a letter from the appellant to C in 2006 that the prosecution contended was expressed in the language of a jilted lover. The prosecution relied by way of admission upon the evidence of a clinical psychologist, Dr Hogan, that the complainant presented with symptoms consistent with extensive child abuse. 6. The defence case was one of denial. The allegations were fabricated by the complainant who was aggrieved that the appellant had discovered that she was having a sexual relationship with R and, furthermore, that the appellant had obtained a contact order in respect of C's younger sibling. 7. The issue for the jury was whether they could be sure the offences occurred in the manner described by the complainant on the two specific occasions in two counts and in relation to the others on numerous other occasions. 8. It is unnecessary for the purposes of this judgment to outline in detail the evidence that was adduced at the trial, touching not only on what C had to say but also the other witnesses to whom we have referred. 9. The issues brought on appeal concern three areas. The first two relate to the admissibility of the evidence of a consultant psychologist and subsequently to the way in which the learned judge treated that evidence when he directed the jury. The third ground of appeal concerns the judge's failure to deal with certain inconsistencies in the evidence which Mr McGarry on behalf of the appellant contends were fundamental to the defence case. 10. We deal first with the admissibility of the evidence of the psychologist. Because of the way in which the defence case statement had been framed, the Crown sought the evidence of a consultant psychologist who examined the complainant C. He produced a detailed psychological report identifying her history, her mental state and reviewing a series of standardised assessments which he undertook in order to make an overall assessment of the complainant. 11. For the Crown it was argued that this evidence was admissible on the basis that it provided independent evidence supporting that of C of injurious consequences and undermined the defence case that the complainant was simply lying from first to last because of the appellant's disapproval of her relationship with her boyfriend and his pursuit of access to her half sister. Mr McGarry, for the appellant, argued that it served only as a form of oath helping and was inadmissible. 12. The judge ruled the evidence admissible whereupon the Crown and the defence agreed an admission, copies of which were ultimately placed before the jury. The admission was in these terms: "1. CH was interviewed by Dr Lee Hogan, a clinical psychologist, on 14th April 2010. 2. Dr Hogan's assessment of C is that although she does not meet the criteria of PTSD in response to a single event, the presentation is consistent with a PTSD reaction called type two trauma. 3. Repeated prolonged trauma such as extensive child abuse is considered to be type two trauma." 13. In the light of the admission, the defence had to deal with it and Mr McGarry did so by submitting that what was described as "prolonged trauma of a type two nature" could equally have been caused as a consequence of the disharmony between the appellant and C's mother, in other words the atmosphere at home, along with the fractured circumstances in which C grew up. When summing up, the learned judge reminded the jury of the admission and went on: "Now members of the jury, what he does not say is that her account is true, that's for you to decide not him. He does not even say that the symptoms are necessarily related to a history of child sex abuse, merely that the symptoms are consistent with some long term repeated events. That's all he says. You can accept or reject his opinion, his expert opinion, that's up to you, in fact you only have his opinion. But if you accept it, it's certainly up to you to decide how much it helps you to decide whether these allegations are true or not. How much it helps you or indeed if it helps you or indeed if it helps you at all, that's for you to decide." 14. In this court, Mr McGarry repeats the submission that the evidence of the psychologist was not admissible and took the form of oath-helping (that is to say was no more than evidence to the effect that the account of C was believable and credible). In our judgment, however, although the learned judge did not approach the matter in this way in his ruling, admissibility could have been better analysed and justified on the grounds that it provided evidence of psychological injury in exactly the same way as any doctor might give evidence of physical injury consistent with a particular allegation. It was thus relevant material for the jury to take into consideration when considering where the truth lay. Were the jury sure that the PTSD found by the psychologist to be present was explained by reference to her complaints or could it have been a consequence of the marital disharmony as submitted by the defence? 15. In these circumstances, the direction was entirely sufficient to deal with the way in which the case was put at the conclusion of the evidence. It specifically made the point that the admission did not necessarily relate the condition to child sex abuse or exclude other long term or repeated events. Although the learned judge might have gone further, in our judgment it was unnecessary for him to do so and these grounds of appeal both in relation to admissibility and the way in which the learned judge dealt with the matter, although argued carefully and forcefully by Mr McGarry, fail. 16. We turn to the alternative submission made by Mr McGarry that the learned judge failed adequately to deal with the inconsistencies in the evidence. In his detailed skeleton argument, Mr McGarry identifies six such issues, but he accepted when it was put to him in argument that four of them are really only differences between witnesses rather than inconsistencies in any particular evidence. The first of the two that Mr McGarry relied upon were a visit to the family health clinic which C had said occurred in 2005 -- that is before she had begun a relationship with R at which she emphasised that her knowledge of sexual matters was poor, which was to be contrasted with the evidence of her friend to the effect that she accompanied C to the family health clinic in February 2006 which in fact was after C had formed a sexual relationship with R, thereby undermining her claim to sexual naivety. 17. The second inconsistency upon which Mr McGarry relies is the difference between C's video recorded testimony which put the sexual activity as occurring throughout the period until 2006, at both home addresses, which is to be contrasted with what the complainant said to her mother when first disclosing the allegation, namely that it ceased in 2003 prior to the move to the second address. Mr McGarry contends that the jury were not directed as to how to approach inconsistency of complaint and crucially how such inconsistency might undermine the case for the Crown. He accepted that both Mr Blakey for the Crown and he had focused upon these differences during the course of their closing speeches. 18. The learned judge gave the standard directions as to the reliability of witnesses and the importance of the jury making the decision as to credibility and the like, taking into account such evidence as they had heard and not merely that to which he drew their attention. Each case of alleged failure to give adequate directions to the jury has to be considered on its own merits and it is difficult to derive from other decisions of this court any principle, not least because what is critical is the general consideration of the evidence and the case which has been heard by the jury. The jury do not, of course, only hear the judge's summing-up but have heard the evidence and counsels' speeches. The summing-up is no more than a concise reminder of the important features to which the judge believes the jury ought to have regard. 19. In our judgment, it would have been better had the learned judge pointed to specific inconsistencies upon which the defence relied, but that very different from the proposition that failure to do so renders the verdicts of the jury unsafe. The jury well understood that they had to deal with a head-on conflict between C on the one hand and the appellant on the other. They heard C, they heard her friend, her mother and others; they had the advantage of a telling letter which the appellant had written to C thereafter and which we have had the opportunity of seeing being in language which might well have been taken to support, at least in part, the prosecution case about the relationship between the two. They also had the appellant's evidence in detail and the evidence which was called on his behalf. 20. In our judgment, it goes too far to say that because the learned judge did not point out these two important inconsistencies or identify other slight differences in the evidence, that the verdicts of the jury are unsafe. 21. In the circumstances, none of the grounds of appeal is sustained and this appeal is dismissed.

2011_06_27-2771.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/1690/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/1690

caea575390cafc841e9d93d799f41e43c124494ddfccd935e711f77d36692e10

[2023] EWCA Crim 421

EWCA_Crim_421

2023-04-21

crown_court

Neutral Citation Number: [2023] EWCA Crim 421 Case Nos: 202300434 A3 202300435 A3 202300436 A3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM PLYMOUTH CROWN COURT Mr Justice Garnham T20227049 Royal Courts of Justice Strand, London, WC2A 2LL Date: 21 April 2023 Before: LADY JUSTICE MACUR LORD JUSTICE MALES and MR JUSTICE GOOSE - - - - - - - - - - - - - - - - - - - - - SOLICITOR GENERAL'S REFERENCE UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2023] EWCA Crim 421 Case Nos: 202300434 A3 202300435 A3 202300436 A3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM PLYMOUTH CROWN COURT Mr Justice Garnham T20227049 Royal Courts of Justice Strand, London, WC2A 2LL Date: 21 April 2023 Before: LADY JUSTICE MACUR LORD JUSTICE MALES and MR JUSTICE GOOSE - - - - - - - - - - - - - - - - - - - - - SOLICITOR GENERAL'S REFERENCE UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 - - - - - - - - - - - - - - - - - - - - - Between: REX Appellant - and – (1) BENJAMIN RICHARDS PARRY (2) THOMAS PAWLEY (3) CHAD PAUL BRADING Respondents - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Tom Little KC for the Solicitor General Sean Brunton KC and Ali Rafati (instructed by Walker Lahive Ltd ) for the First Respondent Ignatius Hughes KC and Barry White (instructed by Plymouth Defence Solicitors ) for the Second Respondent Joe Stone KC and Deni Mathews (instructed by Walker Lahive Ltd ) for the Third Respondent Hearing date: 5 April 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. Lady Justice Macur: 1. Benjamin Richard Parry (“BP”), Thomas Pawley (“TP”) and Chad Paul Brading (“CB”) were tried for the murder of David Crawford, aged 59. After a three-week trial they were convicted of manslaughter. On 13 January 2023, BP was sentenced to 12 years imprisonment. No separate penalty was imposed for ‘failing to comply with a notice issued under the Regulation of Investigatory Powers Act, 2000’, which had been issued requiring him to reveal the PIN to an encrypted telephone chat line. TP and CB were each sentenced to 4 years imprisonment. 2. His Majesty’s Solicitor General seeks leave pursuant to section 36 of the Criminal Justice Act 1988 to refer those sentences to this Court as unduly lenient. 3. David Crawford was a member of the Cornish based motorcycle group called the Red Chiefs, who describe themselves as a ‘support club’ of the Hell’s Angels - an international ‘outlaw’ motorcycle organisation. The offenders were all members of the Plymouth based branch of another international ‘outlaw’ motorcycle group called the Bandidos. CB was the President. The Red Chiefs and the Bandidos were rival groups. The wearing or flying of the group’s ‘colours’ on the other’s territory/county was regarded as insulting and provocative. 4. During the early evening of 12 th May 2022 members of the Red Chiefs and Hell’s Angels (both wearing their colours) had gathered at a Retail Park adjacent to the A38 Devon Expressway in Plymouth. Members of the Bandidos became aware. 5. At about 7.30 pm there was a call between the ‘Sergeant at Arms’ of the Bandidos and CB. Shortly afterwards TP and CB drove towards Plymouth in TP’s Mercedes motor vehicle to look for members of the Red Chiefs/Hell’s Angels. They came across the rival gang at the Retail Park. TP called the Serjeant at Arms. 6. BP travelled to meet TP and CB in his employer’s Ford Transit van after receiving a message from the Serjeant at Arms. His journey was recorded on his dash cam. 7. At about 8.30 pm the Red Chiefs/Hell’s Angels, including Mr Crawford, began to leave the Retail Park and started travelling in a westerly direction towards the Tamar Bridge. Several of them stopped on the Devon side of the Tamar Bridge toll booths. The Mercedes containing TP and CB arrived just before 9 pm and stopped in the middle of the roundabout. As the Mercedes approached the roundabout a telephone call was made from CB’s telephone to BP’s telephone. Just after the start of that call most of the Red Chiefs/Hell’s Angels moved off towards Cornwall. However, Mr Crawford, who lived in Devon, headed eastwards towards Plymouth. 8. TP and CB pursued him at speed in the Mercedes, cutting in front of one vehicle on the roundabout and then undertaking another. The motorcycle and the Mercedes came off the eastbound A38 at the first slip road at St Budeaux. Mr Crawford crossed the roundabout at the top of the slip road but then headed straight down the slip road with the aim of rejoining the A38 eastbound; he was followed by the Mercedes. Throughout, TP or CB were still speaking on the telephone to BP. 9. BP travelled to the scene. As he joined the slip road Mr Crawford, sitting astride his motorcycle, and the Mercedes are clearly visible on the dash cam footage. The motorcycle was behind the Mercedes that had stopped in front of him on the slip road. As the van approached, Mr Crawford moved his motorcycle alongside the Mercedes, BP was observed to say something like “watch this” and struck the motorcycle directly from behind. 10. Mr Crawford’s body was thrown upwards and onto the middle of the bonnet from where it pitched headfirst in front of the van. As the van ran over the motorcycle its front lifted off the ground. The deceased fell underneath the van and became trapped. BP did not stop but continued down the slip road back onto the A38. As he exited at the next junction (about 900 metres) Mr Crawford’s body came free from underneath the van onto the road surface. 11. The post-mortem examination revealed numerous injuries to the body and were in keeping with a prolonged period during which the deceased was trapped/dragged along under the van. The cause of death was multiple injuries. 12. BP was tracked to his home address and arrested. When interviewed under caution he provided a prepared statement to the effect: “I did not intend to knock the motorcyclist off his bike. I did not intend to kill him or to even cause him any injury. I only intended to bump the back of his bike. When I realised I had knocked him off the bike I panicked and drove on. I did not realise he was still under the van until he became free of the van as I pulled off the Parkway again. I left the scene as I just panicked and was not thinking clearly. At no time did I intend to harm anyone.” 13. TP was arrested on 14 May 2022. He was interviewed and produced a prepared statement which indicated that he and CB had followed Mr Crawford so that CB could talk to him about not wearing his colours in Plymouth. He had pulled up in front of the motorcycle to make him stop and they were alongside when, out of the blue, the van driven by BP turned up and ran over Mr Crawford. 14. CB surrendered himself on the 15 th May 2022. He was shown a clip of the incident and stated, “From what it looks like there, I suppose, I genuinely think that was just a massive miscalculation on his part.” When asked what he meant he replied “Well, no one set out to kill anybody…no one has ever set out to kill anybody…that wasn’t meant to happen, that’s all I can say..” 15. On 26 th July 2022, all three offenders were arraigned and pleaded not guilty to the offence of murder. BP indicated that he would however plead guilty to the offence of manslaughter, although he did not do so. He pleaded guilty in front of the jury after the conclusion of the evidence and the jury consequentially convicted him of that offence upon direction of the judge. At trial, TP and CB sought to rely upon BP’s act as an overwhelming supervening event, which abrogated any of their responsibility for Mr Crawford’s death. As indicated above, they were convicted of manslaughter; all three offenders were acquitted of murder by the jury. 16. When sentencing the offenders, the trial judge acknowledged the devastating loss caused by David Crawford’s death; he had been “utterly innocent in all this.” The Judge was satisfied, to the criminal standard, that: i) A telephone conversation took place between CB and BP, in the hearing of TP during which it was agreed that he would be stopped and told it was unacceptable for him to ride in his rival gang colours in Devon. He was to be given “a slap, I mean a punch or the like, an assault that would cause him some relatively minor injury or pain” to underline the point. ii) BP’s van, driven at a speed between 10 and 27 miles an hour, was driven directly into the back of the motorcycle with the consequences described above. iii) BP did not stop at any stage, including when it became clear to him that Mr Crawford’s body was ‘released’ from beneath the van. iv) TP and CB saw what happened but “did not intend [BP] to drive into Mr Crawford and …were utterly appalled at what had been done.” That is, there was a common enterprise between the three offenders to cause some harm to Mr Crawford, but not that he should be run down and seriously injured or killed. v) TP and BP did not assist Mr Crawford, nor call for others to do so. 17. The judge considered that BP’s case fell within Category B of the Sentencing Council Unlawful Act Manslaughter Guidelines. Driving the van into the motorcycle involved “an intention…to cause harm falling only just short of GBH. Certainly, his death was caused in the course of an unlawful act which carried a high risk of death or grievous bodily harm, which was or ought to have been obvious to you.” The judge found additional aggravating factors to be the use of the van as a weapon; the assumption of “significant if not leading” role; planning the infliction of lesser harm; the significant mental and physical suffering caused to the victim; leaving the scene and the body of Mr Crawford, not seeking assistance for him and exposing other road users to risk of injury. The Regulatory notice offence was also to be treated as aggravating the offence of manslaughter. The available mitigation was genuine and profound remorse; limited previous convictions and ‘good behaviour’ in prison. The judge considered the offence to be “a moment of unaccountable and indefensible stupidity.” A 25% reduction was made from 16 years, the top of the Category B range, to reflect the indication of a willingness to plead to manslaughter at the Plea and Trial-Preparation hearing. 18. The judge considered TP and CB’s cases to fall within Category C. They had participated in an unlawful act in which their intention was to cause ‘some harm.’ They had caused the motorcycle to stop. Culpability fell between the higher and lower categories, and the limited nature of the intention as found placed their cases towards the bottom of the relevant range. The aggravation included the fact that the van had been used as a weapon, albeit beyond their contemplation; the pain and suffering caused to Mr Crawford; the planning of the intended assault and driving away from the scene without helping the victim. TP’s mitigation was his previous positive good character and lack of previous convictions. CB’s mitigation was similar, albeit that he had some comparatively minor previous convictions. Submissions 19. We have had regard to all the written submissions in the Final reference and the Respondent Notices, which Counsel have adeptly amplified orally before us. 20. Mr Little KC appears on behalf of His Majesty’s Solicitor General. He submits that, whilst all due deference must be afforded to the trial judge’s advantage over this Court in assessing the gravamen of the offence, the availability of the dash cam footage provides us with a similar insight against which to determine the application. Mr Little explicitly makes no challenge to the findings of fact made, including what had been the ‘common intent’ between the three offenders and explicitly concedes that TP and CB’s culpability is less than that of BP. The central criticism is that the trial judge failed to weigh the objective risk and the subjective intent of each of the offenders. If he had done so, then the offenders would fall either within a higher category of culpability, or else at the top of the range that was selected, before increasing the sentences to reflect the aggravating features which he identified. 21. In BP’s case, the judge was correct to find that the high risk of serious harm or death posed by the driving of the van into the motorcycle was, or ought to have been obvious to the offender, regardless that his intent was found to have been to cause harm “falling just short of GBH”. Arguably, the nature of the act itself highlighted the ‘extreme character’ of the objective element of BP’s offending. However, if the ‘extreme’ character of the objective risk is predicated upon the use of the van as a weapon, then Mr Little concedes that it must not be ‘double counted’ as an aggravating feature. If the judge was not unreasonable in determining that the objective element was not of an ‘extreme’ character, the combination of subjective and objective elements was indicative of very high, or Category A, culpability. Alternatively, if the judge had reached a categorization that was reasonably open to him on the facts, then the aggravating features deserved far greater weight and, regardless of the mitigation, the sentence should have been significantly longer. 22. In the case of TP and CB, whilst a distinction should be clearly drawn between them and BP, the offence would not have been committed if they had not been instrumental in bringing the motorcyclist to a halt. None of the factors indicating lower culpability, as identified in Category D, applied to them. They did intend some harm to befall Mr Crawford. The judge identified the relevant aggravating features and, although he was entitled to place them in Category C, it was unreasonable for him to select a starting point at the bottom of the range before discount for mitigation. 23. Mr Brunton KC on behalf of BP reminds us that the dash cam footage is but one part of the judge’s analysis of culpability. He had observed BP during trial and had heard his evidence, and that of his character witnesses, in determining his intent. The judge found that it was an “aberration” that BP had “bumped” Mr Crawford off his motorcycle. This was equally consistent with a finding of ‘recklessness’ as identified in Category C culpability as it was an obvious high risk in Category B. Just because the judge identified it as an ‘obvious’ risk did not “worsen” what BP actually did. The speed at which he drove was not fast, the time scale in which the intention was formed was short; the tragic consequences were not intended or envisaged. It is “mechanistic” to add the culpability B factors together to reach a higher category. The judge had adopted a pragmatic approach and, after reduction for mitigation, reached the very top of the range in Category B before giving credit for the indication of plea. BP was not in a ‘leading’ role overall. The judge had reached a fair-minded conclusion that was within the reasonable band. The sentence was not unduly lenient. 24. Mr Hughes KC on behalf of TP does not seek to defend his client’s participation in the act which brought Mr Crawford to a halt. He concedes that the jury’s rejection of an ‘overwhelming supervening act’ means that objectively they regarded TP’s (and CB’s) responsibility for the ultimate act not to have been abrogated by the unexpected action of BP. The judge was entitled to move outside the lowest category of culpability to reflect the aggravating features he identified. Thereafter, the judge plainly and correctly addressed the Sentencing Council Guidelines. He avoided an over mechanistic approach and reached an appropriate sentence which cannot be described as unduly lenient in TP’s case. 25. Mr Stone KC on behalf of CB concedes that the sentence of 4 years is lenient but not that it is unduly so. He submits that the findings of fact made by the trial judge are critical and lead to a conclusion that a determination of culpability within Category C is clearly not incorrect or unreasonable. Since the findings of fact also admit Category D factors of culpability, it was reasonable for the judge to go to the bottom of the ‘mid’ range. The judge was clearly alive to the danger of ‘double counting‘ the aggravating features he identified in BP’s case when seen in the context of TP and CB’s circumstances. Discussion 26. We are in no doubt that we must accord great deference to the trial judge’s analysis of the circumstances of the offence, and agree with counsel for the three offenders that the dash cam footage, which the judge in his sentencing remarks rightly described as making for “sickening viewing”, is but one part of the sentencing exercise, particularly as regards an assessment of the offenders‘ intent. However, we agree with Mr Little that, in so far as it is necessary for us to do so, we are in as good a position as the trial judge to assess the ‘objective‘ element of the fatal incident. 27. As it is, we do not disagree with the trial judge that the unlawful act which he described in accurate and measured terms, and which we witnessed on the video footage, “carried a high risk of death or GBH which was or ought to have been obvious to the offender.” It cannot realistically be argued that the judge’s description of the act as momentary, unaccountable and indefensible equates to ‘recklessness.’ 28. Further, we are satisfied that the judge sufficiently well recognised the aspect of vigilantism and correctly identified all aggravating features for the purpose of sentencing the three offenders. 29. However, despite the measure of our agreement with the judge, we are persuaded that he failed to adequately reflect BP‘s subjective intent and the objective high risk he created of GBH or death into the assessment of overall culpability. There is an overlap between these factors in this case, but these are not two sides of the same coin. Although the judge was not unreasonable, and we find he was right, to ‘temper’ what would otherwise be arguably the ‘extreme’ character of the objective risk by reason of the comparatively lesser subjective intent, we consider that the combination elevated the offence into the category of very high culpability. We are persuaded that this error did lead the judge to pass an unduly lenient sentence in respect of BP, and that we should exercise our discretion to re-sentence him for the offence of manslaughter. 30. We keep well in mind the respective balance of objective risk, as against BP’s subjective intent as the judge determined it to be. We caution ourselves to “avoid an overly mechanistic application of ” factors used to inform categorisation of an offender’s culpability but are clear that BP’s culpability falls into Category A. The starting point is 18 years. The aggravating factors increase the sentence to 22 years. Previous positive good character and good behaviour in prison counts for little in the circumstances of such a case, but affording some discount we consider that the least possible sentence would be 20 years prior to reduction for indication of plea. Mr Little does not challenge the reduction made either in principle or extent and we agree with Mr Brunton that the judge was warranted to reduce the sentence by 25%. Consequently, we allow the application; we quash the sentence of 12 years in respect of manslaughter and substitute in its place a sentence of 15 years. There will be no separate penalty for the regulatory offence. The increase in the term of imprisonment impacts the order for disqualification. BP was disqualified from driving for 10 years (2 years discretionary period, 8 years extension). That part of the sentence will be quashed and substituted by an order that he be disqualified from driving for a period of 12 years (2 years discretionary, 10 years extension). 31. However, we disagree that this finding and consequent re-sentencing exercise impacts upon the judge’s determination of the culpability of TP and CB. We do not accept Mr Little’s written submission, that the jury’s rejection of an “overwhelming supervening event “, means that the guilty verdicts necessarily indicated that they knew or ought to have known of the risk of GBH or death. The judge was entitled to regard the jury’s verdict as reflecting the continuation of the common intent to cause minor harm to Mr Crawford, as the judge found had been agreed upon between the three offenders, which was not eradicated by BP’s action of mowing down Mr Crawford. 32. We consider the judge’s determination as to TP and CB’s respective culpability within Category C to be sufficiently articulated and to fall within the band of reasonable decisions open to him. Considering all circumstances, we tend towards the view that the sentence is lenient, but it is not unduly so. We refuse the application as regards TP and CB.

2023_04_21-5640.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/421/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/421

7e13a27dd6b712fe844073ee0f22c87f8d78526a437408ec55fc268f5d87080c

[2013] EWCA Crim 1147

EWCA_Crim_1147

2013-06-14

crown_court

Neutral Citation Number: [2013] EWCA Crim 1147 Case Nos: 2012/4635/B2, 2012/4636/B2 & 2012/4816/B2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 14 June 2013 B e f o r e : LORD JUSTICE ELIAS MR JUSTICE EDWARDS-STUART THE RECORDER OF BRISTOL HIS HONOUR JUDGE FORD QC (Sitting as a Judge of the CACD) - - - - - - - - - - R E G I N A v SHELDON JORDAN REECE BARNES YOUSEF ALQUEBEIAI - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes

Neutral Citation Number: [2013] EWCA Crim 1147 Case Nos: 2012/4635/B2, 2012/4636/B2 & 2012/4816/B2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 14 June 2013 B e f o r e : LORD JUSTICE ELIAS MR JUSTICE EDWARDS-STUART THE RECORDER OF BRISTOL HIS HONOUR JUDGE FORD QC (Sitting as a Judge of the CACD) - - - - - - - - - - R E G I N A v SHELDON JORDAN REECE BARNES YOUSEF ALQUEBEIAI - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - Miss J Seabourne (Solicitor Advocate) appeared on behalf of Jordan Mr R Button appeared on behalf of Barnes Mr A Smith appeared on behalf of Alquebeiai - - - - - - - - - - J U D G M E N T 1. MR JUSTICE EDWARDS-STUART: On 6th July 2012 at the Crown Court at Sheffield, the three appellants were convicted of two offences of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861. On 30th July 2012 they were sentenced on each count to 15 years' detention, less 27 days ordered to count towards sentence. In the case of Jordan and Alquebeiai, who were under 18 when they were sentenced, the sentence was made pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. Barnes was 18 by the time of conviction. Each of the appellants appeals against his sentence with the permission of the single judge. The facts 2. In early hours of 26th June 2011 Paul Marrison and Daniel Mace, together with his girlfriend Rebecca Brock, were walking through Sheffield City Centre on their way home after an evening out. They had been drinking but were not drunk and were minding their own business when they came upon the appellants and some of their friends. Daniel Mace described them as looking like "American-style gang culture". Accordingly he and his two friends wanted to avoid any contact with the group because they looked very intimidating. 3. CCTV footage showed that in the 10 minutes or so before that encounter, the appellant Alquebeiai had been involved in a dispute with a number of young women, during which he is said to have struck one of them in the face. That argument was continuing shortly before Daniel Mace and his friends arrived in the area. 4. At some point during that argument, someone in the appellants' group said to a man called Ashley Martin: "I'll shank you" or "You'll get shanked up", which Mr Martin understood to mean that the man was threatening to stab him. Fortunately a friend of Mr Martin's dragged him away as the appellants' group began to surround him. His friend heard the threat to "shank" Martin and took it seriously. 5. The appellants' gang was looking for trouble. The judge found that they decided that the next young man to pass by, whoever he was, would be attacked and stabbed. That man was Mr Marrison. As he and his two friends approached the gang, one of them felled him with a punch or a head butt. Daniel Mace, with considerable courage, immediately went to Mr Marrison's rescue, but he too was quickly overpowered and also knocked to the ground. Whilst the two men were on the ground attempting to protect themselves, they were callously and repeatedly stabbed in their backs. Mr Marrison was stabbed twice, one of the stab wounds penetrating his spleen. He required oxygen and fluid resuscitation and his spleen had to be removed subsequently. He has suffered serious ongoing affects. 6. Mr Mace was even more unlucky. He was stabbed in the back eight times. Both of his lungs collapsed. In addition he had abdominal and kidney trauma. He required urgent resuscitation and abdominal surgery. He was left scarred for life, together with other serious ongoing effects that are unlikely to improve. 7. Rebecca Brock gave a vivid description of the gang. She said: "They were kicking and punching Mace really viciously, kicking all around him, but they could not get at his head because he was in a foetal position. The sixth one [by which she meant Barnes] was standing closest to Danny's head. His face was screwed up. There was pure evil on his face. He was kicking and kicking at him. He was the last to leave. The demeanour of the other five was vicious, horrible, just unnecessarily horrible." CCTV cameras showed them walking off after the incident and standing in the shadows nearby, even after the police arrived. Some of them exchanged clothes and they then went about calmly trying to call a taxi. They appeared to have no fear of being confronted. They had taken their knives with them. Two knives were subsequently recovered by the police from roadside gratings on the route that the gang had taken but it was never established whether or not those knives were the knives used in the attack. When the appellants were arrested they made no reply throughout. Each of them gave evidence on his own behalf at the trial, but the judge found that they had lied on oath. Each of them told the probation officer preparing his pre-sentence report that he had not been responsible for the attack on either Mr Mace or Mr Marrison. The sentence 8. The judge's sentencing remarks were detailed and carefully structured. In order to understand the issues raised by these appeals it is necessary to quote from them at some length. The judge began by summarising the facts in much the same terms as we have already set them out. In relation to the overall nature of the attack, he said this: "I sentence each of you on the basis of your involvement in the joint enterprise and I am satisfied on the evidence so that I am sure that each of you knew that knives were to be used in these attacks. The evidence of Garradargy would entitle me to conclude that you, Alquebeiai, and you, Reece Barnes, were the two who used the knives but I acknowledge that his identification of the roles that you played was not by any means certain and he never said it was and, in the event, I find that it makes no real difference to the sentence whether you actually used the knives or involved yourselves in the joint enterprise as alleged. I recall how the case was left to the jury and it was left to the jury that the Crown's case against all five of the defendants, against you three who were convicted, is that at least ... you all acted together, at least two as the stabbers; the others as head butters, kickers and punchers, knowing that at least one of your number might use a knife to stab during the attacks or realising that at least one was so using a knife during the attacks and nonetheless continued to take part. I am satisfied on all the evidence that you all knew precisely what was going to happen and that knives were going to be used." He then referred to the sentencing guidelines and said this: "In all three of your cases, I have been assisted by the sentencing guidelines. These plainly were category 1 offences as they involved serious injury incurred during a sustained assault on the victim, the use of knives and, in my view, a significant degree of premeditation in that once this mindless violence commenced, knives were very quickly instantly used in circumstances where there was absolutely no other reason than to inflict maximum injury on the victim. The aggravating factors common to all three of your cases are the following: the location and timing of the offences, this being city centre violence in a busy area at a busy time of night, regardless of all those passing by, all of whom were no doubt, as Mr Garradargy was, terrified by what they were witnessing; the ongoing effect on the victims is an aggravating factor; the presence of others during the attacks, particularly Rebecca Brock, Mr Mace's partner, witnessing it all; concealment of the knives, whether down the public drains or elsewhere; commission of the offence whilst under the influence of alcohol." The judge then summarised the antecedents of each applicant. In relation to Mr Alquebeiai he said that he had previous convictions that were plainly relevant and was at the time subject to a rehabilitation order. He said this because the offences were principally ones of disorderly or threatening behaviour. 9. In relation to Mr Barnes, he said that he also had relevant convictions, particularly a conviction for robbery arising from an incident which occurred in February 2007 when a group of which he was a member threatened to stab one of three 14 year old complainants unless he handed over his mobile phone. Barnes admitted that the robbery was premeditated and that he knew there was a knife. The judge said that he was not satisfied that this incident could have been deployed as bad character evidence at the trial, but he considered it to be plainly relevant to sentence. Nevertheless, he said that he took account of the fact that it was some years ago and of Barnes's age at the time. 10. Mr Jordan had no previous convictions but he did have reprimands or cautions in relation to two incidents involving assault and one of robbery. However in relation to Jordan, the judge also said this earlier in his sentencing remarks: "It is of note that that incident and the subsequent attack took place in a blind spot on the CCTV and it is absolutely plain to me that that was something you, Sheldon Jordan, were acutely aware of. You were exposed in cross-examination by Mr West for the prosecution to have been aware of the location of the CCTV cameras and to be showing at least one of your gang the same." The judge then returned to the important question of the appellants' ages. He said this: "I have finally, of course, had anxious regard to the sentencing guideline overarching principles sentencing youths for you, Alquebeiai and Jordan, were 16 at the time of the offences and are 17 now. You, Reece Barnes, were 17 and are 18 now. You, Alquebeiai, and Sheldon Jordan are only two months or so from your 18th birthday. I have been able to assess your maturity rather than your chronological age from the evidence that you gave; from all of the evidence which I heard about you; from your conduct throughout the trial. You, Yousef Alquebeiai, made an application to give your evidence via the TV link but you seemed to me to do absolutely fine whether you gave your evidence in court and I made a particular note that when you were being questioned by your own barrister, you knew the meaning of the word 'altercation'. Your conduct on the night, out at two in the morning drinking alcohol, hitting a woman, sticking with your mates, is relevant. Your record, of course, is highly relevant. In your case, Sheldon Jordan, the task is easier. As I have said, despite your age, you were, in my opinion, exposed by a correct analysis of the CCTV to be playing a leading role in the group throughout and to be the one bringing CCTV to the attention of the others in the group, and I saw absolutely nothing in your testimony to suggest to me that you were anything other than a person mature beyond his chronological age. After the event, it was you who was leading the group once again, just as you had before; this time, you were leading them to try and get in the taxis to leave the area and avoid the police that were so nearby. The guidelines suggest that I should consider a starting point from a half to three quarters of that of an adult offender but it does so in these terms: it may be appropriate depending upon maturity. I am absolutely satisfied that no reduction of the starting point is required or appropriate by reason of the matters that I have referred to." 11. The judge then returned to the provisions relating to detention for public protection and said that in the light of the appellants' ages it was inappropriate to consider their application in this case. The judge then said that his sentence would take into account the totality principle because: "... the critical thing to remember here is that there are two victims, two offences. It is difficult, in my view, to envisage many graver cases of wounding with intent coming before the courts than the repeated stabbing of two men in their backs when they are lying defenceless on the ground. This was an attack, I remind myself, deliberately carried out out of view of the CCTV cameras. You all knew what you were about that night." Finally the judge set out his conclusions in these terms: "The range set down by the guidelines is 9 to 16 years for a single offence. I make no secret of the fact that this was, in my view, brutal gangland type violence in the centre of Sheffield and deterrent sentences are required to send the message out to the public that it will not be tolerated and I therefore deliberately impose upon you the maximum sentences which I feel the guidelines permit me to impose upon you. These sentences are tempered only by your relatively young ages. I see no reason to distinguish between the three of you because although Sheldon Jordan's record is less bad than the others, he had a leading role, as I have said. Your ages are very close. The sentence that I impose upon all three of you concurrently on both counts, on you Alquebeiai and you Sheldon Jordan, is 15 years under section 91, and on you, Reece Barnes, 15 years in a young offender institution." The grounds of appeal 12. In the case of Jordan there are effectively three grounds. 1. The judge indicated that he would sentence all three appellants on a joint enterprise basis and would not sentence them in respect of individual roles within it as portrayed by the Crown. The written grounds on behalf of Mr Jordan then say this: "The learned judge emphasised on more than one occasion whilst sentencing that [Jordan] had been exposed as the 'leader' under cross-examination -- 'leading his group to a blind spot'. This assertion by the Crown was never opened nor put to prosecution witnesses, co-defendants or supported by any technical/expert evidence as to blind spots. The applicant Jordan Sheldon was the last defendant to give evidence and the only opportunity the defence had to counter this late assertion by the Crown at trial was by denial under cross-examination and closing speech." We pause at this point to observe what the judge said in the passage which we have already quoted, which was that Jordan was "exposed in cross-examination" to have been aware of the location of the CCTV cameras, not that he denied it. But that said, we understand that the underlying point being made was that it was wrong in principle for the judge to elevate Jordan's role in the joint enterprise to that of his co-accused who he said were the knife wielders. 2. The judge was wrong to apply the adult guideline and then to reject any discount for chronological age and he lost sight of section 44 of the Children and Young Persons Act 1933 to have regard to the welfare of a young person when imposing a sentence. 3. The starting point was too high, and insufficient account was taken of his age, lack of previous convictions and the fact that this would be his first custodial sentence. 13. In her oral submissions before us today, Miss Seabourne, who appeared on behalf of Mr Jordan, has made the following further points on behalf of her client. First, that he was not identified as a knife wielder and was the one appellant who had no previous convictions. She accepted the aggravating features identified by the judge meant that this was properly classified as a category 1 case. Second, the judge assessed maturity by reference to the way her client acted. But she pointed out that Mr Jordan had no previous court experience and so a discount for his age should have been applied. She made the point also that in two parts of the judge's sentencing remarks he made different points. We have mentioned them both already, but we will identify them again. The first part of his sentencing remarks was the point where he said that he was satisfied that no reduction of the starting point was required or appropriate by reason of the matters that he had referred to, and then a little later, he then said: "These sentences are tempered only by your relatively young ages." Miss Seabourne submits that that shows confusion in the judge's reasoning and supports the submission that no proper account was taken of their ages. 14. For Mr Barnes it was submitted that notwithstanding the aggravating features and that the offence clearly fell into category 1 of the guidelines, the sentence was manifestly excessive for an 18-year-old who was 17 at the time of the offence. Mr Button, who appeared on behalf of Mr Barnes today, adopted the points made by Seabourne. 15. In relation to Alquebeiai, the primary ground is that the judge misdirected himself in failing to mitigate the sentence on the basis of his age. In the written grounds it was submitted as follows: "In view of the learned judge's justification as set out above as to his view of the appellant's 'actual' rather than 'chronological' age, it is necessary for me to set out that the learned judge apparently has forgotten that it was necessary to stop Crown counsel during his cross-examination of this applicant and firmly direct Crown counsel that in view of this applicant's stated difficulties he must not use any form of sarcasm and must ask one question at a time." It was submitted also that Alquebeiai had autistic tendencies albeit that their effect upon his everyday life was very limited. But it was submitted by Mr Smith, who appeared for Mr Alquebeiai, that this was something that would have limited his ability to give evidence. 16. Mr Smith today has forcefully made the following further points on behalf of his client. First, he does not accept that 15 or 16 years would have been an appropriate starting point for an adult in the case of these offences. He submitted that this was a spontaneous offence and there were no other aggravating features beyond those that took it into category 1. Second, he said there was no sufficient discount for age, particularly of Mr Alquebeiai, which required the court to look critically at the judge's reasons in his sentencing remarks. He said that the judge conducted the trial and formed his own view of Mr Alquebeiai's effective age but his approach in doing so was flawed. First he understood, as we have already mentioned, his apparent understanding of the meaning of the word "altercation" but Mr Smith submits that he did not in fact know the meaning of the word, he merely understood the drift of what was being put to him by prosecuting counsel. Third, Mr Smith submits that there was no indication that the judge was going to rely on Mr Alquebeiai's demeanour in court in the way he did to reduce any reduction for his age to nil. He submitted that this was a course that should be taken only in the most exceptional case. The appropriate sentence 17. It is not disputed by any of the appellants that these attacks fell within category 1 of the sentencing guidelines for this type of assault so that had they been adult offenders the starting point would have been 12 years' custody with a range of 9 to 16 years. We consider that in the circumstances of each of these offences a sentence of 15 or 16 years would have been the right sentence for an adult in the absence of any other mitigating factors. 18. At this point it is worth mentioning the precise ages of the appellants at the relevant times. Jordan and Alquebeiai, who coincidentally share the same birthday, were 16 years and 9 months old at the time of the incident and at the time of conviction they were therefore aged 17 years and 9 months. Barnes was just under 17 years 8 months at the time of the incident and was therefore aged 18 years 8 months at the time of conviction. 19. The definitive guideline overarching principles in sentencing youths states that: "There is an expectation that, generally, a young person will be dealt with less severely than an adult offender, although this distinction diminishes as the offender approaches age 18 (subject to an assessment of maturity and criminal sophistication)." The relevant part of paragraph 11.16 of the guideline is worth setting out in full. It reads as follows: "Where the offender is aged 15, 16 or 17, the court will need to consider the maturity of the offender as well as chronological age. Where there is no offence specific guideline, it may be appropriate, depending on maturity, to consider a starting point from half to three quarters of that which would have been identified for an adult offender. It will be particularly important to consider maturity when the court has to sentence more than one offender. When the offenders are of different ages, including when one or more is over 18, the court will also need to have proper regard to parity between their sentences. The closer an offender was to age 18 when the offence was committed and the greater the maturity of the offender or the sophistication of the offence, the closer the starting point is likely to be to that appropriate for an adult. Some offenders will be extremely mature, more so than some offenders who are over 18, whilst others will be significantly less mature." 20. There can be no question but that the judge's description of these attacks as "brutal gangland type violence" was all too accurate. The appellants' ages apart, there were no potential mitigating features. It is clear that the appellants and other members of their group were out to intimidate other members of the public and, as this incident shows, their willingness to indulge in gratuitous and very serious violence was made only too clear. 21. The consequences for both of the victims, both physical and psychological, have been very severe and are ones that they will carry for the rest of their lives. In fact they came within an inch of losing their lives. Mr Mace was a keen footballer but will never be able to play any active sport again. Both of them have sustained significant financial losses as a result of their injuries. Both are deeply embarrassed by the scars they will bear for the rest of their lives, scars that are clearly visible when, for example, wearing swimming trunks. The judge carried out a careful balancing exercise when considering the relative culpability of each of these appellants. In spite of the submissions made on behalf of Jordan, we consider that the judge was fully entitled to take into account his role as shown on the CCTV cameras and to balance that against his lack of previous convictions. We can find no error of approach in the judge's assessment that the three appellants were equally culpable in respect of these horrific offences. 22. As to question of the account to be taken of their ages, the judge conducted the trial and was in a far better position than this court to form a view about the maturity of each of the appellants and his true culpability in comparison with a hypothetical 18 year old. The guideline relating to the age of offenders is just that, and a judge is at liberty to - and indeed must - form his own judgment. In this case, the judge gave his reasons for reaching the conclusions that he did. The judge clearly gave careful thought to the question of what reduction, if any, should be made in the light of the appellants' ages. We do not read the sentencing remarks as meaning that their ages were left wholly out of account: we have already referred to the passage in which the judge referred to the sentences being tempered by their relatively young ages. We read that remark to mean that he took into account their ages when fixing the overall sentence of 15 years for these two separate assaults. 23. The course that he took was, we accept, a very unusual one but in this very exceptional case we consider it was a course that he was entitled to take and we consider that it would not be right for this court to interfere - not having had the opportunity to see and observe these appellants during the course of this substantial trial. 24. Standing back and looking at the sentences as a whole, and bearing in mind that there were two separate victims, each of whom was very seriously injured, we consider that these sentences were not manifestly excessive, although we accept that they were severe. Offences of this type do not often come much worse than these savage and unprovoked attacks on two wholly innocent passers-by and we have not been persuaded that we should interfere with the sentences. Accordingly, these appeals must be dismissed.

2013_06_14-3195.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/1147/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2013/1147

2292db352723e464ae8cb5e3c499bd16369d3d494caae161e63cd56bd9a430dc

[2006] EWCA Crim 1709

EWCA_Crim_1709

2006-06-12

crown_court

No. 2005/05785/C4, 2005/06477/C4 Neutral Citation Number: [2006] EWCA Crim 1709 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Monday 12 June 2006 B e f o r e: LORD JUSTICE MOSES MR JUSTICE KEITH and HIS HONOUR JUDGE GORDON ( Sitting as a Judge of the Court of Appeal Criminal Division ) __________________ R E G I N A - v - BEN RONALD HUNTLEY SEAMUS COLGAN __________________ Computer Aided Transcription by Smith Bernal, 190 Fleet Street,

No. 2005/05785/C4, 2005/06477/C4 Neutral Citation Number: [2006] EWCA Crim 1709 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Monday 12 June 2006 B e f o r e: LORD JUSTICE MOSES MR JUSTICE KEITH and HIS HONOUR JUDGE GORDON ( Sitting as a Judge of the Court of Appeal Criminal Division ) __________________ R E G I N A - v - BEN RONALD HUNTLEY SEAMUS COLGAN __________________ Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) __________________ MISS A FOSUHENE appeared on behalf of THE APPELLANT BEN HUNTLEY MR B SMITTEN appeared on behalf of THE APPELLANT SEAMUS COLGAN MR J D WHITLEY appeared on behalf of THE CROWN ____________________ J U D G M E N T Monday 12 June 2006 LORD JUSTICE MOSES: 1. This is an appeal against conviction by leave of the single judge who granted leave on three grounds, the most significant of which concerns a breach of the Code in relation to identification. 2. The appellant Ben Ronald Huntley, together with another young man Seamus Colgan, were convicted by a jury in October 2005 at Wood Green Crown Court of an offence of assault occasioning actual bodily harm and criminal damage. We will turn, if it proves necessary to do so, to the question of sentence later. 3. The victim was a Mr Mohammed Dastani, who had been driving his minicab in the early hours of the morning of 10 October 2004. According to the appellants, he had left his car to assist another driver with whom they were arguing. However, the victim said that, although he had stopped his car to assist another driver, he was then set upon by the two appellants, whom he did not purport to identify, accompanied by a third man. That is important because only the victim and the appellant Huntley, when he gave evidence, said that there were three people involved. 4. The victim described the incident in terms familiar to all those who have listened to accounts of violence in the early hours of the morning in that area of London. The description did not tally with what other witnesses said in an important respect; the said only two men were involved. He had stopped the car to help another driver in dispute with three men. As he approached he said that the three men had come towards him, while the driver he had gone to assist drove off. He gave a description of all three men, but the description was such that it would not have been sufficient to identify the appellant Huntley as one of the participants. There were discrepancies in his description of the appellant being shorter, maybe 5'9", with blond hair, light- coloured jeans and proper, strong-looking dark shoes. The first man who approached him, he said -- and the prosecution said that it was the appellant's co-defendant Colgan -- struck him with a chain. They had grappled together. The victim had let Colgan go and had run off, but had run down a dead-end. He was pursued. All three attacked and hit him. One of them hit him with bottles. Another hit him with pieces of stone, even though he was begging for mercy and, at one stage, begging for his life. He attempted to escape from the blind alley but was pursued. He was kicked on the body and attempted to hide underneath the vehicle from which he had escaped. The vehicle was attacked. Windows, the boot, doors, the bonnet, mud-flaps and wings were damaged in the rage of those who attacked him. He was adamant that there were three people involved. 5. An independent witness, Preidoon Pahlvan, did not purport to identify the two men who, he said, were attacking the victim. Although the street lighting was good, he gave a description that did not match the correct description, as given by the police at the time, of the appellant Huntley. 6. The most important witness from the prosecution's point of view was a man called Mustafa Akbas. He had been driving home when he saw two men running across the road pursuing a third man. He saw them catch up with the victim in the alley-way. He said that both were screaming and beating him up. One man (a blond man) had a chain with which he struck the victim. The other man had a bottle with which he hit the man in the face. The victim was screaming, "Please don't do it". The witness went into a supermarket for help. He said that he was away for a period of five seconds. But it is notorious that no eye-witnesses of this sort of incident can give an accurate description of time. Far better as an estimate was the time it would have taken him to go into the supermarket as a matter of emergency, seek help (none was forthcoming) and come out. The important evidence he gave in-chief was that when he came out, the two men were still pursuing the victim, still beating him and smashing up his vehicle. He described the incident as taking 20 or 25 minutes (again, no doubt, an exaggerated and inaccurate length of time). The significant part of his evidence was that he said that he saw the two men who had been beating up the victim walk away some metres, by which time the police arrived. He said that, having kept those two men under continuous observation from the time that he left the supermarket, he then pointed out those two men to the police and the police arrested them. There was no dispute but that the two men the police arrested were the two men pointed out by the witness Akbas. There was a dispute, however, about the circumstances in which he pointed them out. The police said that he had merely pointed them out, and had not gone up to them, whereas he said that he had walked down the road near the men before he pointed them out. The witness Akbas said that there were only two men involved. 7. When WPC Church arrived at the scene, the appellant Colgan, in the presence of Huntley, had said, "The cab driver tried to run us down". Indeed Colgan throughout had not denied that he had used violence on the victim, but said that it was only in self-defence once the man had attacked them and had tried to run them down. 8. The following morning both Colgan and Huntley were interviewed. At that time the police had not taken statements from any of the witnesses to which we have already referred. But there was a full interview of Huntley during which questions were asked of him and he made no comment. The questions were asked in a neutral way, for example, whether he had attacked anybody. Reply, "No comment". He was asked if he had assaulted the man, "No comment". This, said the appellant, was on the advice of his solicitor. There was no dispute but that the solicitor had given that advice, there having been no disclosure and no possibility of any disclosure of what potential witnesses might say. But it is of note that there was an opportunity for the appellant to say what he subsequently said. Indeed from time to time he did not take the advice of his solicitor: he denied having anything to do with the chain which was at one point used to attack the victim. 9. Once the judge had ruled that there was a sufficient case in relation to identification to go before the jury, Huntley gave evidence. His account was that there was a third man called John (although he had said in an earlier defence statement that the third man was called Tony). He said that a scuffle had broken out but that it was triggered by the victim first hitting Colgan with the chain. His account was that he had not participated. He had not wanted to become involved and had moved further up the road. He subsequently joined Colgan and was then arrested when they were both together about 100 metres away. 10. Miss Fosuhene on behalf of the appellant, in clear, admirable written and oral submissions, has taken the point, first of all, that there should have been an identification parade consistent with the requirements of D:3.12, the relevant Code at the time. That reads: " Circumstances in which an identification procedure must be held Whenever: (i) a witness has identified a suspect or purported to have identified them prior to any identification procedure set out in paragraphs .5 to 3.10 having been held; or (ii) there is a witness available, who expresses an ability to identify the suspect, or where there is a reasonable chance of the witness being able to do so, and they have not been given an opportunity to identify the suspect in any of the procedures set out in paragraphs 3.5 to 3.10 , and the suspect disputes being the person the witness claims to have seen, an identification procedure shall be held unless it is not practicable or it would serve no useful purpose in proving or disproving whether the suspect was involved in committing the offences. For example, when it is not disputed that the suspect is already well known to the witness who claims to have seen them commit the crime." Miss Fosuhene contends that the requirement to hold an identification parade was triggered by the fact that the witness Mr Akbas had purported to identify the appellant Huntley, had pointed him out to the police, and had said in his written statement that he would recognise the assailants again if he was given an opportunity to do so. Because of the failure by the police to obtain statements earlier, the defence obtained statements only in April 2005, many months after this incident. It is quite apparent that by the time the defence was requesting an identification parade it would have been far too late for any accurate identification to have taken place. But Miss Fosuhene points out that there was always the possibility that the witness, seeing the appellant Huntley in a line with others, might have said, "Not only do I not recognise anybody but I can say positively that none of the people attacking the victim is there". In any event the police cannot rely upon that delay since, had they obtained statements earlier and held an earlier identification parade, the witness might himself have pointed out that it was not Huntley who was there. 11. The question then arises as to whether it was incumbent upon the judge to withdraw that evidence of identification from the jury. In our view it was not. Only one witness could be relied upon by the Crown to put the appellant Huntley in the frame as a participant in the violence used against the victim. His evidence -- and it was a matter, in our judgment, for the jury to assess -- was that he had kept the participants who were beating up the victim in constant vision once he had left the supermarket. That was evidence for a jury to weigh. 12. The judge delivered, in our judgment, a perfectly correct summing-up to the jury. He pointed out the dangers, pointed out the view that he had taken that there ought to have been an identification parade, and asked the jury to bear in mind the defects in the evidence which flowed from that failure. In our judgment he was correct in refusing to withdraw that evidence from the jury. There was sufficient evidence, despite its dangers and despite the absence of an identification parade, for a jury properly to weigh it. The jury did weigh it and found it of sufficiently convincing force as to convict the appellant Huntley. In our judgment the failure to withdraw this evidence does not render this verdict unsafe. It is by now trite law (see, for example R v Forbes [2001] 1 AC 473 ) that a mere breach of the Code is not dispositive of the question as to whether the verdict was unsafe, provided the judge correctly directs himself as to the effect of the Code (and he did in this case), and fairly leaves the issues, together with the breach of the Code, to the jury, it is not automatic that the verdict will be considered unsafe. In our judgment the evidence of the witness Akbas of a continuous observation from the time of the violence up to the time of the arrest was of sufficient cogency to entitle the jury to convict. We dismiss that ground of appeal. 13. The second ground relates to whether the jury should have been directed (as the judge did direct them) as to the provisions of section 34 of the Criminal Justice and Public Order Act 1994 and asked, in the conventional way, to consider not only the fact that the solicitor had given advice not to answer in interview, but whether it was reasonable for the appellant to rely upon that advice. Miss Fosuhene contends that the evidence was so weak that the only proper direction that the judge ought to have given was for the jury not to hold the 'no comment' answers against the appellant. 14. We reject that ground of appeal. It was perfectly proper for the police to ask questions so as to give the appellant the opportunity very soon after the incident to say, "Yes, I was there, but I took no part in it". He failed to take that opportunity, despite the caution, and we have already observed that he did not always follow the advice of the solicitor in relation to the answers which he gave. The jury were perfectly entitled, once a proper direction was given, to regard the fact that he did not say, "No, I wasn't involved" at the time as at least of some significance in relation to the evidence against him. We reject that second ground of appeal. 15. The final ground of appeal relates to the admission of evidence of previous conviction for violence so as to show, as the prosecution submitted, evidence of a propensity for violence, pursuant to section 101(1)(d) of the Criminal Justice Act 2003 . Miss Fosuhene does not contend that that was not a legitimate gateway. Her point was of more force; it flowed from the earlier submissions, she said. Theoretically at least she was wholly correct. If this was a weak case, as she contended it was, then the judge should not have allowed the prosecution to bolster it up by introducing evidence of propensity. The real question was as to the quality of the other evidence. 16. For the reasons that we have already given we do not accept that this was a weak case. Bearing in mind that in so many cases of violence every eye-witness will give a different account, this, in comparison with other cases, was comparatively strong. It is quite rare to have an alleged assailant still upon the scene in a position to be pointed out to police officers who arrived on the scene, in time and in circumstances of a continuous observation. We think, on the contrary, that the evidence was strong. In those circumstances it was perfectly legitimate for the jury to allow the prosecution to introduce the evidence of this young man's previous propensity to violence. For those reasons we reject the third ground of appeal. 17. Those were the three grounds of appeal on which Miss Fosuhene relied. We rejected them all. In those circumstances the appeal against conviction is dismissed. ( The court was addressed in relation to the appeals against sentence ) 18. LORD JUSTICE MOSES: For the reasons we have already given, this was a terrible occasion of violence. These two young men set upon a wholly innocent victim in the small hours of the morning. They were clearly influenced by drink. When they are not in drink they do not behave like this. It must be understood that significant sentences in the region of three years are wholly appropriate for this sort of sustained violence. The judge cannot be criticised, and these young men and their families must understand that three years' imprisonment is just the sort of sentence that is appropriate for this type of violence. 19. However, although Huntley has a bad record for violence (for which he has never previously received a custodial sentence) there are, as sometimes happens, many things that can be said in his favour. He is a tower of strength and support to his family; he behaves decently and properly towards them in a way that has been remarked upon in the excellent letters and good reports written about him. In those circumstances we take the view that, whilst a sentence of three years' imprisonment was appropriate for this violence, it did not sufficiently take into account the personal mitigation. We readily understand why; the Recorder had sat and listened to this awful account of that night in respect of which Huntley did not even have the grace to plead guilty. The powerful personal mitigation of the fact that he was looking after his mother who had suffered a stroke, and, of equal importance, providing a father-figure to his sisters, and particularly to one of them who suffers from an unfortunate condition which seriously affects the quality of her life. It is because of those peculiar and exceptional circumstances of his personal mitigation that we feel able to reduce the sentence. In those circumstances we feel, taking into account that personal mitigation, that the appropriate sentence in this case is one of two years' imprisonment. To that extent we will therefore allow his appeal by reducing the sentence of three years on the count of actual bodily harm to one of two years' imprisonment. The sentence on count 2 will remain unaltered. 20. Similarly, in the case of Colgan, he is a young man who has not been in trouble before. He is a young man of 23 who, when he is not in drink, behaves in a wholly responsible and laudable way. He looks after his father, and had the prospect of helping others less fortunate than himself in South Africa. Yet when in drink he behaved in this wholly unforgivable way towards the victim Mr Dastani. Although he had never been in trouble before, the Recorder quite rightly dealt with him in the same way as Huntley, since it appears from all the evidence, in relation to which the Recorder was in the best position to judge, he triggered the whole offence and thus merited the same sentence as Huntley. But for similar reasons, because there is much personal mitigation of an exceptional nature, we take the view that the judge did not sufficiently reflect that in the sentence of three years' imprisonment. In those circumstances we will in his case too reduce the sentence on count 1 from three years' imprisonment to two years' imprisonment. 21. We wish to emphasise that this case is no authority for the proposition that three years is not an appropriate sentence for violence such as this. It is no authority at all. It merely seeks to reflect the exceptional personal mitigation in this case. But the sentences in each case will be allowed to the extent of reducing the sentence of three years' imprisonment to one of two years. To that limited extent both appeals against sentence are allowed. _____________________________

2006_06_12-829.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/1709/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/1709

9315d519b01be05f7a34832617e1b661489c0f016d7d44231fb39709d28a7f58

[2013] EWCA Crim 1171

EWCA_Crim_1171

2013-06-13

crown_court

Neutral Citation Number: [2013] EWCA Crim 1171 Case No: 2012/675/A4 & 2012/6967/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 13 June 2013 B e f o r e : LORD JUSTICE ELIAS MR JUSTICE EDWARDS-STUART THE RECORDER OF BRISTOL HIS HONOUR JUDGE FORD QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v NICHOLAS LEACOCK MARVIN SAMUELS - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of

Neutral Citation Number: [2013] EWCA Crim 1171 Case No: 2012/675/A4 & 2012/6967/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 13 June 2013 B e f o r e : LORD JUSTICE ELIAS MR JUSTICE EDWARDS-STUART THE RECORDER OF BRISTOL HIS HONOUR JUDGE FORD QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v NICHOLAS LEACOCK MARVIN SAMUELS - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr J Simpson appeared on behalf of Leacock Mr G Zachary appeared on behalf of Samuels Mr I Hope appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE ELIAS: On 13th July 2012 at the Crown Court in Guildford before His Honour Judge Critchlow, the appellants pleaded guilty to count 1, which was conspiracy to rob contrary to section 1(1) of the Criminal Law Act 1977. There was a trial before His Honour Judge Addison on count 2, which was having an imitation firearm with intent; that was a ten day trial and they were acquitted. They were sentenced following that trial in relation to count 1 and each of the appellants received an extended sentence of 12 years, made up of a custodial term of nine years and an extension period of three years. There was a co-accused, Paul Tucker. He was acquitted on count 1 but was convicted on count 3, which was a money laundering count. They appeal against sentence with leave of the single judge. 2. The facts were these. On 20th April 2012 a G4S security van was parked outside Blockbuster in Croydon Road, Caterham. The van was picking up money. The driver had collected a cassette box containing approximately £900 from the shop when he was approached by Leacock. Leacock was, according to the finding of the judge, holding something in his hand which might have looked like a gun. Plainly it was not a gun because the jury acquitted on that charge. 3. Leacock stole the cassette box from the open chute, he then went to a vehicle which was being driven by Samuels and they drove off. The car was a cheap car which had been acquired specifically for the purpose of the robbery. They went to the house of the co-accused Tucker and left the cassette box there. The plan was that it would be opened there with cutting equipment. Then they went to some nearby garages where they set the car alight. They were arrested soon after the incident had occurred. 4. They both have extremely bad records. Leacock had 10 previous court appearances for 21 offences between 1991 and 2004. They included offences of robbery, theft and burglary. The last conviction was in 2004 when he received a 12-year sentence for aggravated burglary, false imprisonment and having a firearm with intent. That offence itself was committed at a time when he was on licence as a result of an earlier eight year sentence which was imposed for a robbery in 1999. Samuels had 12 previous court appearances for 27 offences between 1998 and 2008. They too included theft, robbery and burglary and various road traffic offences. He was sentenced in 2003 to six-and-a-half years for two counts, each of robbery, and for having a bladed article. There was a further sentence of six-and-a-half years for conspiracy to rob in 2008. 5. The judge in his sentencing remarks recounted the facts of the case in some detail. He found that Leacock had been wearing a Balaclava and had some object in his hand. The judge said he had been unable to determine what it was, but it was something intended to frighten the driver. The judge made it plain that he was sentencing on the basis that whatever it was, it was not an imitation firearm. Leacock was an extremely powerful man and would have been a very frightening sight. The driver was terrified and effectively handed over the cash box immediately. 6. The judge said they would be given credit for the guilty plea. There has been some debate this morning as to whether it was the judge's intention to give them full credit. He did not indicate otherwise and we think in the circumstances we ought to assume that that was his intention. But he identified two aggravating features in particular. The most serious was the fact that both had these very significant previous convictions, but a second aggravating feature was that they were on licence at the time these offences were committed. 7. The court had to consider whether the offence fell within the sentencing guidelines for robbery. The judge concluded that they did not because it was a professional commercial robbery for which no specific sentencing guidelines are given. These were persistent professional robbers. The judge concluded that there was no reason to distinguish between them since they were parties to this joint enterprise and accordingly he gave them the same sentence. 8. In considering the imposition of the extended sentence, the judge took into account their records and essentially on the basis of those antecedents he inferred that there was a significant risk to members of the public of serious harm and that accordingly they satisfied the dangerousness criteria. This justified the extension of three years to the custodial term. 9. There are numerous grounds of appeal, most of which are common to both appellants. First, it is said that the judge was not entitled to conclude that this was a professional robbery. He should have held that it was a less sophisticated commercial robbery falling under the guidelines and although the offence does not fit neatly into any of the categories for less sophisticated commercial robbery, it is suggested that it should have been in the category where the starting point is four years and the range is two to seven years. Second, it is said that the starting point in any event must have been too high, or alternatively insufficient credit must have been given for the plea, because the overall sentence is too much. Third, it is submitted that the judge was not entitled to conclude that Leacock had in his hand something that looked like a weapon, given that the jury had concluded that he did not have a firearm. It is said that the judge's analysis undermined the verdict of the jury. Fourth, Samuel contends that his lesser role in the offence and the fact that the planning of the operation was carried out substantially by Leacock, means that there should have been some disparity in the sentence between the two men. Leacock finally prayed in aid certain personal mitigation. 10. We do not accept that the judge was wrong to say that this was a professional commercial robbery. It was planned and it plainly involved a degree of organisation. That is demonstrated by the fact that they acquired a car specifically for the purpose, they had planned precisely what they were going to do once the money had been taken, and they were identifying transit vans as the focus of their robbery. In all the circumstances we think the judge was entitled to conclude that this did not fall into the category of less sophisticated commercial robbery, but did come into the higher category. We accept, however, that the planning and organisation was not as sophisticated as is the case in some professionally planned robberies. 11. We do not accept the submission that the judge was wrong to conclude that Leacock had something in his hand which was threatening. It is established in the case of Khan , amongst others, [2010] 1 Cr.App.R (S) 1 that a sentencing judge is entitled to take into consideration evidence that might have formed part of a separate count, as long as he is satisfied that it had been established to the criminal standard. That cannot of course be done if it is inconsistent with the jury's verdict. But we do not see that this finding is inconsistent. The jury's verdict merely established that what was in the hand was not a gun or an imitation gun. It was open to the judge in principle to conclude on the basis of the evidence which the judge heard and we have not, that he was satisfied so that he was sure that there was something in the hand of Leacock at the time when he carried out the offence which aggravated the fear of the transit van driver. The judge presided over the trial and he was in a position to determine whether there was some implement in Leacock’s hand and we do not see that we can properly gainsay his conclusion on that point. There is no basis, it seems to us, for saying that he gave that feature undue weight. It was a factor he was entitled to weigh in the balance and it was up to him then to give it the weight that he thought appropriate. 12. Samuels submitted that he should have had a lower sentence. He did to some extent play a lesser role by virtue of being the driver in the actual offence. Significantly there were features of the planning which demonstrate that it was Leacock rather than Samuels who had played the leading role. It is not disputed that he initially planned the robbery -- he provided the balaclavas, it was his car that was driven to pick up the car used for the purpose of the robbery and he bought the cheap car. He had visited Tucker on the morning of the robbery in order to make sure that he had the means of cutting open the cash box. We think that his greater role required some reflection in the sentence which the judge imposed on the two men. 13. We were referred in the written arguments in particular to various authorities relating to the question of whether or not this was a professionally planned robbery, but they tend to turn on their own facts. Counsel for the appellants relied in particular on the case of Yarboi [2009] EWCA Crim. 2760 , but that case is of no assistance in circumstances where the judge has concluded, in our view justifiably, that the case falls within the higher category of a planned professional robbery. Moreover, the cases to which we were referred do not involve defendants with the same criminal records. 14. In our judgment, a starting point for a professionally planned robbery of this kind would be in the region of seven to eight years. Indeed, even if one were to adopt the guideline for the less sophisticated robbery, it seems to us it would be at the very top of the range which would be seven years. 15. There are then the aggravating features. On any view the fact that there have been a number of robberies committed by these defendants in the past was bound to weigh very heavily with the judge and was bound to involve a significant increase in the sentence that he would otherwise have imposed. The fact that they were on licence was also, as we have indicated, an aggravating feature. It is right to say, however, that no firearms were used and there was in the event no violence. 16. We think a nine year custodial term was too high because it reflects a sentence of 13 and a half years after a trial. We do not think that that was a justified starting point. We do think that somewhere in the region of 12 years would have been an appropriate sentence had there been no pleas in this case, given the aggravating features. So we reduce the custodial term for Leacock to one of eight years, making the extended sentence of 11 years, and for Samuels the custodial term is seven years. 17. Leacock made no complaint about the extended period of three years. Given his antecedents, and the fact that the previous robberies involved dangerous weapons, he could not realistically do so. Samuels, however, submits that there was no basis for an extended sentence in his case. Mr Zachary, counsel for Samuels, submits that the judge did not focus adequately on the nature of the previous robberies. It is true that he had a bladed article in the robberies for which he was sentenced in 2003, but that was when he was aged about 19 or 20. The more recent robbery did not involve him in any way using dangerous weapons or anything of that kind. Counsel says that the judge was not justified in inferring that he satisfied the dangerousness criteria. 18. We accept that submission. It seems to us that the judge has simply put both defendants in the came category. In our view, if the judge was going to find that Samuels was dangerous, it would certainly have been desirable if he had had a pre-sentence report which could have provided further and more detailed information about his potential danger to the public. 19. Accordingly, we uphold these appeals. In the case of Leacock we replace the extended sentence of 12 years with an 11-year extended sentence -- that is eight years custodial and a three year extended licence period -- and for Samuels we quash the 12-year extended sentence and we substitute a custodial sentence of seven years. To that extent these appeals succeed.

2013_06_13-3192.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/1171/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2013/1171

7ac5753ac89863c7bdc0cd0fce186b6191040a398234abb15ce49d23f7e80c40

[2019] EWCA Crim 1460

EWCA_Crim_1460

2019-07-30

crown_court

Neutral Citation Number [2019] EWCA Crim 1460 No: 201902006/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 30 July 2019 B e f o r e : LORD JUSTICE HOLROYDE MR JUSTICE JULIAN KNOWLES SIR JOHN ROYCE R E G I N A v NATHANIEL BRICKNELL 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)

Neutral Citation Number [2019] EWCA Crim 1460 No: 201902006/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 30 July 2019 B e f o r e : LORD JUSTICE HOLROYDE MR JUSTICE JULIAN KNOWLES SIR JOHN ROYCE R E G I N A v NATHANIEL BRICKNELL Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS, Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. Mr D Patience appeared on behalf of the Appellant Mr D Hewitt appeared on behalf of the Crown J U D G M E N T (Approved) 1. LORD JUSTICE HOLROYDE: Nathaniel Bricknell appeals by leave of the single judge against sentences totalling 12 months' imprisonment, imposed following his guilty pleas to three offences of failing to comply with notification requirements, contrary to section 91 of the Sexual Offences Act 2003. 2. The appellant is now aged 35. He became subject indefinitely to the notification requirements in June 2009, when he was sentenced to an extended sentence, comprising a custodial term of 5 years and an extension period of 3 years, for an offence of rape to which he had pleaded guilty. Amongst other things the notification requirements obliged him to report to the police within 3 days if he stayed for 12 hours or more in a household which included someone under the age of 18, and to notify the police of any address at which he stayed for 7 days or more within a 12-month period. He was also obliged to notify the police of any new bank account. 3. In February 2017 the appellant was sentenced to 8 weeks' imprisonment, suspended for 12 months, for an offence of failing to comply with the notification requirements. He had formed a relationship with a woman who had two young children and during a period of about 3 weeks he had failed to notify the police that he had stayed with her at times when the children were also in the house. 4. The essential features of the present offences can be summarised briefly. They began in late November 2018, only about 9 months after the suspended sentenced had expired. The appellant was working as a personal trainer and for that purpose was using the name "Nathan Peters". The police were aware of those facts and had advised the appellant to work only in a gym and not to have female clients. 5. Through one of his clients the appellant came into contact with Ms Flack who lived with her two children (then aged 10 and 1) and who is also the mother of an adult child. She began to use the appellant's services as a personal trainer and a relationship between them quickly developed. The appellant was not obliged to tell Ms Flack about his previous convictions and did not do so. He became in effect part of Ms Flack's family and got on well with the children. On one occasion he was briefly left alone in the house with the youngest child. Ms Flack made clear that she never witnessed or suspected anything untoward. She was however very distressed when she was alerted to the appellant's true identity and then learned, through internet research, of his rape conviction. She ended the relationship immediately. The appellant was very apologetic and made immediate admissions when questioned by the police. 6. Over a period of 3 months the appellant had stayed over at Ms Flack's house on 28 occasions, none of which was notified to the police. On all but three of those occasions the two younger children were also in the house. He was there continuously for 7 days over the Christmas period and of course his total number of visits to that house far exceeded the number at which he became obliged to notify the police. 7. The appellant told the police that he had opened a bank account into which he could pay the fees which he earned as Nathan Peters. He knew he should have disclosed this but said he had forgotten to do so. That offence dated back to 4 August 2018, even closer in time to the expiration of the previous suspended sentence. As a result the various failures to notify had extended over a period of more than 6 months. 8. The appellant was charged, as we have said, with three offences of failing to notify. The first charge related to his staying on numerous occasions for more than 12 hours at an address where children were living. The second related to his staying at that address for more than 7 days. The third related to his failure to notify the bank account. The appellant pleaded guilty to these charges in the Magistrates' Court and he was committed for sentence to the Crown Court at Basildon. 9. At the sentencing hearing on 16 May 2019, a pre-sentence report was available. This recorded, but did not accept, the appellant's assertion that he had not appreciated the seriousness of his failures of notification. The reporting probation officer assessed the appellant as highly likely to commit further similar offences, with a high risk of causing sexual or emotional harm. He was however assessed as suitable for a community order with a number of requirements. 10. The judge considered the Sentencing Council's Definitive Guideline for sentencing offences of this nature. She assessed the offences as falling into category A culpability, because both of the factors mentioned in the guideline were, in her view, present, namely, "determined attempts to avoid detection" and "long period of non-compliance". She accepted that the appellant had neither caused nor risked very serious harm or distress and she therefore assessed the harm as falling into category 2. Accordingly, she put the case into category A2, for which the guideline indicates a starting point of 1 year and a sentencing range from 26 weeks to 2 years' imprisonment. 11. The judge rejected a submission that it should instead be categorised as a B2 offence, involving no more than a deliberate failure to comply with a requirement, for which the guideline indicates a starting point of 36 weeks' custody and a range from 26 weeks to 18 months. She referred to the fact that she was dealing with three offences but said she was mindful of totality. She also referred to the aggravating feature of the previous offending. She concluded that the appropriate sentence after trial would be a total of 18 months, which she reduced to 12 months, giving full credit for the prompt guilty pleas. She said that in all the circumstances she was unable to suspend the term of imprisonment. Thus concurrent sentences of 12 months' imprisonment were imposed on each charge. 12. Mr Patience, who represents the appellant here as he did below, submits in his helpful written and oral submissions that the judge was wrong to put the case into category A culpability. There was, he says, no evidential basis for finding that the appellant had made determined attempts to avoid detection. He further argues that the period of time over which the failures to notify occurred could not properly be regarded as a long period of non-compliance. In any event, he submits, the judge took too high a notional sentence after trial, because she failed to give sufficient weight to the substantial degree of overlap between the three offences. He emphasises that the offence lies in failing to notify specified matters to the police, not in failing to tell everything to his new partner. He submits that notwithstanding the first offence in time (the failure to notify the new bank account), it would be artificial to treat the offending as having continued over a period in excess of 6 months. The real gravamen of the charges, he argues, is covered by the 3-month period when the appellant was repeatedly staying over at Ms Flack's house. 13. Mr Patience further submits that the judge gave insufficient attention to the fact that there had been a lengthy period of compliance with the requirements before the 2017 conviction and failed to give sufficient weight to the various matters of personal mitigation. 14. Mr Patience argues, by reference to the Sentencing Council's Imposition Guideline, that none of the factors pointing to an immediate sentence was applicable to this case, and that, on the contrary, a number of factors favouring a suspended sentence were applicable. He referred us to a number of cases decided before the guideline came into effect. We have not found these cases of particular assistance given that there is now a Definitive Guideline. 15. For the respondent, Mr Hewitt adds brief oral submissions to what is set out in writing in a respondent's notice. He confirms, very fairly, that the prosecution did not contend in the court below that this was a case of determined attempts to avoid detection. He submits that the phrase "long period of non-compliance" will require consideration of the facts and circumstances of each individual case. 16. We have reflected upon these submissions. We agree that this was not a case in which the appellant could be said to have made determined attempts to avoid detection. The fact that the prosecution had not put that factor forward as being applicable was not, of course, conclusive, but we note that the judge did not identify in her sentencing remarks any particular basis on which she made the finding. 17. As to whether there was a long period of non-compliance, we acknowledge Mr Patience's point that some offences coming before the courts involve non-compliance over much longer periods. However, in those circumstances the sentencer would be fully entitled to make an upward adjustment from the guideline starting point to reflect the particular length of the period of non-compliance. Here, the first failure to notify occurred in August and the series of more serious failures to notify occurred between November and February. We agree with the prosecution that the period of non-compliance is properly to be regarded as one of more than 6 months. 18. The first offence in point of time relating to the bank account was, we accept, not the most serious example of a failure to notify; but it does indicate an attitude on the part of the appellant towards compliance with the notification requirements, an attitude moreover which he has displayed despite the crystal clear warning given to him by the suspended sentence, imposed when he previously failed to comply with his requirements. 19. Without seeking to define the parameters of "a long period" in this context, we conclude that it was open to the judge to find that that factor was indeed present in the circumstances of this case. However, even if the judge had not made that finding, we have no doubt that the period of time during which the appellant was failing to comply with the notification requirements would alternatively have been a serious aggravating feature of a category B offence, meriting a significant increase above the starting point. 20. We agree with Mr Patience's submission that there was a significant degree of overlap between the three offences and we agree, as we have said, that the offence relating to the bank account was a comparatively minor offence of its kind, bearing in mind that the police were already aware that the appellant was using a different name for the purposes of carrying on business as a personal trainer. We also accept that there were a number of matters of personal mitigation which the appellant was able to pray in aid. 21. All that said however, the seriousness of the offending after the first offence in August, lies in the continuation, over a period of about 3 months, of visits to the home in which children were living, extending over days at a time, none of which were notified to the police as they should have been. 22. This offending was significantly aggravated by the comparatively recent previous conviction for very similar offending. In all the circumstances, a total sentence of 18 months' imprisonment, before giving credit for guilty pleas, was within the range which was properly opened to the judge. Having regard in particular to the aggravating feature of the comparatively recent previous conviction, the judge was entitled to conclude that, in the circumstances of this case, appropriate punishment could only be achieved by immediate custody - that being one of the factors specifically identified in the Imposition Guideline. 23. For those reasons, we conclude that the total sentence imposed, albeit a stiff one and perhaps high in the range open to the judge, was not one which can be said to be manifestly excessive. 24. 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

2019_07_30-4685.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/1460/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/1460

1b5b2698eae67b87f7b2ab344b2a85d779ad06860e0313adc67099492dd4d07e

[2003] EWCA Crim 28

EWCA_Crim_28

2003-01-29

supreme_court

Neutral Citation No. [2003] EWCA Crim 28 Case No: 2001/3070/Z1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM NOTTINGHAM CROWN COURT (CRANE, J.) Royal Courts of Justice Strand, London, WC2A 2LL Date: 29 January 2003 Before : LORD JUSTICE MANCE MR. JUSTICE SACHS and MR. JUSTICE MITCHELL - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - and - JOHN CHARLES CUTTS Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation No. [2003] EWCA Crim 28 Case No: 2001/3070/Z1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM NOTTINGHAM CROWN COURT (CRANE, J.) Royal Courts of Justice Strand, London, WC2A 2LL Date: 29 January 2003 Before : LORD JUSTICE MANCE MR. JUSTICE SACHS and MR. JUSTICE MITCHELL - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - and - JOHN CHARLES CUTTS Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr David Farrer QC & Mr Adrian Reynolds (instructed by Messrs Cartwright King & Co. ) for the Appellant Mr John Milmo QC (instructed by the CPS ) for the Respondent Hearing date : 19 November 2002 - - - - - - - - - - - - - - - - - - - - - JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS) Lord Justice Mance: Introduction 1. On 14 th May 2001 the appellant was convicted on a single count of murder after a 10 day trial before the Honourable Mr Justice Crane at Nottingham Crown Court, and was sentenced to life imprisonment. He now appeals against conviction by leave of the single judge on ground 2 in his notice of appeal, and renews his application for leave to appeal on ground 1. Ground 2 is that the judge should have withdrawn the case from the jury at the conclusion of all the evidence, or after hearing the evidence of an expert, Professor Tattersall, called by the defence. Ground 1 is the submission that the judge should have withdrawn the case from the jury at the conclusion of the Crown’s case. There is a considerable linkage between the two grounds, and we think it appropriate to grant leave to pursue ground 1 as well as ground 2. 2. The death of the deceased, Dawn Rosemary Berntsen, born 29 th August 1951, was reported to the police by the appellant a little after 4.00 a.m. on Friday, 4 th August 2000. She lived in a first floor flat at 18, Heaton Court, St Anns, Nottingham, but her body was found in a flat at 5 Ritson Close, St Anns, Nottingham, of which a James Murphy was the tenant. The deceased was a diabetic, and the immediate cause of her death was the onset of diabetic ketoacidosis. That is a condition which develops in diabetics whose pancreas fails to produce and who fail to administer to themselves sufficient insulin to promote the uptake of glucose from their blood into their body cells. Such a failure leads to an insufficiency of glucose in the body cells and excesses of glucose and of ketones in the blood. Ketones are acidic and their presence leads to nausea and vomiting and is ultimately toxic to the heart. A post-mortem examination by Professor Whitwell, a Home Office pathologist, showed that the deceased had suffered head injuries, some days before her death. It also showed marks consistent with her body having been dragged. Examination of the deceased’s flat led to the discovery of her blood on a living room chair, on wallpaper above and in the area of the door, as well as on a wine bottle bearing the appellant’s fingerprints in such a position as to show that he had held the bottle by the neck as one would if using it as a weapon. The appellant’s clothing was also found to be spattered with the deceased’s blood. 3. The Crown case was that the onset of ketoacidosis had been brought about by the infliction by the appellant on the deceased some days before death of the head injuries using the wine bottle. In order to convict the appellant of murder, the jury must have been satisfied (a) that the appellant inflicted the injuries which the deceased was found to have sustained, (b) that, when doing so, he intended to cause her some really serious bodily harm (the Crown did not allege that he intended to kill her), (c) that he was not provoked into inflicting them and (d) that the injuries caused the onset of ketoacidosis and so death. On this appeal, it is this last pre-condition, causation, that remains in issue. The facts in detail 4. James Murphy had known the deceased for 7-8 years. He was an unemployed alcoholic and used to drink with the appellant. The appellant sought to blame Murphy for conduct which the Crown attributed to the appellant. The jury must have accepted Murphy’s evidence in that regard, and it is therefore on Murphy’s evidence that we shall focus primarily. It was, however, common ground between Murphy and the appellant that the appellant used to give his benefit book to the deceased for safe keeping. The appellant’s practice was to recover the book on Sundays in order to be able to draw benefit on Mondays. The appellant’s evidence was that the deceased had stayed with him over the night of Friday, 28 th July 2000, before walking home with her dogs on the Saturday morning, a walk which would take him about 20 minutes or her about 40 minutes. She was limping a bit and said that her foot was hurting. It was also common ground that, on Sunday, 30 th July 2000, the appellant had rung Murphy to say that he could not get hold of the deceased. Murphy had telephoned the deceased, who had said that she had been out walking her dogs. He told her to stay in, so that the appellant could try again. That evening, in order to get the police to go to the deceased’s flat, the appellant telephoned the police and told them, falsely, that a woman had been assaulted there. Shortly before midnight Sergeant Riley, with other officers, therefore visited the deceased’s flat. They found it in a squalid state, but the deceased was asleep in her chair, with no sign of injuries. She appeared to have wet herself. She was indignant to be woken and to find her flat full of officers, but she came downstairs with them to check on her dogs. They made a report to social services. Another police officer called at the deceased’s flat at about 9.00 a.m. on Monday, 31 st July 2000, found her awake in her chair, and stayed half an hour talking with her and trying to persuade her to get medical attention or to leave the flat. At about 10.00 a.m. on the same day, according to a neighbour, Robert Shannon, the deceased was standing in her garden, shouting at her dogs, and, although he could only see her head, she looked normal as far as he could judge. 5. That Monday evening the appellant again telephoned Murphy to say that he still had not had any contact with the deceased. Later, he went round to Murphy’s flat. By then, according to Murphy, the appellant was “mad” with the deceased, because she had his book, and said that he would kill her. The Crown did not rely on that as a serious statement. The appellant was under court order not to go to an area which included the deceased’s flat, so for that reason, according to Murphy, he asked Murphy to go with him to the deceased’s flat, and they went in the early hours of the morning of Tuesday 1 st August. The appellant’s case was that they only went there because Murphy was owed money. Both had had something to drink. According to Murphy, after the appellant had asked where his book was, the deceased said that she did not know, and, on looking, could not find it. (It was found, after the deceased’s death, in her flat on a shelf, with the current payment still uncashed.) The appellant accused her of having people around, who had stolen the book, and, when she denied this, started hitting her with his fist and then on the back of the head about six times with the bottle by what he called “mainly taps”. She kept saying: “Leave me alone”, and Murphy kept on telling the appellant to stop, but he took no notice. The deceased was “in a bad way”. The appellant wanted her to come to Murphy’s house. Murphy said that she needed an ambulance, but the appellant said that, if she went to hospital, questions would be asked. The appellant’s account, which the jury must have rejected, was that it was Murphy who assaulted the deceased with the bottle, after trying unsuccessfully to pick up her purse. 6. Murphy’s evidence was that the appellant then dragged the deceased downstairs by the hair, and that, although she walked a bit, he also dragged and carried her over his shoulder to Murphy’s flat. She lost one of her trainers in the process. When the deceased said that she wanted to go back, Murphy said that she would end up getting him jailed. At Murphy’s flat, the appellant was still slapping her, while she attempted to fend him off, and asking her about his book. Murphy ran a bath, and the appellant dragged the deceased upstairs and put her into it with her clothes on. Murphy said that she looked in a bad way, with cuts around her eyes and on her forehead, which looked worse than cuts on the back of her head. Her clothes were put in the washing machine and she went to bed. 7. According to Murphy, on the morning of Tuesday, 1 st August 2000, the appellant bought alcohol and an energy bar which he gave to the deceased; and both Murphy and the appellant went to check on the deceased, Murphy heard her tell the appellant to leave her alone and the appellant came down and said that he had been slapping her because she would not get up. The appellant realised that he could not get a taxi to take her home in the state she was in. The benefit book was reported as lost, and a substitute giro obtained by the appellant. Murphy checked the deceased from time to time, and gave her water on one occasion, and heard her snoring at times other than those when he physically checked her. The medical evidence was that that could be as consistent with her going into a coma as with ordinary sleep. Murphy said that the deceased did not leave the flat, although the appellant’s evidence (though he had said nothing to this effect in interview) was that he took her to his own address and then returned with her; he said also that she ate some fish that day and seemed a lot better than she had in the early hours. 8. On Wednesday, 2 nd August, the deceased remained at Murphy’s flat, while Murphy and the appellant undertook various activities. According to Murphy, the deceased was “mumbling or muttering”; he was himself too frightened to contact a doctor, but he said that at one point the deceased also said that she did not want to go to hospital. Murphy told a lie to the deceased’s neighbour, Robert Shannon, about her having gone away. On Thursday, 3 rd August, the deceased remained at Murphy’s flat. Murphy went out at about 5.00 p.m., and on returning found her asleep and snoring. On a later check he found her dead, and, he said, contacted the appellant by telephone to tell him. The appellant admitted the telephone call, but denied that anything was said to the effect that the deceased was dead. On the contrary, he said that, when he went round to Murphy’s flat at about 10.00 p.m., she was still snoring, and it was only shortly before the call to the police at 3.50 a.m. on the Friday morning that Murphy had found her dead. But, when the ambulance arrived at 4.16 a.m., rigor mortis was already found to have set in. Both Murphy and the appellant said that they thought that the deceased had fallen downstairs – this being, as both later admitted, a lie. According to Murphy, the appellant had rehearsed him in this lie, between the time of actual death and the call to the police. The submission of no case to answer at the end of the Crown’s case 9. The critical issue arising at trial against this factual background was whether or not the physical injuries, which the jury must have been satisfied had been inflicted by the appellant on the deceased, were a substantial cause of her suffering fatal ketoacidosis when she did. On this issue, the Crown relied on evidence from Professor Whitwell, the pathologist who undertook a post mortem on 4 th August 2000, as well as from Professor Forrest. The defence called as experts Dr Al-Sarraj and Professor Tattersall, and Dr Cary who had, together with Professor Whitwell, undertaken a second post mortem on 15 th August 2000. All these experts were experienced and distinguished in their differing fields. Professor Whitwell was Professor of Forensic Pathology in the University of Sheffield, and as such a specialist in injuries from suspicious causes and neuropathology, including brain injuries. Professor Forrest was Professor of Forensic Toxology as well as being a medically qualified clinical chemist and, he said, entirely familiar with the diagnosis, treatment and natural history of diabetes (and, as it happened, a diabetic himself). Dr Al-Sarraj was a consultant neuropathologist in the Department of Neuropathology in King’s College, London. Professor Tattersall was until 1998 consultant physician and from 1990 to 1998 Professor of Clinical Diabetes in Nottingham University Hospital. He had some 30 years experience of diabetes, in which he was an acknowledged leading expert, and retired at the age of 55 in 1998 to devote himself to, in particular, its history. Dr Cary was Director of the Department of Forensic Medicine for Guy’s, King’s and St Thomas’s Hospitals. 10. At the time of Professor Whitwell’s post mortem on 4 th August 2000 the deceased weighed no more than 4½ stone. Professor Forrest in his oral evidence pointed out that there could have been some weight loss by dehydration in the process of dying of ketoacidosis and after death. She was extremely thin and wasted. She had the head injuries already mentioned, all caused at about the same time, some inferentially by some weapon, others consistent with a hand or fist blow. She had bruising and abrasions on her arms and hand consistent with self-defensive action and on her legs, front and back consistent with dragging or falling. The injuries that she had suffered would not themselves have caused her death. In a statement dated 4 th October 2000, summarising her post mortem findings, Professor Whitwell gave as the cause of death: “Head Injury associated with diabetic keto-acidosis”. Professor Whitwell’s area of specialism is head injuries, rather than untreated diabetes, and in her evidence she referred to Professor Forrest as the Crown’s expert on diabetes to explain the association between the deceased’s head injuries and ketoacidosis. 11. Professor Forrest had prepared two reports. The first dated 30 th October 2000 concentrated solely on the primary cause of death, the deceased’s ketoacidosis. The second, dated 17 th January 2001, was prepared after a joint conference between Professor Whitwell and Professor Forrest and counsel on 15 th January 2001. In it, Professor Forrest put forward formally for the first time what became the Crown’s detailed case involving the head injuries. He explained that it is in modern times exceptional to see diabetes sufferers as wasted as was the deceased. Her severe wasting was the result of insufficient production and administration of insulin, leading to her muscle and body fats being converted over a period into glucose and ketones in the blood stream. It was clear (from her medical records) that the deceased must have survived for a substantial period without administering any insulin. It was in Professor Forrest’s opinion “entirely likely that the additional metabolic stress produced by her head injury finally precipitated death”. The mechanism put forward was that the stress would release hormones, including adrenoline and cortisol, which would stimulate the production of additional glucose from muscle and liver and antagonise, or neutralise, the effects of the little insulin that her pancreas must have been capable of producing. 12. In his evidence, Professor Forrest elaborated on this, explaining that it was based on a “holistic” view of the medical and other analytical evidence. He said that, until she suffered her head injuries, the deceased was evidently “coping” with daily life, walking about, eating and drinking for herself and able to lead a relatively independent life, despite her severe wasting. She would at some point have succumbed to ketoacidosis, but he found it difficult to believe that she could go from functioning and being in a relatively stable state to being dead in two days. She must have had some muscle left in order to be able to function as she did. That and her liver could be sources of glucose under the influence of the hormones produced by the stress to which the injuries inflicted on her would have led. Professor Forrest suggested in the course of oral evidence that, in someone as wasted as the deceased, the gut could be a third source playing a proportionately greater role in providing additional protein stimulating her ketoacidosis. 13. Professor Forrest had a postgraduate degree in law, and accepted that he was aware of the standard of proof required in a criminal prosecution, which was, he said, that “You have got to be sure, sure, sure”. Asked about the conclusion in his second report, using the words “entirely likely”, and whether he was saying that it was entirely likely that his hypothesis was right, he answered: “I would – I would agree with you that I am not saying that it is – you can be absolutely sure that this is the mechanism of her death. What I am saying is that it is the most probable explanation of the mechanism of her death.” In re-examination, he mentioned, as other explanations that he had considered viral encephalitis, tuberculosis and the possibility of other infection, and it was at this point that he said that he found it “very difficult to believe” that someone could go from functioning to being dead in two days. The judge discouraged counsel from asking Professor Forrest directly whether it would on his findings be appropriate to draw a conclusion as to the necessary degree of sureness that his explanation was the right one, saying that that was a matter for the jury. As to tuberculosis, Professor Forrest went on to point out that this was bacterial, not viral in origin. As to viral encephalitis or other brain infections, Professor Forrest accepted that his opinion of the cause of death could be affected if Dr Al-Sarraj said that he had found recent infections in the brain tissue. But Professor Forrest made clear that viral encephalitis was a matter for a neuropathologist, although he knew enough to add that microglial nodules could result from head injuries as well as viral encephalitis. Professor Whitwell in her evidence said that she had noticed the odd possible microglial nodule, but had not interpreted them as viral encephalitis. They were in her view too mild to be acute and could also have been there for months or years. 14. The judge in rejecting the defence submission that the Crown had failed to adduce any or any sufficient evidence of causation fit to go before a jury observed, correctly, that there was at that stage (Dr Al-Sarraj being a defence expert) no evidence supporting any case of viral encephalitis. The choice was therefore between the natural progression of ketoacidosis and ketoacidosis precipiatated by stress consequent on the physical injuries inflicted on the deceased. He said that the jury if it accepted the evidence of Murphy could properly conclude that there was a marked difference between the deceased’s state before and after her injuries, and that was consistent with Professor Forrest’s explanation and “could be regarded as a remarkable coincidence if the injuries played no part in the timing of her death”. As to Professor Forrest’s statements regarding the degree of certainty with which he held his views, the judge said: “Scientific experts do not necessarily phrase their opinions in the language of being sure. It does not follow that a case relying on that opinion cannot be left to the jury …”. A jury properly directed could, in the judge’s view, properly convict on the factual and expert evidence before them. 15. We agree with the judge here. First, the issue of causation was one for the jury to decide. The judge summed up accordingly in terms, to which no criticism is attached. It is true that, in this case, the issue of causation was dominated by the expert evidence. Nonetheless, the jury had not merely to evaluate the views of Professors Forrest and Whitwell on matters within their differing expertise, but to do so also against the background of certain matters of basic fact, the strength of which the jury alone could properly decide. In particular, although Professor Forrest said that he was taking a “holistic” view of the situation, in other words looking at both the factual and the medical aspects, the jury heard extensive evidence about and was entitled and bound to form its own conclusions regarding the extent of any change in the deceased’s functioning after the injuries she sustained. Second, we do not regard the terms in which Professor Forrest expressed his views as being inconsistent with a level of sureness about causation justifying a conviction. The level required is not “absolute” sureness, and Professor Forrest’s phrases “entirely likely” and “most probable” are not legal terms of art and were counterbalanced by a statement that it was “very difficult” to believe in a theory that natural development of ketoacidosis was the cause. We therefore consider that the judge was right to refuse to accede to the submission that there was no case to answer made at the end of the Crown’s case. The submission that the case should have been withdrawn from the jury at the end of all the evidence 16. We turn to the second ground of appeal, which is that the judge should have acceded to the defence submission that the case be withdrawn from the jury after all the evidence had been heard. The basis for this submission was that expert evidence called by the defence demonstrated that there was no case fit to be left to a jury, or upon which a jury could safely convict. The Crown submits that this ground of appeal stands or falls with the first ground. We do not agree with that submission. There are cases in which it becomes clear during the defence evidence that the judge should prevent the matter proceeding further, and where, if it is allowed to proceed further, a verdict adverse to a defendant must be regarded as unsafe. 17. Here, the defence experts took very different views from those called by the Crown. The differences related to two particularly important areas: (i) the mechanism by which Professor Forrest suggested that the injuries led to the onset of ketoacidosis and (ii) the possibility that viral encephalitis caused the onset of ketoacidosis. As to (i), Professor Tattersall expressed absolute certainty that the deceased’s liver could not serve as a relevant source of glucose under stress. He had also never heard of a suggestion previously that the gut might do so, and thought that “if such a process does occur, and it may do, it would have to be a very, very minor process”. However, he accepted that the process by which muscle would be converted to glucose under stress would still have been operative, but he considered that the deceased would only have had a very low muscle bulk left. In this situation he thought that the process would have been “severely restricted”, adding that no scientific evidence could be produced on the point, because, so far as he was aware, no research had been done on it. 18. Professor Tattersall was questioned about the effects of stress in increasing the level of serum cortisol in blood. He agreed that pyschological stress could be expected to give an increase of 200 namomils per litre. The stress involved in mental arithmetic and playing a child’s electronic game would produce at least the same increase. A severe heart infarction or attack with very severe pain would, on the other hand, give an increase of some 1000 namomils per litre. However, although he said he did not know what level of increase might result from being hit over the head with a bottle, because no such experiment had (for obvious reasons) been undertaken, he went on later to say that he would have thought that being hit over the head with a bottle was rather low down in the scale when compared with a heart attack, and that although “it may seem extraordinary” and it was “just an opinion” he thought that it would be in the same league as doing mental arithmetic. Towards the end of his cross-examination, Professor Tattersall said that he would be “very surprised” if the deceased could walk for 45 minutes on the morning of Saturday, 29 th July. He did not suggest that the injuries she suffered in the early hours of Tuesday, 1 st August 2000 could not have affected her ketoacidosis, but, if they did, “only to a very minor degree”. Asked more specifically whether an attack such as then occurred would be likely to precipate the onset of or exacerbate ketoacidosis, he said: “Well, I mean clearly since I say that the alleged assault didn’t have a nil effect, then once, having said that, I must agree that if it had some effect, that that might hasten death, but what I’m saying is that this was --- if there was any effect, in my opinion, this was only a matter of hours, not anything more. That’s what I feel.” In re-examination, he reiterated that he could not be sure that there was an effect. 19. The jury thus heard and had to evaluate two very different opinions from the experts on each side. If the jury was persuaded by Professor Forrest, then the position remained as it was at the close of the Crown case. We have not heard either witness. We cannot put ourselves in the jury’s position in evaluating their oral testimony. There are however, even on the transcript, matters which could in our view justify a preference on the part of the jury for the views of Professor Forrest. First, Professor Tattersall’s theory of natural decline, without the infliction of the injuries playing any significant part, was associated with scepticism about the possibility of the deceased walking for 45 minutes on the morning of Saturday, 29 th July. But it was the appellant’s own evidence that she had undertaken such a walk. Further, there was evidence indicating that she had taken her dogs out for a walk again on the next day, Sunday, 30 th July, that she had walked downstairs with the police officer shortly before midnight that evening, and that she had been seen in her garden shouting at her dogs in the morning of Monday, 31 st July. The jury could very well have thought that Professor Tattersall’s theory was significantly undermined, if it accepted the evidence regarding these activities. Second, Professor Tattersall’s evidence equating the stress induced by the injuries suffered by the deceased (or at least “being hit on the head with a bottle”) with the stress induced by mental arithmetic may have struck them as very unlikely to be correct, even though no specific study had been undertaken in this area. Professor Tattersall himself conceded that “it may seem extraordinary” but did not offer any reasoning for his opinion drawing such an equation. In these circumstances, we do not consider that the judge was under any obligation to withdraw the case from the jury on the basis on Professor Tattersall’s evidence, or that it renders the jury’s verdict unsafe. 20. We turn to the evidence given by Dr Al-Sarraj, who detected the presence of viral encephalitis. Dr Al-Sarraj suggested in his report that this viral encephalitis “could have caused neurological manifestations including epileptic fits and possible responsible [sic] for the death”. In his oral evidence, he put it forward as a possible cause, by itself, of the death. However, he accepted, as a matter of general medical knowledge and not as a matter within his particular expertise, that the injuries suffered by the deceased could cause stress which could cause ketoacidosis. On that basis, he was also prepared to accept the injuries as a cause of the death. Counsel for the appellant sought to discount this part of his evidence, as outside his real expertise. As to the evidence which Dr Al-Sarraj gave within his area of specialism, we have pointed out that Professor Whitwell profoundly disagreed with Dr Al-Sarraj. In her view there was nothing to indicate viral encephalitis of such acuteness as to be of any relevance, and such traces as there were could have been of considerable age. Further, Dr Al-Sarrah himself accepted that the viral encephalitis which he detected, and which was in his view “days more likely than weeks” old, might itself result from the ketoacidosis, rather than precede it. 21. Here again the jury had to consider conflicting expert evidence. Professor Whitwell, who undertook the original post mortem, assigned no role to viral encephalitis. Professor Tattersal did not lend any support to Dr Al-Sarraj’s thesis. Dr Al-Sarraj who during the second post mortem identified viral encephalitis, believed it to be recent and a self-sufficient explanation of the death, but he agreed, in response to a jury question, that the infection constituting viral encephalitis which he detected could itself have arisen from the deceased’s ketoacidosis. The jury, having heard Professor Whitwell and Dr Al-Sarraj, was entitled to choose between their views as to the reliability and significance of such traces of infection as could be observed in the various areas of the deceased’s brain. The jury may have thought that Dr Al-Sarraj’s evidence that viral encephalitis could here be a self-sufficient cause of death postulated a somewhat remarkable coincidence of injuries and ketoacidosis. So far as his evidence was relied upon to show that encephalitis may have stimulated the onset of ketoacidosis, the deceased’s brain injuries must then on the defence case have been an irrelevant coincidence. The jury was entitled to note however, that Dr Al-Sarraj himself was prepared, albeit from a non-specialist stance, to accept them as a cause of death. 22. It is pointed out on behalf of the appellant that Dr Cary, having listed the various possible ways in which the deceased might have come to die as a result of ketoacidosis, found himself unable to choose between the various theses as to causation. That, however, does not mean that the jury was not entitled to do so, having heard all the expert and factual evidence. We do not in all these circumstances consider that the judge can be criticised for refusing to withdraw the case from the jury after the conclusion of all the evidence. General unsafety 23. It is also pointed out on behalf of the appellant that the jury took the comparatively short period of two and a half hours to reach its decision. However, it had shown, by its questions during Dr Al-Sarraj’s evidence as to whether the traces of viral infection, which Dr Al-Sarraj identified as viral encephalitis might have resulted after the injuries and because the ketoacidosis made the brain vulnerable, that it was following the issues closely. The jury faced choices between differing expert views. But they were not choices which were bound to involve it in protracted debate. We cannot know precisely how the jury approached its task. But it would be wrong to approach this appeal on the basis that the jury cannot have given the matter proper consideration, or that it may have been influenced by illegitimate or illogical considerations. Conclusions 24. In our view the judge’s decisions to allow the case to go before the jury, reached both at the end of the Crown case and at the end of all the evidence, were correct. The jury’s verdict is not one which we consider to have been unsafe either because of such decisions or for any other reason. This appeal is therefore dismissed.

2003_01_29-8.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2003/28/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2003/28

91bee6792a8c46373234b70c4b9419eb4d53aaf69cd2cd31b0f4e35c9d00e03e

[2015] EWCA Crim 1277

EWCA_Crim_1277

2015-07-16

crown_court

Case No: 2013/04149/C5 Neutral Citation Number: [2015] EWCA Crim 1277 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT HARROW HH Judge Arran Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/07/2015 Before: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE SWEENEY and MR JUSTICE WARBY - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Mohammed Abdullah Yasain Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Case No: 2013/04149/C5 Neutral Citation Number: [2015] EWCA Crim 1277 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT HARROW HH Judge Arran Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/07/2015 Before: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE SWEENEY and MR JUSTICE WARBY - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Mohammed Abdullah Yasain Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Michael Turner QC and Miss J Vallejo for the Appellant J McGuinness QC for the Respondent Hearing date: 14 May 2015 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Thomas of Cwmgiedd, CJ : 1. The issue in this appeal relates to the powers of the Court of Appeal Criminal Division to re-open an appeal to correct an error which is said to have caused real injustice in that the error led to the quashing of a sentence lawfully imposed in the Crown Court. The circumstances were as follows. The facts 2. Between 1 and 9 July 2013 the appellant was tried in the Crown Court at Harrow before HHJ Arran and a jury on an indictment containing five counts against him: theft (count 1), kidnap (count 2), rape of a male aged 16 years or over (count 3), robbery (count 4) and assault occasioning actual bodily harm (count 6). A co-defendant, Mustafa Hassan, was jointly charged on the same indictment with the same theft, kidnap, robbery and assault, and a separate offence of rape (count 5). 3. The underlying facts of the offences are set out at paragraphs 5 to 9 of the judgment of this court dated 12 June 2014, [2014] EWCA Crim 1416 . 4. The appellant and Hassan were both acquitted of theft on the judge’s direction, following a submission of no case to answer. On 9 July 2013 the jury returned verdicts of guilty against the appellant and his co-defendant on all the remaining charges. 5. On 12 August 2013 the appellant was sentenced by HH Judge Arran to 6 years detention for rape, 4 years concurrent for the robbery, 18 months concurrent for the assault, and 18 months consecutive for the kidnap – a total of 7½ years. Hassan was sentenced to 8 years imprisonment for rape and, for the other offences, terms of imprisonment of the same duration, similarly structured, to the terms of detention imposed on the appellant – a total sentence of 9½ years. 6. The trial record sheet printed from CREST, the computer programme in which the records of the Crown Court are kept, duly recorded all these convictions and sentences. 7. The appellant sought permission to appeal against conviction and sentence. The single judge, Walker J, concluded that none of the grounds advanced was arguable and refused permission on those grounds. In reviewing the papers, however, he noted that according to the transcript of proceedings no verdict in respect of the appellant had been taken from the jury on count 2, the charge of kidnap, although one had been taken in respect of his co-defendant Hassan. 8. The transcript indicated that the taking of verdicts had been attended by an apparent degree of confusion. It appears that the court clerk had mislaid a document and that the jury foreman did not have with him a note of the jury’s decisions. The transcript recorded the judge as asking the foreman to go through the counts one by one. When the clerk asked for the verdict on count 2 (the count of kidnapping), a verdict of guilty was recorded as being given in respect of the co-defendant, but there was no record of any verdict being asked for or given in respect of the appellant on that count. Thus, it appeared conceivable that there might possibly have been an error. Walker J gave permission to appeal on that ground, and only that ground. 9. The appellant did not seek to renew his application for permission to appeal on any of the grounds that had been refused by Walker J. Thus, the hearing that took place on 12 June 2014 in this court was concerned solely with the ground of appeal identified by the single judge. Neither the prosecution nor anyone else had taken steps to see if there had in fact been an error; everyone relied on the transcript as accurate. 10. In the judgment referred to above this court accepted that there had been an error in the taking of verdicts such that there had been no conviction of the appellant on count 2. In the light of the argument before us, it is necessary to quote in full the paragraphs setting out the decision of the court. “21. In our judgment, therefore, as is accepted by [counsel] for the Crown, the simple position is that [the appellant] has not been convicted of that offence, and technically there is no appeal to be dealt with in respect of it at all. All that requires to be done in that respect is for the Crown Court record to be amended accordingly, to delete the conviction of the appellant on that count, and we will so direct. Obviously the court record should not indicate either that the appellant has been acquitted on that count. 22. We turn to the appeal against sentence. Again, the learned judge refused leave to appeal on the grounds advanced on the appellant's behalf by counsel. The application for permission to appeal on those grounds has not been renewed. The single judge indicated that he gave leave to appeal against sentence simply because of the doubt that arose as to the fact of the conviction on count 2. 23. On that ground it is clear from what we have already said that there has been no conviction of the appellant on count 2 on which he could be sentenced. The sentence on that count must therefore be quashed.” 11. The court declined to adopt the course proposed by the prosecution, of revisiting the sentence for rape and increasing it by 18 months, ruling that it was undesirable to take that course on short notice and it would in any event be grossly unfair in what the court had found were the circumstances of the case. 12. The order made by the court was, so far as material, as follows: “[THE COURT OF APPEAL CRIMINAL DIVISION on 12 June 2014” CONSIDERED the appeal against conviction and sentence AND HAS Directed that the conviction on count 2 be deleted from the court record, but the court record should not show that the appellant was acquitted of count 2; Directed that the appellant not having been convicted on count 2, the sentence thereon be quashed; Quashed the Victim Surcharge Order imposed in the court below; Substituted therefore a Victim Surcharge Order in the sum of £20.” 13. As a consequence the record of the Crown Court at Harrow was amended, but not in the manner directed by the order of this court. The record of the conviction held on CREST on count 2 was not amended. The record simply recorded on the last page: “Appeal against conviction and sentence allowed in part 12/6/14. Total sentence now 6 years in a Youth Offenders Institution. Victim surcharge £20, Comply with Sexual Offences Act 2003 indefinitely” 14. When the transcript of the judgment of the court was sent to the judge, he made inquiries of the transcribers as to their record, as he thought that the verdict had been taken. Those inquiries revealed that Margaret Wort & Co, the transcribers of the proceedings on 9 July 2013, had made a very serious error. They had omitted to record the guilty verdict which had been taken on count 2 against the appellant. We have a corrected transcript which shows that the process was carried out impeccably under the direction of the experienced judge. This is not in dispute. 15. It follows that the grant of permission to appeal and the judgment of this court on 12 June 2014 were both founded on a mistake as to what had happened in the Crown Court. The question arises of what, if anything, this court has jurisdiction or power to do and, if it has jurisdiction or power, whether it should be exercised. The legal framework: the Criminal Appeal Act 1968 and the authorities of the Court of Appeal Criminal Division (a) The general powers of the Court of Appeal 16. The jurisdiction and powers of this court, like those of the Civil Division, are entirely statutory. S. 1 of the Criminal Appeal Act 1968 provides that, subject to certain immaterial exceptions, and the requirement of leave, "a person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction." S.2 provides: “(1) Subject to the provisions of this Act, the Court of Appeal— (a) shall allow an appeal against conviction if they think that the conviction is unsafe; and (b) shall dismiss such an appeal in any other case. (2) In the case of an appeal against conviction the Court shall, if they allow the appeal, quash the conviction.” 17. S.9 of the 1968 Act is headed “Appeal against sentence following conviction on indictment” and provides that: “A person who has been convicted of an offence on indictment may appeal to the Court of Appeal against any sentence (not being a sentence fixed by law) passed on him for the offence, whether passed on his conviction or in subsequent proceedings”. 18. Section 11(3) of the Act provides:- “(3) 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.” (b) The power to revise an order until it is recorded 19. It is well established that this court has, like any other court, an implicit power to revise any order pronounced before it is recorded as an order of the court in the record of the relevant court. If it has recorded the order, then the power to revise the order is strictly limited; in the Civil Division, the extent of the court’s jurisdiction and powers were reviewed in Taylor v Lawrence [2003] QB 528 , as we set out at paragraphs 28 and following below. The first question to determine therefore is whether the order made by this court has been properly recorded in the relevant record. 20. The question as to what constituted the relevant record of this court was first examined in R v Cross (Patrick) [1973] QB 937, 940-941. After a hearing in which this court allowed an appeal against sentence, the decision was recorded in a note of the Registrar. Later in the day the court realised that the appellant had not been frank; it set aside its judgment and ordered a hearing before a differently constituted court. That court first had to determine whether the order that had been pronounced orally and recorded in the note of the Registrar had been recorded in the “record of the court”. The court noted that at the Assizes and at Quarter Sessions (the then courts of first instance for serious crime) the court had always had the power to amend a sentence until the record was signed by the judge at the end of the Assizes or Quarter Sessions. Once signed, the court lost its power. As the Court of Appeal (Criminal Division) was not required to keep a formal record, the court had to determine when the order of the Court of Appeal became final for this purpose. The rules of procedure for this court were contained then in the Criminal Appeal Rules. Under Rule 17, the Registrar had to serve on the officer of the Crown Court a record of the order of the Court of Appeal. The Crown Court Manual (which the court stated was published under the order of the Lord Chancellor) contained a provision as to what was to be done on receipt of the order of the Court of Appeal in the following terms: “on return of the case papers to the Crown Court, with the notification of the result of the appeal … the decision of the Court of Appeal should be entered on the court record and the notice of the result of the appeal attached.” It followed, in this court’s opinion, therefore that the time at which the record was formally made was when the Crown Court officer carried out the duty of amending the record of the Crown Court in accordance with the order of the Court of Appeal. As the Crown Court had not amended its record, the Court of Appeal had jurisdiction to amend its decision allowing the appeal against sentence. 21. In R v Blackwood (Romaine) [2012] EWCA Crim 390 , [2012] 2 Cr App R 1 , the decision in Cross was followed in relation to the failure to ask for a retrial before the order of the Court of Appeal had been sent to the Crown Court and CREST updated. This court at [16]-[17] held that, as the Registrar had sent the order allowing the appeal to the Crown Court with a request that the records held on CREST be updated to reflect the allowing of the appeal and the quashing of the conviction and the record on CREST had been updated, it was too late to order a retrial. The formal record had recorded an acquittal with no provision for a retrial. 22. Thus the general rule is that where an appeal has been heard and the resulting decision or order has not only been pronounced but also recorded in the relevant records (presently the records of the Crown Court on CREST), there is no such jurisdiction. The order is final: Cross, at page 940C, followed in Blackwood at paragraphs 14 and 17. The general position is that the court is at this point functus officio and will not re-hear an appeal, as it has no general jurisdiction to do so: Cross at page 940; R v Pedley [2009] EWCA Crim 840 , [2009] 1 WLR 2517 at paragraphs 24-28, and Blackwood at paragraph 16. (c) The power to revise an order when it has been recorded 23. There are two exceptions to this general rule to the effect that the court does have power to re-hear an appeal if (i) on a proper analysis, the previous order is a nullity; or (ii) a defect in the procedure may have led to some real injustice. There can be no doubt about the first exception, but the basis of and scope for the second exception needs more detailed consideration. (d) The power to revise where the order is a nullity 24. If a hearing has taken place which in effect is a nullity, the court cannot be functus officio . There can therefore be no logical difficulty in there being a further hearing. The court has not performed its function, as the appellate proceedings have not in law taken place. The fact that the court has pronounced an order and that a record of the court’s order has been made by the proper officer in records of the Crown Court, cannot alter the position. 25. An example of an order which is a nullity is provided by R v Majewski (1976) 62 Cr App R 5. In Majewski the appellant sought to challenge his conviction on the grounds that self-induced intoxication could be a defence to a charge of assault, and that the judge had misdirected the jury on the issue. The appeal was referred to the court by a Deputy Registrar for summary dismissal pursuant to s.20 of the Criminal Appeal Act 1968 on the basis that it showed no substantial ground of appeal. The court proceeded to dismiss the appeal on that basis. The court later concluded that the referral had been procedurally invalid and that the appeal did raise a point of substance, so that on a proper analysis the appeal had not in law been heard: see the judgment of the court given by Lawton LJ at pages 8-9. The court proceeded to re-hear the appeal. This approach was not criticised when Majewski reached the House of Lords: see [1977] AC 443 . (e) The power to revise an order where there has been real injustice 26. The question as to whether there is a further exception by way of a power to revise where there has been a defect in procedure which may have led to a real injustice has been considered in three cases to which it is necessary to refer: i) R v Daniel (1977) 64 Cr App R 50, [1977] QB 364. The applicant renewed his application for leave to appeal, which had been refused by the single judge. He instructed solicitors who wrote to the court to advise that they intended to instruct Counsel on the renewed application. Due to an administrative error the renewed application was listed, heard and dismissed on 14 June 1976 without notice to the applicant’s lawyers. The order was recorded by the Crown Court. When an application was made to re-hear the matter, the court decided on 14 September 1976 that it was bound by Cross to dismiss the application on the ground that it was functus officio . At the court’s instigation the case was then referred back on 17 September 1976 to the court by the Secretary of State, and the appeal was heard. Although the appeal was dismissed on the merits, the court considered in detail the question of jurisdiction. After referring to Majewski, Lawton LJ concluded at pages 369G-H, that: “It follows, in our judgment, that [ Cross ] did not apply when what has happened is a nullity.” It was conceded, however, that what had occurred in Daniel could not be regarded as a nullity. Lawton LJ then asked whether the court had jurisdiction in the circumstances of a case where the applicant had been deprived of his right to be represented by counsel. He answered the question at 369H-370A:- “This court clearly has jurisdiction within the ambit of the Criminal Appeal Act 1968 and the Rules of 1968 to see that no injustice is done to any defendant in the course of any application or appeal. If in any particular case, because of a failure of the court to follow the rules or the well established practice, there is a likelihood that injustice may have been done, then it seems to us right, despite the generality of what was said in R v. Cross that a case should be relisted for hearing. It is pertinent to point out that in R v. Cross the court had heard arguments by counsel on the merits before any question arose about rehearing the appeal, for such it was. The kind of problem which has arisen in this case was never considered. It follows that this court acted per incuriam in adjudging, on September 14, 1976, that it had no jurisdiction to consider the defendant's application. The court had such jurisdiction. Before leaving this subject the court would stress that save in cases in which what has happened is a nullity, the jurisdiction to relist depends on the likelihood of an injustice having been done. That is for the court itself to decide. There may not be a likelihood of injustice if, from the written grounds of appeal and any supporting documents, it is clear beyond argument that the application cannot succeed.” ii) R v Pinfold (1988) 87 Cr.App.R 15, [1988] QB 462 . The applicant had been convicted in November 1980 of murder of a man called Eve on the basis of evidence from a prosecution witness, Childs, that the applicant had procured the murder. Leave to appeal was granted but the appeal was dismissed in November 1981. The applicant then made a second application for leave to appeal, relying on fresh evidence from Childs to the effect that his evidence at the trial had been untrue. Lord Lane CJ identified the question posed as whether the court had power to hear an appeal by the applicant when his first appeal had been dismissed. He concluded at p17 that: “So there is nothing there on the face of it which says in terms that one appeal is all that an appellant is allowed. But, in the view of this court, one must read those provisions against the background of the fact that it is in the interests of the public in general that there should be a limit or a finality to legal proceedings, sometimes put in a Latin maxim, but that is what it means in English. We have been unable to discover, nor have counsel been able to discover any situation in which a right of appeal couched in similar terms to that, has been construed as a right to pursue more than one appeal in one case. So far as the Criminal Appeal Act 1968 is concerned, there are perhaps two possible exceptions or apparent exceptions, because that is what they are, to that rule: first of all, where the decision on the original appeal, if I may call it that, can be regarded as a nullity. This is more commonly applied where there has been an application to treat a notice of abandonment as a nullity. The second occasion, which may be simply an example of the first, is where, owing to some defect in the procedure the appellant has on the first appeal being dismissed suffered an injustice, where, for example, he has not been notified of the hearing of the appeal or counsel has been unable to attend, circumstances such as that.” iii) R v Pedley [2009] 1 WLR 2517 . The appellant appealed in 2007 against a sentence of imprisonment for public protection, challenging both the finding of dangerousness and the length of the notional determinate term. He failed on the first point but succeeded on the second. Two years later he sought to have his appeal re-listed to re-open the first point. The application was dismissed. Hughes LJ summarised the position in this way at [27]: “There exists a very limited power in this court to rehear an apparently concluded appeal. It is a power to relist where by administrative error or otherwise the appellant has been deprived of a proper hearing, so that the apparently concluded appeal can properly be described as a nullity, including cases where the court failed to follow the rules or well established procedure: see R v Pinfold ; R v Grantham ; R v Berry and R v Rowan . An example of the second situation is R v Daniel where the court dealt with a renewed application without being aware that counsel was instructed to appear and thus without hearing him.” 27. In our view none of these cases fully explains the basis of the second exception or its scope. It is therefore desirable to consider the question as a matter of general principle. The legal framework applicable to the Court of Appeal Civil Division 28. In Taylor v Lawrence [2002] EWCA Civ 90 , [2003] QB 528 , the Court of Appeal Civil Division considered the scope of its power to re-open a concluded appeal. As we shall explain, this jurisprudence of the Civil Division is relevant to the powers of the Court of Appeal Criminal Division. 29. The defendants in Taylor v Lawrence appealed on the grounds of apparent bias on the part of the judge below. The appeal was dismissed. The defendants later discovered fresh facts relating to the apparent bias that had previously been alleged and sought to re-open the appeal. The court concluded that it has an implicit power to re-open a concluded appeal in exceptional circumstances, where it was necessary to achieve its two principal objectives of correcting wrong decisions and ensuring public confidence in the administration of justice. 30. The Civil Division has, like the Criminal Division, only the powers conferred on it by ss.15 and following of the Superior Courts Act 1981 and other statutes. Neither these provisions nor any other provision spell out any power of the civil division to re-hear an appeal. As Lord Woolf MR said at [16]: “Accordingly, it is accepted that the Court of Appeal does not have any inherent jurisdiction in respect of appeals from the county court but only that which is given by statute. However, the use of the word "inherent" in this context means no more than that the Court of Appeal's jurisdiction depends on statute and it has no originating jurisdiction. The position is very much the same in relation to other appeals to the Court of Appeal. Its jurisdiction is to be determined solely by reference to the relevant statutory provisions.” 31. The court, however, held it had a power to re-open appeals as that power was implicit in the powers that were expressly conferred on the court. Lord Woolf CJ explained the court’s conclusions as follows: “26 …. this court was established with two principal objectives. The first is a private objective of correcting wrong decisions so as to ensure justice between the litigants involved. The second is a public objective, to ensure public confidence in the administration of justice not only by remedying wrong decisions but also by clarifying and developing the law and setting precedents: see Civil Procedure vol 1, Autumn 2001 , para 52.0.3. ” … “50 If, as we believe it is necessary to do, we go back to first principles, we start with the fact which is uncontroversial, that the Court of Appeal was established with a broad jurisdiction to hear appeals. Equally it was not established to exercise an originating as opposed to an appellate jurisdiction. It is therefore appropriate to state that in that sense it has no inherent jurisdiction. It is, however, wrong to say that it has no implicit or implied jurisdiction arising out of the fact that it is an appellate court. As an appellate court it has the implicit powers to do that which is necessary to achieve the dual objectives of an appellate court to which we have referred already (see paragraph 26 above). ” 32. Lord Woolf went on to cite a passage from Lord Diplock’s speech in a leading case on the former power of the court to dismiss actions for want of prosecution, Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corpn Ltd [1981] AC 909 , at page 977: "The power to dismiss a pending action for want of prosecution in cases where to allow the action to continue would involve a substantial risk that justice could not be done is thus properly described as an 'inherent power' the exercise of which is within the 'inherent jurisdiction' of the High Court. It would I think be conducive to legal clarity if the use of these two expressions were confined to the doing by the court of acts which it needs must have power to do in order to maintain its character as a court of justice." 33. Lord Woolf concluded at [53] that the final words of Lord Diplock “express the situation here under consideration exactly”, adding a reference to the speech of Lord Morris of Borth-y-Gest in a leading case on double jeopardy, Connelly v Director of Public Prosecutions [1964] AC 1254 , 1301: "There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process." 34. At [54] Lord Woolf characterised the jurisdiction, describing it as “The residual jurisdiction which we are satisfied is vested in a court of appeal to avoid real injustice in exceptional circumstances”. 35. The procedure for making a Taylor v Lawrence application is now embodied in the Civil Procedure Rules: CPR 52.17 which provide, in part,: “(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.” Do the principles established in Taylor v Lawrence apply to the powers of the Criminal Division? 36. From a review of the cases which has been conducted, it appears that this court has never expressly considered the question of whether it has a similar general implicit power as the Court of Appeal Civil Division determined in Taylor v Lawrence that it had. The nearest this court has come to considering the question was when this court had to decide an issue as to the enforceability of the Video Recordings Act 1984. The issue arose both in a criminal appeal and in an appeal by way of case stated. A court presided over by Lord Judge CJ sat as the Court of Appeal Criminal Division to determine the criminal appeal in R v Budimir and Rainbird and as a Divisional Court to determine the appeal by way of case stated in Interfact v Liverpool City Council. As appears from the single judgment of the court ( [2011] QB 744 , [2010] 2 Cr App R 29 ), it was necessary to consider in both cases whether the appeal should be heard. That was because a Divisional Court had dismissed the appeal of Interfact in 2005 and Interfact were seeking in 2010 to re-open it; and because Budimir and Rainbird had pleaded guilty in 2008 and were seeking over 20 months out of time to appeal against conviction. Each had been motivated to appeal as a result of an announcement made by Government as to the compatibility of the Act with EU law. The application made by Interfact was made under CPR 52.17 and the principles in Taylor v Lawrence ; the application by Budimir and Rainbird was based on the principle established by numerous cases that a change in the law may provide a basis for an appeal out of time, if substantial injustice has been caused. The court decided that: “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 and Seray-Wurie Hackney London Borough Council [2003] 1 WLR 257 ) and the Court of Appeal Criminal Division.” The court was wholly unpersuaded that either case involved any real or substantial injustice. 37. We must therefore address the issue as a matter of principle. In Taylor v Lawrence, as we have set out, the court based its decision on the implied or implicit power to do that which is necessary to achieve the objectives of an appellate court, in circumstances where no express power was conferred on the court and its powers were exclusively based on statute. 38. The way in which the Civil Division approached its power to re-open an appeal is grounded in clear principle. We can see no basis for any distinction between the Civil Division and the Criminal Division as to the principles applicable to the jurisdiction under the implicit powers of an appellate court. The appellate jurisdiction of each is statutory. There is no reason why both do not have the same implicit jurisdiction and the same general basis for that jurisdiction. 39. However it is necessary, as Lord Woolf explained at paragraph 54 of the judgment in Taylor v Lawrence , to distinguish between the implied or implicit jurisdiction of the court and the way in which that jurisdiction is exercised. “It is very easy to confuse questions as to what is the jurisdiction of a court and how that jurisdiction should be exercised. The residual jurisdiction which we are satisfied is vested in a court of appeal to avoid real injustice in exceptional circumstances is linked to a discretion which enables the court to confine the use of that jurisdiction to the cases in which it is appropriate for it to be exercised. There is a tension between a court having a residual jurisdiction of the type to which we are here referring and the need to have finality in litigation. The ability to reopen proceedings after the ordinary appeal process has been concluded can also create injustice. There therefore needs to be a procedure which will ensure that proceedings will only be reopened when there is a real requirement for this to happen.” 40. The fact that both have the same implicit jurisdiction does not mean that the jurisdiction has necessarily to be exercised in the same way by the Criminal Division as it would be by the Civil Division. For example, in a criminal case there will often be three interests that have to be considered – that of the State, that of the defendant and that of the victim or alleged victim of the crime, even though the victim is not a party to the proceedings under the common law approach: see R v B [2003] 2 Cr App R 197 at paragraph 27; R v Killick [2012] 1 Cr App R 10 , [2011] EWCA Crim 1608 at paragraph 48. There is the strongest public interest in finality. The jurisdiction is probably confined to procedural errors, particularly as there are alternative remedies for fresh evidence cases through the Criminal Cases Review Commission. 41. Although, as we will explain at paragraph 46 below, the present appeal could have been determined by applying the underlying principles set out in the case law of the Criminal Division to which we have referred, as it could be said there had been a defect in the procedure of the court, it is far better to determine the matter on the basis that this court’s jurisdiction is based on the same implicit power as the Civil Division determined it had in Taylor v Lawrence. 42. However, although we can decide this appeal in this way and make it clear that this court has an implicit jurisdiction on the same basis as the Civil Division, we consider that it would be appropriate if the Criminal Procedure Rules Committee can formulate a rule similar to that set out in CPR 52.17 but which delineates the factors and circumstances applicable to the Criminal Division. It is in a position to consult widely and to consider a greater range of views than we heard on this appeal. Furthermore it is necessary to formulate principles that would apply either to all types of criminal appeal whether by way of appeal to this court, or by way of case stated or in an extradition appeal or with suitable modifications: see for example the decision of the Divisional Court to re-open an extradition appeal (subject to the specific provisions of the Extradition Act 2003): Republic of South Africa v Dewani [2014] WLR 3220 , [2014] 3 All ER 266 , [2014] EWHC 153 (Admin) at paragraph 17; McIntyre v United States [2015] 2 All ER 415 , [2014] EWHC 1886 (Admin) , [2015] WLR 507 at paragraphs 8-12. 43. It would also be desirable for rules to be made which make it clear when an order, whether it be that of a trial court or an appellate court, is entered onto the record. As regards the recording of the orders of this court, we have little doubt that at the time of the decision in R v Cross in 1973, the Lord Chancellor had the power to make directions set out in the Crown Court Manual. However, we doubt that this power has survived the Constitutional Reform Act 2005, despite the reference to it in R v Blackwood. In any event the way in which the order of this court was recorded in the present case as set out in paragraph 13 above was highly unsatisfactory. 44. As significant change is being made to the way in which information is recorded and transmitted between those involved or interested in criminal cases and the courts, it would be desirable that clear rules be made consistent with the need to ensure that the criminal records in respect of convictions are accurately stated in records of the court which are transmitted to and used by other parts of the Executive such as the police and prison service. The determination of the present appeal 45. In the present case, although the recording of the order of this court in CREST was highly unsatisfactory, it was so recorded. 46. If the established case law is applied, it would first be necessary to consider whether the hearing of the appeal on 12 June 2014 was a nullity. The appellant and the prosecution were represented and the court arrived at a decision that was open to it on the material before it. An order was made by this court. The fact that there was a serious error in the material before it and the court acted on that error does not make the order a nullity. Next it would be necessary to consider the jurisdiction under the line of cases beginning with R v Daniel. We have little doubt that a real injustice would result if the order could not be re-opened and corrected. 47. However, in our judgment the better basis on which to make our decision to re-open the decision made on 12 June 2014 and the order giving effect to it is the jurisdiction based on the principles in Taylor v Lawrence as applied to this court. We therefore make our decision on that basis. 48. The appellant did not dispute the position that the order should be corrected to the extent that it stated that there had been no conviction on the kidnapping count. It was accepted that it should be made clear in a new order that there was in fact a conviction for kidnapping. However, it was submitted on behalf of the appellant that the court should not exercise its jurisdiction to restore the sentence on that count, as that would not be just. 49. We do not agree. The appellant was properly convicted on that count and sentenced to a consecutive sentence of 18 months. The verdict was properly given and properly recorded by the Crown Court. The only reason why this court quashed the sentence was as a result of an error in the transcript which no one checked, until the judge diligently did so after the decision of this court. In our judgment there would be a real injustice if the appellant did not serve the sentence that had been rightly imposed on him. There is a very substantial public interest in those properly convicted serving the sentence imposed, not least in the circumstances of this case where the offence had an impact on the victim. Not to do so would undermine public confidence in the ability of the courts to deliver justice fairly. This is an exceptional case, as there was no basis in fact on which this court should have quashed the sentence; what had happened was a rare coincidence of circumstances – carelessness on the part of the transcriber, a failure by the prosecution to check the position, and a failure to check with the Crown Court at Harrow and the judge before accepting (1) that an experienced trial judge had passed a significant consecutive sentence on a defendant when the jury had not convicted that defendant and (2) that the record of the Crown Court which properly recorded the verdict and sentence were in error. 50. We therefore direct that the order of this court of 12 June 2014 be set aside, the appellant’s appeal against conviction and sentence be dismissed and the appellant’s conviction on count 2 and the consecutive sentence of 18 months detention be affirmed.

2015_07_16-3638.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2015/1277/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2015/1277

13939697c83ea6c9b2dbc9cc4310be57a8fe12d4e9ef5f457bf26dd6be4d0902

[2017] EWCA Crim 268

EWCA_Crim_268

2017-02-23

crown_court

Neutral Citation Number: [2017] EWCA Crim 268 Case No. 2015/05129/C1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Thursday 23 rd February 2017 B e f o r e: LADY JUSTICE HALLETT DBE ( Vice-President of the Court of Appeal Criminal Division ) MR JUSTICE SPENCER and SIR DAVID MADDISON - - - - - - - - - - - - - - - - - - - - - R E G I N A - v - STEVEN VARLEY - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwav

Neutral Citation Number: [2017] EWCA Crim 268 Case No. 2015/05129/C1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Thursday 23 rd February 2017 B e f o r e: LADY JUSTICE HALLETT DBE ( Vice-President of the Court of Appeal Criminal Division ) MR JUSTICE SPENCER and SIR DAVID MADDISON - - - - - - - - - - - - - - - - - - - - - R E G I N A - v - STEVEN VARLEY - - - - - - - - - - - - - - - - - - - - - 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 R Wright QC appeared on behalf of the Appellant Mr A Waterman QC appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T ( Approved ) LADY JUSTICE HALLETT: 1. The appellant and his co-accused, Michael Gath, were charged with two offences of robbery and one offence of murder. Gath pleaded guilty to all three counts. On 13 th August 2015, in the Crown Court at Leeds, the appellant was convicted of all three counts. 2. He had been given an extension of time and leave to appeal against conviction by the single judge on one ground, namely, the admissibility of Gath's plea to the first robbery (count 3) in the appellant's trial. He seeks the leave of the court to argue two further grounds based on the judgment of the Supreme Court in R v Jogee [2016] UKSC 8 , and the judgment in R v Johnson and Others [2016] EWCA Crim 1613 . The Prosecution Case 3. The deceased, Andrew Gordon, suffered from both mental and physical difficulties. He was particularly vulnerable and seems to have fallen prey to those wanting his money. He lived alone in a flat on the eleventh floor at Briarsdale Heights in Leeds. 4. The appellant had known him for some years. Mr Gordon described the appellant as an alcoholic and drug user. He did not regard the appellant as a friend. Nevertheless, the appellant would visit, uninvited. 5. On 28 th January 2015 the robbery alleged in count 3 took place. CCTV at Briarsdale Heights showed the appellant and Gath arrive at 20.42. As they entered the lift, they both attempted to disguise their features. Gath pulled up his collar, partly to cover his face. The appellant pulled his hood over his head. He used his sleeve to cover his fingers as he pressed the lift button. At 20.44.42 they left the lift on the eleventh floor and banged on the deceased's door. The deceased became concerned and telephoned the police. He told the operator that the people outside claimed that they were police officers. On the recording of his call, the banging on the door, and the word "police" can be heard. 6. For reasons that remain unexplained, the operator told Mr Gordon to open the door to see who it was. As he did so, the appellant and Gath barged into his living room. The deceased was clearly frightened and can be heard to say, "He's kicked my fucking …" The call ended abruptly as Gath snatched the phone. Gath then took Mr Gordon's television set off its stand. The appellant threatened to take the television set unless Mr Gordon gave them money. He demanded £30. Gath said nothing. The deceased told Gath where he kept his money and the two men took £100. Before leaving, the appellant punched Mr Gordon on the left cheek, causing a bruise. The television set was damaged beyond repair. 7. On 9 th February 2015 CCTV footage showed the appellant on his bicycle and Gath on foot making their way again to Briarsdale Heights. The appellant and Gath waited for someone to leave the building so that they could slip in. At 15.43.32 the appellant went towards the lift with his hood up. Gath pulled the neck of his jumper over his face. They both entered the lift. Neither the appellant, nor Gath was wearing gloves at that time. They got out of the lift on the eleventh floor at 15.45.01 and went to the deceased's flat, where they remained for 45 minutes. During that time, a friend of Mr Gordon's visited. She knocked on the door in a way that Mr Gordon would have recognised. 8. When the appellant and Gath left the flat, the appellant went into the lift, still with his hood up. By then he was wearing gloves. Shortly afterwards, Gath was seen running down the stairs carrying a dark-coloured bag. The bag contained items taken from the deceased's flat, including his new television. 9. By the evening it had become obvious to the appellant and Gath that the police were looking for them. The appellant handed himself in to the police just after midnight on 11 th February 2015, having hugged Gath "goodbye". At that time it was not known that Mr Gordon was dead. 10. On Wednesday 11 th February, a neighbour decided to check on Mr Gordon. She found that his flat door was closed, but unlocked. Every internal door was open, except the bathroom. The television was gone. Every cupboard in the kitchen was open. Carrier bags had been torn open in the spare bedroom. She opened the bathroom door and she found the deceased's body in the bath. His face was covered in blood. 11. Miss Escott, a forensic scientist, visited the scene. From her examination, it was obvious that a struggle had taken place, probably starting in the bedroom. An untidy search had been made of the flat. It was likely that the deceased attempted to defend himself with a screwdriver. He had lost one slipper in the front bedroom and his other slipper was found with his bank book on the floor of the bathroom. An attempt had been made to gag him and he had been smothered whilst on his back in the bath. Water had been poured or showered over his body. Dilute blood had been dripped over him as he lay in the bath by somebody moving him. Bloodstained fabric, used as a gag, was in the sink. Traces of Gath's DNA were found on the gag. Nothing was found forensically to link the appellant with the attack. 12. Dr Lumb, a forensic pathologist, examined Mr Gordon's body. He found facial injuries and prominent and obvious petechial haemorrhaging around the eyes and inside the eyelids. These were signs of asphyxia. There were also muscle tears and deep bruising across the body, indicative of blunt force trauma. There were gapping fractures in two areas of the spine, associated extensive bleeding and bruising. According to Dr Lumb, it is very difficult to cause a fractured spine of this kind; it required severe force. As a result of the fractures, the deceased would have been in agony. If conscious, he would have screamed out with pain. Considerable abrasive force had also been applied to his face with the cloth found in the sink. The doctor's conclusion was that the deceased had been involved in a violent struggle. Death was caused by multiple injuries, including severe brain injury. The brain injury was typical of an injury seen in the victim of a car crash, or in somebody who had fallen from a high building. 13. In his interview with the police, the appellant initially denied going to the flat on 28 th January, picking on the deceased or asking him for money. When confronted with Gath's account that they had been together at the flat on the 28 th , the appellant continued to deny it. He eventually accepted that he may have been to Briarsdale Heights and the eleventh floor that day, but still denied visiting the flat. He declined to answer questions about his movements on 9 th February. 14. Admissions were made at trial that the appellant had previous convictions for violence and also that four complaints had been made by the deceased against the appellant in the two years between 2009 and 2011, although no charges had been brought. The defence case 15. By the time of the trial, the appellant’s account had changed again. He admitted he visited the deceased’s flat about seven or eight times, to play cards or have a drink. He borrowed money from the deceased and did not always repay it. He accepted that he took advantage of the deceased, but maintained that Mr Gordon had always been happy to lend him money. 16. On 28 th he had gone to the deceased to borrow money. Gath had gone with him for a walk. He had no idea why they had covered their faces. They had knocked on the door and the deceased had let them in. The appellant denied banging on the door and claiming to be a police officer. He asked the deceased for £20 or £30, and the deceased agreed to give it to him. The deceased told Gath where the money was. Gath took about £65, but they did not tell Mr Gordon how much they had taken. He denied threatening or punching Mr Gordon at any stage. He did not know how Mr Gordon had received the bruise to this face. 16. He visited the flat again on the day of the murder but claimed that Gath alone was responsible for the violence inflicted. As they went into the flat, he looked in the hall cupboard to see if there was any money to take, but he could not find any. Gath hit the deceased. The appellant continued his search in the bedroom, where he found gloves and put them on. Gath took the deceased into the bathroom, but the appellant did not take much notice. He admitted that he had searched the flat, including the living room. However, despite what must have been going on in the bathroom, he did not see or hear any violence. The door to the bathroom was shut. He spent the whole 45 minutes looking for money. He denied taking the bank book, found on the bathroom floor, into the bathroom to question Mr Gordon about the whereabouts of his withdrawals. He could not account for the items strewn around the flat. He believed the deceased was still alive when they left. 17. He agreed that anyone who saw the injuries being inflicted on Mr Gordon would have realised that the intention was to cause really serious harm. He said that if he had become aware of what was happening, he would have tried to stop it. It was Gath who had used all the violence and Gath who had stolen all the property. 18. On the way out, he had not discussed with Gath what had happened. When he surrendered himself to the police, he did so because he thought that he was wanted on other more minor matters. When he handed himself in, he was still wearing the same clothes that he had been wearing on 9 th February, but they had been washed because they were dirty. Appeal Ground one 19. Gath's guilty plea was admitted pursuant to section 74 of the police and Criminal Evidence Act 1984, which provides: "(1) In any proceedings the fact that a person other than the accused has been convicted of an offence … shall be admissible in evidence for the purpose of proving that that person committed that offence, where evidence of his having done so is admissible, whether or not any other evidence of his having committed that offence is given. (2) In any proceedings in which by virtue of this section a person other than the accused is proved to have been convicted of an offence by or before any court in the United Kingdom, he shall be taken to have committed that offence unless the contrary is proved." Section 78 of the 1984 Act, pursuant to which Mr Wright QC invited the trial judge to exclude the guilty plea, reads: "(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 … 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." 20. Mr Wright referred us to a number of decisions, culminating in R v Smith [2007] EWCA Crim 2105 , in support of the proposition that, where evidence is to be adduced under section 74, the purpose for that evidence to be adduced should be identified so that the effect of its admission in evidence can be properly assessed under section 78, and also that section 74 should be used sparingly. 21. In Smith , the court concluded that there was unfairness, on the particular facts, in admitting a co-accused's guilty plea. In giving the judgment of the court, Hughes LJ (as he then was) said this: "18. It remains a proper approach, we are satisfied, that if there is no real question but that the offence was committed by someone and the real issue is whether the present defendant is party to it or not, evidence of pleas of guilty is likely to be perfectly fair, though of course each case depends upon its own facts. However, it also remains true that such evidence may well be unfair if the issues are such that the evidence closes off the issues that the jury has to try. …" 22. Mr Wright argues that there was here a real issue as to whether or not an offence of robbery was committed on 28 th January and that the admission of the evidence of Gath's plea of guilty has, effectively, closed off that issue. The defence did not accept that there had been a robbery and deny participation; he effectively disputed there had been a robbery at all. Accordingly, the admission of Gath's guilty plea, which acknowledged that a robbery had occurred on 28 th January, fundamentally undermined the appellant's case and his credibility, and had such an adverse effect on the fairness of the trial that it should not have been admitted. 23. Mr Waterman QC on behalf of the prosecution took issue with Mr Wright as to whether or not there was a real question as to whether a robbery had been committed. He took us to the various accounts given by the appellant during the course of the interview and in his Defence Case Statement. He pointed to the extremely strong evidence that a robbery had occurred. The appellant may not have conceded that a robbery had occurred, but it was never really in issue. The issue was whether he participated in it. Accordingly, there was no undue prejudice to the appellant in the admission of Gath’s plea of guilty. Ground two 24. The second ground of appeal is one upon which Mr Wright requires leave. This was a case in which murder was left to the jury on the basis of “parasitic accessory liability”. The route to verdict was in these terms: "Question 1 Are you sure that the [appellant] participated jointly with Michael Gath in a robbery, either from the outset, or at some subsequent stage? If no, not guilty of murder or manslaughter. If yes, got to question 2. Question 2 Are you sure that when the [appellant] participated in the robbery, at any stage, he realised that there was a real risk that Michael Gath might cause the [deceased] really serious bodily harm with, at least, the intention to cause really serious bodily harm? If yes, guilty of murder. If no, go to question 3." Question 3 then dealt with the alternative verdict of manslaughter. 25. The route to verdict supplemented the judge's full directions on the elements of murder. The jury was directed perfectly properly, according to the law as it was then understood, that mere foresight would suffice to convict the appellant of murder. At no stage were the jury directed to consider the possibility of a shared intention, or an intention to assist or encourage the principal in the commission of the offence of murder. 26. Mr Wright described this case as one of those exceptional cases that was left to the jury on a narrow foresight only basis, which, as a result of the decision in Jogee , renders the conviction unsafe. In applying the test post Jogee , set out in paragraph 21 of Johnson , he placed this offence at the lower end of the spectrum. This was not a case where a weapon was taken to the scene or was used, nor there was any intention to use a weapon. The inference of participation with intent to cause really serious harm was not a strong one. There was no forensic evidence to establish to any degree of certainty that the appellant himself used force on the deceased, or positively encouraged the use of force, with the requisite murderous intent. 27. Mr Waterman disagreed with the suggestion that this was not a strong case. It was a very powerful case; had the judge directed the jury in a Jogee -compliant manner, it would have inevitably led to a conviction for murder. Conclusions Ground one 28. We reject the assertion that no reasonable judge could have properly exercised his discretion to admit the guilty plea; still less that its admission into evidence renders the convictions unsafe. We see considerable force in Mr Waterman's submissions that, in reality, the appellant could not deny that a robbery had occurred. The recording of Mr Gordon's call, the video interview he gave, the bruise to his cheek, the taking of money, the appellant's lies and limited admissions all point to the fact that there was a robbery and he knew there was. His case may have changed considerably but it was not positively to assert that there was no robbery. Had he done so, it would have significantly undermined his credibility. It was his case that he was drunk and had not been aware of what Gath was doing. 29. The real issue was therefore whether the appellant was a participant to the robbery that undoubtedly occurred. The evidence of Gath's guilty plea did not close off that issue. A robbery can be committed by one person. Gath might have acted alone. 30. The judge's directions to the jury on the relevance of the guilty plea were full and fair. Gath’s plea was admitted simply to prove that the robbery had occurred. It did not prove that the appellant was party to the offence or any of the offences. Ground two 31. This is a case in which an application for leave to appeal was made in time and an appeal pending. The second ground, based on the judgment in Jogee was added later, when the Supreme Court’s judgment became available. Accordingly, it falls under the heading of "Other cases" at paragraphs 24 to 28 of Johnson and others , Mr Wright had to satisfy the court that it meets the test of substantial injustice if leave is not granted. This is a high threshold. The judgments in Jogee and in Johnson and others make clear that the effect of putting the law right is not to render invalid all the convictions arrived at over many years, by the faithful application of the law as then understood. 32. In this case the appellant’s secondary liability was said to arise out of a prior joint criminal namely robbery. The proper approach to a case of secondary liability arising out of a prior joint criminal venture was set out at [92] of Jogee as follows: "In cases of secondary liability arising out of a prior joint criminal venture, it will also often be necessary to draw the jury's attention to the fact that the intention to assist, and indeed the intention that the crime should be committed, may be conditional. The bank robbers who attack the bank when one or more of them is armed no doubt hope that it will not be necessary to use the guns, but it may be a perfectly proper inference that all were intending that if they meet resistance the weapons should be used with the intent to do grievous bodily harm at least. …" 33. As the court in Johnson observed at paragraph 20, the court must have regard primarily to the strength of the case advanced that the change in the law would, in fact, have made a difference. There is a spectrum. At one end, there is criminal venture to commit a crime of violence with a weapon so that the inference of participation with the necessary intent is very strong and where it would be very difficult to satisfy the test of substantial injustice. At the other end, the criminal venture is to commit a crime not involving intended violence where it may be easier to establish substantial injustice. 34. This offence falls towards the upper end of the spectrum. Crime A (the robbery) may not have involved a weapon, but it was a serious crime of violence. The jury's verdicts indicate that they were satisfied that the appellant and Gath robbed Mr Gordon on 28 th January and returned on 9 th February, intent on committing a second robbery. The appellant was an active party in both robberies. On 9 th February, the appellant's job, at the very least, was to search the flat. The attack on Mr Gordon began almost as soon as Gath and the appellant entered and moved from one part of the small flat to the other. Mr Gordon was beaten savagely (and in an excruciatingly painful way) to death when the appellant was only feet or yards away. He stayed for 45 minutes playing his part, having realised that Gath was using really serious violence with the requisite intent. At some stage, someone (presumably the appellant) took Mr Gordon's bank book into the bathroom in an attempt to extract information. 35. In those circumstances, the only proper inference is that the appellant participated in the robbery with the requisite intent as set out in Jogee . The change in the law would not have made a difference. The test of substantial injustice has not been made out. 36. For those reasons, the appeal must be dismissed. We are indebted to both Mr Wright and to Mr Waterman for the clarity and focus of their written and oral submissions, _____________________________________

2017_02_23-3932.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/268/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/268

4934ff2f3e1163e05e7119063ac21a39addfdc08a96ff4fc0592a6671bdb077d

[2019] EWCA Crim 1074

EWCA_Crim_1074

2019-06-21

crown_court

Neutral Citation Number: [2019] EWCA Crim 1074 Case No: 2019 01414 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SOUTHWARK CROWN COURT MR JUSTICE JAY Indictment No: T2017 7247-7251 Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/06/2019 Before: LORD JUSTICE GROSS LORD JUSTICE DAVID RICHARDS and LORD JUSTICE HAMBLEN - - - - - - - - - - - - - - - - - - - - - Between: REGINA Appellant - and - JOHN VARLEY ROGER JENKINS THOMAS KALARIS RICHARD BOATH Respondents - - - - - - - - -

Neutral Citation Number: [2019] EWCA Crim 1074 Case No: 2019 01414 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SOUTHWARK CROWN COURT MR JUSTICE JAY Indictment No: T2017 7247-7251 Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/06/2019 Before: LORD JUSTICE GROSS LORD JUSTICE DAVID RICHARDS and LORD JUSTICE HAMBLEN - - - - - - - - - - - - - - - - - - - - - Between: REGINA Appellant - and - JOHN VARLEY ROGER JENKINS THOMAS KALARIS RICHARD BOATH Respondents - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Edward Brown QC, Annabel Darlow QC, Alison Morgan QC and Philip Stott (instructed by Rakesh Somaia on behalf of the Serious Fraud Office ) for the Appellant Nicholas Purnell QC and Clare Sibson QC (instructed by Corker Binning ) for John Varley John Kelsey-Fry QC and Jonathan Barnard (instructed by Herbert Smith Freehills LLP ) for Roger Jenkins Ian Winter QC and Nicholas Yeo (instructed by DLA Piper UK LLP ) for Thomas Kalaris William Boyce QC and Karen Robinson (instructed by Peters & Peters Solicitors LLP ) for Richard Boath Hearing dates: 20, 21 and 22 May 2019 - - - - - - - - - - - - - - - - - - - - - Approved Judgment LORD JUSTICE GROSS: INTRODUCTION 1. (A) Overview: This is the judgment of the Court to which each of us has contributed substantially. 2. This is a prosecution appeal by the Appellant (“the SFO”) under s.58 and following of the Criminal Justice Act 2003 (“the CJA 2003”) against the Ruling of Jay J dated 3 April 2019 (“the Ruling”, together with other related rulings), in which he upheld the various submissions of the Respondents that there was no case to answer in respect of the count/s of the indictment which concerned each of them. 3. In part at least, the financial market crash of 2008 casts a shadow over these proceedings as it did for those previously pursued by the SFO against Barclays Plc and Barclays Bank Plc (collectively, “Barclays”). 4. Describing the impact in the US, Andrew Ross Sorkin, in Too Big to Fail (2009), spoke (at p.3) of a “near collapse of the financial system, forcing a government rescue effort with no precedent in modern history”. For her part, Gillian Tett, in Fool’s Gold (2009), remarked on this market crash as standing out because of its sheer size (Preface, at p.ix). 5. Unlike some other UK banks, Barclays did not take up the October 2008 UK Government (“HMG”) package of support for British banks – preferring instead to raise capital from other sources, including various Qatari entities. The question which arose in the Barclays proceedings and which arises here is whether, in the course of doing so and in the course of a prior capital raising exercise in June 2008, criminal offences were committed. 6. The Respondents all held senior positions at Barclays. Mr John Varley (“JV”) was Chief Executive and a director; Mr Roger Jenkins (“RJ”) was Barclays Capital Executive Chairman of Investment Management in the Middle East and North Africa; Mr Thomas Kalaris (“TK”) was Barclays Wealth Management Chief Executive Officer; Mr Richard Boath (“RB”) was Barclays Capital Head of European Financial Institutions Group. 7. It may be noted that Mr Christopher Lucas (“CL”) the Barclays Group Finance Director was named as a co-conspirator; however, proceedings against him were not pursued because of the state of his health. CL and JV were the only directors among the alleged conspirators. 8. The indictment in these proceedings (“the Indictment”) contains two counts. Each of the Respondents was charged with Count 1, whereas only JV and RJ were charged with Count 2. Both Counts allege a statutory conspiracy to commit fraud by false representation, contrary to section 1(1) of the Criminal Law Act 1977 (“the CLA 1977”). Count 1 relates to the capital raising undertaken by Barclays in June 2008 (“CR1”). Count 2 relates to the subsequent capital raising by Barclays in October/November 2008 (“CR 2”). 9. The Particulars of Offence under Count 1 provide as follows: “JOHN VARLEY, ROGER JENKINS, THOMAS KALARIS AND RICHARD BOATH, between 1 May 2008 and 31 August 2008, conspired together with Christopher Lucas , dishonestly to make representations within documents relating to Barclays’ capital raising of June 2008, with the intention of making gain for themselves or another, or causing loss to another, or exposing another to a risk of loss, which they knew were untrue or misleading, in breach of section 2 of the Fraud Act 2006, namely: i. (In the Prospectus dated 25 June 2008) that Qatar Holding was to be paid commission of 1.5% for its subscription in shares; ii. (In the Prospectus dated 25 June 2008) that the aggregate costs and expenses payable by Barclays plc in connection with the Firm Placing and the Placing and Open Offer was estimated to amount to approximately £107 million; and iii. (In Subscription Agreements dated 25 June 2008) that Barclays had not agreed to, nor intended to pay, any additional fees, commissions, costs, reimbursements or other amounts to Qatar Holding.” 10. The Particulars of Offence under Count 2 provide as follows: “JOHN VARLEY and ROGER JENKINS, between 1 September 2008 and 30 November 2008, conspired together and with Christopher Lucas, dishonestly to make representations within documents relating to Barclays’ capital raising of October 2008, with the intention of making gain for themselves or another, or causing loss to another or exposing another to a risk of loss, which they knew were untrue or misleading, in breach of section 2 of the Fraud Act 2006, namely: i. (In the RCI Prospectus dated 25 November 2008) that Qatar Holding was to be paid commission of 2% for its subscription in RCIs and that the net proceeds of the issue of the RCIs was expected to amount to approximately £2,905,000,000 after deduction of commissions and concessions and the expenses incurred in connection with the issue of the RCIs; ii. (In the MCN Prospectus dated 25 November 2008) that Qatar Holding was to be paid commission of 4% for its subscription in the Notes and that the net proceeds of the issue of the Notes was expected to amount to approximately £3,875,000,000 after deduction of commissions and concessions and the expenses incurred in connection with the issue of the Notes. iii. (In Subscription Agreements dated 31 October 2008) that there were no further agreements or arrangements entered into between Qatar Holding and Barclays; and iv. (In Subscription Agreements dated 31 October 2008) that Barclays had not agreed to, nor intended to pay, any additional fees, commissions, costs reimbursements or other amounts to Qatar Holding.” As will be seen (below), it is necessary to consider and determine an application by the SFO to amend the Particulars under Count 2 of the Indictment. 11. It is next convenient to set out the provisions of s.2 of the Fraud Act 2006 (“the Fraud Act”): “Fraud by false representation (1) A person is in breach of this section if he – (a) dishonestly makes a false representation, and (b) intends, by making the representation – (i) to make a gain for himself or another, or (ii) to cause loss to another or to expose another to a risk of loss. (2) A representation is false if – (a) it is untrue or misleading, and (b) the person making it knows that it is, or might be, untrue or misleading. (3) ‘ Representation’ means any representation as to fact or law, including a representation as to the state of mind of – the person making the representation, or any other person. ….. (5) For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention).” 12. In summary, in the Ruling, Jay J held (at [626] – [627]) that: i) “Regardless of the evidence and the findings of fact made by a hypothetical reasonable jury”, all four Respondents had no case to answer to the charges of conspiracy by way of the SFO’s three routes to legal liability: a) The direct route, involving false market-facing statements on the part of or adopted by individual Respondents within company documents, whether via the Directors’ Responsibility Letters (“DRLs”), statements of responsibility in certain of the Prospectuses or the signature of the Subscription Agreements (“SAs”) (“Issue I: The Direct Route”); b) Innocent Agency, whereby the Respondents in question would be fixed with liability as principals, with Barclays as the “innocent agent” (“Issue II: Innocent Agency”); c) Participation, entailing secondary liability on the part of the Respondents in question, for conspiring to procure Barclays (if not an innocent agent) to make the offending representations (“Issue III: Participation”). ii) If, however, he was wrong on “one or more of these legal determinations”, then JV (alone) had no case to answer on the basis of evidential insufficiency in respect of both Count 1 and Count 2 (“Issue IV: Evidential Sufficiency of the case against JV”). On this footing, there would be a case to answer against CL on both Counts and the applications of RJ, TK and RB would fail on the Counts which concerned them. 13. The Ruling followed an earlier Ruling of Jay J, dated 21 May 2018 (“the May 2018 Ruling”), in which he dismissed all charges on the then indictment as against Barclays. In a nutshell, that application turned on a consideration of whether the (alleged) criminal dishonesty of senior officers within Barclays – the present Respondents – could be attributed to the corporation so as to render the Bank itself criminally liable. 14. The May 2018 Ruling of Jay J was, in effect, upheld by Davis LJ, sitting as a Judge of the High Court in his judgment dated 12 November, 2018 (“the Davis LJ judgment”) SFO v Barclays PLC and another [2018] EWHC 3055 (QB) , in which he dismissed the SFO’s application to prefer a voluntary bill of indictment – an application pursued by the SFO in consequence of the May 2018 Ruling. 15. The upshot was that, despite there being a prima facie case that false representations had been made to the market, the Judge ruled both that Barclays could not be liable because the (alleged) dishonesty of senior executives could not be attributed to the Bank and that the executives could not be liable because only Barclays could make the representations in question. The SFO submits that this is a most unfortunate outcome, which ought not and cannot stand and calls for the reversal of the Judge’s Ruling. The Respondents contend that, however curious the outcome, it is a consequence of the SFO’s framing of the indictment and that there is no warrant for this Court intervening. 16. For completeness, Jay J made further rulings, first refusing an application on the part of the four Respondents to dismiss the charges against them (“the July 2018 ruling”) and, secondly, refusing an application on the part of RB to dismiss the charges against him (“the December 2018 ruling”). The SFO has complained of inconsistency between the Judge’s approach to those applications and his decision in the Ruling. In our judgment, nothing turns on that complaint. If the Ruling was otherwise wellfounded, this complaint would not assist the SFO; if, per contra , there is merit in the SFO’s other criticisms of the Ruling, then it does not need this complaint of inconsistency. We therefore say no more of the July and December 2018 rulings. 17. (B) Preparatory hearing: Further and again for completeness, we note the SFO’s complaint that its several requests for a preparatory hearing pursuant to s.7 of the Criminal Justice Act 1987 had been rejected by the Judge. By now this is water under the bridge, so we do not propose to take time over it – other than to observe that the argument for a preparatory hearing appears to us to have had considerable attraction. 18. (C) The role of this Court and the relevant test: It is important to underline at once the nature of our task and the applicable test. We are not sitting at first instance, hearing the matter de novo . Our role is to consider an appeal from the Judge’s Ruling. As provided by s.67 of the CJA 2003, this Court “may not reverse” a ruling on such an appeal “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.” 19. In considering whether it was not reasonable for the judge to make a ruling, the fact that a different conclusion may have been reached does not “begin to provide a basis for a successful appeal”. As Sir Igor Judge P explained in R v B [EWCA] Crim 1144 at [19]: "When the judge has exercised his discretion or made his judgment for the purposes of and in the course of a criminal trial, the very fact that he has had carefully to balance conflicting considerations will almost inevitably mean that he might reasonably have reached a different, or the opposite conclusion to the one he did reach. Leave to appeal under section 67 of the 2003 Act will not be given by this court unless it is seriously arguable, not that the discretionary jurisdiction might have been exercised differently, but that it was unreasonable for it to have been exercised in the way that it was. No trial judge should exercise his discretion in a way which he personally believes may be unreasonable. That is not to say that he will necessarily find every such decision easy. But the mere fact that the judge could reasonably have reached the opposite conclusion to the one he reached, and that he acknowledges that there were valid arguments which might have caused him to do so, does not begin to provide a basis for a successful appeal, whether, as in the circumstances here, by the Prosecution or, when it arises, by the defendant." 20. Where the ruling in question is a terminating ruling made on the trial judge’s evaluation of the evidence, it is recognised that the trial judge will generally be much better placed to make such an assessment, and that an appellate court will not interfere unless the “high hurdle” of showing that his decision is “outwith the range of reasonable conclusion” has been met. As Moses LJ stated in R v M and T [2009] EWCA Crim 2848 at [25]: "As we have said, this is an application by the Prosecution in which it seeks leave to appeal against a terminating ruling of the trial judge. The position of a trial judge …must be acknowledged and respected. That acknowledgement finds its expression in the principle that this court will not interfere with such a terminating ruling unless the conclusion of the judge, refusing to let the case go before the jury, is outwith the range of reasonable conclusions. That high hurdle, which a Prosecution must overcome is because this court is so much worse placed to make the sort of assessments and judgments this judge had to make when he was asked to stop the case against the defendants…" 21. (D) Complexity: Before proceeding further, we note the Judge’s observations at [557] of the Ruling. When dealing with the case against RJ, TK and RB and concluding that, subject to his decision on the points of law (Issues I – III), there would have been sufficient evidence for the case on Count 1 to have proceeded against these three Respondents, the Judge said this: “….Although the challenge for that jury in this case would be immense, and arguably at the very outer limit of the capacity of any jury, and my duty in fairly summing-up this case would be monumental, that is what the law requires….” 22. With respect, we should not be taken as agreeing with this observation. Like any “heavy” case, the burden on the Judge in summing-up would be considerable but we do not see this case as in any way exceptional. Equally, we see no reason why this case should be at the “very outer limit of the capacity of any jury”. Complex it may be but there is no good reason why it should be unduly complex. Its essence is relatively straightforward. In any event, it is the task of the prosecution (primarily) to ensure that a case is presented in a clear and manageable form – the very helpful Bundle of “Graphics” made available to the jury (and to us) provides a very good example of how this can be done - and it is incumbent on the Judge to case manage it accordingly. So too, as a matter of professional good practice and their duty to the Court, such case management efforts are not to be frustrated by the Defence. It is of the first importance that the prosecution of high-end cases of (alleged) fraud should not be deterred by undue complexity or cost; a failure to prosecute such cases, where it would otherwise be appropriate to do so, threatens the integrity of markets and is socially corrosive. Under our system such prosecutions entail trial by jury and we see nothing in this case raising any doubts as to the suitability of this method of trial. 23. (E) Reporting restrictions: Given the possibility of future criminal proceedings, reporting restrictions covered the proceedings before Jay J and the Ruling, as we understood it pursuant to s.4(2) of the Contempt of Court Act 1981 . 24. On the first day of the hearing of the appeal, an oral application was made by the BBC (on its own behalf and on behalf of the media more generally), for copies to be made available of the Ruling and various other documents. There was also before the Court an application by the solicitors, Quinn Emanuel, on behalf of a client involved in civil proceedings, for copies of the Ruling and, in addition, the parties’ submissions on the issue of no case to answer before Jay J. In the event, both applications failed, save in respect of the BBC’s application for hard (but not electronic) copies of the documents it had sought. The Court’s ruling on this point is set out in the relevant Transcript (at pp. 14 and following) and does not require elaboration here. Suffice to say that the Court was acutely conscious of the long-established principles of open justice (see, Archbold, 2019, at paras. 4-3a and following) and will only depart from them when it is necessary to do so in the interests of the administration of justice. Here, reluctantly, but given the possibility of future criminal proceedings, it was necessary to do so. 25. This judgment is itself subject to reporting restrictions as provided by s.71 CJA 2003. The question whether an anonymised or “sanitised” version can be published in advance of those restrictions coming to an end will be ventilated with counsel when the draft of this judgment is circulated; but the prohibition on publication contained in s.71 remains in force unless or until it is varied by an order of this Court. THE FACTUAL BACKGROUND 26. Much of the factual introduction which follows is gratefully adopted from the Davis LJ judgment. 27. In June 2008, CR1 secured £4.4 billion in additional capital for Barclays. Subsequently, CR2 in November 2008 secured an additional total of £6.8 billion. As Davis LJ expressed it (at [23]): “The prospective investors identified – at a time when investors were difficult to attract because of the state of the banking sector – included (among others) the state of Qatar, in effect through its Sovereign Wealth Fund. In addition, the then Prime Minister of Qatar, Sheikh Hamad, was proposed as a potential investor through a BVI investment company called Challenger Universal Limited. I will, for convenience, call the various entities ‘the Qatari entities’, although I stress that they are legally distinct. RJ had a particularly close business connection with such entities.” 28. Davis LJ went on (at [24]) to summarise the “settled practice at the time” and “the common expectation of investors”. Subscribing investors, such as the Qatari entities, known as “Conditional Placees”, would as between themselves receive an equal commission, in addition to the “like discounted price of the shares agreed for a rights issue”. 29. In the case of CR1 ( ibid ): “…such commission was publicly set out in the Prospectus ultimately issued to shareholders and the wider market as 1.5%; the formal Subscription Agreements dated 25 June 2008 also expressly stated that no other commissions were being paid to any of the investors. Further, in the Prospectus it was stated that the aggregate costs and expenses payable by Barclays in respect of the Placing was £107 million. (In the Prospectus, it may be added, it was stated that the Board and Barclays took responsibility for the accuracy of the information contained in it.) That figure was consistent with commission being paid to subscribers of 1.5% of their maximum investment commitment. It was not consistent with any further sum (by way of commission or otherwise) being paid to any such investors.” 30. In the event, as the banking crisis worsened, it became evident (at [25]) that CR1 had not solved the Barclays balance sheet problem. Willing investors were by now even harder to locate. Barclays focused again on Qatar and, also, on certain Abu Dhabi investors; this time the same Qatari investors participated in an amount of £2.05 billion. As Davis LJ explained ( ibid ): “The structure of CR2 was particularly complex, involving the use of Reserve Capital Instruments, Mandatorily Convertible Notes and Warrants. Suffice it to say, Subscription Agreements and various Prospectuses were, with other documents, issued on 31 October and 25 November 2008. These contained in the relevant respects broadly the like statements and warranties as contained in the CR1 documentation. The public announcement of Barclays, and as restated in the relevant documentation, was that the Qatari entities would variously receive 2% commission on the Reserve Capital Instruments for which they subscribed and 4% commission on the Mandatorily Convertible Notes for which they subscribed (totalling £62 million) and in addition an Arrangement Fee of £66 million. The stated net proceeds for Barclays were likewise calculated on such a basis.” 31. In October 2008, the Qatari entities sought a loan from Barclays, originally (8 October) for US$2 billion and subsequently (29 October) for US$3 billion. The loan was primarily negotiated by JV and RJ; it was ultimately approved by the Group Credit Committee (“GCC”) on behalf of Barclays. As Davis LJ underlined (at [26]), that approval was subject to an express restriction on the use of these funds: “…it being expressly stipulated that the loan could not be permitted for use to fund the CR2 subscription (because of an appreciation of the unlawful financial assistance provisions of s.151 of the Companies Act 1985).” As against Barclays, it was always the SFO’s case that the loan money was used – and was always designed to be used – to fund the subscription payments. 32. As to CR1 and CR2, it was and is the SFO’s case that the true position was (at [28]) “very different from that being publicly stated and warranted in the respective Prospectuses and Subscription Agreements: which documents, it is said, dishonestly misrepresented the position”. The truth was that much greater sums had been paid to the Qatari entities in return for their agreement to invest in CR1 and CR2. These sums ( ibid): “…in effect had to be paid as the Qatari entities (doubtless appreciating their strong bargaining position) were insistent….” 33. The SFO alleged that the mechanism for achieving these additional payments was through the use of two “Advisory Service Agreements” (“ASAs”). ASA1 was dated 25 June 2008 and was made between Qatar Holding LLC and Barclays; it was signed by JV on behalf of Barclays. ASA2 was dated 31 October 2008 and was made between Qatar Holding LLC and Barclays; it was signed by RJ on behalf of Barclays. 34. Davis LJ succinctly summarised the ASAs as follows (at [29]): “Both agreements were in letter form. The stated term of ASA1 was 3 years. That of ASA2 was 5 years. ASA1 comprises one page. The stated sum to be paid (of £42 million) for services to be provided is written in manuscript. That sum was to be paid in four instalments. The agreement does not specify the services to be provided in return for the £42 million; it states that Qatar Holding has agreed to provide ‘various services, as an intermediary, in connection with the development of our business in the Middle East’; and that the ‘type and scale of the services …will need to be refined by mutual agreement as our relationship develops further’. ASA2 is hardly less short. The fee is stated at £280 million. It refers to the ‘great success of the agreement to date’. It then lists, in very broad language under six heads, the nature of some of the services stated to be provided: with again a statement that ‘these will need to be refined by mutual agreement’ during the period of the agreement. The sums payable by Barclays under ASA1 thus were £42 million. The sums payable under ASA2 were £280 million. It is one feature of ASA2 that its contractual period overlaps, for all but four months with the same contractual period stated in ASA1, albeit ASA2 was to last for an additional 28 months after ASA1 terminated. It is another feature of ASA1 that the four instalments payable under it were to be paid by 1 April 2009: that is, before the end of the contractual period; and all such instalments in fact were invoiced by the Qatari entities on 13 August 2008. The instalments payable under ASA2 were 20 equal instalments of £14 million.” 35. The SFO’s case was that each of ASA1 and ASA2 was a sham or dishonest device (at [30]) “designed to funnel money to the Qatari entities as part of their true overall commission for subscribing to CR1 and CR2”. ASA1 and ASA2 were thus not independent of CR1 and CR2 but were (at [35]) “interdependent”. They represented, in reality, “disguised commissions” payable to the Qatari entities “thereby rendering the warranties and statements made in the various Prospectuses and Subscription Agreements false”. The reason for proceeding in this fashion was that if these higher commission payments to the Qatari entities had been openly acknowledged, then (at [30]): “…that would not only indicate Barclays’ weak position but also, in accordance with settled practice, all other subscribers in the same class should likewise also potentially have to be so paid a corresponding increased commission: and it was desired to avoid that.” 36. Overall, it was also the SFO’s case that the Barclays Board and the relevant committees – the Board Finance Committee (“BFC”) and the GCC – were kept in the dark about the true intent behind ASA1, ASA2 and the loan. 37. At the time when the Barclays entities remained defendants, the indictment was in broadly similar form to the Indictment as it now is (set out above), save that there were additional Counts (3 and 4), dealing with the provision of unlawful financial assistance contrary to s.151 of the Companies Act 1985 (Count 3) and the role of corporate officers (JV and RJ) in any such provision (Count 4). In the event, following the dismissal of the charges against Barclays, it was agreed that Count 4 would have to be dismissed against JV and RJ. No more therefore need be said as to the s.151 matters. 38. As to the Directing Mind and Will (“DMW”) of Barclays, Davis LJ expressed the matter this way (at [58]): “…the question is, on the assumed facts, whether the alleged dishonest acts taken in conjunction with the alleged dishonest state of mind of the relevant individuals – in particular for present purposes JV, CL and RJ – can be attributed to Barclays so as to make it criminally liable. Put another way, are their (assumed) dishonest acts and intentions, for the purposes of these particular transactions, to be treated as the dishonest acts and intentions of Barclays itself?” 39. Jay J’s overall conclusion in the May 2018 Ruling, as summarised by Davis LJ (at [91]), was that JV, RJ and CL (or any combination of them) could not, on the evidence, be regarded as Barclays’ DMW for the purpose of CR1, CR2 and the making of the loan to the Qatar entities. The relevant responsibility and authority in this respect remained with the Barclays Board, or the BFC or GCC, regardless of the autonomy conferred on the individual Respondents in the antecedent negotiations. 40. In the event (at [117] et seq ), Davis LJ accepted “the correctness of the essential reasoning” of Jay J in the May 2018 Ruling. As Davis LJ expressed it (at [119]), “by reference to the pleaded particulars on the indictment”, JV, CL and RJ could not be regarded as Barclays’ DMW “for the purpose of performing the functions in question”. That was “the long and short of it”. This was not (at [122]) “a matter of form over substance”. Instead, here, the form of corporate governance “ is the substance”. Various other considerations (in the paragraphs which followed and to which it is unnecessary to refer) confirmed Davis LJ in these views. 41. Accordingly, Davis LJ dismissed the SFO’s application to prefer a voluntary bill of indictment. 42. We turn to the principal Issues. ISSUE I: THE DIRECT ROUTE 43. (A) Introduction: The SFO’s primary case in relation to CR1 and CR2 is that JV (subject to Issue IV) and CL (the two directors among the alleged conspirators), made false representations within the meaning of s.2 of the Fraud Act, relating, as will be recollected, to the “disguised commissions” payable to the Qatari entities, for which each was personally liable. The other Respondents, RJ, TK and RB in respect of Count 1/CR1 and RJ in respect of Count 2/CR2, conspired with them to do so. The point hinges on JV and/or CL incurring personal liability in respect of the representations in question – the “direct route” to liability. 44. In the Ruling, the Judge upheld the Respondents’ submission of no case to answer in this regard; neither JV nor CL had made a false representation within s.2 of the Fraud Act in the company prospectuses or the SAs. Any statements were and could only be made by Barclays not by individual directors: Ruling, esp. at [182], [185], [186], [189] and [197]. Moreover, the Judge (at [178] and [187]) refused the SFO’s application to amend the Indictment to include Particulars as to the Warrant Prospectus under Count 2. 45. The SFO submits that what it describes as the Judge’s “binary approach” was in error. Common sense, policy and authority all pointed to the directors being personally liable for such false statements. In her oral submissions, Ms Darlow QC said this: “….it is axiomatic that directors can be regarded as making statements within company prospectuses, and there are very strong public policy considerations to support that conclusion in order to give efficacy to the efforts of the common law and civil and criminal statutes to protect the wider market and safeguard the integrity of rights issues from false statements contained in public facing company documents….” The Judge had confused or conflated the question of making a statement with the question of identifying Barclays’ DMW and, similarly, with the separate question of identifying the issuer (or publisher) of company documents. 46. The Respondents retort that the Judge was right, essentially for the reasons he gave. Far from there being a lacuna in the law, any problems were of the SFO’s ownmaking in the framing of the Indictment and, as Mr Purnell QC put it, its “obdurate” pursuit of market-facing representations – the more so, given the absence now of any corporate defendant. There was a difference between “making” a statement and “causing” a statement to be made; so too, a distinction was to be drawn between the “responsibility regime” for directors and personal liability. Statements in company documents, especially the prospectuses, were made by Barclays alone. 47. In addressing this Issue, we deal separately with the equity prospectus (CR1), the SAs (CR1 and CR2), the MCN and RCI prospectuses (CR2) and the Warrant Prospectus (CR2). 48. (B) CR1: The equity prospectus: A key ingredient of CR1 was the equity prospectus, dated 25 June 2008 (“the CR1 Prospectus”). The production of such a prospectus was required by ss.73A and 85 of the Financial Services and Markets Act 2000 (“FSMA”) and the Prospectus Rules (as in force on 1 June 2008, “the Prospectus Rules”). R.5(2)(b)(i) of the Prospectus Rules (giving effect to s.84(1)(d) FSMA) provided that where the issuer of the transferable securities is a body corporate, in addition to the issuer “each person who is a director of that body corporate when the prospectus is published” is responsible for the prospectus. 49. All the directors of Barclays, including JV and CL signed DRLs (i.e., Directors’ Responsibility Letters). These were addressed to Barclays – not to the market; they were thus not market-facing. Nonetheless, they are of very considerable importance. Insofar as material, the DRLs provided as follows: “1. I have read a proof of the Prospectus dated 22 May 2008 (the final version of which is expected to be published on or around 18 June 2008), and I understand that the Prospectus will constitute a prospectus prepared in accordance with the prospectus rules made under Part VI of ….[FSMA]…, as amended (‘FSMA’)(the ‘Prospectus Rules’). 2. I understand that the Prospectus is required by section 87A(2) FSMA to contain the information necessary to enable investors to make an informed assessment of the assets and liabilities, financial position, profits and losses and prospects of the Company and of the rights attaching to the New Barclays Shares… 3. I understand that pursuant to Prospectus Rule 5.5.3R(2) I will be required to take responsibility for the Prospectus (and any supplementary prospectus) and that the Prospectus will contain a declaration in the following terms…. ‘ The Barclays Directors, whose names appear at paragraph 2 below, and Barclays accept responsibility for the information contained in this document. To the best of the knowledge of the Barclays Directors and Barclays (who have taken all reasonable care to ensure that such is the case), such information is in accordance with the facts and does not omit anything likely to affect the import of such information.’ 4. To the best of my knowledge and belief (having taken all reasonable care to ensure that such is the case), all statements of fact in the prospectus relating to the Company and its subsidiary undertakings and all statements relating to myself are true and accurate in all material respects and are not misleading….. 6. There are no material facts or considerations omitted from the Prospectus which to my knowledge would make any statement in the Prospectus misleading and there is no other information known to me or which could on reasonable enquiry be known to me whose omission makes any statements or opinions in the Prospectus misleading. 7. I accept responsibility for the information contained in the Prospectus and confirm that to the best of my knowledge, having taken all reasonable care to ensure that such is the case, the information contained in it is in accordance with the facts and does not omit anything likely to affect the import of such information. 8. I hereby authorise the naming of myself as a director of the Company in the Prospectus and I authorise the issue and publication of the Prospectus….in the form in which it is approved for issue by resolution of the board of directors of the Company or a duly authorised committee of the board ….and in particular authorise the inclusion of a statement as to my responsibility as a director and I undertake to accept responsibility in the terms set out in the Approved Document. I understand that a responsibility statement is regarded as including expressions of opinion. This authority and undertaking is notwithstanding the fact that I may not attend the meeting of the board …., or the meeting of the committee of the board, which approves the final form of the relevant document or see the final form of any document approved in this manner prior to its publication or posting. 11. I have reviewed the memorandum prepared by Clifford Chance LLP entitled ‘ Memorandum On Directors’ Responsibilities And Liability For Public Documents’ distributed at the board meeting on 28 May 2008…. 12. I will inform you immediately if I become aware, at any time before dealings begin in the New Barclays Shares on the London Stock Exchange: (a) that any statement of fact or expression of opinion contained in the Prospectus becomes or has become untrue or inaccurate; and (b) of any other fact, the omission of which renders any such statement or expression misleading.” 50. The CR1 Prospectus, at Part X, para. 2, named, amongst others, JV and CL as directors of Barclays. Part X, para. 1 was in these terms: “1. Responsible Persons The Directors, whose names appear at paragraph 2 below, and Barclays accept responsibility for the information contained in this document. To the best of the knowledge of the Directors and Barclays (who have taken all reasonable care to ensure that such is the case), such information is in accordance with the facts and does not omit anything likely to affect the import of such information.” 51. With regard to the CR1 Prospectus, we are, with respect, unable to share the difficulty felt by the Judge or to agree with his conclusion. We find this aspect of Issue I straightforward. 52. While the DRLs do not themselves constitute market-facing statements on the part of the directors – addressed, as they were, solely to Barclays – the DRLs fed in to the statement contained at Part X, para. 1 of the CR1 Prospectus (“the Directors’ Responsibility Statement” or “DRS”). That statement was indisputably marketfacing. It says in terms that both the directors and Barclays accept responsibility for the matters there set out. There is no good reason why that wording should not mean what it says and every good reason (in terms of market integrity) why it should. On the basis that it does, the irresistible conclusion is that the directors (and Barclays) “made” that statement and there is no reason whatever to conclude otherwise. 53. “Make” or “made” is an ordinary English word, to be given its ordinary and natural meaning; it should not be overlaid with complexity. The question of whether JV (subject to Issue IV) and CL “made” the DRS is not to be conflated with any issue as to the DMW of Barclays, an irrelevancy for these purposes. Likewise, the obvious fact that Barclays – not JV or CL – “issued” the CR1 Prospectus is neither here nor there. Further, as the focus is on whether JV and/or CL “made” the DRS, such differences (if any) as there might be between “making” a representation and “causing” a representation to be made are beside the point. Still further, the “responsibility regime” for directors in no way tells against their personal liability; it would be surprising if it did and if questions of “responsibility” and “liability” were unconnected. 54. Accordingly, a reasonable jury, properly directed, would be capable of convicting a director in respect of the DRS, provided that it constituted or contained a false representation within the meaning of s.2 of the Fraud Act. Whether in fact the DRS constituted or contained a false representation of this nature would be a question of fact for the jury to resolve. On this simple ground, there was no proper basis for allowing the submission of no case to answer in respect of the CR1 Prospectus. Furthermore, even if the Judge’s conclusion in respect of JV is upheld on Issue IV, the fact that CL had a case to answer suffices for the proceedings to continue against RJ, TK and RB. 55. Elaboration is almost unnecessary with regard to the CR1 Prospectus, but we go on to outline, briefly, why this conclusion, as to directors’ personal liability for misstatements in prospectuses or other company documents, fits comfortably within the longstanding framework of law in this area. 56. In Derry v Peek (1889) 14 App Cas 337 , a claim for deceit was brought against the directors of a company, founded upon a false statement in the prospectus. The action failed because the false statement had been made in the honest belief that it was true. In an action of deceit, the plaintiff was required to prove actual fraud. The assumption on which the case proceeded was that the directors would have been liable had actual fraud been proved. There was no argument to the contrary, let alone any suggestion that the directors were incapable of making a statement in a company prospectus. Lord Bramwell, at p.345, said that he hoped the decision exonerating the directors would not be misunderstood: “….that promoters of companies will not suppose that they can safely make inaccurate statements with no responsibility. I should much regret any such notion; for the general public is so at the mercy of company promoters, sometimes dishonest, sometimes over sanguine, that it requires all the protection that the law can give it….” Those observations remain pertinent today and of significance for the present case, notwithstanding that Derry v Peek was a civil case and related to the (different) common law prospectus regime prevailing prior to the passing of the Directors Liability Act 1890. 57. Nor does Derry v Peek stand alone. The earlier case of Henderson v Lacon (1867) 5 Eq 249 , contains observations in the judgment of Sir W Page Wood VC to like effect. Thus, at p.262, the Vice-Chancellor spoke of the directors incurring personal liability for false statements in a prospectus, provided they were “fixed” with the guilty knowledge or “ scienter ”, necessary for an action of deceit. That scienter was clearly fixed “…from the moment you find a representation concerning their own acts which is incorrect, and which they must be taken to have known to be incorrect, and to have knowingly stated, and thereby to have misled the party complaining of the misrepresentation”. Again, there does not appear to have been any resistance to the notion of directors incurring personal liability for statements in a prospectus. 58. Possfund v Diamond [1996] 1 WLR 1351 was concerned with shares bought in the market after flotation in reliance upon a prospectus containing a misrepresentation as to the value of the company. The issue in these (admittedly) civil proceedings was whether the company’s directors and advisers owed a duty of care to purchasers in the “aftermarket”. Lightman J dismissed the application to strike out the claim, holding that it was arguable. The judgment contains (at pp. 1358 et seq ) a valuable summary of the common law and statutory schemes providing protection to investors in respect of prospectuses. For immediate purposes, however, the importance of the case lies in the absence of any suggestion that a director could not incur personal liability for a misrepresentation in a prospectus. 59. The SFO placed some emphasis on the relative similarity between the wording contained in s.397(1)(a) and (c) FSMA and that found in s.2 of the Fraud Act (set out above). As expressed in the SFO’s skeleton argument: “Liability under FSMA is dependent upon the concept that the actus reus of making a statement in a document published by a company (such as a trading statement or prospectus) could be committed by a director of that company.” It would be curious, the SFO submits, if a knowingly misleading, false or deceptive statement made in a company document and considered in the context of protecting market integrity, was capable of giving rise to personal criminal liability under s.397(2) FSMA but a false representation within s.2 of the Fraud Act was not so capable. We accept this SFO submission as to the analogous FSMA regime and, for this reason too, would not be at all attracted to ruling out the direct route in the circumstances of this appeal unless driven to do so – which we are not at all persuaded we are. For completeness, in this context, the SFO drew our attention to a number of FSMA sentencing authorities where no question had been raised as to the appropriateness of convictions of officers of companies for false or misleading statements published by the companies in question. It is unnecessary to refer to those authorities, given the absence of discussion as to the convictions but, if to a distinctly limited extent, they are supportive of the SFO’s submission. 60. Furthermore, we cannot think that the risk of personal criminal liability would occasion surprise in the commercial world generally. It certainly could not do so, specifically, in the case of the Barclays directors who had signed DRLs. It will be recollected that para. 11 of the DRLs made reference to a Clifford Chance memorandum, which the directors in question confirmed they had reviewed. Though obviously in itself of no legal force, it is instructive to note that para. 4 of that memorandum is headed “THE PROSPECTUS – CRIMINAL LIABILITY” and the very first sentence thereunder reads as follows: “Criminal liability for the Prospectus may arise under FSMA, the Fraud Act 2006, the Theft Act 1968 or the common law offence of conspiracy to defraud.” 61. We conclude, with no real hesitation, that the direct route is available to the SFO, via the DRS in the CR1 Prospectus: i) As a matter of policy, there is every justification for directors to face personal liability for false statements within s.2 of the Fraud Act in company prospectuses. ii) Such a conclusion accords with the longstanding, well-recognised and understood position in civil law relating to directors’ liability and criminal law in the very closely related area of FSMA. iii) There is no warrant for affording less protection to investors and market integrity by precluding personal criminal liability in the specific context of prospectuses and under the Fraud Act. iv) The conclusion to which we have come gives effect to the ordinary, natural meaning of the wording “ makes a false representation” in s.2 of the Fraud Act and, equally, to the plain wording of the DRS. 62. It follows that we part company with the Judge insofar as he held that there was no case to answer in respect of either JV or CL making a false representation within s.2 of the Fraud Act arising out of the CR1 Prospectus. The Judge’s conclusion involved, with respect, an error of law, so entitling this Court to intervene pursuant to s.67(a) and/or (b) of the CJA 2003. Under this heading, therefore, the case can proceed against all the Respondents on Count 1, subject only, in the case of JV, to the outcome on Issue IV. 63. We add only this. First, we have not approached the DRS as a statement made by JV and/or CL as agents of Barclays. We prefer the view that, in accordance with the ordinary meaning of language, both the directors (JV and CL) and Barclays made and accepted responsibility for that statement as principals. If, however, it could be said that the DRS had been made by JV and/or CL as agents of Barclays, that would be of no assistance to the Respondents. In such circumstances, Lord Hoffmann’s trenchant observation in Standard Chartered Bank v Pakistan Shipping Corpn [2002] UKHL 43 ; [2003] 1 AC 959 , at [22], would be squarely in point: “No one can escape liability for his fraud by saying: ‘I wish to make it clear that I am committing this fraud on behalf of someone else and I am not to be personally liable’.” 64. Secondly, if for any reason the DRS was not (arguably) a false representation made by JV and/or CL and was instead to be treated as a false representation made by Barclays only, then we would accept Ms Darlow’s alternative (or “adjunct”) submission – namely, that the wording of the DRS entailed the contemporaneous adoption by JV and/or CL of Barclays’ false representation. As explained in Ormerod & Laird, Smith, Hogan and Ormerod’s Criminal Law (15 th ed., 2018) (“ Smith, Hogan & Ormerod” ), at p.939, the offence under s.2 of the Fraud Act can be committed by any person who makes a false representation. Thus ( ibid ), D will be liable for his personal representations and: “….might also be liable for representations of third parties which he can be said unambiguously to have adopted…..” 65. (C) The SAs: CR1 and CR2: The SAs formed part of both CR1 and CR2 and featured in both Counts on the Indictment. With regard to CR1, Barclays agreed SAs with five investors; four of those SAs were signed by CL, one by JV. With regard to CR2, the SAs entailed a commitment by investors to take MCNs, RCIs and Warrants from Barclays. Six SAs were made between Barclays and the investors in question; all were signed by CL. In all cases, the SAs were signed by the individual director “for and on behalf of” Barclays. 66. The CR1 SAs, dated 25 June 2008, each contained a warranty from Barclays , as follows: “8. WARRANTIES AND BARCLAYS UNDERTAKINGS 8.1 Barclays hereby warrants to the Investor that each of the Warranties in Part A of Schedule 1 ( Warranties ) is true, accurate and not misleading as at the date hereof.” In turn, Schedule 1, Part A included the following provision: “(B) Other than as disclosed in the Subscription Agreements and the Draft Prospectus, and in respect of the subscription of Barclays Ordinary Shares under the Subscription Agreements: (i) there are no further agreements or arrangements entered into between the Investors and Barclays; and, (ii) Barclays has not agreed to, nor intends to pay any fees, commissions, costs, reimbursements or other amounts to the Investors.” 67. Mutatis mutandis , the CR2 SAs, dated 31 October 2008, contained warranties on the part of Barclays to like effect. 68. The false representation is again said to flow from the (alleged) disguised commission payments to the Qatari entities. 69. The SFO “direct route” case pursuant to the SAs turns on their signature by CL (and, in one instance, JV). It is not and cannot be suggested that the warranties were given by either JV or CL. 70. As set out in the Ruling (at [167], [171] - [172] and [174] – [175]), it was not in dispute that the signing of the SAs was “mechanical” in the sense that the anterior decision had been made by the Board and whoever signed the SAs would be merely executing them. Moreover, the signing of the SAs took place pursuant to a delegation by the Board (it would seem through the BFC) to “any Director, the Company Secretary or the Group General Counsel” to do so. 71. Two questions arise. The first goes to the signature as such. In our judgment, the fact of signature, even though a matter of happenstance as to which individual signed, cannot be dismissed in the manner contended by the Respondents, as a mere “formal execution”. In determining whether the signature of the SAs was capable of amounting to a false representation within s.2 of the Fraud Act, the factual nexus between the director signatory and the SAs would be relevant. If, for example, the SAs were signed for and on behalf of Barclays by an individual director who knew that the warranties were false or misleading, having been involved in a conspiracy beforehand to make false representations, then the question of the applicability of Lord Hoffmann’s observations in Standard Chartered would call for careful consideration. That said, given the terms of the SA, and the absence of any DRS, there would remain the difficulty of showing how that would involve a false representation made by a conspirator rather than by the company alone. 72. Secondly, however, the signature point does not stand alone. The Respondents are charged with statutory conspiracy under s.1(1) of the CLA 1977. That section provides as follows: “(1) ….if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions… (a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement… ….. he is guilty of conspiracy to commit the offence or offences in question.” 73. The category of authorised signatories was far wider than the conspirators themselves. Thus, the terms of the delegation were such that any director could have signed the SAs; so too, the Company Secretary or Group General Counsel. This meant that it was a matter of chance who signed them and there was no evidence of an agreement between the conspirators to a course whereby JV or CL would necessarily do so. In short, with regard to the SAs, the (alleged) agreement upon which the SFO’s case rests would not necessarily have amounted to or involved the commission of an offence “by one or more of the parties to the agreement”. 74. Accordingly, and for this reason (whatever view might be taken of the signature point), the SFO’s case with regard to the SAs does not satisfy the requirement of s.1(1) of the CLA 1977. We dismiss the appeal insofar and to the extent that it rests upon the SAs. 75. (D) The RCI and MCN Prospectuses: CR2: We take this point summarily. As explained in the Davis LJ judgment (at [25]), the structure of CR2 included ( inter alia ) Reserve Capital Instruments (“RCIs”) and Mandatorily Convertible Notes (“MCNs”). Not being equity prospectuses, the RCI and MCN prospectuses were not preceded by DRLs; nor did either contain a DRS. These prospectuses were not signed by an individual director, so they were not at all comparable with the SAs in that respect. When asked by the Court, Ms Darlow very fairly accepted that, by themselves , the RCI and MCN Prospectuses (and thus Particulars i and ii under Count 2 of the indictment) could not be relied upon in support of the direct route or, hence, any appeal. Whether the RCI and MCN Prospectuses have any relevance to these proceedings depends on the fate of the SFO appeal against the Judge’s refusal of its application to amend the Particulars under Count 2 of the Indictment in respect of the Warrant Prospectus, the matter to which we next turn. 76. (E) The Warrant Prospectus: CR2: As already seen, the Particulars under Count 2 of the Indictment contain no reference to the Warrant Prospectus dated 25 November 2008 (“the Warrant Prospectus”), which formed part of CR2. 77. Before the Judge, the SFO renewed an earlier unsuccessful application to amend the Indictment, so as to add the following Particulars iii, iv and v under Count 2 – with the existing Particulars iii and iv (set out above) becoming Particulars vi and vii. “iii. (In the Warrant Prospectus dated 25 November 2008) that the estimated issue costs of the RCI and Warrants were £95 million and that the estimated issue costs of the MCNS were £175 million. iv. (In the Warrant Prospectus dated 25 November 2008) that, to the best of the knowledge of John Varley, who had taken all reasonable care to ensure that such was the case, the information contained in the Prospectus was in accordance with the facts and did not omit anything likely to affect the import of such information. v. (In the Warrant Prospectus dated 25 November 2008) that, to the best of the knowledge of Christopher Lucas, who had taken all reasonable care to ensure that such was the case, the information contained in the Prospectus was in accordance with the facts and did not omit anything likely to affect the import of such information.” 78. Thus, the nub of the allegation that the SFO was seeking to introduce pursuant to the proposed amendment was that the RCI and MCN issue costs had been knowingly under-stated by the £280 million which Barclays had agreed to pay the Qatari entities under ASA2. 79. The Warrant Prospectus was required to be and was preceded by DRLs, addressed to Barclays, dated 20 November 2008 (“the November DRLs”), signed by JV and CL. Para. 1 of the November DRLs recorded that the signatory had read a “proof of the Prospectus dated 18 November 2008 (the final version of which is expected to be published on or around 25 November 2008)”. Para. 12 of the November DRLs was in the same terms as para. 12 of the DRLs set out above and dealing with future material changes. 80. The proposed amended Particulars were underpinned by the contents of the Warrant Prospectus, which contained the following DRS (“the November DRS”): “The directors of the Warrant Issuer (the ‘Directors’), whose names appear on pages 55 and 56 of this document, and the Warrant Issuer accept responsibility for the information contained in this Prospectus. To the best of the knowledge of the Directors and the Warrant Issuer (having taken all reasonable care to ensure that such is the case), the information contained in this Prospectus is in accordance with the facts and does not omit anything likely to affect the import of such information.” The names of JV and CL appeared at p.55 of the Warrant Prospectus. Footnote 5, at p.75 is in these terms: “For accounting purposes - ….the net proceeds of RCIs and Warrants of £2,905m (representing the £3,000m issuance, net of estimated issue costs of £95m)…. - ….the net proceeds of the MCNs of £3,875m (representing the £4,050m issuance, net of estimated issue costs of £175m)…” 81. Mr Purnell QC, for the Respondents, very realistically and properly made plain that there was no suggestion of prejudice flowing from the amendment (if permission to amend was otherwise justified). It is therefore unnecessary to take time considering the history of the proposed amendment. It suffices instead to record the Judge’s reasons for refusing permission to amend (at [187] of the Ruling): “There is a further difficulty with the Warrants Prospectus in connection with Count 2. This is not so much procedural as substantive. The SFO’s reliance on the representations in the MCN and RCI Prospectuses creates no difficulty on the facts, and also recognises that it is the co-existence of the £280M with the statements made in them that engenders the falsity. The argument becomes strained and artificial in relation to statements made in the Warrants Prospectus because these were true even if the £280M is taken into account. The SFO relies on recondite statements in unaudited financial information referred to in the Warrants Prospectus which were introduced very late in the day. This was not new information. There is really no evidence that JV and CL applied their minds to this, either generally or in the context of the DRLs signed on 20 th November. Although I have no difficulty with the submission that for the purposes of s.5 of the Fraud Act 2006 specific intent can be proved by demonstrating that the directors must have appreciated that the extra £280M would falsify the MCN and RCI Prospectuses, I accept the defence submission that this becomes entirely artificial, indeed untenable, in relation to the Warrants Prospectus. This is a synthetic argument which aspires to transcend a legal difficulty. My January 2019 ruling was correct, although not given for all the right reasons, and I will not reverse it.” 82. Ms Darlow QC’s submission is straightforward. Whether or not the statements were “recondite” and contained in the footnotes did not matter; the three prospectuses were all part of CR2 and were not independent documents; JV and/or CL must have known that the public documents contained false representations by reason of the £280 million “hole”. The amendment should be allowed; the case based on the false representation in the Warrant Prospectus as to the financial information in the RCI and MCN prospectuses was fit to be left to the jury to decide. 83. Mr Purnell QC focuses on timing in particular, together with the evidential basis for the proposed amendment; by this route he sought to uphold the Judge’s reasoning and conclusion. The November DRLs were dated 20 November. As those DRLs stated in terms, the draft Warrant Prospectus to which the signatories had specific regard was that of 18 November. The 18 November draft Warrant Prospectus contained nothing comparable to footnote 5 in the (25 November) Warrant Prospectus. There was nothing to show that any of the alleged conspirators “could have ever conceived that the warrant prospectus would contain this recondite information which was not present in the prospectus when the directors had signed their responsibility letters”. 84. Notwithstanding Mr Purnell’s excellent submissions, we cannot agree with the Judge’s reasoning or conclusion. We think there is a case fit to go to the jury that JV (subject to Issue IV) and/or CL must have known of the false representations in the public-facing financial documents by reason of the agreement in ASA2 to pay the £280 million. Ultimately, whether the jury conclude that there was such knowledge is a matter for them. It is at that stage that the “recondite” nature of the material in question can fall for consideration. As to the timing point, we accept Ms Darlow’s submission that late changes to the Warrant Prospectus were capable of giving rise to personal criminal liability. 85. For the reasons given, we are persuaded that the Judge erred in law, so entitling this Court to intervene, here too, pursuant to s.67(a) and/or (b) of the CJA 2003. Accordingly, we allow the appeal from the Judge’s Ruling on this point and permit the amendment of the Indictment to include the new Particulars (iii. – v., under Count 2) in the Warrant Prospectus. 86. (F) Ramifications: It follows, therefore, that the SFO’s case by way of the direct route, is fit to go to the jury in respect both of Count 1 (the CR1 Prospectus) and Count 2/CR2 (the Warrant Prospectus and its cross-reference to the RCI and MCN Prospectuses). This outcome affects all the Respondents, save that in the case of JV alone, it is subject to our conclusion on Issue IV. ISSUE II: INNOCENT AGENCY 87. (A) Introduction: The SFO’s second proposed route to legal liability was “Innocent Agency”. A useful definition of “innocent agency” (cited with approval in R v Stringer (1992) 94 Cr App R 13 , at p.16), is set out in Glanville Williams, Textbook of Criminal Law (4 th ed., 1978), at p.316, drawn from the Law Commission Working Party : “A person acts through an innocent agent when he intentionally causes the external elements of the offence to be committed by (or partly by) a person who is himself innocent of the offence charged by reason of lack of a required fault element, or lack of capacity.” Two graphic examples are then immediately supplied ( ibid ): “Not only common law but statutory offences can be committed by proxy. When Fagin sends Twist to steal handkerchiefs, Fagin ‘appropriates’ a handkerchief, within the meaning of the Theft Act, at the moment when Twist takes it. If Dodge gets Dupe to write a false document, then if Dupe does not know of the falsity Dodge can be held responsible for ‘making’ a forgery by the hand of Dupe.” 88. Two general considerations can conveniently be mentioned at this stage. First, the liability of the perpetrator (acting through the innocent agent) is that of a principal , not an accessory . This is an important consideration for the SFO, given the difficulties facing an allegation of statutory conspiracy based on accessory liability (see below). With regard to liability as a principal, as set out in Smith, Hogan & Ormerod , at p.183: “If D1 and D2 agree to employ an innocent agent, E, both D1 and D2 are liable as principal offenders for E’s acts when they are committed….. The innocent agent’s acts are considered the acts of both conspirators.” The learned authors cite in support the longstanding authority of Bull and Schmidt (1845) 1 Cox CC 281, where the perpetrators were in terms described as “principals”. See too, R v Millward [1994] Crim LR 527, at p.530 (para. (ii)(a) of the “restatement”). 89. Secondly and as the Judge held (Ruling, at [197(1)]), the doctrine of innocent agency is capable of applying to statutory conspiracy under s.1(1) of the CLA 1977. Innocent agency has long been available in the context of a common law conspiracy: Bull and Schmidt (supra) . There is nothing in the CLA 1977 to suggest that Parliament intended to disapply the common law rule in the case of statutory conspiracies. This is obviously sensible; consider, for example, two individuals who agree to send a letter bomb through the post, employing an innocent agent to put the bomb into a post box. There is a strong policy interest in discouraging conspirators from seeking to commit offences through unsuspecting third parties. 90. (B) The Ruling: In short summary, while accepting (as already noted) that innocent agency was capable of applying to a statutory conspiracy, the Judge ruled that the innocent agency route to liability was precluded to the SFO even if there was otherwise a case to answer on the merits against all the Respondents. 91. First (“point 1”), the Judge held that the SFO’s case on innocent agency failed for the same reason as its case on the direct route; only the company could ever have committed the offence under s.2 of the Fraud Act; no individuals could have “committed an offence in the public-facing documents” and, therefore, they could not be regarded as principals: see, esp., at [225], [228] and [229]. 92. Secondly (“point 2”), the Judge held (at [235] – [244]) that, on its true construction, s.2(2) of the Fraud Act could never apply to a case of innocent agency. At [236], he said this: “….s.2(2) has two elements: the representation as made must be untrue; the person making it must know that. The representation is not ‘false’ unless these two elements are in place.” On this footing, if the maker of the representation lacks knowledge, there is no false representation for the purposes of the provision. Interposing, it may of course be added that if the agent had such knowledge, he would not be an “innocent” agent. It followed that the doctrine of innocent agency was inapplicable to all cases concerning s.2(2). This outcome was “uncomfortable” and “close to being absurd…and may well have been unintended”. However, the language of s.2(2) was clear; this was a criminal statute and the “principle of legality” applied. Many of these difficulties arose because the SFO had chosen to frame the indictment in a particular way. 93. (C) The rival cases: Ms Darlow QC submits that the doctrine of innocent agency was a feature of the common law and plugged the lacuna that would otherwise exist in the law if conspirators could agree to commit crimes through unsuspecting third parties. The Judge had been wrong to conclude that there was no room for innocent agency here. Point 1 was a world away from other examples where innocent agency was inapplicable. As to point 2, the construction of s.2(2) adopted by the Judge was absurd - and absurd constructions were to be avoided in penal as well as non-penal statutes. S.2(2) should instead be construed so that “the actus reus is the making of a false representation, the mens rea is dishonesty, intention and knowing that it is or might be untrue or misleading”. 94. Mr Purnell QC submits that the Judge’s decision was correct and should be upheld. There was no “closed category” of cases where innocent agency was inapplicable. It was so here, having regard to the specifics of the case. Moreover, innocent agency was precluded by the clear definition of false representation contained in s.2(2) of the statute. The Fraud Act had not been enacted in haste (anything but) and the construction favoured by the Judge was not absurd. 95. As became clear following exchanges between the Court and Mr Purnell QC, points 1 and 2 and only those two points were taken in opposition to the applicability of innocent agency here. To repeat, point 1 was that only Barclays could make the representations. Point 2 went to the construction of s.2(2) of the Fraud Act. If wrong on both those points, Mr Purnell expressly disclaimed any “point 3”. While he submits that it was “impossible to conceive” of the Board of Barclays “with its governance processes and….collective decision-making” being the agent through which individuals could make the indicted representations, that was a component of points 1 and 2, not a separate point 3. It follows that matters relating to the factual context and the panoply of Barclays corporate governance such as those alluded to in the Davis LJ judgment (at [46] and, especially, [126]) are for any trial in this matter and (other than as part of points 1 and 2) do not comprise an objection at this stage to the applicability of innocent agency. We understand the realism of Mr Purnell’s stance, especially having regard to the unavoidable factual content of any point 3 (along the lines we have outlined) – very much including the likely debate as to the improbability of Barclays being an innocent agent not exercising independent judgment ( cf. Stringer, supra , at p.17) on the one hand, set against the impact of the (alleged) fraud on Barclays’ decision-making process, on the other. 96. (D): Point 1: Point 1 can be swiftly disposed of. It falls away in the light of our conclusion on the direct route, discussed above. We held there that individual Respondents were capable of committing offences, as principals, under s.2 of the Fraud Act in the public-facing documents. That conclusion suffices to eliminate the Judge’s objection to the applicability of the doctrine of innocent agency under point 1. 97. (E) Point 2: Point 2 turns on the true construction of s.2 of the Fraud Act. With respect and for the reasons which follow, we are unable to accept the Respondents’ and the Judge’s construction of the section. 98. First, there is no intrinsic reason why innocent agency should be inapplicable to s.2 of the Fraud Act. 99. We accept, of course, that there are limitations on the doctrine of innocent agency. As expressed in Glanville Williams (op cit, at p.316 ) , the doctrine can be used “only when it is plausible to say that the defendant did the forbidden act in the forbidden circumstances”. The Law Commission Working Party is again of assistance: “A person is not guilty of committing an offence through an innocent agent when the law provides or implies that the offence can be committed only by one who complies with a particular description which does not apply to that person, or specifies the offence in terms implying personal conduct on the part of the offender. ” Thus, a woman could not be convicted of rape - as a principal - through the innocent agency of a man (though there is no bar to a woman incurring accessory liability for rape where the facts so warrant it). Put another way, for innocent agency to be relied upon, the charge must not entail contradicting the statute defining the offence (Glanville Williams, op cit , at p.320) and the principal must not lack “some characteristic essential for liability as a principal” ( Blackstone’s Criminal Practice 2019 , at A4.18). 100. So too, we are content to proceed in agreement with Mr Purnell’s submission that there is no “closed list” of offences where innocent agency cannot be invoked. 101. However, put shortly, the present matter is far-removed from the difficulties encountered in such offences as rape or bigamy. There is, here, no or certainly no relevant, lack of any “characteristic essential for liability as a principal”. 102. Secondly, we accept the SFO’s submission that prior to the Fraud Act, innocent agency has long formed the basis of convictions that today would most likely be charged as fraud by false representation. Butt (1884) 15 Cox CC 564, is a telling example. Butt was charged under the Falsification of Accounts Act 1875, with making or concurring in the making of a false entry. Butt collected a sum of money from Sheppard for his employer; he did not, however, account for the full sum but only for a lesser amount. The entry of the lesser amount in his employer’s cash book was made by a clerk, Elford, who was an innocent agent in the matter. Butt’s conviction was upheld, Lord Coleridge CJ saying this (at p.567): “ It is contended…that the statute is not broken, because the person who made the entry did not know it was false, and the person who did know it was false did not make the entry. There is high authority that, where a man who knew of the falsity of the representation he was making made such representation by means of an agent who was ignorant of its falsity, there is no fraud…but that was in a civil action, and is, I believe a decision not universally approved of. This is clearly a false entry as far as Sheppard is concerned. It purports to represent receipts from the persons who have been entered as making payment of such receipts, and it seems to me clear that the prisoner either made it with the innocent hands of Elford, or concurred in the innocent hands of Elford making it. I am of opinion that this conviction was perfectly right, and must be upheld.” As it seems to us, if the Judge’s construction of s.2 is correct, then Butt could not be convicted under that section today. At the very least, that would be a startling outcome, the more especially in the light of the purpose of the Fraud Act and the mischief at which it was directed (see below). (Only in passing, we underline that we express no view on what the position would now be in a civil claim on those facts and would not wish to be taken as concurring with the observations in that regard in Butt .) 103. Thirdly, the mischief at which the enactment of the Fraud Act was aimed included the technical nature of the existing law: Smith, Hogan and Ormerod , at p.928, fn. 20. The objective ( inter alia ), as expressed by the Law Commission, in its paper, Fraud (Law Com No. 276, July 2002), at para. 1.4, was: “…to ensure that the scope of the criminal law of fraud is wide enough to enable fraudsters to be successfully prosecuted and appropriately sentenced, without being so wide as to impose unacceptable restrictions on personal freedom, or so vague as to infringe the principle of the rule of law.” 104. Fourthly, against the background already outlined, it would be curious if Parliament, when enacting the Fraud Act, had impliedly intended to disapply the longstanding application of the common law doctrine of innocent agency in this area – so narrowing rather than widening the scope of the criminal law, thus at odds with the scheme of the legislation. That scheme is emphasised by the fact that the new law, unlike the old, is conduct rather than results based. Under s.2, there is no need to prove a result of any kind. The principal aim is “to make the offence easier to prove…”: Smith, Hogan and Ormerod , at p.937. Moreover, a further and likewise curious consequence of the Judge’s construction of s.2(2) is that while innocent agency would be excluded in respect of s.2(2), it would plainly remain available under s.2(5) where a representation is inputted to a system or device by way of “human intervention”. 105. Fifthly, although the Judge was correct to treat the Fraud Act as a penal statute and therefore to construe it strictly, an absurd construction, producing objectionable and undesirable consequences, is to be avoided in this sphere, as elsewhere: R v McCool [2018] UKSC 23 , at [23] – [26], per Lord Kerr. A strict construction is one thing; an absurd construction is another. 106. Sixthly, powerful support for a construction different from that adopted by the Judge is furnished by two leading textbooks. Blackstone’s Criminal Practice (2019) says this (at para. B5.13): “Section 2 defines the elements that make up a false representation. By s.2(2) a statement that is literally true may be treated as false if it is misleading, although this is complicated by the introduction in s.2(2)(b) of what is in effect a mens rea requirement masquerading as part of the actus reus….. ” So too, Smith, Hogan & Ormerod , while remarking (at p.953) that the Act “rather oddly” provides that “a statement is only false if D knows it is or knows it might be false” analyses the matter as follows (at p.937): “The actus reus requires proof that D made a representation, which is untrue or misleading, and the mens rea requires proof that D knew the representation was, or knew that it might be, false and he acted dishonestly in making the representation, and with intent to gain or cause loss or expose to a risk of loss.” 107. Seventhly, in the light of all these overwhelming considerations, we cannot agree with the Judge’s construction of s.2(2), urged upon him by the Respondents. With respect, that construction leads to absurdity, having regard to the context and scheme of the legislation. We decline to accept that the Legislature intended the consequences which would follow from this construction and there is no good reason for the legislature knowingly to have opted for it. We decline to subscribe to the counsel of despair that the legislation might, unintentionally, have produced a construction productive of absurdity; though the wording of s.2(2) is, admittedly, not free of difficulty, we are not persuaded that we are driven to reach so unpalatable a conclusion. 108. For our own part, in agreement with the SFO’s case and supported by the views expressed (in particular) in Smith, Hogan & Ormerod , we are instead persuaded that the actus reus , the conduct element of the offence, is the making of an objectively untrue or misleading representation. The mens rea , or mental element is made up of the requisite knowledge, dishonesty and intention. The actus reus is therefore contained in s.2(2)(a), with the mens rea found in s.2(2)(b), s.2(1)(a) and s.2(1)(b). Such a construction occasions no difficulty when no question of agency is involved and permits the legislation to give effect to Parliament’s intention of simplifying and widening the scope of the law in this area. It remains a strict construction and does no violence to the language of s.2, provided only that the language of the section is read in context and the section is construed as a whole. To reiterate, the contrary construction, by necessarily precluding the doctrine of innocent agency, narrows the ambit of the criminal law when contrasted with its scope prior to the passing of the Fraud Act. For that, there is simply no warrant. 109. (F) Conclusion on Issue II: For the reasons given, we are persuaded that the Judge erred in law in this regard, thus permitting our intervention under s.67 (a) and/or (b) of the CJA 2003. We think there is a case to answer in respect of the innocent agency route and allow the appeal on this Issue from the Judge’s decision as set out in the Ruling. Innocent agency is applicable to both CR1 and CR2 and, hence to both Counts 1 and 2. It applies to all the Respondents, save that in the case of JV, it is subject to the outcome on Issue IV. Its fate at trial on the factual issues for the jury (not least relating to Barclays’ decision-making process) is, of course, another matter and for another day. ISSUE III: PARTICIPATION 110. Under this heading, on the premise that Barclays was not an “innocent agent”, the SFO’s case was that the Respondents committed the statutory offence of conspiracy by “participation” in it – incurring secondary liability by procuring the issue of false prospectuses by Barclays. That, by reason of the May 2018 Ruling and the Davis LJ judgment, Barclays had not committed an offence was neither here nor there. This argument was rejected by the Judge in the Ruling, at [249] and elsewhere. 111. As Ms Darlow QC accepted in oral argument, this further Issue only arises if the “innocent agency” route to liability is not available to the SFO. In the light of our conclusion on Issue II, this Issue therefore does not need to be determined. Given its complexity, we do little more than note it and draw back from expressing any concluded view. 112. The complexity arises in this way: i) In Hollinshead (1985) 80 Cr App R 285, this Court held ( inter alia ) that a conspiracy to aid, abet, counsel or procure an offence was not itself capable of constituting a statutory conspiracy under s.1(1) of the CLA 1977. Hollinshead was, itself, a case of procuring. ii) There was an appeal in Hollinshead to the House of Lords: see, [1985] 1 AC 975. The leading speech was given by Lord Roskill. On this point, Lord Roskill did not find it necessary to consider whether or not the Court of Appeal’s view was correct; on the facts, even if the count was sustainable in law, the respondents could not, on any view, have been convicted. Lord Roskill added, strictly obiter (at p.998), that if this question of law arose in a future case “…it should be treated as open for consideration de novo , as much may depend on the particular facts of the case in question”. iii) In R v Kenning [2008] EWCA Crim 1534 ; [2008] 2 Cr App R 32 , this Court held that an agreement to aid and abet an offence was not in law capable of constituting a criminal conspiracy under s.1 of the CLA 1977. Even if the would-be aiders and abettors performed all the acts to which they had agreed, there was no certainty that the primary offender would commit the primary offence; accordingly, the course of conduct of the aiders and abettors would not necessarily amount to the commission of an offence. When giving the judgment of the Court, Lord Phillips of Worth Matravers CJ referred to Hollinshead – in both the Court of Appeal and the House of Lords – and went on to say this (at [21]): “Whether, in these circumstances, the reasoning of the Court of Appeal remains a binding precedent may be a matter for debate. Whether it is or not, we endorse the court’s conclusion that an agreement to aid and abet an offence is not in law capable of constituting a criminal conspiracy under s.1(1) of the 1977 Act…” 113. In the light of Kenning , Ms Darlow QC’s central submission is that the present case was one of a secondary party (allegedly) procuring the offence; procuring was different from aiding and abetting because there was far greater certainty that the result would be achieved. The authority of Kenning did not extend to bind us in respect of procuring , as distinct from aiding and abetting. In any event, there was a difficulty with the judgment of Lord Phillips in that liability in conspiracy crystallised upon the making of the agreement; it did not depend on the inevitability or certainty that the substantive offence would be committed. 114. Mr Purnell QC counters by submitting that there was no proper basis for distinguishing Kenning (or Hollinshead) , given that (as already noted) Hollinshead was itself a case of procuring. In any event, no “special route” could be fashioned out of “procuring”, because s.1(1) of the CLA 1977 required that the offence committed, would be committed by one or more of the conspirators. That requirement could not be satisfied on the facts of the present case. 115. As already foreshadowed, we express no concluded view on this Issue. The question of whether procuring is different from aiding and abetting , so that Kenning is not binding, is not necessarily straightforward. It best awaits a case where the outcome turns on it. In any event and assuming that the SFO could have overcome that legal hurdle in its path, Mr Purnell QC’s factual submission struck us as formidable though, again, we have not reached a decision on it. Beyond this, we do not go. ISSUE IV: EVIDENTIAL SUFFICIENCY OF THE CASE AGAINST JV 116. Under this Issue, we address the SFO’s Grounds of Appeal, 5 and 6, going to the evidential sufficiency of the case against JV. The relevant test, here too, is contained in s.67, CJA 2003 (already set out). 117. In the present case, in addressing whether there was a case which could properly be left for the jury, the Judge identified the crucial question for each conspirator as being whether there was sufficient evidence of knowledge by him that no genuine services would be provided under ASA1 (for Count 1) and ASA2 (for Count 2) – i.e. that they were sham agreements. 118. Although the SFO had been resistant to the Judge’s insistence that this was a necessary element of its case, ultimately this was not and is not challenged. 119. The SFO invited us to consider first the evidential sufficiency of the case on Count 2. JV’s evidential footprint was greater in relation to Count 2 and if, as the SFO contends, the Judge’s approach was unreasonable and in error, then it submits that that would provide relevant context for the consideration of Count 1. We did consider the Counts in that order but, for the purpose of this judgment, we shall address the Counts chronologically. In so far as the SFO made criticisms of the Judge’s approach in relation to both Counts, these are addressed under Count 2. Ground 5 - Count 1 120. With regard to the knowledge of JV in relation to ASA1, the principal findings made by the Judge are as follows: (1) In May/June 2008, market conditions were relatively benign, Barclays was outperforming the market, the Qatari entities were desirable investors, but not essential [486]. (2) On 23 May 2008, JV and Mr Diamond attended a high-level meeting with representatives of the Qatari entities with the purpose of persuading them to invest, although they were to tell them that they wanted a strategic as much as a financial partnership [488]. (3) JV was aware that Barclays was negotiating its proposed placement on the basis of a commission or fee to all the conditional placees of 1.5% [489]. (4) On 3 June 2008, Dr Hussain demanded 3.75% for the Qatari entities but also said that he wanted a strategic relationship [489]. (5) Dr Leighton was asked by RB to perform some indicative calculations of effective entry prices based on a strike price of 360p/share and commission rates of 1.5, 3.25 and 3.5%. These were sent to JV, copied to Mr Diamond. On 3 June 2008, when TK and RB were discussing the topic, it was reported that JV could “live with” 3.5% [489]. (6) On 5 June 2008, JV reported to Mr Agius – the Barclays Chairman -that “Quail is bagged at 2bn of the conditional”. The Judge found that this was on the basis of a “composite fee” of 3.25% but that this was not an “underwriting fee”, and the agreement was subject to contract [490]-[491]. (7) JV “was aware in general terms that efforts were undergoing within the bank to pay Qatar the extra 1.75%” but “there is no evidence that any of the possible solutions were run by him” [492]. (8) Such solutions or mechanisms could have been lawful and “the inference that JV must have been aware that the solution was going to have to be unlawful is not supported by the evidence” [492]. (9) On 10 June 2008, RJ emailed JV with the news that the Qatari entities “are in a good place” and JV replied: “Fine roger. Thanks. When the dust settles let me know what I should do to thank him [Sheikh Hamad], and memorialise in some way our new partnership.” The Judge found that “the notion that JV would memorialise a sham agreement makes no sense” [493]. (10) At a Board meeting attended by JV on 11 June 2008, the fees were recorded as being 1.5%. The Judge found that this involved no misrepresentation: “the extra arrangement with Qatar was not mentioned because the concept of the ASA had not been conceived. The problem was in the inbox and no solution had been found” [494]. (11) The Judge found that “the precise stage at which JV became aware of ASA1 as a concept is unclear”, but “the inference cannot reasonably and properly be drawn from all the circumstances that JV knew or believed that ASA1 was a sham arrangement” [495]. (12) JV had “next to no involvement in the development, negotiation or execution of ASA1” and there is “next to nothing” in the subsequent material “which could generate the inference that JV became aware that ASA1 was not as it purported to be” [496]. (13) ASA1 was approved by the Board and the BFC on 19 June 2008 on the basis of “certain agreed fees” which were not spelt out. JV and CL led the meetings and “the inference must be that they were both aware that the agreed fees represented in arithmetical terms the difference between 1.5% and 3.25%” [498]. Legal advice was to the effect that the existence of ASA1 had to be disclosed in the Prospectus but not the level of the fee, because it was not a “material contract”. The Judge found that: “there may be some force in the contention that JV should have been entirely forthcoming with the Board and the BFC, if for no other reason that these arrangements were not free from difficulty, controversy and the taint of suspicion, and the issue could always return to bite Barclays’ back. However, any further inference of knowledge, belief and/or dishonesty could not reasonably be drawn from these primary facts” [500]. (14) There was “no evidence that JV knew of the various iterations of ASA1 with its expanding and then shrinking list of services, and of the incidence of LIBOR interest” [501]. (15) JV signed a version of ASA1 with the fee of £42m written in rather than typed, having been told that it was the “fee letter” [502]. There was “no evidence that JV knew the exact amount or its precise mode of calculation, beyond the 1.75%” [503]. (16) On 25 June 2008, CR1 was launched to the market, following which Mr Diamond opened a “Q and A” session with investors with a brief speech which lauded the advisory relationship with the Qatari entities and its commercial importance to the bank. JV was present on that occasion [502]. 121. In seeking to show that the Judge’s conclusion was not reasonable, the SFO emphasises, in particular, the following: (1) JV’s knowledge of the Qatar entities’ demand for fees of 3.75%. (2) JV’s knowledge that the fees for CR1 were to be 1.5% for all placees. (3) JV’s approval of payment of fees to the Qatar entities of up to 3.5%. (4) JV’s agreement to fees of 3.25%. (5) JV’s failure to mention any agreement to pay fees of more than 1.5% at the 11 June 2008 Board meeting. (6) JV’s knowledge that the “agreed fees” for ASA1 represented the 1.75% difference between 1.5% and 3.25%. (7) JV’s failure to disclose what those fees were at the Board meeting of 19 June 2008. (8) JV’s signing of ASA1 and doing so in the context of its description as a “fee letter”. 122. The SFO contends that (i) for ASA1 to be a stand-alone agreement for value, the Qatari entities would have had to have abandoned the agreed “subscription” fee of 3.25% just days later, (ii) that a reasonable jury would have been entitled to conclude that JV must have known that this proposition was unrealistic, and (iii) that JV must have known that the ASA was being used as a mechanism to pay what in truth were hidden commission fees and was not a genuine agreement for value. 123. Particular criticism is made of the Judge’s finding that the 3.25% fee to which JV agreed was a “composite” fee. Mr Brown QC for the SFO contends that up to this point all the documents refer to fees in relation to the proposed subscription and that this can be the only basis upon which the fee was being agreed. This was in reality a subscription fee and the Judge should have so found. 124. As Mr Purnell QC points out, this is to assume what the SFO has to prove. It is not in dispute that JV knew that an overall fee for the Qatari entities was agreed at 3.25% and that a means of paying them the extra 1.75% had to be found. The means or mechanism of so doing was yet to be identified, but it did not have to be unlawful or dishonest. 125. As the Judge explained at [306]: “….The fact in issue for the jury is always the following: was ASA1 a disguise for an additional fee for subscribing or was it the intention of the parties that genuine services would be provided? Proof of the mechanism, without more, does not prove that the parties did not intend that genuine services be provided. The parties could have reached an agreement to that very effect notwithstanding that all the various elements of the SFO’s case were satisfied. This is because RJ and Sheikh Hamad could lawfully have agreed that Qatar would provide services and be paid for them on the basis of the 1.75%....” 126. JV was not involved in the discussion of the means by which the extra 1.75% was to be paid or in the development and negotiation of ASA1. JV did come to know that ASA1 was the agreed means of doing so and he signed it. As the Judge made clear, however, knowledge of the “mechanism” of ASA1 does not connote knowledge that it was a dishonest mechanism. The critical question, as the Judge correctly identified, was whether ASA1 was a sham, in that it was not intended that any services were to be provided under it, and whether JV knew that. 127. On its face, ASA1 was an agreement for services and the Qatari entities could easily provide services of real value under it. Barclays had been seeking a strategic relationship and such relationships were of commercial importance to it. Unlike the other conspirators, JV had not been involved in the development of ASA1 or participated in the exchanges which might suggest knowledge that it did not mean what it said. As Mr Purnell QC submits, JV had no more than “book-end involvement” in the development and execution of ASA1. 128. The Judge found that “the inference that JV must have been aware” that the “solution” to be found for paying the extra 1.75% “was going to have to be unlawful is not supported by the evidence”. Nor was there any direct evidence relating to JV to support the inference that JV knew that the solution found, ASA1, was in fact unlawful. On its face it was a lawful agreement for value. Barclays wanted a strategic relationship with the Qatari entities. ASA1 seemingly provided such a relationship and there was the possibility of services of real value being provided. 129. In the light of JV’s lack of involvement in the development and negotiation of ASA1, and in any of the exchanges potentially implicating the other defendants as identified by the Judge, we consider that the Judge was entitled to treat the case against JV differently to that against the other defendants. 130. For reasons set out below, we reject the criticisms of the Judge’s general approach, in so far as relevant to Count 1. 131. In all the circumstances, we consider that the Judge was entitled to rule that there was insufficient evidence upon which a reasonable jury could convict JV on Count 1. On any view that ruling was within the range of reasonable conclusions open to him. Ground 6 - Count 2 132. With regard to the knowledge of JV in respect of ASA2, the principal findings made by the Judge are as set out below. Additional details and explanatory comments derived from the documents have been added in brackets. By way of general background these events took place during the height of the financial crisis (see above) and the Judge found the threat to Barclays during the last week of October 2008 to be “existential”: (1) (In relation to Barclays’ need for further capital), on 3 October 2008, Barclays’ senior legal counsel, MD, prepared a draft extension to ASA1 to cover a fee of $49m referable to an investment Qatar was planning of $1.3 billion. The investment did not go ahead. The draft extension did not purport to supersede ASA1 but covered “additional services” relating to the same time period and region and stated that it was “in recognition of the great success of the agreement to date” [562]-[563]. (2) (On 8 October 2008, HMG “bail-outs” for banks were announced). (3) (On 13 October 2008, Barclays announced that it would raise capital outside of the “bail-out” arrangements). (4) (It was originally envisaged that further capital would be raised through a rights issue, but it was considered that this would take too long and be too expensive. The Qatari entities were then considered as a potential source of further capital, and they introduced Abu Dhabi entities as a further potential source). On 21 October 2008, there was a dinner at RJ’s home, attended by JV, with Sheikh Hamad and his team. Following the dinner, Mr Agius and others were informed by JV by email that the Qatari entities “will be very demanding on economics”. The Judge observed that “Barclays’ bargaining position was extremely poor, and the choice was between Middle Eastern SWFs and HMT” (Sovereign Wealth Funds and Her Majesty’s Treasury) [567]. (5) On 22 October 2008, there was a meeting of the BFC. JV reported to the BFC the outcome of the “conversation” with the Qatari entities the previous evening. Fees were mentioned in a “general discussion about ballpark figures”. It was noted that the Qatari entities were asking for £600m and that Barclays could increase to £325m “where 3% for RCI + 5% for Equity + rest on arrangement fees. We put 120m to them + they laughed” [567]-[570]. (The arrangement fees referred to a payment to the Qatari entities for introducing the Abu Dhabi entities). The Judge found that “the inference cannot necessarily be drawn that the whole of Qatar’s demand, whatever it was, would be accommodated under the arrangement fee” [569]. (6) On 24 October 2008, Barclay’s lawyers, Clifford Chance, sent instructions to Michael Todd QC to advise on the proposed transactions. These instructions were on the basis that there would be an arrangement fee and a co-operation agreement. (In relation to the co-operation agreement the instructions stated: “The Proposal includes BB entering into an agreement with Q on an arm’s length basis pursuant to which the parties would agree to further their mutual business interests in a particular region. Instructing Solicitors’ view is that, provided the co-operation agreement is on normal commercial arm’s length terms and provides a bona fide corporate benefit to BB, it is irrelevant for the purposes of unlawful financial assistance or commissions. Does Counsel agree?”) (7) The Judge considered that the inclusion of a co-operation agreement in the proposal was likely to be because Clifford Chance had identified that “the whole of the additional value” sought by the Qatari entities could not be met through arrangement fees because of the 10% limit imposed under s.97 of the Companies Act 1985 . Mr Todd advised by telephone that the maximum amount that could be paid as an arrangement fee was £65m. There was evidence that MH (Barclays’ Group General Counsel) and Clifford Chance were discussing the issue on the basis of an advisory fee under the cooperation agreement in the region of £120m. At around the same time there was a telecon between MH and both JV and CL where it was said that any other payment to the Qatari entities would be for other commercial services and at market. The Judge observed that Clifford Chance understood the utility of such agreements because of their role in relation to ASA1 and from their perspective that utility was predicated on genuine services. Mr Todd’s advice was discussed internally [572]-[573]. (8) On the same day a spreadsheet was created and the Judge found that “it is probable that the spreadsheet was started before Mr Todd’s consultation finished”. The spreadsheet showed the total fees to all the investors as £500m. The fees were separately itemised as £240m (the 4% on the MCNs), £70m (the 2% on the RCIs) and in relation to the Qatari entities specifically, £65m (the arrangement fee) and £125m (described as a “separate agreement”). The Judge stated that, “[t]he point is that someone had it in mind to place the additional value into a “separate agreement”” [574]. (9) An email sent after 17:16 on 24 October 2008 to CL included a “summary of proposed transaction” which did not include the £125m [575]. (10) (That evening there was a telephone conversation between JV and Sheikh Hamad). An email sent at 19:42 from JV informed CL and others, “I believe that we have a deal”. JV described himself and Sheikh Hamad as being “properly triangulated”. The Judge inferred from this that JV had agreed with Sheikh Hamad that the Qatari entities’ demand to receive “additional value”, whatever it was, was to be placed in a separate agreement. The Judge further inferred that this was to be an advisory services agreement and that JV knew that. The discussions were on the basis of £125m and any agreement was “subject to contract” and “could not be regarded as completely in the bag” [575]. (11) Mr Todd’s advice was that an advisory agreement was perfectly lawful provided that genuine services were being provided [576]. (The signed note of consultation states: “Counsel agreed that if there were any co-operation agreement between Q and BB on normal commercial arm’s length terms providing corporate benefit to BB this would not be problematic for the purposes of unlawful financial assistance or commissions.” For completeness, it does not appear that Mr Todd was given any information about the size of any proposed fee to be paid to Qatar or, therefore, approved any particular fee.) (12) The Judge observed that: “From JV’s perspective..., the £125M fee in the advisory agreement…had been approved by the lawyers” [576], provided that genuine services were to be supplied. (13) On 25 October 2008, one of the lawyers’ “action points” was the fee letter for Qatar. “The lawyers were clearly involved in the genesis for ASA2” [573]. (14) On Sunday, 26 October 2008, there was an important Board meeting. (In the Minutes, Mr Agius was recorded as summarising “Recent Events” as follows: “The Board had encouraged management to seek a rapid solution to the capital raising requirements set by the FSA but recent market volatility had unnerved the strategic investors. Meetings with the bank CEOs and the government were making clear the strategic and operational constraints that the government would be imposing on those banks seeking government capital injections. With this background, management was working hard to achieve a transaction that made receipt of the capital certain and if possible allowed an announcement of all the parts of the capital raising package at the same time, whilst achieving the best deal possible for shareholders”). (15) (The Minutes then record JV explaining that it was proposed that the further capital be raised through the issue of £3 billion of RCIs with warrants attached and £3-6 billion of Mandatory Convertible Loan Stocks (MCLS) with the Qatari and Abu Dhabi entities as major investors.) The Judge found that “the Board was told that the fees would be £135M in relation to Abu Dhabi, and “all Q = £250”. “All Q” clearly included £30[M] + 40M + £65M = £135M. The difference between that and £250M is £115M.” The Judge inferred from this that the Board knew the missing value was at that stage in the region of £115m and that this was to be for “co-operative actions” – (i.e. ASA/co-operation agreement fees) [578]-[583]. (16) The Judge said that the best evidence that an advisory fee was mentioned by JV at the 26 October 2008 meeting was a note of Ms (now Baroness) Patience Wheatcroft: “Q fees – 2 unconnected forms of comp = £135M fee – also cooperative actions - pay them a further £115M for that reality - recognising we are paying fees in adv.” The Judge observed that: “The £135M is the aggregate of £30M + £40M + £65M. The further £115M, described as referable to co-operative actions, is the difference between that and £250M. I am not sure that any other reasonable interpretation is possible.” [581]. (17) At that same meeting Mr Diamond told the Board the following about ASA2 [583]: “BD. Good example, an enormous piece of bus. Not signed up – need to get – no connection between the 2 – The unusual circ’s – we can say that – Need a further Board Meeting – People want another chew on it – session tomorrow night we should not seek a decision then + Decision on Timing …” (18) At the Board meeting on 27 October 2008, the minutes provided that, “It was noted that, under the current proposals, the Company would pay an arrangement fee to Quail and commitment fees to the MCLS placees … It was noted that these were considered to be legitimate costs in facilitating the capital raising and that they were on normal commercial, arm’s length terms.” The Judge inferred this was a reference to the ASA fees and Mr Todd’s advice, and the key point therefore was that “the Board was not misled by JV, unless he did not think that it was a normal commercial transaction” [582]. (19) During the last week of October 2008, the markets were in turmoil [588]. (20) Between 26 and 29 October 2008, the Qatari entities revised their demand – they were now seeking a blended entry price of 130p/share. The Judge found that, “[i]t follows that, in order to bring the average share price down to 130p/share, substantial additional money or value would have to pass from Barclays to Qatar” [588]. (21) From RB’s notebook, it appeared the figure for the “advisory fee” was £185m, but a shortfall remained. “It was in these circumstances that the figure had to be increased by £75M (Item 743) before ending up at £280M. The inference must be that the figure needed to be as high as £280M in order to reach the 130p/share blended price. That is the key point” [589]. (22) On 28 October 2008, MD, Barclays’ senior legal counsel in London, declined to draft or review ASA2 because it was “a BAU [business as usual] matter”. RJ forwarded ASA2 to Jonathan Hughes, a senior lawyer in Barclays Legal, New York (BarCap) [590]-[592]. (23) (On 29 October 2008, ASA2 was agreed, following telephone conversations between RJ and JV and Sheikh Hamad, at the increased fee figure of £280m). (24) On 31 October 2008, ASA2 was signed by RJ, before there was any certainty that the EGM would approve CR2 [593]. (CR2 was publicly announced the same day). (25) There was an “extreme paucity” of evidence surrounding the drafting and negotiation of ASA2, although Latham & Watkins (lawyers for the Qatari entities) were involved. (Disclosure was provided by Clifford Chance but not Latham & Watkins). ASA2 overlapped with ASA1 but was to last for a longer period; its geographical area was wider; the services were more precisely specified; Challenger (i.e. Sheikh Hamad) was to have an associative role and on this occasion invested £300M in MCNs and “opportunities in the oil and gas business sectors” would include Project Tinbac, although that never came to fruition [593]-[594]. (26) On 14 October 2009, JV told Mr Agius that, “the Qataris are going out of their way to put business to us. They have their own unique way of ensuring that the value terms are equitable, but we are treated as a favoured partner” [598]. (27) On 27 November 2009, JV reported to Mr Vitalo that Mr Al-Sayed was concerned about the lack of a regular dialogue [598]. 133. At [601]-[614], the Judge considered whether there was a case to answer against JV in the light of the general findings set out above. The Judge observed that he found “the determination of whether there is a case to answer against JV on the issue of knowledge extremely difficult to resolve”. 134. The Judge’s conclusions were as follows: (1) There was a case to answer against RJ on Count 2 [597], [600]. (2) JV must continue to be regarded as a man of “utmost good character” [601]. (3) If anything, the fact that there is no case to answer against JV on Count 1, is a point in his favour because “his assumption would have been that [ASA1] was legitimate” [601]. (4) The prosecution could rely on the comment of JS (an in-house Barclays lawyer) on 22 September 2008 – “how much advice do we need” – but there was “no evidence that JV was aware of the nature of the “services”, if any, that had apparently been provided under ASA1” [601]. (5) It was not alleged that JV was told in terms by Sheikh Hamad or RJ that genuine services would not be performed under ASA2, although JV did have a number of conversations with Sheikh Hamad about the fee [602]. (6) In relation to the surrounding circumstances: “the last week of October 2008 was desperate beyond measure, the threat was existential, JV was under intolerable pressure and Qatar was known to be extremely tough”. The enhanced demand for a blended 130p/share came late and Barclays was now “completely over a barrel”, the price of money in the marketplace being extremely expensive in October 2008 [603]. (7) In this context, having regard in particular to “the scale of the fee, the way in which the final negotiations occurred, and the absence of evidence touching on inter-party discussions about services”, the Judge considered whether “a reasonable commercial man” would “begin to believe that what was driving this was not genuine services but an unswerving and intractable desire to secure as much money as possible from an ailing British bank” [604] (8) There was “ some force in the contention that JV should have raised the £280M fee with Mr Agius”. If the Board were proceeding on the basis of a price of about £125m it had gone up nearly two and a half times [605]. (9) It was no answer to say that ASA2 and CR2 were not factually connected because they were not signed simultaneously [607]. (10) The prosecution case was based on a conspiracy concluded on 24 October 2008 but this was not “arguable” and “the evidence points strongly the other way”. The case on knowledge is not “even close to being sufficiently strong” against JV based on the £125m price [610]. (11) Whether JV joined the conspiracy after this date, probably shortly before the deal was wrapped up on 29 October 2008, was an “extremely finely balanced” issue [608]. The Judge said that this was “theoretically possible” but “extremely difficult analytically” and “inherently highly unlikely”. “JV could just about have believed to the requisite standard of virtual certainty that this was not “commercial”, but he need not have shared that belief with RJ, and there is absolutely no evidence that RJ told him anything of relevance” [611]-[612]. (12) The Judge concluded that he could not “allow the case to proceed against JV on a basis which so significantly departs from the SFO’s opening, both in terms of the reasoning which supported it and its placing of the timing of onset” and that the evidence supporting it “is in any case very tenuous” [613]. 135. The SFO contends that the Judge erred in his approach in various ways and that any and all of these errors are material to his “extremely finely balanced” decision and render his conclusion unreasonable. The principal alleged errors in approach are: (1) Failing to recognise the relevance of the findings made in relation to Count 1 when considering Count 2. (2) Wrongly giving weight to JV’s positive good character. (3) Inappropriately “entering into the arena” and making findings on matters for the jury. (4) Failing to approach the case of JV in the same way as he did in finding a case to answer against the remaining defendants and CL. (5) Wrongly considering that the case against JV would have involved him participating in a different conspiracy and determining the application on that basis. In the light of our conclusions on these specific (alleged) errors, it will be necessary to consider the over-arching question of: (6) Whether the Judge’s conclusion was “not reasonable” within the meaning of s.67(c), CJA 2003. (1) Failing to recognise the relevance of the findings made in relation to Count 1 when considering Count 2. 136. In relation to ASA1 the Judge stated as follows [601]: “The SFO relies on the ASA1 history against JV even if there is no case to answer against him on Count 1. I was not impressed by that: on this premise, JV’s knowledge of ASA1 is a factor which, if anything, can be deployed in his favour, because his assumption would have been that it was legitimate. The SFO has JS’s point about what further advice do we need, but there is no evidence that JV was aware of the nature of the “services”, if any, that had apparently been provided under ASA1.” 137. The SFO contends that this was a wrong approach and that, even if there was no case against JV on Count 1, the relevant factual context relating to Count 1 included the following: (i) that all investors were to be paid a fee of 1.5%; (ii) that JV knew and approved the agreement with the Qatari entities on 5 June which included a composite fee of 3.25%; (iii) that JV was aware that efforts were being made to pay the Qatari entities the extra 1.75% and (iv) that JV had not been “altogether forthcoming” with the Board. 138. The Judge was clearly right to consider that no adverse inference could be drawn against JV in relation to Count 1 in the light of his conclusion that there was no case to answer on that Count. Background facts (i) to (iii) reflect what the Judge found to be legitimate aspects of the arrangements made. In so far as the SFO suggests that adverse inferences should nevertheless be drawn from those facts, that would be inappropriate. 139. The SFO seeks to find support for its approach by relying on the Judge’s comment at [500] that “There may be some force in the contention that JV should have been entirely forthcoming with the Board and the BFC, if for no other reason that these arrangements were not free from difficulty, controversy and the taint of suspicion, and the issue could always return to bite Barclays’ back”. However, as Mr Purnell QC points out, the Judge was not here finding that Mr Varley himself had been suspicious of the genuine nature of the ASA; rather his point was concerned with potential public perception in the event of later controversy. 140. The main relevance of ASA1 as factual context was that Barclays already had an ASA for three years at a fee of £42m. That raised questions as to the need for a further ASA for five years at a fee ultimately agreed of £280m. The Judge, however, recognised this and referred to the observation made by JS of “what further fees do we need”. But, as the Judge found, JV was not aware of what services had or had not been provided under ASA1. ASA2 also provided for more specific services, for a longer period and over a wider geographical area. 141. The Judge accordingly had appropriate regard to the findings made in relation to Count 1 and the factual context and there was no error in his approach. (2) Wrongly giving weight to JV’s positive good character. 142. The Judge made reference to JV’s good character when considering the case against him (e.g. [492] and [504] in relation to Count 1 and [601] in relation to Count 2). The SFO contends that this was wrong in principle. In this connection they relied on a single sentence from the judgment of the Court given by Hallett LJ in R v Bush, Scouler [2019] EWCA Crim 29 . At [64] Hallett LJ stated, without comment, that the trial judge, Sir John Royce, in his terminatory ruling, having concluded that there was no case to answer, added a “few further matters” which included the statement that the respondents’ good character was “irrelevant to his decision” but that “nothing in their character supported the Prosecution case”. 143. In principle, we agree with the SFO that the “good character” of a defendant is ordinarily irrelevant when considering a submission of no case to answer. At this stage, the sole focus is on the strength of the prosecution case not the evidence, including good character, which may be adduced by the defendant. On any view, the credibility aspect of good character is irrelevant at the half time stage of a trial. The propensity aspect of good character is, perhaps, less straightforward. Over and above the consideration that good character evidence forms part of the defence and not the prosecution case, caution should be exercised in placing reliance on the propensity aspect of good character, given that the direction ultimately given may have to be tailored in the light of all the trial evidence. We would not, however, accept that it is impermissible in all cases to have regard to propensity when considering the inherent probability of the prosecution case. Indeed, Mr Brown QC for the SFO accepted that it was arguably relevant in that context, and that was the context in which the Judge was referring to good character (see, for example, the reference to good character at [284] in a section headed “Inherent Probability”). 144. In the final analysis, whether the Judge was correct to refer to good character in relation to the inherent probabilities does not, however, matter since he made it clear that if he had otherwise considered there was a case to answer on the evidence then JV’s good character “would have to yield” [504]. It was not therefore material to the decision he reached. (3) Inappropriately “entering into the arena” and making findings on matters for the jury. 145. The SFO submits that on occasion the Judge usurped the function of the jury and inappropriately entered the arena. We reject this as a general criticism. It is simply not made out. The Judge had well in mind his duty to take the prosecution case at its highest and to consider that case from the perspective of a hypothetical reasonable jury, properly directed. 146. The more troubling matter here and the high-water mark of the SFO’s complaint was the Judge’s comment in relation to the evidence of Mr Agius at [606]: “606. Mr Agius’ moral outrage that JV did not discuss the £280M fee with him did not particularly impress me at the time. He could not have separated after-acquired knowledge from what he knew at the time. We now have convincing evidence that a nine-figure fee for advisory services was discussed at Board level, and Mr Agius has forgotten that. Mr Agius’ judgment that JV was a man of utmost integrity is also relevant here. JV’s ethics appear to have differed from others in bank. Mr Agius was not aware of the brevity of the timescales in the context of the opportunity he believes he should have been afforded. It is possible that the outrage would have been better directed elsewhere.” 147. It is submitted that the impression made by a witness is an obvious jury matter and there is plainly force in that contention. Moreover, given the understandable concern as to JV’s failure to mention the £280M fee to Mr Agius, with whom he was in close contact, we very much doubt that we ourselves would have expressed the matter in this way. That, however, is not the question and we bear in mind that the Judge saw and heard Mr Agius give evidence. That evidence was to the effect that Mr Agius apparently had no recollection of the relevant Board meetings and had seemingly forgotten that advisory services for a fee of £115m had been raised at the 26 October 2008 meeting. Viewed in that light, we are unable to treat the Judge’s comment, essentially confined to Mr Agius’ moral outrage , as making good this SFO criticism. We deal separately (below) with the inferences to be drawn from JV’s silence with regard to the £280M. 148. Mr Brown QC also objects to the limitations placed by the Judge on his questioning of Mr Agius and we were taken to the relevant parts of the trial transcript. In particular, Mr Brown QC complains about not being allowed to ask Mr Agius about whether he would have expected JV to mention the £280m fee to him. In our judgment this was a matter of discretionary trial management. In any event, regardless of what Mr Agius may have said, this was a point which the SFO could and did make in submissions. We are not persuaded that this SFO contention has any real force. (4) Failing to approach the case of JV in the same way as he did in finding a case to answer against the remaining defendants and CL. 149. Mr Brown QC places particular emphasis on the reliance placed by the Judge, in relation to the case against those other than JV, on the lack of commercial negotiations in respect of the advisory services. At [555] the Judge stated as follows: “555. Additionally, it is a compelling feature of the evidence, or rather its absence, that there was no separate commercial negotiation between both parties about the advisory services that would be provided, putting to one side their value. This was all done through the lawyers. I have not been shown any proper instructions given to the lawyers from Barclays’ side.” 150. This was a comment made in relation to ASA1, but JV was not involved in its evolution or negotiation. ASA2 set out the services to be provided in more detail, and lawyers were involved in the drafting of each of its iterations. 151. As to the value of the services, and the increase to £280m, the Judge recognised this as an important feature in the case against JV on Count 2, as borne out, for example by [604], where the Judge recognised that: “….If JV had no real choice, and Qatar appreciated that, the possibility of dishonesty becomes more substantial. As the fee rocketed upwards, would a reasonable commercial man begin to believe that what was driving this was not genuine services but an unswerving and intractable desire to secure as much money as possible from an ailing British bank?” 152. In our judgment there was no imbalance as alleged in the Judge’s approach. (5) Wrongly considering that the case against JV would have involved him participating in a different conspiracy and determining the application on that basis. 153. The Judge found that there was no case that JV joined the conspiracy on 24 October 2008, as the SFO had contended, but nevertheless went on to consider the possibility that he joined on 29 October 2008 when he and RJ struck the final deal on ASA2 for a fee of £280m. In [611] the Judge described this as being a “different conspiracy”. 154. The SFO contends that the Judge thereby erred. The period of the indicted conspiracy was 1 September 2008 to 30 November 2008. A conspirator may join the alleged conspiracy at any time during that period. If JV joined on 29 October 2008 he would have been joining the existing CL/RJ conspiracy in which they all agreed to carry their criminal scheme into effect. That did not involve different objectives or different intentions. In substance, in objective, in method, it was exactly the same conspiracy. 155. In our judgment, insofar as the Judge was treating this as a separate conspiracy in law, we would be unable to agree with him. However, we think that the Judge (if at some length) was doing little more than making the point that, if there was no case fit to go to the jury on JV’s participation in the conspiracy as at the time of the Board meeting on 26 October, then developments between 26 and 31 October did not transform the position. Having regard to the individual perspective of JV, if ASA2 was not a sham on 26 October, when the Board was apprised of a payment in the region of £115M or £125M, how, it might be said, did it become a sham when a payment of £280M was agreed on 31 October? That , in reality and as it seems to us, was the timing question with regard to JV which the Judge was addressing (and to which we return below). 156. Accordingly, we do not consider that the Judge erred in his approach, or, if he did, that any such error was material to his decision on Count 2, based on his evaluation of all the evidence. In so far as the alleged errors in approach also apply to Count 1, we reach the same conclusion. 157. In arriving at that conclusion, we have also had regard to the more subsidiary points made by the SFO in relation to Count 2, such as comparisons to the position of those not charged, the Judge’s characterisation of the prosecution case as mechanistic, the inference drawn by the Judge at [582], and the relevance of the description of ASA1 as being a “great success”. None of these matters undermine the conclusion that he reached. (6) Was the Judge’s ruling a ruling that it was not reasonable for him to have made? 158. Having failed to demonstrate a specific error in approach, the SFO is accordingly left with having to meet the “high hurdle” of persuading this Court that on the evidence the Judge reached a conclusion which was not reasonable, being “outwith the range of reasonable conclusions”. 159. In this regard, the SFO emphasises the following findings made in relation to JV and Count 2: (i) JV had a number of direct contacts with the Qatari entities when negotiating CR2; (ii) JV had said that the Qatari entities would be “very demanding on the economics”; (iii) JV, when he agreed the CR2 deal with Sheikh Hamad on 24 October 2008, knew that the demand for “additional value” was going to go into another ASA, then for £125m, and later for £280m, as agreed to by JV. 160. Against that background the SFO contends that: (1) On 24 October 2008, JV was the one who agreed the overall deal which included extra value, having actually signed ASA1 only four months before. At that stage JV was facing the prospect of the Qatari entities ‘walking’ away from a deal that would define his company’s (and his own) future. (2) On 26 October 2008, the Board were told that £115m was a fee for “cooperative actions” and if RJ was dishonest at that point, as the Judge found, then it is very difficult to understand how JV was not prima facie dishonest. (3) JV and RJ were physically together during the final and deal-clinching negotiations of CR2 with the Qatari entities at the end of October 2008, which included ASA2 for £280m, up from £125m less than a week before. (4) There is no satisfactory explanation from JV of the commercial justification for £280m. (5) JV failed to mention ASA2 to Mr Agius at any stage despite it being 2½ times the level of that which the Board were last informed of the price for cooperation actions. (6) There is no explanation of how another £280m of services was apparently to be provided by the Qatari entities when £42m was thought appropriate only 4 months before. (7) There is no evidence of JV even having enquired as to the “great success” of ASA1 (as ASA2 described it). (8) There was no attempt to enforce or even mention ASA1 and ASA2 (costing Barclays a combined £322m) when the Qatari entities did not deliver as JV said he had expected. 161. In the light of these facts and matters it is submitted that the Judge should have concluded that there was a sufficient evidential case to put before the jury and it was unreasonable for the Judge to conclude otherwise. 162. The Judge’s reasoning proceeded in stages. First, he considered the evidence that JV was part of the conspiracy on 24 October 2008 and he concluded that there was no evidence to support such a case. We do not consider this conclusion to be unreasonable, so far as it concerns JV. At this stage ASA2 was being considered by the lawyers, who were advising that it was lawful and irrelevant to financial assistance and commissions, provided that it was on commercial terms. The lawyers were also aware that fees of £125m were contemplated. As the Judge found, “the £125M fee in the advisory agreement, or an amount in that region, had been approved by the lawyers” and “it is inconceivable that JV was somehow negotiating with Sheikh Hamad without being aware that favourable legal advice had been given” [576]. 163. This was then followed by the Board meeting of 26 October 2008, at which the Judge found, as borne out by the evidence he refers to, that the ASA or co-operation agreement was mentioned by JV at a fee level of £115m. 164. JV was accordingly going into further negotiations with Sheikh Hamad in relation to an ASA with fees of over £100m which had been put before the lawyers and the Board. He was also going into that negotiation on the basis, on the Judge’s findings, that he had no knowledge of or involvement in any conspiracy involving ASA1 or, up to that time, ASA2. Essentially, all that changed thereafter was the increased fee which the Qatari interests demanded and JV and RJ agreed to. 165. The Judge raised the question of whether such an increase would have caused JV to question the commerciality of what was being agreed, but what JV had to realise, for the ASA to be a sham, was that this meant that no genuine services were to be provided, not merely overvalued services. Moreover, the context was that an agreement for services valued at over £100m had been before the Board. JV would also have had to agree with RJ to go ahead with ASA2 in the light of that knowledge and to participate in a conspiracy, about which he had only just learnt, to further a sham agreement and make false representations. The Judge described this as “inherently highly unlikely” and we cannot say that that was a view not reasonably open to him. 166. There were, plainly in our view, factors which provided support for the SFO case, such as, in particular, the fact that there was a case to answer against RJ, JV’s involvement with RJ in the negotiations for ASA2 and the failure to mention the increased fee of £280m to Mr Agius or, according to the Board Minutes, to the Board. These give us pause for concern; the failure to mention the significantly increased figure to Mr Agius (with whom, as already underlined, JV was in close contact) was striking; so too was the failure to ensure that the £280M was mentioned to the Board and, indeed, recorded in the Minutes, as soon as possible after the 31 October agreement. Our concern is heightened by the Judge’s mistaken interpretation (at [582]) of the Board Minutes of 27 October; it seems clear that the fees in question were not the ASA2 fees but related instead to the placees. Still further, we have not, in all this, overlooked JV’s lack of attention to the detail of the services to be provided by the Qatari entities or to the basis for the £280M fee. All these are troubling matters. 167. Conversely, we cannot ignore the following features of the case, posing obvious difficulty for the SFO, keeping well in mind the clear demarcation between the roles of Judge and Jury: i) The timing point, with its requirement for a sea change in JV’s position between 26 and 31 October. ii) The need to establish that ASA2 was a sham , not simply an over-priced agreement. iii) The inescapable conclusion that the ASA mechanism was not necessarily dishonest. iv) The essential requirement to focus intensely on JV’s personal knowledge. 168. In the upshot, we find Issue IV finely balanced. That, of itself, is a matter of no little significance, having regard to the relevant test under s.67(c). In the event, we are not persuaded that (the error at [582] apart), the Judge failed to have regard to any significant evidence or had regard to evidence which he should not have done. Ultimately and whatever our reservations, the Judge was in a far better position to reach an overall conclusion as to whether that evidence provided a sufficient case to be left to the jury than this Court. It is possible that another judge might have reached a different conclusion, but that is not the test. The SFO has to show that the conclusion to which the Judge came was not within the range of reasonable conclusions open to him. Having carefully considered the parties’ extensive written and oral submissions, and the limited evidence which we have been shown, we do not consider that the SFO can overcome this “high hurdle”. 169. In our judgment the SFO have not established that the Judge’s ruling in respect of JV on Count 2 involved an error of law or principle or was not a reasonable ruling to have made. Conclusion on Issue IV 170. For the reasons outlined above, the SFO’s appeal on Issue IV must be dismissed. MISCELLANEOUS 171. For completeness, although the Respondents made not infrequent criticism of the framing of the indictment, nothing has turned on that. We have of course approached the matter in the light of the charges brought rather than those which might have been brought. 172. In the light of our conclusions on Issues I, II and IV, the proceedings are at an end so far as concerns JV. However, a trial can proceed against RJ, TK and RB on Count 1 and RJ on Count 2. In all the circumstances, that trial should proceed before a different High Court Judge, to be designated by the President of the Queen’s Bench Division.

2019_06_21-4637.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/1074/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/1074

8ec1ca8f7d29ce226dad70f925183208212ae98db1bd1b5d2f8d2a045bfd9f2b

[2006] EWCA Crim 2530

EWCA_Crim_2530

2006-10-13

crown_court

No: 200604868/A5 Neutral Citation Number: [2006] EWCA Crim 2530 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Friday, 13th October 2006 B E F O R E: LADY JUSTICE SMITH DBE MR JUSTICE DAVID CLARKE HIS HONOUR JUDGE CHAPMAN (Sitting as a Judge of the Court of Appeal Criminal Division) R E G I N A -v- ROBERT CHARLES RICHARD WILLIAMS Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Flee

No: 200604868/A5 Neutral Citation Number: [2006] EWCA Crim 2530 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Friday, 13th October 2006 B E F O R E: LADY JUSTICE SMITH DBE MR JUSTICE DAVID CLARKE HIS HONOUR JUDGE CHAPMAN (Sitting as a Judge of the Court of Appeal Criminal Division) R E G I N A -v- ROBERT CHARLES RICHARD WILLIAMS Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) MISS A BACHE appeared on behalf of the APPELLANT J U D G M E N T 1. JUDGE CHAPMAN: On 4th September 2006, at the Crown Court at Wood Green, the appellant, Robert Williams, now 19 years old, was convicted on one count of having an article with a blade or point contrary to section 139(1) of the Criminal Justice Act 1988 . Following an adjournment for reports, on 22nd September he was sentenced by His Honour Judge Latham to serve a term of six weeks' detention in a young offender institution. 2. He appeals against that sentence to this court with the leave of Christopher Clarke J. 3. The facts are very simple. Just before mid-night on 30th March police officers saw the appellant and another male, both of whom were wearing gloves, pushing a white van which had no lights on. As the officers approached the van, the appellant and the other man ran away. One of the officers pursued the appellant and shouted to him to stop. As the officer got closer, the appellant did stop, turned round and put his hands up. He was arrested initially on suspicion of taking and driving away a motor car. 4. When searched, the officers found that he had a lock knife with a blade 2 and a half inches long in his left trouser pocket. The officer asked what the knife was for and the appellant replied, "I forgot I left it in my pocket". He was arrested for possessing an offensive weapon. 5. When interviewed later on, he explained that he had been to his girlfriend's home and was intending himself to go to his own home afterwards. On the way someone, whom he did not know, had asked him to help push the van, which had broken down and was blocking the road, out of the way. He agreed to do that. As he was pushing the van another car arrived. He did not know it was a police car. When people got out of that car, he ran away because he was fearful that they would be wishing to chase him. When he realised the person running after him was a police officer, he stopped. 6. In respect of the knife, he said he had not been aware that the knife was still in his pocket. He explained that he was employed as a trainee gardener by Haringey Council and used the knife at his work. That fact was never disputed by the prosecution in the trial that ensued. Normally he left the knife in a locker at work, but on this occasion he had been in a rush to leave and had forgotten to put it where it should have been kept, in the locker. 7. Apparently the issue in the trial was whether the appellant had been aware of the knife in his pocket and had knowingly entered a public place with it, or whether he had simply forgotten it, that he had failed to put it in its usual place and then gone out. The jury found him guilty. 8. He was born on 6th June 1987, so is now 19. He was 18 at the time the offence was committed. Importantly, he has no previous convictions, but has one caution for handling stolen goods in the past. 9. The pre-sentence report investigated his work. It turned out that he had completed a NVQ apprenticeship in amenity horticulture and had been working for Haringey Council for a period of six months. That job had come to an end when he resigned because of a conflict with a co-worker. Since that time, he told the probation officer who wrote the report, he had been actively looking for work. The author of the report took the view that he was someone who plainly had a strong work ethos and was genuinely seeking employment. The conclusion of the writer was that there was a low risk of reoffending for similar offences or different offences, and recommended a community order with a requirement for unpaid work. 10. The learned judge in passing sentence noted that the appellant had been found guilty after a trial. Of course that meant there was no mitigation to be gained from a plea of guilty, but it is not an aggravating feature. He observed that he had been found in highly suspicious circumstances and was fortunate that no further action had been taken in respect of that part of the case. Whatever he thought about it, that was not a matter which could or should have been taken into consideration when determining the sentence in respect of this one matter, the only matter of which this appellant had been convicted. 11. The learned judge observed that the appellant is dyslexic and might have some difficulty finding work, but apparently was sceptical about a job offer which the appellant claimed to have as a landscape gardener in Fulham. 12. He observed that the possession of bladed articles was a serious matter and was a serious problem in London and concluded that the offence was too serious for anything other than an immediate loss of liberty. Since the appellant had never been to custody before, the sentence would be short, namely the sentence of six weeks' detention. 13. We take particular note of three features of this offence which we think are of importance. Firstly, this weapon was not one of those items, like a knuckle duster or rice flails, which cannot have a legitimate purpose and are only used as weapons of attack. Secondly, this weapon had remained at all times in the appellant's pocket and had not been used to threaten anyone. Thirdly, we take notice of the fact that he was a young man of good character. 14. No doubt the carrying of knives by young men is a serious problem in London and in many other major cities. There will be many occasions where the carrying of such a weapon will pass the custody threshold. But, in our view, the learned judge in this case went too far in saying that this particular offence, without any aggravating features and which had many mitigating features, did in fact cross the custody threshold. 15. We will quash the sentence of detention in a young offender institution. In deciding what sentence to put in its place we have taken into account the fact that the appellant has served 13 days in custody, very nearly the equivalent of a sentence of one month's detention, and so in place of the sentence of detention we order that there should be a conditional discharge for a period of 12 months. 16. LADY JUSTICE SMITH: Will you stand up a moment. Do you understand the nature of the sentence that has been passed upon you? 17. THE APPELLANT: Yes. 18. LADY JUSTICE SMITH: Perhaps I shouldn't call it a sentence -- the order that we make. It means that nothing further will happen to you now provided that for a period of 12 months, from the day on which you were first sentenced, you get into no further trouble. If you do get into trouble again and appear before the courts you may find yourself being re-sentenced for this offence. Do you understand that? 19. THE APPELLANT: Yes, I do. 20. LADY JUSTICE SMITH: The point is keep out of trouble. You are free to go. 21. THE APPELLANT: Thank you.

2006_10_13-934.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/2530/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/2530

aaf422d54ec9ff8fe8f275af1d38a3b0a331c9588620105ef86ec2582b59452c

[2009] EWCA Crim 1729

EWCA_Crim_1729

2009-07-23

crown_court

Neutral Citation Number: [2009] EWCA Crim 1729 Case No. 2009/02875/A7 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2 Date: Thursday 23 July 2009 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) MR JUSTICE BUTTERFIELD and MR JUSTICE FLAUX - - - - - - - - - - - - - - - - - - - - - ATTORNEY GENERAL'S REFERENCE No. 50 of 2009 UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 _______________ R E G I N A - v - JONATHAN

Neutral Citation Number: [2009] EWCA Crim 1729 Case No. 2009/02875/A7 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2 Date: Thursday 23 July 2009 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) MR JUSTICE BUTTERFIELD and MR JUSTICE FLAUX - - - - - - - - - - - - - - - - - - - - - ATTORNEY GENERAL'S REFERENCE No. 50 of 2009 UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 _______________ R E G I N A - v - JONATHAN HASLAM - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4A Telephone No: 020 404 1400; Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr L Mably appeared on behalf of the Attorney General Mr D Hislop appeared on behalf of the Offender - - - - - - - - - - - - - - - - - - - - - J U D G M E N T THE LORD CHIEF JUSTICE: 1. This is an application by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court for review a sentence which she considers to be unduly lenient. We grant leave. 2. The offender is Jonathan Haslam. He is 40 years old, having been born in March 1969. He is a man of effective good character. There were powerful supporting references before the judge. 3. On 20 March 2009, in the Crown Court at Oxford, the offender pleaded guilty at a plea and case management hearing to one offence of causing grievous bodily harm with intent, contrary to section 18 of the Offences against the Person Act 1861 . On 5 May 2009, he was sentenced by His Honour Judge Hall to twelve months' imprisonment suspended for two years. Ancillary orders were also made: a requirement to carry out 200 hours of unpaid work; and a curfew between 9pm and 6am. 4. The offence arose out of a violent incident which was recorded on CCTV. Although there is no sound to the recording, we have been able to see the entire incident; we have looked at it twice, and we have looked at it in slow motion. It is right to say at the outset that, notwithstanding the very serious injuries sustained by the victim, Scott Swandle, it is plain that the offender neither sought nor provoked any violence. He was having a quiet drink in a public house with his friends. 5. At about 8pm on Sunday 26 October 2008, at the end of a "lazy weekend", the offender and his girlfriend went to a public house in Abingdon for a quiet drink together. After purchasing their drinks they went out into the beer garden and sat at a table. They chatted to a member of staff and to another woman. They were all sober and behaving quietly. The group was approached by 20 year old Scott Swandle. He had been at the public house for a number of hours and was plainly very drunk and loud and was obviously using unpleasant language. He swayed towards the table where the group of people were sitting. He tried to engage the offender and his girlfriend in conversation, although most of what he said was incoherent. He would not leave them alone. He was not aggressive at the outset, but he was argumentative and making a nuisance of himself. Eventually, he moved away, but then repented of his departure and returned. More words were exchanged. This time the offender told him to "Fuck off". 6. Swandle raised his arm and pointed at, or possibly touched the offender while he was still sitting at the table. With that the offender jumped to his feet and punched Swandle in the body. Swandle stumbled backwards and fell over a table. He ended up on his back on the ground. That fall, which we have seen, was severe. It may well have caused the very serious injury which Swandle suffered. 7. If the incident had stopped there, we doubt whether the offender would have been prosecuted for anything. He simply disposed of someone who had been extremely provocative and who appeared to be acting in a violent way, trying to touch him when he had no wish to be touched, after some unpleasant language had been used. It is what happened thereafter that represents the serious element of the offence. In his opening, counsel for the Crown put it this way: "The offender pushed Swandle very hard over a nearby table. Swandle went to the ground. The offender goes to him and strikes a number of blows from what can be seen in the DVD using his fist. He was not punched to the ground, he was not pinned to the floor. The offender simply went for him with his fists and then, as Swandle lay there and the offender was punching him, the offender's girlfriend intervened and pulled him away." 8. Swandle was very seriously injured. He was unconscious. Blood ran from his ear and his nose. His face was swollen. The offender's girlfriend dialled 999. An ambulance arrived. Swandle was taken to hospital. A CT scan revealed that he had suffered a basal skull fracture, with extensive bleeding inside the skull, both within and outside the brain. Swandle was detained in hospital for nine days. On his discharge he was prescribed medication for pain relief. The hearing in his left ear was affected. A consultation revealed that a bone in the ear had been dislodged. In due course (and the operation may now have taken place) it was intended that Swandle should undergo an operation to remove the bone which was interfering with his hearing. We do not minimise the consequences to Swandle. They were serious. 9. The day after the incident police officers attended at the offender's home address. He was arrested and interviewed under caution. He admitted that he had been involved in the incident. There was some exaggeration of the extent of Swandle's behaviour, but the offender admitted that he had lost his temper and that the attack had begun as a result of him losing his temper. 10. A written basis of plea was submitted on behalf of the offender which, with one exception, was accepted by the prosecution. It reads as follows: "1. That immediately prior to the assault in issue the complainant approached the defendant, the defendant's girlfriend and her friend. 2. The complainant was drunk and was making a nuisance of himself.... 3. The complainant called the defendant's girlfriend and her friend 'slags' and 'cunts'." That last point is not accepted by the prosecution. Although it was not accepted, there would have had to have been positive evidence to demonstrate that this aspect of the offender's position was to be rejected. "4. The defendant said to the complainant, 'Do you mind going away, this is a private conversation'. 5. The complainant reacted aggressively, came up to the defendant and said, 'Who the fuck are you?' 6. The defendant believed he was going to be attacked and struck out at the complainant in self-defence. 7. By his plea the defendant accepts that in the heat of the moment he used excessive force." 11. The case presented to Judge Hall involved the prosecution accepting that the person who started all the trouble that evening was the complainant; that the offender had sought to defuse the situation as it developed; that the complainant reacted aggressively to those efforts; and that the offender acted in what he believed to be self-defence, although he went too far. It is obvious, too, from the summary of the facts and the basis of plea that was accepted, that the behaviour of the complainant had involved serious provocation. 12. There was a pre-sentence report before the judge. The author of the report concluded that the offender presented a low risk of re-offending. He did not pose a significant risk of serious harm to members of the public. That was all entirely in keeping with the evidence based on the character references which were before the judge. 13. During the course of the hearing Judge Hall was anxious to discover whether there was any indication about how Swandle had been injured and whether his injuries had occurred as a result of going backwards over the table. Counsel for the Crown said that it was not clear whether the basal skull fracture was the result of the fists used by the offender or was the result of Swandle going over the table and striking his head on the ground. Judge Hall considered that the basal skull fracture would have been an unusual injury from a fist assault in the circumstances in which the fists were used. 14. When he came to pass sentence, Judge Hall was concerned about the serious injury that had been sustained by Swandle, and was concerned about the offence to which the offender had pleaded guilty. He examined the question of how the major injury had been caused. He said that it was not at all clear how it had happened. He was "always reluctant" to be critical of people who had been badly injured in an unlawful attack, but he was plainly anxious that the situation should be fully ventilated because a viewing of the video clearly showed why the assault had taken place. The complainant was "drunk, he was aggressive and he was abusive". As the judge put it, "what followed should not have happened but .... anyone who has seen the video would understand that it did happen and that a drunk man was attacked unlawfully because of the way he had been behaving". The judge acknowledged that the sentence that he intended to pass would be in one sense a lenient sentence, but he took everything into account and concluded that the offender had acted out of character. He asked himself the question: did the offence merit imprisonment? The answer was: yes, because of the severity of the injuries. However, the second question was: was there any point in sending the offender to prison? He concluded that there was not. Accordingly, a suspended sentence was imposed and the ancillary orders were made. 15. We have been told today that 67.5 hours of the Community Service Order have already been carried out. In addition, the offender has been under the curfew arrangements ordered by Judge Hall. 6. On behalf of the Attorney General our attention has been drawn to the aggravating features of the offence: the very serious injuries suffered by Swandle and their effect on his health and general approach to life; when the offender used his fists, the victim was lying defenceless on the floor; and after the attack, the offender left the scene without offering any assistance to the unconscious victim. Our attention has also been drawn to the Sentencing Guidelines Council's Definitive Guideline on Assault and Other Offences against the Person, which it is said suggests that for injuries such as occurred in this case a sentencing starting point in the range of five years. 7. We must be careful about guidelines. Of course the court must have regard to them; that is a statutory requirement. The court must also have regard not only to the guideline as set out in the figures which the tables produce, but also to some of the text. Our attention has been drawn to the difficult issue which arises in this case between the culpability of the offender and the harm which is consequent on the violence. The guideline reads as follows: "Culpability and harm 7. The culpability of the offender is the initial factor in determining the seriousness of an offence. All offences against the person have the potential to contain an imbalance between culpability and harm. This can produce situations where low culpability produces a high level of harm, high culpability produces no harm at all or where the two are more evenly balanced since the same act can, in different circumstances, produce varied levels of harm. Where this imbalance occurs, the harm has to be judged in the light of the culpability of the offender ." (Our emphasis) 8. It seems to us that Judge Hall, without referring directly to that text, must have been addressing these difficult issues of the balance between the relatively low level of culpability involved here, as against the high consequent harm. Indeed, in reality, as an offence of section 18 grievous bodily harm with intent, it is accepted by the Crown, and rightly so, that this is an offence at the lower end of the scale. We would go further. We consider that it is at the lowest end of the scale for such an offence. Account must be taken of the offender's admitted intention, and the circumstances in which this violent incident blew up. 9. Our conclusion can be expressed briefly. Like Judge Hall, we consider that the sentence that he passed was a lenient sentence. The question which then arises is: was it unduly lenient? It is arguable that it was. However, when we stand back and look at the matter in the round, recognising that in a case like this the impression formed by an experienced judge who was able to witness the incident for himself and form his own view of the precise extent of the offender's culpability, we are not satisfied that this is an unduly lenient sentence for the purposes of section 36 of the 1988 Act . In those circumstances, although the sentence was a lenient one, we do not consider that it was unduly lenient. In those circumstances we do not interfere with it. _________________________________

2009_07_23-2029.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/1729/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/1729

6b3bb5a43fe24fd061254eeb14dfe68b39829adfa7f93defc4d41b7775793eb8

[2010] EWCA Crim 365

EWCA_Crim_365

2010-02-12

crown_court

No: 2009/5517/A4 Neutral Citation Number: [2010] EWCA Crim 365 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 12 February 2010 B e f o r e : MR JUSTICE MACKAY MR JUSTICE KEITH - - - - - - - - - - - - - R E G I N A v DANIEL BARRETT - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY No: 020 7404 1400 Fax No: 020 7831 8838 (O

No: 2009/5517/A4 Neutral Citation Number: [2010] EWCA Crim 365 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 12 February 2010 B e f o r e : MR JUSTICE MACKAY MR JUSTICE KEITH - - - - - - - - - - - - - R E G I N A v DANIEL BARRETT - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - Miss N Hornby (Solicitor Advocate) appeared on behalf of the Appellant - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE KEITH: On 28th August 2009 at Nottingham Crown Court, the appellant pleaded guilty to five offences: threatening behaviour (count 1), three offences of damaging property (counts 2, 3 and 4) and assaulting a police officer in the execution of his duty (count 5), a summary offence for which he had been committed to the Crown Court for trial under section 41 of the Criminal Justice Act 1988 . On 2nd October 2009 he was sentenced by Judge Butler QC to what the court record records as four weeks' imprisonment for the offence of threatening behaviour (count 1); four weeks' imprisonment on each of the first two offences of damaging property (counts 2 and 3), to be served concurrently with each other but consecutively to the sentence on count 1; four weeks' imprisonment on the third offence of damaging property (count 4), to be served consecutively to the sentences on counts 1, 2 and 3; and four weeks' imprisonment for the offence of assaulting a police officer, to be served concurrently with the other sentences. All these sentences were ordered to be suspended for 12 months with a supervision requirement for 12 months. The total sentence was therefore 12 weeks' imprisonment suspended for 12 months. It is fair to say that the transcript of the judge's sentencing remarks refers to the sentence as being three months' imprisonment suspended for 12 months without any breakdown of the sentences passed on each count. We take it that the judge must have been asked subsequently what the breakdown of her sentences was, which is how the breakdown got into the court record. The appellant now appeals against his sentence with the leave of the single judge. 2. The facts were these. On 3rd June 2009 the appellant and his girlfriend had been arguing. When she got back to their flat, she found the appellant in the communal hallway. He threw bags of shopping at her, waved a Stanley knife around and threatened her. That was the behaviour to which count 1 related. She went into a neighbour's flat to get away from him, and it was later discovered that he had carved abuse on the communal doors. That was damage to which counts 2 and 3 related. The police were called. They found the appellant on a balcony. He appeared to be drunk, and he threatened to jump off the balcony. He was angry and aggressive with one officer in particular who he spat at and threw a beer can at. He then pulled out a Stanley knife and punched the balcony door with his fist breaking a glass panel. This was the damage to which count 4 related. Shards of glass fell on a police officer on the other side of the door cutting his ear. That was what the assault consisted of. 3. The appellant is 28 years old. He has many previous convictions, his record being dominated by offences of dishonesty and failing to surrender to bail. He claimed to the author of the pre-sentence report on him that he could not recall what he had done as he had been drunk at the time. He had a long history of drug and alcohol abuse, although in recent times his drug use was said to have reduced. His offending had for the most part been to fund his drug habit. There was said to be a very high risk of further offending, and a high risk that some of those offences would involve violence. There was a medium risk of harm to others. 4. The maximum sentence for the offences of threatening behaviour and assaulting a police officer was six months' imprisonment. The maximum sentence for the offences of criminal damage was three months' imprisonment. The total sentence could not exceed six months' imprisonment. However, he had been in custody on remand for almost four months by the date on which he was sentenced. There was no reason why if he was sentenced to terms of imprisonment the time he had spent on remand would not count towards his sentence. Thus, even if the judge passed the maximum sentences on him, he would have been released immediately. 5. The appellant was aware of that. That was why, when he first appeared at the Crown Court on 28th August 2009, his counsel asked Judge Butler to sentence him there and then. Even if he had been sentenced on that occasion to the maximum term, he would have been released within a few days. Judge Butler refused to do this. She remanded him in custody for a pre-sentence report because, as she said, she wanted to see whether there was an alternative to a custodial sentence. The appellant next appeared at the Crown Court on 30th September 2009. The pre-sentence report on him did not address whether a community sentence was appropriate because the appellant had said that he would not engage with a community order since he had already served the maximum sentence. Judge Butler was asked once again to sentence the appellant there and then, but she said that she had in mind a suspended sentence with conditions which included an unpaid work requirement. She therefore adjourned sentencing so that a further report could be prepared which addressed the appellant's suitability for such a requirement. It was when the appellant next returned to court on 2nd October 2009 that Judge Butler eventually sentenced him. 6. We can understand why the judge wanted to impose a suspended sentence of imprisonment rather than one of immediate effect. The judge wanted to ensure that the public had a measure of protection from the appellant, and that the appellant himself had the support he needed. That might be better achieved if he had the threat of imprisonment hanging over him, and if he was under the supervision of a probation officer. However, by sentencing him as she did, she was in practical terms passing a sentence which was more severe in its impact on the appellant than the maximum sentence would have been. That was something which in our view the judge had to avoid. It could only have been avoided by passing sentences of imprisonment of immediate effect. Suspending those sentences was, in the circumstances, wrong in principle. 7. That is entirely in line with the approach adopted by the Court of Appeal in Hemmings [2008] 1 Cr.App.R (S) 106. In that case a community order was imposed after the appellant had spent more time in custody on remand than he would have spent had he received the maximum sentence. In stating that the sentence was wrong in principle, Underhill J said at [6]: "A sentence of a community order, and all the more so one coupled with requirements which have a real impact on the offender's liberty, is a form of punishment. It does not seem to us to be right that the appellant should receive a substantial further punishment in circumstances where he has already received what was in practice the maximum punishment by way of imprisonment which the law could have imposed. That reasoning seems to us to be in line with the reasoning in the cases of McCabe and Peppard to which we and the judge were referred." The cases of McCabe and Peppard were cases in which the court had deprecated the passing of a suspended sentence on a defendant who had already served on remand a period equivalent to the suspended term. They were therefore directly applicable to the present case. 8. So what should we do now? In McCabe (1988) 10 Cr.App.R (S) 134, McKinnon J said: "Under section 11(3) of the Criminal Appeal Act 1968 : '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.' As can be seen in the case of Mah-Wing, the effect of that subsection in relation to a suspended sentence was considered by this court in Thompson (1977) 66 Cr.App.R (S) 130. In that case the Court held that they had no power to order an immediate imprisonment when the court below had ordered that the imprisonment should be suspended, the reason being, as Griffiths LJ said in Mah-Wing - 'that any ordinary person would consider themselves more severely dealt with on appeal if they were sent into prison albeit for a shorter period than if they were given the opportunity of a suspended sentence.'" In those circumstances, the court substituted a conditional discharge for the suspended sentence of imprisonment. That was also what was done in Hemmings , as well as in Peppard (1990) 12 Cr.App.R (S) 88. Indeed, in Hemmings , Underhill J added at [7]: "We do not see how a sentence of conditional discharge can be described as more severe than a community order. Nevertheless, insofar as there is a potential problem of the sort identified by [counsel], it can be guarded against by making the term of the conditional discharge such that it will have expired by today's date. With that in mind we make an order of conditional discharge with a term of four months." 9. We propose to take the same course so as to ensure that there are no doctrinal problems of the kind which the court in Hemmings sought to guard against. Accordingly, we allow the appeal, we set aside the suspended sentences of imprisonment which the judge imposed, and instead we order that the appellant be conditionally discharged for each of the five offences for a period of four months. 10. MR JUSTICE MACKAY: Miss Hornby, I am reminded to tell you that your client failed to sign the form SM that was sent to him. That means we are obliged to adjourn the consideration of the recovery of defence costs order, for what that exercise would be worth, until it is completed. If it is completed there will be no need for such an enquiry. Could you pass that information to him? 11. MISS HORNBY: Yes, my Lord.

2010_02_12-2279.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/365/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/365

8db3e0077619d0453780b392f9b568d5b728e3885d92279f4da53b0f9bdb775c

[2017] EWCA Crim 1569

EWCA_Crim_1569

2017-10-12

crown_court

Neutral Citation Number: [2017] EWCA Crim 1569 Case No. No: 201701113/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 12 October 2017 B e f o r e : LORD JUSTICE TREACY MR JUSTICE LAVENDER THE RECORDER OF MIDDLESBROUGH HIS HONOUR JUDGE BOURNE-ARTON QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v LISA JANE CONNELLY - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenog

Neutral Citation Number: [2017] EWCA Crim 1569 Case No. No: 201701113/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 12 October 2017 B e f o r e : LORD JUSTICE TREACY MR JUSTICE LAVENDER THE RECORDER OF MIDDLESBROUGH HIS HONOUR JUDGE BOURNE-ARTON QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v LISA JANE CONNELLY - - - - - - - - - - - - - - - - - - - - - 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) - - - - - - - - - - - - - - - - - - - - - Sir Simon Spence appeared on behalf of the Applicant Miss A Rafferty QC appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (Approved) If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person. LORD JUSTICE TREACY: 1. This is an application relating to sentence referred to the full court by the Registrar. We grant leave. 2. This appellant pleaded guilty at Chelmsford Crown Court on 3rd March 2017. The offences admitted were manslaughter (count 3) and arson being reckless as to whether life is endangered (count 4). The appellant had on a previous occasion pleaded guilty to a domestic burglary. 3. A sentence of 12 years' imprisonment was imposed for manslaughter with eight years concurrent for the arson offence. No separate penalty was imposed for the burglary. 4. The burglary was committed on 13th June 2016. It appears that at about 8 pm when the elderly female occupant was in her home and the male occupant was in the garden, this appellant entered through an open door and stole a handbag. The female occupant became aware that someone was in her house and the appellant was pursued down the street by her husband and a neighbour. However, she escaped. CCTV captured her emptying the handbag and a chequebook was found on her when she was arrested at a later time. 5. Having been arrested she was released on bail and so was free to commit the further offences. On 4th September 2016 the appellant, who had lived in a flat with the deceased for a number of years, occupying a bedroom whilst he slept in the living room, started a fire in the early hours of the morning. The deceased was a man in his late seventies and in poor health. He died as a result of inhalation of carbon monoxide and other toxic substances. The post mortem revealed that he had been alive through the progress of the fire. 6. The appellant was a long term drug user. She had a boyfriend and the evidence showed that social services had been involved with the deceased's care since early 2016. They were concerned about the apparently dominating and exploitative attitude of the appellant and her boyfriend towards the deceased. There were also concerns about the apparent deterioration in the deceased's appearance in the months before he died. 7. The flat was in a multi-occupied building and another resident became aware of the fire. He entered the deceased's flat on his hands and knees in an effort to save the deceased but was driven back by the smoke. Another neighbour also made attempts on a number of occasions; these were unsuccessful. He then went upstairs to help a 96-year-old woman whom he had to pick up and carry out of the building. By the time a fire-fighter reached the deceased he was dead. 8. The appellant was seen in the vicinity of the flats. She had left the flat after starting the fire and made no attempt to go into the flat and help the deceased. She left the scene before police could arrest her. She was arrested later that night. 9. When interviewed she said that she had been smoking crack cocaine and gave an account of a gas explosion. She denied any responsibility for setting the fire. However, experts carried out tests which refuted the account put forward in interview. The investigators concluded that the fire was started using a flame. It had begun in the bedroom around furniture which had been moved into the middle of the room. There had been no gas explosion and the investigation strongly suggested that it was unlikely that a cigarette or recent crack pipe was the source of the fire. 10. This appellant is now 43. She has 45 previous convictions recorded against her in the last dozen years which seem to be largely coincidental with her drug abuse. None of that offending is of a nature comparable to the present matter but it is a relevant fact that she has been a persistent offender who had not complied with court orders up to the time of the commission of the present offences. 11, There was no pre-sentence report, but there was a psychiatric report showing that there was no history of any enduring mental disorder. The appellant had a significant history of serious substance misuse, involving crack cocaine and very strong beer on a regular basis. Once the appellant had been remanded in custody and the substance abuse had stopped, symptoms from that abuse had abated. 12, The grounds of appeal urge that a sentence of 12 years' imprisonment was manifestly excessive representing a starting point of 18 years before full credit for guilty pleas. That figure was reached by a process of identifying a starting point of nine years and then working upwards by a process of aggregating aggravating features in a manner which, it was submitted, was unclear and unsatisfactory. We consider that there is force in those submissions. 13, In passing sentence the judge referred to a document which was described as a draft guideline for unlawful act manslaughter. The document was in fact nothing of the sort. It was a prototype developed by the Sentencing Council in the very early stages of its consideration of a proposed manslaughter guideline. It had been distributed to some judges on a training course with a view to road-testing certain aspects of the proposals. It was never intended for any wider use and should never have been used in this case. That document was provided to judges on a course in September 2016. Thereafter there were many changes made by the Sentencing Council to its drafts, even before a draft in the form fit for public consultation was published in July 2017. That consultation process has only closed this week. 14, It ought by now to be well-known to judges and practitioners that draft guidelines, even in a consultation paper, should not be used by sentencing courts. This court made that very plain in R v Boakye [2013] 1 Cr.App.R (S) 2 and in a number of subsequent cases. It is only when a guideline becomes definitive that courts should use it as a sentencing guide. Until that occurs, in relation to manslaughter in 2018, courts should sentence by reference to existing case law and practice. 15. In passing sentence, the judge also chose to pass no separate penalty in relation to the burglary, despite the fact that it was committed on a separate occasion and was of a type which in its own right would have attracted a custodial sentence since the burglary took place whilst the occupier was at home. The judge said she took account of the burglary in the main sentence on count 3, but better practice would have been to pass a separate sentence for a different type of offence of some gravity committed on a different occasion. 16. The main offences of reckless arson and manslaughter involve not only the death of one person but the significant endangerment of others from a fire started at night in a multi-occupied building. The dangers are obvious and the episode with the 96-year-old woman is a graphic illustration of that. There was a significant level of damage done and smoke from the fire hampered or, in the deceased's case, prevented attempts at rescue. It appears that the offender was affected by drugs when she started the fire, but she had voluntarily put herself into that state. We surmise that that was a factor in the Crown's decision to accept a plea to reckless arson as opposed to arson with intent. 17. We regard the appellant's previous convictions as of some relevance, given their frequency, persistence and their relation to the appellant's drug abuse, but we do not attach major weight to them. As to the evidence of financial and emotional exploitation of the deceased over a period prior to his death, we note firstly that those matters did not form the basis of any charge, although it appears that the general tenor of the evidence was not disputed; secondly, we consider that those matters are not directly relevant to the arson and manslaughter charges, but that they have a background relevance. We consider that they operate primarily so as to show an absence of any mitigation based for example on otherwise good care or concern for the deceased. Instead, that background evidence shows a pattern of disregard for the deceased, culminating in the starting of a fire in the flat on the night in question and the leaving of the deceased to his fate. 18. In Attorney General's Reference No 68 of 2008 (Myrie) [2008] EWCA Crim. 3188 , this court indicated a range between eight and ten years' imprisonment for arson with intent to endanger life. However, the court went on to say that the dividing line between the worst cases of reckless arson and the least serious cases of arson with intent to endanger life was a fine one. Here, a number of lives were endangered in circumstances where the risk was significant. Had this solely been a case of reckless arson it would have been a bad one, but the fact of a death caused puts it into a different league. Of the greatest importance is the fact that a vulnerable old person in poor health, and thus not in a position effectively to assist himself, was fatally trapped in his home during the night by an offender who left the premises unscathed and did nothing at all to help him. 19. We have considered R v Mahmood [2012] 2 Cr.App.R (S) 53 and R v Khatoon [2014] EWCA Crim 881 as examples of manslaughter by arson. We recognise the increased focus in manslaughter sentencing on the fact of death caused since the decision in Attorney General's References Nos 60, 62 and 63 of 2009 (Appleby) [2010] 2 Cr.App.R (S) 2653. 20. In our judgment for the offence of manslaughter a term of at least 14 years was appropriate before credit for plea. A consecutive term of 12 months was appropriate for the burglary. Thus the judge's figure of 18 years prior to credit for plea was too high. 21, We have to go on to consider the question of credit for a guilty plea. The judge granted full credit and there is no suggestion that that was not appropriate. Applying the same approach to the aggregate of 15 years reduces the overall sentence to one of 10 years. We therefore allow the appeal by substituting a term of 10 years for the 12 years imposed on count 3. The sentence on count 4 remains unchanged. In relation to the burglary offence we impose a term of eight months to run concurrently to the other sentences. The overall effect is that this appeal is allowed by reducing the sentence to one of 10 years from the 12 years imposed below. WordWave International Ltd trading as DTI hereby certify that the above is an accurate and complete record of the proceedings or part thereof.

2017_10_12-4077.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/1569/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/1569

6e20b55bc51d5a35791a8c78b6be987aedf8be34362c78a362fabdc6233ee7ee

[2023] EWCA Crim 1118

EWCA_Crim_1118

2023-09-12

crown_court

Neutral Citation Number: [2023] EWCA Crim 1118 Case No: 202203228 B3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 12 September 2023 Before: LADY JUSTICE SIMLER MRS JUSTICE MAY and MR JUSTICE CHAMBERLAIN REX - V- RT - - - - - - - - - - - - - - - - - - - - - Stephen Vullo KC appeared on behalf of the Appellant Wayne Cleaver appeared on behalf of the Crown JUDGMENT The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences

Neutral Citation Number: [2023] EWCA Crim 1118 Case No: 202203228 B3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 12 September 2023 Before: LADY JUSTICE SIMLER MRS JUSTICE MAY and MR JUSTICE CHAMBERLAIN REX - V- RT - - - - - - - - - - - - - - - - - - - - - Stephen Vullo KC appeared on behalf of the Appellant Wayne Cleaver appeared on behalf of the Crown JUDGMENT The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act. Lady Justice Simler: Introduction 1. This application for permission to appeal against conviction was referred to the full court because it was out of time and an extension of time of 160 days was sought. 2. On 4 May 2022 in the Crown Court at St Albans before His Honour Judge Simon and a jury, RT (then aged 35) was convicted of four counts of a 6 count indictment. He was convicted of three specific counts of indecent assault contrary to section 15(1) of the Sexual Offences Act 1956 (counts 1, 3 and 5) and of one count of attempted indecent assault contrary to section 1(1) of the Criminal Attempts Act 1981 (count 6). Counts 2 and 4 were multiple counts reflecting the behaviours alleged in counts 1 and 3 respectively. On 29 June 2022 he was sentenced to a community order with unpaid work and activity requirements; and a compensation order was made. 3. There is a single ground of appeal advanced by newly instructed leading counsel, Stephen Vullo KC, and solicitors, Twelve Tabulae. The ground arises from section 34 of the Criminal Justice and Public Order Act 1994 (“ the 1994 Act ”), which qualifies an accused person’s right to remain silent when questioned, permitting proper inferences to be drawn by the jury in determining guilt in an appropriate case; and the holding in R v McGarry [1999] 1 Cr App R 377 , [1999] 1 WLR 500 . 4. Section 34 of the 1994 Act permits a judge to give an adverse inferences direction in relation to a defendant’s failure to answer questions at police interview. Where no such direction is sought by the Crown, section 34 does not require the judge to direct the jury not to draw any adverse inference. However, in McGarry this court held that in that case the jury should have been given a specific direction that no adverse inference should be drawn from any failure to answer questions at the police station. The advice given in the current version of the Judicial College Crown Court Compendium at 17-8, paragraph 29 reads: “If the judge has decided that no adverse conclusion arises from D’s failure to mention a fact/s then consideration should be given as to whether it is appropriate to direct the jury that they should not hold that failure against D. It is a direction that the judge should discuss with the advocates, the potential need for such being very much a fact specific decision”. That approach is supported by a number of cases that came after McGarry (see in particular, R v Thacker [2021] EWCA Crim 97 , R v Jama [2008] EWCA Crim 2861 , and R v Thomas [2002] EWCA Crim 1308 ), where this court made clear that the trial judge retains a discretion as to when a particular form of direction is necessary or not necessary in consequence of section 34 not applying. 5. Mr Vullo recognised the existence of a discretion as to whether or not the interests of justice will be furthered by a direction as to the consequences of section 34 not applying in any particular case. He submitted however that, on the facts of this case, where it was agreed that the requirements of section 34 were not satisfied but evidence about the “no comment” interview was heard, the jury should have received a McGarry direction. They were not given the benefit of such a direction, or indeed any direction as to how they should treat RT’s silence in interview, and in the particular circumstances, this failure rendered his convictions unsafe. 6. An applicant wishing to appeal to this court against conviction is required to show good reason for an extension of time for lodging a notice of application for leave to appeal outside the 28 day period. The court will always examine all the circumstances of the case, including the length of the delay, the reasons for it and the overall interests of justice including the public interest in finality, the interests of victims, the practicability of a retrial and any potential injustice to the defendant. Asserted strong merits cannot be assumed to be a trump card in securing an extension of time. 7. In this case, Mr Vullo candidly accepted that although a minor cause of the delay was the need to obtain full transcripts of the proceedings below, the major factor was the time he required to read through the transcripts. Furthermore, he did not initially appreciate that the requisite direction had not been given and his preliminary advice on appeal was negative. It was only on 14 October 2022 while drafting a detailed written advice explaining that opinion that he first identified the ground now advanced. The new legal team acted promptly from that point onwards. Mr Vullo was at pains to emphasise that on any view, the delay was in no sense RT’s fault. He submitted that the appeal has merit and that, accordingly, the interests of justice required an extension of time. 8. The appeal was resisted by the Crown and the court was assisted by submissions (both written and developed orally) from Wayne Cleaver, who appeared at trial for the prosecution. In short, Mr Cleaver submitted that it was not thought appropriate that a direction be given pursuant to section 34 of the 1994 Act where RT’s defence was a blanket denial of all offences and he did not depart in any significant way from what he had said in his prepared statement given to police in interview. The question of a section 34 direction was raised with counsel in advance of the summing up. Mr Cleaver told the judge that the prosecution did not seek such a direction and subsequently made no reference to the “no comment” interview in his closing submissions to the jury. Mr Cleaver submitted that there is no automatic requirement on a judge to include a McGarry direction in summing up, and relied particularly on R v Jama , where judicial discretion in this regard was re-emphasised. Here, the outcome of this trial depended upon whose evidence the jury accepted. The jury clearly considered the evidence carefully, convicting only on the specific counts, and must have preferred the evidence of the complainant on the core allegations. The omission of a McGarry direction did not result in a real risk of prejudice to RT, and while it would have been preferable to have ventilated the question whether such a direction should be given, there was no misdirection and the convictions were not unsafe. 9. At the conclusion of the hearing we announced that we were satisfied that the length of and reasons for the relatively short period of delay, together with considerations of the interests of justice, justified an extension of time, and we granted permission to appeal. Further, we came to the conclusion that the convictions were unsafe in the circumstances. We therefore allowed the appeal and quashed the convictions. Mr Cleaver indicated that no retrial would be sought and accordingly, we lifted the order made pursuant to section 4(2) of the Contempt of Court Act 1981 postponing publication of any report of these proceedings until the conclusion of any retrial. 10. We set out below our reasons for allowing the appeal but first it is necessary to summarise the facts and explain in further detail how the “no comment” interview was dealt with by counsel and the judge. The facts 11. The complainant, to whom we shall refer as “AB”, was 33 years old when he was interviewed by police (and videoed) on 14 January 2020. He made allegations of an historical sexual nature against RT. The allegations were said to have spanned a five year period and dated back to when RT was between 11 and 16 years old and AB was between seven and 11 years old. 12. The boys’ families were known to each other. The boys attended different schools but on occasions when AB’s mother was working a late shift, RT’s mother would look after him after the school day ended until his mother collected him (or in later years, he would then make his own way home). There was a dispute between the parties as to how often this would happen as well as the duration of the visits, but the fact of association was accepted. 13. AB told police (and later confirmed in evidence at trial) that his first recollection of going to RT’s home was of RT showing him pornographic videos on the television in the living room. AB said that whilst watching the videos RT would become aroused and touch his groin area after which they would go to RT’s bedroom where RT would ask him to rub his (RT’s) penis over clothing to begin with and then skin-to-skin. AB said this happened about six times. He accurately described a wall poster in RT’s bedroom. 14. RT’s case at trial was that he had never owned pornography and that his mother, who would always be present during the visits, would have been able to see the television screen in the living room even if she had been in the kitchen cooking. Plans of the house layout were provided to the jury and RT’s mother gave evidence confirming these points. RT maintained that he had no recollection of AB ever being in his bedroom and whilst the description of a wall poster in his bedroom was accurate, he suggested this may have been because AB saw his room on an occasion when AB attended with his father, who had done some building work in the house. RT’s mother also gave evidence that as far as she knew they had never gone upstairs to the bedroom together. 15. AB told police that the sexual touching progressed to RT putting his erect penis in his mouth. He said that happened on about three occasions. He also recalled one occasion when RT touched his, AB’s penis. AB said this incident was bought to an end by RT’s mother unexpectedly walking into the room. AB said that she had been very angry with RT and had taken him downstairs shouting at him and possibly smacking him too. RT’s case at trial on this was that due to his partial deafness he would not have been able to hear his mother’s approach. It was argued that would mean it would be reckless in the extreme for him to engage in the alleged conduct whilst she was in the house. Furthermore, his mother gave evidence to the effect that no such incident had ever happened. She said she never witnessed any problems with AB during any of the visits that were consistent with the allegations he was to make many years later. 16. One incident was said to have happened at AB’s home, in his bedroom. RT accepted he may have been at AB’s house and recalled kicking a football in the garden but he denied ever being in AB’s bedroom with him. AB said RT had exposed his penis and asked AB to suck it when they were unexpectedly interrupted by AB’s cousin. AB said RT quickly pulled his trousers back up when she came in. In his ABE interview, AB stated that his cousin had asked him directly whether RT had tried to do anything with him, and he replied saying no, that they were just wrestling. 17. The cousin gave evidence as a prosecution witness, but her account was inconsistent with the description of the incident given by AB. She recalled an incident when she had walked into AB’s bedroom and seen RT on top of him. She said that they stopped when she entered and that one of the two of them said they had been wrestling. This plainly contradicted what RT had said in terms of being in the bedroom. However, her evidence confirmed that both boys were fully clothed and that she had not thought anything of it at the time. She said she was quite sure that she did not raise the issue with AB afterwards, as he had claimed, or have any conversation with him about it at all. When AB was asked about this in evidence, he said he had brushed off her question as he was scared and ashamed. 18. Save for the cousin placing RT in AB’s room in circumstances that he denied, there was no independent corroboration for any of AB’s allegations. Corroboration is of course not required. Nonetheless, we consider that it is a significant feature of this case, as Mr Vullo submitted, that the evidence from the only two people named as potential witnesses by AB in respect of the only incidents that AB suggested were witnessed, did not support the prosecution case. Ultimately, the case was presented to the jury by both sides as one involving a stark conflict of fact: one or other of the two must be lying. RT’s police interview and how it was placed before the jury 19. As part of the police investigation RT was interviewed under caution on 4 March 2020. An admitted error had been made in the letter inviting him to attend for interview, not as a suspect, but as a witness. However, once at the police station it soon became clear that he was to be questioned as a suspect. Having consulted with a solicitor present to advise him, he declined to answer any questions about the allegations. Instead he provided a prepared statement. It read: “I am not guilty of the offences for which I am being interviewed. I have not assaulted [AB] sexually or otherwise. I have never made him watch any kind of pornography. I have never engaged in any kind of sexual activity with him or in his presence. I fully deny these allegations and have nothing further to say at this stage”. 20. The officer in the case, Jason Tinsley, gave evidence at trial. He confirmed that RT was not under arrest and attended the police station on a voluntary basis. He was asked about the interview under caution although he did not (as is customary) read out the words of the caution or explain them to the jury. At this distance from the trial, Mr Cleaver could not (perhaps understandably) explain why this was not done. It appears simply to have been overlooked. 21. In his evidence to the jury, the officer apologised for the mistakes made in the letter sent to RT, which said expressly that he was not a suspect in any offences. The officer explained that a solicitor was available to advise RT at the station, and that RT spoke to the solicitor before the interview started, and fully understood that he was in fact being questioned as a suspect (and not as a witness) before the interview started. 22. The officer said he was given a prepared statement from RT at the beginning of the interview. This was read out to the jury. He said that the interview proceeded and RT was asked a series of questions directed at the account given by AB, but answered no comment to all of them. At the end of his questioning in front of the jury, the judge asked the officer expressly if the specific details of AB’s account were put to RT, including in relation to the multiple counts, and the officer confirmed that they had been. 23. When RT gave evidence he was asked questions about the interview under caution. He confirmed that he had a chance to consult a solicitor and a prepared statement was read out on his behalf at the beginning of the interview. He said he had been advised by his solicitor to make no comment to questions asked of him in interview. In cross examination he was asked further questions about the interview. Having established that he understood he was being questioned as a suspect, Mr Cleaver suggested to him that when asked about the detail of what was being said against him he could have responded and given answers to all these questions. The following exchange then took place: “MR CLEAVER: You knew the answers to the questions, didn’t you? A. Yes, I did. Q. And you tell us that you’d taken the advice of your solicitor – as of course you’re entitled to do – but you surely appreciated, didn’t you, that these were serious allegations? A. That’s right. Q. In fact they were false allegations? A. That’s correct. Q. And you knew then that you barely knew this man – this boy, AB, you barely knew him? A. That’s correct. Q. Your “paths had merely crossed” was the way you put it today, yes? A. Yes, yes, it was. Q. And that you knew that this was all about allegations that are said to have arisen at your house? A. Yes. Q. And you knew – if it’s right – that it was very unlikely because you were hardly ever there, with all of your after school clubs? A. That’s right. Q. You knew all that, didn’t you? A. Yes. Q. And you say, do you, that the only thing that stopped you saying it was your solicitor’ advice? A. That’s correct. Q. Or is it because at that time you hadn’t thought of it; you hadn’t thought of ways on distancing yourself from him at that time? A. That’s correct.” 24. As is clear from the above, the “no comment” interview formed part of the evidence before the jury and it and RT’s answers in cross examination were evidence the jury were entitled to consider and to reach common sense conclusions about. The speeches and the summing up 25. Before the close of the evidence, on 27 April, there was a brief exchange between the judge and Mr Cleaver in which the judge asked whether he would be invited to give a section 34 direction. It is clear from the transcript that Mr Cleaver had not come to any firm view on the issue at that stage, although he indicated that he thought it was “probably not triggered” in this case. 26. On 28 April the judge made clear that he would not be doing a split summing up and that his written directions would not be available before counsel had completed their speeches. Mr Cleaver said in the course of that discussion that he was not inviting a section 34 direction. Neither counsel raised the question of a McGarry direction and it was not raised by the judge himself. There was no further discussion about this aspect of the case. Nor, it is now common ground, was there any apparent consideration given at all (by either counsel or the judge) to what (if anything) should be said to the jury in the absence of a section 34 direction. 27. Although Mr Cleaver made no reference to the “no comment” interview in his speech to the jury, Ms Robinson, the appellant’s trial counsel, said the following in her speech to the jury: “So you know that he said in a very short, prepared statement that he denied it. You know that he – when he was invited for the first time – he was asked to go down to the police station on the 4 of March of 2020, you know that he thought he was turning up as a witness. I’ve made it very plain, and I hope it’s been plain to you, I don’t criticise the officer for that. There’s no suggestion that it was some sort of trickery or deliberate. It was a mistake. But the reality is that in the letter that was sent to him it says, “Please can I stress that you’re in no way suspected or under investigation”. So when you look at that prepared statement and consider what it says and the fact that he then took – as he told you – took his solicitor’s advice to no comment, I do invite you to look at the background, him turning up there having been told, it’s stressed that he was not under investigation, not suspected or under investigation for any offence, that he turns up at the police station. So a man – now 35, so back then two years ago, 33 years of age, you know, never been in trouble with the police, no convictions, no cautions, turning up at a police station thinking he’s going to assist with enquiries as a witness, that they want to speak to him about something, suddenly there’s a solicitor waiting for him and he’s told actually no we’re investigating you and we’re going to interview you. So I just invite you to remember that and consider that when you consider the situation that he was in. But in that prepared statement he made it very clear that he – I suggest – that he denied these allegations and he has denied them since and got into the witness box in front of you and denied them.” 28. The judge gave his summing up after both speeches to the jury. He summed up the evidence of the interview under caution as follows: “The officer in the case gave evidence and you heard about the way in which the interview was arranged, and also about the communication that was the wrong communication, sent to [RT], indicating that he was being invited as a witness to come and be spoken to by police, when in fact, of course, he turned up and found that there was a solicitor ready there for him to be interviewed about these allegations. And, as you know, [RT] made a prepared statement having spoken to his solicitor – that’s a document you have and you’ll take that with you into your deliberations but, in essence, he [RT] fully denied all of the allegations put to him, which were put in some detail.” That was the only reference in the summing up to the interview. The appeal 29. We have summarised Mr Vullo’s arguments above. 30. For the Crown, Mr Cleaver emphasised the discretion retained by the trial judge as to whether to give a McGarry direction. Although in writing he suggested that the judge had correctly concluded that to give a McGarry direction would have been more likely to harm the position of the appellant than to assist him, he accepted in oral argument that no discretion was in fact exercised by the judge in this regard, and the point appeared simply to have been overlooked by counsel as well. Nonetheless, he submitted that the omission of a negative direction did not result in a real risk of prejudice to the appellant. This trial was dependent upon whose evidence the jury accepted. The jury clearly considered the evidence carefully, convicting only on the specific counts, and must have preferred the evidence of AB on the core allegations. 31. Despite Mr Cleaver’s submissions, we concluded that this was a case where a negative direction that the jury should not draw any inference adverse to the appellant from his silence in interview should have been given by the judge. This is not a case where to give a negative direction would have been harmful to the appellant. To the contrary, had this question been fully and properly considered by counsel and the judge, in light of the evidence and the way the trial had proceeded, the sensible response would have been to give it. Our reasons follow. 32. The trial in this case was conducted on the basis that adverse inferences might be available to be drawn, although ultimately, no such inferences were invited by the Crown. The “no comment” interview formed part of the evidence before the jury. Mr Cleaver submitted that his focus on the interview in his questioning of RT was really directed at addressing the suggestion that RT may not have known or understood why he was being interviewed. However, the jury did not know that and his questioning might easily have suggested to them that RT was withholding information he should have given to the police. Indeed in cross examination it was squarely put to RT that he chose to make no comment, not because of the advice of his solicitor, but because “at that time you hadn’t thought of it; you hadn’t thought of ways of distancing yourself from him at that time.” In other words, Mr Cleaver’s questions suggested that this was a case of recent fabrication. 33. The judge specifically directed the jury (in the usual way) that they could draw inferences from the evidence. Since the jury were not read the words of the caution or told that RT had a right to remain silent and give no comment answers, we cannot be sure that they would have known that they should not draw any conclusions from the appellant’s no comment answers in interview. Defence counsel plainly felt it necessary to address the jury on the basis that a negative inference was available for them to draw, despite agreement that section 34 was not triggered, but the judge said nothing at all about it. 34. As Mr Vullo submitted, the courts have long recognised that the issue of a defendant’s silence and offering no comment in interview cannot, as a matter of course, safely be left to a jury without judicial guidance. Any defendant who has this kind of evidence led against him with the challenge of recent fabrication made on the back of it is entitled to a jury direction to protect against the obvious risk of the jury placing unfair weight on that silence. However, none of the protections normally put in place in this regard were afforded to this appellant, and the possibility of a negative direction appears not even to have been considered. 35. This was a finely balanced case and the decision for the jury was a straight credibility contest between these two men. It was all the more likely in our view accordingly, that the jury would look for support for credibility or lack of credibility in other evidence. That would include the “no comment” interview which might well have been viewed as a less than full and frank response to police questions in interview. This was plainly evidence the jury were entitled to consider and they would also have been entitled to come to common sense conclusions based on the evidence that they had heard, in accordance with the general direction the judge gave them about inferences that could properly be drawn. 36. In all the circumstances, the failure to give a negative direction in this case meant that the jury were left without any guidance as to how they should regard RT’s refusal to answer specific questions asked of him. They were left in a sort of “no-man’s land” between the common law principle and the statutory exception in section 34 , without any guidance as to how they should treat RT’s failure to answer the specific questions that were put to him by police. The danger is that without such guidance the jury might well have treated his silence as probative of guilt. On the facts of this case, this was seriously prejudicial to him, and the convictions could not therefore be regarded as safe. 37. Accordingly, we allowed the appeal and quashed the convictions.

2023_09_12-5816.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1118/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1118

c80501e83e537fcbaffcb323fb4213aae382034f55b0b71873c4d4fc2c82302c

[2003] EWCA Crim 3480

EWCA_Crim_3480

2003-11-19

crown_court

No. 2003/01176/B4 Neutral Citation Number: [2003] EWCA Crim 3480 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Wednesday 19 November 2003 B e f o r e: LORD JUSTICE JUDGE ( Deputy Chief Justice for England and Wales ) MR JUSTICE SILBER and MRS JUSTICE COX - - - - - - - - - - - - R E G I N A - v - ANDREAS FINDLAY - - - - - - - - - - - - Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Offici

No. 2003/01176/B4 Neutral Citation Number: [2003] EWCA Crim 3480 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Wednesday 19 November 2003 B e f o r e: LORD JUSTICE JUDGE ( Deputy Chief Justice for England and Wales ) MR JUSTICE SILBER and MRS JUSTICE COX - - - - - - - - - - - - R E G I N A - v - ANDREAS FINDLAY - - - - - - - - - - - - Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) - - - - - - - - - - - - MR J DEIN QC appeared on behalf of THE APPELLANT MR J JEREMY appeared on behalf of THE CROWN - - - - - - - - - - - - J U D G M E N T Wednesday 19 November 2003 LORD JUSTICE JUDGE: 1. On 7 July 1989, in the Central Criminal Court, before His Honour Judge Smedley QC (as he then was), the appellant was convicted of conspiracy to rob. Three days later he was sentenced to nine years' imprisonment. On 20 December 1991, this court dismissed his appeals against conviction and sentence, as well as an appeal against conviction by a co-accused, Winston Francis, who had been convicted on the same indictment. 2. The convictions arose out of a police investigation into a series of robberies and attempted robberies at sub-post offices in East London and Essex, carried out in the spring of 1988 by a group of Afro Caribbean males. 3. A police surveillance operation was carried out by officers attached to the Flying Squad at Rigg Approach. This Flying Squad has been the subject of a prolonged investigation by the Metropolitan Police Complaints Investigation Bureau into allegations of dishonesty, corruption and perversion of the course of justice. This conviction has now to be examined in the light of the melancholy results of the investigation into the integrity of the Flying Squad. 4. We must make it clear that it does not follow that each and every conviction after an investigation by, or involvement of, officers in the Flying Squad at Rigg Approach is to be treated as unsafe. Each case has to be examined on its merits. Although there are examples of occasions when convictions have been quashed, there are also examples where they have not been quashed because on examination the court decided that the convictions were safe. 5. In February 2002 the Crown Prosecution Service wrote to the appellant expressing “very great concerns about the safety of the conviction recorded against you”, and advising him in the strongest possible terms that it was “essential that you seek legal advice immediately”. 6. The appellant sought a review of the conviction by the Criminal Cases Review Commission on 29 November 2002. The Commission has now referred the case to this court. The Crown has already indicated that it “feels unable to advance a reasonably arguable ground on which this conviction could be considered safe”. This is the Crown's position today. 7. We have examined these papers. In the light of the evidence now available, this conviction was rightly referred to this court. The Crown's position is realistic and sensible. We agree that the conviction is unsafe and that it must be quashed. We can therefore deal briefly with the relevant facts and the reasons for interfering with the decision of the jury. 8. On 3 June 1988, four of the appellant's co-accused were arrested when they ran out of a sub-post office which they had attempted to rob. This attempted robbery appeared to be one in the sequence of robberies to which reference has already been made. 9. A series of planned police raids took place on 19 July 1988. During the course of his arrest, and again on the journey from his home to the police station, the appellant allegedly made a number of verbal admissions, admitting to being involved in one specific robbery which formed part of the sequence. The police failed to make any contemporary record or to provide an explanation why this was impracticable. At the police station the appellant was held incommunicado. He was said to have made written admissions during two police interviews. The judge decided that the evidence of police officers relating to interviews which were said to have culminated in written admissions was inadmissible and should be excluded. However, he admitted the verbal admissions in evidence for the consideration of the jury, which he left to the jury's evaluation. 10. The appellant was convicted on a single amended count alleging a conspiracy to rob a specified sub-post office in Hainault. Not guilty verdicts were entered on the judge's direction on all the remaining counts so far as they involved the appellant. The evidence to sustain the single conviction depended exclusively on the appellant's alleged oral admissions to the police. 11. The raid on the appellant's home on the morning of 19 July was carried out by four officers, Detective Inspector Cutts, Detective Sergeant Miller, Detective Constable Verralls and Detective Constable Saunders. One police vehicle was driven by two uniformed officers, PC Suett and PC Baysfield. Entry was forced. After the appellant was hand-cuffed he was said to have admitted his involvement in the robbery. He was said to have repeated this admission while he was in the police car. The conversations were written up in police notebooks thirty minutes after arrival at the police station. The notes themselves did not record the time at which they were made, nor the reason why they could not have been made contemporaneously. The judge took the view that these breaches of the relevant Codes of Practice were of too trivial a nature to produce an unfairness. Accordingly, they were not excluded under section 78 of the Police and Criminal Evidence Act 1984 . DI Cutts in evidence said that he was unaware of the requirement that when the notes were compiled they should have recorded the reason why they had not been made contemporaneously. DC Saunders said it was not practicable for him to make a contemporaneous note because he was hand-cuffed to the appellant. The exhibits officer, DC Verralls, made a note of the conversation at the appellant's home when he had returned to the police station. He did not sign the notebooks of other officers because he had his own notes. PC Suett and PC Baysfield did not compile their own note of the conversation in the vehicle, but instead signed the notes made by DI Cutts and DC Saunders. 12. The custody record noted that both the verbal admissions and the written interview records excluded by the judge were shown to the appellant and that he declined to sign either of them. In his evidence the appellant denied any involvement in the robbery or in any conspiracy. He said that the police had burst into his home and that he had been punched in the face. A search of his home had taken place. He denied making any incriminating admissions; those attributed to him by the police were fabricated. 13. If made, the comments attributed to the appellant provided ample evidence of his involvement in the offence of which he was convicted by the jury. Thus, at his home after he was hand-cuffed, the incriminating conversation allegedly included this passage: DS Miller:We know you have been involved in post office robberies. The appellant:I was only on one, I swear. I don't care what you've been told. DS Miller:Which one do you say you did? The appellant:The one near the Forest. DS Miller:New North Road, Hainault? The appellant:It's at Hainault, yes. DS Miller:Who else was with you? The appellant:Hold on, I don't like it. I won't name anyone. On the way to the police station the relevant conversation was described in these terms: DC Saunders:You've told us about the Hainault job. The appellant:No, you told me. DC Saunders:Well, we asked you about it and you said, 'the one near the Forest, Hainault', so you must know it otherwise you wouldn't know it was by the Forest. The appellant:Course I know about it. DC Saunders:Yes, but you said you were on it, which is more than knowing about it. The appellant:Okay, okay, I stand by what I said. No names. That's all I done. DC Saunders:What did you do on the job? The appellant:Just went in with the others. DC Saunders:How many of you? The appellant:There was four of us. DC Saunders:Who? The appellant:No names. 14. As a result of the investigation into the activities of the Flying Squad at Rigg Approach, DS Miller and DC Saunders are regarded as officers who cannot now be advanced as witnesses of truth. Miller was suspended from duty in March 1998. After investigation into allegations of dishonesty, corruption and perversion of the course of justice, following a disciplinary hearing he was required to resign from the Police Force in December 2001. Saunders, too, was suspended in 1998. He was charged with, and awaited trial on, counts of theft, handling and conspiracy with three other officers. That trial has now taken place. The Crown was unable to call a crucial witness and offered no evidence against him. 15. DI Cutts and DS Verralls were also members of the same squad. Their position is less extreme than that of Saunders and Miller. However, in February 2002 they were said to be members of a larger group of officers who knew something of the corruption and misconduct which went on in the Flying Squad and acquiesced in it. 16. PC Suett and PC Baysfield, who had been present in the police vehicle, signed up to the notes written by Cutts and Saunders. They were not members of the Flying Squad and they did not fall within any group of tainted members of that squad. Their evidence, however, is quite insufficient to save this conviction. 17. The evidence of Miller and Saunders was central to the case against the appellant. Indeed, without the evidence of the conversations which allegedly took place between each of them and the appellant, and given the exclusion of the written admissions, there was in truth no case against him. The appellant's position was, as we have recorded, that the entire account of his alleged admissions was a fabrication. Given the centrality of these admissions to the conviction, and the tainted sources upon which they depended, without making any finding against PC Suett or PC Baysfield, this conviction cannot be sustained. Accordingly, it will be quashed. In reaching this conclusion, we have taken notice of the potential dangers of over-reliance on accounts of conversations between police officers and suspects which are said to have occurred in places where no contemporaneous record could be made and where the safeguards for the defendant are at their least compelling and he or she is at his most vulnerable. 18. As there was no other admissible evidence against the appellant, we have therefore not felt it necessary to enquire further into two matters which may arise in subsequent cases involving the Flying Squad stationed at Rigg Approach and which the Commission may wish to consider in the course of investigation of such other cases: first, whether there may at some stage be sufficient evidence when the course of corruption which was to infect the squad actually began; and second, whether there has been, or is to be, any further development in the investigation into the officers in the squad who were regarded in early 2002 as marked by the general, rather than the specific, taint. We also hope that the Commission will be supplied not only (as it inevitably will) with a copy of this judgment, but also copies of judgments in other cases where convictions have been upheld as well as those when the convictions were quashed. No doubt, resources at the Commission will in future have to be deployed to investigate many of the recorded convictions on the basis of the evidence from members of this squad. 19. MR DEIN: My Lord, might I mention one brief matter in relation to legal aid? 20. LORD JUSTICE JUDGE: Yes. 21. MR DEIN: Messrs Edward Fail were granted a representation order on 24 February 2003. However, prior to that they undertook a considerable volume of work, which I can itemise if necessary. My application is for the representation order of February 2003 to be back-dated to 21 May 2002, which was when they were first instructed by the appellant. 22. My Lord, if I may respectfully say so, this is an application I have made in other cases -- not before this constitution -- which has been granted and I can, if necessary, take the court to the relevant provision. As I say, that is the application I make. 23. LORD JUSTICE JUDGE: We agree. 24. 24. MR DEIN: Thank you very much. 25. 25. LORD JUSTICE JUDGE: Thank you, Mr Dein. Thank you, Mr Jeremy.

2003_11_19-140.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2003/3480/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2003/3480

ba0e8112bae8423cb492bb268afd5be7f355121646c76df864a115b9a894cf17

[2005] EWCA Crim 3404

EWCA_Crim_3404

2005-11-16

crown_court

No: 200501700/A5-200502018/A5 Neutral Citation Number: [2005] EWCA Crim 3404 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 16th November 2005 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE SIMON MRS JUSTICE DOBBS DBE - - - - - - - R E G I N A -v- LORENC ROCI VULLNET ISMAILAJ - - - - - - - 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: 200501700/A5-200502018/A5 Neutral Citation Number: [2005] EWCA Crim 3404 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 16th November 2005 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE SIMON MRS JUSTICE DOBBS DBE - - - - - - - R E G I N A -v- LORENC ROCI VULLNET ISMAILAJ - - - - - - - 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 WOODS appeared on behalf of the APPLICANT ROCI MR S MOLYNEUX appeared on behalf of the APPLICANT ISMAILAJ MR B O'NEILL appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: On 21st February 2005 at Southwark Crown Court, these appellants (as they are now are with the leave of the Court) pleaded guilty at a late stage on rearraignment and, on 22nd February, they were sentenced by His Honour Judge Robbins, in the case of Roci, to 4 years' imprisonment on count 2, for conspiracy to control prostitution for gain. Count 1, which was conspiracy to arrange or facilitate the arrival into the United Kingdom of a person for the purposes of sexual exploitation was left on the file in the usual terms. Ismailaj was sentenced to 11 years' imprisonment, on count 1, conspiracy to arrange to or facilitate the arrival in the United Kingdom of a person for the purposes of sexual exploitation. Count 2, conspiracy to control prostitution for gain and a separate indictment, alleging possession of a prohibited weapon and possession of ammunition without a certificate were left on the file in the usual terms. 2. Both the appellants were also recommended for deportation. The Registrar had referred their applications for leave to appeal to the Court. 3. A co-accused called Qata, who pleaded guilty to count 2, of controlling prostitution for gain, was sentenced to 18 months' imprisonment and also recommended for deportation. Another co-accused was acquitted. 4. The case related to the trafficking in prostitutes from Lithuania to the United Kingdom and the control of their activities here by the two appellants and Qata, following their arrival. Ismailaj was much the most significantly involved. Qata was the least involved and indeed his activities were confined to controlling one prostitute in September 2004. 5. During their investigation the police obtained statements from a number of Lithuanian women who had come to this country expressly for the purpose of working as prostitutes. None of them, however, expected to work in the manner they were subsequently required to. 6. There were four adult women who described having arrived between November 2003 and September 2004, either at Heathrow Airport or at the Victoria Coach Station, from Lithuania. They described being met on arrival at whichever of those destinations by Ismailaj who, in several cases, had apparently paid their travel fares and to whom they paid the bulk of their earnings from working, many hours a day, 5 or 6 days a week. They were required, which they did not wish to, to service drunken clients and in some cases they were required, which they did not wish to, to work when they were menstruating. Both these appellants drove them to brothels in Birmingham and in London. 7. One of the women described how she had responded to Qata in the presence of Ismailaj when he had handed his telephone to her to speak to a woman in Lithuania. She threw the telephone down and then dialled the emergency services on her own telephone, and explained in broken English her predicament. A man who was passing by at the time was sufficiently concerned to take the telephone from her and speak to the police operator. Thereupon officers were dispatched and came to the scene. She made a statement to the Vice Squad which led to a much larger investigation. 8. She told the police that her two cousins, who were sisters, had been due to come to this country as prostitutes and, in consequence, a surveillance operation was mounted. They were seen to arrive at Victoria coach station, where Ismailaj met them on 29th September. During the course of their journey they had received a telephone call telling them that their cousin, the one who had gone to the police, had run away. But it was too late by then for them to stop their journey. When they met Ismailaj, they asked him what had happened to their cousin. He said she was working elsewhere. He took them to a flat where two other prostitutes and an Albanian man were waiting for them. Roci arrived a short while later. 9. The following day, at about 5 o' clock, Ismailaj came, and Roci brought food. A bald man turned up who said he was going to be their boss and that she had been sold to him or was about to be sold to him by Ismailaj. She said she was not prepared to work apart from her sister. An argument ensued. The sisters packed their bags. 10. The surveillance operation continued. On 6th, 7th and 10th October, Ismailaj, and on 6th October, Roci, were seen driving different women to brothels in various places. Ismailaj was arrested on 11th October and had in his wallet three £20 notes which police officers were able to identify as having been handed over by them in connection with prostitution the previous day. In his home was found £4,315 in cash, banking documents revealing large deposits of cash and transfers to Lithuania and Albania and a number of documents supporting false identities for him. There was also correspondence indicating that the two appellants had shared a flat together and with Qata. There were bogus employment references and numerous work records for various prostitutes, which showed that the earnings had been split 25 per cent for the girl and 75 per cent for the pimp. 11. When Roci was arrested on 29th October, he had just under £400 in cash in his possession. When his home was searched, banking documentation revealing the movement of large amounts of cash including transfers to Albania and Lithuania were recovered, together with work rotas for the prostitutes. 12. When he was interviewed Ismailaj said that his girlfriend supported him from her work as a prostitute and she was his only source of income. He denied having arranged for any women to come to this country to work as prostitutes. He did, however, admit that he knew some of the women whom he drove round were prostitutes, but he claimed they did not work for him. 13. When Roci was interviewed he made a prepared statement in which he said he had never knowingly taken prostitutes to work but had given lifts to women that he did not know. He claimed to have saved a lot by working and sent money back to Albania and transferred some money on behalf of a Lithuanian friend. 14. In passing sentence, the judge took account of the pleas of guilty, albeit entered on the very day of their trial, at a time when the jury were about to be sworn. Both were illegal immigrants and would be recommended for deportation. He referred to the Consultation Document issued by the Sentencing Advisory Panel on the exploitation of prostitution. He said that both had made substantial financial gains: in the case of Ismailaj, it amounted to a benefit of approximately £160,000; in the case of Roci to about £87,000 and in the case of Qata to about £46,000. The total between the three was therefore some £300,000. 15. The judge accepted that the women had come to this country for the purposes of prostitution, and in consequence had not been in any way corrupted. But they had, by reason of the conditions in which they were required to work, been coerced. The judge referred to the high degree of planning and organisation involved in trafficking in people and he referred to some evidence of threats and inhuman treatment and restriction of the women's liberties and confiscation of their passports. The judge referred to the case of R v Plakici [2005] 1 Cr App R(S) 83 , which was not before the Sentencing Advisory Panel when they issued their consultation paper. The judge said, rightly, that the Courts had to send a clear message out that those who trafficked in girls for prostitution would receive severe deterrent sentences. Ismailaj was deeply involved and Roci was his eager lieutenant. 16. Roci was born in October 1982 and so is 23; Ismailaj was born in August 1977, and so is 28. They are both Albanian nationals apparently of previous good character. 17. The grounds of appeal submit that the judge adopted too high a starting point in relation to Ismailaj, or failed to give him sufficient credit for his plea, and took insufficient account of the absence of aggravating features, which are sometimes to be found in cases of this kind. So far as Roci is concerned it is said that the judge ought to have paid more regard to the comparatively minor role played by him in relation to count 2. In consequence, it is said, making him a long-term prisoner was excessive. 18. It is to be noted in this case, as in contrast to the case of Maka in which this constitution gave judgment earlier today, that the victims of these offences were not only adult prostitutes, but they came to this country for the purpose of carrying on a trade as prostitutes. The coercion to which they were subjected was extremely minor compared with the coercion and corruption to which the victim in Maka was subjected. That said, these activities were carried out by these two appellants for commercial gain, over a substantial period of time. 19. Looking at all the circumstances of this case, although we take the view that the learned judge was entirely right to impose deterrent sentences, the sentences which he did impose seemed to us to have been excessive. The appeal of Roci will be allowed. The sentence of 4 years passed upon him will be quashed. There will be substituted for it a sentence of 3 years' imprisonment. So far as Ismailaj is concerned, his appeal too will be allowed. The sentence of 11 years will be quashed and there will be passed upon him a sentence of 9 years' imprisonment.

2005_11_16-639.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/3404/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/3404

d91af1d8aa374d06f93bd48201ae5b41bd99bb75181098afd4f352cda72ed9d6

[2018] EWCA Crim 21

EWCA_Crim_21

2018-01-18

crown_court

Neutral Citation Number: [2018] EWCA Crim 21 Case Nos: 2017/1243/B5, 2017/1247/B5, 2017/1250/B5 and 2017/1255/B5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT His Honour Judge Topolski Q.C. T20150445 and 20160037 Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/01/2018 Before : LORD JUSTICE TREACY MRS JUSTICE McGOWAN and HIS HONOUR JUDGE MAYO Sitting as a Judge of the CACD - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and

Neutral Citation Number: [2018] EWCA Crim 21 Case Nos: 2017/1243/B5, 2017/1247/B5, 2017/1250/B5 and 2017/1255/B5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT His Honour Judge Topolski Q.C. T20150445 and 20160037 Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/01/2018 Before : LORD JUSTICE TREACY MRS JUSTICE McGOWAN and HIS HONOUR JUDGE MAYO Sitting as a Judge of the CACD - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Mohammed Ishtiq Alamgir Yousaf Bashir Rajib Khan Mohammed Choudry 1 st Appellant 2 nd Appellant 3 rd Appellant 4 th Appellant - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment. Copies of this transcript are available from: WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7414 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Sean Larkin QC and Miss Michelle Nelson (instructed by Prosecution Counter Terrorism Division ) for the Respondent Mr Alesdair King (instructed by Usmani King LLP ) for the 1st Appellant Miss Isabella Forshall QC and Mr David Gottlieb (instructed by Arani LLP ) for the 2nd Appellant Mr Paul Hynes QC and Mr Richard Doman (instructed by Ahmed and Co. LLP ) for the 3rd Appellant Ms Kate O’Raghallaigh (instructed by Ahmed and Co. LLP ) for the 4th Appellant Hearing date: Tuesday 19 th December, 2017 - - - - - - - - - - - - - - - - - - - - - Judgment As Approved by the Court Lord Justice Treacy : Introduction 1. The appellant Choudry appeals with the leave of the Single Judge against a sentence of 4 years’ imprisonment for an offence of encouraging support for a proscribed organisation contrary to s.12 of the Terrorism Act 2000. The appellant had been convicted at the Central Criminal Court after a re-trial. A number of co-accused had been convicted of offences contrary to s.12 at the first trial at which the jury did not reach a verdict in Choudry’s case. Alamgir, Khan and Bashir renew applications relating to sentence after refusal by the single judge. They, too, had contested their guilt. 2. On 10 February 2017 all offenders were sentenced. Mohammed Alamgir was sentenced to 6 years’ imprisonment on three counts contrary to s.12; Yousaf Bashir was sentenced to 4½ years for one count contrary to s.12; Rajib Khan was sentenced to 5 years’ imprisonment for one s.12 offence, together with 18 months’ imprisonment to run concurrently for arranging a meeting to support a proscribed organisation; Ziaur Rahman, whose case is not before the court, was sentenced to 30 months’ imprisonment for three counts of arranging a meeting contrary to s.12. 3. The background to the case shows that a group formally known as Al Mujahiroon, now a proscribed organisation (but not described as such at trial), saw Sheikh Omar Bakri Mohammed as their leader and teacher. He was a radical scholar who taught and preached in London and promoted violent jihadi views. After the July 2005 bombings he left the UK and was excluded from re-entry. He personally taught the co-accused Alamgir and Khan. This case concerned persons currently or formerly associated with that group or who, it was alleged, were actively sympathetic to it or its aims. 4. On 20 June 2014 Isis was in that name and in other names designated to be a proscribed organisation. It was common ground that the Caliphate had been purportedly re-established around 29 June 2014 when the leader of Isis, Abu Akbar Al Baghdadi, declared the land seized in Syria and Iraq as a Caliphate or an Islamic State. At the same time he declared himself to be the Caliph. The Offending Speeches 5. Between March 2014 and November 2015 an undercover police officer known as Kamal infiltrated a group of people believed to have violent jihadi views. The group was a national one with its main branch in London, but this operation concentrated on the Luton branch. A number of prominent figures who themselves have been convicted of offences under terrorism legislation were speakers in Luton. Alamgir was the head of the Luton branch and Khan was a deputy. They spoke at meetings and held Islamic classes for members of the group and others. Bashir was said to be an enthusiastic member of the group who recorded speeches for dissemination. The group met regularly for speeches and Islamic classes. In addition, Alamgir and Khan promoted their view of Islam at a dawah stall after mosque on Fridays. 6. The focus of the trial was on meetings held and speeches made during the holy month of Ramadan in 2015. The meetings took place in a marquee erected in Rahman’s garden. These meetings were deemed to be more significant than normal and attracted large numbers including members of the national group and children. Numbers attending varied between a few dozen and over 100. 7. On the first anniversary of the declaration of the Caliphate, 29 June 2015, Alamgir gave a talk to an invited audience in Luton. This speech and others made by him and by Khan, Bashir and Choudry during Ramadan had as their primary purpose the encouragement and support of Isis. Khan had also distributed invitations; Rahman had hosted the gatherings and provided food and hospitality. Bashir recorded some of the meetings. We provide below brief summaries of the content of the speeches with led to convictions. 8. Mohammed Alamgir was convicted on three counts relating to separate occasions. Count 1 was a meeting on 29 June 2015. He spoke of the sun setting on the British Empire and starting to rise for the Islamic State. He spoke of Muslims who go to fulfil what he called “the obligation”. He referred to those on the front line as being the best of the best, and how the year which had passed since the establishment of Islamic State represented more success than had been seen in the previous 80 years. He then called for an end to procrastination and spoke of what he called victory in Tunisia and Kuwait. Those were references to recent outrages in both countries, resulting in large numbers of dead and injured. Speaking of those attacks on wholly innocent people he said: “We feel good. We feel the victory. We see Islam rising. One good example for all of us.” He invited the audience to wake up and remember the words of Sheikh Omar Bakri Mohammed that “a Muslim without Sharia is like a fish without water”. He closed with a reference to the last great battle, a theme which the Islamic expert, Dr Wilkinson, said was frequently to be seen in the speeches and writings of those who were violent Islamic extremists. 9. Count 2 relates to 7 July. Alamgir announced funeral prayers to be held for Abu Rahin Aziz, a former member of the Luton group, who had just been killed by a drone strike while fighting for Isis in Syria. He described him as the best of martyrs. He returned to the theme of procrastination, speaking of those prepared to go and fight Jihad as those who go forward while the rest get left behind. He exhorted the audience to wake up and realise that they are part of the struggle and part of history, suggesting they are not going to be forgiven unless they answered the call and stood together under the banner. He urged that the best thing to do was to make Hijrah, migration, because he suggested the Muslim community was under attack from the Kufr (infidels), both here and elsewhere. 10. Count 4 took place on 15 July. Alamgir talked about a part of the Muslim Council of Great Britain in the shape of the Quilliam Foundation, a counter-extremism think-tank standing for religious freedom, equality, human rights and democracy. He described it as being made up of idolaters, hypocrites, apostates and supporters of the British government. 11. We turn next to Yousaf Bashir. He was convicted on Count 5, an event which took place on the same date and venue as Count 1 where Alamgir had addressed the meeting. Alamgir’s speech was followed by one made by Bashir. He told a story of someone losing a race because he thought the race was over, when in fact it had another lap to go. He talked about people who might be thought of as being right at the back and doing nothing, who then step forward. Those people step forward with their families and children to “carry the banner for us”. This was said to be a direct reference to a recently-published news story about a Luton family going, together with their children and at least one elderly relative, to join Isis in Syria. 12. Rajib Khan was convicted of Count 6, encouraging support, and Count 7, arranging a meeting to support a proscribed organisation. Both offences related to the same day, 11 July. Khan spoke of the Muslim community having power, “and that is why the whole world is scared of the Muslims right now”. He added that the time for sitting on the fence was over. This was the moment that people had been dreaming of for centuries. He said “the reality is we have a Khalifa, our Khalifa, our State, and we must love it and we must care about the Umma”. He spoke of Abu Rahin Aziz and how his death had surpassed everything that others had done. 13. The count against Mohammed Choudry related to 2 July 2015. At that meeting he spoke of the conduct and behaviour of the Kufr as being disgusting and involving behaving in ways which were worse than animals. The passage was described as both hateful and divisive. He referred to the declaration of the Caliphate as being a blessing and said more than once that neither he nor anyone else should care what the Kufr think and that the Kufr should “die in their own rage”. He stated that “our time will come” and that “a wave is coming”. He asked the audience to be ready for the hardship and struggle to come and said that the time for revenge had arrived. He referred to attending, as a teenage boy, a talk given in London by Omar Brooks, an invited speaker during Ramadan in Luton, a man convicted of terrorist offences and a significant figure in the extreme Islamist world. At the end of Choudry’s long and complex speech there followed a passage which described 40 trucks driving down Oxford Street full of explosives. 14. That speech, as well as the other speeches made by the co-accused during the Ramadan period, was considered against a background of evidence including recordings of speeches to the Luton branch to similar effect made outside the Ramadan period. By way of example, some days before Choudry’s speech another member of the group made a speech, at which all defendants were present, applauding Islamic State’s policy of murdering homosexual men and stating that no one should feel sorry for any Kufr, specifically Britons in Tunisia (where there had been a terrorist outrage) or factory workers in France, one of whom had been beheaded shortly beforehand by an Islamist extremist. Defences Advanced at Trial 15. In essence, the defendants accepted that the meetings were arranged and that speeches were given as recorded and transcribed. However, each defendant denied that his purpose was to encourage support for Isis. The collective defence case was that their speeches fell on the lawful side of the line drawn in legislation. The jury’s verdict shows that it was sure that that was not the case. 16. Alamgir did not give evidence. It was not contested at trial that he was a supporter of views which could be considered at the extreme end of Islamic beliefs. We do not need to repeat them. He denied supporting Abu Bakr Al-Baghdadi or the organisation known as Isis. 17. Bashir made no comment in interview and did not give evidence. The case presented on his behalf was that neither his purpose nor his words in any way encouraged or were intended to encourage support for a proscribed organisation. 18. Khan gave evidence and said that although that he originally supported Al-Baghdadi as the new Caliph, he became disenchanted by Isis’s violent methods and by 2015 was not a supporter. He agreed he continued to perform dawah (calling others to Islam) but said he did not support violence and that he subscribed to the non-violent concept of the “covenant of security”. 19. Choudry gave evidence denying that his purpose was to encourage support for Isis or that his speech contravened the legislation. The jury’s verdict showed that they were sure that the purpose of his speech was to encourage support of Isis, a proscribed organisation, and that he knew at the time he spoke that he was encouraging support for it. Antecedents 20. Alamgir, Bashir and Khan are all in their late 30s. Choudry is 23. Khan and Choudry had no previous convictions. Alamgir was convicted in 2014 of an offence of violent disorder arising from events on 10 May 2013 in Edgware Road which involved a protest, firstly about the conflict in Syria and then against members of the local Shia community, which culminated in violence. He was sentenced to 10 months’ imprisonment. In addition, at the time of the present offences, he had been on bail for offences of criminal damage. 21. Bashir had two relevant previous convictions for public order offences. In January 2010 he was convicted of using disorderly or threatening behaviour. He and Rahman and some of the Luton group were at an anti-war demonstration in Luton which was, in part, a protest at a parade by an army battalion which had just completed a tour of duty in Iraq. He was heard to shout “British Army: murderers. British Army: go to hell.” He then took up a microphone and led the protest, shouting things such as “British soldiers: terrorists. Muslims rise up. Muslim men stand up. British soldiers, you will pay. Islam for the UK.” In June 2014 he pleaded guilty to affray arising out of violence against members of the English Defence League. Those events took place in London in May 2013. Bashir received a 21-week prison sentence. The Judge’s Sentencing Remarks 22. In passing sentence, the judge said that it was clear that the jury was sure that the defendants had knowingly crossed the line between legitimate and lawful expressions of deeply-held opinions and beliefs and the crime of encouraging support for a bloodthirsty terrorist organisation. He accepted that the offences did not involve direct and explicit encouragement of specific acts of violence. Nor did the evidence show any direct link between what was said and any act of violence by anyone in the audience. There was no evidence that any listener was inspired to commit any particular terrorist act. However, the absence of any direct link between a speech and an act of terrorism did not mean that the offending was not serious, albeit it could not properly be described as the most serious example of its kind. The speeches were clearly supportive of terrorism and specifically of Isis and encouraged their audiences to do the same. The main thrust of the message each defendant was seeking to convey would have been clear to members of the audience. The message was that Al Baghdadi, the Caliphate and Isis should be encouraged and supported in its work. Those who had demonstrated support and encouragement by word and by deed should be celebrated with pride and if possible emulated. 23. The judge, who had heard detailed evidence, spoke of the defendants as long-standing and active supporters of Sheikh Mohammed and his organisation. All defendants were fully aware of the nature of Isis and its call, in September 2014, for lone-wolf attacks against Kufr anywhere in the world. They admired and supported Isis by their activities in encouraging their audience to accept that by doing wrong they would be doing right. It was their intention to persuade their audiences to take up a more radicalised position and act upon it. The atmosphere surrounding the meetings was likely to lead or encourage some to give active support and encouragement to Isis. Whilst the size of audiences was not as large as an on-line audience, the audiences were not insignificant and the impact was likely to be greater. The offending was not spontaneous. The judge also said that none of the defendants had since the trial been prepared to denounce the activities of, or support for, either the Caliphate or Isis. The judge’s analysis of the offending after conducting two trials is to be respected. 24. The judge assessed Alamgir as undoubtedly the leader of the Luton group. He was deeply respected and sought after as a teacher and an activist. It was to him that members of the Luton group turned for help and advice. When he spoke he commanded attention. Although there was no direct encouragement by him of violence, it was very likely that his words would have been influential and that they would have encouraged others to support Isis. His tone and chosen content went beyond intellectual support. It was something far deeper. He was deeply committed to an extreme and violent Jihadi mindset and in that sense he was dangerous. 25. Bashir had been described as extremely knowledgeable but not in a leadership role. He regularly attended meetings at Ramadan in 2014 and 2015. He had chaired a handful of them, and one during the period charged. Although he had a lower profile than Alamgir he was an important long-term and active member of the group. Although the speech which he made had been brief, the judge said it was likely to have been just as powerful in the minds of at least some of the audience as speeches made by other defendants. Bashir had recorded some of the speeches, presumably for future use. 26. The judge said that Khan was clearly highly intelligent, articulate and well-informed about Islam. The judge accepted he had stopped short of actually encouraging acts of violence but found that he was deeply committed to an extreme and violent Islamist mindset. His speech had clearly encouraged support for Isis. He played his part as an important and influential member of the Luton group and others such as Rahman had looked to him for guidance and advice. He played his part, fully intending to encourage support, not merely for a religion, but also for a terrorist organisation. Although the judge thought him dangerous within the ordinary meaning of the word, he said it would be right to draw a distinction favourable to him between himself and Alamgir to mark their respective positions in the Luton group, the number of speeches made, and their respective criminal histories (Khan had an old and irrelevant conviction for affray on his record). 27. Choudry, at 23, was by about 15 years the youngest of the defendants. He was of previous good character. He made a single speech and, whilst this was not his only appearance in activities and events involving the Luton group, it was right to observe that his appearance on the scene in Luton was late in the day although he had been very familiar with, and in some cases connected to, other significant figures. He had appeared at a dawah stall with Omar Brooks and Anjem Choudary, both men convicted of terrorist-related offences, shortly after he made his criminal speech in Luton. Of the Luton group he only knew Khan well. The judge commented that this appellant’s speech was no momentary excess of enthusiasm. It was well prepared and a considered attempt to put himself forward as a new and radical voice prepared to speak in support of violent extremism. Submissions 28. On behalf of Alamgir it was submitted that the term of 6 years was manifestly excessive. This was so where insufficient regard had been paid to Alamgir’s genuine beliefs which pre-dated the creation of Isis. Moreover, the limited audience and the nature of the audience had been insufficiently reflected in sentence, as had the absence of any direct link to any violent acts of terrorism. 29. Bashir’s grounds assert that his sentence did not fall sufficiently far short of those imposed on Alamgir and Khan, and would in any event fall to be reduced if their sentences were reduced. He argued additionally that his sentence was unduly longer than that imposed on Rahman. It was emphasised that he was not a leader and that, unlike others, the judge had not described him as dangerous. 30. Khan urged that the judge had failed adequately to reflect a balance of aggravating and mitigating features in the sentence, and that he took account of matters on a basis wider than justified by the indictment or the evidence. He argued that his role, what he had said, and the fact that there was a limited audience, should have led to a lesser sentence. 31. For Choudry it was submitted that the length of sentence imposed was manifestly excessive. It was disproportionate to the gravity of the crime committed, the judge had placed too much emphasis on the appellant’s mindset and had mis-assessed his offending conduct. Moreover, the judge had wrongly stated that the appellant had not denounced or withdrawn support for the Caliphate or Islamic State. In addition, the judge had failed to take account of mitigation and in particular the appellant’s age, good character and a clear prospect of rehabilitation. Discussion and Conclusions 32. Section 3 of the Terrorism Act 2000 gives the Secretary of State power to proscribe an organisation if he or she believes that it is concerned in terrorism. As s.3(5) shows, being concerned in terrorism involves the commission or participation in acts of terrorism, preparing for terrorism, promoting or encouraging terrorism, or is otherwise concerned in terrorism. S.3(5A) also includes cases where the activities of the organisation include the unlawful glorification of acts of terrorism, whether future or past. 33. The offences under s.12 of supporting a proscribed organisation are therefore serious offences. The maximum penalty is 10 years. We note that offences of encouragement of terrorism and dissemination of terrorist publications under ss. 1 and 2 of the Terrorism Act 2006 carry a lower statutory maximum of 7 years. Those offences, however, are not targeted at those who, by their actions, support a proscribed organisation. Clearly, in the hierarchy of offending provided by terrorism legislation, the fact that an organisation is proscribed is to be viewed as a matter impacting upon the seriousness of the offence. As was made plain in R v Kahar and Others [2016] EWCA Crim 568 at [12] and [13], the very act of proscribing represents a determination that the organisation in question is concerned in terrorism. Thereafter, there is to be no ranking or league table of organisations, since Parliament has legislated against all terrorism and does not distinguish between causes or aims. 34. There is no sentencing guideline for terrorist offences at present, nor is there any guideline case decided by the Court of Appeal in relation to s.12 offences. In those circumstances, a court should approach sentencing a s.12 offence by reference to a consideration of seriousness, having regard to culpability and harm, as required by the Criminal Justice Act 2003. In considering culpability, a court should consider the position of the offender and whether they are in a position of authority or influence. The persistence of efforts to gain support will be relevant, as will the type of activity involved. In the context of offending of the sort committed here by addressing a live meeting, it will be necessary to consider the size and nature of the audience targeted. 35. In relation to harm, a court should consider the extent of support gained or likely to be gained for the proscribed organisation. 36. There were certain points accepted by the judge below which are common to all the offenders before the court today. The judge found that their offences did not involve any direct encouragement of any specific act of violence. He found that there was no direct link between the speeches made and any terrorist or violent act by any member of the audience. Those are matters of relevance. Had any direct link of the sort referred to been established it would have placed the offence very high on the scale of seriousness. The fact that such direct consequences had not been shown to have occurred does not mean however that the matter is not serious in the context of this offence. The offence is committed if there is an invitation for support for a proscribed organisation and the purpose of the speaker is to encourage support or furtherance of the organisation’s terrorist activities in the future. By definition, such conduct is seriously inimical to the interests of the state. By the jury’s verdicts there was a clear intention by each offender to advance the cause and aims of ISIS. 37. It is also important to consider the nature of the audience addressed. Here, there were live audiences, specially invited at an important time of the religious year. Members of the wider Luton group had been involved in acts of terrorism. Recently, some members of the group had gone to fight in Syria and one of them had died there and had been commemorated. It seems to us therefore that the audiences addressed in this case were likely to be fertile ground for the receipt of the addresses made to them. Some of the audience will have consisted of young adults or even children who might well be particularly receptive to messages of the type conveyed. It may be that some of the audience was already radicalised to a greater or a lesser extent, but that can be no answer where the aim of the addresses would have included deepening any radical views already held by providing support or in furtherance of the organisation’s activities. Indeed, those already radicalised may be more ready to act in support of ISIS’s aims. 38. We consider that the sentencing judge was entitled to take the view that targeting an audience of this sort had the potential to have greater impact than a message sent in a less targeted way by the internet. It was of relevance that these speeches were not spontaneous but were made at planned events orchestrated to maximise the impact of the holy month and/or a particular anniversary. 39. The experience of Kamal, the undercover officer who infiltrated the group, is instructive. His time with the group involved a process of gaining acceptance and being admitted to meetings or events as part of an escalating process of acceptance. Those who attended the meetings during Ramadan represented a selected audience likely to be receptive to the speeches. In effect, it was a specifically targeted audience. 40. Use of the internet may differ in form, targeting and intensity, all of which would require analysis in an appropriate case, but the judge was entitled to take the view he did in the light of general submissions that live meetings of this sort should be regarded as less serious than support provided through the internet. It is important to recognise in this case that the judge had heard a trial of some length and was in a good position to make an assessment, both of the individuals before him, and of the consequences resulting from what they did. He had seen some of these offenders give evidence and had heard a significant quantity of evidence about all of them, and about the group in Luton of which they formed part. 41. It seems to us that all of that information was relevant to his overall assessment of these offenders as individuals committing these particular offences. He came to the clear conclusion that each of them had clearly supported the proscribed organisation through their speeches and was seeking to encourage others, not merely to a similar point of view to theirs, but also to action in support of the organisation. He was entitled to take into account, in assessing their individual culpability, that each had shown himself to be deeply radicalised, that each was fully aware of the nature of Isis’s activities, including the fatwa encouraging the use of violence in the country in which they lived. 42. We do not accept a submission made on behalf of Khan that depth of radicalisation was a factor relevant only to cases brought under s.5 of the Terrorism Act 2000. The nature of offending of this sort is such that a sentencing court will have in mind the need to punish, deter and incapacitate or disrupt criminal activity of this sort in passing a sentence proportionate to the circumstances of the offence and offender. Rehabilitation is not to be ruled out as a relevant consideration, but it is likely only to have significant weight at the lowest levels of offending against this section, and in particular where an offender is naïve or has been coerced or is impressionable and is also a person who is not of mature age who is of otherwise good character. There has been no submission to us in these cases that an immediate custodial sentence was inappropriate. The thrust of the submissions has been that for different reasons the terms imposed were too long. 43. Before turning to the individual offenders, we indicate that our view is that because no immediate consequence was shown linking these speeches to some terrorist or violent act by a member of the audience, this case does not fall at the highest level. Nonetheless, given the nature of the audience addressed, we consider it likely that the speeches would have had the effect of increasing support for Isis and its aims within the audiences. This would place these cases at a mid-level in gravity before assessing individual culpability and personal circumstances. 44. We turn first to Alamgir. He was the leader of the group. It is clear that he was highly respected and that his word was influential. He was a driving force behind the series of speeches, and personally addressed three meetings in terms which the jury found went beyond freedom of expression and trespassed into the unlawful territory of s.12. The judge found that Alamgir was deeply committed to the cause of Isis. He had a relevant previous conviction, and the matter is further aggravated by the commission of an offence whilst on bail. We have already addressed points made on his behalf as to the nature of the audience and the consequences of his speeches. 45. A further matter relied on was his religious beliefs. We are unpersuaded that they can justify or excuse his activities when they crossed the line and became part of a campaign to raise support for a proscribed organisation. Given his position and the fact that he addressed audiences on three occasions, it was clearly just that he received the heaviest of the sentences imposed. His position is aggravated by his previous criminal history. In the circumstances, we are not persuaded that a sentence of 6 years was arguably too long, and this application is refused. 46. The applicant Khan came next in the hierarchy. He was described by the trial judge as being Alamgir’s deputy. He, too, had a position of authority and influence within the Luton group. We note that the judge made a specific finding in his case that Rahman, the co-accused who had provided the venue for some of the meetings, had looked to him for guidance and advice. A particular submission made on his behalf was that the judge had sentenced on a wider basis that the counts on the indictment. In our judgment, the judge was entitled to look into the individual histories of these offenders in order to access the depth of their radicalisation and their degree of commitment to what they did. Amongst other things, this was relevant to whether any particular speech made represented a spontaneous excess of enthusiasm, or something which was part of a carefully planned enterprise by a deeply committed person. The judge clearly came to the latter conclusion which was a relevant one to reach. 47. The judge took care early in his considered and detailed sentencing remarks to make clear his approach to sentencing. He said: “I am well aware of my duty to sentence these defendants only for the offences in respect of which each of them was convicted by the jury that tried them. These defendants cannot be sentenced for their association with others who are not before the court, or for the conduct of others who are not before the court, nor for conduct of their own which has not been admitted and in respect of which there has been no conviction. Having I hope made that clear, it is also clear that when assessing any defendant’s culpability or wrongdoing, I am perfectly entitled to take into account the totality of the evidence in the case and I shall.” We are unpersuaded that the judge took an approach which is open to criticism and reject the specific argument made in this respect by counsel for Khan. 48. It was clearly appropriate in Khan’s case to pass a lesser sentence than that imposed on Alamgir, since he was not the leader of the group, had no relevant previous conviction, and had spoken on a single occasion. Balancing all matters, we are unpersuaded that the judge fell into error and refuse this application. 49. Bashir was not a leader within the group and he too made a single speech. It was however clear that he had been an important long-term and active member of the group. He also had recorded speeches in sound and vision. This can only have been done with a view to possible future dissemination of them. He has on his record two relevant previous convictions which serve to aggravate his position. Apart from allying himself to more general submissions already considered, Bashir submitted that there was disparity between the sentence imposed upon him compared with those imposed on Rahman, Alamgir and Khan. 50. We are unpersuaded that there is any arguable disparity in either direction. Rahman had not addressed any meeting but had made his garden available as a venue for meetings. True it is that he had a previous conviction and was on bail for another matter at the time of these offences, but the judge found that he was not an educated man in contrast to the other offenders, all of whom were described as knowledgeable or intelligent. The judge also noted that he had looked to others within the group for guidance and advice and had regard to his particular role. The judge was entitled to form his own impression of Rahman which would have justified a significantly lower sentence. There may have been some element of good fortune in the sentence Rahman received, but there is nothing that can properly bring it into the realms of disparity as interpreted by this court. 51. Clearly, Bashir should have received a lesser sentence than Alamgir and Khan, given their roles in the group, but his case was different from that of Khan in that he had two relevant previous convictions which tipped the balance the other way in comparison with Khan. In sentencing him, the judge indicated that he had sought to balance the factors in his case against other co-accused, particularly Choudry and Khan. We are not persuaded that he got it wrong and refuse his application. 52. We turn finally to the case of Choudry. He gave evidence and so the judge was in a particularly good position to make an assessment of him. He was younger than the others and had not previously been convicted. His involvement with the group had been for a significantly shorter period. On the other hand, the judge concluded from the material before him that his views were as hardline as those of Alamgir and Khan, so that he described him as being deeply radicalised. Significantly, the judge also regarded Choudry’s speech as amounting to a well-considered attempt to put himself forward as a leader of the next generation of radical voices prepared to speak in support of violent extremism. 53. A specific point in his case is that the judge referred to the fact that none of the offenders had denounced Isis at trial or since. Issue was taken with that on behalf of Choudry; it was suggested that in evidence he had effectively done so. Even if that were the case it would be a matter of very little weight. Whilst denunciation and genuine change of mindset prior to trial would be a potential mitigating factor, failure to denounce at trial could not be an aggravating factor and was not treated as such by the judge. Denunciation at trial or prior to sentence would be normally be unlikely to carry much weight as mitigation for very obvious reasons. We note that the jury must have rejected Choudry’s evidence, including any attempts to distance himself from ISIS. Allied to that submission was reference to two reports from custody suggesting that Choudry had begun to consider a change of view. The judge clearly took the view that if there was anything in this at all, it was of very limited value, given the depth and extremity of his previous views and the very early stages described in the reports. 54. The better mitigation for Choudry in our view lies in his previous absence of convictions, his relative youth, and his lack of a leadership role, although in the judge’s view he was clearly bidding for one. There was some other personal mitigation advanced but we did not consider that it carried any real weight. The issue for us is whether the judge made sufficient allowance for Choudry’s situation. This matter has caused us more difficulty than the other cases and is reflected in the fact that this is the only case in which the single judge gave leave. We are however very conscious that the trial judge was better placed than we are to assess individual personalities and their culpability. In the end, we have come to the conclusion that although some judges might have passed a slightly lesser sentence, the judge’s decision was not such as to render the sentence manifestly excessive. For these reasons, we dismiss this appeal.

2018_01_18-4142.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/21/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/21

a66d670afae5ba2048a4def6d9a08fb23d6292cc592cab8e6095b0c50f7dad1f

[2007] EWCA Crim 464

EWCA_Crim_464

2007-02-14

crown_court

No: 200602654/D4 Neutral Citation Number: [2007] EWCA Crim 464 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 14th February 2007 B E F O R E: LORD JUSTICE LATHAM (Vice President of the Court of Appeal Criminal Division) MR JUSTICE FORBES MR JUSTICE BURTON - - - - - - - R E G I N A -v- MUMTAZ AHMED - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street Lond

No: 200602654/D4 Neutral Citation Number: [2007] EWCA Crim 464 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 14th February 2007 B E F O R E: LORD JUSTICE LATHAM (Vice President of the Court of Appeal Criminal Division) MR JUSTICE FORBES MR JUSTICE BURTON - - - - - - - R E G I N A -v- MUMTAZ AHMED - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR M HOUSE appeared on behalf of the APPELLANT MR O SELLS QC and MR D WALBANK appeared on behalf of the CROWN - - - - - - - JUDGMENT 1. MR SELLS: The last of these matters is the case of Ahmed. My learned friend Mr House represents this appellant. The respondents have considered the evidence in this case and have come to a like conclusion that I indicated in the previous case, and, again indicated in our note, that we would not contest the appeal against conviction in this case. But, however, we would seek a retrial in his case for the same reasons that I have indicated earlier. 2. THE VICE PRESIDENT: Yes. 3. MR JUSTICE BURTON: Mr Ahmed makes something of his age. Is he older than any of the other defendants? 4. MR SELLS: No, I am not aware of that. 5. MR HOUSE: He is 53. 6. THE VICE PRESIDENT: Actually I thought you said 56. 7. MR HOUSE: That is an error. 8. MR JUSTICE BURTON: So he is of a similar age to people who have faced other retrials. 9. MR SELLS: I don't know if the court has seen a skeleton placed before the court by my learned friend? 10. THE VICE PRESIDENT: It was from that skeleton that I obtained his aged as being 56. 11. MR SELLS: I saw it this morning for the first time. Could I say on that question that the respondents have considered, prior to proceeding with this, all the circumstances in his case. If the court is of the view that there was anything in the documents which my learned friend has placed before the court today which might militate against a retrial in this case, then we would wish for a short time to consider that new material, which, of course, we have not yet had the opportunity of considering. But in our submission, on a first reading of this document, it does not in fact raise any matters of substance which have not been considered by the respondents and, indeed, I should indicate that this sort of material was considered by Hughes LJ in Ramzan and others , paragraph 1.80 in the judgment there. This is a serious case, serious sentences of imprisonment were imposed in this case. A confiscation order was imposed in this case. That's another material consideration in our submission, because, if there were to be no retrial, then, inevitably, that follow-on order would be bound to fall. There is, in our submission, in Mr Ahmed's case a real public interest in having this matter determined properly before a court. The evidence is quite straightforward and quite clear, in our submission, in his case, and, therefore, there are no reasons set out which militate against a retrial that we would see in this document and there is every good reason why the matter should be retried speedily and quickly. 12. THE VICE PRESIDENT: Yes. 13. MR SELLS: That is the application we make. 14. THE VICE PRESIDENT: Thank you. Yes, Mr House. 15. MR HOUSE: My Lord, the court has the document that I have set out -- I have tried to set out the argument as fully and comprehensively as I can. There is really very little to add to what appears in that document. I would be happy to address your Lordships on any particular matter in relation to which you wish for further information. 16. THE VICE PRESIDENT: Is there any special reason that you can identify why your client should be treated any differently from the others in respect of whom retrials have been ordered? 17. MR HOUSE: I don't know the facts of other cases. I can only set out -- 18. THE VICE PRESIDENT: I am not suggesting that you might have, but it is just if there was and you knew about it. 19. MR HOUSE: No, there is not. The main factors are that the matter is now six and a half years' old, which is far older than the circumstances in which retrials are normally ordered. 20. MR JUSTICE BURTON: The last case was the same figure. 21. MR HOUSE: Indeed, I wasn't aware of that. I think the amount involved in this case was substantially smaller than in any of the others case your Lordships are considering. He has served his sentence in full. As a result of the order your Lordships will be making he will be a man of good character. He has had this hanging over his head and his family's head for the last six years. If there is a retrial and he is convicted he will have served his sentence. He will be on record as someone who has a conviction for money laundering. The only consequence is that the Crown will not have to repay the confiscation order. And on a practical point a retrial -- the original trial lasted some five weeks -- on a retrial the costs will be far greater to the Exchequer than the money that will have to be repaid. So in my submission on practical grounds, as well as in terms of the age of the case, the gravity of the case, it is certainly a lot less serious than many cases where millions of pounds are involved. 22. Your Lordship will have seen the references to the two cases that are cited in Archbold, Saunders and Grafton . 23. THE VICE PRESIDENT: Yes, we have. Thank you. 24. MR HOUSE: Both of those cases were far more serious than the present case and in both of those cases the interval was far shorter and certainly in Saunders the court made it clear that three and a half years was a very long time between the offence and a retrial, although Grafton said that things have changed since then and longer intervals were common. 25. But the fundamental point is that the conduct which the Crown alleges against Mr Ahmed finished in October 2000. I don't know when a retrial would be heard, if it were ordered, but the interval would be between six and a half and seven years. In my submission, there should be finality in matters. When one is dealing with a man in his 50s, of good character, a married man with children, who is working and who has tried to -- who has served his sentence and put this behind him, he should not be subjected to yet another trial. My Lord, that is the way I put it. 26. THE VICE PRESIDENT: Very grateful, Mr House. ( Pause ). Anything you wish to add, Mr Sells? 27. MR SELLS: I think only two very short matters. According to the Court of Appeal summary, which I have in this case, the overall amount of money laundered was -- by this appellant and others was approximately £12 million. 28. THE VICE PRESIDENT: That was in fact contained in the grounds of appeal against conviction. 29. MR SELLS: Absolutely right. 30. THE VICE PRESIDENT: So it's understood by the appellant that that was the position. 31. MR SELLS: It is the fact that in this case, as in others, the law, as the Criminal Cases Review Commission itself accepts, the judge directed the jury quite properly as he thought at that time. 32. THE VICE PRESIDENT: I don't think that helps you, Mr Sells. At the end of day we have to take a view, whether, in the light -- whether we think it is appropriate for this man who has served his sentence to be retried in the circumstances of this type of case. Thank you. 33. MR HOUSE: My Lord, in relation to the amount, £12 million was the amount that passed through the exchange. £1.385 million was the amount that the learned judge sentenced the appellant for converting. 34. THE VICE PRESIDENT: Fully understand that. ( Short Adjournment ) 35. THE VICE PRESIDENT: On 12th February 2003, at the Wood Green Crown Court, this appellant was convicted of conspiracy to launder money, knowing or having reasonable grounds to suspect that the money was the proceeds of drug trafficking or other criminal conduct. He was sentenced ultimately to four and a half years' imprisonment and a compensation order was ultimately made in the sum of £28,000 or thereabouts. 36. The matter comes before this court by reference from the Criminal Cases Review Commission, based upon the House of Lords' decision in Saik , on the basis that the direction to the jury, which accorded with the then state of the law, did not accord with what the House of Lords considered in Saik to be the proper approach to the offence of conspiracy in these circumstances. The respondents are prepared to accept the consequence that this conviction may be unsafe. We agree. They are content that the appeal be allowed, but they request a retrial. 37. Mr House, on behalf of the appellant, has said all he can say to persuade us that a retrial is inappropriate. His client is 53 years of age. The matters about which complaint is made took place as long ago as October 2000. He has served his sentence. He has paid the compensation. He submits that, in all those circumstances, there is no need in the public interest for there to be a retrial. 38. We have considered that submission in the light of two particular considerations. One is that the criminal activity, in which it is said that the appellant was engaged, was of an extremely serious order. The scope of the conspiracy involved the alleged laundering of somewhere in the region of £12 million. We accept that the judge at trial found that the appellant's direct involvement was in relation to the sum of £1.38 million, or thereabouts. But simply stating those facts makes it plain that this was a conspiracy, if proved, of a very serious nature indeed, in an area where the public interest cries out for the trial and conviction of those involved. 39. The second matter is that as a result of the decision in the House of Lords a number of other convictions have been quashed and retrials ordered. There is no special reason that we can see which could justify our treating this appellant in any different way from those in the other trials. 40. For those reasons we consider that a retrial is appropriate. We allow the appeal, quash the conviction, order that there be a retrial on the counts which he faced at trial. We direct that a fresh indictment be preferred and the appellant be re-arraigned on that indictment within two months of today. The appellant will be granted unconditional bail for the purposes of awaiting that trial. 41. Mr House, what representation orders do you want? 42. MR HOUSE: My Lord, Mr Ahmed was represented at trial by two junior counsel. I would ask for legal aid for two junior counsel and solicitors. 43. THE VICE PRESIDENT: I am never very happy about two junior counsel. ( Pause ). 44. MR HOUSE: The original trial lasted some five weeks my Lord. 45. THE VICE PRESIDENT: Yes. ( Pause ). For the moment, Mr House, we are concerned as to whether or not it would need two junior counsel. We grant a representation order for single counsel and solicitor, but you are entitled to make an application if it is considered that that is an inappropriate level of representation. 46. MR HOUSE: Thank you, my Lord. May I make one further application, which is for a defence costs order in relation to the appeal? The appellant has been legally aided since the CCRC referral, but he has had to finance that referral himself. 47. THE VICE PRESIDENT: Mr Sells, you would have nothing to say about that? 48. MR SELLS: No. 49. THE VICE PRESIDENT: Then we make a defendant's costs order in relation to that aspect of the costs. 50. MR HOUSE: Thank you. 51. THE VICE PRESIDENT: Thank you all very much indeed.

2007_02_14-1031.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/464/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/464

4135b323712fb13abbdc0d66f34f722926670d40a27276937eeec248cb5ff282

[2013] EWCA Crim 1725

EWCA_Crim_1725

2013-10-11

crown_court

Neutral Citation Number: [2013] EWCA Crim 1725 Case No: 201301720 C5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT ISLEWORTH MR RECORDER PEDDIE QC T20117593 Royal Courts of Justice Strand, London, WC2A 2LL Date: Friday 11 th October 2013 Before : LORD JUSTICE DAVIS MR JUSTICE KEITH and MR JUSTICE LEWIS - - - - - - - - - - - - - - - - - - - - - Between : SO Appellant - and - THE CROWN Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Dow

Neutral Citation Number: [2013] EWCA Crim 1725 Case No: 201301720 C5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT ISLEWORTH MR RECORDER PEDDIE QC T20117593 Royal Courts of Justice Strand, London, WC2A 2LL Date: Friday 11 th October 2013 Before : LORD JUSTICE DAVIS MR JUSTICE KEITH and MR JUSTICE LEWIS - - - - - - - - - - - - - - - - - - - - - Between : SO Appellant - and - THE CROWN Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - MR J.B. AKIN-OLUGBADE (instructed by Prime Solicitors ) for the Appellant. MS EVE MACATONIA (instructed by Crown Prosecution Services ) for the Respondent. Judgment Lord Justice Davis : Introduction 1. This appeal has raised problems on the interconnection between an issue of self-defence and an issue of insanity. The potential difficulties arising have been compounded by the fact that they seem not to have been fully appreciated or confronted in the course of the trial below. To some extent, in fact, they only really emerged in the course of argument on the appeal, when the respective stances adopted at trial by the defence and prosecution had been clarified. 2. In essentials the central question raised is this. Did an insanely held delusion on the part of the appellant that he was being attacked or threatened, causing him violently to respond, entitle him to an acquittal on the basis of reasonable self-defence? This, among other things, involves consideration of the meaning and effect of s.76 of the Criminal Justice and Immigration Act 2008 (“the 2008 Act”). Background 3. The background is as follows. 4. The appellant is a man aged 29. Prior to the events in question he had no previous convictions. He apparently had at one stage held a respectable position in events management. He was convicted on 27 March 2013, after a trial lasting some days before Mr Recorder Peddie QC and a jury at Isleworth Crown Court, of two counts of affray and one count of inflicting grievous bodily harm contrary to s.20 of the Offences Against the Person Act 1861. In due course he was sentenced to a term totalling 18 months’ imprisonment. 5. The facts, in summary, were these. On 30 June 2011 the appellant was found in the staff room of a coffee shop in the Westfield Shopping Centre in Shepherd’s Bush. He was not an employee there. The manager, a Mr Flatau, was called. He confronted the appellant, whom he was to describe as “twitching in a strange manner”. His general behaviour disconcerted Mr Flatau, who locked the changing room door. The police were called. When they arrived, the appellant had sought to hide in a void in the ceiling. The police entered and asked him to come down but he threw some crockery at the police, hitting PC Tarrant and causing very minor injury. He was asked to desist and come down but he did not do so. The incident escalated and crockery continued to be thrown. The appellant also had some piping or tubing with him. The dog unit and territorial support group were summoned. 6. In refusing requests to come down, the appellant at one stage gave as his reason: “because I’m selfish”. He also said that he was reading a book. Ultimately, he was prevailed upon to come down and he did so, nevertheless holding a fire extinguisher which he aimed at one of the officers. By this stage the police had tasers but they decided that it was not necessary to use them. There was evidence that Mr Flatau was also present at some stage during the incident as it unfolded. These matters constituted the first count of affray. 7. The appellant was arrested and taken to the local police station, arriving there shortly after 7 p.m. A medical examination indicated a negative result for the presence of any drugs or alcohol, although a stated history of cannabis use was recorded. No medical or mental health issues were at that stage identified. Thereafter observation by CCTV in the cell indicated the appellant on occasion drinking from the lavatory cistern as well as gesticulating and talking to himself. 8. He was interviewed at 9.30 the following morning (1 July 2011). In the course of it he said that he “did not feel okay” but did not know what was wrong with him. He was returned to his cell, where he continued to behave strangely. At 12.45 p.m. he was seen in his cell by Mr Giacalone, a specialist drugs worker. The appellant told him that he wanted help for his problem with cannabis use. The appellant was throughout tense, with his fists clenched. Mr Giacalone was to say that he thought that the appellant had mental health problems. He said that the appellant’s answers to questions made no sense. Mr Giacalone did not feel comfortable alone in the cell with the appellant and stopped the assessment. He opened the cell door and asked the appellant to sit on a bench in the custody suite. 9. As was captured on CCTV, and as was the subject of other evidence, the appellant then sought to move towards the exit of the custody suite. Sergeant Watts calmly approached him. The appellant then punched him in the face, knocking him to the ground. He also punched a slight female police officer, PC Thompson, who had next intervened, hard in the face, displacing her teeth and fracturing her jaw (this was to constitute the s.20 count). The panic button was pressed. Other officers converged on the appellant. The appellant was very violent, lashing out at whoever came near him. Members of the public in the custody suite understandably moved away. PC Stuart was punched twice and another officer was scratched and gouged. The appellant was throughout shouting or shrieking or wailing. One of the officers described the appellant as appearing to be “absolutely manic in his behaviour”. A description given by another officer that this was a “most violent outburst” entirely accords with the CCTV evidence. In the police log Sergeant Watts noted concerns that the appellant “may have acute behavioural disorder”. This incident in the custody suite constituted the second affray count. After the appellant was overpowered and returned to his cell, observation continued to show him behaving very strangely. 10. The appellant was charged on 2 July 2011 and on that day “sectioned” under the relevant provisions of the Mental Health legislation. He was committed to hospital. The evidence was that initially while there he lay on his bed humming or “acting strangely”. The proceedings in the Crown Court and the medical evidence 11. A detailed defence statement was in due course served. The nature of the defence was expressly put on the basis “that he suffered a defect of reason caused by disease of the mind”: that is, insanity. Very full particulars – in essentials, although not entirely, reflecting what he was to say in evidence at trial – were then given. In essence, the defence statement stated that the appellant woke up on the morning of 30 June 2011 feeling “paranoid”; that he felt that he was being “watched” and “pursued by evil spirits”; that “good spirits” guided him to the coffee shop; and that when in the staff room he believed the police were agents of the evil spirits and so he did not co-operate with them and thought they would harm him if he came down. At the police station, when he woke he felt that he had “acquired supernatural powers”. He thought he could escape. He thought the police who came towards him (“rushed him”) were “evil” and he started defending himself. He recalled throwing punches. Even at hospital he believed he was still in the clutches of evil spirits. There is, it may be noted, no reference in the defence statement to self-defence. However at trial the appellant sought, and was permitted, to introduce this as an issue. 12. Inevitably, given the circumstances, psychiatric evidence had been obtained. 13. The first report was from Dr Adegoke dated 15 June 2012. He had interviewed the appellant on 17 May 2012 although had first interviewed the appellant on 28 July 2011 at his clinic shortly after his discharge from hospital. The appellant was described at that time as “very co-operative”. The appellant was recorded as saying at that time that he could not recall the events leading to his hospital admission but that he had increased his cannabis consumption in the prior two weeks. Subsequent reviews by Dr Adegoke had indicated no perceptual abnormalities. He was assessed as fit to stand trial. He had been under care for over a year and thus far had shown no evidence of a functional psychotic illness. The view was stated that the appellant at the time of the incident had “suffered from mental and behavioural disorders due to the use of cannibanoids”. It was said that there was “clear evidence” that his increased cannabis use precipitated a psychotic state. The appellant was recorded as now well aware of the detrimental effect of cannabis on his mental state. 14. By addendum report dated 27 June 2012 Dr Adegoke emphasised that he had not seen the appellant on the day of the incident and therefore could not give a personal opinion about his mental state at the time of the incident, but had outlined his mental state as described soon after the incident. 15. A psychiatric report was also submitted by Dr Walsh. This was dated 9 January 2012. It was based on an interview of the appellant on 3 January 2012, although she had in fact herself seen the appellant at hospital in July 2011 (when he had been under her care) and had also reviewed his notes. She described him as, in effect, very disturbed on admission on 2 July 2011 and “perplexed…he had no idea what had happened”. Thereafter he had improved rapidly with medication and had been discharged on 22 July 2011. Her conclusion was that the appellant had “presented [at the time of the incident] with a florid psychotic episode which took some months fully to resolve”. 16. There was an addendum report from Dr Walsh dated 30 March 2012, following a further interview and study of the witness statements. She recorded the appellant as in fact describing “an increasingly paranoid mental state”. From the available evidence, her opinion was that at the time of his committing the acts the appellant was “labouring under such a defect of reason from disease of the mind as not to know the nature and quality of the acts he was doing”. 17. Regrettably very late in the day – we gather only at court – Dr Adegoke and Dr Walsh then conferred. This resulted in a further report from Dr Adegoke submitted, after the trial had commenced, on 21 March 2013. This now expressed effective agreement with Dr Walsh. It was in terms stated that in Dr Adegoke’s opinion the appellant’s behaviour at the time of the alleged incidents were “as a result of psychotic disorder”. It was stated that he was labouring under such a defect of reason from a disease of the mind as not to know the nature and quality of the acts or, if he did know what he was doing, that he did not know what he was doing was wrong. It was further stated that the onset of the psychotic disorder was “precipitated” by use of skunk cannabis but “having reviewed the further evidence lately presented, it is now my opinion that [the appellant’s] actions at the time of the allegation [sic] were as a cause of [sic] his psychosis, and not intoxication”. 18. The psychiatrists’ various reports were in due course read as agreed evidence at trial. They were not the subject of any cross-examination. The Crown did not pursue any case that any delusions had been caused by voluntary consumption of drink or drugs. 19. When the appellant came to give evidence at the trial he described how he had woken up on 30 June 2011 feeling that there was an “evil energy” in his room. He had gone to Shepherd’s Bush in order to hide from the spirits. He described a series of paranoid or delusional encounters before ending up in the coffee shop changing room. Here, he said, he panicked as he thought he had been trapped by evil spirits. He thought the spirits had entered the police. They were trying to persuade him to come down. He threw the crockery at them to keep them away. When in the police station he drank from the lavatory cistern, gradually feeling that he was gaining supernatural powers. At one point he thought the evil spirits were in the cell with him. When he left the cell with Mr Giacalone, he thought it was time to escape: people then had come towards him with arms outstretched and with demon faces “so I started to hit them”. He said he did so to try and protect himself and get on with his “mission”. At all stages he had been trying to protect himself from the evil spirits. He largely maintained this in cross-examination. He accepted the CCTV did not show the officers in fact “rushing” him. He agreed he had been aggressive. He accepted that, while he had not in fact seen any demonic faces, at the time that was what in his mind he genuinely thought he had seen; and he genuinely thought they had evil faces. He also, according to Mr Akin-Olugbade, said in re-examination (although this is not recorded in the summing-up or recalled by Ms Macatonia) that he thought the evil spirits would “exterminate” him. When various discrepancies between his evidence and the defence statement were put to him in cross-examination he said that his account would be different each time he said it. The summing-up 20. The recorder rejected a defence submission of no case to answer on the first affray count at the end of the prosecution case and rejected a defence submission of no case to answer on all counts at the end of all the evidence. 21. Prior to speeches, the recorder rightly discussed matters with counsel. A written Route to Verdicts document had been prepared by the recorder and was discussed with counsel. In its final form this read as follows so far as the affray counts were concerned: “ 2. Count 2 and 4 AFFRAY NB: Each count must be considered separately Question 1: Are you sure that the defendant at the Cappucino Café or at Hammersmith Police Station used or threatened unlawful violence towards other persons and his conduct was such as would cause a person of reasonable firmness present at the scene to fear for his safety. If so, proceed to Question 2. If not, the verdict is Not Guilty. Question 2: When the defendant used or threatened unlawful violence towards other persons causing a person of reasonable firmness to fear for their safety, was he suffering from a disease of the mind, in other words a medical condition which impaired his mental functioning. If the answer is no, proceed to Question 4. If the answer is yes, proceed to Question 3. Question 3: Was the defendant’s mental functioning so impaired that he did not know what he was doing or if he did, he did not realise that what he was doing was legally wrong. If you consider it more likely than not that the defendant’s mental functioning was impaired to this degree, your verdict must be Not Guilty by reason of insanity. If you consider it more likely than not that the defendant’s mental functioning was not impaired, proceed to Question 4. Question 4: Have the prosecution made you sure that the defendant did not have a genuine belief that he needed to defend himself. If he may have held an honest belief that he needed to defend himself, proceed to Question 5. If you are sure that he did not hold an honest belief that he needed to defend himself, then the verdict is Guilty. Question 5: Have the prosecution made you sure that the force the defendant used was not reasonable? If it may have been reasonable, then the verdict is Not Guilty. If it was not reasonable, then the verdict is Guilty.” 22. A precisely corresponding direction (adapted in the first two questions only as to the background facts) was given with regard to the s.20 count. 23. The summing-up at the outset dealt with legal matters before proceeding to a full summary of the evidence. At an early stage, the recorder referred to the two unchallenged psychiatric reports. He also gave proper directions as to the elements of the offences charged. He then turned to self-defence. Among other things he said this: “So I turn to the defence of self-defence. The law is that if a man assaults another whilst acting in lawful self-defence against an attack or threatened attack he commits no criminal offence, and so if you find that the defendant was acting in self-defence in one or more of these counts, he is entitled to a verdict of not guilty. A man acts in lawful self-defence if it is necessary for him to defend himself and the amount of force used in self-defence is reasonable. When considering this aspect of the case, self-defence, you must have in mind three important matters. First, the defence only comes into play when you have come to the conclusion that the defendant was in fact defending himself and that would only be the case if he was being attacked or threatened with attack and it was, in your judgement, necessary for him to defend himself against that attach or threatened attack. If the injuries inflicted upon PC Tarrant or PC Thompson or any other person present were not caused when the defendant was defending himself but were caused, for example, when he himself was the aggressor and attacking, then he would not be acting in self-defence.” He went on to direct the jury as to the second limb of self-defence, saying this: “If you do decide that the defendant was in fact entitled to defend himself by using some force, you must bear in mind that the law provides that he is entitled to be found not guilty only if the amount of force used in self-defence was reasonable. If the amount of force used was unreasonable it would not be lawful. The force used in self-defence would be unreasonable if it was out of proportion to the nature of the attack or if it was in excess of what was really required. It is for you to decide whether this defendant was or may have been acting in lawful self-defence and your judgment about that must depend upon your view of the facts of the case. Every case of course is different…” 24. The recorder then went on to deal with insanity, describing it as a “very, very important element in the case”. He said in that context: “you first need to establish so that you are sure whether the defendant did indeed commit one or more offences [sic] in [the] counts….If you are not sure of that, then there is no need to consider the defence of insanity”. The recorder then gave directions as to the legal elements of the defence of insanity (reminding the jury that in this regard the burden was on the defence) and the elements of a special verdict; and then took the jury through the Route to Verdicts document, before reviewing in some detail the evidence, including the psychiatric evidence. 25. On no fewer than five occasions in the summing-up did the recorder remind the jury (and, indeed, emphasise to the jury) that the expert evidence of the two psychiatrists was to the effect that the appellant was insane at the time of the offences and was unchallenged by the prosecution. 26. In the result, as we have said, the jury convicted on all three counts. The grounds 27. A number of grounds of appeal were advanced by Mr Akin-Olugbade (who had also appeared at trial on behalf of the appellant). The single judge, following an oral hearing, granted leave on only one of these grounds: this was to the effect that the recorder’s direction on self-defence may have been inadequate and not sufficiently tailored to the case, where the appellant was, at the least, said to be delusional. The single judge also commented – and with force – that “in the light of the medical evidence this is a worrying case….”. 28. We can deal with the other grounds relatively shortly, although in some respects they are subsumed in the ground for which leave has been given. It is necessary to deal with them because Mr Akin-Olugbade has renewed his application on each of these grounds. 29. The first such ground is that the recorder should have accepted the submission of no case on the first count of affray. This was and is a hopeless submission. The argument was and is to the effect that the facts alleged were not such as would cause a person of reasonable firmness present at the scene to fear for his personal safety. One only has to consider the facts to see this is not sustainable. The person mentioned in s.3(1) of the Public Order Act 1986 is a hypothetical person of reasonable firmness: see s.3(4). The facts here clearly were such as would be capable of causing such a person fear (one of the police officers, as it happens, gave evidence that he was in fact fearful) and a jury could properly so conclude. It is also quite wrong to say – as Mr Akin-Olugbade sought to say – that the only offences properly chargeable in this context were offences against the person (namely against the police officers). This incident, however, plainly had a public order element to it. It is demonstrably different on the facts from the case of Leeson [2010] EWHC 994 (Admin) on which Mr Akin-Olugbade sought to rely. 30. The next ground is that the recorder should have “judicially directed” the jury to find the appellant insane. As so formulated, this is misconceived. It is not open to a judge to give a “judicial direction” that a jury find a defendant insane. By s.2(1) of the Trial of Lunatics Act 1883 it is a matter for the jury. As to the suggestion that the recorder should have withdrawn “the option of a guilty verdict” from the jury, we take that as another way of saying the recorder should have acceded to the submission of no case to answer at the close of the defence case. We think that, as matters stood, he was entitled to reject that submission: although we will have to come back to the effect of the unchallenged psychiatric evidence. 31. The final such ground is that the convictions are unsafe given the undisputed psychiatric evidence of insanity provided by the two psychiatrists from which there could be no rational or proper basis for the jury to depart. Since this to some extent reflects the issues on the ground on which leave has been granted, and in view of the problems highlighted in oral argument before us, we think it right to give leave on this ground. Discussion 32. On first reading the papers, the members of this court were rather in the dark as to just how the prosecution had been putting its case at trial: certainly the overall prosecution stance did not emerge from the summing-up itself. One can, however, see one possible logical basis for the outcome. That is that although the two psychiatric experts were agreed and their evidence was not challenged, still the issue of insanity, as of self-defence, was a matter for the jury, who were not necessarily bound by the psychiatric evidence; and, having heard the appellant give evidence, the jury may simply have rejected his evidence as to the primary facts and may have formed the view that he was not insane or was not suffering insane delusions causative of the affrays and violence alleged. 33. But, as Ms Macatonia (who appeared for the prosecution below) explained to us, that would not reflect the prosecution case at trial. Bearing in mind the wider duties on prosecutors, the Crown, we were told, positively – and understandably – accepted that the appellant was indeed, in the light of the lately agreed expert evidence, to be taken as insane, in the legal sense, at the time of these offences. It was not suggested that the appellant had in any way duped the two psychiatrists. Ms Macatonia frankly stated to us that the Crown had, prior to trial, taken the view that self-defence could be rebutted on the footing that any insane delusions from which the appellant may have been suffering were occasioned by his voluntary use of cannabis. But in the light of the ultimate reports that was not pursued by the Crown. In such circumstances, as Ms Macatonia told us, the Crown accepted during the trial that at the time of the incidents the appellant genuinely did, by reason of his insane delusions, believe that he was being confronted by evil spirits intent on harming him. The prosecution was thus prepared not only to concede before the jury the issue of insanity but also, as Ms Macatonia stated, to concede that the first limb of the conventional self-defence direction was satisfied so far as the appellant was concerned. Accordingly, as we understand it, the only case positively advanced by the prosecution before the jury was that the force used by the appellant was unreasonable. 34. This scenario gives rise to potential problems. The legal background (a) Insanity. 35. The common law defence of insanity conventionally takes its start from the famous M’Naghten case: (1843) 10 Cl & F 200. The well known answers given by the House of Lords to the first three questions there posed do not require further repetition here. But particularly in point for present purposes is the fourth question: “If a person, under an insane delusion as to existing facts, commits an offence in consequence thereof, is he thereby excused?” The answer, as given by Tindal LCJ at p.211, was as follows: “To which question the answer must of course depend on the nature of the delusion: but, making the same assumption as we did before, namely, that he labours under such partial delusion only, and is not in other respects insane, we think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if under the influence of his delusion he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defence, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment.” 36. Mr Akin-Olugbade at one stage submitted that under the first scenario postulated by Tindal LCJ – and it is, he submitted, in effect the scenario here – an accused is entitled to an (entire) acquittal as being “exempt from punishment”. We do not think so. It may in fact be queried in this case whether the appellant was suffering from a “partial delusion”. But in any event we think that “exempt from punishment” for these particular purposes is to be equated with exemption from conviction. It does not necessarily mean that an accused is also exempt from a special verdict of “Not Guilty by reason of insanity” (which, at the time, Tindal LCJ would not even have had in mind). It is true that a consequential disposal such as a hospital order or supervision order would count as a sentence. But a conclusion that the words of Tindal LCJ always mandate, on such a scenario, an entire acquittal would make scant practical sense in the context of such cases of insanity. We revert to this point later. (b) Self-defence 37. Nevertheless this flags up the crucial question arising. 38. The defence of self-defence at common law has, of course, two limbs. In summary, the first is whether the defendant genuinely believed that it was necessary to use force to defend himself. The second is whether the nature and degree of force used was reasonable in the circumstances. It is also elementary that once self-defence has been raised as an issue it is for the prosecution to disprove it to the criminal standard: this therefore is to be contrasted with a defence of insanity, where the burden is on the defendant. 39. Leaving aside cases of self-induced intoxication, it has long been established that the first limb of the defence involves assessment of subjective considerations. The state of mind and belief of the defendant is in issue: objective considerations of reasonableness in this context are only relevant as potentially casting light on what the state of mind of the defendant in truth really was. It thus follows that even if the belief is based upon a mistake or a delusion still, if genuinely held, it can operate to satisfy the first limb of the defence. The second limb, however, unquestionably incorporates (by its requirement of reasonableness) objective considerations. There was considerable debate over the decades as to whether the test for the second limb was solely objective. But latterly it had been clearly decided that is not solely objective: see, for example, Palmer v The Queen [1971] AC 814 . It is, for example, therefore conventional to direct juries, on the issue of the reasonableness of the force used, not only as to the circumstances in which the defendant found himself in responding by the use of force (for example a “heat of the moment” situation) but also, in an appropriate case, as to the circumstances in which the defendant genuinely, albeit mistakenly, believed them to be. 40. Thus in Oatridge (1994) 92 CAR 367 the defendant stabbed the victim genuinely, but mistakenly, believing the victim had been attempting to kill her. It was held that the jury should have been directed to consider whether the degree of force used in response was commensurate with the degree of risk which the defendant genuinely believed to be created by the attack under which she genuinely believed herself to be. Accordingly, the fact that the defendant may have mistaken the victim’s intentions towards her was no bar to the requirement for such a direction: on the contrary, it was a reason for it. Of course whether the response is or may be in fact commensurate with the (mistakenly) perceived risk still remains for assessment by the jury: see, by way of example, the decision in Yaman [2012] EWCA Crim 1075 . 41. This subjective element as to mistake of fact is now confirmed by the provisions of s.76 of the 2008 Act. That reads (in its form as applicable at trial) as follows: “ 76 Reasonable force for purposes of self-defence etc. (1) This section applies where in proceedings for an offence— (a) an issue arises as to whether a person charged with the offence (“D”) is entitled to rely on a defence within subsection (2), and (b) the question arises whether the degree of force used by D against a person (“V”) was reasonable in the circumstances. (2) The defences are— (a) the common law defence of self-defence; and (b) the defences provided by section 3(1) of the Criminal Law Act 1967 (c. 58) or section 3(1) of the Criminal Law Act (Northern Ireland) 1967 (c. 18 (N.I.)) (use of force in prevention of crime or making arrest). (3) The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be, and subsections (4) to (8) also apply in connection with deciding that question. (4) If D claims to have held a particular belief as regards the existence of any circumstances— (a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but (b) if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not— (i) it was mistaken, or (ii) (if it was mistaken) the mistake was a reasonable one to have made. (5) But subsection (4)(b) does not enable D to rely on any mistaken belief attributable to intoxication that was voluntarily induced. (6) The degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances. (7) In deciding the question mentioned in subsection (3) the following considerations are to be taken into account (so far as relevant in the circumstances of the case)— (a) that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and (b) that evidence of a person's having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose. (8) Subsection (7) is not to be read as preventing other matters from being taken into account where they are relevant to deciding the question mentioned in subsection (3). (9) This section is intended to clarify the operation of the existing defences mentioned in subsection (2). (10) In this section— (a) “legitimate purpose” means— (i) the purpose of self-defence under the common law, or (ii) the prevention of crime or effecting or assisting in the lawful arrest of persons mentioned in the provisions referred to in subsection (2)(b); (b) references to self-defence include acting in defence of another person; and (c) references to the degree of force used are to the type and amount of force used. ” 42. This provision was, it is to be apprehended, introduced in the aftermath of cases such as Martin (Anthony Edward) [2002] 1 CAR 27. Quite what the provision has actually achieved has been the subject of some debate, a debate which does not need prolonging here. But three points may in particular here be noted: i) Subsections (3) and (4) require that the assessment of the reasonableness of the force used is to be decided by reference to the circumstances as the defendant believed them to be. ii) No reliance may be placed on any mistaken belief attributable to voluntary intoxication. (Nothing is said about insanity.) iii) The section is designed to “clarify” the operation of the specified defences (which include self-defence). 43. It seems to us best not to seek to draw any comparisons with defences such as, for example, loss of control or duress where questions of honest, but mistaken, belief can also arise. As rightly noted in Smith & Hogan’s Criminal Law 13 th ed. at p.383 there is, on the authorities, no clear coherence of approach in these areas. Indeed the approach indicated in, for example, the highly complex provisions of ss.54-56 of the Coroners and Justice Act 2009 relating to loss of control would seem to indicate no particular parliamentary intention that a corresponding approach is designed to be adopted. Argument and Disposition 44. From this background, and from the provisions of s.76(3) in particular, one can now appreciate the nature of the main argument advanced on behalf of the appellant. In essence – although rather masked in the very long and elaborate written grounds – what it comes to is this. Here not only was the agreed psychiatric evidence to the effect that the appellant acted as he did thinking that he had to defend himself by reason of his insane delusions but also it was positively accepted by the Crown at trial (as Ms Macatonia confirmed to us) that that was so and that he was indeed suffering from an insane delusion that evil spirits were intent on harming him. That was thus the basis on which the trial proceeded. As we have said, Ms Macatonia also confirmed that the Crown did not dispute that in the circumstances the first limb of self-defence had been made out (or, rather, could not be disproved by the prosecution). Mr Akin-Olugbade thus submitted that in the circumstances as the appellant believed them to be the prosecution could not, on the evidence prove that the degree of force used was unreasonable or disproportionate in those circumstances. That his belief as to those circumstances derived from his insane delusion, it was submitted, was immaterial. The point was that that was his genuine, if insanely deluded, belief. 45. If this is right, the potential implications for other cases are most disconcerting. It could mean that the more insanely deluded a person may be in using violence in purported self-defence the more likely that an entire acquittal may result. It could mean that such an individual who for his own benefit and protection may require hospital treatment or supervision gets none. It could mean that the public is exposed to possible further violence from an individual with a propensity for suffering insane delusions, without any intervening preventative remedies being available to the courts in the form of hospital or supervision orders. Thus, whatever the purist force in the argument, there are strong policy objections to the approach advocated on behalf of the appellant. 46. In our view it is not right. 47. The position remains, as we think plain from the provisions of s.76 of the 2008 Act, that the second limb of self-defence does include an objective element by reference to reasonableness, even if there may also be a subjective element: see in particular s.76(6) and see also the decision in R v Keane & McGrath [2011] EWCA Crim 2514 . An insane person cannot set the standards of reasonableness as to the degree of force used by reference to his own insanity. In truth it makes as little sense to talk of the reasonable lunatic as it did, in the context of cases on provocation, to talk of the reasonable glue-sniffer. 48. The main thrust of Mr Akin-Olugbade’s arguments was based on the proposition first that the appellant was indeed suffering insane delusions causative of his behaviour (notwithstanding the jury’s verdict): and second that, that being so, it must be the case – or at all events it must be the case that the prosecution could not prove otherwise – that the force he used was reasonable in those circumstances as he believed them to be. But that simply does not necessarily follow. As s.76(6) makes clear, the position still requires objective assessment by reference to those circumstances. As Ms Macatonia told us, at trial the Crown disputed that, even within the delusions which it was accepted the appellant held, it was in fact reasonable to defend himself by the degree of force he used. He was cross-examined at length both as to what his deluded beliefs actually were at the time and as to his account of self-defence. Thus, for example, the appellant did not say that, in the coffee shop, the police were, in his mind, actually attacking or threatening immediately to attack him so as to warrant his violent response. As to the incident in the custody suite, whilst it may be that the police had (to him) demonic faces and he was trying to protect himself from them, it was very much in issue for example whether they either in fact or in his own belief “rushed” him – and he apparently conceded in any event (and as confirmed by the CCTV) that any “rushing” was after he had himself first struck Sergeant Watts. Overall there was no clear cut and irrefutable evidence that the danger actually perceived by him in his deluded state justified his actual responses. It is not necessary here to review all the evidence on these incidents. It was for the jury to assess the evidence, including the appellant’s own evidence, on this. Sufficient to say that, on the approach actually adopted by the Crown at trial, the evidence, taken as a whole, generated issues on which the jury would have been in any event entitled to form its own view on reasonableness. That of itself would provide a short answer to Mr Akin-Olugbade’s argument on this head. 49. Mr Akin-Olugbade did object that the recorder had not in his Route to Verdicts document, or elsewhere in the summing-up, sufficiently drawn attention to the need to consider the circumstances as the appellant believed them to be. But having regard to the course of the trial and taking the summing-up as a whole and the emphasis given in the Route to Verdicts document as to the genuine belief of the appellant we do not think that this point of itself would render the convictions unsafe. 50. There are, in any event (and as alluded to above) wider considerations here to be borne in mind. Indeed, it is the case that it has for some time been settled by authority – prior to the 2008 Act – that in self-defence cases the psychiatric characteristics of an accused cannot be brought into account on the issue of whether the degree of force used was reasonable in the circumstances. 51. The first such authority is the case of Martin itself. In that case, fresh medical evidence obtained after trial (and which was permitted to be adduced) indicated that the accused suffered from a long-standing paranoid personality disorder and also from depression. This was accepted to constitute a mental abnormality. Such matters further, it was said, caused the accused to perceive a much greater danger to his safety than would an average person: thereby contributing to his shooting the two burglars of his farmhouse. In such circumstances, the conviction for murder was quashed by a constitution of this court and a conviction for manslaughter, on the ground of diminished responsibility, substituted. 52. But it had further been argued on appeal that the new evidence also was relevant to the issue of self-defence (run at trial). The court would have none of it. It accepted that such evidence could – as the law then stood – bear on any issue of loss of control (provocation). But it could not be so relied on for the purposes of self-defence. The court was plainly concerned in general terms that “too generous an approach to what is reasonable” could result in an “exorbitant defence” (para.66). Having so indicated, Lord Woolf LCJ, giving the judgment of the court, said this at paragraph 67: “67. We would accept that the jury are entitled to take into account in relation to self-defence the physical characteristics of the defendant. However, we would not agree that it is appropriate, except in exceptional circumstances which would make the evidence especially probative, in deciding whether excessive force has been used to take into account whether the defendant is suffering from some psychiatric condition.” (It is also to be noted that, in the following paragraph, Lord Woolf emphasised the importance of the accused’s own evidence as to his actual state of belief at the time as compared to any psychiatric attempt to reconstruct such belief.) 53. As a statement of general approach, that is against Mr Akin-Olugbade’s present argument, as he accepted. But he sought to say that here there were “exceptional circumstances”. Quite what Lord Woolf had in mind in his reference to “exceptional circumstances” is unexplained. But at all events if Martin was not considered an exceptional case then we do not see how or why the present case should be. 54. In this context, Ms Macatonia referred us in argument to the decision of another constitution of this court in the case of Canns [2005] EWCA Crim 2264 . 55. In that case the appellant, while in a secure hospital ward, had killed a male nurse. He was undoubtedly mentally disturbed at the time, suffering chronic paranoid schizophrenia. He was convicted of manslaughter by reason of diminished responsibility. His defence at trial had been self-defence, he believing – genuinely but, as was accepted on appeal, by insane delusion – that the nurse was attacking him in order to rape him. It was submitted on an application for permission to appeal on his behalf – rather as it was submitted to us on this appeal – that it would be “unjust and unrealistic” to deprive such a defendant of a defence “based on the reality, to him, of what was going on” (para 18). The court rejected that and refused leave to appeal. It also expressly stated, with regard to the reliance on the case of Martin and on the asserted existence of “exceptional circumstances” that each member of the court “has found it impossible to identify the sort of exceptional circumstances in which it would be appropriate to take a psychiatric condition from which a defendant is suffering into account, when addressing the question of whether excessive force is used”. (It may be noted that the members of the court were Rose LJ, Forbes J and Calvert-Smith J with, collectively, enormous experience of criminal law and procedure.) The court went on in other respects – aside from the issue of exceptional circumstances – to endorse the general statements made by Lord Woolf LCJ in paragraph 67 of Martin . 56. Mr Akin-Olugbade nevertheless then sought to maintain that these authorities had been overtaken by the provisions of s.76 of the 2008 Act. He said, in particular, that the language of s.76(3) and (4), read together with s.76(8), was wide. We agree that the language of those subsections can be read widely. But it is to be borne in mind that s.76(9) states that the section is, among other things, to “clarify” the common law defence. Mr Akin-Olugbade’s interpretation of the statutory provisions would amount in this respect not to a clarification of but to a change from the common law. Moreover, for the policy reasons outlined above such a conclusion as is argued for would be capable in other cases of giving rise to real difficulties and to real public safety concerns. It could also potentially operate so as virtually to negate in some situations the objective element connoted by the word “reasonable” as applicable to the second limb of self-defence. 57. We thus reject the appellant’s submissions on the issue of self-defence. 58. There is one other point we perhaps should mention. It will be recalled that in his Route to Verdicts document the recorder had directed the jury to approach matters sequentially: to consider the issue of insanity first and self-defence second. That approach, prima facie, has great attractions, given that the whole defence case was predicated on the appellant suffering from insane delusions. On the other hand, however, at places in his summing-up the recorder seemed to have reversed the order of that approach and to have invited the jury first to consider self-defence and then insanity: and that approach would reflect the case of the appellant who, after all, was at trial aiming for an entire acquittal in preference to a special verdict (let alone a guilty verdict). 59. The recorder was not, in this respect, referred to (nor was there cited to us) the decision of the House of Lords in Antoine [2001] 1AC 341 . Antoine was a case involving issues of fitness to plead and diminished responsibility: issues not corresponding to those in the present case. But it was also indicated that for the purposes of s.4A(2) of the Criminal Procedure (Insanity) Act 1964 consideration by a jury of whether a defendant did “the act” required the jury, where there was objective evidence whereby an issue of self-defence had been raised, to consider whether the prosecution had disproved that defence: see the speech of Lord Hutton at p.376F-377B. (These remarks of Lord Hutton were obiter but fully considered and his speech was agreed by the other four members of the House). It might be said in the present case that there was in truth no objective evidence of self-defence here; but it is to be recalled that the trial had proceeded on the footing that an issue of self-defence had indeed properly been raised. One can therefore see an argument, by reference to s.2(1) of the Trial of Lunatics Act 1883, that a like approach should be adopted in considering under that statute whether a defendant “did the act charged”. Thus the argument would then be that the jury were, at all events by the Route to Verdicts document, asked to approach matters in the wrong order and, indeed, should not have been directed to approach such matters sequentially. But here, in the result, the jury found against the appellant both on self-defence and on insanity. Accordingly, in the circumstances of this case, and in view of our ultimate disposition, it is not necessary to express any final view on that: and, given that we heard no full argument on the point, we think it better not to express any view. Nor do we think it appropriate to express any further views on other difficulties that potentially can arise in assessing the interrelationship between mens rea, subjective elements in various defences (including self-defence) and the defence of insanity. Some of these are alluded to in the Discussion Paper on Criminal Liability: Insanity and Automatism issued by the Law Commission in July 2013. It remains to be seen whether, in due course, a statutory solution will result. Conclusion 60. We therefore have rejected the appellant’s principal grounds. 61. It will have been gathered that Mr Akin-Olugbade’s arguments before us were predicated on the basis that – notwithstanding the jury’s verdict – at the time the appellant was indeed insane. All the same the judge, whilst repeatedly reminding the jury of the unchallenged psychiatric evidence to this effect, had, as is conventional, reminded the jury in the summing-up that it was ultimately the jury’s decision and that they were not obliged to accept even the unchallenged evidence of the experts. 62. Whilst it can indeed be said that this was a jury matter, we have to say that we nevertheless have the greatest unease at the verdicts reached. Ms Macatonia frankly acknowledged before us that they came as the greatest surprise to her (as they did to Mr Akin-Olugbade). The recorder, within the proper confines of judicial discretion, had himself given the jury repeated “steers” on the unchallenged psychiatric evidence as to insanity. The recorder at one stage, it is true, had suggested in his summing-up that “although the doctors have concentrated on the legal insanity point, you may want to take into account all sorts of other matters, I know not what, but this evidence is directed at the one point of legal insanity.” Mr Akin-Olugbade forcefully objected that there had never been identified “all sorts of other matters” on which reliance could properly be so placed for this particular purpose. He also pointed out that the “lay” evidence of those involved at the time – such as Mr Giacalone and various of the police officers – also was that the appellant seemed to them to be mentally disturbed. Yet further there is the fact that the Crown, in the light of the agreed psychiatric evidence, had itself conducted the trial accepting that the appellant had been suffering from insane delusions at the time of the incident. 63. Given all this, and given the way the trial was conducted, this court cannot see a safe or rational basis for departing from the unchallenged psychiatric evidence or the Crown’s acceptance of it. We think that this court should interfere. This court has – as both counsel agreed – power to substitute special verdicts under s.6 of the Criminal Appeal Act 1968. This court has of course considered for itself the written reports of Dr Adegoke and Dr Walsh in this regard. We are of the opinion that the proper verdicts on each of the three counts would have been one of not guilty by reason of insanity. Such verdicts are to be substituted accordingly. 64. That then leaves the question of the order now to be made. The appellant has been in prison for some time now. The medical evidence indicates that, under appropriate medication which, indeed, has for some time now not been required to be continued, he has made an entire recovery. In such circumstances, a hospital order or supervision order now would serve no purpose. In all these circumstances this court proposes to order an absolute discharge.

2013_10_11-3260.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/1725/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2013/1725

3e5287767e46ea0c9cb40ce5c47c50d009633842e38dd34a981e3c210592bba7

[2020] EWCA Crim 1188

EWCA_Crim_1188

2020-08-25

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 are who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A

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 are who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION Neutral Citation No. [2020] EWCA Crim 1188 Case No: 2018/05036/A2. 2018/02111/A2 Royal Courts of Justice The Strand London WC2A 2LL Tuesday 25 th August 2020 B e f o r e: LORD JUSTICE HADDON-CAVE MR JUSTICE JEREMY BAKER MRS JUSTICE MOULDER DBE ____________________ R E G I N A - v – BRADLEY THOMAS ROBERT GILL JAMES PATRICK FOY ____________________ 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 P B Humphries appeared on behalf of the Appellant Bradley Thomas Robert Gill Mr B Jones appeared on behalf of the Appellant James Patrick Foy Mr M Reid appeared on behalf of the Crown ____________________ J U D G M E N T ___________________ Tuesday 25 th August 2020 LORD JUSTICE HADDON-CAVE: I shall ask Mr Justice Jeremy Baker to give the judgment of the court. MR JUSTICE JEREMY BAKER: 1. These two appeals against sentence arise out of an extensive police investigation into the supply of very large quantities of cocaine in the Fylde coastal area of Lancashire and beyond. It resulted in the prosecution of over 30 individuals who were either convicted or pleaded guilty to various drug-related offences, including conspiracy to supply cocaine. 2. The criminal proceedings took place at Preston Crown Court before His Honour Judge Medland QC, who had the unenviable task of sentencing all those who had either been convicted or had pleaded guilty in respect of their particular roles within the conspiracy. It was a task which he carried out with particular care and clarity. 3. The appellant Bradley Gill had pleaded guilty to the conspiracy to supply cocaine on 31 st May 2018 and was sentenced to 14 years' imprisonment for that offence on 9 th November 2018. The appellant James Foy was convicted of conspiracy to supply cocaine on 4 th April 2019 and was sentenced to six and a half years' imprisonment on 10 th May 2019. 4. Both appellants appeal against sentence with the leave of the single judge. 5. The police investigation was known as "Operation Jennet". It took place over a period in excess of a year, between about May 2016 and July 2017. During the investigation, six kilos of high purity cocaine, with a retail value of almost £700,000.00, together with over £122,000.00 in cash was seized. However, it was contended by the prosecution that the other evidence in the case, including probe evidence from one of the motor vehicles used for transporting some of the drugs, together with surveillance evidence concerning the number of trips carried out by the conspirators, revealed that the total amount of cocaine involved in the conspiracy was at least 28 kilos. This was said to be a conservative estimate, based on only one kilo of cocaine per trip; whereas some of the quantities of cocaine that were seized weighed two kilos. 6. The wholesale quantities of cocaine were sourced from Merseyside or Yorkshire and then brought into the Blackpool area, where they were bulked out and retailed along the Fylde coast. The conspiracy was headed by two individuals, namely, Anthony Gill and his brother Bradley Gill, both of whom were involved in a number of meetings with various of the co-conspirators throughout the period of the conspiracy. 7. John Foy together with his brother James Foy were involved in one delivery of cocaine from Liverpool to Blackpool on 17 th March 2017. The surveillance evidence revealed that they made the journey together in a VW Passat motor vehicle, and whilst James Foy stayed inside the vehicle, John Foy handed over a house brick sized package to one of the other conspirators. When the motor vehicle was subsequently seized in the course of the police investigation, it was found that, like other vehicles used within the conspiracy, it contained a specially adapted void between the rear passenger seats. The void had traces of cocaine within it, and it was accessed by an electromagnetic catch wired into the vehicle. 8. In his sentencing remarks, the judge indicated that, having heard the evidence in the trial, he accepted that this was a sophisticated conspiracy and that the overall quantity of drugs involved was likely to be at least 28 kilos of high purity cocaine. He observed that this was at least six times the indicative quantity within category 1 of the definitive guideline for drugs offences. He indicated that in order to reflect the scale of the conspiracy, he proposed to uplift the appropriate starting points, depending upon the role played by each of the conspirators, by around 25 per cent. 9. In relation to Anthony Gill and Bradley Gill, both of whom he considered to have had leading roles within the conspiracy, the judge assessed that after a trial the appropriate sentence would have been 21 years' imprisonment which, after deducting one-third to reflect the timing of their pleas of guilty, resulted in sentences in each of their cases of 14 years' imprisonment. 10. In relation to John Foy and his brother James Foy, the judge indicated that because of the limited nature of their involvement in the conspiracy, he would not apply the 25 per cent uplift from the appropriate starting point. In so far as the quantity of cocaine which they had delivered in the motor vehicle, the judge stated that: "I have been asked to accept that it was less than a kilogram. In my judgment the precise weights perhaps matter little. It was a house brick size package that you had taken the trouble to deliver up from Merseyside. You were in an especially adapted car with a hide in the back of it. Of that the jury were sure. The prosecution case was that this was a kilogram, and I have seen nothing to lead me to any view that it was significantly less than that. James Foy, it might well be said in your case that your involvement was perhaps less direct than that of your brother. Up to a point I can accept that. However, in your case you have relevant and recent previous convictions for drug supply offences, albeit in relation to Class B." The judge stated that, in the light of these observations, he would treat the two brothers equally and that as they both had been convicted after a trial, the sentence in each case would be six and a half years' imprisonment. 11. In his original grounds of appeal, Mr Humphries, who appears on behalf of Bradley Gill, submitted that the sentence of 14 years' imprisonment was manifestly excessive. He suggested that, bearing in mind the fact that the police did not stop and search each of the motor vehicles involved in the various trips in and out of Blackpool, it could not be said with any certainty that they all involved transporting cocaine, such that the estimate of 28 kilos of cocaine was an overestimate, rather than an underestimate. Moreover, unlike his older brother who had a previous conviction in 2007 for supplying controlled drugs, Bradley Gill had only one previous conviction for possession of a bladed article. It was also pointed out that Bradley Gill had expressed remorse for his involvement in the conspiracy, had a number of testimonials available to him, and had undertaken a number of courses whilst in custody. 12. This morning, before us, Mr Humphries sought to rely upon a point identified by the single judge: that of a possible disparity between the sentence imposed on Bradley Gill and his brother Anthony Gill. Although the prosecution had placed both brothers in a leading role in this conspiracy, they had suggested that Bradley Gill may have played a subordinate role to that of his brother. 13. Mr Jones, who appears on behalf of James Foy, submits that the sentence of six and a half years' imprisonment imposed upon him is manifestly excessive. He submits that the judge was not entitled to conclude that the quantity of cocaine in which he had been involved was one kilo and suggests that it was significantly less. On this basis, the judge should have dealt with James Foy as though he had a lesser role in a category 3 offence, like his co-accused, Daniel Thornber, who was sentenced to four years' imprisonment for his role within the conspiracy. It is submitted that the judge also took too much account of James Foy's previous conviction, for which he was sentenced after his involvement in the conspiracy. 14. His Honour Judge Medland QC had the distinct advantage that he was the trial judge in relation to a significant number of individual conspirators and was therefore in the best position to assess the evidence concerning the quantities of drugs involved in the conspiracy and the role played by the various conspirators. 15. In regard to the overall conspiracy, we have no doubt that, based upon the evidence relied upon by the prosecution, the judge was entitled to determine that on a conservative basis the total quantity of cocaine involved was at least 28 kilos of high purity drug. This was, as he indicated, far in excess of the indicative level under category 1. Moreover, given the extent of his involvement in the conspiracy and that of his brother, there is no doubt that the judge was entitled to determine that both Bradley and Anthony Gill had leading roles within the conspiracy. 16. At this juncture it is opportune to remind ourselves that at step 1 of the definitive guideline it is pointed out that: "Where the operation is on the most serious and commercial scale involving a quantity of drugs significantly higher than category 1, sentences of 20 years and above may be appropriate, depending upon the role of the offender." Therefore, we are quite satisfied that, given the nature and extent of the conspiracy, together with the quantity of cocaine involved and the role played by both brothers, each of them was liable to be sentenced to at least 20 years' imprisonment. 17. In relation to the disparity point, we are satisfied that the judge was entitled not only to make up his own mind on the evidence that he had heard about the respective roles played by the various participants in the conspiracy, but that, based upon the evidence, he was entitled to reach the view that both of these brothers bore equal culpability. It may well have been, as the evidence showed, that Anthony Gill was exclusively involved with the wholesale end of the operation, whereas Bradley Gill was exclusively involved in the retail end of the operation. But in our view, given the nature and extent of this conspiracy, those two roles were of equal importance within the running of this particular organised crime group. True it is that Anthony Gill's previous convictions are more extensive and relevant than those of his brother Bradley Gill; moreover, that Bradley Gill has expressed remorse and has undertaken courses since his remand in custody. However, although it may be that, bearing in mind these factors, Anthony Gill may consider himself fortunate that his sentence is not in excess of that imposed upon him, it does not, in our judgement, afford Bradley Gill any assistance in criticising the sentence imposed upon him. We consider that, bearing in mind the nature and scale of the operation which was being conducted along the Fylde coast, and the guidance issued by the Sentencing Council, his sentence of 14 years' imprisonment was entirely justified. 18. As we have already pointed out, having heard the evidence in the trial, the judge was best placed to determine the quantity of drugs with which James Foy was involved. In his case the evidence was that, similarly to other known quantities, his brother had been seen with a house brick size piece of cocaine. Furthermore, although the prosecution had suggested that both James Foy and Daniel Thornber had played similar roles, namely a lesser role under the definitive guideline, the evidence in relation to the quantity of cocaine involved differed, in that all that could be seen of the package in the possession of Daniel Thornber was that it was contained in a plastic bag and was able to be placed in a jacket pocket. 19. In these circumstances, the judge determined that Daniel Thornber had played a lesser role in a category 3 offence within the definitive guideline and imposed a sentence which was within the relevant category range, namely four years' imprisonment. 20. In the case of James Foy, it is apparent that the sentence imposed upon him, namely six and a half years' imprisonment, was within the category range for an individual who had played a lesser role in a category 2 offence. We consider that, not only was the judge entitled to have sentenced James Foy within this category range, but he was entitled to uplift his sentence within the range to take into account the fact that, although he had not already been sentenced in relation to his conviction for conspiracy to produce cannabis, he had already committed this offence by the time he came to be involved in the conspiracy to supply cocaine. Therefore, we are unpersuaded that the sentence imposed upon James Foy was, as has been submitted to us, manifestly excessive. 21. Accordingly, both appeals against sentence are 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_08_25-4960.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2020/1188/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2020/1188

65e66715086d0036c0b495420470692e8e277bfc15cf5fe0e2af2a2e64d892df

[2014] EWCA Crim 229

EWCA_Crim_229

2014-02-21

crown_court

Case No: 201304157 C5 AND 201304010 C5 Neutral Citation Number: [2014] EWCA Crim 229 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM MILITARY COURT CENTRE, PORTSMOUTH (JUDGE ELSOM, ASSISTANT JUDGE ADVOCATE GENERAL) Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/02/2014 Before : LORD JUSTICE PITCHFORD MR JUSTICE WILKI and MRS JUSTICE PATTERSON DBE - - - - - - - - - - - - - - - - - - - - - Between : PATRICK DAVID LAMMOND PRICE and COLIN JAMES BELL 1 st Appellant 2 nd Appellant

Case No: 201304157 C5 AND 201304010 C5 Neutral Citation Number: [2014] EWCA Crim 229 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM MILITARY COURT CENTRE, PORTSMOUTH (JUDGE ELSOM, ASSISTANT JUDGE ADVOCATE GENERAL) Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/02/2014 Before : LORD JUSTICE PITCHFORD MR JUSTICE WILKI and MRS JUSTICE PATTERSON DBE - - - - - - - - - - - - - - - - - - - - - Between : PATRICK DAVID LAMMOND PRICE and COLIN JAMES BELL 1 st Appellant 2 nd Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Benjamin Squirrell (instructed by Tuckers Solicitors ) for the 1st Appellant Mark Ashley ( instructed by Richard Griffiths & Co. Solicitors) for the 2 nd Appellant Lt. Col. Cowx (instructed by Service Prosecution Authority) for the Respondent Hearing date: 4 February 2014 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Pitchford : Introduction 1. The appellant, Price, appeals against conviction and sentence with the leave of the single judge. The appellant, Bell, applies for leave to appeal against sentence the application having been referred to the full court by the Registrar. We grant leave. 2. Before the Court Martial the appellants, together with Aaron Scott Davenport and Renaldo Dane Nelson faced a charge sheet containing 4 charges. In charge 1 the appellant Bell was charged that on 26 November 2011, contrary to section 15(2) of the Armed Forces Act 2006 , he negligently performed his duty while handling a general purpose machine gun (“GPMG”) thereby causing the unintended discharge of a round which occasioned the death of James Robert Wilkinson. Bell pleaded guilty on 21 January 2013 at the Military Court Centre in Bulford before His Honour Judge Blackett, Judge Advocate General. 3. In charge 2 the appellant Price was charged that on 26 November 2011, when he was safety supervisor on a live firing exercise, contrary to section 15(2) of the 2006 Act , he negligently performed his duty by failing to ensure the safe handling of a GPMG, which was in the possession or control of Colin James Bell, Aaron Scott Davenport and Ronaldo Dane Nelson, in that he did not properly supervise immediate action drills on stoppage, did not determine the nature of that stoppage and consequent safety state of the weapon, did not prevent the weapon being moved from its firing point thereby endangering others, and failed to alert Colin James Bell that he was pointing the unsafe weapon in an unsafe direction as Colin James Bell attempted to clear the stoppage of the weapon. 4. In charges 3 and 4 Aaron Scott Davenport and Ronaldo Dane Nelson were charged respectively with the negligent handling of the GPMG by informing Colin James Bell that the weapon was in a safe condition and by failing to alert Colin James Bell to the fact that the weapon was pointing in an unsafe direction as he attempted to clear a stoppage in the weapon. 5. Price, Davenport and Nelson pleaded not guilty and they were tried at the Military Court Centre, Bulford commencing 3 June 2013. At the conclusion of the prosecution case Judge Advocate Elsom ruled that Davenport and Nelson had no case to answer. They were discharged. The trial proceeded in the case of the appellant Price. On 14 June 2013 the Board made a finding of guilt. 6. On 11 July 2013 at the Military Court Centre, Portsmouth, Price was sentenced to a term of 21 months service detention and dismissal from Her Majesty’s service. Bell was sentenced to 14 months service detention and dismissal from Her Majesty’s service. Appeal against conviction Summary of evidence at trial 7. The circumstances giving rise to the appeal against conviction are as follows: the appellant Price enlisted in HM Forces in October 1987 when he joined the Royal Army Ordnance Corps. He worked as a clerk in various units, at regimental headquarters and in staff jobs. In November 2011 he was a staff sergeant, working as a financial systems administrator with the Scots Dragoon Guards stationed in Fallingbostel in Germany. Staff Sergeant Price gave evidence that he had undertaken weapons training in 1997 but had not before his tour of duty to Kenya in November 2011 undertaken any refresher training. He had no experience of GPMGs. He was informed on 2 November 2011 of his tour of duty to Kenya to take part in a training exercise in preparation for a further tour of duty in Afghanistan. Price travelled to Kenya on 8 November 2011. On arrival he was told that he would have responsibilities as a range safety supervisor. He raised concerns as to his lack of experience with his field commanding officer, Captain Reynard. On 10 November he was informed that permanent range team members would be embedded with various companies of the 2 nd battalion Royal Regiment of Fusiliers. On 12 November Captain Reynard gave a briefing to O Group, including Staff Sergeant Price, during which he learned that he would be attached to the Fire Support Group. On Sunday 13 November senior personnel were taken out to the ranges to assist company NCOs in safety supervision. A training session on the use of GPMGs was supposed to have been delivered by Corporal Bell, by common consent the local expert, but in his absence the training was postponed. On 14-16 November Staff Sergeant Price undertook a variety of duties acting as a member of the safety staff. On Wednesday 16 November, Fire Support Company went into non-live-training. Staff Sergeant Price took advantage of the down period to receive instruction in the basic skills of handling the GPMG. He gave evidence that it amounted to refresher training during which he was shown the immediate action drill, how to change a gas setting, how to cock the weapon and how to lift the top cover to determine the nature of any stoppage. During that training he did not fire the weapon. On 17 November Staff Sergeant Price took and passed the GPMG handling test. He gave evidence that by the time of the exercise in which the fatality occurred he felt confident to supervise the GMPG although he was not as fully aware of all the faults that could develop as he might have been. 8. On the weekend of 19 and 20 November Staff Sergeant Price and other safety supervisors received a briefing from Captain Reynard in which they were taken through the range action and safety plan (“RASP”). The RASP contained the allocation of duties to safety staff and specified the safety measures to be enforced by staff. Included was the instruction at page 5 paragraph 6(s) which dealt with the handling of a “hard extraction problem”: “If the weapon still fails to cock troops are to inform the nearest safety supervisor who will request an armourer. Troops are not to place the weapon system upright and kick the cocking handle.” Staff Sergeant Price confirmed in evidence that this instruction was delivered to him in the course of his training. Finally, on Sunday 20 November, he was introduced to and made familiar with the terrain in which the Ascari Centurion Exercise was to be conducted and supervised. 9. The exercise commenced on Monday 21 November. On Saturday, 26 November Staff Sergeant Price was acting as safety supervisor of a unit in which men were handling both GPMGs and SA80 assault rifles. Fusiliers Davenport and Nelson were operating a GPMG a matter of feet away from the appellant. Some metres to their left Fusiliers Urwin and Wilkinson were deploying a second GPMG. Between the two teams operating GPMGs was a rifleman, OTC Officer Cadet Duncan Carroll. Just to the rear of the soldiers operating weapons was Corporal Bell who was in immediate charge of the unit. On the left flank of the Urwin/Wilkinson GPMG was a manned, armoured all-terrain vehicle on which a heavy machine gun was mounted (“WIMICs”). That vehicle had no role in the subsequent accident. 10. All of the gunners were concentrating upon a target ahead of them. The task allocated was to set up heavy fire upon the target following which a further unit should approach the target on foot from the right. Staff Sergeant Price was supervising the firing exercise which involved his concentration both upon the manner of the firing and the timing of entry of the unit of soldiers from his right. The GPMG operated by Fusiliers Davenport and Nelson suffered a stoppage. They attempted to clear the stoppage by raising the top cover and removing the ammunition belt. This failed to remove the stoppage. For that reason it became what is known in the service as a “hard extraction stoppage” or, in common parlance, “a hard cock”. The effect of a hard cock was to prevent the cocking of the weapon so that the firing pin could not be drawn back fully in order to fire further rounds. One of the consequences of an inability to cock the weapon is that it was impossible to see whether a round of ammunition was in position in the barrel ready to be fired. Subsequent experience and examination revealed that one such round had lodged in the barrel but could not be fired. 11. Davenport and Nelson called to Corporal Bell that the weapon had suffered a hard cock. Bell asked if the weapon was safe. The basis of plea submitted by Bell and accepted by the prosecution asserted that he was told by Davenport and Nelson that the weapon was safe. Bell having taken possession of the weapon laid it horizontally on the ground and rested the stock on or against his thigh. He proceeded to unscrew the barrel which had the effect of releasing the firing mechanism, which required only millimetres, causing the bullet to be discharged. The weapon was pointing almost horizontally in the direction of Fusilier Wilkinson who was struck by the bullet and suffered a fatal injury. 12. Corporal Bell was at fault because he failed to follow the recognised drill. His experience told him that if the weapon was hard cocked there could be no guarantee that there was not a bullet in the barrel which was liable to be discharged. Despite the unsafe condition of the weapon he placed it on the ground in a position behind Fusilier Wilkinson so that if the weapon inadvertently discharged it did so in the soldier’s direction. At the conclusion of the prosecution case the Judge Advocate ruled that since Fusiliers Davenport and Nelson had warned Corporal Bell that the GPMG was hard cocked they implicitly warned him that it must be unsafe notwithstanding Corporal Bell’s assertion that he was told that the weapon was safe. There was no evidence that they were aware the weapon was pointing towards Fusilier Wilkinson and, accordingly, the Judge Advocate ruled that they had no case to answer. 13. The particulars of negligence alleged against Staff Sergeant Price all concerned an allegation of failure properly to supervise the immediate action drills on stoppage of the weapon. It was contended that he failed to determine the nature of the stoppage and, therefore, whether the weapon was safe. He failed to prevent the weapon being moved from a safe position alongside Fusiliers Urwin and Wilkinson to an unsafe position behind them. Finally, it was contended that Staff Sergeant Price failed to alert Corporal Bell to the fact that he was working upon a weapon that was pointing in the direction of another soldier. 14. At the conclusion of the prosecution case, counsel for the appellant, then Mr Andrew Jackson, submitted that he had no case to answer. In a witness statement made during the initial stages of the investigation following Fusilier Wilkinson’s death Staff Sergeant Price said that he was aware that the weapon being handled by Corporal Bell was pointing in the direction of other soldiers. On this ground alone, Judge Advocate Elsom ruled, there was a case to be considered by the Board. In his evidence Staff Sergeant Price insisted that he had not said, or he had not intended to say, that he had been aware that the GPMG was pointing in the direction of other soldiers. He had no knowledge of that fact one way or the other. In his summing up the Judge Advocate instructed the Board to concentrate upon particulars 2, 3 and 4. Following their deliberations the Board found the appellant guilty and specified that he was negligent in that he (2) failed to take steps to ascertain whether the GPMG was safe or unsafe and (3) failed to prevent the gun being moved to an unsafe position. The grounds of appeal 15. Following the appellant’s conviction Mr Jackson drafted grounds of appeal in respect of which the single judge granted leave to appeal against conviction. Subsequently Mr Jackson retired from the Bar and Mr Squirrell, counsel newly instructed, recast the grounds of appeal. This court granted leave to Mr Squirrell to advance them. They are (and we paraphrase): (1) The Judge Advocate in his summing up failed to emphasise that the degree of care exercised by the appellant was to be measured against the standard of a reasonable supervisor with the appellant’s skills, training, knowledge and experience and, therefore, with the appellant’s weaknesses; (2) The Judge Advocate wrongly directed the Board that it was immaterial to their judgment of negligence that the appellant was at the time he was deployed to Kenya insufficiently trained and experienced for the task allocated to him; (3) The Judge Advocate wrongly directed the jury that if they were satisfied upon any one of the particulars of negligence asserted against the appellant, then they could find him guilty without also directing the Board that it was a matter for them whether the particulars they found proved constituted negligence; (4) The Judge Advocate wrongly directed the Board to the effect that evidence from an expert as to what the appellant should or should not have done in the circumstances, if they accepted it, would alone be sufficient to sustain a finding of negligence; (5) The Judge Advocate should have withdrawn from the Board particulars (1) – (3) of negligence because he had ruled against the appellant at the close of the prosecution case only upon particular (4). Ground 1: section 15(2) Armed Forces Act 2006 16. Section 15 of the Armed Forces Act 2006 creates service law offences. Section 15(2) provides: “(2) A person subject to service law commits an offence if he performs any duty negligently.” 17. The issue arose at the conclusion of the case for the prosecution what was the standard of care against which the actions and omissions of the appellant were to be measured. It was submitted by Lieutenant Colonel Cowx for the prosecution that the training and experience of the soldier had no part to play in the identification of the standard of care required since lack of skill and experience was not a defence to the common law tort of negligence or to an offence of manslaughter by gross negligence. In R v Bateman [1927] 19 Cr App R 8 Lord Hewitt CJ said, at page 12: “The law as laid down in these cases may thus summarised: if a person holds himself out as possessing special skill and knowledge and he is consulted, as possessing such skill and knowledge, by or on behalf of a patient, he owes a duty to the patient to use due caution in undertaking the treatment. If he accepts the responsibility and undertakes the treatment and the patient submits to his direction and treatment accordingly, he owes a duty to the patient to use diligence, care, knowledge, skill and caution in administering the treatment … [T]he law requires a fair and reasonable standard of care and competence. This standard must be reached in all matters above mentioned. If the patient’s death has been caused by the defendant’s indolence or carelessness, it will not avail to show that he has sufficient knowledge; nor will it avail to prove that he was diligent in attendance, if the patient has been killed by gross ignorance and unskillfulness. No further observation need be made with regard to cases where the death is alleged to have been caused by indolence or carelessness. As regards cases where incompetence is alleged, it is only necessary to say that the unqualified practitioner cannot claim to the measured by any lower standard than that which is applied to a qualified man .” [Emphasis added] This passage in Lord Hewitt’s judgment was approved by the House of Lords in Adomako [1995] 1 AC 171 at pages 184 and 187 (per Lord Mackay of Clashfern, with whose speech the House agreed). In Bannister [2009] EWCA Crim 1571 , [2010] 1 WLR 870 , (Thomas LJ, Collins and Owen JJ) the Court of Appeal Criminal Division held that a driver’s special skill or lack of special skill did not constitute a circumstance to which the court could have regard when considering whether a driver had fallen well below the standard of care to be expected of a competent and careful driver. 18. It was submitted on behalf of the appellant that a distinction was to be drawn between the standard of care to be achieved by a soldier carrying out his duty and the standard of care to be achieved either by a driver or a person professing professional competence. In the armed services tasks may be required of a soldier which it is beyond his competence to fulfil. It is for this reason, submitted Mr Squirrell, that the Manual of Service Law contains the following guidance at chapter 12: “ Negligence 37. The concept of negligence requires the accused to behave in the circumstances as a reasonable man would be expected to. Therefore, an offence involving negligence can be committed unwittingly, but in circumstances where an accused either acted unreasonably or omitted to act reasonably. Few criminal conduct offences can be committed negligently – see chapter 8 (Criminal Conduct Offences) although a significant number of non-criminal conduct offences can be – see chapter 7 (Non-Criminal Conduct (Disciplinary) Offences). This is because non-criminal conduct offences relate wholly to a service person’s professional responsibilities, where certain basic (or reasonable) standards of performance can be expected. Where a service person fails to meet these standards, his failure to do so may be negligent and the charge against him may therefore be proved. 38. For non-criminal offences, in the case of an offence where negligence suffices to find the charge proved, liability will be avoided if the accused behaves as a reasonable person, with the same skills, professional training and knowledge and experience would have done in the circumstances. A person is negligent if he fails to exercise such care, skill or foresight as a reasonable person would exercise in the same situation. This is an objective test for the officer hearing the charge to apply. 39. For a criminal conduct offence where negligence alone would be sufficient to find the charge proved, careless and inconsiderate driving is a good example. Judged against an objective test, failure by an accused to exercise the degree of care and attention that a reasonable, competent and imprudent driver would exercise in the circumstances is sufficient for the offence to be proved. …” 19. It is clear that the Judge Advocate accepted Mr Jackson’s submissions since in his directions to the Board, repeated in writing, he said this: “There is no definition of negligence in the Armed Forces Act 2006 but that does not mean to say that is an end of the matter. The general law, that is as applied by the relevant parts of the Armed Forces Act applying English law to service law, the general law is that a person is negligent if he fails to exercise such care, skill or foresight as a reasonable man in his situation would exercise and the test is objective, it is set out there, the care, skill or foresight as a reasonable man in the accused situation would exercise … To put it in a service context if you are sure that the accused behaved as no reasonable man with the same skills, professional training, knowledge and experience would have done in the circumstances, then he is guilty, nothing less will do. If you think that he either was or may have been acting as any such reasonable man would have behaved in all the circumstances of this case, then he is not guilty and must be acquitted.” 20. In the present case the appellant was instructed to act as a safety supervisor in a live-firing exercise. He did not hold himself out as qualified to perform such a task and, on the contrary, at first expressed his misgivings to his commanding officer. He was being required to carry out a specialist task for which he would only have been qualified had he been trained to perform it. He did not hold himself out as a man with the qualifications to perform the task. That judgement was made by others and he had no realistic choice but to do as instructed. In the somewhat special circumstances of the service context we agree with the Judge Advocate that the standard of care required to avoid the service offence of negligent performance of a duty is to be measured against the standard to be expected of the reasonable serviceman having similar training, knowledge and experience as the accused. The Judge Advocate, following chapter 12 paragraph 38 of the Manual (paragraph 18 above), went further and instructed the Board to endow the reasonable man with the same skill set as that of the appellant. Mr Squirrell averred that the direction given to the Board was in this respect correct. The reverse side of the same coin, he submitted, required the judge also to direct the Board that the reasonable man should be endowed with any flaws or weaknesses in the skills of the appellant for the purpose of judging whether the appellant fell below the standard of the reasonable man. We do not accept this submission. The use of the word “skills” in the Manual may be misleading. As both the Manual and the Judge Advocate made the clear the test is objective. In its context the word “skills” is intended to add nothing to the endowment of the reasonable man with the defendant’s training, knowledge and experience. If Mr Squirrell’s submission was correct a defendant could never be found negligent since, if the reasonable man was to be endowed with all the defendant’s shortcomings, any mistake which the defendant made could not be regarded as negligence. In our judgment, a subjective consideration of the defendant’s “skills” or “weaknesses” has no place in the objective judgement whether the defendant reached the appropriate standard of care. 21. In our view, by his reference to the appellant’s skills the Judge Advocate was being generous. No such further direction as proposed by Mr Squirrell was required. Ground 2: competence for appointment 22. During the course of his summing up the Judge Advocate directed the Board as follows: “You have heard much evidence about his lack of training before departure to Kenya and indeed how the whole of his military career has been spent away from infantry units but at the end of the day you have to consider him as he was on November 26, 2011, and what he had to say about his state of training at the material time and before you. Do not allow any doubts that you may have about the wisdom of assigning a man of his military experience to the task of arranged safety supervisor. You have to look at him, as I say, as he was on November 26 and the training and briefing he had had immediately prior to that day as well as his previous experience or lack of it.” 23. Mr Squirrell directed our attention to the evidence of Lieutenant Colonel Burton, a member of the Land Accident Investigation Team, who went with Captain Upton to Kenya. He said that, as a result of this fatal incident, changes had been made to the requirements of drill training in the use of GPMGs. In his opinion, the decision to employ Staff Sergeant Price in the role of range safety supervisor was, having regard to his lack of experience, unsafe. Mr Squirrell submitted that the appellant’s lack of experience before his deployment to Kenya was a matter for consideration by the Board in judging the standard of care reasonably to be expected of him. 24. In our judgment, the Judge Advocate was, on the facts of the present case, entitled to direct the Board as he did. The evidence was that the safety supervisors had received training in the task they were due to perform during the period leading to the training exercise on 21 November 2011. In deciding what level of training and experience to attribute to the reasonable man against whom the appellant was to the judged, it followed that the Board should be concentrating upon the appellant’s state of knowledge and experience as at the date when he embarked on the role assigned to him. The Judge Advocate did not, contrary to Mr Squirrell’s submission, exclude from the Board’s consideration the appellant’s experience generally and, as we have observed, he summarised for the Board the evidence given by Lieutenant Colonel Burton. What he did, correctly, in our view, was to invite the Board to concentrate upon the accumulated degree of training and experience acquired by the appellant at the relevant, and not an earlier, time. 25. In this regard, the Judge Advocate took pains at pages 170B-172C of the transcript of the proceedings to remind the Board of the appellant’s own evidence as to the nature and extent of his training and experience acquired between 10 November and 21 November 2011. The appellant himself observed that he felt competent to carry out the role of safety supervisor having received weapons training and a thorough briefing. Ground 3: assumption of negligence 26. It is submitted on behalf of the appellant that the Judge Advocate gave to the Board the impression that if they were sure the appellant had not determined the nature of the stoppage and consequent safety of the weapon, or had not prevented the weapon being removed from its firing point or had failed to alert Corporal Bell that he was pointing the weapon in an unsafe direction, the prosecution, without more, would have established negligence. 27. We do not accept this submission. In his summing up at page 165D the Judge Advocate recorded the common ground between the prosecution and defence that the appellant’s duty as a safety supervisor included “ensuring the safe handling of a GPMG which was in the possession or control of Corporal Bell, Fusilier Davenport and Fusilier Nelson”. Having identified the nature of the duty of care owed by the appellant, the Judge Advocate proceeded to identify the particulars in which the prosecution alleged the appellant had been negligent in failing to ensure the safe handling of the weapon. He did not, however, direct the Board that were the facts established then negligence was by that means proved. He proceeded to explain what would have been a negligent act or omission by reference to the standard of care to be expected of a serviceman in the terms which we have extracted above. It was, we conclude, plain to the Board that not only were they required to reach decisions of fact but also to judge whether they were sure the prosecution had proved that the appellant had failed to meet the required standard of care. It seems to us, furthermore, that this must have been clear to the Board in consequence of the Judge Advocate’s summary of the evidence both from the appellant and others as to the reasons why he did not attempt to establish a cause of the stoppage and to prevent the movement of the gun. Ground 4: expert evidence 28. It is submitted on behalf of the appellant that the Judge Advocate may have given to the Board the impression that merely because an expert witness criticised the acts or omissions of the appellant, in the sense that they generated danger to Fusilier Wilkinson, they could convict upon acceptance of such criticism without reference to the question whether, having regard to the training and experience of the appellant, his acts or omissions fell below a reasonable standard of care. 29. It is conceded that the Judge Advocate provided the Board with the conventional direction that merely because evidence, including opinion evidence, was given by an expert the Board were not bound to accept it and were required to make up their own minds. It is further conceded that the Judge Advocate carefully structured his summary of the evidence so as to bring the Board’s attention to bear on the separate issues to which the evidence was directed. For example, the Judge Advocate first reminded the Board of the evidence relevant to the question: “What should Staff Price have done when he knew there was a stoppage with Davenport and Nelson’s GPMG?” Secondly, he posed the question: “Should Staff Price have prevented that weapon being moved from its firing point?” and proceeded to remind the Board of the evidence relevant to each question separately. In the course of his summary of the evidence the Judge Advocate was careful to remind the Board of the evidence that was favourable to the appellant’s case, namely, that he had his attention on two separate safety issues, the first being the safe operation of the GPMG and the second being the continued firing of other fusiliers while a separate unit was approaching the target from the right. Further, the Judge Advocate reminded the Board of the evidence that was favourable to his case that he had acted reasonably in the circumstances, including the degree of training he had received. It does not seem to us that there was any danger that the Board would consider that a mere statement by an expert as to what was safe and what was not would constitute sufficient grounds for a finding of negligence. The Judge Advocate’s directions were, in our view, calculated to require of the Board a judgment not just whether in hindsight what the appellant did was safe or unsafe but whether in all the circumstances, including the limits of his training and experience, he did what a reasonable soldier in his position would have done. Ground 5: particulars (1) – (3) 30. The Judge Advocate did not at the close of the prosecution case rule upon the question whether there was a case to answer in respect of particulars (1) - (3). He found that it was sufficient that there was plain evidence in support of particular (4) (failure to alert Corporal Bell that the GPMG was pointing in an unsafe direction) which was enough to permit the prosecution case of negligence to be left to the Board. Mr Squirrell submits that the Judge Advocate should have ruled that there was insufficient evidence in support of particulars (1) - (3) to permit those particulars to be left to the Board. We disagree. The central facts of the tragedy that befell Fusilier Wilkinson had been established in the course of the prosecution case. The prosecution had proved that the appellant was appointed as a safety supervisor and had received training in his responsibilities. The Board had heard expert evidence to the effect that the GPMG immediate action drills on stoppage had not been followed. The appellant was a matter of feet away from Davenport and Nelson as they struggled to remove the stoppage. In those circumstances, it seems to us, there was plainly a case for the appellant to answer as to why he did not satisfy himself as to the cause of the stoppage and therefore the safety of the movement of the weapon to Corporal Bell. 31. In the course of the defence case, the appellant gave evidence that was fully summarised to the Board as to his training and experience, his process of thought at the time of the incident, and his belief that he had done what could reasonably be expected of him in the circumstances. Notwithstanding, the Board concluded that the appellant had fallen below the standard reasonably to be expected of him by failing to intervene to prevent the risk of serious injury or death which was realised when the weapon discharged unexpectedly. The appellant had failed, contrary to paragraph 6(s) of the RASP to call an immediate stop in order that the weapon could be examined by an armourer. There were other commonsense precautions that could have been taken, such as ensuring that the weapon never pointed in the direction of another person and was moved forward rather than to the rear of the soldiers. In our judgment, there is no sound basis upon which to doubt the safety of the findings made by the Board. Accordingly, the appeal against conviction is dismissed. Appeals against sentence 32. Fusilier James Wilkinson was married to his wife Sarah in July 2011 before being posted to Germany. On 4 November 2011 Mrs Wilkinson moved to Germany to live with her husband together with their 2½ year old son. She was at that time 6 months pregnant. James Wilkinson was deployed to Kenya on 7 November. Expressions of the loss and hurt felt by Mrs Wilkinson and the deceased’s mother, Janet, were contained in statements which were read to the Court Martial at the sentence hearing. We have given them their full effect. 33. In mitigation Mr Ashley explained to the Board that under the pressure of the live firing exercise Corporal Bell acted in the belief that he was doing the right thing by replicating battlefield conditions. In the heat of the moment he had failed to apply the expertise and experience which should have told him that the gun was unsafe and should not be handled. He had an unblemished military record and had made a mistake upon which he ruminated daily. It had affected his relationship with members of his own family although he had received support from the Army to deal with the consequences of his errors. The Board was informed that notwithstanding the nature of those errors his battalion was clear that they wished him to remain in HM service. The Judge Advocate expressed no adverse comment upon the realism of that request. 34. Mr Jackson reminded the Board of the evidence that it was very unusual that a stoppage had failed to disclose that a round was chambered. So unusual was it that Fusiliers Davenport and Nelson had assured Corporal Bell that the weapon was clear. He relied upon the fact that Staff Sergeant Price had never received specific practical training upon the drill to be followed in the circumstances that arose and that it was understandable, in the view of Captain Reynard, Staff Sergeant Price had deferred to the expertise of Corporal Bell. He submitted that having, regard to the Board’s finding upon particular of negligence (4), Staff Sergeant Price bore no responsibility for Corporal Bell’s action of attempting to remove the barrel while the gun was in an unsafe position. Captain Stewart Innes was called on behalf of the appellant to confirm that the appellant was thought of very highly in the service and remained, in the Army’s view, suitable for promotion to WO2. Captain Innes gave evidence that he had no doubt Staff Sergeant Price was suitable for appointment as a Visiting Warrant Officer at brigade or divisional level. The Judge Advocate asked no questions save to confirm that were the appellant to leave the Army immediately his pension would be equated to that of his current rank. Significantly, Captain Innes had expressed the following opinion: “I do believe that … he made a mistake on the day but there were mistakes prior to him and he should never have been in that position and I know, as a current member of chain of command, he will never be in that position again. He is not as trained or experienced and we put our soldiers in those situations that we expect them to step up to but we need to provide them with that foundation to step up and achieve it and in my belief the chain of command at that time failed Staff Sergeant Price and as a result failed Fusilier Wilkinson.” 35. The Board retired for a period of over two hours to consider sentence. In expressing their reasons for sentence the Judge Advocate said: “The duty performed negligently with which this court is concerned is the duty to ensure the safety of those involved in a live firing exercise. That is an exercise carrying with it inherent dangers. It is an exercise necessary for the proper training of soldiers who are to be deployed on operations against an enemy. Furthermore, it is an exercise designed to replicate as far as possible conditions on the battlefield but, and it is a very important one, but it is an exercise where safety considerations are and must be paramount and, if necessary, safe lessons must be learned where things go wrong as they did here. The court identified a failure to follow the recognised drill and handling the gun in unsafe circumstances as Corporate Bell’s culpability. He was the Section Commander and an experienced NCO. He was very familiar with the GPMG and it was his actions which brought about the discharge of the fatal round. The court concluded that Staff Sergeant Price knew “quite a lot about this gun” by the stage at which he was exercising his supervisory duties. He knew that if there was a hard cock the presence of a round in the barrel could not be ascertained. The court accepted that he did not necessarily know that the weapon was accordingly automatically unsafe. However it was Staff Sergeant Price’s duty to stop the exercise when he knew the weapon was hard cocked.” 36. The Court acknowledged that both men had served for long periods with no blemishes on their character. It recognised that they would live with the consequences of their actions. In the court’s view, by reason of Staff Sergeant Price’s supervisory position, they were equally culpable. The court concluded that a high degree of negligence had been demonstrated. The starting point should in each case be the same, namely 21 months detention. The Judge Advocate made no reference in his sentencing remarks to consideration of issues relevant to the question whether the appellants should be dismissed. Only when the President of the Board was invited to announce sentence were the appellants informed that they would be dismissed. Dismissal 37. The Commanding Officer of the Second Battalion Royal Regiment of Fusiliers, Lieutenant Colonel Butterwick, wrote in his statement of character: “I know Corporal Bell to be a man of genuine integrity, moral courage and professionalism. As a soldier he is highly experienced having served operationally in a number of theatres including most recently in Afghanistan. There he was physically courageous, loyal and highly effective and was called upon to operate in often dangerous conditions. In barracks he has set just the sort of example I wish of my JNCOs … Following the tragic death of Fusilier Wilkinson, Corporal Bell has only sought to do the right thing. Devastated by the loss of a colleague he has sought to engage with the subsequent enquiry seeking only that the truth be told. He has also shown true professionalism by continuing with his job as a team commander. I have genuine respect for the way Corporal Bell has conducted himself over this very difficult period and I see him progressing into the Sergeant’s mess possibly as a drum major in due course.” Captain A J Purvis wrote: “Corporal Bell is currently employed as a FSG team commander, a role which sees him command two vehicles and their crews in peace and in war. He is rated as the top team commander in his platoon and has frequently been employed as the platoon second in command on a temporary basis to cover absences; however, he will imminently be employed in this role on a permanent basis. He is an outstanding soldier and is widely considered to be the best machine gunner in 2RRF. Operationally experienced and extremely well thought of by every level of his chain of command, Corporal Bell is an outstanding JNCO.” 38. We were informed that it remained the opinion of the appellants’ senior officers that they were wanted by the Army for their continuing service. Our attention has been drawn to the decision of this court in Blaymire [2005] EWCA Crim 3019 . The appellant, a lance corporal in the Territorial Army, was serving as a driver in Iraq. He took his own and a colleague’s rifle at his request to the armoury at troop headquarters where they were to be examined. While there one of the weapons discharged a round of live ammunition killing a sergeant. The appellant was found guilty of negligence by failing to conduct normal safe precautions when taking possession of an SA80 rifle. He should have put the safety catch on, checked inside the chamber, released the working parts, and failed to check that the weapon was not loaded. The Court Martial sentenced him to be dismissed from HM service, reduced him to the ranks and fined him the sum of £2,750. The Judge Advocate General advised that the sentence was manifestly excessive. The soldier should be permitted to remain in the Service. The Reviewing Authority declined to accept that advice and confirmed the original sentence. 39. At paragraph 10 of her judgment on behalf of the court Swift J explained the circumstances of the fatality: “At the time when Sherratt asked the appellant to take his rifle to the armoury there was no magazine on the weapon. It is accepted by the appellant that he did not check the rifle to ensure there was no round in the chamber. When interviewed after the incident, he said that he had trusted Sherratt and assumed that the rifle was empty. He took the two weapons to troop headquarters, a short coach ride away. When he got into the office he put his own weapon against the wall and carried Sherratt’s rifle by the sling with the muzzle pointing downwards. He was standing close to Sergeant Nightingale, talking to him when the latter leaned over and appeared to rattle or flick up the cocking handle of the rifle. The appellant stepped back bringing the muzzle of the rifle up. At that point the appellant’s finger was resting on the trigger and must have pulled it, causing the round to be discharged. It is evident from the description of those who were present that the whole episode happened in an instant. No-one was clear precisely how the weapon had come to be discharged.” 40. In sentencing the appellant the Assistant Judge Advocate General observed that the appellant’s training had been deficient. His commanding officer bore a considerable moral responsibility for what had happened. Nonetheless a rifle was an inherently dangerous weapon and the appellant should have checked that the weapon was clear. At paragraph 14 the court considered the practice of the Court Martial in cases involving the negligent and unintended discharge of a round resulting in death or injury. The court concluded: “14. … None of the defendants concerned [was] dismissed from the service or sentenced to forfeiture of seniority or reduced to the ranks. In the majority of such cases the penalty imposed was a fine … It is important to note, however, that some of those cases were of a different nature and did not involve death as a result of the unintended discharge. In the circumstances the court accepted the submissions made on behalf of the appellant that dismissal from the service was an excessive sentence. Otherwise the orders of the Court Martial were retained.” 41. We have been referred to the Guidance on Sentencing in the Court Martial (Version 4 – October 2013) in which no specific guidance is given upon the principles underlying the imposition of the sanction of dismissal. At paragraph 3.2.2 reference is made to the Services’ policy in relation to any particular type of offending that is “incompatible” with further service (the example given is drug abuse), but where the court decides not to dismiss reasons should be given. In paragraph 3.2.1 it is pointed out that dismissal has far reaching consequences. The primary consideration is whether the offence is serious enough that the offender should be dismissed ( section 265(1) Armed Forces Act 2006 ). The guidance draws attention to the observations of Lord Judge CJ in Dowding [2010] EWCA Crim 739 at paragraph 13: “The question whether the criminal activities of a member of the military requires a dismissal from the service is pre-eminently, although no exclusively, decision for the Court Martial. For this purpose, for the assessment of the impact of the applicant’s convictions on his ability to continue to serve in the relevant force, the Court Martial must be regarded as an expert tribunal, entitled to the same level of respect to which any tribunal is entitled when an appeal court is considering its decision.” 42. We have given anxious consideration to the sentences imposed in the present case. Neither man was charged with manslaughter. Each of them was taking part in a live firing exercise in which a number of different considerations were bound to occupy them. In the case of Corporal Bell, the local expert in the GPMG, he accepted that he was concentrating upon the effectiveness of the exercise. He allowed himself to be distracted by his attempt to solve the immediate problem of a stoppage. He neglected to recall that the GPMG once hard cocked was unsafe. He accepted what he believed to be an assurance that the gun was clear when his experience should have told him that it may not be and was, for that reason, unsafe. Staff Sergeant Price, it was accepted, may never have understood the full significance of the words “hard-cocked”; that is the gun was for that reason alone unsafe and unsuitable to be moved. His failure was in neglecting to act according to the standing instruction that a hard-cocked weapon should not be moved while the armourer was called. It seems to this court that the negligence of which these appellants were guilty was not the reckless performance of a routine duty but a failure to respond adequately to the unusual demands of a live firing exercise which generated its own peculiar stresses and pressures. The consequence of their negligence was the tragic death of a fellow soldier and we concur with the view of the Court Martial that these men will not forget their responsibility for it. 43. We are acutely conscious of Lord Judge’s observations upon the expertise of the Court Martial. However, in the absence of any explanation from the Court Martial either in argument or in sentencing remarks as to why it was believed the nature of the appellant’s negligence was incompatible with further service, we are required to exercise our own judgment. As we have observed, this court has said on a previous occasion that carelessness with weapons does not automatically render the offence incompatible with further service. We have no doubt that future risk is one of the considerations which a Court Martial will have well in mind. A senior officer made it clear in the case of Staff Sergeant Price that he would never again be put in a position in which such a tragedy might re-occur. He had served without blemish in the Army for many years in an administrative capacity and had been recommended for promotion. Corporal Bell had impressed his senior officers by his acknowledgement of guilt, and by his mature and measured response to his predicament while in service awaiting sentence. He had remained a well respected member of the 2 nd Battalion and the Army was anxious to retain him. This was not the view of a junior officer only but of the Commanding Officer of his Battalion. It did not follow, in our opinion, that these men had to be dismissed from HM service. Future risk arising from their continued service we assess as low. The nature of the service offence committed was not in our judgment, of itself, so serious that dismissal should inevitably follow. However, both men were in positions of responsibility and it is their failure while in those positions to reach the standard of care required of them that, in our view, affects their suitability for future employment. We conclude that the requirements of service life would have been sufficiently met by a reduction to the ranks of both men. Service detention 44. We turn to the sentence of detention. The Court Martial concluded that such was the degree of negligence that the seriousness of the offence lay near to the top of the permissible range for sentencing (2 years). While we accept that the consequence of the appellants’ negligence was both extremely serious and tragic and, for that reason, merited a sentence of immediate detention, we do not concur in the view that these offences could be regarded as at or near the most serious of their kind. In our judgment, theirs was not a reckless disregard for safety but a failure under pressure of circumstances to recognise a danger which, in other circumstances, would have been clear to them. A sufficient sentence for the appellant Price would have been 15 months detention. We do not agree, with respect to the Board, that there was an equality of responsibility between Corporal Bell and Staff Sergeant Price. It was undoubtedly true that Price was a safety supervisor whose order would have outranked all others. On the other hand, the Board heard evidence that in the task allocated to him he was inexperienced and his commanding officer had in evidence expressed sympathy for Price’s instantaneous decision, in the heat of the moment, to defer to Bell as the “expert”. In our judgment an appropriate starting point in Corporal Bell’s case would have been 18 months detention against which he was entitled to full credit for his plea. 45. Accordingly, we allow both appeals against sentence. In the case of the appellant Price we shall quash the sentence of 21 months detention and substitute for it a term of 15 months detention. In the case of the appellant Bell we shall quash the sentence of 14 months detention and substitute a period of 12 months detention. In both cases we quash the sentence of dismissal from HM service and substitute an order that the appellant be reduced to the rank of private soldier. To that extent the appeal is allowed.

2014_02_21-3359.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2014/229/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2014/229

5a9fded90ef1d0a0289cac45eca77afbbd33256d5037bde0dd4a1571c02b536d

[2010] EWCA Crim 2955

EWCA_Crim_2955

2010-12-01

crown_court

Neutral Citation Number: [2010] EWCA Crim 2955 Case No: 2010/4344/A7 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 1 December 2010 B e f o r e : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE CALVERT SMITH MR JUSTICE GRIFFITH WILLIAMS - - - - - - - - - - - - - - - R E G I N A v PIERRE THOMPSON - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communication

Neutral Citation Number: [2010] EWCA Crim 2955 Case No: 2010/4344/A7 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 1 December 2010 B e f o r e : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE CALVERT SMITH MR JUSTICE GRIFFITH WILLIAMS - - - - - - - - - - - - - - - R E G I N A v PIERRE THOMPSON - - - - - - - - - - - - - - - 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 N Wrack appeared on behalf of the Appellant Mr J Wing appeared on behalf of the Crown - - - - - - - - - - - - - - - J U D G M E N T 1. THE LORD CHIEF JUSTICE: Pierre Ricardo Thompson is now 27 years old. He has previous convictions including convictions for robbery, threatening behaviour, battery and common assault. He appeared before the Crown Court at Isleworth for trial in June 2010. He was charged with one count of common assault and a second count of assault occasioning actual bodily harm to which a third alternative count of common assault was added. He was acquitted of both counts by a jury in a trial presided over by Miss Recorder Pinto QC. However, a few days later the learned Recorder imposed a restraining order on the appellant, as he is, pursuant to section 5A of the Protection of Harassment Act 1997, for a period of 12 months. 2. The facts can be taken briefly. The complainant and the appellant had been in a relationship which came to an end in July 2009. He began a relationship with another woman and then, quite unconnected with the present case, he was arrested in late August 2009. He was then granted bail under curfew conditions and went to reside with the complainant at her address. There was a dispute about who had invited who to come. There was also a dispute about the number of times they had sexual intercourse after he returned to live in the complainant's home - she said it was twice, he said it was more frequently. Be all that as it may, it was alleged that he assaulted the complainant on two separate occasions shortly after going to live in the house on 6th and 9th September. 3. The first allegation, 6th September, was that the appellant had picked up the complainant by the neck, bending her over the bannister. His case was that they had argued during that day but he had not had any physical contact with her at all and the allegation of common assault was denied. 4. The second incident allegedly occurred on 9th September, some three days later, when the appellant assaulted the complainant. His account of this incident was that there had been physical contact between the two of them, during which he had acted in self-defence. He said in his evidence that he had picked or held the complainant by the throat, that he had taken her from room to room, and that he had caused a black eye which had happened accidentally in the course of the incident. The court was shown photographs of the complainant which show injuries which do not amount to grievous bodily harm or anything like that, but show a number of bruises over different parts of her body - all apparently resulting from his necessary defence of himself. In particular, he denied that he had struck her with a bat or sought to strangle her with a cable as she alleged. 5. After his arrest for these offences he was remanded in custody and then released on conditional bail. There were no further incidents between them before trial. As we have recorded, the jury acquitted the appellant on counts 1 and 2 and in due course the prosecution offered no evidence on count 3. 6. The Crown however indicated that consideration should be given to an application which in due course was made, for a restraining order following acquittal in accordance with the statutory provisions in their current form, section 5 A of the Protection from Harassment Act 1997 , as amended by the relevant section of the Domestic Violence (Crime and Victims) Act 2004. It is unnecessary for this judgment to recite the statutory provisions. Griffith Williams J has just given judgment in Major in which they are set out. 7. The Recorder approached this part of her responsibility with great care. She explained in her judgment the background and the fact that there had been acquittals. She examined the statutory provisions and she directed herself in accordance with statute to consider these issues - first, whether it was necessary to protect the complainant, and second, if so, from harassment by the appellant. She reminded herself that harassment included but was not limited to conduct which alarmed another person or caused that other person distress. She recorded the submissions advanced to her by Mr Wrack that such an order was unnecessary and disproportionate, his reliance on the jury's verdicts and his submission that there was no foundation on which it was open to her to find that it was necessary for harassment to be prevented for the future. She also referred to his submissions that attention should be paid to the fact that the defendant had been remanded in custody and then bailed, subject to tagging, and the fact that there was no evidence that once he was released from custody on conditional bail that he had made any attempt to contact the complainant, in breach of conditions that he should not do so and in breach of an exclusion zone or a number of exclusion zones attached to his bail conditions. So she carefully set out and considered the submissions which in effect Mr Wrack repeats before us in support of this appeal. 8. She examined the evidence. She narrated, not a detailed account of all the evidence that was before the jury, but sufficient to demonstrate that she had considered the evidence before deciding that the order should be made. She recorded that quite apart from the evidence between the parties which was in dispute, and that there was a great deal of such evidence, the appellant had accepted in evidence that in the course of the incident on 9th September the complainant had been injured by him, albeit in self-defence, in the course of direct physical contact. She recorded the way in which he had manhandled the complainant, handling her around her throat and manhandling her from one room to another in her own home. She also noted the injuries that the complainant had sustained in the course of the incident. We have looked at the photographs and they are, as we have indicated, clear evidence that she had suffered widespread injuries. 9. The Recorder directed herself that she could not make an order on the basis that the appellant had shown some improper attitude towards the complainant, that she should not take account of whether or not he was moral or immoral, or the cost to the public, or the saving of court time, or that she should save the complainant from bringing civil proceedings, or indeed that it was in the interests of the appellant himself that there should be a restraining order. As she said, none of those matters were relevant in this case. She returned to her self-direction: "... is it necessary and if it is necessary, is it an order that will protect the person in the future from harassment by the defendant?" 10. She decided that on the basis of the evidence before her an order should be made that was as narrow as it could be, and proportionate to the issues that were involved. In particular that the appellant shall not contact directly or indirectly the complainant, either by himself or through any third party and that he be restrained from visiting her home address (which is described in the order) or come within 100 metres of that address, and finally that the order should continue for 12 months from the date when it was made 24th June 2010. 11. She indicated, having reached her conclusion, that she did not in fact expect that the appellant would have any difficulty in complying with the order because he had already expressed himself in clear terms that he had no wish to speak to or see the complainant again or indeed to have anything to do with her. But having recorded that, she said that it nevertheless was necessary to ensure her protection by making the order that she had. 12. The submissions before us have already been telegraphed in advance. They are in effect a repetition, none the worse for that, of the submissions made below. The order was unnecessary; it went behind the verdict of the jury just because the Recorder was relying on the evidence given at trial. We do not agree. She did not go behind the verdict of the jury. She examined the evidence that was before the jury and on the basis of that evidence she reached the conclusion that the order was necessary. That was a finding she was entitled to make, which has been properly explained by her in the course of what are called "sentencing remarks" but are better described as her "judgment". It has also been submitted to us that the order was unnecessary. The evidence to sustain that submission was that during the time when the appellant was released on bail there had been no suggestion at any time of him acting in contravention of the conditions of his bail. That submission rather overlooks, as indeed the submission did in the case we have just heard of Major , that the difference between an individual who acts in breach of bail (particularly if he has been released from custody and has been bailed on conditions) has the overwhelming sanction that a breach of bail will result in an immediate return back into the custody from which he was bailed in the first place. 13. We have no difficulty with this order. We commend the Recorder for the careful way in which she addressed the issues, for the clarity of her reasoning and the explanation that she has given both to the public and to the appellant himself and indeed to this court considering the issue on appeal. We can see no reason to interfere with her decision. The appeal therefore is dismissed.

2010_12_01-2567.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/2955/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/2955

c76c525440745f6a723671826bbefbaed08b2da8423d5d7025dc1f725198d8fd

[2019] EWCA Crim 1235

EWCA_Crim_1235

2019-07-09

crown_court

Neutral Citation Number: [2019] EWCA Crim 1235 2018/00786/B5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday 9 th July 2019 B e f o r e: LORD JUSTICE HOLROYDE MR JUSTICE CHOUDHURY and HIS HONOUR JUDGE FIELD QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) ____________________ R E G I N A - v - KEVIN DOWNTON ____________________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London E

Neutral Citation Number: [2019] EWCA Crim 1235 2018/00786/B5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday 9 th July 2019 B e f o r e: LORD JUSTICE HOLROYDE MR JUSTICE CHOUDHURY and HIS HONOUR JUDGE FIELD QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) ____________________ R E G I N A - v - KEVIN DOWNTON ____________________ 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) This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. __________________________ Mr J Anders appeared on behalf of the Applicant ______________________ J U D G M E N T ( Approved ) ______________________ Tuesday 9 th July 2019 LORD JUSTICE HOLROYDE: 1. In the early hours of 30 th April 2017, two units on an industrial estate in East Dorset were burgled and property stolen. About two hours later, two masked men broke into a house situated about three and a half miles from the industrial estate. One was armed with a sawn-off shotgun. The householders were told that they would be shot if they did not do as they were told. They were ordered to lie down on the floor whilst the burglars collected valuable jewellery and other items. They were then ordered to open a safe. One of the householders took that opportunity to activate an alarm. The other, Mr Hedger, was then shot in the chest and fatally injured. The burglars left with the stolen property. 2. The applicant, Jason Baccus and Scott Keeping were jointly charged with the murder of Mr Hedger, the aggravated burglary of the house, possession of a firearm with intent to cause fear of violence and two offences of burglary of the commercial units on the industrial estate. 3. The applicant pleaded guilty to one of the commercial burglaries. At the conclusion of a long trial before Jay J and a jury, he was convicted of the other four offences. Baccus was convicted of all five offences. Keeping was acquitted of all offences, as was his wife who had been charged with offences of assisting an offender. The applicant was sentenced for the offence of murder to life imprisonment, with a minimum term of 34 years. Concurrent determinate sentences of fifteen years, ten years, one year and one year's imprisonment were imposed for the other offences. 4. Following his trial, though not during it, the applicant expressed dissatisfaction with his legal representatives and dispensed with their services. He prepared grounds of appeal against his convictions, but did not seek to appeal against his sentence. His grounds of appeal were set out in a number of lengthy documents, all of which have been read by this court. In view of the criticisms which he made of his legal representatives, he waived legal professional privilege and we have seen the responses of trial counsel and solicitors to the criticisms which the applicant made of them. 5. Prosecuting counsel prepared a detailed Respondent's Notice. 6. The single judge refused leave to appeal. The applicant renewed his application for leave. He was two days late in doing so and therefore seeks the necessary short extension of time. 7. The renewed application for leave was listed before the full court on 22 nd May 2019. Shortly before that hearing, however, the court was informed that Mr Anders of counsel had been instructed to consider the merits of an appeal. At the hearing on 22 nd May, Mr Anders informed the court that he did not feel able to support or to present arguments in favour of any of the grounds of appeal composed by the applicant. He had, however, been given instructions about a further point in respect of which he sought an adjournment so that it could be fully considered. That adjournment was granted. 8. Mr Anders now seeks an extension of time and leave to amend the grounds of appeal so as to pursue two further grounds. No formal Notice of Abandonment has been lodged in respect of the applicant's original grounds. The court must accordingly consider both the renewed application for leave on the original grounds, which we treat as an application by the applicant acting in person, and the new application made by Mr Anders for an extension of time and for leave to 2 advance fresh grounds of appeal. 9. The principles relevant to the consideration of the latter application were set out by this court in R v James (Wayne George) [2018] EWCA Crim 285 , [2018] 1 Cr App R 33 . 10. The prosecution case was that the three male defendants had initially driven to the area of the burgled house at about 23:35 on 29 th April 2017. They had driven there in a dark coloured Ford Focus and remained parked in David's Lane, near the house, until about 00:40, when it was said that they had driven away because they had been seen by a man who was walking his dog. The prosecution alleged that the men then travelled to the industrial estate, where a car, said to be the Ford Focus, was captured on CCTV between 00:45 and 01:57. During that period it was alleged that the men entered the premises of Undersea Limited and Apple Snacks and stole property from both. They then returned in the Ford Focus to the area of the house which they were to burgle. They arrived there at 02:18. It was alleged that the applicant was the gunman and Baccus was the other man who entered the house. Mr Hedger was murdered shortly before the surviving victim made a 999 call at 03:03. CCTV footage was relied on as showing the Ford Focus leaving at 03:04. 11. The prosecution relied on circumstantial evidence, including, in summary, the following: 1. The black Ford Focus had been bought by Baccus and Keeping a few days earlier. 2. Property stolen from Undersea Limited and Apple Snacks was found in its boot. 3. Also found in the Ford Focus was gunshot residue of the same kind as that recovered from the deceased. 4. Significant findings were also made in a Vauxhall Astra belonging to the applicant. In a concealed compartment in the roof lining there was a SIM card for a mobile phone number ending 6051, which was attributed to the applicant. The SIM card had been removed from the handset in which it had previously been used at 04:29 on 30 th April 2017. 5. Also in the concealed compartment were a balaclava, gloves and a head covering (or snood) on which were very high levels of gunshot residue, again of the same kind as that recovered from the deceased Mr Hedger. The prosecution also relied on evidence relating to the use of mobile phones; on evidence of cell siting of those phones; on CCTV footage from various sources; on the evidence of the man who had been walking his dog; and evidence of neighbours who had heard noises around the time of the shooting of Mr Hedger. 12. When interviewed, the applicant initially denied any connection with the 6051 phone. He later admitted that it was his phone, but said that it had been loaned to Baccus at the material time. He also asserted that his snood had been loaned to or used by someone else. 13. The applicant pleaded guilty to the burglary at Apple Snacks. His case at trial was that he had committed that burglary, but was not one of the two men captured on the CCTV footage inside the premises. He said that he had travelled to the industrial estate alone in an Audi car and had not been in the Ford Focus at all that night. He asserted that after he had burgled Apple Snacks, he met Baccus, who was also at the industrial estate, although there had been no plan or arrangement for them to meet there. He had shown Baccus a safe which he had stolen from the premises. Baccus then went into the premises of Apple Snacks, and the applicant disconnected the CCTV. 14. The applicant's case was that he then left the industrial estate on his own. He took with him the stolen safe and noticed, as he did so, that there was someone sitting in the passenger seat of the Ford Focus in which Baccus had arrived. The applicant denied any involvement in the burglary of the premises of Undersea Limited or any involvement in the aggravated burglary and murder. His case was that after he left the industrial estate, he had driven alone to a secluded place where he spent some time unsuccessfully attempting to open the stolen safe, and had then driven home. 15. The applicant gave evidence at the trial in his own defence. Each of his co-accused also gave evidence. In particular Baccus gave evidence at trial of two conversations between him and the applicant when they were in custody together. Baccus alleged that after a hearing at a magistrates' court, the applicant said that he would have to accept the charge. Then on a later date, when they were in a prison, Baccus said that the applicant had "smugly admitted" to shooting Mr Hedger. 16. We consider first the grounds of appeal drafted by the applicant himself. They can be summarised as follows. It is said first, that the prosecution failed to disclose documents in a timely manner; secondly, that the police officers investigating the case were corrupt, that they gave unreliable evidence, and that CCTV evidence was tampered with in order to corroborate the prosecution case as to the movements of phones between cell sites; thirdly, that the cell site evidence proved that the applicant was not at the scene of the murder and not in the Ford Focus; fourthly, that evidence relating to items of clothing provided no direct link either to him or to the murder scene; fifthly, that despite directions given by the judge, the jury would have ignored the true facts and evidence because of the prejudicial evidence given by his co-accused; sixthly, that although cigarette butts were found near the scene of the murder, from which DNA matching that of Baccus and Keeping was recovered, there was no such evidence, and no other evidence, linking the applicant either to the Ford Focus or to any of the stolen property; and lastly, that the applicant's trial was unfair and the resulting convictions unsafe. 17. We have considered each of these grounds of appeal, the detailed Respondent's Notice responding to them, and the observations of the trial lawyers. We do not think it necessary to address in detail all of the many points which the applicant made in his lengthy written grounds. It is sufficient for us to consider a number of broad arguments which emerge from the material before us. 18. First, it is by no means unusual for police officers investigating a crime to find that relevant CCTV footage gathered from more than one camera system displays different times. The simple explanation usually lies in the fact that the time setting of one or more of the camera systems is inaccurate, so that the time displayed on the footage is consistently a fixed period ahead of, or behind, the correct time. In such circumstances, it is commonplace for the prosecution to adduce evidence which explains the reason for the inaccuracy and corrects it as accurately as possible, and to prepare a time line of relevant events on which, for the assistance of the jury, events are recorded in the correct chronological sequence, even if the time displayed on some of the images is wrong. 19. That is what happened in this case. A police officer who gave evidence about the time line explained the manner in which he had corrected times which were not accurately shown on the imagery. Some of the images shown to the jury were specifically marked "approximate time". The evidence of this officer was not challenged: there was no basis on which it could be. 20. Contrary to the submissions made by the applicant, we see no evidence of any sinister or improper steps being taken by any person to alter a correct time so as to strengthen some aspect of the prosecution case. No such allegation was made at trial, and nothing in the applicant's written submissions begins to provide any foundation for his allegations of corrupt and dishonest practice on the part of the police. 21. Nor is there any basis for the applicant's assertion that his own legal representatives were in some way involved in altering evidence so as to strengthen the case against him. The applicant is troubled by the fact that prosecution and defence counsel were members of the same chambers. There is no basis for that concern. Although members of the independent Bar share chambers, and in that way share in the expenses of maintaining appropriate premises, clerks and other staff, each is a sole practitioner whose duty is to represent his or her client. It is not unusual for two or more barristers who are members of the same chambers to represent different parties in a case. The fact that they do so does not begin to provide any foundation for a complaint of improper collusion between counsel. 22. We would add that, having seen the responses of the applicant's former legal representatives, it is apparent to us that he had the benefit of good representation. We note in particular that in relation to one of the matters mentioned in the applicant's documents, namely an unsuccessful application by the prosecution to recall witnesses in relation to an aspect of the cell siting evidence, the judge in his ruling specifically referred to the skill with which Mr Feest QC (the applicant's leading counsel) had cross-examined those witnesses. In rejecting the prosecution's application, the judge concluded that it would not be right to give the Crown an opportunity to shore up a gap in their case which Mr Feest has skilfully exposed. 23. That leads us to another matter which is dealt with at length in the applicant's documents, namely, his repeated assertion that the cell siting evidence proves that he was not in the Ford Focus when it drove to David's Lane and not present at the scene of the murder. The applicant is correct to emphasise the importance of the evidence as to his presence at or absence from those locations. But he is not correct to think that the cell site evidence positively exonerated him. We shall return to this point when we address the additional grounds which Mr Anders seeks leave to advance. 24. Another aspect of the applicant's submissions relates to his complaints that disclosure of documents by the prosecution was made late and that his legal representatives therefore had insufficient time to prepare. We have considered these complaints, but can see nothing in them which casts any doubt on the safety of the convictions. The applicant's experienced trial representatives do not themselves suggest that late disclosure caused them any significant problems in preparing or presenting the applicant's case. 25. The applicant then makes a number of points to the effect that there was an absence of evidence linking him to the crimes, or that the evidence relied upon against him was insufficient to prove guilt. In particular, he makes a number of points about his clothing and footwear on the night, and the clothing described by witnesses. We can understand why these points may seem important to the applicant. But we have no doubt that he is over-optimistic in his assessment of them. There were legitimate jury points which could be made on his behalf about the adequacy of the evidence; but there was, rightly, no submission that there was no case to answer at the conclusion of the prosecution evidence. At the end of the trial, when all the evidence had been heard, it was for the jury to decide whether the evidence as a whole enabled them to be sure of the applicant's guilt. 26. The applicant also complains that he suffered unfair prejudice because of evidence given by his co-accused. The applicant would no doubt much have preferred that evidence not to be before the jury. However, this was, properly, a joint trial of persons accused of joint participation in very grave crime. The evidence which the jury heard was all properly admissible. The judge gave impeccable directions as to the distinction between what one defendant says about another during a police interview and what one defendant says about another when giving evidence at trial. The judge coupled those directions with a clear and appropriate warning that when considering what one defendant said about another, the jury should bear in mind the possibility that the defendant making the statement may have had interests of his own to serve. We have seen nothing which supports the applicant's complaint that his trial jointly with the other accused was unfair. 27. We can express our conclusions about the applicant's own grounds of appeal shortly. His complaints against the police and his own legal representatives are wholly unsupported by evidence. His other points relate to matters which were properly before the jury and which it was for the jury to evaluate. There was cogent evidence which the jury were entitled to find did prove that the applicant was the gunman. There is nothing in his grounds of appeal, whether viewed individually or collectively, which casts any doubt on the safety of the convictions. Had we thought otherwise, we would readily have granted the short extension of time which would have been necessary. As it is, none of the applicant's grounds of appeal has any prospect of success and accordingly no purpose would be served by extending time for them. 28. We turn to the additional grounds which Mr Anders seeks leave to advance, namely, that the convictions are unsafe because of two significant material irregularities during the trial. First, it is submitted that the evidence of a witness, Mr Cass, a forensic image analyst who gave evidence identifying vehicles shown on CCTV footage as being, or possibly being, a mark 1 Ford Focus, was not presented accurately to the jury. Secondly, it is said that the judge failed adequately to sum up the defence case. 29. In support of these grounds, Mr Anders points to evidence given by a prosecution witness, Mr Robinson, who dealt with matters relating to cell siting. Prior to 02:50, the 6051 phone could be linked to the Furlong mast, which on Mr Robinson's evidence did not cover either David's Lane or the burgled house. At 02:50, the 6051 phone was cell sited in the area of David's Lane and the burgled house; it remained there until 03:01. It was next cell sited at 03:15 in Upton – an area which could only have been reached by that time by driving at high speed from the scene of the murder. 30. As we have indicated, the prosecution case was that after the burglaries at the industrial estate, the applicant and others had travelled in the Ford Focus to David's Lane. Accordingly, there was clearly an important point which could be made, and was made, in the applicant's favour. As the judge put it in his summing-up (at page 24D-E): "Given that phone 6051 remained connected to the Furlong mast until 02:51 or 02:50, it follows that if the cell site evidence is 100 per cent reliable and accurate, the phone could not have been in any car arriving at David's Lane at 02:18 or 02:19. The way that Mr Robinson expressed this point in crossexamination was to agree that the cell site evidence was inconsistent with the proposition that the phone was in a car arriving at David's Lane at 02:18 or 02:19. Now, how you interpret that answer is a matter for you, but that is the evidence before you. So, this is, or appears to be, a problem for the Crown's case if the proposition being examined is that phone 6051 arrived in a vehicle, the Crown says the Ford Focus, at about 02:18 or 02:19. The Crown points out that at 02:50, phone 6051 is cell sited within the range of David's Lane and Castlewood, [and] remains there until 03:01 if not later." 31. It was in relation to this aspect of the evidence that, in the course of the trial, the judge had refused the prosecution application which we have previously mentioned, namely, to recall witnesses in order to address the apparent problem which the prosecution faced. 32. Building on that point, Mr Anders, in his written submissions, referred to the evidence of Mr Cass. In this regard, in reliance on instructions received from the applicant, Mr Anders submitted that the evidence of Mr Cass was wrongly understood to refer to the Ford Focus having left the scene of the murder at 03:04, when in fact the correct time, allowing for an inaccurate display on the relevant CCTV system, was 03:11. The significance of the later time, submitted Mr Anders, is that if the applicant had been in the Ford Focus when it left the scene, he could not have reached Upton in time to be cell sited there at 03:15. 33. We are satisfied that this latter point was based on a misunderstanding of the evidence. It appears that the applicant's instructions to Mr Anders were that the time displayed on the CCTV footage was one hour out. In fact, the unchallenged evidence of the witness Mr Stacey showed that it was 53 minutes out. It was, therefore, correct to say that the car which Mr Cass's evidence identified as a Ford Focus was leaving the scene at 03:04, and incorrect to suggest that his evidence fixed the time of its departure as 03:11. Although the difference is only seven minutes, that is an important difference in terms of the coherence of the case presented by the prosecution. 34. In his oral submissions this morning, based upon instructions which we understand were given in conference with the applicant today, Mr Anders sought to address this aspect of the case by pointing to further features of the evidence in respect of which he submitted that the applicant could not have been where the prosecution alleged he was at some of the times indicated and that some of the CCTV timings were consistent with the applicant's account of his movements. 35. These further submissions – not, we are bound to say, entirely easy to follow in some respects – did not seem to us to add anything of significance to the substantial defence point clearly identified by the judge in his summing-up. 36. We are also satisfied that there is no substance in the points made by Mr Anders as to the terms in which the judge summed up the evidence upon that point. We reject the submission that the passage which we have quoted undervalued or diminished the defence point. In our view, the point was presented entirely fairly for the consideration of the jury, who can have been in no doubt as to the importance which the defence attached to it. It was, however, only one aspect of the overall evidence which the jury had to consider. 37. Mr Anders then made a number of criticisms of details of the summing-up. He suggests that evidence as to the timing of the 999 call was unreliable, possibly because of a lack of clarity as to what happened when the alarm was activated in the house. He contends that the evidence of the neighbours who had heard noises around the relevant time was inadequately or incompletely summed up, thereby failing fairly to present points on which the defence relied as important. 38. Mr Anders criticises the judge for saying in the course of his summing-up that the evidence as to the timing of the 999 call and the evidence as to the timing of the CCTV footage was "inherently more reliable than timings given by the neighbours" and "can be treated as robust". Criticism is also made of the terms in which the judge reminded the jury of the evidence of the dog walker and of the issue between prosecution and defence as to whether the clothing which the dog walker ascribed to a man sitting in the Ford Focus was consistent with clothing worn by the applicant on the night in question. 39. We have considered these points individually and collectively, and we have taken into account the yet further points added in the course of oral submissions, of which the respondent has had no notice and to which the respondent has accordingly been unable to reply. We are satisfied that none of the points casts any doubt on the safety of the convictions. In our view, the judge's observation as to the inherent reliability of the mechanical recording of time on the CCTV footage and records of 999 calls was entirely justified, particularly since this evidence was undisputed at trial for the simple reason that there was no basis on which it could be challenged. In any event, the judge had made clear to the jury that they should disregard any apparent view of his if they did not agree with it. Reading the summing-up as a whole, we have no doubt that it fully and fairly presented the defence case. 40. In any event, we reject the underlying premise of Mr Anders' submissions, namely, that the circumstantial case against the applicant was weak. It was certainly the case that the prosecution had a problem in relation to the cell siting evidence to which we have referred; and it is also true to say that the timing of the events at the bugled house and the cell siting at Upton left only a small window of opportunity for the applicant to have been involved in the murder of Mr Hedger. Notwithstanding those points, which were for the jury's consideration, there was, in our view, a very strong case against the applicant. He had admitted to committing the burglary of Apple Snacks, which could be linked to the murder by the black Ford Focus and other evidence. The jury would no doubt have been struck by the remarkable coincidence involved in the applicant's case that, as he emerged from committing that burglary, he met his friend Baccus who must, by chance, have decided to burgle the same premises at the same time. The applicant was firmly linked to the murder by the gunshot residue on the snood hidden in his car, and the jury were plainly entitled to reject his explanation that that highly incriminating item had been loaned to someone else at the material time. 41. The applicant was further linked to events by the 6051 phone, the SIM card for which was similarly concealed within his Vauxhall Astra, and about which he had told a succession of lies. Moreover, by the end of the trial, the jury had heard evidence incriminating the applicant from one of his co-accused. We have no doubt that there was an ample evidential foundation for the jury to be satisfied of the applicant's guilt of all the charges which he contested. 42. We return to the principles set out in James . That case makes clear that, as a general rule, all the grounds of appeal which a defendant wishes to advance should be lodged with the Notice of Appeal. If it is subsequently sought to advance fresh grounds, there must be an application to vary the Notice of Appeal, and that application should address in writing the relevant factors which the full court is likely to consider in determining whether to allow the variation and to grant any necessary extension of time. The decision in James also makes clear that the hurdle for a defendant seeking to vary grounds of appeal is a high one. 43. In our judgment, the present application for leave to vary falls well short of surmounting that hurdle. As we have indicated, the proposed new grounds of appeal were largely based upon a false premise as to the alleged weakness of the prosecution case. They were also based in a substantial part on a misunderstanding of the evidence as to the timing of the CCTV footage. The criticisms of the summing-up are without substance, and it is relevant to note that they did not result in any request by trial counsel that the judge should correct or add to anything he had said. 44. As we have understood the submissions made to us, the points now relied upon in support of the application were all points which were before the jury for their consideration at trial. If they were not, no satisfactory explanation has been given as to why they are being raised for the first time so long after the conclusion of the trial. 45. In those circumstances, the applications for extension of time, leave to appeal and leave to vary the grounds of appeal all fail and are refused. 46. Before leaving the case, we must express our gratitude to Mr Anders who, acting pro bono in the best traditions of the Bar, has clearly put a great deal of work and effort into his submissions on behalf of the applicant. ______________________________________ 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_07_09-4656.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/1235/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/1235

27d8d06d3c7036ee0a85e32a101684b19894763c522818da901fa4ca308acb1c

[2005] EWCA Crim 1861

EWCA_Crim_1861

2005-06-29

crown_court

No: 2005/01423/A7 Neutral Citation Number: [2005] EWCA Crim 1861 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2 Wednesday, 29 June 2005 B e f o r e: LORD JUSTICE LATHAM MR JUSTICE BENNETT HIS HONOUR JUDGE RICHARD BROWN DL ( Sitting as a Judge of the Court of Appeal Criminal Division ) - - - - - - - ATTORNEY GENERAL'S REFERENCE No. 20 of 2005 UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 - - - - - - - R E G I N A - v - MICHAEL ANTHONY MAY -

No: 2005/01423/A7 Neutral Citation Number: [2005] EWCA Crim 1861 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2 Wednesday, 29 June 2005 B e f o r e: LORD JUSTICE LATHAM MR JUSTICE BENNETT HIS HONOUR JUDGE RICHARD BROWN DL ( Sitting as a Judge of the Court of Appeal Criminal Division ) - - - - - - - ATTORNEY GENERAL'S REFERENCE No. 20 of 2005 UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 - - - - - - - R E G I N A - v - MICHAEL ANTHONY MAY - - - - - - - Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4A Telephone No: 020-7421 4040 (Official Shorthand Writers to the Court) - - - - - - - MISS B CHEEMA appeared on behalf of the ATTORNEY GENERAL MR R CHISTIE appeared on behalf of THE OFFENDER - - - - - - - J U D G M E N T Wednesday, 29 June 2005 LORD JUSTICE LATHAM: 1. This is an application by the Attorney General for leave to refer to this court for review a sentence imposed on the offender on 15 February 2005 for seven offences of supplying a controlled drug of Class A. The sentence that was imposed was one of two years' community rehabilitation and 100 hours' community punishment. It is no surprise that the Attorney General has sought leave to refer the sentence. The general principle is clear. Those who deal in drugs will for the purpose of deterring others and for the protection of the public face significant custodial sentences. Accordingly, the question is whether there was any material in this case which could justify the wholly exceptional course adopted by His Honour Judge Simpson, who is an experienced judge who knows well the area in which he sits. 2. The offender is 18 years of age. At the time that the offences were committed he had left home as a result of difficulties with his family and was sleeping with friends. He undoubtedly became involved in the drug scene, first, by becoming a drug user. However, it would appear as though his drug use had only persisted for a matter of months or so before the offences with which the court is concerned. Those offences took place between 6 and 22 September 2004, when the seven incidents upon which the prosecution relied took place. Those were seven occasions upon which the offender provided undercover police officers with crack cocaine. As far as the first incident was concerned, it is plain that the offender was merely the person who was provided with the cocaine in order to supply the officers. The arrangement had been made between the officers and another person. Indeed four of the other occasions took place in a similar manner; but there were two occasions upon which the initial contact was with the offender himself. The amount of cocaine on five occasions was in the region of 200-250 milligrammes. That is an amount for which £20 was the appropriate price. However, on two occasions a double quantity was supplied for which the price was £40. 3. The offender was arrested. He was remanded in custody for three months before sentence was passed. He did not enter a plea of guilty at the first opportunity, but did so after he had seen video-recordings which related to the transactions in question. When he came before the court for sentence he had the benefit of a pre- sentence report which set out his background. It made the point that he was a young man who had no previous convictions. It expressed the view that he was somewhat naive about drugs and the seriousness both of drug use and drug supply. The report expressed the view that the offender had learned his lesson from the arrest and remand in custody. The probation officer was optimistic that, provided the offender avoided the friends or acquaintances in whose company he had become involved in the drug scene, he would not re-offend. The probation officer expressed the clear view that the offender had both sincerely regretted his involvement in the offences and had expressed relief that he had been arrested before he had become so involved in the drug scene that he could see no escape for himself. The report came to the conclusion that, because of the fact that he was not in any true sense a drug addict, a drug treatment and testing order was not appropriate. It recommended that a community penalty should be imposed on the basis that this was a young man whose offending, if caught at this stage and appropriately dealt with, could be brought to an end. It was in those circumstances that the judge sentenced him as he did. 4. We have the benefit of a letter from Judge Simpson setting out the particular reasons for his having taken the course that he did: first, the age of the defendant; second, the absence of a criminal record; third, the matters set out in the pre-sentence report; and fourth, he referred to the decision of this court in R v Alfonso . He went on to say that he considered that it was one of those cases where "'a brand could be plucked from the burning', whereas a custodial sentence certainly would not produce such a result." 5. Insofar as the judge referred to Alfonso , we consider that he could not have intended to indicate that he considered that this case fell within the Alfonso category. This was not a case of a long-term, homeless, hopeless, out-of-work drug addict dealing in drugs to feed his habit. It is plain that this young man, as we have already indicated, was not a drug addict at the stage that these offences were committed. He was a drug user who allowed himself to become involved in supply, not just to feed his habit but also to be able to sell surplus drugs to earn money. He was obviously close to the source of supply. In those circumstances if the case fell to be dealt with by way of a custodial sentence, it would clearly not have been the sort of case for the shorter sentence which this court indicated could be appropriate in such cases. 6. However, the fact is that this court has repeatedly made it plain that guidelines, even where clear principles such as that to which we referred at the beginning of this judgment, are indicated and indeed reiterated are not intended to deprive the sentencing judge of the opportunity (if he or she considers it appropriate) to take an exceptional course in a particular case. There was, in our judgment, sufficient in the material before this judge to permit him so to do. He made it plain that it was an exceptional course. He made it plain that it was an exceptional course in particular because there were others who were sentenced at the same time, and all were sentenced to terms of custody. He also made it plain to the offender that were he to fail to take the chance which the judge was offering him, the consequence would be inevitable; and that he should be under no illusion but that the court took a chance with him which, if he was not prepared to accept it, would inevitably result in his having to face a significant period in custody. 7. For the reasons that we have given we do not consider that this was a case where a sentence has been imposed with which this court should interfere. We give leave to refer because clearly this was a lenient sentence, but we do not interfere with it. Accordingly the sentence stands. ____________________________________

2005_06_29-537.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/1861/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/1861

f3e0afe63d9d2a9d2e2a70efc21ef90f660edd0f09e8da3ebedcf4eac04d7ad1

[2011] EWCA Crim 2009

EWCA_Crim_2009

2011-08-02

crown_court

No: 2011/1082/D2 Neutral Citation Number: [2011] EWCA Crim 2009 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 2 August 2011 B e f o r e : LORD JUSTICE LAWS MR JUSTICE OPENSHAW MR JUSTICE HICKINBOTTOM - - - - - - - - - - - - - - - R E G I N A v CONNOR CAMBRIDGE - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 740

No: 2011/1082/D2 Neutral Citation Number: [2011] EWCA Crim 2009 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 2 August 2011 B e f o r e : LORD JUSTICE LAWS MR JUSTICE OPENSHAW MR JUSTICE HICKINBOTTOM - - - - - - - - - - - - - - - R E G I N A v CONNOR CAMBRIDGE - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - Mr A Montgomery appeared on behalf of the Appellant Mr B Temple appeared on behalf of the Crown - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE LAWS: This appellant faced an indictment containing four counts. Count 1 charged an offence of possessing a firearm with intent to endanger life. Count 2 charged an alternative, simple possession of a firearm. Count 3 was an offence of possessing ammunition with intent to endanger life and count 4, again an alternative, simple possession of ammunition. On 27th January 2011 before His Honour Judge Issard-Davies at the Inner London Crown Court, the appellant was convicted by an 11 to 1 majority of the jury upon counts 1 and 3. The jury was discharged from returning a verdict on counts 2 and 4. The appellant was sentenced to five years' detention in a young offender institution on count 1 and 30 months concurrent on count 3. He now appeals against his conviction by leave of the learned single judge. 2. The firearm in the case was a Walther P99S self-loading pistol modified to allow the discharge of live ammunition. It was found on 26th April 2010 in a plastic bag in an external cupboard at a block of flats in Lyham Road, London, SW2. That is in Brixton, and is perhaps a 10 minute walk from the appellant's home. It was found by a plumber who was carrying out repairs. There were two cartridges in the magazine. They had been cut to fit the pistol. The appellant's fingerprints were found on five areas on the outside of the plastic bag and one area inside. An incomplete DNA profile found on a swab taken from the magazine of the gun matched the appellant's DNA. The chance of it being from someone else was one in a million. Other swabs gave insufficient DNA for a comparison to be made. 3. The appellant was arrested on 15th June 2010 and, according to DC Cotton who said his note was complete, on being told that he was being arrested because he had been linked forensically to a firearm, he responded: "Has anyone else been linked to it?" 4. The appellant gave evidence in his own defence. He claimed to know nothing about the gun. The plastic bag came from JD Sports where he was a frequent shopper. That would explain his prints on the bag. As for the DNA, that might have got onto the magazine by means of a secondary transfer if the bag had come into contact with him. According to the expert evidence, however, the most likely explanation for the presence of the appellant's DNA on the magazine was that he had touched it. 5. The grounds of appeal arise primarily out of the judge's decision to let in two pieces of evidence upon the Crown's application. The first concerned an incident on 28th November 2007 when the appellant was 14. Police went to Clapham Common where there was a fight involving a large number of youths. Five of them fled but were caught. Among them was the appellant. He was seen discarding an object which turned out to be a replica firearm capable of firing ballbearings. He was given a formal warning by the police pursuant to section 16A of the Firearms Act 1968 . 6. The second piece of evidence admitted by the judge concerned an incident which had taken place on 29th October 2009. The appellant was shot once in each leg at the top of the thigh. It happened close to the same road where the firearm and magazine with the ammunition giving rise to the present indictment were found. The appellant claimed he did not know who the culprit or culprits were. 7. The judge held that both pieces of evidence were admissible in a ruling given on 24th January 2011. He recorded the Crown's submission as being that they were both admissible: "... because they tend to rebut the operation of chance in this matter. They become admissible, therefore, under section 101(1)(d) of the Criminal Justice Act 2003 , an important matter in issue between the defence and the prosecution." And so the judge let in the evidence on that basis. 8. Section 101(1)(d) concerns bad character evidence. It provides: "In criminal proceedings evidence of the defendant's bad character is admissible if, but only if- ... (d) it is relevant to an important matter in issue between the defendant and the prosecution." The suggestion that the appellant having been shot in October 2009 was evidence of his bad character was, to say the least, quixotic and the judge gave some reconsideration to his ruling the following day, 25th January 2011. The transcript (volume 2, page 5E) shows that he was prepared to recast his ruling as regards the shooting on the footing that evidence of the incident was admissible at common law as tending to rebut a defence of innocent association. 9. The common law has long accepted that evidence may be admitted at the behest of the Crown to rebut a defence of mistake, accident or innocent association. The relevant line of authority includes such well-known cases as Makin v Attorney General for New South Wales [1894] AC 57 and DPP v Boardman [1975] AC 421 . It is clear moreover that bad character evidence may be admitted under section 101(1)(d) for a similar purpose. In Jordan [2009] EWCA Crim. 953 , Hallett LJ said this at paragraphs 20 and 21: "20. In general terms, to our mind, Mr Fell's arguments overlooked one very significant matter. Section 103(1) states that 'matters in issue' between the defendant and the prosecution for the purposes of section 101 include the question whether the defendant has a propensity. 'Matters in issue' are not limited to questions of propensity. One important matter in issue here was whether or not the appellant knew there was a firearm in the car. It was to rebut his claim that he just happened to find himself sitting above the firearm, in other words to rebut his claim of innocent association or coincidence, that the Crown in reality sought to adduce evidence of his previous convictions. The admissibility of evidence to rebut coincidence or innocent association was recognised by this court in Groves [1998] Crim LR 2000, but also more recently in R v Chopra [2007] 1 Cr App R 16 , whereby this court acknowledged that coincidence or unlikelihood of coincidence continued to be relevant under the provisions of the Criminal Justice Act 2003 . 21. Further, we note that the possession of firearms in this country to commit an armed robbery, although by no means unique, is still mercifully a comparatively rare offence, certainly when compared to the huge number of offences of street robberies. It was therefore a perfectly legitimate argument, in our judgment, that the appellant, who claimed to be sitting in a car which was going to be used in an armed robbery as a result of unhappy chance, had previously committed an offence of possessing a gun and had previously committed an offence of robbery. We take Mr Fell's point that the [relevant] convictions were relatively old, but we also note that in the meantime he had spent some years in prison. Far from turning over a new leaf, as he claimed he had continued to commit offences." 10. The appellant in the present case says that there were no identifiable common features between the incidents the subject of the disputed evidence and the indictment offences. He cites Laurusevicius [2008] EWCA Crim. 3020 . It is said that the evidence of the shooting had no probative value, and there were a large number of distinct differences between the other incident when the 14-year-old appellant was warned for carrying a pellet gun and the indictment offences. 11. It is to be noted that the discussion in Laurusevicius largely went off on the issue of propensity to untruthfulness. That is not how the Crown's case is put here. The Crown say that the appellant's case necessarily relied on a string of striking coincidences. Carrying a pellet gun is not a common occurrence. Being shot in the street is not a common occurrence. On the appellant's case however the appellant was involved in both these occurrences but also turns out to have disposed of a bag with his fingerprints found upon it at a nearby location and containing a loaded gun with his DNA on the magazine. 12. In our judgment, the two pieces of evidence were rightly admitted by the judge. As a matter of logic and commonsense, they reduce the chance that the appellant's fingerprints and DNA found their way onto the bag and gun without his having touched the latter. They were therefore properly capable of being regarded by the jury as tending to rebut his defence of innocent association. The first, the Clapham Common incident, shows a preparedness at least to carry a gun. The second, the shooting, discloses a possible motive for possessing one. 13. The appellant also says that the judge at least should have not let in disputed evidence that he had been uncooperative with the police over the shooting incident. That is reflected in the summing-up at transcript volume 3, 24B to C. But we see nothing wrong with the course taken by the judge. The jury were plainly entitled, once the evidence as to the shooting was in, to know that there was also evidence that the appellant had been reluctant to give an account of the matter. 14. There remains a further complaint about the summing-up. It is said first that it was unfair of the judge to tell the jury (summing-up 20B) that the two matters of which he had admitted evidence were "relevant because of the nature of the defence case" when it was the appellant's express argument that they were irrelevant. But the judge's comments merely reflected his admissibility ruling in any event, as my Lord, Openshaw J pointed out in the course of argument this morning, the defence submissions as to the irrelevance of these events were canvassed by the judge (see 22G, also 24G to 25E). 15. Lastly, it is said that the judge misstated the defence case as being to the effect that the appellant had been shot by accident - an expression used by the judge in the summing-up at 23D. The defence case was in fact, it is said, that he was shot for no reason and did not know the culprit. However, the judge set out the appellant's case in some detail at 36A and D (as it had been given to DS Mitchell), 37A to D (the appellant's witness statement) and 43F to 44A (his evidence to the jury). The jury were entitled to have regard to the fact that the appellant was shot in the top of each leg and that hardly suggested a mistaken victim. Indeed it must have been obvious that the appellant had been deliberately targeted. Though there are passages in the summing-up where the judge's language is loose, there is nothing here that begins to assault the safety of the conviction. 16. For all these reasons, this appeal is without merit and will be dismissed.

2011_08_02-2808.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/2009/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/2009

c8a1b01064fb7fab4fbe913baa7210e042a4952c4c9c8f360dc04285d4fb7760

[2021] EWCA Crim 734

EWCA_Crim_734

2021-04-29

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. [2021] EWCA Crim 734 IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202001802/A1 Royal Courts of Justice Strand London WC2A 2LL Thursday 29 April 2021 Before: LORD JUSTICE BEAN MRS JUSTICE FARBEY DBE RECORDER OF NEWCASTLE (HIS HONOUR JUDGE SLOAN QC) (Sitting as a Judge of the CACD) REGINA V MYCKEL RICHARDO BETTY __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) _________ NON-COUNSEL APPLICATION TO REINSTATE AN ABANDONED APPEAL AGAINST SENTENE _________ J U D G M E N T LORD JUSTICE BEAN: On 20 March 2020 Myckel Betty and his cousin, Duvon Betty (both then aged 17), were convicted in the Crown Court at Stoke-on-Trent following a trial before Mr Recorder Gumpert (as he then was) and a jury, of an offence of wounding a man called Nathan Lockley with intent contrary to section 18 of the Offences Against the Person Act 1861. On 25 June 2020 HHJ Gumpert (as the judge had then become) sentenced Myckel Betty to five-and-a-half years' detention in a young offender institution and Duvon Betty to 5 years' detention. Counsel, Mr Woodhouse, was asked to, and did, advise Myckel Betty to make an application for leave to appeal against sentence. His advice was dated 7 July 2020 and an application was duly lodged. On 29 July 2020, before counsel had had any opportunity to discuss the matter with Myckel or vice versa, Myckel signed a notice of abandonment of his application. Duvon had also applied for permission to appeal against sentence. He did not abandon his appeal. He was granted leave to appeal by the single judge and, on 23 February 2021, this Court (Stuart-Smith LJ, McGowan J and Sir Alan Wilkie) allowed Duvon's appeal against sentence and made a substantial reduction in his sentence. Myckel Betty now applies for permission to treat the notice of abandonment as a nullity. The Criminal Procedure Rules rule 36.13(5) states that: "(5) An [applicant] who wants to reinstate an application or appeal after abandoning it must— (a)apply in writing, with reasons; and (b) serve the application on the Registrar." This is an open textured rule but the jurisdiction to reinstate an abandoned appeal is exercised in accordance with case law. The leading case is the decision of a five-judge constitution of this Court in the case of R v Medway (1976) 62 Cr App R 85. The judgment of the Court, delivered by Lawson J, contains a long and scholarly review of the previous case law on the topic. The effect of the case is well summarised in the headnote which states: "The Court has jurisdiction to give an applicant or appellant leave to withdraw a notice of abandonment of appeal or application for leave to appeal where the notice of abandonment can be treated as a nullity, ie where the abandonment was not the result of a deliberate and informed decision - in other words, where the mind of the applicant or appellant did not go with his act of abandonment. Headings such as mistake, fraud, wrong advice, misapprehension etc should be regarded only as guidelines, the presence of which may justify the exercise of such jurisdiction of the Court and are not exhaustive of the types of case where this jurisdiction can be exercised. There is no inherent jurisdiction in enabling the Court to give leave in other special circumstances." Medway has been followed in many subsequent cases. But we observe that the phrase "where the mind of the applicant or appellant did not go with his act of abandonment" is not the wording of a statute; it is an alternative way of expressing the previous phrase "where the abandonment was not the result of a deliberate and informed decision". It would, we think, be inappropriate in a case as clear as this to embark on a detailed examination of what was in the mind of Mr Betty when he signed the notice of abandonment. It may have been a deliberate decision, but could hardly be said to be an informed one. He has given some information in a letter to the court saying that he was depressed about the case and the sentence and did not want to face another court hearing. In the ordinary case, these might be insufficient reasons to bring the application within the principle laid down in Medway . But this is a very striking case. It would be wrong in our view for this court, on an application by one of two co-defendants whose cases are very similar (though, as we shall come on to point out, not identical) to take no action when this court has already decided, on a full appeal by his co-defendant, that the sentencing judge made an error of principle which applies equally to both cases. We therefore grant permission to Myckel Betty to reinstate his application for permission to appeal. We will go on to consider the application for permission to appeal against sentence. We grant leave to appeal. In the light of the previous decision of this Court we have come to a clear conclusion. We shall say what our decision is. Since the appellant (as he now is) is neither present nor represented before us he will have seven days after notification of the decision to inform the Court if he wishes to apply for any reconsideration of the case, although we are not encouraging him to do so. We turn to the facts. On the evening of 20 September 2019 Nathan Lockley had been out drinking with his girlfriend in Stoke-on-Trent. The two of them decided to walk to a friend's house in the Norton area. As they walked towards the centre of Norton they noticed a group of teenagers on the Village Green. A female who had been part of that group of teenagers became abusive towards Mr Lockley's girlfriend (Rachel Stevenson) and a fight ensued between them. Mr Lockley intervened in that fight and attempted to separate Ms Stevenson and the teenager she had been fighting with. Mr Lockley subsequently became aware of Myckel and Duvon Betty who had arrived on the scene. They initially told Mr Lockley to "fuck off", Mr Lockley responded by telling them to do the same and thereafter he was attacked and stabbed. He attempted to getaway from the incident and started to run, however he was pursued by Myckel and Duvon Betty, slipped, fell and landed on his back. He was attacked once again and stabbed in his left arm and the left side of his chest. Myckel and Duvon Betty subsequently ran from the scene. Nathan Lockley was conveyed to hospital. More by luck than judgment on the part of either of the two cousins Betty, the medical intervention at hospital was very successful. The victim was discharged from hospital after approximately 2 hours. The learned judge passing sentence on Duvon Betty and Myckel Betty took in each case a starting point under the section 18 guideline of 12 years. In the case of Duvon he found that Duvon had only kicked rather than stabbed the victim although he had been the one who had brought the knife to the scene. Duvon was of previous good character. The judge took a starting point of 12 years, made a deduction of 2 years for previous good character and the fact that Duvon had not used the knife, and said that the notional sentence for an adult would therefore have been 10 years. He made a reduction of 50% for Duvon's age and immaturity and imposed a sentence of 5 years. This Court in its judgment in Duvon's appeal said that the judge had taken the wrong starting point. As the section 18 guideline makes clear, and as this Court made clear in the case of R v Fa Xue (30 April 2020); [2020] EWCA Crim 587 , if a section 18 case is to be categorised as category 1, that is involving both greater harm and higher culpability, the injury classified as greater harm must be injury which is serious in the context of the section 18 offence, in other words, more serious even than the level of seriousness which is inherent in a conviction for causing grievous bodily harm with intent. This Court held in Duvon’s appeal that that did not apply in the present case and that therefore the correct starting point under the guideline should have been 9 years. They then made the same deduction as the judge had in Duvon's case, taking the starting point for the notional starting point had Duvon been an adult down to 7 years and making the same 50% reduction, resulting in a sentence on Duvon of three-and-a-half years' detention under section 91. Turning to Myckel Betty. The judge, as we have said, took the same starting point as 12 years, added to it 2 years for the fact that Myckel had some previous convictions, reaching a notional starting point (had he been an adult) of 14 years reducing that by 50% to 7 years. The judge then made a further reduction for the fact that Myckel, unlike Duvon, had been on remand in local authority accommodation for 18 months up to the date of sentence. Because of the way in which certain types of pre-trial custody cannot be taken into account in the calculation of a sentence the judge, quite rightly, made a reduction so that the sentence imposed on Myckel was five-and-a-half years; it would otherwise have been 7 years had Myckel spent the time on remand in prison. It seems to us that justice requires that we should follow the previous decision of this court in Duvon's case. The correct starting point should have been 9 years rather than 12 years. We shall then follow the judge's lead in adding 2 years for the previous convictions, making the notional sentence on an adult of 11 years, apply the same 50% reduction as the judge and this court did in Duvon's case to five-and-a-half years, and then make the same deduction to reflect the fact that Myckel had spent 18 months on remand in local authority accommodation. The result is that we allow the appeal, quash the sentence on Myckel of five-and-a-half years' detention under section 91 of the 2000 Act and substitute a sentence of 4 years' detention under section 91 of the Powers of Criminal Courts (Sentencing) Act. The concurrent sentence of 4 months' imprisonment for possession of a bladed article remains unaffected. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.

2021_04_29-5186.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2021/734/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2021/734

37db579e7666222dd6db1c056aba637a1125c23c0ee988c13136a9a191ef8df6

[2021] EWCA Crim 1706

EWCA_Crim_1706

2021-11-17

crown_court

Neutral Citation Number: [2021] EWCA Crim 1706 Case No: 202003068 B1 and Case No: 202003221 B1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT HIS HONOUR JUDGE LICKLEY QC T 20207057 Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/11/2021 Before : LADY JUSTICE THIRLWALL MR JUSTICE GOSS and HIS HONOUR JUDGE MARTIN EDMUNDS QC - - - - - - - - - - - - - - - - - - - - - Between : CHRISTIAN FEARON Appellant - and - REGINA Respondent - - - - - - - - - - - -

Neutral Citation Number: [2021] EWCA Crim 1706 Case No: 202003068 B1 and Case No: 202003221 B1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT HIS HONOUR JUDGE LICKLEY QC T 20207057 Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/11/2021 Before : LADY JUSTICE THIRLWALL MR JUSTICE GOSS and HIS HONOUR JUDGE MARTIN EDMUNDS QC - - - - - - - - - - - - - - - - - - - - - Between : CHRISTIAN FEARON Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Michael Holland QC for the Appellant Brian O’Neill QC and Catherine Pattison for the Respondent Hearing date: 19 October 2021 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Reserved Judgment Protocol: This judgment will be handed down by the Judge remotely, by circulation to the parties’ representatives by email and if appropriate, by publishing on www.judiciary.net and/or release to Bailli. The date and time for hand down will be deemed to be 10.30 am on 17 November 2021. MR JUSTICE GOSS : Introduction 1. Lennox Alcendor was murdered on 21 st February 2020. He died from a single stab wound to his neck. He was 42 years old. On 6 th November 2020 at the Central Criminal Court James Rochester, who was 43 years of age, and Christian Fearon, who was 30, were convicted of his murder. Rochester was also convicted of having an offensive weapon, the knife that was used to commit the murder. He admitted that he inflicted the fatal wound but claimed he was acting in self defence. He had pleaded guilty to robbery of the deceased at the start of the trial. Christian Fearon was convicted of robbery by the jury. He was acquitted on the judge’s direction at the close of the prosecution case of having an offensive weapon, which was a screwdriver without a handle that was found on him on his arrest, the prosecution having indicated that there was insufficient evidence to maintain the allegation. He did not give evidence. He renews his application for leave to appeal against his conviction for murder, having been refused leave by the single judge, who did grant him leave to appeal against sentence. We shall refer to him as the appellant. 2. For the offence of murder he was sentenced to life imprisonment with a minimum term of 24 years less the days spent on remand with a concurrent sentence of 4 years for the robbery. Rochester was sentenced to life imprisonment with a minimum term of 28 years for murder with concurrent sentences of 4 years and 10 months respectively for the offences of robbery and having an offensive weapon. We are grateful to Mr Michael Holland QC, who represented the appellant at the trial, for his written and oral submissions. He has represented the appellant at this hearing on the sentence appeal only. The prosecution have been represented by Mr Brian O’Neill QC and Ms Catherine Pattison, to whom we are also grateful. The facts 3. On 21 February 2020 the appellant and Rochester had two bottles of rum, which the appellant had stolen and wanted to sell or exchange for class A drugs, to which he was addicted. Lennox Alcendor and Ashley Tudor had received a call to buy the alcohol. They met the appellant and Rochester on Cricklewood Broadway, having arrived there by car at about 06.30 am. The four men went into a flat on Cricklewood Broadway where a disagreement developed. After about 3 or 4 minutes CCTV footage captured the four men on the Broadway. Ashley Tudor and Lennox Alcendor had taken the rum without providing any payment or supplying any drugs. As the group had left the flat, Rochester picked up a blue handled saw/knife and put it in the back of his waistband . The group walked along the Broadway and CCTV captured the argument between Lennox Alcendor and Rochester developing into a fight. As they walked, Lennox Alcendor took one of the bottles of rum from Ashley Tudor and turned towards Rochester, who produced the saw/knife from his waistband and held it in his right hand . What happened thereafter was not captured by CCTV but, after about 50 seconds, a witness began recording events on a mobile phone. By this time the fatal wound, which was to the front of Lennox Alcendor’s neck and 11.5cm deep, had been inflicted and he was lying on the ground. The mobile phone footage showed the appellant and Rochester punching and kicking him . Rochester accepted that he took his watch. 4. Rochester was arrested on 23 February 2020. The appellant was arrested two days later and gave an account in interview in which he accepted at trial that he had lied about not being violent towards the deceased . The prosecution case was that Rochester and the appellant had acted together when they murdered and robbed Lennox Alcendor with the appellant acting as a secondary party . In addition to the recordings, the prosecution relied on eye-witness evidence, his untruthful account when interviewed and his failure to give evidence. His case was that the jury could not be sure he knew Rochester had a knife before the fatal injury was inflicted or that he was party to an attack on the deceased at the time the fatal injury was inflicted or had the requisite intent for murder. 5. Rochester gave evidence that Lennox Alcendor was threatening and in possession of a knife. He picked up the blue handled saw/knife from a table in the flat as he was fearful of being attacked. Outside he was threatened with a bottle and a knife, so he took the saw/knife out of his waistband and stabbed the deceased in self-defence, not realising he had stabbed him in the throat. He accepted stealing the watch and that the recordings showed him assaulting the deceased by punching, kicking and stamping on him. The renewed application for leave to appeal against conviction 6. The three grounds of appeal against conviction all relate to jury conduct save a discrete matter arising out of one question asked of his co-accused in cross-examination by prosecuting counsel, which forms part of the rolled-up third ground. We deal with that question first. 7. Under cross-examination Rochester agreed that he was addicted to crack cocaine and the only way to fund his addiction was by crime: he stole and robbed to get money to buy drugs. He was asked whether that lifestyle applied to the appellant as well and he said that it did. Following submissions made in the absence of the jury, the prosecution accepted the suggestion in respect of the applicant’s lifestyle should not have been made. The matter was dealt with by an agreed fact being read to the jury that “such a suggestion should not have been made. There was no evidence to support the contention that he has robbed in the past. The suggestion was withdrawn.” 8. The first ground is that the conviction of the appellant is unsafe because of a lurking doubt that the Jury deliberations may have been conducted inappropriately, thereby not following the legal directions given, particularly given the apparent inclination of a Juror to seek to go behind the directed acquittal on count 3. 9. This ground arises out of a note sent by a juror at the conclusion of the summing-up in which clarification and legal direction was sought as to whether, even though the count had been ‘dropped’, if proved, could his possession of the screwdriver be used on the murder and robbery counts. Following an exchange with counsel, in which he accepted Mr Holland’s contributions, the judge directed the jury in clear terms that the appellant had been found not guilty, they must abide by that, the prosecution having accepted that there was insufficient evidence to maintain the allegation, and therefore that count had no relevance at all to any count he faced or any allegation against him. The judge’s directions were correct and appropriate, and can have left the jury in no doubt that the count had no relevance to the case against the appellant on the other counts. No submission of no case to answer was made and there was a significant body of evidence against him on those counts. 10. Ground two is that that the conduct of jurors in deliberations may have been oppressive to dissenters thereby rendering the appellant’s conviction unsafe. On the fourth day of their deliberations a note from the jury disclosed that one of them had researched the definition of manslaughter, upon which the judge had given full directions. The response of the juror in question, who accepted he had conducted such research, stated in a separate note that, although he had been responsible for submitting jury notes during the trial, he had been prevented by fellow jurors from sending more. His research had raised his curiosity as to ‘loss of control’ and ‘sober’. Enquiry of him by the judge as to what he had disclosed to fellow jurors before he was told to stop by them revealed that he had said very little. The judge made all necessary enquiries, confirmed that very little had indeed been disclosed by the juror, heard submissions from counsel and adopted an agreed approach of discharging that juror and giving appropriate directions to the remaining jurors as to their responsibilities and the need to apply his directions. His approach was entirely conventional and correct. No application was made to discharge the whole jury. Nothing occurred thereafter and the jury reached verdicts two days later. There is no basis for concluding that any untoward pressure or otherwise inappropriate conduct had occurred or influenced the verdict. 11. The final ground is that, cumulatively, the conviction should be regarded as unsafe given the inappropriate cross-examination suggesting the appellant had a propensity to use serious violence, the reluctance of at least one juror to accept that he did not use a blade in assisting his co-accused despite his acquittal, the conduct of another juror in seeking information during retirement from internet sources (who was discharged) and the conduct of other jurors in preventing one of their members seeking guidance from the trial Judge while in retirement, and the relatively weak evidence in the case against the appellant. The court is invited to direct further enquiries be made of the juror who was discharged as to the conduct of fellow jurors in deliberation. 12. Whilst it was unfortunate that the lifestyle question was asked, the matter was appropriately remedied with the agreement of counsel. As the single judge explained in his reasons when refusing leave, whether looked at individually or cumulatively, none of the issues that arose undermined the jury’s ability to reach a safe verdict nor was there anything to suggest that the 11 jurors who returned verdicts did not follow the judge’s directions that were agreed by counsel or to justify any further enquiry. There was clear evidence of the applicant’s involvement in the offences and is no arguable basis for his conviction being unsafe. 13. Accordingly, his renewed application is refused. Appeal against sentence 14. The appeal against sentence proceeds on two bases. First, it is submitted that the appropriate starting point for the minimum term was 15 years and not the 25 years taken by the judge. Alternatively, the fact that the appellant’s knowledge of the knife was for a matter of seconds before its use by the co-defendant and his significantly lesser role should have led to a greater discount from the 25 year starting point or to limited aggravation from a 15 year starting point, and that Judge did not apply the principles expressed in Kelly v R [2011] EWCA Crim 1462 “sufficiently favourably” to the appellant. Further, it being accepted this was not a murder for gain and that the robbery was an impulsive act following the infliction of injuries, the principle of totality should not have led to a significant uplift in the minimum term. It is also argued that the difference in the two defendants’ previous convictions should have led to a greater distinction in sentence. 15. Both men were heavily convicted. Rochester had 56 previous convictions, including 5 for offensive weapon or bladed article offences, and must have been on licence when he committed the murder having been sentenced to 5½ years’ imprisonment for an offence of wounding with intent to cause grievous bodily harm in 2016. The appellant had 72 previous convictions, including 4 for offensive weapons or bladed article offences between 2006 and 2018. He had no previous convictions for serious violence though had threatened with weapons in the past and had a conviction for affray. 16. The judge placed the robbery in Category 2 Culpability B of the Definitive Guideline for which the Starting Point is 4 years and the range is 3-6 years’ custody. He identified the victim’s vulnerability as a result of having been fatally injured and having disposed of the watch as aggravating factors. There was little or no planning. 17. When summing-up the judge had directed the jury that in order “to find [the appellant] guilty of murder or manslaughter you will have to be sure that he knew of the saw/knife in the possession of Rochester”. In his sentencing remarks he said “You, [the appellant], knew that Rochester had the weapon from at least the point of its production by (him), intending to have it available for use and it was. The jury convicted you on the basis you knew of the weapon before the fatal wound was inflicted… You therefore participated in the crime of murder of Lennox Alcendor with the intention that he would be caused at least really serious harm by a weapon brought to the scene by Rochester”. 18. The saw/knife was taken by Rochester from the house and was removed from the rear of his trousers or belt as he was retreating with the appellant in the street when the deceased raised a bottle to ward them off. The appellant was standing a short distance behind him when he did that and then, as the judge said, “became aware of the knife at that point, if… not before”. Rochester moved at great speed. The prosecution did not suggest the appellant had knowledge of the knife before it was produced. 19. It is common ground that the judge’s finding for the basis of sentence was that the appellant knew of the saw/knife only moments before the fatal wound was inflicted. He was not a party to having taken the weapon from the house to the scene nor was he aware, let alone well aware that a saw/knife was being carried by his co-defendant until moments before it was used to fatal effect. That, submit the prosecution, is not to the point. Their case is clear. Paragraph 5A of Schedule 21 of the Criminal Justice Act 2003 (now paragraph 4 of Schedule 21 to the Sentencing Act 2020) applies to a joint participant who, though not personally responsible for the fatal injury, participates in a murder with murderous intent in which a weapon that was brought to the scene by another attacker is used and he had knowledge of that weapon. They rely on the judgments of this court in R v Goodall [2019] EWCA Crim 1109 at paragraph 42 and, in particular, the judgment in R v. Semusu [2021] EWCA Crim 513 at paragraphs 19 and 20, in which Edis LJ, giving the judgment of the court said: - “19. In sentencing for joint offences, the provisions of Schedule 21 apply to secondary participants as well as principal offenders, but there might properly be a distinction between the minimum terms to reflect the lesser culpability of the secondary party (See Attorney General's Reference (No. 24 of 2008 ), R v Sanchez [2008] EWCA Crim 2936 ). That, though, is because the culpability of a secondary party may be less than that of a principal offender (see paragraph 33): "Although the culpability of the secondary party may in many cases be less than the principal, the sentences must be viewed proportionately in the light of the policy of the law, that he who encourages the commission of a murder or assists with the commission is to be dealt with as a murderer. 20. The number of cases of the present kind where there is a wide gap between the culpability of the principal offender and that of the secondary party has been reduced by the decision of the Supreme Court in R v Jogee [2016] UKSC 8 , [2017] AC 387 . The person who encourages or assists the principal merely foreseeing that he might intentionally cause death or really serious harm is not guilty of murder. In the modern law the secondary party must encourage or assist the principal intending that the principal will intentionally cause death or really serious harm. That is the basis on which Semusu was convicted. He was acquitted of the count of possession of an offensive weapon. We suppose this means that the jury was not sure that Semusu had been any part of the expedition by Nami to arm himself for the fight and that he arrived at the scene at a somewhat later point than Nami had done. Nevertheless, the jury's verdict means that he knew that Nami had that knife before he produced it and that he knew that it was to be used, and assisted in or encouraged that use.” 20. We observe that the facts of that case, summarised in paragraphs 5-8 of the judgment, were that Nami, the principal, had armed himself with a weapon, a large Rambo style hunting knife, to use in an attack and that Semusu knew he was so armed and that he was planning to use the knife. He was, therefore, a secondary party fully engaged in the plan. 21. Each case has to be considered on its own facts and requires an assessment of the culpability of the offender. In this case, the appellant only became aware of Rochester having the saw/blade moments before the attack. Without seeking to lay down any criteria for drawing distinctions in the wide range of factual situations that arise in cases such as this, we do not consider that because he knew just before it was used that Rochester had a knife it follows that he must be fixed with the statutory culpability of the principal. As was made plain in Kelly v R [2011] EWCA Crim 1462, no scheme or statutory framework can be fully comprehensive and the judge must achieve a just result. In paragraph 16 the court said: - “16. Problems of the kind we have identified arise equally starkly in the context of murders committed with a knife taken to the scene where two or more offenders are convicted of murder on the basis of joint enterprise…. Given some of the difficulties which can arise in joint enterprise murders where a weapon is used by one, but only one, of the murderers, the difficulties for sentencing judges are likely to multiply. There will continue to be convictions for multi-handed murders where one or more of the defendants was not aware that a knife or knives were being taken to the scene but who, once violence erupted, were participating in it well aware that the knife would be or was being used with murderous intent. Although guilty of murder they were not party to the taking of the fatal weapon to the scene. For them, their offence is aggravated by the fact that they participated in a knife murder. Paragraph 5A would not provide the starting point in the sentencing decision. For those who did take part or were party to the taking of the knife to the scene, then it would, but care has to be taken not to double count the fact that they participated in a knife murder which has already been factored into the normal paragraph 5A starting point. The judge will therefore be required to make the necessary findings of fact to identify the appropriate starting point, and thereafter to reach the sentencing decision required by the justice of the case. On the basis of the single case currently before us, we cannot give any broader guidance.” 22. In the circumstances of this case, the starting point should, in our judgement, have been 15 years. There were a number of aggravating features, namely, his record of previous convictions, which the judge indicated aggravated the crime of murder “to a limited extent”, his participation in the killing when he knew a saw/knife was to be used and the physical suffering inflicted by the vicious and gratuitous beating by both men after the fatal wound had been caused and then robbing him of a watch, which were all significant. The only mitigating factor was an intent to cause really serious harm rather than death. 23. Balancing these factors, we consider that considerable upward adjustment from the starting point was appropriate. Although Rochester received the same concurrent sentence for the robbery, he had pleaded guilty at the first available opportunity. The appellant’s culpability for that robbery had to be factored in to the minimum term, but not double-counted. 24. There were significant distinctions in Rochester and the appellant’s cases and circumstances. The former armed himself with the saw/knife and used it. He was on prison licence at the time for wounding with intent. He took the lead in the attack and the robbery. There was evidence from Ashley Tudor that, moments before the attack, the appellant indicated he did not want to fight, he simply wanted his bottle back. 25. In our judgment, the appropriate just and proportionate minimum term to reflect the appellant’s total culpability was 21 years’ imprisonment. Accordingly, we allow the appeal by quashing the minimum term of 24 years imposed in the lower court and substituting a minimum term of 21 years to be served under the life sentence for the offence of murder. The concurrent sentence of 4 years’ imprisonment for the offence of robbery remains unaltered.

2021_11_17-5232.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2021/1706/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2021/1706

4cf07cd075bb0805ed3648fe947f03f913d165ee3a570e0a6171de94a52ed581

[2008] EWCA Crim 716

EWCA_Crim_716

2008-03-05

crown_court

No: 2007/2372/D4 Neutral Citation Number: [2008] EWCA Crim 716 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 5 March 2008 B e f o r e : LORD JUSTICE DYSON MR JUSTICE PENRY-DAVEY SIR CHRISTOPHER HOLLAND - - - - - - - - - - - - - - - - - - - - - R E G I N A v ISRAR ALI - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Str

No: 2007/2372/D4 Neutral Citation Number: [2008] EWCA Crim 716 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 5 March 2008 B e f o r e : LORD JUSTICE DYSON MR JUSTICE PENRY-DAVEY SIR CHRISTOPHER HOLLAND - - - - - - - - - - - - - - - - - - - - - R E G I N A v ISRAR ALI - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr R Rinder appeared on behalf of the Appellant Miss C Sjolin appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE DYSON: On 19th April 2007 at Northampton Crown Court the appellant was convicted of robbery and sentenced to five years six months' detention in a young offender institution. He appeals against conviction and sentence by leave of the single judge. 2. It was not disputed that the appellant had been involved in robbing a Mr Watkinson of a car on 5th December 2005. The defence case in outline was that the appellant acted under duress, the threats being administered by one Bilal Hussein. The defence case was that when he first met Hussein he did not know that he was a criminal. He was later threatened and driven to commit the offence by threats that he received from Hussein. The sole issue for the jury was whether or not the appellant had been acting under duress. 3. Mr Watkinson gave evidence that he was the co-owner of Hamilton Car Sales. On 5th December 2005 his partner received a call enquiring if a Golf Turbo was for sale. Some 15 or 20 minutes later the appellant and another Asian male arrived and examined the car. The appellant did most of the talking. He made and received calls on his mobile phone. He said that his father was providing the money and he agreed to buy the car subject to a test drive. 4. Mr Watkinson took them on a test drive with the appellant in the front passenger seat and the other man in the rear. He allowed the appellant to take over the driving and moved into the front passenger seat. The appellant drove for about a mile when his mobile phone rang. He pulled over to make a phone call. The appellant explained that it was his father calling. The rear passenger then held a knife to Mr Watkinson's throat and told him to hand over the mobile phone. He threatened to kill Mr Watkinson unless he got out of the car. Mr Watkinson refused and he received a cut on his chin from the knife. He thought that the man was going to stab him in the neck. The appellant also threatened him and said: "Get out of the car or I'll kill you" or words to that effect. Mr Watkinson did get out of the car. In cross-examination he disagreed that the other male had been in control of the conversation. He said that the driver had made threats whilst the knife was held to his throat. 5. The appellant described how he had been friendly with Bilal Hussein. Later Hussein, who the appellant knew carried a knife, had assaulted and threatened him and forced him to go out with him. In November 2005 he had been told by him to steal three bottles of Jack Daniels from Asda whilst Hussein waited outside in the car. The appellant had been arrested and received a caution for that offence. 6. Before 5th December 2005 Hussein had, he said, assaulted the appellant with a baseball bat. He was too frightened to seek medical assistance. On 5th December Hussein and another man whom he had not seen before collected the appellant in a car. Hussein drove them towards Northampton. They arrived at the Hamilton Car Showroom where Hussein told the appellant that they wanted him to drive a car. The appellant was threatened and the other male explained that he had a knife. Hussein called the appellant's phone in the showroom and told him to say that it was his father calling if anybody asked. The male who accompanied him to the showroom pointed to a green Volkswagen and the appellant asked for a test drive. The appellant was "dead quiet" whilst the other man did all the talking and "haggling". The salesman drove the car and pulled over telling the appellant to drive. Hussein called him after a couple of minutes. The appellant pulled over and answered the phone. Hussein said: "Do it now, do it now, I'm right behind". The appellant saw a car parked behind them. The other male in the car pulled out a knife and put it to the salesman's throat. The salesman jumped out of the car. The appellant said nothing as he was "so scared". The other male told him to drive and raised the knife towards him. The male moved into the passenger seat and the appellant drove following directions. The appellant was too frightened to call his family or the police. 7. Mr Rinder places particular emphasis on the fact that in his interview the appellant said that his parents had told him not to hang around with this man and that his brother had told him to stop seeing them - this was a reference to Hussein and associates of his. In evidence the appellant made it clear that he had known Hussein for many years; but that Hussein had moved away and after returning to the area to live, Hussein had approached the appellant. The appellant said that they had then become friends before any threats were made. The appellant's brother made it clear in evidence that the reason why he did not approve of Hussein was because Hussein did not have a job and this was considered to be unacceptable by their family standards. When questioned by Mr Rinder the appellant denied that he knew Hussein was involved in crime when they first became friends. 8. There are two grounds of appeal against conviction. They both involve criticisms of the summing-up. The first concerns the directions given by the judge in relation to the issue of duress. The judge said this at page 4C: "Duress applies, and it may be that one or more of you will want a pen or pencil here to take this down, it applies if a defendant has been impelled to commit the offence, in this case the offence of robbery, by threats of death or really serious injury to himself or members of his family. I repeat that, by threats of death or really serious injury to himself or members of his family. You have to ask yourselves when such a defence is raised was the defendant, or may he have been impelled to act because as a result of what he reasonably believed the threatener had said or done he had good cause to fear that if he did not so act the threatener would kill him or cause him serious injury, or cause serious injury to his family, or kill his family. So that is the essential test for duress, as you have been rightly told already. There is another aspect, several other aspects to it. The threat that I have mentioned, that is to say the threat of death or really serious injury to the defendant or his family, must be immediate to the acts committed. It is essential to the defence of duress that the threat should be effective at the time the crime is committed... Now, there are just two other points here. Firstly, where duress is alleged to have taken place the law requires the steadfastness reasonably expected of an ordinary citizen in this situation... Another point, where duress is raised by a defence, as it has here, it is relevant for you as members of the jury to ask whether the defendant could reasonably have taken evasive action to have got out of this situation..." We now come to the particular passage of which complaint is made at 5C: "Now, just one or two matters finally on that. The defence of duress does not apply, does not apply, if the defendant chooses voluntarily to associate with others where he ought to foresee that he might be subjected to compulsion by threats of violence. Again, that is common sense. If you choose to join very bad company, such bad company that you can foresee that you are going to be liable to threats of some kind to do things, then you cannot complain and say I was forced to do them when you had voluntarily associated with those people. Then, finally, as I mentioned to you already, of course the burden of proof is on the prosecution." 9. At the end of the summing-up, Mr Rinder invited the judge to reconsider what he had said on the subject of bad company and its relation to duress. At page 13F the judge said this to the jury: "I am going to repeat the direction word for word that I gave you about that: 'The defence of duress doesn't apply if the defendant chooses voluntarily to associate with others where he ought to foresee that he might by such association be subjected to compulsion by threats of violence'. I said to you if you choose to get into bad company you cannot complain and raise the issue of duress. But, of course, when I say bad company that doesn't just mean people who are going about doing bad things, it means people who you should have realised could would be likely to, or may do, subject you to compulsion by threats of violence. That sort of bad company is what we are talking about. So I repeat it once again: 'The defence of duress doesn't apply if the defendant chooses voluntarily to associate with others where he ought to foresee that he might by such association be subjected to compulsion by threats of violence." The criticism of that direction is two-fold. First, by referring to "falling into bad company", Mr Rinder submits that the judge gave the jury the impression that the appellant could not rely on duress if it was the result of threats made by persons of "bad company". The reference to "bad company", he submits, was particularly unfortunate in view of the fact that the jury were aware that the appellant knew that Hussein did not work and that his (the appellant's) family did not approve of his relationship with Hussein. The jury could have concluded that it was not open to the appellant to rely on duress if Hussein was what one might regard as a generally undesirable person. The second and related criticism is that the judge failed to direct the jury that duress is not available as a defence on the basis of voluntary association if, but only if, the accused voluntarily associates with others who the accused knows are engaged in criminal activity. Mr Rinder points in particular to the judge's failure to make any reference to criminal activity. In short, in view of the concerns expressed by the appellant's family about his association with Hussein, the judge should have directed the jury that they would have to be sure that the appellant had voluntarily associated with Hussein when he knew that Hussein was engaged specifically in criminal activity, not merely that he had been "bad company" or a "bad influence". 10. The effect of voluntary association on duress was considered by the House of Lords in R and Z [2005] UKHL 22 , [2005] 2 AC 467 . In that case the trial judge had included the following direction in his summing-up (we refer to paragraph 14 of Lord Bingham's speech): "Did the defendant voluntarily put himself in the position, in which he knew he was likely to be subjected to threats? You look to judge that in all the circumstances... It is for you to decide. It is right to say he says he did stop associating but Sullivan kept finding him. It may not be wholly straightforward. It is for you to consider and it is a relevant consideration because if someone voluntarily associates with the sort of people who he knows are likely to put pressure on him, then he cannot really complain, if he finds himself under pressure. If you are sure that he did voluntarily put himself in such a position, the defence fails and he was guilty. If you are not sure and you have not been sure about all of the other questions, then you would find him not guilty." 11. The certified question of law in that case was set out by Lord Bingham at paragraph 29: "Whether the defence of duress is excluded when as a result of the accused's voluntary association with others: (i) He foresaw (or possibly should have foreseen) the risk of being subjected to any compulsion by threats of violence, or (ii) Only when he foresaw (or should have foreseen) the risk of being subjected to compulsion to commit criminal offences, and, if the latter, (iii) Only if the offences foreseen (or which should have been foreseen) were of the same type (or possibly of the same type and gravity) as that ultimately committed." Lord Bingham answered that question at paragraph 39 in these terms: "I would answer this certified question by saying that the defence of duress is excluded when as a result of the accused's voluntary association with others engaged in criminal activity he foresaw or ought reasonably to have foreseen the risk of being subjected to any compulsion by threats of violence." At paragraph 40 Lord Bingham said that the judge's direction, to which we have referred, "involved no misdirection." 12. The current Judicial Studies Board specimen direction reflects the decision in R v Z . The relevant part of the direction is to be found at paragraph 7 in these terms: "Did D voluntarily put himself in a position in which he foresaw or ought reasonably to have foreseen the risk of being subjected to any compulsion by threats of violence (see Note 5)? The prosecution say that he did, by [joining a criminal group the members of which might make such threats][getting involved with crime and thus with other criminals who might make such threats if he let them down or came to owe them money]. But it is for you to decide. If you are sure that D did voluntarily put himself in such a position, the defence of duress does not apply [and D is guilty]. However, if you are not sure that he did so, the defence of duress does apply and you must find D not guilty." It is true that Lord Bingham refers at paragraph 39 to a voluntary association with others "engaged in criminal activity". That is not surprising because in most cases where A subjects B to compulsion by threats of violence, A is engaged in criminal activity. But as the Judicial Studies Board specimen directions makes clear, the core question is whether the defendant voluntarily put himself in the position in which he foresaw or ought reasonably to have foreseen the risk of being subjected to any compulsion by threats of violence. As a matter of fact, threats of violence will almost always be made by persons engaged in a criminal activity; but in our judgment it is the risk of being subjected to compulsion by threats of violence that must be foreseen or foreseeable that is relevant, rather than the nature of the activity in which the threatener is engaged. As further support for this, we point out that the direction given by the trial judge in Z made no reference to the nature of the activity in which the threatener was engaged and yet Lord Bingham said in terms that there was no misdirection. 13. With those observations in mind we turn to the directions of which complaint is made in this case. We agree that if the judge had simply said that the appellant could not rely on duress, if he may have been acting under the compulsion of threats from Hussein in circumstances where the jury considered that the appellant had chosen to join "very bad company", that would have been an insufficient direction. But the judge did not say that. Before he made his reference to "bad company" he said: "The defence of duress does not apply, does not apply, if the defendant chooses voluntarily to associate with others where he ought to foresee that he might be subjected to compulsion by threats of violence." He repeated this direction twice at the end of the summing-up. In our judgment that is not a misdirection. In substance it is the same as the first sentence of the Judicial Studies Board specimen direction which, as we have said, contains the core requirement. Moreover, with a substitution of "might be" or "likely" the direction is not materially different from that given by the trial judge in Z . Furthermore, in the sentence which contains the reference to "bad company" the judge added: "... such bad company that you can foresee that you are going to be liable to threats of some kind to do things..." Again, although expressed slightly differently, these words capture the essence of the point that has to be made to the jury. Finally, the judge made it absolutely clear at the end of the summing-up what he meant by "bad company". In our judgment there was no misdirection here either. Accordingly we dismiss the first ground of appeal. 14. The second ground of appeal concerns the way in which the judge dealt with the fact that the appellant has two cautions for theft. The first of these was on 5th October 2004 when he was 17 years of age and the second was on 23rd November 2005. In the course of his evidence-in-chief, the appellant said that the second caution came about as a result of his being forced by Hussein to steal from a supermarket. What the judge said on this topic was this: "You have heard that the defendant has two cautions for theft. Of course, for you to be cautioned you have to admit the offence. Those two cautions, as you know, one was in October 2004 and one in November 2005. Now, of course, members of the jury, that does not automatically mean that this defendant must be guilty of this offence, of course it doesn't. You will doubtless want to concentrate on the facts relating to this offence and the issues relating to this case in deciding where the truth lies." Mr Rinder submits that the judge should have given the credibility limb of the good character direction in accordance with the decision of this court in Vye 97 Cr.App.R 134 . The credibility limb of the direction is that the jury may take into account a person's good character as going to his credibility. It is submitted that the truthfulness of the appellant's account of his relationship with Hussein and his fear of threats from him lay at the heart of the case. The appellant gave a full account of the robbery in interview and a complete and largely consistent account of these events at the trial. Since the jury only had his word on which to base their decision as to whether he was telling the truth about the nature and substance of the duress he claimed to have suffered, Mr Rinder submits that a direction on credibility was crucial. 15. Immediately before closing speeches counsel had submitted to the judge that, even if he was unwilling to give the propensity limb of the good character direction, the judge should at least give the credibility limb. The judge said that he was unwilling to do so. The appellant had two convictions for offences of dishonesty. One was for an offence committed shortly before the robbery; the other pre-dated the appellant's involvement with Hussein. The judge took the view that the appellant was not of a good character and that he was not entitled to the good character direction. Mr Rinder makes the point that the cautions were given when the appellant was very young, that he had not concealed his cautions, in fact he had disclosed them to the jury in his evidence-in-chief, and that they were unrelated to the index offence. 16. In our judgment the judge was entitled in the exercise of his discretion to rule that the appellant was not entitled to either limb of the Vye direction. The cautions had been put before the jury by the appellant. In these circumstances the judge did the best he could to be fair to the appellant and directed the jury that the cautions did not make the appellant guilty of the instant offence and that they should concentrate on the facts and the issues in the case. It is true that a caution is not the same as a conviction. Nevertheless it reflects the commission of an offence. In this case the appellant had two convictions for offences of dishonesty. He was, in our view, plainly not entitled as of right to the credibility limb of the Vye direction. As to whether the judge should have exercised his discretion to give that direction, we have been referred to previous authorities, in particular the decisions in Martin [2000] 2 Cr.App.R 42 and Keith S (unreported). We have found the decision in the second of these cases of particular assistance. The judgment of the court was given by Roch LJ. It gave some guidance as to how the discretion should be exercised where a defendant has cautions but no convictions. The court said this: "36. The essential question will always be: what is the character of the defendant? Would the giving of a good character direction mislead the jury? The process of cautioning is merely the evidential route by which the commission of one of more offences by a defendant is established. If a defendant has been cautioned, then, on the face of it, he has committed that he has committed that offence. ... 38. It is for the trial judge to rule on that issue. The judge has a discretion. No doubt, if the caution was for a completely different type of offence, the commission of which would not cast doubt on the defendant's veracity, or where the offence was committed a long time ago, or the offence, although similar to that charged, was quite trivial, the judge might rule that the fact of the caution should not be disclosed and give the appropriate character direction. 39. Equally, if there is evidence, for example, from the record of the interview with the defendant, which preceded the caution, that the defendant had not made a full admission, or that pressure had been applied, or some inducement had been held out to him, the judge would not allow evidence of the caution to be adduced." In this case, as we have said, the two offences for which the appellant had been cautioned were both for offences of dishonesty. In other words they were offences which would cast doubt on his veracity. Moreover, they were offences of the same character as the index offence, namely offences of dishonesty. They were also offences which had been committed in the reasonably recent past. In these circumstances, the judge was entitled to take the view that the appellant was not a man of good character and therefore not entitled to either limb of the good character direction. The judge had a discretion. His exercise of that discretion would only be disturbed by this court if it was plainly wrong. Far from being plainly wrong, we think that it was clearly right. 17. Accordingly, for these reasons, we dismiss the second ground of appeal against conviction and the appeal against conviction is therefore dismissed. (There followed an appeal against sentence) 18. LORD JUSTICE DYSON: We now turn to the appeal against sentence. The facts we have sufficiently related already. The appellant is now 20 years of age. We have referred to his two previous cautions. The judge did not have a pre-sentence report. In passing sentence the judge said that the appellant was not entitled to any credit for a guilty plea. He did not accept the suggestion put forward on the appellant's behalf that he had shown any remorse; the appellant was more concerned with escaping liability. The jury had rejected his defence of duress and the judge was satisfied that he had told a pack of lies to the jury and had played a full part in what had been a planned robbery. He and his companions had travelled from Birmingham armed with a knife and the appellant had given the signal to his companion to put it to the victim's throat. When the victim struggled he had been cut. It must have been a terrifying experience. The judge bore in mind the appellant's age, background and the references, but the court was under a duty to pass deterrent sentences to protect the public. The judge then said that, if the sentence was reviewed by this court, we should remember that the judge had not only heard the evidence but had seen the victim, who was obviously seriously affected by what had taken place. 19. Mr Rinder submits that the sentence of five years six months was manifestly excessive. He draws attention to the guidance given by the Sentencing Guidelines Council for a Level 2 category of offence such as this where a weapon is produced and used to threaten and/or force is used which results in injury to the victim. The bracket for adults (those aged 18 or over) is two to seven years, with a starting point after trial of four years. Mr Rinder makes the point that the appellant was only 18 at the time of the offence and 19 at the date of trial. He also urges upon the court a number of points in mitigation: his age, the fact that he has no previous convictions for offences of violence, that he apologised for what happened during the course of his evidence, that the property was returned and that he was not the main planner of this criminal enterprise. 20. We treat some of those points with a good deal of scepticism. The apology does not sit well with the fact that he did not plead guilty and the judge who had the benefit of seeing and hearing him give evidence concluded that he had shown no remorse. Nor does the point that he was not the principal mover of this enterprise sit well with the comment made by the judge to which we have just referred. He was well-placed to form a view as to the role of the appellant. We do take account, however, of the fact that he is a young man and he has no previous convictions for offences of violence. 21. Nevertheless, this was a very serious offence involving the threat and use of a knife to commit a robbery. The victim of the robbery, hardly surprisingly, was terrified by what happened. We accept that the sentence of five years six months was a severe sentence, but the judge made it clear that he was deliberately passing a severe sentence in order to deter others from carrying out similar criminal activity. Although this is a severe sentence, we are not persuaded that it is manifestly excessive and we accordingly dismiss this appeal against sentence.

2008_03_05-1417.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/716/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/716

87e7dd3ff701bf9cdb03a10456cfce1af4ad03320d88fc7abd0ad3571e6d3bb4

[2011] EWCA Crim 2323

EWCA_Crim_2323

2011-10-12

crown_court

Neutral Citation Number: [2011] EWCA Crim 2323 Case No: 2011/4912/A4, 2011/4914/A4, 2011/4917/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date Wednesday, 12 October 2011 B e f o r e : THE VICE PRESIDENT (LORD JUSTICE HUGHES) MR JUSTICE CRANSTON MR JUSTICE HICKINBOTTOM - - - - - - - - - - - - - - - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL'S REFERENCE NO 69, 70 & 71 OF 2011 - - - - - -

Neutral Citation Number: [2011] EWCA Crim 2323 Case No: 2011/4912/A4, 2011/4914/A4, 2011/4917/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date Wednesday, 12 October 2011 B e f o r e : THE VICE PRESIDENT (LORD JUSTICE HUGHES) MR JUSTICE CRANSTON MR JUSTICE HICKINBOTTOM - - - - - - - - - - - - - - - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL'S REFERENCE NO 69, 70 & 71 OF 2011 - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr M Nawaz appeared on behalf of the Attorney General Mr A Burns appeared on behalf of the Offender Metcalfe Mr C Rich appeared on behalf of the Offender Sweeney Mr A Burns appeared on behalf of the Offender Jeavons - - - - - - - - - - - - - - - - - - - - - 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 sentences of three-and-a-half and four years imposed on three defendants who, very late in the day, pleaded guilty to conspiracy to cause grievous bodily harm. We give leave. 2. As the judge rightly observed, the background to this crime was all too clearly a dispute between criminals. That its exact nature is not known does not matter and is not surprising. 3. These three defendants were three members of a group of something like eight to twelve who set out to attack and injure their opponents when the targeted victims were in a public house on a busy Saturday evening. The principal target was a man called Mawson whose wife was the licensee of the public house. There had been previous ill-will which had resulted in threats to him in the few days beforehand, but there is no proper basis for attributing any of that to any of these three defendants. However, it had been quite serious. His two cars, a Range Rover and a BMW, had been set on fire. 4. At about a 9.45 on the evening of Saturday 10th April 2010, Mr Mawson was to be found in his wife's public house sitting with two friends. A gang or mob of about six to ten men invaded the pub, bent on doing him serious injury. They were masked, all of them, with balaclavas and they were heavily armed. Several of them had swords or machetes. Some had baseball bats. They went straight for Mawson who was struck on the arm with a sword causing a severe wound which severed an artery and which undoubtedly threatened his life. He was also struck on the head with a baseball bat. The attackers covered their actions by fairly extensive general mayhem designed no doubt both to intimidate and to confuse. The windows of the public house, a juke box and fruit machines were deliberately smashed up. Moreover, in addition to Mawson's injuries three other men were also injured. A man called Graham who was sitting with Mawson was struck on the head with a baseball bat to the extent that his skull was fractured and he had to undergo emergency surgery. A Mr Sargent had his head cut open by a similar blow from a baseball bat and was severely beaten about his limbs. A Mr Burns had yet another large cut to his head which had in the end to receive something like eight or nine surgical staples and he was gashed about his back and leg. So there were multiple blows with both the sharp and the blunt weapons on four different people. In the case of Mawson and Graham the injuries were life-threatening. As it turned out, or perhaps was already known, Mawson was already suffering from Leukaemia from which he subsequently died but there is no suggestion that that was part of the knowledge of the attackers. 5. Thus the attack really bore all the hallmarks of a criminal dispute. It was brutal and it was brazen. It was carried out in public. The attackers felt free to act as they wished, no doubt because of their numbers and because of their violence, as well as because of the limited disguise. 6. After the event, the two vehicles which had carried them there and carried them away afterwards were found burned out. The only sensible inference from that is that they were deliberately burned to destroy any scientific evidence that might otherwise have been gathered from them and which might have led to the perpetrators. The cars were connected with the defendant Sweeney in the sense that they had been seen in association either with a home that he used or travelling in convoy with a vehicle that he used. They may not have been his vehicles, but the connection was present. 7. These three men, plus one other called Fletcher, were arrested in the fortnight or so after the event. Fletcher subsequently absconded and was not present to stand trial. There is no doubt that others (unidentified or at least unapprehended) will also have been involved. 8. These defendants all declined, on initial interview, to answer any questions at all. There was a later partial admission made by Sweeney when he was confronted by plain scientific evidence that he had been in contact with Mr Graham when he was bleeding. It was also the fact that Sweeney had been injured himself, by exactly what process it is not clear. At that stage he admitted that he had been present but claimed that he had been an innocent customer in the pub who got caught up in violence that was nothing to do with him. Eventually, on his very late plea of guilty, he admitted that he had been present in the public house not as an innocent customer but as a spotter or observer for the attackers in order to point out the intended targets. 9. These three defendants pleaded not guilty when the case was listed for plea and they maintained those pleas not simply up to the first day of trial but until its third day. It is however the fact that the jury had not been sworn. There had been first an informal and belatedly a formal application for disclosure from the Crown and discussion of that issue apparently occupied, one way or another, the first couple of days or so of the trial. The material which was sought related to the criminal background of Mr Mawson who was not a witness because by then he was dead, although he had made a statement, and/or Mr Graham. One can understand defendants thinking it to be in their interests that they should have information of that kind and they were of course entitled to ask for it, albeit they may have done so a little late. But it was not on any view information which had any bearing at all on the question of whether or not they were present and guilty. It might have had a bearing on mitigation. It might, if the credibility of Mr Mawson or Mr Graham had been in issue, had a bearing on that, but neither of them had purported to identify any of these three defendants. The evidence that they were present was other evidence and did not depend on the credibility of either of the victims. In the end, once the disclosure question had been ventilated the defendants all tendered extremely late pleas of guilty. They offered written bases of plea which were not significantly contested. 10. Jeavons was accordingly dealt with on the basis that he had been recruited at a comparatively late stage and went along with others. He was one of those who invaded the public house. He wore a balaclava. He did not himself, he said, have a weapon in his hands, although those he was with did. It was his case that the dispute, whatever it was, with Messrs Mawson and/or Graham was not one to which he had been a party. In effect it was his case that he was hired muscle. 11. Metcalfe admitted that he was one of the drivers. He said that he had stayed outside in the car, no doubt because they would need a rapid getaway or might do so and had not himself gone into the public house. That too was not a point of contest. 12. Sweeney, as we have already said, was the spotter in the public house. 13. The defendants were around their early twenties. Of them Jeavons was the youngest, he was not quite 20 at the time of the offence. He had not previously been sent to custody although he had convictions in the past for affray, disorder and common assault, one at least of which had been committed when on bail. His father, who was in business on his own account, gave evidence that there was family support for him and that he had, albeit unsuccessfully, begun to trade on his own account and no doubt the inference was that he had the potential for honest work. 14. Metcalfe was 23. He had a conviction for possession of a pepper spray gun when he was 18 and had received a suspended sentence for aggravated taking of a motor vehicle which subsequently had to be activated because he disobeyed the terms of the order. He had been cautioned in the past for burglary, theft and the taking of cars. 15. Sweeney was 24. He had a conviction for burglary when he was 19 and also when he was 20 a conviction for the possession of a knuckleduster. It is true that he had not used it on the occasion on which it was found, but there cannot have been any excuse for the possession of it. 16. The sentences which the judge passed were as follows. On Jeavons the sentence was four years and on Metcalfe and Sweeney the sentence was three-and-a-half years each. The judge did not say what reduction for the plea of guilty, late as it was, he had allowed. It may well be that counsel are correct in deducing that he had worked on something like 20 per cent. If that is right then his starting points must have been five year for Jeavons and about four-and-a-half or little less for the other two men. 17. The relevant guideline was the new definitive guideline on assault and other offences of violence issued by the Sentencing Council and, we accept, recently promulgated. The judge had been persuaded, apparently at a time of an earlier discussion, that the case could properly be dealt with as one falling into the middle of the three categories that are set out in that guideline, that is to say category 2. Category 2 is expressly there for offences which have as their features either greater harm and lower culpability or the inverse - lesser harm and higher culpability. There can be no question but that this was a case of greater harm. Very serious life threatening injury had been done to two people and other injuries almost as serious to two others and the judge made it clear that he treated it as a case of greater harm; nobody could have done otherwise. It must follow that the judge was persuaded that the case could properly be dealt with as one of lower culpability. 18. The guidelines do not of course attempt to set out every factor which bears on the question of culpability. They do specifically identify frequently encountered features of cases and in this context they identify as aggravating factors firstly a significant degree of premeditation and secondly use of a weapon. Both of those features, we are satisfied, were unarguably present in this case. This was a planned mob attack. It has nothing in common with an unpremeditated spontaneous act of violence. The fact that Jeavons and/or Metcalfe may have been recruited to the attacking team not that long before the attack was launched does not alter that fact. 19. The other factor which appears to have persuaded the judge was the role of the defendants. It is true that the guidelines identify as a factor which may indicate lower culpability a subordinate role in a group or gang, but that has to be balanced against any factors which demonstrate high culpability which are present as two very important ones clearly were here. Leaving aside the identified aggravating factors, it seems to us impossible to contend that those who take part in this kind of combined criminal attack in pursuit of a criminal dispute have anything other than high culpability. The role of these defendants was as we have identified. To the extent that any of them say that the original dispute with Mawson was not theirs we are unable to see that that means that their role was to be treated as subordinate. They were fully party to this attack. Jeavons was one of the invaders. Whether he was carrying a weapon or not he knew perfectly well that the others were and he knew what reason they were there for. Metcalfe was a driver. Such gangs need a driver. Sweeney was a spotter. They also need spotters. 20. In the case of Jeavons it is legitimate to say that he was the youngest of those before the court and it could properly be said that he displayed on this and no doubt other occasions a degree of lack of maturity, but he was nearly 20 and an entirely voluntary party to this invasion. 21. What happened took place in a busy public house on a Saturday evening. The pub was full, somebody was having their birthday party and there were many, many entirely innocent patrons. The object was, as the defendants all admitted, grievous bodily harm. We accept that it can be understood why the defendants thought it in their interests to seek additional information about whatever unsavoury background there was to their victims. They were entitled to seek to use the process of the court for that purpose even if it could hardly have a bearing on whether they had been present or not. What they cannot do is having taken up the time of the process for that purpose and as a result delayed their admission until not just the last minute but really some time after it, claim the recognition which is given to those who admit their guilt promptly. If the judge treated these pleas of guilty as calling for a 20 per cent reduction, then we are satisfied that he erred in principle. 22. Secondly, we are satisfied that he erred in principle in regarding this as a category 2 case. It is a plain category 1 case. The very least sentence after trial which this kind of offence ought to have attracted is something in the region of nine or ten years. We will take for present purposes the lower of those two figures. We will make what reduction we can for the belated pleas of guilty, but the result is that the sentences which the judge imposed, which would have been in the case of two of these men outside even the category 2 range, were, we are afraid, simply wrong in principle. 23. We quash the sentences, we impose in the case of Jeavons eight years and in the case of Metcalfe and Sweeney seven years each.

2011_10_12-2833.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/2323/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/2323

a6de2f4f103dd0d9d311e7d404f46c9b30da4a69c18c890aaecaae55ff84d611

[2024] EWCA Crim 148

EWCA_Crim_148

2024-02-07

crown_court

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making are that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION [2024] EWCA Crim 148 Case No: 2023/00293/B1 Royal Courts of Justice The Strand London WC2A 2LL Wednesday 7 th February 2024 B e f o r e: LADY JUSTICE MACUR DBE MRS JUSTICE STACEY DBE HIS HONOUR JUDGE PICTON ( Sitting as a Judge of the Court of Appeal Criminal Division ) ____________________ R E X - v - ASIF KHAN ____________________ Computer Aided Transcription of Epiq Europe Ltd, Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) _____________________ Non-Counsel Application ____________________ J U D G M E N T ( Approved ) ____________________ Wednesday 7 th February 2024 LADY JUSTICE MACUR: I shall ask Mrs Justice Stacey to give the judgment of the court. MRS JUSTICE STACEY: 1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under these provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of the offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act . 2. On 13 th September 2021, following a trial in the Crown Court at Oxford before His Honour Judge Gledhill KC, the applicant was convicted of one offence of rape, contrary to section 1(1) of the Sexual Offences Act 2003 (count 2, vaginal rape) and acquitted of count 1 (oral rape). He was sentenced to ten years' imprisonment. 3. The applicant now renews his application for an extension of time (472 days) in which to apply for leave to appeal against conviction following refusal by the single judge. The applicant also applies for leave to adduce fresh evidence from Georgie Smith of alibi. 4. The applicant was an informal taxi driver working in Oxford at the time. The case against his was that he picked up the complainant as a fare after she had left a club in Oxford City Centre. He took her home and raped her in her bedroom and then went back to his cab and left the scene. His DNA was found on a condom wrapper in her waste paper basket and was also found on her underwear. His Bluetooth headset was found in her bedroom. His defence was denial. He had picked up a drunk woman that night who had been verbally abusive so he had removed her from his cab. She stole his blue tooth headset and there must have been secondary transfer of his DNA from when he pulled her out of his taxi. 5. The applicant now states that he and Ms Smith were in an intimate relationship at the time of the alleged offence (17 th August 2017). Four years later, in November 2021, he posted a request on Facebook for witnesses to come forward who had travelled with AA Taxis in August 2017 and to send any videos or photographs they might have. As a result, he said, Georgie Smith came forward on Facebook and reminded him of their intimate relationship. She stated that she had intimate pictures of them together at exactly the same time as the alleged offence was said to have taken place thus proving his innocence. 6. If her Facebook message is to be believed, it is inexplicable that the applicant would not have remembered this when he was arrested and charged shortly after the incident in August 2017. There is no reasonable explanation of why he failed to recall that he was somewhere else at the time and approach his intimate friend, Ms Smith, or to advance an alibi defence both at his interview and explaining that he was with someone else and could prove his innocence in his defence case statement. There is no reasonable explanation for the failure to call Georgie Smith at his trial. 7. The applicant’s statement concerning the Facebook messages raises many questions. It does not appear to be capable of belief. Ms Smith has not made a statement in section 9 format and no Form W has been completed. There are only copies of what purport to be Facebook messages. 8. For these reasons the application to adduce fresh evidence is refused. 9. There are four proposed grounds of appeal prepared by the applicant. First, it is said that the indictment was defective because it was unsigned. That is incorrect. 10. As to ground 2, (defective ANPR footage) there was no indication that the prosecution evidence was fabricated or that the Automatic Number Plate Recognition footage was faulty. THE ANPR footage placed his taxi outside the complainant’s house at the time of the offence. 11. As to ground 3 (that his conviction on count 2 was inconsistent with the applicant's acquittal on count 1) the argument does not bear up to scrutiny. Instead, it demonstrates that the jury had rightly considered each count separately as they had been directed to by the judge. These were not allegations that necessarily rose or fell together. Whilst the forensic evidence of the applicant's semen and DNA on the complainant's thong would have assisted the jury in being sure of guilt in relation to count 2 (vaginal rape), they were not so sure about the allegation of oral rape (count 1), where there was no such forensic evidence. The jury had clearly given the applicant the benefit of the doubt as they were required to do. 12. As to ground 4, (generic unfairness) the applicant has put forward no cogent grounds to support an allegation that the trial was unfair. It is apparent from trial counsel's response to the proposed grounds of appeal that trial counsel was neither incompetent nor ineffective. 13. For the reasons given by the single judge, with which we agree, there is no reasonable prospect of success in any of the proposed grounds of appeal. There was an abundance of cogent evidence that supported the complainant's account of having been taken advantage of by an informal taxi driver on her way home from a club, and then raped in her own flat. The applicant's defence lacked plausibility. 14. The application was lodged 472 days out of time. It is not in the interests of justice to extend time, since there is no merit in any appeal. 15. Accordingly, all applications are refused. ______________________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk ______________________________

2024_02_07-6037.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2024/148/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2024/148

3c9f6eaffdf2b2ab023154ca44499dc41179d2008755c824463867b9373f9d4b

[2013] EWCA Crim 711

EWCA_Crim_711

2013-05-15

crown_court

Neutral Citation Number: [2013] EWCA Crim 711 Cases No: 201201909B5; 201202809B5; 201202840B5; 2012012958B5; 201202961B5; 201203017B5; 201203029B5;201203031B5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT His Honour Judge Christopher Moss Q.C. T20107210; T20207216 Royal Courts of Justice Strand, London, WC2A 2LL Date: 15/05/2013 Before : LORD JUSTICE LEVESON MR JUSTICE FOSKETT and MR JUSTICE HICKINBOTTOM - - - - - - - - - - - - - - - - - - - - - Between : S

Neutral Citation Number: [2013] EWCA Crim 711 Cases No: 201201909B5; 201202809B5; 201202840B5; 2012012958B5; 201202961B5; 201203017B5; 201203029B5;201203031B5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT His Honour Judge Christopher Moss Q.C. T20107210; T20207216 Royal Courts of Justice Strand, London, WC2A 2LL Date: 15/05/2013 Before : LORD JUSTICE LEVESON MR JUSTICE FOSKETT and MR JUSTICE HICKINBOTTOM - - - - - - - - - - - - - - - - - - - - - Between : SAMSON ODEGBUNE TYRONE RICHARDS ENOCH CHARLES AMOAH ADONIS JUNIOR AKRA CHRISTOPHER OMOREGI FEMI ODERINWALE OBI NWOKEH SAMUEL JUNIOR ROBERTS Appellants Applicants - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Robert Marshall Andrews Q.C. and Amelia Foshene for the Appellant Odegbune Garry Green for the Appellant Richards Charles Sherrard Q.C. for the Appellant Amoah David Spens Q.C. and Polly Dyer for the Applicant Akra George Payne for the Applicant Omeregie Nicholas Corsellis for the Applicant Oderinwale Jerome Lynch Q.C. for the Applicant Nwokeh Benn Maguire for the Applicant Roberts Mark Heywood Q.C. and Julian Evans for the Crown Hearing date : 9 May 2013 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Leveson : 1. At around 5.17 pm on Thursday 25 March 2010, Sofyen Belamouadden, a 15 year old schoolboy attending Henry Compton School in Fulham, was chased across Terminus Place at London Victoria Station by some twenty teenagers. He was caught at the top of the stairs to Victoria underground where he was attacked with bladed weapons, causing at least one cutting injury before he fell down the stairs into the ticket hall of the underground station. Whilst he was on the ground, a core group of those who had chased him ran down the stairs and effected a combined and lethal attack upon him. This included stabbing or cutting him with knives, kicking and punching him with force. The result was that Sofyen Belamouadden (to whom we shall now refer as the deceased) died. 2. The case has presented the criminal justice system with very real challenges. In the event, at the Central Criminal Court, His Honour Judge Christopher Moss Q.C. conducted no fewer than five trials (which also encompassed re-trials following jury disagreement). In the first trial, on 16 May 2011, Christopher Omoregi (now 19) and Obi Nwokeh (now 20) were convicted of murder and conspiracy to cause grievous bodily harm; Adonis Junior Akra (now 19), Femi Oderinwale (now 19) and Samuel Junior Roberts (now 20) were convicted of manslaughter and conspiracy to cause grievous bodily harm; and Enoch Charles Amoah (now 20) was convicted of conspiracy to cause grievous bodily harm and violent disorder. In the second trial, on 11 August 2011, Samson Odegbune (now 19) was convicted of murder and conspiracy to cause grievous bodily harm; and Tyrone Richards (now 18) was convicted of conspiracy to cause grievous bodily harm and violent disorder. Richards was acquitted of murder upon the judge’s direction; Amoah, Akra, Oderinwale and Roberts had each been charged with murder, the jury returning convictions for the lesser offence of manslaughter. 3. On 20 April 2012, the judge proceeded to sentence all offenders. Each of those convicted of murder (Omeregi, Nwokeh and Odegbune) was sentenced to be detained at Her Majesty’s pleasure with a minimum term specified of 18 years and concurrent terms of 8 years detention in a young offender institution for conspiracy. Those convicted of manslaughter (Akra, Oderinwale and Roberts) received sentences of 12 years detention in a young offender institution; Akra and Roberts were sentenced to concurrent terms of 7 years detention for conspiracy; Oderinwale received 8 years concurrent for the same offence. Finally, Amoah was sentenced to 7 years detention in a young offender institution for conspiracy with a concurrent term of 3 years for violent disorder; Richards similarly received 7 years detention (in his case under s. 91 of the Powers of Criminal Courts (Sentencing) Act 2000) with no separate penalty for violent disorder. In each case, time served was ordered to count. Odegbune, Amoah and Richards all appeal against sentence by leave of the single judge; Omeregi, Nwokeh, Akra, Oderinwale and Roberts all seek to renew their applications following refusal of leave. 4. It is appropriate to mention the others charged in connection with this incident. In separate trials Victoria Osoteku and Junior Bayode were convicted of manslaughter. Osoteku was sentenced to 12 years in a young offender institution with a concurrent term of 8 years for conspiracy to cause grievous bodily harm; for reasons which are irrelevant to this application, Bayode has not yet been sentenced. Chris Goncalves, Tayo Emmanuel Ajayi and Amari Wood were convicted after a retrial of violent disorder and received 30 months, 30 months and 27 months respectively in a young offender institution; Lewis Ryan Sinclair, Olawale Olaribigbe, Selassie Ahiaku, and Melvin Mensah were sentenced to 2 years in a young offender institution following their guilty pleas to offences of violent disorder. The Facts 5. The background was the simmering tension between pupils at St Charles’ Catholic Sixth Form College (“the College group”) and their associates, and others, predominantly from Hammersmith and Fulham (“the West London group”). There is no suggestion that the College group were other than a collection of individuals attending the college. It was forcefully contended on their behalf, however that the West London group constituted a street gang, known as GFL, short for “Gangsters for Life” or, possibly, “Guns for Life”: it was said that they presented with a reputation for violence and confrontation. 6. At some prior to 24 March 2010, there had been an incident at a party in relation to a girl between members of the two groups (in which Odegbune was involved). On 24 March 2010, members of the College saw two members of the West London group (Raheem Keane and Andre Willis) in the food hall at Victoria Station. There was a short confrontation the upshot of which was that Melvin Mensah (from the College) received a bloody nose: Keane and Willis (one of whom shouted a threat although not one which was heard by the College youths) ended up being arrested for a short while. 7. Following this fight, there was clear evidence that the College group and the West London group envisaged another confrontation the following day: Mr Heywood described both sides as being involved in a pre-planned pitched encounter. Members of the College group communicated with one another using Facebook and mobile phones, as did the West London group. There was also communication between the groups, initially through intermediaries but eventually by contact (said by the Crown to be ‘leader to leader’) between Odegbune and Keane. Suffice to say, there was a considerable body of evidence showing the extent of such contact. It was said that the West London group would either be coming up to the College or would be at Victoria Station that afternoon. Once at college, on Thursday 25 March, the College group made more specific arrangements which amounted to a conspiracy to engage in an armed confrontation with the West London group later that day and to use weapons to cause grievous bodily harm. In the event, during the course of the day, the location for the planned encounter was confirmed as Victoria Station. 8. The College group went to Victoria Station on 25 March on two buses, and arrived at the height of the rush hour and in broad daylight. Between them, they were heavily armed with an array of knives, including a set of kitchen knives specifically purchased for the purpose that afternoon. Although it was said that they had to pass through Victoria Station on their way home (whereas the West London group did not), the College group congregated and waited at the end of Terminus Place on the corner furthest away from where they would have alighted from their bus and then continued their journey. Many were in dark clothing with hoods or hats. Shortly thereafter, the West London group appeared at the opposite end of Terminus Place. That group were no doubt also ready and one was seen with his hands aloft saying “Come on”. 9. That confrontation commenced with Odegbune leading a charge of all those who subsequently became defendants chasing the West London group through Terminus Place, with weapons displayed. Odegbune himself was brandishing a samurai sword in front of him. Thereafter, the College group split with Odegbune, Richards, Oderinwale and others chasing Andre Zaplatel (one of the victim group) through Terminus Place. The other sixteen defendants chased the deceased who was associated with the West London group. By this time, he was isolated. As he approached the entrance to the underground station, he tripped and fell over a kerb stone, and his pursuers caught up with him. As events subsequently proved, the deceased was unarmed: what he was seen to drop was his Oyster card. At the entrance to the underground, he was confronted, stabbed, and bundled down the stairs. Most of the sixteen followed him into the underground station where, at the bottom of the stairs, the attack continued. 10. The attack in the underground lasted about twelve seconds and the deceased was left fatally wounded with no less than nine stab wounds to his body as his attackers from the College group made their escape. Most of them ran to a bus stop in Buckingham Palace Road where they boarded a C10 bus. When police officers boarded the bus at the next bus stop, amongst other weapons and potential weapons, they found two particular knives which it was later ascertained had been used to stab the deceased. One was in a bag that belonged to Omoregie, and the other was wrapped in a newspaper that bore Nwokeh’s fingerprints. 11. It was the prosecution’s case that an agreement had been in place to cause really serious harm to one or more of the West London group and that all went to Victoria knowing this to be the case, and knowing that most were armed with knives or other weapons. All contemplated that those weapons might actually be used, at least to cause really serious harm and some may have intended to kill or maim if the opportunity arose. 12. When passing sentence, the judge identified the part played by each defendant based upon the verdicts of the jury and his assessment of the facts in the light of those verdicts, prefacing his remarks with the observation that this dreadful series of events at Victoria Station had its roots in the confrontation that had taken place the previous day and had taken place in front of horrified commuters. 13. Explaining the role of Odegbune, Omoregie and Nwokeh convicted of murder and conspiracy to commit grievous bodily harm, he said that, following the incident with Mensah, overnight and the following morning, there was communication between the groups in which Odegbune had played a principal role. He and the others involved expected trouble and he had made it clear that he had intended to come to college the next day armed with his samurai sword. Omoregie brought two chef’s steels to the college and others came with variety of weapons. The expected violence was the talk of the college on the Thursday morning and afternoon. 14. As no member of the opposing group came to the college that day the defendant group all expected the confrontation to take place at Victoria Station as they made their way home. They all travelled to Victoria expecting and intending trouble and they were prepared for it. Odegbune had with him the sword and both Omoregie and Nwokeh were each armed with the knives that were later found on the C10 bus. Thus, the judge concluded that Odegbune was a principal organiser of the entire incident and both Omoregie and Nwokeh were principals in the attack upon the deceased that followed. 15. Odegbune had led the charge against the west London group with his sword shouting, “We’re going to fuck you up”. Although he was not part of the group that attacked and killed the deceased (having chased Andre Zaplatel), he was convicted of murder on the basis that he had intended that in the course of his attack on the opposing group someone should be killed or caused really serious bodily harm, or that he realised that such might be the consequence but nevertheless took part in the violence. The judge said that nobody who had seen the CCTV of the killing could possibly conclude that this was other than a ferocious and merciless attack upon the deceased and that there was any less than an intention to kill him. 16. As for their antecedents, Odegbune had three minor convictions for which he had been placed on an action plan for three months, fined and made the subject of a two week curfew. A pre-sentence report noted his supportive family, his five GCSEs and the absence of evidence of any link to gangs. It was reported that he expressed remorse. He was considered as presenting a high risk to the public particularly towards young men of a similar age where a threat or injustice was detected. Omeregie and Nwokeh were both of previous good character. Omeregie had a supportive family and 9 GCSE passes all at grades A and B: he was studying for A levels. He was assessed as presenting a medium risk. Nwokeh had 6 GCSEs but revealed serious deficits in thinking and cognitive reasoning; he continued to deny guilt. There were positive aspects to their behaviour while in custody. 17. For the crime of murder, the sentence was fixed by law and, as Odegbune and Omoregie had both been 16 and Nwokeh had been 17 at the date of the offence, the starting point for setting the minimum term of the indeterminate sentence was 12 years for each. The judge identified a number of aggravating factors. The first was the level of planning and premeditation. Second, they had gathered together for the purpose of serious mass violence in a busy public place at the height of the rush hour when they must have anticipated many innocent members of the public would be going about their lawful business. Third, they acted in a large group and the deceased was attacked by at least eight persons. Fourth, they carried and used weapons. Fifth, his assessment was that none of them had shown any kind of remorse nor had they acknowledged responsibility for the crime. It was in those circumstances that the minimum term was fixed at 18 years for each. 18. In relation to Oderinwale, Roberts and Akra who had been convicted of manslaughter and conspiracy to commit grievous bodily harm, the judge carefully analysed the evidence and expressed the basis for his sentence. He concluded that Roberts had kicked the deceased three times as he lay helpless upon the floor. His actions had been vicious and he had kicked the deceased’s head with horrifying ferocity. Akra had admitted striking the deceased upon the neck with a chef’s steel that he had obtained from Omoregie. Both Roberts and Akra stood convicted on the basis that they knew that at least one of their group was armed with a knife or other bladed weapon and that they foresaw that such a weapon might be used to cause some harm, albeit less that grievous bodily harm. 19. Oderinwale had not been present at the scene of the attack but he had acted as armourer. He had been responsible for the purchase of a block of kitchen knives from Argos in Shepherds Bush in the early afternoon of 25 March. Some of those knives were used to kill the deceased. He was convicted on the basis that he had intentionally purchased, or assisted in the purchase, or distributed or assisted in the distribution of the knives realising that some harm, albeit short of grievous bodily harm, might be caused to another by the use of those knives or any of them. 20. Oderinwale had also taken a principal part in the communications on Facebook and texting to set up the confrontation and thereby helped to initiate the conspiracy. There was no doubt that Roberts, Akra and Oderinwale had travelled to Victoria expecting the sort of violent confrontation, which in fact took place, and they were prepared to play their part in it. Oderinwale pursued members of the opposing group across Terminus Place and Akra and Roberts, joined the group of killers who set upon the deceased. 21. Oderinwale had been an early member of the conspiracy. The judge accepted that Akra and Roberts had probably joined it later but, in relation to the offence of manslaughter, he concluded that there was no nothing to distinguish between them for sentencing purposes. 22. All three of these young men were of good character with positive achievements. Oderinwale came from a supportive family and had 11 GCSEs at grates A to C; he was studying for A levels. Akra, with a supportive family and 9 GCSEs was also studying for A levels; there were four character references from his headmistress, two teachers and a teaching assistant. Roberts had 9 GCSEs and was in the first year of his A level course; he said his involvement had been spontaneous and impulsive, expressing sorrow for what he had done. 23. In sentencing them the judge indicated that he had taken into account all these positive features, along with the way they had conducted themselves whilst in custody. Again a mitigating factor was their youth, at the time of the offences Oderinwale and Akra had been 16 and Roberts had been 17. In the circumstances, for the headline offence of manslaughter, they received determinate sentences of 12 years in a young offender institution. 24. Turning to Amoah and Richards, both had been convicted of conspiracy to commit grievous bodily harm and violent disorder and, significantly, acquitted of any criminal complicity in the death of the deceased. Neither of them appeared to have become involved in the conspiracy until the 25 March 2010. Although Amoah had not been armed, once he arrived at Victoria station he joined the agreement hatched by others to cause grievous bodily harm to any one of the opposing group. He had joined the charge across the bus lanes of Terminus Place thereby placing many innocent members of the public in fear of violence. 25. Amoah attended with his fellow students from St Charles’ College whereas Richards (the youngest of the group and still at secondary school) had come to Victoria Station at the behest of Odegbune who, although of similar age, was his uncle (looked upon by him as a brother): his case was that he was concerned for Odegbune’s welfare. He was seen to join the eventual charge across Terminus Place with something in his hand; the judge, however, concluded that it could not be safely determined that this had been a knife. 26. Once again, both Amoah and Richards were of previous good character. In neither case was there evidence of any links to gangs. Amoah was from a supportive family and had 11 GCSEs; he was found to have poor assertive skills, impulsivity and limited knowledge of problem solving skills. He expressed remorse. Roberts lived with his mother and two younger brothers and was described as bright but under-achieving due to behavioural problems. The writer of the pre-sentence report concluded that his age and standing with his peers led him to be present at the scene. 27. In each of their cases account was taken by the judge of their pre-sentence reports. With regard to Richards the offence was, he said, too serious to justify the imposition of a detention and training order; for the more serious offence of conspiracy to cause grievous bodily harm, each was sentenced to 7 years. In the case of Amoah, this was in a young offender institution; for Roberts it consisted of detention under Section 91 of the Act of 2000. The Relevant Principles 28. As is well known, the sentence for murder is prescribed by law and is indeterminate (although expressed differently for offenders aged above 21, those between 18 and 21 and those under 18). In each case, however, Schedule 21 of the Criminal Justice Act 2003 prescribes the approach to the determination of the minimum term which, linked to the age of the offender, is ‘appropriate’ to the seriousness of the offence. For adults above 21, the Act most grave offences of murder, described as having exceptionally high seriousness (e.g. the murder of a child which involved abduction or sexual or sadistic motivation) attract a starting point of ‘whole life’; if an offender is over 18, where the seriousness of the offence is particularly high (e.g. murder that is racially aggravated), the starting point is 30 years. In other cases, for those over 18, the starting point was 15 years. 29. In relation to a murder committed after 2 March 2010 (when para. 5A of Schedule 21 came into force: see Criminal Justice Act 2003 (Mandatory Life Sentence: Determination of Minimum Term) Order 2010 SI 2010 No 197 ), the starting point for those over 18 became 25 years where an offender used a knife or other weapon to commit the murder having it to the scene intending to commit any offence or have it available to use as a weapon. Assuming no other features took the case into the particularly or exceptionally high category, the starting point had previously been 15 years, although the planned use of a knife or other weapon would, in any event, have been an aggravating factor thereby increasing the ultimate sentence: see M [2010] 2 Cr App R (S) 117 . 30. The effect of this amendment of the law is twofold. First, it identifies a legislative intention to increase the minimum term imposed as part of the life sentence for murder committed with a knife or other weapon taken to the scene. It follows that, being faithful to the statutory framework, such sentences must now reflect the change of law; with the consequence that citation of reported decisions of sentences for similar offences committed prior to 2 March 2010 is unlikely to be helpful. Secondly, in order to preserve consistency of approach to sentencing across the range of offences, that change in respect of sentences for murder inevitably has an impact on lesser offences of violence committed with a knife or similar weapon: we return to this feature when considering sentences for manslaughter. 31. With regard to the operation of the Schedule, it might appear to suggest that sentences upon those over 18 are stepped with minimum starting points at 15 years, 30 years and whole life. In reality, however, these steps merely provide the architecture or framework within which the judge must exercise discretion moving upwards or downwards depending on his or her assessment of the seriousness of the offence then being considered along with the aggravating or mitigating features. The result could be described not as a series of steps but, rather, as fixed points on a continuum which allows for an approach which is consistent with the legislative intent, but which allows the sentencing judge an appropriate discretion to balance the various features of the case in order to achieve a just result. 32. In respect of those under the age of 18, similar principles apply. Paragraph 7 of Schedule 21 provides: “If the offender was aged under 18 when he committed the offence, the appropriate starting point, in determining the minimum term, is 12 years.” 33. In Attorney General’s Reference No 126 of 206 (H) [2007] EWCA Crim 53 , [2007] 2 Cr App R (S) 59 page 362, Lord Judge CJ recognised that, even for those under 18, the appropriate sentence remained fact specific and had to be assessed having regard to features that, in an adult, would have moved the starting point to a higher level. He said (at para. 33) “It is trite law but occasionally worth reminding ourselves that irrespective of the ‘starting point’, the end result may be a minimum sentence of ‘any length’, when appropriate, well below or well above the defined starting point. The court must take account of every aggravating and mitigating feature, with specific reference to those which are expressly identified in paras. 10 and 11 of the schedule. These lists are not exhaustive. In particular, we should emphasise that when the court is dealing with an offender aged under 18 years the provisions of para. 7 do not preclude the sentencer from reflecting on all the express features of the crime of murder identified in para. 4 and 5 of the schedule, and when they are found to be present from treating them as features which aggravate the offence.” 34. As to the impact of para. 5A, in R v Moore [2010] EWCA Crim 2197 , [2011] Cr App R (S) 94, page 561, it was argued that Parliament had left the starting point for those under 18 unchanged when raising it for those over 18 and must, therefore, have intended no change. In upholding a 17 year minimum term for a gang related murder (and additional wounding with intent) imposed on an offender who had pleaded guilty and was 16 at the time of the offences, Gross LJ observed that the court could “readily understand” why Parliament had not altered para. 7 of Schedule 21 observing that it had been “left to the discretion of the judge to deal with as is just on the facts of the particular case”. 35. We go further. It is well recognised, within the authorities, that those features which increase the starting point for offenders over 18 are, indeed, highly relevant as aggravating features when considering those under 18. We would emphatically endorse that principle. It is absurd to suggest, for example, that sexual motivation (which would increase the starting point in an offender over 18 from 15 to 30 years) should not be taken into account when sentencing those under 18. The same is so in relation to the use of weapons, taken to the scene and intended for use as para. 5A prescribes. Once again, however, being more prescriptive would undermine the ultimate aim of the legislation because the sentencing approach to a 12 year old convicted of murder will be very different to the approach to a 17 year old. 36. It is next appropriate to turn to the offence of manslaughter. The starting point must be s. 143(1) of the 2003 Act which focuses on the very real significance of the consequences of an offence. It 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.” 37. As Lord Judge CJ said in R v Appleby [2010] 2 Cr App R (S) 46, [2009] EWCA Crim 2693 (at para. 15), in relation to manslaughter, “the culpability may be relatively low, but the harm caused is always at the highest level”. Lord Judge observed that reference to older authorities was no longer helpful and commented (at para. 22): “[N]one of the decisions we have seen ... has proceeded on the basis which we have now addressed, that crimes which result in death should be treated more seriously, not so as to equate the sentencing in unlawful act manslaughter with sentences suggested in Schedule 21 to the 2003 Act , but so as to ensure that the increased focus on the fact that a victim has died in consequence of an unlawful act of violence, even where the conviction is for manslaughter, should, in accordance with the legislative intention, be given greater weight.” 38. For the purposes of this appeal, it is necessary only to refer to cases involving the use of a weapon which, on any showing, is a seriously aggravating feature, particularly where (as here) there has been preparation and planning along with willingness to risk (even without intending to cause) serious bodily injury. 39. An example of such a case without the planning (and involving a weapon albeit not a knife) was R v Preddie and Preddie [2007] EWCA Crim 1962 , decided before Appleby and thus without the guidance there set out. Sentences of 8 years detention after convictions for manslaughter were upheld on two brothers aged 12 and 13 at the time of the killing (that is to say, markedly younger than the applicants in this case). They had confronted a 10 year old boy who was fatally stabbed in the leg with a broken beer bottle shard. Contrary to the facts of the present case, it is important to underline that the judge accepted the availability of the weapon was fortuitous: the bottle was already broken at the scene before the incident and not by anyone involved. 40. The violence in Preddie was said to be bullying street violence even if there was no further underlying motive. Furthermore, the victim was left to die in circumstances when it must have been apparent that he had suffered serious injury. The main mitigating factor was the very young age of the Preddie brothers at the time of the incident, causing Latham LJ to observe (at para. 10): “In the present context, we accept that we must approach it in the first instance by looking at the ages of these two appellants at the time of the offence. But it seems to us that we must and should reflect in our considerations the extent to which courts in these cases need to impose sentences which have a significant element of deterrence. There is no other way at the moment that the court can reflect the need to ensure the streets of this country are as safe as possible.” 41. Those words apply equally to this case where the aggravating features are more serious. As to the harm caused, as the Lord Chief Justice observed, it is at the highest level. Culpability in this case is also high. In R v AM, Kika and Saddique [2009] EWCA Crim 2544 , Lord Judge CJ observed (at para. 9) that: “… anyone who goes into a public place armed with a knife or any other weapon and uses it to kill or to cause injury, and who is brought to justice, must anticipate condign punishment.” 42. The deceased was attacked with knives, brought to the scene by a large group of teenagers who, at one stage, entered a conspiracy to cause really serious bodily injury even if, in the event, the jury were not sure (in the case of those convicted of manslaughter) that they intended or foresaw such harm actually being inflicted. 43. Counsel have referred to a number of decisions in support of submissions that the sentences imposed for the homicide offences were manifestly excessive although, in our judgment, a historical analysis – even before the change in the law – does not support such a proposition. In R v Carter [2008] EWCA Crim 707 , a sentence of 10 years was upheld for manslaughter when a knife was used in a fight, the court rejecting (at para. 26) the proposition that there was a necessary distinction between cases where the verdict of manslaughter is based on provocation, unreasonable force going beyond self-defence or lack of intent to cause serious bodily harm. Reference was then made to the observations in R v Latham [1997] 2 Cr App R (S) 10, which concerned provocation manslaughter and three counts of wounding with intent (following a fight in a night club during which the offender produced and used a knife), when Kennedy LJ said: “Even when a particular type of manslaughter is isolated from the rest it has to be recognised that it covers a wide field and if justice is to be done sentencers must not be put in straitjackets, but ... it seems to us that where an offender deliberately goes out with a knife, carrying it as a weapon, and uses it to cause death, even if there is provocation, he should expect to receive on conviction in a contested case a sentence in the region of 10-12 years.” 44. R v Bishop [2011] EWCA 1225 is another case where this court declined to interfere with a 12 year sentence for manslaughter based on lack of intent imposed on a 26 year old of good character who stabbed the former partner (and father of the child) of his then partner following ongoing domestic difficulties. The circumstances were very different and although the court made reference to the need for appropriate sentences in knife crime, the offence was committed well before the change brought about by para. 5A of Schedule 21 . 45. The high water mark of the submissions is to be found in R v Yemoh & ors [2009] EWCA Crim 1775 . Although, again, obviously before the change of law (the offence having been committed in March 2007), it has certain factual similarities to this case. Two boys of 13 and 15 were convicted of the murder of a 16 year old boy; three other boys who were 13, 14 and 16 at the time of the killing, were convicted of manslaughter. The victim had been lured into a residential street for a one-on-one fight when he was set upon, threatened with a Stanley knife and stabbed with a knife or sharp implement. The judge spoke of a “gang culture which casts its dreadful influence over so much of the youth of our inner cities”. He sentenced those convicted of murder (one of whom was of prior good character) to detention during Her Majesty’s pleasure with minimum terms of 15 years. The three convicted of manslaughter (the 14 and 16 year olds with previous convictions including robbery or attempted robbery), received extended sentences 15 years with custodial terms of 10 years and extended licence of 5 years. 46. This court concluded that the finding of premeditation of the type to which Schedule 21 refers was not made out but noted the aggravating features of the prolonged chase and attack, the possession of two knives and other weapons and the fact that “these events took place in broad daylight in a residential street, to the horror of people going about their business”. A further aggravating feature for the 13 year old convicted of murder and two of those convicted of manslaughter had been involved in an earlier incident a month before involving a different youth. The mitigation included the extreme youth of the offenders and the fact that the intention was to cause serious harm only (rather than to kill). 47. In the event, because of the different finding in relation to premeditation and giving due weight to the ages of the offenders, from the starting point of 12 years, increased to 15 years, the minimum term of those convicted of murder was reduced to 13 years. The sentences on the two convicted of manslaughter (involved in the previous incident) were reduced to extended terms of 13 years (of which 9 years was the custodial term and 4 years the extended licence) and the 13 year old of prior good character not involved in the earlier incident had his sentence reduced to an extended term of 11 years (being a custodial term of 8 years and an extended licence of 3 years). 48. For our part, although we understand the parallels to which reference has been made, we do not consider that this decision governs (or necessarily impacts upon) this case and we were not surprised that Mr David Spens Q.C. (who had been one of those who had referred to this decision in the appeal documentation) disavowed reliance on it. The differences are obvious. This court specifically rejected the aggravating feature of premeditation and the offenders were very much younger: the younger the offender, necessarily, the greater the potential for a reduced assessment of culpability. Further, this decision did not take account of parliamentary intention to increase the sentences on those who participate in taking weapons to a scene and using them to kill. 49. In relation to the offence of conspiracy to cause grievous bodily harm, the guideline issued by the Sentencing Council deals with non-fatal offences of violence and applies to all offenders aged 18 or over sentenced on or after 13 June 2011 (i.e. to each of these offenders save for Richards). It does not specifically deal with inchoate offences, but it is obviously relevant to examine the approach to sentencing the complete offence when dealing with attempts and conspiracy to commit that offence. The guideline is sufficiently flexible and capable of adjustment to reflect the differing circumstances and ensure consistency of approach. 50. For those who were not convicted of murder or manslaughter, it is of critical importance to approach the issue of sentence without incorporating the fact of death into a conspiracy which carries with it an intention to cause really serious injury. For those who did not inflict the stabbing injury, the jury were directed to convict of manslaughter if sure that they were party to a joint enterprise to cause unlawful violence, knew that at least one of the attackers had a knife or other bladed instrument and knew that the attacker might use it to stab the victim intending to cause some injury or harm, but falling short of killing or causing really serious harm. 51. Thus, the only proper interpretation of the verdicts of the jury in relation to those acquitted of murder and manslaughter but convicted of conspiracy to cause grievous bodily harm is that the jury was sure of participation in an agreement to inflict grievous bodily harm on the opposing group in Victoria Station, they were not sure either that at least one of the attackers had a knife or other bladed instrument or, alternatively, did not realise that an attacker with a knife would or might use it to stab with intent to cause any injury. 52. It goes without saying that for these offenders, the fatal injuries cannot be taken into account and the case must be considered on the basis of intended injury only; aggravating features could involve use of some sort of weapon (such as a shod foot) but not a knife. The useful parallel, therefore (which could be no more than that) could be with category 2; the starting point would be 6 years custody and the category range of 5 to 9 years. Aggravating and mitigating factors would then fall to be considered in the usual way. The Individual Appeals and Applications Christopher Omeregi and Obi Nwokeh 53. We deal first with those convicted of murder. Mr George Payne for Omoregie and Mr Jerome Lynch Q.C. for Nwokeh argue that the learned judge erred in concluding that there was an intention to kill, as opposed to an intention to cause grievous bodily harm. They argued that this interpretation of events did not accord with the verdicts of the jury. Of the 8 youths in the ticket hall, said to be acting as one group, only 2 were convicted of murder and the others of manslaughter. It must be concluded therefore, that the jury did not conclude that there was a group intention to kill. 54. It was the case for the prosecution that Omoregie and Nwokeh had themselves attacked the deceased with knives and it was contended that, having regard to the acts recorded on CCTV along with the nature and location of the injuries described by the pathologist, the intention could only have been to kill. The judge was of the same view and expressed described the attack as “ferocious and merciless”, a view we share having seen for ourselves the CCTV images. He conducted the trial and was in the best position to make his assessment, consistent with the verdicts of the jury, of the intentions of each offender and he was entitled to do so. We have dealt with the further argument raised by Mr Jerome Lynch Q.C. on behalf of Nwokeh relating to Yemoh above. 55. Although we recognise that for these young men, the sentences imposed may appear to them to be overwhelming in length, the need to punish and deter others made them inevitable. From a starting point of 12 years, these offences were seriously aggravated not only by the planning and premeditation for mass violence in public at the height of the rush hour but also the participation as one of a large group involved in attacking the deceased with weapons brought for the purpose and so effectively used. Youth was encompassed by the reduced starting point (which would otherwise have been 25 years) and the mitigation and positive aspects of these applicants’ characters were recognised. The sentences were neither wrong in principle nor manifestly excessive: these applications are refused. Samson Odegbune 56. The appeal of Odegbune in relation to his sentence for murder raises slightly different issues. First, Mr Robert Marshall Andrews Q.C. argues that the only feature aggravating the offence above the starting point of 12 years was the degree of pre-planning but that this had to be seen in the light of the serious, acknowledged and accepted threats by the aggressive group described as GFL (including the suggestion of a gun possibly being available) whereas there is no reference to these crucial elements in the sentencing remarks. It is, however, clear that, following the verdicts of the jury, the judge rejected any element of self defence but concluded that this was a planned confrontation. In any event, this was not the only feature aggravating the offence: as we have analysed the principles involved, the use of weapons brought to the scene very seriously aggravates the offence above the starting point prescribed in the legislation. 57. He also submits that in asserting that Odegbune, along with the others convicted of murder, showed no remorse, the judge ignored the statement to that effect in the pre-sentence report: the judge had, of course, been able to observe this appellant throughout the very lengthy trial: he was not bound by the view of the probation officer after conviction. As for his academic success and progress, he said in terms that he had taken account of all that had been advanced on behalf of the appellant “and the positive aspects of your conduct while in custody”. 58. In our judgment, Mr Marshall Andrews’ strongest point concerned the basis upon which Odegbune was sentenced, namely, the intention to kill attributed to the primary participants to the violent stabbing. Whatever steps he had taken to organise and orchestrate the violent confrontation, it is argued that he had taken no actual part in any violence aimed at the deceased but had led a different contingent (albeit brandishing a samurai sword and shouting, as the judge found, “We’re going to fuck you up”), inflicting no injury at all. The jury clearly (and, by dismissing the application for leave to appeal against conviction, we have concluded safely) found that his role as the leader of the conspiracy also encompassed his intention or foresight that one or more of the conspirators would use a knife or knives to kill or cause really serious injury. Although it created no inconsistency of verdict, however, we accept that there was not the same material in his case (compared to the cases of those who engaged directly in the attack) to justify concluding that he had an intention to kill. 59. We agree with Mr Marshall Andrews that it is appropriate to read the sentencing remarks in that way. Having said that, however, had the judge concluded that the extent of Odegnune’s responsibility for the entire incident through the leadership which he had shown in its organisation and in leading the charge meant that, even though he had not been part of the murderous attack, his responsibility was the same as those killing with intention to kill, the court might well have taken the view that the conclusion was not one with which it ought to interfere. He did not, however, say that. On the basis that he could not attribute to Odegbune an intention to kill, recognising that the conviction for murder was clearly a consequence of his leadership role, it is important that there is no double counting. 60. In the circumstances, we have come to the conclusion that the judge should have differentiated slightly between those who carried knives to the scene and, with the intention to kill, no doubt formed in the heat of the moment, caused death; and that of Odegbune who might have played a far greater role in the organisation of the confrontation but in respect of whom it cannot be said that he intended death, however great the risk of that outcome. In the circumstances, the minimum term in his case is reduced by 2 years to 16 years. Adonis Junior Akra 61. Turning to those convicted of manslaughter, on behalf of Akra, Mr David Spens Q.C. submits that the starting point for the murderers was too high and thus those convicted of manslaughter should similarly have their sentences reviewed. We have considered the principles in the analysis above and have no doubt that, as the law presently stands, it was not. Similarly, the general approach to the manslaughter sentences (bearing in mind the harm and the impact of the approach to homicide) cannot be faulted. 62. He also submitted that the judge had failed to reflect the different roles played by each of those convicted of manslaughter, suggesting that Akra’s role was no more serious than that of Oderinwale or Roberts but clearly less serious than that of Osoteku, an 18 year old girl who had played a key role in arming the murderers and delivered the final kick to the deceased. 63. Responding to the Grounds of Appeal, the single judge put it this way: “This was a group conspiracy and a group action. Although there were differences in the precise role and involvement of different defendants the Judge was entitled to take view that a consistent approach should be adopted with the same sentences being imposed for similar offending. Further, any differences which could be argued for in relation to the applicant would not render his sentence manifestly excessive either in itself or when compared to that of others. The applicant was one of the group of killers, was armed and struck the victim. ... Further, given the public nature of the offending, a fatal, mass charge and attack with the brandishing and use of knives taking place at Victoria station during rush hour, the Judge would have been justified in including a deterrent element in his sentencing.” 64. We agree with these remarks. The need for a deterrent sentence is undeniable and, even making every allowance for the antecedents, background and references which this applicant has amassed (and paying tribute to the very positive aspects of his character which we have no doubt will serve him well in the future), in the light of all the circumstances, it is impossible to say that the sentence imposed was wrong in principle or manifestly excessive. This application is refused. Femi Oderinwale 65. Mr Corsellis for Oderinwale argues that the sentences imposed for murder were arguably manifestly excessive so that the sentences for manslaughter ought to be adjusted: we have rejected the premise and this argument falls. He also submits that the starting point for manslaughter was too high and failed to reflect the role Oderinwale played. In addition to the authorities set out above, he also cites R v Bishop [2011] EWCA Crim 1225 but that decision is not, as he submits, authority approving Carter . Carter was cited but the decision of the court (per Davis J as he then was) was simply that the sentence imposed in the case under appeal (12 years) could not be challenged. In any event, that killing took place before the change in the law. 66. It is also argued that the judge failed to take account of the genuine fear of attack (dealt with above) or the fact that a plea to manslaughter had been offered. This last is no mitigation unless the plea is openly tendered in court and before the jury, which this was not. To suggest that such would be unrealistic where the defence being run was lack of knowledge of weapons, lack of specific intent to injure and chasing his perceived attackers away is to underline that no admission was, in fact, being made to the crime of manslaughter. The delay following conviction (before the judge could deal with all the offenders in one sentencing hearing) was a regrettable consequence of the nature of the crime: it does not justify a reduction in sentence. 67. Finally, Mr Corsellis recognised that the 8 year sentence for conspiracy to cause grievous bodily harm was fully merited, but that the fact that his role came to an end before the events at Victoria Station should have led to a lesser sentence for manslaughter. We do not agree. The sentence for conspiracy did not reflect the fact that the knives he acquired were used in the subsequent attack and that fatal injury resulted. In his case, that fact was a necessary ingredient to be recognised in the ultimate sentence for manslaughter. 68. Once again, we agree with the remarks of the single judge when he refused this application, expressed in these terms: “The applicant played a key role in the conspiracy and helped initiate it. He took a principal part in the communications the previous evening which involved getting “tooled up” and contemplated their adversaries getting “slumped” (killed). He then acted as armourer for the group. He was responsible for the purchase of kitchen knives from Argos, some of which were used to kill the victim. Although there was a responsive element to the conspiracy the Judge found that the group travelled to Victoria expecting and intending trouble and prepared and armed for it. Even if the jury’s manslaughter verdict indicates a subsequent intent to cause lesser injury, death was a foreseeable and actual consequence of the conspiracy of which the applicant was convicted. The applicant was part of the mass charge across Terminus Place although he did not join in the attack on the victim. He was pursuing others. He was convicted on the basis that he intentionally purchased or assisted in the purchase of knives, or distributed or assisted in the distribution of those knives, realising that some harm might result.” Samuel Junior Roberts 69. On behalf of Roberts, Mr Benn Maguire also submits that the judge failed to distinguish between the parts played by those convicted of manslaughter. Roberts had played no part in the planning, joined the conspiracy on the spur of the moment and did not have a weapon. 70. On the other hand, Roberts was convicted on the basis that he knew that at least one of the group was armed with a knife or other bladed weapon and foresaw it might be used to cause some harm. Second, although not using a knife (which would doubtless have led to a conviction for murder), he utilised another weapon, namely his shod foot. In that regard, it is worth repeating the observations of the learned judge. He said: “No one who has seen the CCTV images of the scene could fail to be horrified by the ferocity of one of the kicks you delivered to the head of the deceased - it was if you were kicking a rugby football. Your action were vicious and victim, defenceless.” 71. The single judge repeated the observations about group conspiracy and group action that he had made in relation to the application by Akra, observing that Roberts was one of a group of killers who viciously and repeatedly kicked the victim. The trial judge specifically said that he had reflected his youth, his antecedents and his behaviour in custody. In our judgment, this deterrent sentence is not arguably wrong in principle or manifestly excessive and this application is refused. Tyrone Richards and Enoch Charles Amoah 72. These cases can be considered together. In both cases, each appellant was acquitted of any involvement in the homicide but convicted of conspiracy to commit grievous bodily harm and violent disorder. The distinguishing feature in their cases was that each had joined the conspiracy hatched by others only at Victoria Station; they then joined in the mass, armed charge across Terminus Place which placed so many members of the public in fear but they were neither armed nor part of the attack on the victim (although Richards had some article in his hand the nature of which the judge expressed himself as unable to determine). 73. The first ground of appeal is that the judge passed the same sentence for conspiracy on these appellants as he had on most of those convicted of homicide offences. This ignores the fact that these were all concurrent terms to longer sentences, but the point is fairly made that the judge failed to distinguish between their parts and that played by the other offenders. 74. For Richards, Mr Garry Green argues that, given the offences of which he had been convicted, more attention could be paid to the fact that he was the youngest of the group, whose involvement was expressed to assist his uncle (Odegbune); he was of good character and positive antecedents. Furthermore, he remained under 18 and sentencing principles required consideration for his welfare and the aim of reducing offending. For Amoah, Mr Charles Sherrard Q.C. submits that this was more of a notional conspiracy than involvement by physically playing a role which assisted others: it was critical to have regard to precisely what he did which was to join in as he got off the bus, run the 200-300 yards and then leave (without going down the steps into the station). 75. Mr Sherrard referred to R v Thomas & others [2010] EWCA Crim 148 in which extended sentences of 8 years (comprising custodial terms of 4 years with extended licences of 4 years) were passed on two offenders in circumstances which he contended were more serious than these. We derive no assistance from the case which is no more than an example of a sentence passed at first instance: those offenders did not appeal this sentence for conspiracy to cause grievous bodily harm but only the concurrent identical (and unlawful) term for violent disorder. It has no authoritative value whatsoever and, in any event, was prior to the issue of guidance by the Sentencing Council intended to reflect an increase in sentences for the most serious non-fatal offences of violence, namely causing grievous bodily harm with intent and wounding with intent consequent upon the increased seriousness that Parliament had accorded to murder and, thus, homicide generally (as demonstrated by the cases to which we have referred). 76. Using the guideline analogously, however, we see force in the submission that for this offence of conspiracy, by these appellants, with the more limited involvement identified by the judge, a different approach was justified from that adopted for those convicted of homicide, especially in the case of Richards. In our judgment, the sentences imposed did not adequately reflect this very different position which, bearing in mind their youth, good character and positive reports did not need to be as long as 7 years. Although we can see an argument for distinguishing between the two because of their different ages, in the end, we have felt it appropriate to defer to the view of the trial judge (who, we repeat, had the opportunity of assessing each offender over the weeks of the trial) and have decided not to do so. 77. Although the limited role that Amoah and Richards played must be reflected in the sentence imposed, any participation in public violence of this nature, involving an intention to cause really serious harm, must inevitably be treated very seriously. In the circumstances, we quash the sentences of 7 years respectively of detention and in a young offender institution and impose sentences of 5½ years in their place. Conclusion 78. The judge had a very difficult sentencing exercise to perform and nothing we have said should be taken as critical of the attention to which he paid to it; we also pay tribute to the careful analysis provided by the single judge. Standing back and reviewing the approach against the backdrop of the entire case and in the light of the arguments now advanced, we have come to the conclusion that the appeal of Odegbune should be allowed: the sentence of detention at Her Majesty’s pleasure remains but the minimum term which he must serve is reduced from 18 years to 16 years simply on the basis that, although his leading role must be underlined (and doubtless led to his conviction for murder), the finding of a specific intention to kill in his case cannot be sustained. It is important to repeat that the passage of this period will not necessarily mean his release: he will only be released when the parole board consider that he does not represent a risk to the public and it is safe to do so. 79. The appeals of Richards and Amoah will similarly be allowed: the periods of 7 years detention under s. 91 of the 2000 Act (in relation to Richards) and in a young offender institution (in relation to Amoah) are quashed and periods of 5½ years detention substituted. 80. No other adjustment to the sentences is appropriate; the remaining renewed applications for leave to appeal against sentence are refused. 81. We cannot leave this case without commenting on the devastation that this terrible incident has caused to so many lives. At the top of the list, by far, is the fact that a 15 year old schoolboy, Sofyen Belamouadden, lost his life and all that it held for him. We have read the impact statements that his parents have provided and we have no doubt that they, their remaining children and their wider family and friends have suffered enormously from the devastation of his death: this loss will scar the family’s lives forever. 82. Albeit entirely self inflicted, it is also worth pointing out that a dozen or so young people of prior good character with academic achievement and promise have also blighted their own lives and impacted on the lives of those who have been supportive of them. The account of this case should be told and repeated to young people everywhere: knives kill people and the effect of the madness of a few hours – or of a moment – will ripple out and destroy or devastate many lives. That is why the courts will and must always place punishment and deterrence at the forefront of any sentencing decision is cases such as these.

2013_05_15-3174.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/711/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2013/711

8c84eac2bafa5faf500614fafe25e32b5adb95558578925011845296f816ebe4

[2011] EWCA Crim 3111

EWCA_Crim_3111

2011-12-13

crown_court

No. 2008/06690/C2 & 2008/06688/C2 Neutral Citation Number: [2011] EWCA Crim 3111 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday 13 December 2011 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) MR JUSTICE SWEENEY and MR JUSTICE SINGH - - - - - - - - - - - - - - R E G I N A - v - JOHN HAASE PAUL BENNETT - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications

No. 2008/06690/C2 & 2008/06688/C2 Neutral Citation Number: [2011] EWCA Crim 3111 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday 13 December 2011 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) MR JUSTICE SWEENEY and MR JUSTICE SINGH - - - - - - - - - - - - - - R E G I N A - v - JOHN HAASE PAUL BENNETT - - - - - - - - - - - - - - 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 A Jones QC appeared on behalf of the Appellant John Haase and the Applicant Paul Bennett Mr D Atkinson appeared on behalf of the Crown - - - - - - - - - - - - - - J U D G M E N T Tuesday 13 December 2011 THE LORD CHIEF JUSTICE: 1. On 19 November 2008, in the Crown Court at Southwark, before Cooke J and a jury, John Haase and Paul Bennett were convicted of conspiracy to pervert the course of public justice. Haase was sentenced to 22 years' imprisonment and Bennett to 20 years' imprisonment. Appropriate orders were made in relation to any time spent in custody on remand. 2. On the same date Deborah Haase (John Haase's wife) and Sharon Knowles were convicted of the same conspiracy. Paul Thompson, although acquitted of the conspiracy, was convicted of possession of firearms without lawful authority. Knowles was sentenced to five years' imprisonment, Deborah Haase to four years' imprisonment, and Paul Thompson to four years' imprisonment. A further conspirator, Hennigan, had earlier pleaded guilty. He was sentenced to 30 months' imprisonment. Due allowance was made for his guilty plea and his lesser role in the conspiracy. These four, Deborah Haase, Sharon Knowles, Paul Thompson and Hennigan were foot soldiers of the conspiracy. John Haase and Paul Bennett were its leaders. 3. Knowles and Haase appealed against sentence with the leave of the single judge. Thompson's application for leave to appeal against sentence was referred directly to the full court, and leave was granted. The appeals of all three were dismissed. Applications by John Haase and Hennigan were refused by the single judge and were not then renewed. Bennett renewed his application following refusal by the single judge and then abandoned it. John Haase now appeals against sentence with the leave of the full court which granted the necessary extension of time. Bennett seeks, through new solicitors, to have his abandonment of an appeal against sentence to be treated as a nullity. For convenience only we shall describe both John Haase and Paul Bennett as "the appellants", although in the result Bennett remains an applicant whose application has been refused. 4. In the judgment dismissing the appeals by Knowles, Deborah Haase and Thompson, the court observed that this was an "elaborate, unusual (if not unique) conspiracy" and that it was not possible to exaggerate its seriousness. 5. The objective of the conspiracy was to enable John Haase and Bennett to escape the level of sentence which would have been appropriate following their convictions for involvement in very substantial drug dealing on an international basis. There was a carefully organised pretence that they had given genuine assistance to the authorities which merited a substantial discount from what would otherwise have been the appropriate sentence for their involvement in the drug dealing conspiracy. 6. They were arrested in July 1993 following a major investigation into the importation of Class A drugs into the country. They were the United Kingdom end of an international drugs smuggling operation which had its origins in Turkey. The evidence against them was very strong. They decided that they would plead guilty, but that the guilty pleas would be tendered in the context of the criminal conspiracy of which they were to be convicted in November 2008. The conspirators decided that mitigation would be advanced to the sentencing judge on the basis that the two defendants (as they then were) could provide, and had provided, information of great value to the police and investigating authorities of major criminal activity by other criminals. They became registered as police informers. 7. Steps were taken to delay the proceedings against them so that the information which they purported to provide could be investigated. 8. Between October 1993 and August 1995 a substantial amount of apparently true information relating to apparent criminal activities by others was provided. Among that information the whereabouts of firearms and related explosive materials was made available. Indeed, no less than 28 substantial firearms' seizures were made on the basis of the information. As the judgment dealing with the appeals of Knowles, Deborah Haase and Thompson made clear, this was all a charade. 9. The appellants had made arrangements (via, among other things, the use of their mobile phones while in custody) for the firearms to be procured and placed in apparently secret hiding places. They then arranged for the whereabouts of the firearms to be disclosed to the authorities so that it would look as though genuine intelligence was being provided by the police informers. In its earlier judgment the court described the conspiracy in these terms: "9. .... It was a major conspiracy of its kind. Over the months seizures were made of firearms which included sub-machine guns, assault rifles, handguns and shotguns. The most important seizure of firearms included 9mm automatic pistols that were found in Holyhead. The purpose was to make it look as though they were destined to be sent to the Republic of Ireland at an extremely sensitive time during the peace process. .... Among other serious elements of the offence, a handgun was smuggled into Her Majesty's Prison Manchester and attributed to a prisoner who was facing a murder trial." In addition to their apparent efforts to enable the police to seize firearms and weapons, the appellants provided significant information about a number of professional criminals who operated in the Merseyside area. 10. All this information was treated as if it were genuine, provided by police informants who were doing their best to assist the investigating authorities in the hope that the extent of their co-operation and assistance would be taken into account when the judge came to sentence them for their involvement in the drug trafficking operation. In truth, it was the appellants who had made arrangements by the use of their mobile phones to ensure that firearms were found in places where they indicated to the investigating authorities they would be found. In other words, although it looked as if genuine intelligence was being provided, it was not. As to their information about professional crime in the Merseyside area, by the time the information was provided it was of some, but very limited, use. The appellants never intended that it should be anything more. 11. The case was listed for plea. The appellants pleaded guilty. The appropriate sentence for the offences they had committed was eighteen years' imprisonment. That was the sentence imposed in open court. The judge, His Honour Judge Lynch, was provided, in camera, with evidence which underlined the valuable information which the two appellants had provided. However, had the sentence pronounced in court reflected the significant discount which would have been merited if the information provided by the appellants had been genuine, it would have revealed to the criminal fraternity that they had provided real assistance to the authorities. That would never do. 12. To resolve the problem, with the agreement of counsel acting for the appellants, the judge imposed the sentences of eighteen years' imprisonment and deliberately made no allowance in his sentencing decision for the assistance he believed that the appellants had provided. But he indicated that in due course he would notify the Home Office, on the basis of the information provided, of the sentence that he would have imposed. That sentence would have been five years' imprisonment. 13. In due course, when that information was provided to the Home Office, the Secretary of State for the Home Department exercised the Royal Prerogative and the appellants were then dealt with as if a sentence of five years' imprisonment had been imposed rather than one of eighteen years' imprisonment. 14. Judge Lynch gave evidence at the trial in 2008. He explained that he was very impressed with the information given to him about the gun caches, the weapon seizures and the other matters, particularly in the light of what was then an increasing level of gun crime in Merseyside during the 1990s. On the basis that the information the appellants had provided was genuine, he had acted within well-established principles when he indicated that if the material had been genuine, the appropriate level of sentence would have been five years' imprisonment. 15. In the end the sentence was treated as one of five years' imprisonment. Subject to appropriate discounts in accordance with the statutory regimes then in force, that was the period that the appellants served in custody. In short, following the sentencing hearing in August 1995, they were released from custody in July 1996. The conspiracy we have described had succeeded. The sentence of eighteen years' imprisonment, which was fully justified and for which no discount was appropriate on the basis of assistance to the authorities because none had been given, was reduced by thirteen years. 16. The two appellant returned to Merseyside. Haase became involved in further criminal activities. In February 2001 he was sentenced to thirteen years' imprisonment for possession of a firearm and money laundering. 17. The early release of the appellants caused considerable concern. In February 2004 Haase provided Peter Kilfoyle MP with an affidavit in which he admitted misleading the judge during the hearing in 1995. However, when he was later interviewed by the police he began by making no comment. In a subsequent interview he denied that the sentencing judge had been misled. He asserted that the information provided was genuine and that he had effectively made up the contents of the affidavit given to Mr Kilfoyle. 18. In 2008 Cooke J took the view that the offence of which the appellants and the co-conspirators were convicted was unique, sophisticated and very serious; it struck at the basis of the entire system of justice. He concluded that this was a deliberate plan to deceive the sentencing court by exploiting the informant system. The appellant Haase was the main organiser. Bennett was younger and marginally less involved than Haase. In assessing sentence, the judge expressly took account of the amount of reduction in sentence achieved by the conspiracy (ie the thirteen years). 19. Mr Alun Jones QC, in support of Haase's appeal against sentence and acting on behalf of Bennett in his application, accepted that Haase's conviction for such a grave offence merited a long sentence. Nevertheless, he submitted that a sentence of 22 years' imprisonment, which took effect towards the end of the sentence of thirteen years' imprisonment imposed in 2001 is excessive -- certainly if looked at as a total sentence of 35 years' imprisonment imposed on the basis of the offences before the court in 1995, 2001 and 2008. He also suggested that the sentence was wrong in principle. He submitted that the sentence fell within the maximum sentence available following conviction for the particular conspiracy of which the appellants were convicted. However, he contended that it exceeded, or failed sufficiently to attend to the maximum sentence of ten years' imprisonment permitted for offences of conspiracy to defraud by virtue of section 12(3) of the Criminal Justice Act 1987 , as well as the maximum terms available for perjury (seven years) and other offences of dishonesty and fraud (fourteen years). He also suggested that the sentence of 22 years' imprisonment constituted a breach of Article 5 of the European Convention on Human Rights; alternatively, it was based on too much uncertainty because there is no clear point by reference to statute or authority or practice to indicate that such a sentence might be imposed or would be appropriate. Accordingly, the sentence fell within the impermissible ambit of arbitrariness. 20. In developing his interesting argument, Mr Jones submitted that in the context of the facts of the case the conspiracy to pervert the course of justice was a conspiracy to defraud. For present purposes, as we indicted when the appeal began, we approached his submission on the basis that was accepted by the court which considered the application for leave to appeal against conviction. In giving the judgment of the court on that occasion, Moses LJ observed: "Mr Jones is undoubtedly right in pointing out that it is possible to complete a conspiracy to defraud by cheating and deceiving public officials in the exercise of their public functions so that they carry out their duty in a way that, but for the deception, they would not. That that is a correct principle is made good in the decision of the court in R v Vreones [1890] 1 QB 360 . The decision of the court was followed in cases such as Scott v Metropolitan Police Commissioner [1975] AC 819 . It is not, in order to make good conspiracy to defraud a public official, necessary to prove an intent to cause or to risk economic loss, and that conspiracy to pervert the administration of public justice will in almost every case include a conspiracy to defraud is well established. It will not of course include any conspiracy to defraud in a case such as witness intimidation." 21. Mr Jones submitted that on this basis the offence amounted to, and could have been indicted as, conspiracy to defraud. If so, the maximum term of ten years' imprisonment would have applied. He drew attention to a decision of this court in R v Bright [2008] 2 Cr App R(S) 102, where the Court of Appeal held that it might sometimes be appropriate for an offender who has been convicted of an offence which fell within the definition of a different offence with a lower maximum sentence to be sentenced as if that lower maximum applied. Mr Jones provided, in writing, a number of examples. He went on to submit that the principle applied with further force where the offence charged was a residual common law offence in which the appropriate maximum penalty had never been directly considered by Parliament. He suggested that the general policy in relation to sentencing is that an inchoate offence should not be punishable by a greater penalty than the completed offence. For this purpose he drew attention to the maximum sentence provided by statute in relation to obtaining property by fraud or dishonesty, and the seven year maximum for perjury or for conspiracy to commit perjury. 22. From all this, Mr Jones sensibly accepted that the conduct of the appellant went further than an agreement to give a false account to a court because it included an agreement to deceive those who investigated the original offence, and other authorities, including the Home Secretary and those responsible at the Home Office for advising the Home Secretary. Nevertheless, he argued that all these matters helped to give an indication of the appropriate parameters in which the sentencing decision had to be reached. 23. The difficulty with Mr Jones' careful submission is readily identified and can be briefly analysed. The appellants were charged with, and convicted of, conspiracy to pervert the course of public justice. Even if they might have been charged with conspiracy to defraud, we have not the slightest doubt that on the facts of the instant case the conspiracy with which they were charged, and of which they were ultimately convicted, was entirely justified. It was the offence which they had committed. It was the charge which most appropriately fitted the facts and the overall criminality that was involved. For that offence, properly brought, the maximum sentence is life imprisonment. That is entirely certain. Parliament has not chosen to change this maximum sentence. The court therefore had to fix a sentence to reflect the criminality involved in this offence in the context of a maximum sentence of life imprisonment. 24. It assessing these matters it is worth emphasising that the criminality here was not merely the sophisticated conspiracy by professional criminals which led investigating officers and, on the basis of their assessment, the sentencing judge and ultimately the Secretary of State, to believe that a major discount from the appropriate sentence had been earned by the appellants. The criminality went much further. The conspiracy, run by the appellants from prison, depended on accomplices who were outside the prison to obtain possession of and then travel with firearms to different locations to deposit them where the police would eventually find them on the basis of the information fed to the police by the appellants (who will have been fed the information to give to the police by the accomplices who had deposited the guns). The handling of such a weapon on each occasion was in itself a serious offence which merited a significant sentence of imprisonment. In short, the criminality on which the achievement of the objective of the conspiracy depended was itself extremely serious, independent of the perversion of the course of justice. The conspiracy offence alleged against the appellants therefore encapsulated very grave criminality indeed. 25. We have considered Mr Jones' submission that the effect of the sentence of 22 years' imprisonment being ordered to run consecutively to the sentence imposed in 2001, with the appellant Haase now aged 62, meant that the overall sentence was one of 35 years' imprisonment. If that is so, and given that the custodial element of the sentence of thirteen years' imprisonment imposed in 2001 had nearly come to an end, the overall sentence reflects the reality that the appellants had got away with their crimes for a very long time. 26. The starting point in a case like this is to ensure that a defendant will be wholly deprived of the benefit of his crime. In this case an eighteen year sentence was replaced by a five year sentence. The benefit had been thirteen years. To that starting point for their involvement the accomplices, who did not benefit in the slightest from the reduction in the appellants' sentences (save indirectly in the case of Haase's wife) and who were the foot soldiers in this conspiracy, were sentenced to five, five and four years' imprisonment respectively. On appeal those sentences were not, and for the reasons given in the judgment could not, be reduced. That part of their sentence which reflected the conspiracy was rightly fixed at a high level. For the appellants, who were the leaders of the conspiracy, it was inevitable that higher sentences should be imposed than the sentences imposed on their foot soldier accomplices. Indeed, it is worth reflecting that if the judge had not had the total sentence in mind, he might very well have taken the view that on this part of the case (ignoring the advantage gained by the appellants in the sentencing decision in 1995) and reflecting on this part of their criminality, the sentences might very well have been longer. The difference between nine years on Haase and less on Bennett, contrasted with the sentences of five, five and four years on Knowles, Deborah Haase and Thompson respectively, would otherwise have been strange and insufficient. 27. In the end the sentences reflect depriving the appellants of the benefit which they had secured by their conduct, a further sentence sufficient to reflect their criminality in the organisation and the running of the conspiracy, and to deter others from becoming involved in conspiracies of this kind. In our judgment, notwithstanding the careful submission made by Mr Jones, the sentences on the two appellants are not open to criticism. They are certainly not open to the criticism that in the circumstances they are excessive. 28. Accordingly, the appeal of Haase will be dismissed, and the application by Bennett to have his abandonment treated as a nullity will be refused.

2011_12_13-2892.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/3111/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/3111

684f250cf4c552ef84eb2edb2e666f9311333b503d3c80de81ca77d412e494da

[2006] EWCA Crim 17

EWCA_Crim_17

2006-01-26

supreme_court

Neutral Citation Number: [2006] EWCA Crim 17 Case No: 2005/5620/B3 2005/5621/B3 2005/5818/B3 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LEEDS CROWN COURT MR. JUSTICE FIELD Royal Courts of Justice Strand, London, WC2A 2LL Date: 26/01/2006 Before : LORD JUSTICE DYSON MR JUSTICE TOMLINSON and MR JUSTICE ANDREW-SMITH - - - - - - - - - - - - - - - - - - - - - Between : REGINA Respondent - and - CAREY, C AND F Appellant - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2006] EWCA Crim 17 Case No: 2005/5620/B3 2005/5621/B3 2005/5818/B3 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LEEDS CROWN COURT MR. JUSTICE FIELD Royal Courts of Justice Strand, London, WC2A 2LL Date: 26/01/2006 Before : LORD JUSTICE DYSON MR JUSTICE TOMLINSON and MR JUSTICE ANDREW-SMITH - - - - - - - - - - - - - - - - - - - - - Between : REGINA Respondent - and - CAREY, C AND F Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Simon Myerson QC and Heather Weir (instructed by West Yorkshire CPS) for the Appellant Michael Harrison QC and M. D Colborne (instructed by Yasmin and Shaid ) for Claire Carey Gareth Evans QC and Stephen Wood (instructed by Messrs Lumb and Mcgill ) for C Paul Watson QC and Simon Myers (instructed by McManus and Seddon ) for F Hearing date : 12 th January 2006 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Dyson : This is the judgment of the court. 1. These three appellants were tried at Leeds Crown Court on an indictment which charged them with manslaughter (count 1) and affray (count 2). On 30 September 2005, they were all convicted on count 1 and, save for C, count 2 (she had already pleased guilty to count 2). On 19 October, they were sentenced as follows. Claire Carey (who is now aged 19) was sentenced to detention for public protection for manslaughter, a minimum of 2 years being specified under section 82 A of the Powers of Criminal Courts (Sentencing) Act 2000 , and to a concurrent extended sentence of 3 years for affray, comprising a custodial term of 2 years’ detention and 1 year’s extended licence. C (who is now aged 15) and F (who is now aged 17) were both sentenced to 24 months’ detention and training order for manslaughter and to a concurrent 18 months’ detention and training order for affray. 2. All three appeal against conviction by leave of the trial judge (Field J), who granted a certificate of fitness for appeal under section 11 (1A) of the Criminal Appeal Act 1968 in these terms: “[1] I directed the jury in accordance with my rulings: (a) that it was enough to establish manslaughter that all sober and reasonable persons would have realised that the actual infliction of violence on Aimee would subject her to some physical harm; (b) that it was not necessary to prove that the physical harm actually inflicted was a cause, or a substantial cause, of death; and (c) that it was immaterial that the defendant could not have known or foreseen either that the affray or any physical harm actually inflicted upon Aimee might cause her to suffer a fatal ventricular fibrillation. [2] I did not direct the jury that it was necessary for them to be sure that the individual acts or threats of violence of the defendant, constituting her part in the affray, were in themselves a substantial cause of death.” 3. At the outset of the hearing of the appeal, we also gave them leave to appeal against their convictions on the other grounds on which they relied to which we shall come in due course. Field J refused to certify that the case was fit for appeal on sentence. Their application for leave to appeal against sentence was referred by the Registrar to the Full Court. 4. There was a co-accused, H. He was acquitted on both counts. The facts 5. By the close of the prosecution case, the material facts were not substantially in issue. On 7 June 2005, the deceased Aimee Wellock (aged 15) and three friends, James Devanney, Shelley Robinson and Gemma Doyle went for an early evening walk in the Chellow Dene area of Bradford. This is a local beauty spot near a reservoir. The three appellants had met H earlier that day. They had spent the afternoon by the reservoir drinking alcohol. 6. At about 8.30 pm, Aimee and her group met the appellants’ group by chance near some steps leading down to the reservoir. Carey and H asked Aimee’s group whether they had any cigarettes. When Aimee’s group said that they had none, they started poking fun at them. One of them referred to the fact that Aimee danced at a local stage school and called her the “Spotlight Fairy”. They also made fun of Gemma and Shelley, calling them “posh”. H then squared up to James and asked him if he wanted a smack and falsely accused James of beating him up outside a fish and chip shop. As Aimee’s group moved down the steps to get away from them, H shouted “shall we throw them in the water?” C said to Aimee “if I hit you would you hit back?” Carey pointed to Shelley and said “oh she looked really scared”. At some point, referring to Shelley, Hsaid “leave her, she looks really scared”. But he also said to the others “you wouldn’t dare bang one of them”. The appellants then began to laugh and one of them told Aimee’s group that they had better stop or else they would “bang” them. 7. Aimee’s group tried to move away and the appellants followed them. Carey then without any justification struck James from behind and he moved away from both groups. Two of the female appellants (one of whom was C) walked behind Gemma and stood on her flip-flops. Aimee’s group then came to a low broken-down wall and the appellants moved towards them, hemming them in. F asked Aimee for her charity wrist band, which she handed over. C kept telling them to stop looking at her. Carey then punched Shelley in the face three times, causing her to fall over. She carried on the assault by kicking her on the nose, mouth and top of the right arm while she was down. She had her back to the other appellants at this point. 8. C then attacked Aimee, who was about 10 metres away from where Shelley was being assaulted. She pulled her head back and punched her in the face. Aimee dropped to the ground cowering. F attacked Gemma by punching her in the face. She pushed her to the ground and started hitting her in the back of the head and pulling her hair and hitting her across the face. The attack on Aimee and her friends lasted about one minute. It stopped when two boys arrived on the scene on a motor-bike. The boys told the assailants to stop and they ran away. 9. Aimee was the first of the victims to run off. She ran towards some houses covering a distance of 109 metres over rough grass and up a slight slope. The next person of Aimee’s group to run was Gemma. Shelley was picked up by one of the boys on the motor-bike. Gemma and then Shelley caught up with Aimee and the three of them started to walk. Shelley said that she felt sick and Aimee said that she felt faint. Shelley and Gemma tried to support Aimee and help her along, but tragically Aimee collapsed. She died that same night. 10. Two medical experts were called on behalf of the Crown at the trial. Dr Survana, a consultant histopathologist, who examined Aimee’s heart and Professor Milroy, who conducted the post mortem. They said that the immediate cause of death was ventricular fibrillation (dysrhythmia). When ventricular fibrillation occurs, the heart stops pumping blood to the vital organs. They said that collapse would have followed within a few seconds of the onset of ventricular fibrillation. She might not have died if she had not run 109 metres. Both doctors accepted that the event most proximate to the collapse and therefore most likely to have been the precipitating factor which led to Aimee’s death was her running away from the incident. 11. The medical evidence established that Aimee suffered from a severely diseased heart, which condition was congenital and progressive. Her vulnerability was unknown to the doctors who had treated her for certain medical conditions which affected her skin, teeth and hair. The lay evidence established that Aimee was physically fit and sufficiently robust to participate in dancing and other physical activities appropriate to her age. Her close family were unaware of any physical limitations to her ordinary activities. After being assaulted by C, she showed no signs of physical injury or distress. Shelley said “when I was running there was nothing apparently wrong with Aimee. When I caught up we started walking…We carried on and then all of a sudden Aimee collapsed”. Gemma said: “When I caught up with her there did not seem to be anything seriously wrong with her, though she was scared. Then all of a sudden she said she felt faint and collapsed.” 12. The physical injuries suffered by Aimee were described by Professor Milroy. There was a 0.5 cm area of reddening under the right eye; bruising on the bridge of the nose of 0.8 cm and a red bruise on the back of the right ear 0.6 x 0.2 cm. Professor Milroy described them as relatively small. 13. Shelley sustained a contusion on her right upper arm 4x 3 cms; swelling of the left cheek bone; a tender left side jaw; and tenderness in the area of the chin. She did not go to her doctor. Gemma suffered tenderness in the right side of the back of her head, nasal bone area, left side of her lower chest and a tender and swollen left cheek bone. James Devanney was hit from behind (he did not know precisely where): he said that he did not really feel it. 14. None of the appellants gave evidence. Mr Michael Harrison QC told us that, at any rate so far as Carey was concerned, this was because by the close of the Crown case, there were no material outstanding issues of fact. Submissions of no case to answer 15. At the close of the Crown case, it was submitted on behalf of the appellants and H that there was no case to answer in relation to count 1 and on behalf of Carey, F and H that there was no case to answer in relation to count 2. The Crown case in a nutshell was that all the appellants were guilty of affray and that the affray was an unlawful dangerous act which caused Aimee’s death, so that all the appellants were guilty of unlawful act manslaughter. The judge refused to withdraw either count from the jury. It is submitted on behalf of all the appellants that the judge should have held that there was no case to answer in relation to count 1, and on behalf of Carey and F that he should have held that there was no case to answer in relation to count 2. Since affray is the unlawful act relied on by the Crown to found the charge of manslaughter, we shall start by considering whether the judge was right to reject the submissions in relation to count 2. Affray 16. So far as material, section 3 of the Public Order Act 1986 provides: “(1) A person is guilty of affray if he uses or threatens unlawful violence towards another and his conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety. (2) Where 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of sub-section (1). (3) For the purposes of this section a threat cannot be made by the use of words alone. (4) No person of reasonable firmness need actually be, or be likely to be, present at the scene. (5) Affray may be committed in private as well as public places.” Section 6(2) provides: “A person is guilty of violent disorder or affray only if he intends to use or threaten violence or is aware that his conduct may be violent or threaten violence.” 17. Mr Harrison (whose submissions were adopted by Mr Paul Watson QC) submitted to the judge that no reasonable jury, properly directed, could have convicted on count 2. He emphasised the fact that the person of reasonable firmness present at the scene was notional, not actual, and is not the person towards whom unlawful violence is used or threatened. The test is objective and does not take account of unusual vulnerability arising out of any personal characteristics of persons actually present. He submitted that the threshold of liability must not sink so low that limits to the reach of section 3 are undermined. He referred to the common law definition of affray and the re-affirmation by the House of Lords in Taylor (Vincent) [1973] AC 964 that affray involves a degree of violence sufficient to terrify a person of reasonably firm character. Mr Harrison did not go so far as to submit that a jury should be directed in terms of the old common law rather than section 3 of the 1986 Act . But he drew attention to certain passages in the Law Commission Report “Offences relating to Public Order” (No 183) on which the 1986 Act was based, viz: “3.29 The element of terror distinguishes affray from offences against the person and emphasises that not all acts of violence against the person amount to an affray; it also marks the character of the offence as one against public order. It was for these reasons that we proposed in our Working Paper that this element should be retained in any new offence, a proposal which was approved by most of our commentators. The great majority also approved our proposal to express this element in terms of “putting in fear” rather than “terror”, which in our view was unsuitable as a term for legislation;… Any distinction between “putting in fear” and “terror” is, we think, marginal, and we adhere to the view that this terminology is more appropriate for use in new legislation. 3.32 … The essence of the offence which we are recommending is that the defendant uses or threatens violence to the person of another of such a degree that it is capable of having serious repercussions upon the public peace, and as we said in our Working Paper – “the function of the bystander is really to act as a measure of the requisite degree of violence …” To this, we would only add that in devising a suitable test for a new offence, care must be taken to ensure that (as Lord Hailsham stressed in the context of affray at common law) [in Taylor , and §3.38 above] the requirement here is a genuine element of the offence which cannot readily be watered down: any such dilution would weaken the status of the offence as one pertaining to public order.” 18. Mr Harrison advanced a number of submissions to the judge. Before us, his principal submission is that the violence and threats of violence (other than by use of words alone) deployed in the present case were not sufficiently serious to have caused a person of reasonable firmness present at the scene to fear for his personal safety. He argues that the conduct of the two boys on the motor-bike, who were clearly not frightened by the appellants’ behaviour, provides some evidence that a notional person of reasonable firmness present at the scene would not have feared for his personal safety. He says that, taken at its highest and as a whole, this was unpleasant unlawful violence, but it was short-lived and resulted in physical harm at the low end of the scale: it did not satisfy the test in section 3 of the 1986 Act . In truth, the offending in this case comprised a series of assaults. To characterise it as an affray would be, to use the language of the Law Commission paper, to “weaken the status of the offence as one pertaining to public order”. 19. On behalf of the Prosecution, Mr Simon Myerson QC seeks to uphold the decision of the judge. The judge said: “…. In my judgment, beginning with the blow landed on James by Claire Carey or the treading on Gemma’s flip flops whichever was the earlier, what the defendants did on the evidence towards Aimee and her group could properly found a conclusion by the jury properly directed that a person of reasonable firmness present at the scene would fear for his personal safety. The defendants were acting as a group. They had been drinking and would have appeared to be looking for a violent confrontation. They picked on members of the public whom they really did not know and on whom, having followed them menacingly, they inflicted wholly unjustified, vicious physical violence, even if the assaults on the girls were over in about a minute and the violence was such that no significant injuries resulted. Accordingly, I reject Mr. Harrison’s second submission.” 20. Like the judge, we do not find assistance in the common law definition of affray, nor do we consider that section 3(1) and (2) should be interpreted by reference to para 3.29 of the Law Commission paper. The language of the subsections is plain and should be given its ordinary unglossed meaning. The effect of the actual or threatened unlawful violence on a person of reasonable firmness present at the scene must be “fear for his personal safety” rather than “terror”. In our view, the judge was right to reject the submission of no case to answer. We accept that this incident was short-lived and that the injuries actually inflicted were comparatively slight. But the appellants were three apparently fit teenage girls, the oldest 18 years of age at the time, acting in a very aggressive manner. Each of them was unquestionably using and threatening (not only by words) violence towards one or more of Aimee’s group. For the reasons given by the judge, it was open to the jury to conclude that a person of reasonable firmness present at the time would have feared for his personal safety. 21. Before we turn to the issue of manslaughter, we need to deal with two criticisms made by Mr Harrison of the summing up in relation to affray. He submits that the judge was in error in that (i) he did not give appropriate directions as to the position of the hypothetical bystander of reasonable firmness, and (ii) did not direct the jury that it was unsafe for them to rely on the evidence of James Devanney. 22. The judge directed the jury in the following terms: “The Prosecution must prove that intending to do so, he or she used or threatened, other than by words alone, to use violence towards Aimee and her group of friends and his or her conduct was such as would cause her person of reasonable firmness present at the scene to fear for his or her personal safety. To the extent that the Prosecution proved [this] in respect of two or more defendants present at the scene, it is the conduct of them taken together that must be considered when deciding whether their conduct would cause a person of reasonable firmness present at the scene to fear for his or her personal safety. No person of reasonable firmness need actually have been, or had been likely to have been present at the scene. You must imagine a hypothetical man or woman of reasonable firmness witnessing such conduct of the defendants that you find to have been violent or to threaten violence towards Aimee and her group. It is important to appreciate that the person or persons to whom unlawful violence is used or threatened is not the hypothetical person present at the scene. In other words, the hypothetical person present at the scene is someone watching the incident that is not the victim of the violence or threats of violence or standing so close as to be in effect a participant. Thus it does not follow that the fact that Aimee, Shelley Robinson, Gemma Doyle and James Devaney were very frightened by the incident, that the hypothetical person present at the scene would have feared for his or her personal safety. He may, he or she may or may not have had this fear, it is a matter for you. Note too that the test is “would cause” not “could” or “might cause”. Bear in mind the age and number of the attackers, and the victims, and the nature and scale of the violence and threats of violence that you find occurred during the incident from its outset to its conclusion. Ask yourselves if the defendants would have appeared, to the hypothetical person, to have been acting as a group or gang and looking for a violent confrontation. It is for you to decide when during the incident the defendants began to be violent or to make threats of violence towards Aimee and her group and when the violence and threats of violence ended. However, since for the purposes of the crime of affray, a threat cannot be made by words alone, you may well think that there cannot have been an affray until at the earliest Gemma’s flip-flop’s were trodden on. Now, ladies and gentlemen, I have suggested the two defendants who trod on Gemma’s flip-flops, those names are not admitted; the people named in my instructions to you are people who do not admit that they trod on the flip-flops, so I want you to strike through with a pencil those names. I will just remind you that Gemma Doyle, when she was asked who it was who trod on her flip-flops identified the girls by reference to a piercing to the lips. One of the girls who trod on the flip-flops was C, it is not clear who the others were, who the other girl was out of the two. Gemma did say that the blonde girl was walking behind the two who were treading on the flip-flops at this point in time. So the evidence is that there were two girls who trod on the flip-flops, one of whom was C. The Prosecution have throughout based their contention that H was guilty of affray and of manslaughter on the allegation that he kicked Aimee when the three girls were being attacked. If you are not sure that Hkicked Aimee when the three girls were being attacked, you must acquit him on both counts. If you are sure that he kicked Aimee, you should go on to consider in the light of the evidence as a whole and my directions whether he is guilty or not guilty of affray and manslaughter.” 23. In our judgment, these directions as to the position of the hypothetical bystander of reasonable firmness were accurate and sufficient. Mr Harrison makes the particular point that the judge did not remind the jury of the fact and potential significance of the intervention of the motorcyclists. No doubt this was a matter which was emphasised by counsel in their final speeches to the jury. It was an obvious point to make that it seems that the two young motorcyclists were not deterred from intervening, but it is a matter of speculation whether they were frightened when they did so. Equally, if they were not frightened, that indicates no more than that they were not in fear for their own safety. In any case it was not incumbent on the judge to remind the jury of every point relied on by the defence. He was not in error for failing to remind them of this point. 24. As regards the second criticism, the judge identified James Devanney as crucial to the Crown case against H, and by implication not crucial to the case against the appellants. He said “His evidence is therefore crucial to the Prosecution’s case against H and you must ask yourselves whether it is sufficiently reliable to make you sure that H did indeed kick Aimee”. He rightly made no such statement as to the importance of James Devanney’s evidence in relation to the appellants. The judge treated the case against H separately (transcript 11/18), no doubt because it depended on the evidence of James Devanney, whereas the case against the others did not. He then identified the errors in his evidence comprehensively and in unequivocal terms. It is clear that the jury heeded the judge’s directions because they acquitted H. In our judgment, there is no substance in the second criticism. 25. It follows that the appeals against the conviction on count 2 are dismissed. Manslaughter 26. This being a case of alleged unlawful act manslaughter, it is not in issue that the Crown had to prove three elements, namely (i) that there was an unlawful act, (ii) which was dangerous in the sense that the unlawful act subjected Aimee to the risk of physical harm, and (iii) that the unlawful act caused her death. 27. At the close of the Crown case, Mr Harrison submitted that count 1 should be withdrawn from the jury. He contended that causation was not made out because (i) there was no evidence that the affray caused Aimee to run away (and thereby suffer the ventricular fibrillation), and (ii) in any event, there was no evidence that anyone would have recognised that running as she did would subject Aimee to the risk of harm. The judge rejected both arguments. He held that causation was a question of fact for the jury. As regards the second argument, he said that “the necessity of establishing at least a risk of physical harm is a self-contained requirement that has nothing to do with causation, but is concerned only with the dangerousness of the unlawful act. If the act was unlawful and dangerous in the R v Church sense and caused the deceased’s death, unlawful act manslaughter will be made out.” 28. The unlawful act relied on in this case is affray. It is important to emphasise at the outset that the Crown chose not to rely on C’s assault on Aimee as the unlawful act in question. They could have attempted to secure convictions for manslaughter against C on the basis that she was Aimee’s direct assailant and against the other defendants on the basis of joint enterprise liability for that assault. The judge invited the Crown to consider putting the case in that way, but Mr Myerson (on instructions) said that the appropriate way to charge the defendants was on the basis that the unlawful act was affray, and on that basis alone. That was the only way to give effect to the public order nature of the offending and the appropriate way in which to reflect the fact that this was a group offence. 29. The second element of the offence of unlawful act manslaughter is that of dangerousness. The act must be recognisably dangerous. This is a relatively recent limitation on unlawful act manslaughter and was clearly articulated in those terms by the Court of Appeal in Larkin [1943] 1 All ER 217 , where the court said: “Where the act which a person is engaged in performing is unlawful, then if at the same time it is a dangerous act, that is an act which is likely to injure another person, and quite inadvertently he causes the death of that other person by that act, then he is guilty of manslaughter.” 30. As was explained in the Law Commission Paper “Involuntary Manslaughter” (No 135) at para 2.21, this formulation was unsatisfactory as a complete definition of the offence in that the court not only did not specify who must have been endangered, but also did not explain whether the test for “danger” was objective or subjective. The position was clarified in Church [1966] 1 QB 59 , 70B where this court said: “…an unlawful act causing death of another cannot, simply because it is an unlawful act, render a manslaughter verdict inevitable. For such a verdict inexorably to follow, the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting there from, albeit not serious harm.” 31. The Church test was subsequently approved by Lord Salmon in Newbury [1977] AC 500 , 507C-E, saying that he was sure that in Church the court did not intend to differ from or qualify anything that had been said in Larkin. We are inclined to agree with Mr Harrison that, pace Lord Salmon, there is a difference between the tests for dangerousness set out in these two cases. Larkin requires that the act is likely to injure another; Church only requires a risk of some harm resulting. As Mr Harrison points out, as a matter of ordinary language, there is a difference between foresight that an act is likely to injure another, and foresight that there is a risk of some harm resulting. But the difference is not material in the present case. We propose to adopt the Church formulation on the grounds that it is more recent, was expressly approved in Newbury and is more satisfactory (see para 30 above). 32. In later cases, the Court of Appeal explained both the type of harm which should have been foreseen, and the knowledge and attributes which could be ascribed to the reasonable person by whose response it is determined whether the act was dangerous. Two cases are of particular relevance to the present appeal. In Dawson (1985) 81 Cr App R 150 , two masked men, one carrying a pickaxe handle and another armed with a replica gun, while a third kept watch, demanded money from a 60 year old petrol filling station attendant who, unknown to them suffered from heart disease. Shortly after the men fled, the attendant collapsed and died from a heart attack. Expert evidence was to the effect that this had probably been brought on by shock, following the attempted robbery. The men were charged inter alia with manslaughter. On the question whether emotional shock could amount to harm in the context of manslaughter, the Court of Appeal was prepared to assume that harm includes “injury to the person through the operation of shock emanating from fright” (p 156). With regard to the knowledge that could properly be attributed to “all sober and reasonable people”, the court said: “This test can only be undertaken upon the basis of the knowledge gained by a sober and reasonable man as though he were present at the scene of and watched the unlawful act being performed and who knows that, as in the present case, an unloaded replica gun was in use, but that the victim may have thought it was a loaded gun in working order. In other words, he has the same knowledge as the man attempting to rob and no more. It was never suggested that any of these appellants knew that their victim had a bad heart. They knew nothing about him.” 33. In his summing up, the judge did not make it clear to the jury that the knowledge that they could ascribe to the sober and reasonable person did not include knowledge of the victim’s heart condition (because it was not known to the appellants). The appeal against conviction was, therefore, allowed. It is self-evident and implicit in the court’s decision that the question whether an attempted robbery committed in the circumstances that occurred in Dawson was a dangerous act as explained in Church might depend upon whether the victim was a healthy 60 year old man (as he appeared to be) or a man with heart disease (as he in fact was). An attempted robbery committed in the circumstances that occurred in Dawson would not inevitably be recognised as subjecting an apparently healthy 60 year old man to the risk of shock leading to heart attack. 34. The second case is Watson [1989] 1 WLR 684 . The victim was an 87 year old man who lived alone in a flat and suffered from a serious heart condition. Late one night, the appellant and another man threw a brick through the flat window and woke up the victim. They abused him verbally and made off without stealing anything. He died 90 minutes later as a result of a heart attack. The appellant pleaded guilty to burglary and he was tried on a charge of manslaughter. It was submitted on his behalf that the knowledge to be attributed to the sober and reasonable person was confined to that of the appellant at the moment of entry. There was no evidence that at the moment of entry the appellant knew the age or physical condition of the victim. The trial judge directed the jury that they were entitled to ascribe to the bystander the knowledge which the appellant had gained during the whole of his stay in the house. It was held by this court that this was not a misdirection. The court said that the unlawful act was the “whole of the burglarious intrusion….That being so, the appellant (and therefore the bystander) during the course of the unlawful act must have become aware of Mr Moyler’s frailty and approximate age”. The appeal against conviction was allowed for other reasons. Since the offender became aware when carrying out the burglary that the victim was an obviously frail 87-year old man, the jury were entitled to take this into account when deciding whether the robbery satisfied the dangerousness test because of the risk of the victim suffering a heart attack as a result of shock. 35. Thus, in considering whether the unlawful act is dangerous in the context of manslaughter, it may be relevant to have regard to the attributes of the victim. Of course, a punch which causes a person to fall will almost inevitably satisfy the test of dangerousness. That is why a defendant who punches a victim who falls and suffers a fatal head injury as a result is guilty of manslaughter. It is foreseeable that the victim is at risk of suffering some physical harm from such a punch (albeit not serious harm), and that is sufficient. Physical harm includes shock. The reason why the death resulting from the attempted robbery of the 60 year old petrol station attendant was not manslaughter was that the attempted robbery was not dangerous in the relevant sense. It was not foreseeable that an apparently healthy 60 year old man would suffer shock and a heart attack as a result of such an attempted robbery. On the other hand, the jury properly found that it was foreseeable that an obviously frail and very old man was at risk of suffering shock leading to a heart attack as a result of a burglary committed at his home late at night. 36. At the close of the evidence in the present case, there was discussion between the judge and counsel as to the directions that the judge should give to the jury. Very sensibly, the judge had prepared draft directions. Following the discussion, he distributed these to the jury at the start of his summing-up and they formed the basis of what he had to say on the issues of law that arose. They are a model of clarity as indeed is the summing up itself. Mr Myerson had submitted to the judge that one way in which it was open to the jury to consider the issue of manslaughter was on the basis that the affray had caused Aimee to suffer physical shock from which she died. In our judgment, if the facts had arguably supported such a case, it would have been proper to leave manslaughter to the jury on that basis. Mr Harrison rightly conceded that there may be circumstances in which a verdict of unlawful act manslaughter can properly be entered where the alleged unlawful act is affray. Suppose that a very old and obviously frail man is the victim of an affray in which a number of youths participate; and suppose further that he is not physically assaulted, but each of the youths uses and/or threatens violence (but not by words alone) such that a person of reasonable firmness present at the scene would fear for his personal safety; and finally suppose that, as a result of the incident, the man suffers a heart attack from which he dies. On such facts, the jury might well conclude that the affray would be dangerous in the sense of being an act which sober and reasonable people would recognise subjected the old man at least to the risk of some harm resulting from it (shock), and so could properly find the youths guilty of manslaughter. The case would be analogous to Watson . 37. But, in our view quite rightly, the judge declined to leave the manslaughter charge to the jury on the basis that the affray had caused Aimee to suffer shock leading to her heart attack. In his summing up, the judge explained to the jury that they should “take shock out of this case” because the difference between emotional upset, which is not physical harm, and shock, which is, is a “grey area”. We agree with this observation, but would go further. Even if the affray had caused Aimee to suffer shock as opposed to emotional upset, the affray lacked the quality of dangerousness in the relevant sense. This is because it would not have been recognised by a sober and reasonable bystander that an apparently healthy 15 year old (or indeed anyone else present) was at risk of suffering shock as a result of this affray. In our view, this affray was less dangerous in the relevant sense than the attempted robbery of the 60 year old petrol station attendant in Dawson . The risk of that victim suffering shock leading to a heart attack would have been recognised by a sober and reasonable person as more likely than the risk of Aimee suffering shock leading to a heart attack as a result of the affray. 38. But the judge did accept the submission of Mr Myerson that it was sufficient that, in determining whether the affray subjected Aimee to the risk of at least some physical harm, it was legitimate to aggregate the infliction of violence on her two friends to the violence on herself, and to decide that that aggregated violence satisfied the test of dangerousness. The only remaining question was whether that aggregated violence was a cause of death. That this was the judge’s view appears more clearly in his summing up than in the judgment that he gave when he ruled on the submission at the close of the Crown case. It is convenient at this point to refer to how the judge directed the jury in relation to count 1. 39. The judge directed the jury in the following terms: “I move on to Count 1, manslaughter. In respect of each defendant, the Prosecution must prove that, (1) he or she committed an unlawful act; (2) the unlawful act was one which all reasonable and sober people would inevitably realise must have subjected Aimee to the risk of some physical harm; and (3) the unlawful act committed by the defendant cased Aimee’s death. Unlawful Act. The unlawful act relied on by the Prosecution is the crime of affray. Even in respect of the defendant whose case you are considering, you are sure that he or she is guilty of affray, the Prosecution will have proved element one in respect of that defendant. If you acquit a defendant of affray, you must also acquit him or her of manslaughter. Risk of physical harm. The risk of harm to Aimee which all reasonable and sober people must realise the unlawful act subjected her to, must be a risk of physical harm. If you find any of the defendants guilty of affray, the actual infliction of violence on Aimee and her two friends is bound to be part of the affray and you may well think that all reasonable sober people would realise that that part of the unlawful act must have subjected Aimee to at least the risk of some physical harm in the form of bodily injury. When Mr. Myerson was addressing you, he contended that Aimee faced a risk of physical harm in the form of shock. I have come to the conclusion that you ought not to deal with the case on the basis that there was risk of shock to Aimee. The evidence in my judgement is not sufficient for you to take the case on that basis. The difference between emotional upset, which is not physical harm, and shock is a grey area and so take shock out of this case and concentrate on the risk of bodily injury to Aimee involved in the affray, if you find was an affray, bearing in mind the violence that was inflicted on Aimee and her two girl companions. Causation. The Prosecution must prove that the affray was a substantial, that is to say more than an insignificant, cause of Aimee’s death, that actually all occurrences have more than one cause. The Prosecution do not have to prove that the affray was the sole or principle cause of death. The blows inflicted on Aimee were not the direct cause of her death as they would have been if she had suffered a direct and fatal brain injury or had bled to death. The Prosecution contend that the affray nonetheless caused Aimee’s death because it put Aimee in a very stressful situation that led to an adrenaline rush that stressed her heart to the point that it became overloaded, thereby triggering a ventricular fibulation. The Prosecution rely on the evidence of Doctor Survana and Professor Milroy. Both of these medical experts said that in their opinion, it was probably the incident that caused the ventricular fibulation. They based this opinion on the history that Aimee had led an active and normal life right up to the incident and what happened during the incident and the closeness in time between the incident and Aimee’s collapse. The doctors accepted that it was possible that the incident was not the cause of the ventricular fibulation, and that Aimee died spontaneously on the night of the 7 th of June. However, in their opinion as a matter of probability Aimee did not die spontaneously but because she had been the victim of the incident. You do not have to accept the doctor’s opinions. It is entirely a matter for you whether you do so. Doctor Survana also thought that Aimee’s 109 metres run over rough grass and up a slope could itself stress the heart, but felt that it was not possible to separate out the contribution the run made to the death or the contribution made by the defendants conduct before the infliction of violence. Professor Miloy agreed that the run was the event most proximate to Aimee’s collapse and was therefore most likely to have been the precipitating factor in Aimee’s death. However, he remained of the view that it was the incident overall that caused Aimee’s death. If you think that Aimee’s run stressed her heart, you should consider whether this means that the run breaks the chain of causation with the result that the affray was not a significant cause of death. When considering this, ask yourselves why it was that Aimee was running away, was it because she was still reasonably in fear of being attacked, or was it because she could see that the incident was over and she just wanted to get home as quickly as possible. If the reason was, or may have been the latter, you may think that the affray did not cause her death, it is a matter for you. If, however, you conclude that Aimee was still reasonably in fear of being attacked, and that running away was a reasonable thing to do, you may think that the affray was a significant cause of death. Again, it is a matter for you. The fact that it is possible that Aimee died spontaneously is something you must take into account, but it does not mean that you cannot be sure that the affray was a significant cause of death. Use your common sense, have regard to the probabilities and the evidence as a whole, and ask yourselves whether you are sure that the affray was more than an insignificant cause of Aimee’s death. If you are sure of this, the Prosecution will have proved causation in element 3. If you are not sure you must acquit all the defendants of manslaughter.” 40. The first critical passage is: “…the actual infliction of violence on Aimee and her two friends is bound to be part of the affray, and you may well think that all reasonable and sober people would realise that that part of the unlawful act must have subjected Aimee to at least the risk of some physical harm…” (emphasis added). In other words, the jury could aggregate the violence (and presumably the threats of violence) used against all the victims when considering whether the affray was a dangerous unlawful act as against Aimee. The second critical passage is: “The Prosecution must prove that the affray was a substantial…cause of Aimee’s death…” (emphasis added). As the judge stated at para [1](b) of his certificate of fitness for appeal, he directed the jury that it was not necessary to prove that the physical harm actually inflicted was a cause of Aimee’s death. His reference to physical harm was a reference to the assault by C on Aimee. That is made clear by the wording of para [1](a) (see para 2 above). 41. Thus, in deciding whether any appellant had committed an unlawful act against Aimee which was dangerous in the relevant sense, the jury could take into account the violence inflicted on all three of the victims and not just that inflicted on Aimee. It followed that the jury did not have to be sure that the assault on her by C was a cause of Aimee’s death; it was sufficient if the violence by all defendants on all three victims was causative of death. 42. It seems that the judge reached the conclusion that this was a permissible approach on the basis of his understanding of section 3 of the 1986 Act . As we have seen, section 3(1) provides that a defendant is guilty of affray if he uses or threatens unlawful violence against another and his conduct is such as would cause a person of reasonable firmness to fear for his personal safety. Subsection (2) provides that where 2 or more persons use or threaten the unlawful violence “it is the conduct of them taken together that must be considered for the purposes of subsection (1)”. The words “for the purposes of subsection (1)” mean for the purposes of determining whether the defendant’s conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety. These words do not mean that the defendant is liable for the acts of violence or threatened violence of other persons. Whether there is such liability depends on the application of the common law principles of liability of secondary parties for the consequences of actions carried out by a principal. This point is reinforced by section 6(2) which provides that a person is guilty of affray only if he intends to use or threaten violence or is aware that his conduct may be violent or threaten violence. It follows that a person is liable as a principal for affray for his intended acts or threats of violence or where he is aware that his conduct may be violent or threaten violence. The statute focuses on the acts or threats of the individual participant and on his state of mind in relation to those acts or threats. The “aggregation” permitted by section 3(2) is not for the purpose of making an individual participant liable for the acts and threats of other participants. It is for the different, but important, purpose of determining whether a person of reasonable firmness present at the scene would be in fear for his personal safety. 43. In his skeleton argument, Mr Watson gave a striking example to illustrate the fallacy of the judge’s approach. Suppose 40 Arsenal football supporters emerge from a public house intent on violence. They fortuitously encounter a group of 40 Tottenham Hotspur supporters emerging from a different public house, who are also intent on violence. Violence ensues. All 80 are guilty of affray or possibly riot. Now suppose that one of the fans strikes another foreseeing (even intending) some actual bodily harm. The victim falls and strikes his head on the kerb. He suffers a sub-dural haematoma from which he dies. On the judge’s approach, not only is the assailant responsible for the fatal blow guilty of manslaughter, but the other 79 (including the fellow supporters of the deceased) are guilty as well. Mr Myerson, who seeks to uphold the judge’s approach, accepts that it means that all 79 could be charged with manslaughter because, he submits, they all committed the criminal act which caused the death. He also says, however, that it may be that in such a case a charge of manslaughter might not be in the public interest. 44. We consider that any analysis of the relationship between a public order offence like affray and manslaughter which leads to the conclusion that all 79 of the football fans involved in Mr Watson’s example would be guilty of manslaughter raises serious doubts as to whether the analysis can be right. In our judgment, it is plainly incorrect. The reason why it is wrong is that the unlawful dangerous act which causes the deceased to die is not the affray or riot, but the assault committed by one fan. Other participants would be guilty of manslaughter if they were liable for the assault as secondary parties on usual joint enterprise principles. Otherwise, they could not be liable for the death and guilty of manslaughter: the acts of those who participated in the affray, but were not party to the assault, did not in any relevant sense cause the death. 45. We understood Mr Myerson to accept that, if C had not assaulted Aimee but in all other respects the facts had been no different from what occurred, none of the appellants would have been guilty of manslaughter. He was right to do so, because as we have already explained, none of the appellants would have used or threatened unlawful violence which a sober and reasonable person would have recognised as subjecting Aimee to the risk of the physical harm which led to her death. 46. In the present case, the only dangerous act in the relevant sense was the assault by C on Aimee. A punch to the face is a dangerous unlawful act. If Aimee had fallen against a hard surface and suffered an injury from which she had died, C would have been guilty of manslaughter on a straightforward application of Church principles. But in the circumstances of this case, Aimee’s death was not caused by injuries that were a foreseeable result of the assault in the sense that the risk of such injuries would have been recognised by a sober or reasonable person having the knowledge that the appellants had. As we understand it, Mr Myerson accepts this. The slight injuries caused by the assault cannot be said to have been a cause of her death. That is why the judge did not direct the jury that it was necessary for them to be sure that the physical harm actually inflicted was a cause of her death before they could convict of manslaughter. 47. It follows from the fact that (a) the only dangerous act perpetrated on Aimee (C’s punch) did not cause her death, and (b) the other acts and threats of violence used in the course of the affray were not dangerous in the relevant sense as against Aimee, that none of the appellants was guilty of manslaughter. 48. By way of postscript, we should say a word about “escape”. There are circumstances where the actus reus of a crime is completed by the act of the victim rather than that of the offender. Thus, where the victim injures himself in a fall whilst attempting to escape from an attack by the offender, the latter may be regarded as having caused that injury. Or take the case of the defendant convicted of assault occasioning actual bodily harm to his victim who was injured jumping from his moving car after he had assaulted her in that car: Roberts (1971) 56 Cr App R 95 . 49. In his summing up, the judge directed the jury: “if, however, you conclude that Aimee was still reasonably in fear of being attacked and that running away was a reasonable thing to do, you may conclude that the affray was a significant cause of death.” Mr Harrison and Mr Watson both submit that there was no evidence that Aimee was running away in order to escape from the possibility of further attack, rather than because she wanted to get home as quickly as possible. They say that the judge should not have left that issue to the jury, since it was impossible for the jury to decide why she ran away. Indeed, they say that there was no evidence that she was running away from her assailants: they were heading in the opposite direction and there was no actual or threatened violence present at the time when Aimee ran. 50. Mr Myerson did not rely on the death caused by the running away as analogous to the injury caused during the attempted escape in Roberts. He did not advance the case as an “escape” case in that sense. He does not submit that Aimee ran off in fear of being attacked or threatened with violence. Rather, he submits that the running away was part of “one overall incident which comprises the necessary crime antecedent to the death. Escape was not relied on. It was simply part of the overall picture which the jury had to consider because the case involved the run uphill and that was the last thing Aimee did.” (see para 7 of Mr Myerson’s Additional Material). Viewed in that light, it seems to us that the running away does not require any modification of what we have already said. We do not understand Mr Myerson to submit that, if we reject his other arguments, the manslaughter conviction should be upheld by reason of the running away point. Conclusion on the appeal against conviction 51. It follows that in our view the judge should have withdrawn count 1 from the jury at the close of the Prosecution case. 52. This is a most tragic case. Aimee and her friends were the subject of an entirely unprovoked attack whilst they were taking a walk on a pleasant summer evening at a local beauty spot. It was a thoroughly unpleasant attack accompanied by menace and bullying. But the injuries caused to the three girls which we have described were slight. None of the appellants intended to cause really serious harm to any of the victims, still less did they intend that Aimee should die. No doubt, but for the affray Aimee would not have died when she did. It is understandable that Aimee’s family in particular, but no doubt others too, should think that the appellants are responsible for Aimee’s death. In a sense they are. As we have said, but for the affray, Aimee would not have died when she did. But that is not sufficient to make them guilty of manslaughter. There are those who believe that the definition of unlawful act manslaughter is too wide and catches within its net persons who should not be held criminally liable for another’s death. The principle enunciated in Church is, however, clear and now well established as part of our law. It means that a person who inflicts quite slight injury which unforeseeably leads to the death of the victim is guilty of the serious offence of manslaughter: in law, he is criminally liable for the death. This principle must, of course, be loyally applied and without reservation. 53. For the reasons that we have given, to hold these appellants liable for the death of Aimee in circumstances such as occurred in this case would involve an unwarranted extension of the law. In our view, such an extension would come close to saying that if X commits an unlawful act but for which Y would not have died, X is criminally liable for the death of Y. That is not our law. Our law requires that X commits an unlawful act which is dangerous in the sense that it is recognised by sober and reasonable persons as subjecting Y to the risk of some physical harm which in turn causes the death. The only act committed against Aimee which was dangerous in that sense was C’s assault on her, but physical harm resulting from the assault itself did not cause Aimee’s death. It must follow that none of the appellants was guilty of manslaughter. Sentence 54. We come to the applications for leave to appeal against the sentences for affray. Field J imposed upon Carey an extended sentence, with a custodial term of 2 years and an extension period of one year (which was to be served concurrently with a sentence of detention for public protection with a minimum period of two years for the manslaughter offence) He imposed upon C and F for affray sentences of a detention and training order (“DTTO”) for 18 months (to be served concurrently with a DTTO for 24 months for manslaughter). We grant the applications in respect of the sentences for affray, and consider the appeals having quashed the convictions for manslaughter. While we do not think that the court must or should leave entirely out of account that the offence led, albeit unintentionally and unforeseeably, to Aimee’s death, the sentences must be reconsidered on the basis that these offenders are not criminally responsible for Aimee’s death. Carey 55. Carey was born on 24 October 1986, and so she was aged 18 years when she committed this offence. She had a previous conviction for an assault occasioning actual bodily harm which she committed in January 2001 at the age of 14 years. That conviction arose out of an attack upon another girl whom Carey punched and kicked in the face, causing bruising to the face and body. In 1999, at the age of 12 years, she received a caution for common assault, when she had joined in an attack on another girl and punched her. She also had a conviction for receiving stolen goods and a caution for criminal damage. 56. Affray is a “specified offence” within the meaning of section 224 of the Criminal Justice Act 2003 . The court must therefore consider whether there is, in the words of section 225(1), “a significant risk to members of the public of serious harm occasioned by the commission by [her] of further specified offences”. Serious harm means “death or serious personal injury, whether physical or psychological”: section 224(3) . In Carey’s case, because of her previous conviction for assault occasioning actual bodily harm, which is also a specified offence, the court must assume that there is such a risk unless it considers that it would be unreasonable to do so, taking into account the nature and circumstances of the offences, any pattern of behaviour of which any of the offences form part and information about the offender: section 229(3). 57. Field J concluded in light of the previous offences of assault that Carey had committed and her role in the violence on 7 June 2005 that the statutory presumption was not rebutted and that she was to be sentenced on the basis that there is a significant risk of serious harm to members of the public from her committing further specified offences. Since he did so, the Court of Appeal, presided over by the Vice President, Rose LJ, has given judgment in Lang , [2005] EWCA 2864, in which the court considered the mandatory sentencing provisions in relation to the protection of the public from dangerous offenders in sections 224 to 229 of the 2003 Act . The court emphasised first that the risk identified must be significant, more than a mere possibility, and secondly that the relevant risk is not that future offending will be serious but that the harm from future offending will be serious. With regard to the statutory assumption in section 229(3), the court observed (at para 17(v)) that, “it will usually be unreasonable to conclude that the assumption applies unless information about offences, pattern of offences and the offender show a significant risk of serious harm from further offences”. 58. The court also said (at para 17(iv) that, “Repetitive violent …offending at a relatively low level without serious harm does not of itself give rise to a significant risk of serious harm in the future”. Aimee’s death was an entirely unforeseeable consequence of the affray, and as far as the assessment of the risk that Carey presents is concerned, we consider that the assaults for which she previously had been sentenced and this offence of affray are the sort of offending that the Court of Appeal had in mind. We can, like Field J, see in Carey’s offending something of a pattern of repetitive violent offending but it was, we consider, at a such a level that it does not in itself demonstrate a significant risk of serious harm from further offending. 59. The court must also take into account information about the offender which is before it, and a pre-sentence report about Carey was prepared. She left school at the age of 16 with no formal qualifications, and is the mother of a son. She is described in the pre-sentence report as having “difficulties with her alcohol use and her ability to manage her anger/aggression”. 60. The author of the pre-sentence report expressed the view that Carey “presents a significantly high risk of serious harm to the public, more specifically to young people who reside in Miss Carey’s locality”. However, we note that in making this assessment, the author was not confining her consideration to “serious harm” within the meaning of the statute, but specifically referred to emotional as well as physical harm. Mr Harrison made a number of criticisms of the report, which seem to us for the most part to be justified, although we recognise that it was written when Carey was to be sentenced for manslaughter as well as affray. Two points are particularly relevant to the author’s assessment of the risk that Carey presents. First, the author drew upon the witness statements of prosecution witnesses for an understanding of the facts, and she apparently considered that because Carey did not acknowledge what was said in the statements, she was “minimising the extent of the violence that she administered” and that her remorse was “overshadowed by her reluctance to take full responsibility for her behaviour”. She took this into account when assessing risk. However, the author did not, as it seems, appreciate either that some of the evidence of prosecution witnesses departed from what was said in the statements, or that the acquittal of H indicates that the jury did not accept all the prosecution evidence. Secondly, the author of the report assessed Carey as presenting a “medium risk of reoffending”, referring, as we understand it, to the risk of future offences of any kind. We have difficulty in understanding how the author moved from that view to conclude that she presents a “significantly high risk of serious harm to the public” from future offending. We can find nothing in the pre-sentence report that provides cogent or persuasive support for the view that Carey presents a high risk of serious harm to members of the public. 61. With the benefit of the guidance in Lang , we have come to a different conclusion from Field J and consider that it would be unreasonable to conclude from the information before us about this and previous offences and about Carey that there is a significant risk of serious harm to members of the public from further specified offences committed by her. We must reconsider her sentence for affray in light of that conclusion. 62. We have no doubt that no sentence other than custody would be justified. As we have already said, in ruling that there was a case to answer at what was, for practical purposes, the end of the prosecution case, Field J said this: “The defendants were acting in a group. They had been drinking and would appear to be looking for a violent confrontation. They picked on members of the public whom they did not really know and on whom, having followed them menacingly, they inflicted wholly unjustified, vicious physical violence, even if the assaults on the girls were over in about a minute and the violence was such that no significant injuries resulted”. He had heard the evidence and we see no reason to doubt that description of what happened. 63. When considering the minimum period that Carey should serve in respect of manslaughter, Field J observed that Carey is older than C and F, and said this of her part in the offence: “You encouraged [C and F] to attack Aimee and her friends. Aimee and her friends had done nothing to harm or provoke you. You started the violence by striking James Delaney from behind, you then punched Shelley Robinson three times in the face causing her to fall to the ground and while she was on the ground you kicked her in the face twice and on top of her arm”. He also described her as the “principal” participant in the affray. That assessment of Carey’s role could not be and has not been criticised. We take into account that, although Carey did not plead guilty to affray, she did not unduly dispute the prosecution’s evidence at the trial, and she also showed some degree of candour when interviewed by the police. Nevertheless, in view of her role in the affray and bearing in mind her previous offending, we have concluded that Carey’s sentence for affray should be two years’ custody. F 64. 11. Field J concluded that that neither F nor C pose a significant risk of serious harm to the public from further offending, and we agree with him about that. We also agree with his conclusion that they should both be sentenced to a DTTO for the offence of affray. We have well in mind section 44 of the Children and Young Persons Act 1933 and have regard to the welfare of these offenders. However, for the reasons that we have explained when determining considering Carey’s sentence, we conclude that the nature of this affray was such that it would, in the absence of quite exceptional circumstances, call for a custodial sentence. 65. The Judge summarised F’s part in the affray as follows: she “intimidated Aimee into handing over her charity wristband, then [she] joined in the attack by punching Gemma Doyle in the face, pushing her to the ground and whilst she was on the ground pulling her hair and hitting her across the face”. 66. F is 17 and that was her age at the time of the offence and at the time of her conviction. She has no previous convictions, and it is clear that her behaviour of 7 June 2005 was quite out of character both from the pre-sentence report and from statements written for the court from people who know her. The pre-sentence report described her as “extremely remorseful for what she has done” and assessed the risk of her re-offending in a similar way to be low. Like Carey, while she did not plead guilty to affray, at trial she did not unduly dispute the prosecution’s evidence against her. 67. Taking into account these considerations and the fact that there is no reason to suppose that F in any way instigated the violent behaviour, we have concluded that a DTTO of 18 months is too long. Moreover, if we did not reduce F’s sentence having imposed a sentence of two years’ upon Carey, the sentences would not properly reflect their difference levels of culpability. We reduce F’s DTTO to 12 months. C 68. We come to C’s sentence. The judge’s summary of her part in the affray was this: she “pulled Aimee’s head back by pulling her hair and then punched her in the face”. She is 15 years old, and that was her age at the time of the offence and of the trial and sentencing hearing; and she had no previous convictions for violence, but has two previous offences of minor dishonesty. She was the last of the girls to join in the violence on 7 June 2005. We have read a psychiatric report as well as a pre-sentence report about her. There is no purpose in setting out her background in detail and it suffices to say that she has had a very difficult childhood, and she was seeing a psychiatrist before June 2005. We accept that her expressed remorse for the death of Aimee is genuine. The recommendation of the author of the pre-sentence report was a three-year supervision order with a condition that she comply with a 12 months’ intensive supervision and surveillance programme. 69. C pleaded guilty to affray, and although her plea was recorded late, her intention to enter a plea to this charge was made clear at an early date. Field J declined to reduce C’s sentence for affray to give her credit for her plea, his reason being that under the Powers of Criminal Courts Sentencing Act 2000, section 101(1) DTTO’s can be imposed for terms of 4,6,8,10,12, 18 and 24 months, and, as we understand his sentencing remarks, he considered that it was inappropriate to reduce a sentence of 18 months to one of 12 months to reflect the plea. For the reasons that we have explained when considering F’s appeal against sentence, we should not have thought it appropriate even in the absence of the plea to impose upon C a sentence of a longer DTTO than 12 months and so there is more flexibility about what reduction can be made by way of a discount for her plea. We consider that she should have been given credit for it, and do not consider that Field J had proper reason not to do so: see Kelly [2002 1 Cr App R( S) 11 (at 40), [2001] EWCA 1030, March , [2002] 2 Cr App R(S) 98 (at 448), [2002 EWCA 551. In view of her plea, therefore, C’s sentence in any case should be shorter than that of F, and, but for one matter, we would have imposed a DTTO of 8 months. However, at the hearing before us on 12 January, it was explained that C is pregnant and is due to give birth around the beginning of February 2006. We were told that at the Secure Training Centre where she is serving her sentence there are no maternity facilities and on the ordinary course she would have been transferred, at the age of 15 years, to a women’s prison to give birth. In these exceptional circumstances, we granted her bail on 12 January 2006 so that the baby might be born outside prison. She had served a period of detention of something approaching 3 months. We believe that it would be wrong to impose a sentence that would mean her returning to custody for a short additional period, and that would be the consequence of a DTTO of 8 months or even of 6 months. In these exceptional circumstances, we have concluded that we should accept the recommendation of the pre-sentence report and make a three-years supervision order with the suggested condition of a 12 months’ intensive supervision and surveillance programme.

2006_01_26-701.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/17/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/17

241bd2d48bd6be1f52bf15da17b0954169efc928bc1c51ca9612647c118adf74

[2009] EWCA Crim 288

EWCA_Crim_288

2009-02-18

crown_court

Neutral Citation Number: [2009] EWCA Crim 288 Case No. 2008/02215/B2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Wednesday, 18 th February 2009 Before: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES (Lord Judge ) MR JUSTICE WYN WILLIAMS and MR JUSTICE HOLROYDE - - - - - - - - - - - - - - - - - - - - - REGINA v DIDIER PAULET - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communicati

Neutral Citation Number: [2009] EWCA Crim 288 Case No. 2008/02215/B2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Wednesday, 18 th February 2009 Before: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES (Lord Judge ) MR JUSTICE WYN WILLIAMS and MR JUSTICE HOLROYDE - - - - - - - - - - - - - - - - - - - - - REGINA v DIDIER PAULET - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr T Owen QC appeared on behalf of the Applicant Mr S Farrell QC appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - JUDGMENT THE LORD CHIEF JUSTICE: 1. On 4 June 2007, at the Crown Court at Luton, before His Honour Judge Kay QC, the appellant, Didier Paulet, pleaded guilty to three counts of obtaining a pecuniary advantage by deception (counts 1-3), having a false identity document with intent (count 4), driving while disqualified (count 5), and driving without insurance. On 29 June 2007, His Honour Judge Burke QC sentenced him to concurrent terms of 15 months' imprisonment on counts 1-4, with a consecutive term of two months' imprisonment on count 5. No separate penalty was imposed for driving without insurance. The period of 119 days spent on remand was ordered to count against this sentence. The appellant was disqualified from driving for 18 months and his licence was endorsed. He was recommended for deportation. None of these orders is in issue in the present appeal. 2. On the basis of the counts of obtaining a pecuniary advantage by deception, the appellant was also made subject to a Confiscation Order for £21,949.60, with a sentence of 12 months' imprisonment, consecutive, to be served in default. It is this order which is the subject of the appeal. 3. That appeal will be adjourned today for reasons which will become apparent in a moment. Before adjourning the appeal we checked whether the appellant would be under any consequent disadvantage. None has been drawn to our attention. He is not currently in custody. The sum of money which was made the subject of the order for confiscation would not be available to him to spend. It is safe and secure. 4. The appellant was born in the Ivory Coast. At the material time he was living in the United Kingdom unlawfully. Importantly he had no entitlement to seek or find paid employment here. If they had known of this his employers should not have employed him. That is a consequence of section 8 of the Asylum and Immigration Act 1996 . He used false documents to obtain work and deceived them into thinking that he was entitled to work and that they were lawfully entitled to employ him. 5. It is to be noted that there will be cases of this kind where the falsity advanced by an employee is made by an individual with a right to work in this country. It is also clear that there may be occasions when it is not only the employee making the false assertions who is acting unlawfully, but also that his employer may, with full knowledge of his unlawful activity, continue to employ him and therefore be in breach of section 8 of the 1996 Act . In truth the circumstances can arise in an almost infinite variety of circumstances. 6. The circumstances here are that between April 2003 and November 2004 the appellant was employed by First Choice Recruitment. He received a total of nearly £12,000 in gross wages. Between August 2004 and roughly January 2006 he was employed by a cash and carry organisation. To obtain that employment he provided a false National Insurance number. He there earned nearly £40,000 gross in wages. Between January 2006 and his arrest in late February 2007 he worked as a forklift truck driver. He earned nearly £24,000 in gross wages in that employment. In relation to all three employments the appellant submitted a counterfeit French passport, which would have conveyed the impression that he was an EU citizen entitled to work here. In each of these three employments the company in question would not have employed him if they had known that he was not entitled to work here. 7. In January 2007 the DVLA received an application for a provisional driving licence from the appellant. The application was accompanied by the same false French passport he had used to obtain employment. When the falsity of the passport was discovered, the police were informed. 8. On 27 February 2007 the appellant's home address was searched. Banking documents and wage slips were seized. The appellant was arrested at his place of employment. When arrested he admitted that he had driven to work. His car keys were found on him. His car was parked in the staff car park. He held a provisional British driving licence, but was disqualified from driving. It was established that the appellant had three accounts with Barclays Bank and another account with NatWest Bank. The funds in these accounts totalled £21,649.60. 9. When addressing the issue of confiscation Judge Burke accepted that the appellant had paid tax and National Insurance on his earnings, and that the money he had made in his different employments was earned in the ordinary course of work. Accordingly, he decided that it was not necessary to calculate the precise extent of the appellant's net wages. After deductions, the benefit figure was held to be £50,000. An assets figure of £29,949.60 was agreed between counsel and a confiscation order was made for that amount. 10. The appellant refused to sign a consent order that his assets should be paid over in satisfaction of the confiscation order. He was distraught at the possibility of having to hand over the money he had worked for a number of years to earn and to save. He composed his own grounds of appeal. In essence he contended that his wages were properly earned in the course of his employment. There is no doubt about the fact that they were earned in the course of his employment. The issue is whether they were properly earned. It was, he contended, unjust and disproportionate for his savings from his earnings to be made subject to a confiscation order. They were too remote from the criminal offences to which he had pleaded guilty to amount to a benefit from criminal conduct for the purposes of the Proceeds of Crime Act 2002 . Alternatively he suggested that if they were incapable in law of constituting such a benefit, the application by the Crown for confiscation constituted an abuse of the process of the court. In essence it was contended that it was oppressive to seek to recover the savings from money which had been paid to him in remuneration for the work he had done. 11. The full court gave leave to appeal against sentence. This was the second occasion when the issue of confiscation of earnings in the context of a misleading representation to find work had arisen in Luton Crown Court. The earlier case is R v Ijaz which was heard by His Honour Judge Breen at Luton Crown Court. Judgment was given on 16 November 2007. 12. Given the decision to adjourn this hearing, it is unnecessary for us to set out the relevant provisions of section 16 of the Theft Act 1968 in its amended form, or indeed the relevant sections of the Proceeds of Crime Act 2002 . 13. In his written submissions before us, Mr Tim Owen QC on behalf of the appellant made a number of contributions to the debate. He did not develop them in the course of oral submissions. He had no opportunity to do so because of the course which we have, with the agreement of both sides, taken. Mr Owen would argue that the money earned by the appellant from his employments was too remote from the criminal act of which he was convicted to amount to a benefit from criminal conduct within the meaning of either section 76(4) or section 76(5) of the 2002 Act . The appellant's earnings were pay for work he did. His false pretence in each case merely provided him with the opportunity to offer his services and then to work for his employers. The earnings were not a benefit derived from his criminal conduct. Mr Owen suggested that a distinction should be drawn between a benefit derived by dishonest means, which he identified as the opportunity to be considered for employment, and the actual remuneration paid in consideration of the work actually done. In the alternative, he submitted in his written argument that if the appellant's earnings were capable of constituting a benefit for the purposes of section 76 of the 2002 Act , the application for a confiscation order in circumstances like these constituted an abuse of the process of the court. The contention is that it was plainly and obviously oppressive to seek to recover sums of money paid to a defendant for work properly done as if it were the benefit of criminal conduct. 14. The submission by Mr Farrell QC on behalf of the Crown was equally clear. The appellant's earnings amounted to an obtaining by him of property within the meaning of section 76(4) , as well as a pecuniary advantage as defined in section 76(5) and section 76(6) of the 2002 Act . The appellant obtained his wages "as a result of or in connection with" his criminal conduct which constituted the offence. Not only the opportunity to work but the retention of the appellant's employment was based on his false representations which indicated that he was entitled to work. 15. Mr Farrell drew our attention to a decision of this court in R v Carter and Others [2006] EWCA Crim 416 , where an appellant who used false identity papers to obtain employment was convicted of obtaining a pecuniary advantage by deception. In the course of confiscation proceedings under the previous legislation (the Criminal Justice Act 1988) , it was submitted that his wages did not constitute benefit; the offence was the dishonest obtaining of the opportunity for work. That submission was rejected. Newman J, giving the judgment of the court, observed at paragraph 38: "It seems to us to be obvious that where you obtain an opportunity to work from an offer of employment being made to you, and the offer has been induced by a false representation that you are entitled to work, the false representation continues thereafter for the benefit of the offender who, permitting the representation to continue, is able to retain employment. Once made, it continues to have effect throughout the employment which has been taken up. At any stage had the representation been corrected, it is plain the employment would have ceased." 16. The decision of the court in Carter is not as well known as it should be. It finds no mention at all in Archbold. It finds a desultory mention in Blackstone, but is buried away in the vast quantity of pages in that well-known textbook. The decision is not to be found in the Cr App R(S). That being the case, Mr Farrell, and those who instruct him, are to be congratulated for having found the authority and drawn it to the attention not only of the court but of Mr Owen. It is worth underlining in the course of this judgment that that decision ought to be better known. If it were possible for it to be better known, it would be to everyone's advantage. 17. In the light of that decision Mr Owen would accept that his prime submission, so far as this court is concerned, is at an end. In the light of the decision in Carter he would inevitably be faced with insuperable obstacles. Mr Farrell would contend that there were other insuperable obstacles in his way in any event. But for present purposes we need not enter into that debate. 18. In the end, therefore, Mr Owen reserves the right in due course to address the court on the basis that, given all the facts, the confiscation order should not have been made because the Crown was acting oppressively and that in taking the proceedings that it did against the appellant an abuse of process was constituted. 19. The Crown adamantly reject the suggestion of oppression. It is pointed out that the appellant profited substantially from obtaining work in this country when he was not entitled to do so and when his conduct deprived members of the workforce who were entitled to work here of the opportunity of gaining such employment. 20. However, we need not address those submissions. More important is Mr Farrell's acceptance of the principle that there are limited and exceptional cases in which it might be oppressive for the Crown to seek a confiscation order. We need not go through the authorities, but they include cases where the victim of a crime has been voluntarily repaid; where the true benefit received by the offender was minimal in the context of the legislative framework which would provide for a truly disproportionate order; where the confiscation proceedings had not been brought within a reasonable time; and finally, for present purposes, when the proceedings were brought in contradiction of an earlier undertaking to the opposite effect. We would emphasise that the circumstances in which the court might conclude that it would be oppression to seek a confiscation order is not confined to this list or (using different and familiar language) that the category of such cases has not yet been closed. We should not, for example, exclude the possibility on the finding of prosecutorial oppression where an employee entitled to work in this country had been offered employment on the basis of a dishonest application, who had thereafter given every satisfaction to his employers, but who was then subjected to a confiscation order which might have the effect of depriving him of all his earnings long after his criminal activity had played any part whatever in his employment. 21. Subject to the court's power to ensure that confiscation proceedings are taken on the initiative of the court itself, responsibility for bringing confiscation proceedings is vested by statute in the prosecution ~ ultimately the Director of Public Prosecutions. 22. The issue of confiscation proceedings, the circumstances in which they may be oppressive and constitute an abuse of process is one which is becoming increasingly difficult. A number of problems arise with the exercise of this jurisdiction up and down the country. It seems to us (and we canvassed this with counsel when the case was called on) that confusion and difficulty would be reduced if the Director of Public Prosecutions felt able to issue guidance to prosecutors of the policy and factual issues that they should bear in mind when faced with the decision whether confiscation proceedings should be taken, and indeed identifying the kind of circumstances in which such proceedings would normally be appropriate or inappropriate. We believe that such guidance, if he chose to give it, would fall within his powers under section 10 of the Prosecution of Offences Act 1985 . If given, we would hope, first, that the guidance would establish consistency of approach by prosecutors throughout the country to this question; and second, the possibility of what on any realistic view would be rank injustice, and orders for confiscation which are utterly disproportionate to the offender's criminal activity, or his benefits from crime, would be avoided. Absent bad faith (a term which we use in the broadest sense) the decision by the prosecutor to take confiscation proceedings would not, in our view, be susceptible to judicial review, but the jurisdiction of the court to deal with any possible abuse of its process would remain undiminished. 23. The abuse of process jurisdiction is one which needs to be exercised with great circumspection. The jurisdiction cannot be converted on a case by case basis into a structure which involves, on proper analysis, something like wholesale undermining of the statutory provisions. It is not easy to conclude that it is an abuse of process for those responsible for enforcing legislation to see that it is indeed properly enforced. That warning is important and we also believe that the risks of rank injustice makes it the more compelling for the Director at least to give close attention to our request that guidance should now be issued. 24. So far as this case is concerned, it will be adjourned. We would ask the Director to give such urgent attention to the problem as he is able. Our intention (this is not a direction) is that the appeal of Paulet should be listed as soon as, or within a very short time of the issue of any policy or an indication by the Director that he is not minded to exercise his powers under section 10 . If at that stage there are other cases in the pipeline to which the broad considerations to which this judgment may be said to apply have arisen, we will have them all listed at the same time so that we can deal with the matter compendiously. 25. MR FARRELL: Thank you very much, my Lord. As I already said, there was to be a policy issued post-10 March, but obviously because of what has happened today, I think we can bring that forward and it will be done as soon as possible -- I hope within the next week -- 26. THE LORD CHIEF JUSTICE: No, do not commit those behind you. They have plenty to think about. As soon as possible is what we would like, please. 27. MR FARRELL: I would also like to make it clear that any concessions we have made were in respect of the particular benefit, rather than lifestyle. I have had a note from behind that those concessions related to a particular benefit. I want to make that clear. 28. THE LORD CHIEF JUSTICE: Fine. I do not think that affects our judgment, Mr Farrell. 29. MR FARRELL: I do not think it does, but I have been asked to say it. 30. THE LORD CHIEF JUSTICE: I am not sure you have made many concessions. It would be helpful if either you, or those behind you, could let us know as soon as possible the Director's decision. I know you told us, but we need formal acknowledgement that he will issue guidance, if he will, and, say, within a few days before it is issued, that it is going to be issued and then we can start the wheels turning behind the scenes here to bring the case on. At the moment, whether we would be able to have the case listed in March I think remains open to question. That we will have to discuss with the Registrar of Criminal Appeals. 31. MR FARRELL : Yes 32. THE LORD CHIEF JUSTICE: Thank you for your help, and thank you for yours, Mr Owen.

2009_02_18-1827.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/288/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/288

88289231dea1634ba5a3c079245830cc27e0d0f6cc071c1201f36b86f6589c01

[2008] EWCA Crim 1972

EWCA_Crim_1972

2008-08-01

crown_court

Neutral Citation Number: [2008] EWCA Crim 1972 No. 2008/03760/A6 2008/03450/A7 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Friday 1 August 2008 B e f o r e: LORD JUSTICE TOULSON MR JUSTICE DAVIS and HIS HONOUR JUDGE BEVAN QC ( Sitting as a Judge of the Court of Appeal, Criminal Division ) - - - - - - - - - - - - - - R E G I N A - v - JORGE ALBEIRO BURITICIA-CASTRILLON RITA DUPE OMOTADE - - - - - - - - - - - - - - Computer Aided Transcri

Neutral Citation Number: [2008] EWCA Crim 1972 No. 2008/03760/A6 2008/03450/A7 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Friday 1 August 2008 B e f o r e: LORD JUSTICE TOULSON MR JUSTICE DAVIS and HIS HONOUR JUDGE BEVAN QC ( Sitting as a Judge of the Court of Appeal, Criminal Division ) - - - - - - - - - - - - - - R E G I N A - v - JORGE ALBEIRO BURITICIA-CASTRILLON RITA DUPE OMOTADE - - - - - - - - - - - - - - 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 H Charlton appeared on behalf of the Applicant Jorge Albeiro Buriticia-Castrillon Miss S Palastrand appeared on behalf of the Applicant Rita Dupe Omotade - - - - - - - - - - - - - - J U D G M E N T Friday 1 August 2008 LORD JUSTICE TOULSON: I will ask His Honour Judge Bevan to give the judgment of the court. HIS HONOUR JUDGE BEVAN: 1. These two applications relate to issues concerning passport type documents. Jorge Albeiro Buriticia-Castrillon 2. The applicant Jorge Albeiro Buriticia-Castrillon is aged 36. On 25 March 2008, at the Croydon Magistrates' Court, he pleaded guilty to one offence of seeking leave to enter or remain in the United Kingdom by deception and was committed to the Crown Court for sentence. On 3 July 2008, at the Crown Court at Croydon, he was sentenced by His Honour Judge MacRae to fourteen months' imprisonment with a direction under section 240 of the Criminal Justice Act 2003 that 100 days spent in custody on remand should count towards sentence. He was also recommended for deportation. His application for leave to appeal against the sentence and the recommendation for deportation has been referred to the full court by the Registrar. 3. On 21 May 2007 the applicant, a Columbian national, and a woman who claimed to be a Spanish national applied to the Home Office to remain in the United Kingdom as unmarried partners. The applicant supplied a Columbian passport and the woman a Spanish passport in the name of Miss Puerta Bautista. The woman was exercising her Treaty rights as a Spanish national. The applicant was applying on the basis that his partner was an EU national. 4. The Home Office noticed that the Spanish passport was a forgery. They believed the woman to be Moria Orozco, a Columbian national. A number of utility bills supplied in support of the application were also forged. There was no trace on the Home Office systems of the applicant or the woman entering the UK lawfully, or being lawfully in the UK. 5. On 22 March 2008 they were both arrested. The property where they lived was searched. Officers found two Columbian passports. One was in the name of the applicant and contained his photograph. The other contained the woman's photograph and was in the name of Maria Orozco. When interviewed, the applicant made no comment. 6. In his sentencing remarks the judge said that the applicant was in this country unlawfully from the outset. Passport offences were very serious. Giving all possible credit for his plea, the sentence was fourteen months' imprisonment. On the material before the court his continued presence in this country would not be conducive to the public good. He was recommended for deportation. 7. The applicant, therefore, arrived in the EU lawfully but came to the UK unlawfully (or so it appears). His application was supported by his partner's forged Spanish passport and forged utility bills which passed her off as an EU national in order to deceive the Home Office by means of her forged passport. It is argued on his behalf that his involvement was limited to complicity in, and benefit from, her deception, rather than to active participation himself. However, any passport offence is a serious matter. The guideline case of R v Kolawole [2004] EWCA Crim 3047 , [2005] 2 Cr App R(S) 14 refers to a plea of guilty to such an offence even by someone of good character meriting a sentence of 12 to 18 months for a passport offence, but that is an offence of possessing a false instrument with intent for which the maximum is ten years. 8. The maximum for this offence under the Immigration Act 1971 is two years. Therefore, with credit for his plea of guilty in the magistrates' court, this applicant was sentenced to something close to the maximum sentence. One difficulty in this area of criminal behaviour is created by the number of Acts of Parliament which deal with this type of offence either under the Forgery and Counterfeiting Act 1981 , the Immigration Act 1971 , the Fraud Act 2006 or the Identity Cards Act 2006 . There are a number of offences which range in penalty from two years, five years or ten years' maximum sentence. 9. Here the offence was contrary to section 24A of the Immigration Act 1971 which merited a maximum sentence of two years' imprisonment. We are not impressed by the argument that a rogue solicitor, who has now left the country, may be behind this offence and other offences. No doubt if he were arrested and was found to be behind a number of such offences, more serious charges would be brought against him or her. The applicant was using his partner's application to assist in deceiving the authorities. In our judgment the sentencing judge was fully entitled to treat it as a serious example of its kind. Although the sentence is a high one, bearing in mind the maximum for this offence, taking into account credit for his guilty plea, we see no reason to interfere with the sentence. The application for leave to appeal against it is refused. 10. So far as the recommendation for deportation is concerned, we refer to the recent case of R v Mabengo and Others (LCJ, Goldring and Plender JJ) [2008] All ER 240 , where it was stated that on the authorities, in considering whether to make a recommendation for deportation the judge was obliged to consider each defendant separately and to weigh the seriousness of the offence against other factors which were drawn to his attention. It was not enough to make a recommendation having regard solely to the seriousness of the offence. In that case it was said that the judge had not sufficiently balanced the seriousness of the offence in relation to each individual with the background of each defendant individually. Accordingly, the orders for recommendation for deportation had to be quashed. 11. There is no material before us other than the offence itself to explain the recommendation for deportation. We accordingly are of the view that it was not proper to make that recommendation in this case. We therefore grant the applicant leave to appeal and we quash the recommendation for deportation. That will become a matter for the Home Office. To that extent alone the appeal is allowed. Rita Dupe Omotade 12. On 13 March 2008, in the Crown Court at Woolwich, before His Honour Judge Moore, the applicant, Rita Dupe Omotade, pleaded guilty to a single count of possession of a false identity document with intent contrary to section 25(1) of the Identity Cards Act 2006 . The 91 days she had spent in custody on remand were ordered to count towards sentence. Her application for leave to appeal against sentence has been referred to the full court by the Registrar. 13. At 2pm on 6 March 2008 the applicant went to a money shop in Woolwich. She asked the staff to cash a £500 cheque. She presented a utility bill and a false Nigerian passport for purposes of identification. The staff became suspicious and called the police. When they arrived they inspected the passport and could see that the plastic looked glued down. The applicant said that she had been given the passport. She confirmed that she had tried to cash the cheque. She made no comment in interview. 14. In passing sentence on her the judge said: "You had in your possession and attempted to use a false Nigerian passport." He commented on the fact that there was no record of the applicant attempting to or entering this country unlawfully, but he operated on the basis that she was who she said she was and was 26 years of age. He continued: "In relation to good character .... that helps us very little if we do not know how long you have been in the country. .... The factors that I take into account are your plea of guilty and the matters that have been urged on your behalf in the pre-sentence report. .... Passports are used in positions of trust and people have to trust them. It strikes at the very fabric of our society. .... the sentence that I will impose will be a period of 15 months' imprisonment." The court was assisted by a pre-sentence report, which we have read. 15. In mitigation it is said, as was said below, that the applicant was hitherto of good character; she pleaded guilty at an early stage; she was in possession of one passport which she used for a purpose at the lower end of seriousness on a single occasion. There were character references on her behalf. 16. The judge passed a sentence in the middle of the range suggested in Kolawole . The maximum sentence for this offence is five years. The maximum sentence was ten years in Kolawole . We are greatly assisted by the careful and objective analysis of the relevant authorities by Miss Palastrand on behalf of the applicant. She has referred to the following cases: R v Kolawole [2005] 2 Cr App R(S) 14, R v Mutede [2005] EWCA Crim 3208 , R v Adebayo [2007] EWCA Crim 878 , and R v Rostamkhany [2007] EWCA Crim 342 and Attorney General's Reference Nos 1 and 6 of 2008 [2008] EWCA Crim 677 with which we need not concern ourselves. 17. The principles to be extracted from those cases seem to be, first, that the use of a false passport to gain entry to this country, contrary to section 5(1) of the Forgery and Counterfeiting Act 1981 , on a guilty plea merits 12 to 18 months, as is set out in the leading authority of Kolawole . Secondly, Mutede distinguishes a false passport used to gain entry, and false immigration letters used to obtain work after legal entry, which merits a lower sentence. Thirdly, Adebayo (a midway situation of using a false passport to obtain work) was held to be indistinguishable from Kolawole as to the sentencing bracket because of the significance of the use of a false passport. 18. This court has repeatedly emphasised that the use of false passports must be treated seriously, as in Kolawole , even where one passport is used, on a plea of guilty, by a person of good character in relation to gaining entry. That is because the use of false passports to obtain entry to this country disrupts the fabric of immigration control or has the potential to do so. There is, as the authorities show, a lower level of gravity involving the use of a false passport in this country to obtain a job or to obtain benefit -- in other words, to obtain something to which the user of the passport is not entitled by means of a forged passport. 19. This case on its own special and particular facts seems to us to be one further step removed. The applicant was entitled to cash her cheque. She simply used the passport as a false means of identification in pursuit of something to which she was entitled anyway had she used a proper, honest document. That puts this case in our judgment at or slightly below the lowest end of the Kolawole range. In the circumstances the special facts of this case justify in our judgment a sentence of ten months' imprisonment. 20. We will therefore grant the application for leave to appeal against sentence. We quash the sentence of 15 months' imprisonment imposed below and we substitute for it a sentence of ten months' imprisonment. To that extent the appeal is allowed.

2008_08_01-1622.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/1972/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/1972

2a71c6a765df8268499b617880441008628b6bb666e5a11f3be13d17cfd5cc30

[2018] EWCA Crim 1342

EWCA_Crim_1342

2018-04-12

crown_court

No: 201705487 A2 Neutral Citation Number: [2018] EWCA Crim 1342 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday 12 April 2018 B e f o r e : LORD JUSTICE SIMON MR JUSTICE TURNER MR JUSTICE GARNHAM - - - - - - - - - - - - - - - - - R E G I N A v SIMON KEITH NICHOLS - - - - - - - - - - - - - - - - - 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 N

No: 201705487 A2 Neutral Citation Number: [2018] EWCA Crim 1342 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday 12 April 2018 B e f o r e : LORD JUSTICE SIMON MR JUSTICE TURNER MR JUSTICE GARNHAM - - - - - - - - - - - - - - - - - R E G I N A v SIMON KEITH NICHOLS - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - Mr M Butler (Solicitor Advocate) appeared on behalf of the Appellant - - - - - - - - - - - - - - - - - J U D G M E N T This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity ( Sexual Offences (Amendment) Act 1992) , or where an order has been made in relation to a young person. LORD JUSTICE SIMON: 1. On 30th November 2017 at the Crown Court at Isleworth, the appellant, aged 50, pleaded guilty to a single charge of burglary. On 7th December he was sentenced by His Honour Judge Moore to a term of three years and four months. He appeals against that sentence with the leave of the single judge. 2. On 17th October 2017 the victim of this crime, Jane Dawson, aged 55, left her home in Thornbury Avenue, Isleworth. It was not until 23rd October that her partner went to the house and discovered that it had been broken into, with a door prised open. There was damage to the property and various items, including jewellery, keys, wallets, credit and other cards had been stolen. Forensic examination of a glove belonging to Ms Dawson found in the kitchen revealed blood with a match to the appellant. When he was arrested he said that he dealt in scrap metal and he could have disposed of the glove which could have been picked up anywhere. When it was explained to him that it was in fact a glove belonging to the victim, he offered no further explanation for his blood on it. 3. A victim impact statement from Ms Dawson sets out what she describes, entirely justifiably, as the "profound and wide-ranging" effect of the crime on her: emotionally, physically, in terms of her personal relationships and her sense of security in her own home, and the effect on her working life. She also described the loss of the items of jewellery and personal effects: The sentimental value however far exceeds any figure you can put on the items. For example, there was a sapphire and diamond gold engagement ring that was stolen. This belonged to my late mother who I lost when I was 10 years old. This was the only real tie I still had with her and now it has been taken from me. Equally there were two pewter tankards that were engraved with my father's World War 2 name and number. He recently died and again these had an unknown sentimental value to me. The opal jewellery was given to me as keepsakes for the birth of my children. The leaf earrings and locket were presents for my 18th and 21st birthday. The first world war love brooch was a gift for my great aunt from her fiancé just before he died in World War 1. All of the jewellery I have listed has sentimental value and I have only named five items here but all were gifts or were inherited and all meant something to me. I have been asked whether my bank and store cards have been used since the incident and I can confirm that they have not because I cancelled them. This again is a long and drawn out process, waiting for replacements and so on. I am also worried about identity theft as the stolen cards can easily be used as a basis to steal further from me. 4. These were telling details of the effect of the appellant's selfish and criminal act. He was aged 50 at the date of sentence and had 39 convictions from 1980 when he was 13 to 2007. These included a large number of offences of dishonesty and violence, a non-dwelling burglary in 1981, wounding with intent and non-dwelling burglary in 2002 for which he was sentenced to a term of three years' imprisonment, and a non-dwelling burglary and attempted non-dwelling burglary in 2005. There was no previous conviction for dwelling burglary. However, materially on 1st October 2007 he received an indeterminate sentence of imprisonment for public protection for three offences of robbery and three offences of having a firearm with intent to commit an indictable offence, with a minimum term of three years for robbery with consecutive terms of one year for the firearm. 5. In passing sentence, the judge observed that the appellant had pleaded guilty at the Plea and Trial Preparation Hearing and was entitled to the appropriate discount of 25 per cent. He then set out the facts as we have outlined them. The victim Ms Dawson worked for a charity and was required to travel abroad on occasions. She had left her home and on her return had found it had been broken into and ransacked. The appellant had gone through her bedding, her children's personal effects and her office - everything that he could lay his lands on. He had gained access by going to the garden shed and using tools that he had found there. Both internal and external doors had been damaged, and various tools were found by the police on the staircase inside. A large number of items had been stolen. The assessed value was approximately £18,000, and about £1,000 of damage had been caused. The judge then referred to the contents of the victim's statement, to which we have already referred. The victim had stated that she felt violated. She had lived in the house for 25 years, now living alone. She had difficulty sleeping to the extent that she had been to a doctor and been diagnosed with stress. She found it difficult to concentrate, in particular with her work. This had clearly been an extremely traumatic event for her. 6. The judge referred to the Sentencing Council Definitive Guidelines for Burglary. Both counsel had agreed that it was a Category 2 offence with a starting point of one year and a range of a high community order up to two years. There was greater harm, the ransacking of the house, the trauma to the victim and the significant degree of loss, both economic and sentimental. It was not an offence of higher culpability because the only indicative factor would have been the carrying of items to facilitate the burglary and there was no evidence of this, although the appellant had undoubtedly gone into the victim's shed to look for tools, and those tools were used to gain entrance from the outside door via inside doors. In the judge's view the position was closely analogous to going equipped for theft. Looking at the whole picture of the offending, the judge was inclined to the view that it fell within Category 1 with a starting point of three years and a range of two to six years. If he were wrong in relation to that categorisation it was an upper Category 2 case. There were then two statutory aggravating elements which would significantly increase the sentence within the guidelines. First the appellant's previous convictions. He is a professional criminal with 37 convictions for 75 offences over a period of 37 years. He had three convictions for extremely serious offences. In 1997, possession of class A drugs with intent to supply, for which he received a term of three-and-a-half years' imprisonment. In 2002 for a section 18 wounding where he had stabbed someone he had been sentenced to a term of three years' imprisonment and in 2007 for three offences of robbery and having a firearm with intent to commit an indictable offence he had been sentenced to an indeterminate sentence for public protection with a minimum of three years. He also had a large number of other convictions for offences involving dishonesty, drug use and violence. He had, the judge said, used eight different names and seven different dates of birth to avoid detection should he be stopped and arrested. However, the judge recognised that he had no previous convictions for domestic burglary, although that was only part of the picture. 7. The second aggravating feature was that the burglary had been committed while on licence. He had been released on licence in relation to the robbery and firearms offences in 2015. He had then been arrested for other matters, faced trial and was acquitted. He was returned to custody on licence and was subsequently released again on 5th January 2017. He committed the domestic burglary nine months after his release and while on licence. 8. These two aggravating matters were sufficiently material, in the judge's view, significantly to increase the sentence for a Category 2 offence. With regard to personal mitigation there would be a 25 per cent discount for the guilty plea. Account was also taken of other matters advanced on the appellant's behalf. It had been said that he had demonstrated remorse, although he had shown no such sentiment in interview. He basically denied committing the offence and pleaded guilty when the scientific evidence in relation to his blood group and DNA was produced. That was not held against him. It was merely a factor that would not be taken into account to any significant degree. The judge then passed the sentence of 40 months' imprisonment. 9. Following a query from the trial advocate, the judge confirmed that the sentence included the full 25 per cent discount and stated that he was not going to indicate how he arrived at the figure of 40 months. 10. On this appeal Mr Butler puts the matter in this way. First, the judge erred in placing the offending in Category 1 in the absence of factors indicating higher culpability. The tools and the gloves belonged to the victim and there was no proper analogy with going equipped for theft. Second, in any event, whilst he acknowledges that the appellant has a poor record, he submits that the judge placed too much weight on the previous convictions which did not justify placing the offending within Category 1. Third, even if the offending could properly be categorised as category 1 offending there was nothing to justify a starting point of four-and-a-half years before credit for plea. 11. We have considered those submissions. We should start by saying that we consider that the judge was entirely right to identify a number of factors indicating greater harm. The ransacking of the property, the theft of items of particular personal value to the victim and the particular effect of the crime on the victim. We are also satisfied that the appellant's previous record and the fact that the crime took place when he was on licence were aggravating factors which justified characterising the crime as a Category 1 offence and placing it higher within the range, notwithstanding the lack of specific factors of higher culpability. 12. However, in our view the appropriate starting point within Category 1 before credit for the plea was a term of the order of 42 months and with 25 per cent credit to which he was entitled the sentence should have been a term of 30 months. 13. Accordingly, we quash the sentence of three years and four months and substitute a term of 30 months. To that extent the appeal is allowed.

2018_04_12-4257.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/1342/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/1342

eaf0a8e67f3b6f74eefe221f0347ef69d426ade46f3c10baf717c75fac71e6fb

[2009] EWCA Crim 1326

EWCA_Crim_1326

2009-07-06

supreme_court

Neutral Citation Number: [2009] EWCA Crim 1326 Case No: 200802636 B4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT LEEDS T 20037108 Royal Courts of Justice Strand, London, WC2A 2LL Date: 06/07/2009 Before : LORD JUSTICE KEENE MRS JUSTICE DOBBS DBE and HH JUDGE STOKES QC, RECORDER OF NOTTINGHAM (sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : Holderness Appellant - and - The Qu

Neutral Citation Number: [2009] EWCA Crim 1326 Case No: 200802636 B4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT LEEDS T 20037108 Royal Courts of Justice Strand, London, WC2A 2LL Date: 06/07/2009 Before : LORD JUSTICE KEENE MRS JUSTICE DOBBS DBE and HH JUDGE STOKES QC, RECORDER OF NOTTINGHAM (sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : Holderness Appellant - and - The Queen Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Peter Weatherby (instructed by Switalskis Solicitors, Wakefield WF1 2TF ) for the Appellant Andrew Campbell QC (instructed by CPS, Bradford BD5 0QH ) for the Respondent Hearing dates : Monday 29 June 2009 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Keene : 1. On 29 September 2003 at Leeds Crown Court before His Honour Judge Taylor, the applicant was convicted of murder and was the following day sentenced to life imprisonment. She now applies for an extension of time in which to seek leave to appeal against conviction and for leave to call fresh evidence, these matters having been referred to this court by the single judge. We grant the extension of time and the application for leave and we treat this hearing as the hearing of her appeal. 2. The victim of the killing was the appellant’s mother, a 70 year old woman, who was killed on the morning of 13 February 2003 some time after 9.15am. There was no dispute at trial that she had been killed by the appellant, who had struck her repeatedly with a marble rolling pin in the hallway of the victim’s home. The victim had been struck to the head, neck, chest and elsewhere. Some of the injuries suffered seemed to be defensive in nature. The appellant left the deceased’s house carrying a white plastic bag containing the top the appellant had been wearing, a hand towel, a face cloth and part of the rolling pin that had broken off. All these items, and the clothing the appellant was wearing, had blood on them. 3. The defence case was that she was only guilty of manslaughter, either by reason of provocation or because of diminished responsibility. As we shall describe, expert psychiatric evidence was called on both sides at trial. The jury, as we have indicated, rejected both defences. Provocation is no longer an issue. The fresh evidence which this court has received relates to the defence of diminished responsibility, available under section 2 of the Homicide Act 1957 . Under that provision it is for a defendant to prove, on the balance of probabilities, that at the relevant time he was “suffering from such abnormality of mind … as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.” 4. At trial evidence was called about psychiatric problems which the appellant had had in the past. Beginning at least in 1993 when she was aged 33, she had from time to time suffered from symptoms of depression and had been treated accordingly. She had had a number of problems in her personal life, beginning from when she had been a child but continuing into adulthood. Amongst other things, she alleged that she had been sexually abused from the age of 9 by a number of men, including her father, with her mother’s knowledge and complicity. Whether true or not, there is no doubt that she had had a persistent problem of alcohol abuse over many years, as she said at trial, as well as drug misuse. Her evidence was that when she drank, she sometimes shouted and threatened people. The jury heard how on 2 September 2002 she had been admitted for 5 days to the Priestley Psychiatric Unit of Dewsbury and District Hospital as an informal patient, having been arrested for trying to break into a house where she believed her missing daughter was. At the time of admission she was noted as having a long history of alcohol and drug misuse. The diagnosis was of mental and behavioural disorder due to psychoactive substance abuse. 5. She was seen twice more after that in the out-patient clinic, the second time being on 8 October 2002, when she described feeling “knocked back” by her step-father dying suddenly the night before. No psychotic phenomena were observed. That was the last time she was seen by the psychiatric services before the killing of her mother on 13 February 2003. 6. The evidence at trial about the circumstances surrounding the killing can be summarised very briefly. Her own evidence was that she had been drinking with her daughter and others at a couple of pubs on the afternoon and evening of the 12 February and that she had drunk 10 bottles of alcohol, lager and alco-pops. She accepted that by the time of leaving the second pub, at about 11pm, she was probably drunk. She was seen a little later outside her mother’s house, shouting and banging on a window, and then she went home, where again she was heard shouting in the street. One witness thought it sounded like someone drunk going home. It went on for about an hour, and when a neighbour went round to see her, she said something which he thought sounded threatening. He described her as appearing “not quite with it, not drunk but not right”. She also went and knocked on another door and told the man who answered “You don’t go messing about with a kid’s sexuality”. She came back about 15 minutes or so later, knocked again and swore at him, and then left. She came back a quarter of an hour later and apologised, before being threatening. He told her to go home and sleep it off. He later told the police it seemed like an amphetamine psychosis rather than drunkenness. 7. All this the jury heard, as it did evidence about her being seen the next day leaving her mother’s house at about mid-day carrying a white plastic carrier bag. She seemed sober, though she told one couple who knew her that she and her daughter had been out on the piss the night before. There is no dispute that, when she left her mother’s house, she was wearing her mother’s black leather jacket, having taken off her own blood-stained top. 8. Her own evidence at trial was that she had gone to her mother’s house to ask why her mother kept bringing up the past. They both stated screaming and shouting at each other and she told her mother that her father had never loved her mother. Her mother slapped her face. The appellant hit her mother. She could not recall where she got the rolling pin from or the number of times she hit her mother. In cross-examination she said she hit her mother because her life had become a nightmare and she killed her mother because she had been talking about her father and provoking her for years. 9. The body of her mother was discovered the next morning, 14 February and the appellant was arrested a little after midday. She was seen by a police surgeon, a GP, first, who was told by the appellant that she had been admitted to a psychiatric unit the previous year after a night’s heavy drinking. The GP saw no signs of paranoia but only a mild depression, and concluded that the appellant was fit to be interviewed but could be vulnerable because of anxiety. She was then seen by Doctor Radcliffe, a Consultant Psychiatrist, at about 4.20pm that day, 14 February. 10. He was, therefore, the first psychiatrist to see the appellant after the killing. He noted that her speech was normal in tone and flow and her answers appropriate to questions. He observed no evidence of any thought disorder, describing her as clear and coherent, and orientated in time, place and person. He saw no signs of major depressive symptoms or hypomania, that is, of even a mild degree of mania. He recorded that “there was no evidence at interview of any abnormal beliefs or perceptions.” 11. Doctor Radcliffe gave evidence at trial to this effect. He went on to say that “if someone was suffering from a mental illness of moderate or severe form I think it would be very difficult for them to conceal it from a psychiatrist. You can’t just perk yourself up from an illness of that kind as you can if you are suffering from a mild degree of depression. I don’t think it’s possible to turn on and off a mental illness.” However, he added that one could not extrapolate back and ascertain what her mental state was some 30 hours earlier when the killing had taken place. 12. The appellant was then interviewed by the police with an appropriate adult present, as well as a solicitor. At first she denied any involvement in her mother’s death. Later, when she was confronted with bloodstained items found in the bag at her home, she lied and said she had cut her hands. Then she said that she had found her mother cold and limp in her mother’s home and that she had got blood on her own clothes from picking her mother up. That too was ultimately conceded to be a lie. 13. On 17 th February 2003, a registered mental nurse recorded the appellant as saying that she had heard her father’s voice since the time of his death, but that he never said anything derogatory. 14. She was seen by another consultant psychiatrist, Doctor Berry, on 27 February 2003, that is two weeks after the killing. She referred to symptoms of lack of sleeping and eating, feelings of hopelessness and wanting to die. But she said these symptoms had come on after her arrest and not before. Before her arrest she had been “doing alright”. Doctor Berry found no abnormal beliefs, hallucinations or thought disorder. He diagnosed the appellant as suffering from a depressive adjustment reaction, brought on by her arrest and remand into custody. He found no evidence of any significant mood disorder prior to her arrest. When Doctor Berry saw her again on 13 March, he found her lower in mood. She realised that her mother was dead, she said. He concluded that she was becoming more depressed “in the context of a grief reaction”. 15. The jury were told by the Judge that there was no dispute that after about 20 March the appellant then developed a severe depressive illness with psychotic features. She began to speak of God being inside her and of making love to God, that God spoke to her, that the prison staff were all actors and of other delusions, and her behaviour became more bizarre and disordered. She was, of course, remanded in custody through this time. She spent some time on the prison hospital wing, where she was treated with anti-depressant medication, to which she responded sufficiently to be transferred out of that wing on 7 June 2003. Thereafter she was seen by Doctor Rix, a consultant psychiatrist retained by the defence, on 16 July 2003, 19 August 2003 and 19 September 2003, and by Doctor Battacherjee, a consultant psychiatrist retained by the Crown, on 11 September 2003. Both gave evidence at the trial later in September that year. In brief, Doctor Rix concluded that at the time of the killing the appellant had psychotic symptoms which were part of a mental disorder that the jury might recognise as an abnormality of mind. Taking all the symptoms together suggested that it might have been a very unusual type of depressive illness or a depressive illness mingled with a psychotic illness. The efforts of the appellant to clear up the crime scene did not affect his conclusion. 16. He acknowledged that the appellant had not made mention of any delusions when examined by Dr Radcliffe and that she had told that psychiatrist that she had not had any depressive symptoms at the time of the killing, but he said that she may have been keeping her delusions to herself and may have thought of being in a low mood as the norm. In cross-examination, he agreed that there was no evidence of psychotic symptoms when she was sober, until after her arrest and being charged with her mother’s murder. 17. Doctor Bhattacherjee accepted that the appellant had developed a severe depressive illness with psychotic features while on remand in custody, but he ascribed that to her distress at her arrest and remand and to grief at the loss of her mother. Her behaviour the night before the killing was consistent with someone who had had a lot to drink. He accepted that she had predisposing factors making her vulnerable to the development of a severe depressive illness, but he could see no evidence of an abnormality of mind at the time of the killing. It is implicit in what we have said that by the time of trial there was no dispute that the appellant was fit to stand trial. 18. We have taken a little time over dealing with this material which was before the jury, because it provides the context in which the fresh evidence put before us has to be judged. All the evidence, factual and expert, to which we have so far referred was before the jury. We turn then to the new material. 19. Some of the new material consists of undisputed facts about events since her conviction and sentence. She was sentenced to life imprisonment and no question of any order under the Mental Health Act 1983 was even raised. She seems to have coped reasonably well with custody until about August 2004, when she experienced a manic episode. She had been receiving anti-depressant treatment, but that had been progressively reduced. On 21 December 2004 she was transferred to Newton Lodge Regional Secure Unit for psychiatric treatment. Her Responsible Medical Officer (“RMO”) was Doctor Isaura Gairin, a consultant psychiatrist, whose report dated 13 July 2007 is before this court and is not in dispute. 20. Her report indicates that the appellant’s admission to Newton Lodge was because of suspicion of a mental illness, probably bipolar affective disorder, and that indeed was the diagnosis eventually arrived at and for which the appellant then received treatment. Typically, that disorder consists of alternating manic and depressive episodes separated by periods of normal mood, but in the appellant’s case the manic and depressive symptoms seemed to occur at the same time, suggesting a diagnosis of Mixed Bipolar Affective Disorder. Doctor Gairin felt that it was inappropriate for her to comment on whether the appellant was ill at the time of the offence. 21. While the appellant was in Newton Lodge, she was seen by another consultant psychiatrist, Doctor Green, retained on her behalf, on 3 and 10 September 2006 and in March 2007. Doctor Rix saw her again on 8 February 2008 and Dr Bhattacherjee on 7 November 2008. All three psychiatrists have submitted reports and given oral evidence before us. We would add for completeness that the appellant left Newton Lodge in April this year and returned to the prison system, as her condition had stabilised. 22. There is a certain amount of agreement amongst these experts, and we are grateful to them for having met and narrowed the issue somewhat. Amongst what is agreed is the following: “1. Ms Holderness had a predisposition to the development of a mental disorder which pre-dated the index offence. 2. Ms Holderness has a history of treatment by Psychiatric Services including an admission to hospital in 2002. 3. When Ms Holderness was a remand prisoner in relation to the index offence she became psychotic. By trial her condition had stabilized and she was asymptomatic. Post-conviction, Ms Holderness was transferred to the Yorkshire Centre for Forensic Psychiatry (Newton Lodge), after she became psychotic again. She remains in Newton Lodge regional secure unit. 4. Ms Holderness was stable when we assessed her. 5. Whilst in Newton Lodge. Ms Holderness has been diagnosed as having a bipolar affective disorder (BPAD). It is arguable that the correct diagnosis is one of schizoaffective disorder, however any distinction, in the forensic context, is not significant. These conditions are severe mental illnesses. 6. The account Ms Holderness has given of sexual abuse in childhood could be: (a) real; (b) delusional; (c) a mixture of the two; or (d) fabricated. Her presentation is consistent with someone who has suffered such trauma. 7. She has a significant history of alcohol misuse and some history of other substance misuse.” 23. We turn to the evidence of the individual witnesses. 24. Dr Rix has observed in his report of February 2008that “the appellant is now more forthcoming” about her history prior to the killing of her mother. She told him in the more recent interview how, after discharge from the Priestley Unit in September 2002 she had thought that people were warning others that she was coming into Dewsbury. Once in the period before Christmas she had thought that people could listen to her thoughts. She thought that her drinking water was contaminated, that she was related to the Queen and worth millions, and that people were looking at her in a sexual way. She told Doctor Rix that at the time of the killing she believed that her father was living in her body, and that she heard voices in her head telling her to kill her mother. These are merely some instances of her revelations. 25. Doctor Rix explored with her why she had not mentioned these things before trial. She said that she thought that if she proved she was well, “they would let her go”. In cross-examination, he accepted that she had not expressed abnormal thoughts or beliefs to him before trial, save for a reference to feeling that someone was in her body. Otherwise there had been no evidence of psychotic symptoms when she was sober around the time of the killing. 26. Doctor Rix regards her reasons for the absence of earlier disclosures as credible and her account as having the “hallmarks of genuineness”, though he acknowledges the possibility that she is fabricating. He regards her account as being too sophisticated to be fabricated. Moreover, patients vary in their recall of experiences, sometimes recalling delusions recorded at any earlier date but denied at an intermediate time. That may happen, even when they have recovered. The memories may not be accessible to such a person. However, Doctor Rix accepted that the killing itself may have triggered or exacerbated her mental illness. 27. On the basis of what she has now revealed about her mental state prior to the killing and of her subsequent psychiatric condition, he is of the view that she was suffering from a serious psychiatric illness before, during and after the offence. What has happened since has strengthened the opinion he expressed at trial. However, Doctor Rix accepts that the appellant’s credibility is crucial to his conclusions and that she had originally lied to him about the circumstances of the killing, as she had to the police and to Doctor Hargreaves, who had been retained on her behalf. He also acknowledges that she made no reference in her own evidence at trial to having had any delusions at or before the time of the killing. And he conceded that, if she had been mentally ill at that time, she would have been likely to have exhibited disordered symptoms to Doctor Radcliffe. 28. When interviewed by Doctor Green in September 2006, the appellant told him that she had heard voices for most of her adult life, especially female voices giving her instructions or threatening her. She said that after discharge from the Priestley Unit, the voices would tell her to hit her mother as punishment for letting her be sexually abused as a child, and that these experiences went on up to the time of the offence. She produced a piece of paper listing some of the delusions she said she had had during this period, including (in addition) the belief that she was related to a raptor because of her feet and that she was related to the Royal Family and worth millions. When asked why she had not said this to any of the psychiatrists pre-trial, she said she thought they might let her go if she was well. In his second report, dated March 2007, Doctor Green observes that: “The issue as to whether Ms Holderness was suffering from a major mental illness at the time of the index offence is dependent upon the interpretation of the account that Ms Holderness now gives of her psychotic symptoms (including hallucinations and delusions) predating her index offence.” His opinion, as expressed to this court, is that, on balance, she is not fabricating her account of hallucinations, but that it is unclear whether she was in fact delusional at the time of the offence or is now projecting back delusional memories, or a mixture of the two. 29. Doctor Green acknowledged that the appellant did not bring to the attention of the various psychiatrists who saw her on remand the symptoms which she now says she had before the offence, and also that there is little evidence from medical records of her having reported earlier psychotic symptoms during that period. But he told the court that the explanation she gave for her failure on remand to recall her earlier delusions, while not making much sense, may itself be symptomatic of her mental illness. He accepted that there was no evidence from those who had been with her drinking on the day and evening before the killing that she had shown any disturbed behaviour. He also agreed that Doctor Radcliffe had had the advantage of seeing the appellant before the offence and yet had not discerned any signs of psychosis after the offence on 14 February 2003. Doctor Green acknowledged that, while it was not impossible for an experienced psychiatrist to miss such signs, it was more likely that he would discern them if they were present. 30. Doctor Bhattacherjee , called before us by the prosecution, conceded that the symptoms identified at the time of the admission of the appellant to the Priestley Unit in 2002 could be consistent with mental illness, as could her behaviour on the night of the killing, as observed by neighbours, though it was also consistent with drunkenness. But he made the point that the admission to the Priestley Unit and the symptoms then noted in no way resemble the psychotic episodes she has experienced in custody. He accepted that matricide is rare and that this was a sustained attack. But he remains of the opinion he expressed at trial. 31. He is sceptical about the new account given by the appellant of the delusions said to have been suffered by her before the offence, and he emphasised the difficulty a patient would have in concealing such abnormal perceptions. The symptoms now described indicate an extremely severe and florid episode of psychosis, with very intense and wide-ranging delusions. There were grandiose and bizarre delusions. There were auditory hallucinations, obsessive features, and delusions of thought control, all indicating a very grave state of disturbance. In Doctor Bhattacherjee’s opinion it is very unlikely that such extreme symptoms would not have been manifest. Yet not merely had she not mentioned these to him when she was interviewed by him shortly before trial, but she did not do so at the time when she was disclosing some symptoms while on remand. She would not during that episode have been able to conceal other abnormal perceptions, because all would have seemed normal and real to her. 32. We announced at the conclusion of the evidence and submissions that we proposed to dismiss the appeal, and we now explain our reasons for doing so. This is a case where there is undoubtedly fresh evidence available, if only to the extent that the appellant has experienced another episode of severe mental illness since her conviction, either bipolar affective disorder or a schizoaffective disorder. That followed on from her earlier episode while on remand. The real issue is what her condition was at the time of the killing. 33. Both Doctor Rix and Doctor Green are of the opinion that, on balance, she was at that time suffering from an abnormality of mind within the meaning of section 2 . But as Doctor Rix and Doctor Green acknowledged, that is an opinion crucially dependent on the account she now gives of her delusions and other psychotic symptoms as they were before and at the time of the killing. Even though both those psychiatrists refer to other evidence, such as the nature of the killing itself, a frenzied attack on the appellant’s mother, her credibility is clearly fundamental. 34. That credibility is inevitably damaged by the series of lies which she told after the killing, not only to the police and others in authority, but to both the psychiatrists retained on her own behalf – first Doctor Hargreaves and then Doctor Rix. She persisted in those lies for some time, for over 5 months. 35. Then one has to consider the explanation for not having referred to her delusions, the voices and so on, in the period leading up to trial and at trial itself. Her main explanation was that she thought that if she seemed well, “they” would let her go. But the trouble with that is that by the time of trial, she could have been under no illusion about the chances of being “let go”. She was by then free of symptoms and fit to stand trial. She must have been aware that seeming well was not going to get her off the charge of murder. 36. We can accept that there can be some instances where there is a failure on the part of a person with the appellant’s problems to be able to recollect earlier delusions. That cannot be ruled out as a possibility. But that was not the explanation proffered by the appellant for her failure to disclose earlier these delusions said to have existed at around the time of the killing, and it seems to us to be less than probable in the circumstances of this case. 37. Moreover, one has to bear in mind that she had had ample opportunity since conviction to mix with other mental patients and to observe their delusions and other experiences. As Doctor Rix fairly acknowledged, one cannot discount the possibility that that is how she has come by this knowledge of various delusions. 38. In addition to the doubts which there must be about the reliability of the accounts she now gives of pre-offence delusions, there is the great difficulty faced by the appellant that an experienced psychiatrist, Doctor Radcliffe who saw her the day after the killing saw no psychotic features. He was the first consultant psychiatrist to examine her after the offence, seeing her at 4.20 pm the next day. While he agreed at trial that one could not extrapolate back from that to the previous morning, his evidence was also that one cannot just turn a severe mental illness off and on. In any event, both Doctor Rix and Doctor Green have accepted that, if the appellant had been mentally ill at that time, she is likely to have exhibited disordered symptoms to Doctor Radcliffe on that occasion. The fact that she might have managed to conceal them, which Doctor Bhattachejee disputes anyway, would not suffice to enable the appellant to discharge the civil burden of proof resting upon her. We attach significance to the absence of observable symptoms of psychosis when seen by Doctor Radcliffe so soon after the killing. 39. It seems to this court that, while the appellant was, at the time of the offence, predisposed to develop a mental disorder, it is more likely that it was the impact of the killing, the arrest and the incarceration of her that brought about the serious mental illness which she subsequently experienced. Certainly on the balance of probabilities it has not been shown that she was suffering from an abnormality of mind within the meaning of section 2 at the time of the killing. 40. Mr Weatherby on behalf of the appellant has referred to the well- known decision in Pendleton [2002] 1 CAR 34 and to the need for this court to remember that it must not usurp the role of the jury. We bear that in mind. The test in the present appeal is whether a jury might reasonably have found the defence to have proved on the balance of probabilities that the accused had been suffering from such an abnormality of mind as substantially impaired her mental responsibility for the killing. But as was later pointed out in Dial [2005] 1 WLR 1660 , it is for this court to apply its mind to the effect of the fresh evidence on the safety of the conviction. It is, as Lord Brown of Eaton-under-Heywood said there at paragraph 31, for this court to evaluate the importance of the fresh evidence in the context of the remainder of the evidence: “If the court concludes that the fresh evidence raises no reasonable doubt as to the guilt of the accused it will dismiss the appeal. The primary question is for the court itself and is not what effect the fresh evidence would have had on the mind of the jury.” 41. That approach needs, of course, some slight adaptation when the burden of proof rests on the accused, but the real point is that it is for this court to decide whether, in the light of the fresh evidence, the conviction is unsafe. 42. In the present case we are quite satisfied that the appellant has failed to show, on the balance of probabilities, that the section 2 criteria are satisfied, taking into account both the original evidence at trial and the fresh evidence. No jury might reasonably have found that that burden of proof had been discharged. For those reasons we dismissed this appeal.

2009_07_06-2000.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/1326/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/1326

4eeb8a77f0cdefa1436a1b34f001887a6c5e0275b0569fe41556ea1a9e885945

[2007] EWCA Crim 2784

EWCA_Crim_2784

2007-11-27

supreme_court

Neutral Citation Number: [2007] EWCA Crim 2784 Case No: 2007/00609 C3 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM The Crown Court at Merthyr Tydfil HHJ Morton T970183 Royal Courts of Justice Strand, London, WC2A 2LL Date: 27/11/2007 Before : LORD JUSTICE HOOPER MR JUSTICE AIKENS and MR JUSTICE CALVERT-SMITH - - - - - - - - - - - - - - - - - - - - - Between: John Robotham Appellant - and - The Crown Respondent - - - - - - - - - - - - - - - - - - - - - (Tr

Neutral Citation Number: [2007] EWCA Crim 2784 Case No: 2007/00609 C3 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM The Crown Court at Merthyr Tydfil HHJ Morton T970183 Royal Courts of Justice Strand, London, WC2A 2LL Date: 27/11/2007 Before : LORD JUSTICE HOOPER MR JUSTICE AIKENS and MR JUSTICE CALVERT-SMITH - - - - - - - - - - - - - - - - - - - - - Between: John Robotham Appellant - and - The Crown Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 190 Fleet Street, London EC4A 2AG Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mark Horton (instructed by D W Harris) for the Appellant Susan Ferrier (instructed by The South Wales Prosecution Service) for the Respondent Hearing dates: 23 + 24 October 2007 - - - - - - - - - - - - - - - - - - - - - Judgement Lord Justice Hooper: 1. The appellant now aged 63 appeals against conviction upon a reference by the Criminal Cases Review Commission (“CCRC”) under s9 of the Criminal Appeal Act 1995 . In addition to the two grounds of appeal based upon that reference the appellant seeks leave to appeal on six other grounds, one of which, ground 8, was sensibly abandoned during the course of the hearing. 2. The appellant who was 53 years old at the time of the offence (late November 1997) and was the editor of a local newspaper. Since 1984 had run an Aikido marshal arts club. The appellant was well known in his local community. 3. His counsel at trial, Mr Christie, described him as “very intelligent and articulate”. In response to questions raised by the CCRC, Mr Christie wrote that in the pre-trial and trial conferences: “[Mr R] certainly was very talkative and my recollection is that he left no stone unturned”. An examination of the voluminous material before us offers support for that assessment. Mr Robotham paid for his own defence. No complaint is made about the time which the appellant’s legal team devoted to his case; for example there was a very lengthy conference with him on 5 th June 1997, some 6 weeks before the trial. 4. In late November 1996, the complainant H was 16 years old. He had joined the club when he was approximately 5 years old. At the time of the offence the complainant was about 5’ 8” and was strongly built. The complainant lived with his grandfather who was his legal guardian. The grandfather, called Alan Hughes, gave evidence at the trial. According to the social services files now disclosed to the appellant, the complainant was in a special class for learning difficulties at the time. 5. In the summer of 1996 the complainant began to do Shiatsu with the appellant. Shiatsu involves applying pressure on different parts of the body to relieve pain and tension. On Wednesday 27 November 1996 some time after 10:00pm the appellant performed Shiatsu on the complainant at the appellant’s home. It was the prosecution’s case that the appellant played with the naked complainant’s penis and he ejaculated. There was no dispute that the appellant had performed Shiatsu on the complainant but the appellant denied that the complainant was naked and denied masturbating him. 6. The issues for the jury were whether they were sure that the appellant had masturbated the complainant and, if so, whether it was without his consent. 7. We turn to the facts in more detail. The complainant said in evidence that when he and the appellant had first done Shiatsu he wore his underpants. However, according to the complainant the appellant then suggested that “now we know each other’s body we should take our pants off” and that is what happened. The complainant’s evidence was that thereafter in his Shiatsu sessions with the appellant, whoever was performing the Shiatsu would be clothed and whoever was receiving it would be naked. According to the complainant, about a week before the incident after an Aikido session at the club the appellant came up to him and remarked that he had a big penis. The complainant said he replied “alright”. 8. On 27 November 1996 he called at the appellant’s house on the way to the Aikido club. The appellant asked him to return to the house after the Aikido as he, (the appellant), needed some Shiatsu on his back. After the session at the club they went back to the appellant’s house. At the material time there was, according to the complainant, no one in the house. According to the complainant the appellant took off his clothes and said “let’s get on with it” and lay naked on the floor in front of the fire. The complainant did Shiatsu on the appellant’s back and then on his front. According to the complainant the appellant then asked him to take his clothes off which, so he said, he did reluctantly as he was tired and wanted to go home. The complainant lay naked on the rug. The appellant did Shiatsu on the complainant’s back and his front and “then he started going to my penis”. The complainant’s evidence was that the appellant had touched his penis before during Shiatsu if it was on the same side that he was massaging. The appellant would push it to one side. The complainant’s evidence was that, on this occasion, he rubbed the top of his penis up and down and put his finger into his anus at the same time. The complainant said he got an erection and the appellant played with his penis for at least 20 minutes. As the complainant ejaculated or just before he jumped up and said “wow I’m coming”. The appellant told him to relax and pulled him back on the rug. The appellant pulled a handkerchief out of his pocket and wiped the semen off of the complainant’s stomach and penis, the put the handkerchief down and then continued to rub down the complainant generally. He then tapped him and said “right, all done”. 9. The complainant said he was embarrassed and the appellant told him that his “power” or “key energy” had to come out somewhere and it had decided to come out there. He was offered a tea or coffee and an egg yolk drink for weight lifting. The complainant drank these and the appellant then unlocked the inner and outer doors to let him out. The wooden door was bolted and chained and a key was used to unlock the pvc door. As he left the appellant told him that his back was better. 10. The complainant and his grandfather were interviewed by the police on 27 January 1997 and each made a statement. 11. Given the appellant’s links with the local police force, a nearby force took over the investigation. The officer in the case was DC Roper. 12. The appellant’s account was very different. 13. Following his arrest two months later on 29 January 1997 he answered all questions put to him in interview and vehemently denied the indecent assault. He said that Alan Hughes must have put the complainant under great pressure to make a false complaint. 14. We do not have a full transcript of the appellant’s interview. Nor do have a transcript of his evidence at the trial in July 1997. However it is clear that there were a few significant differences between what he told the police in interview and what he was to say in evidence. 15. First, the appellant, having said that it was the complainant who asked him to go back to the appellant’s house, was told that the complainant had said that the appellant asked him to go back to his house to do Shiatsu on him because of a problem with his back. The appellant’s reply was: “Yes, he did that I had forgotten about that sorry”. In evidence the appellant reverted to his original account: it was the complainant who had asked to come back to the appellant’s house. 16. Secondly, in his interview the appellant agreed with the complainant’s account that the complainant had done Shiatsu on him first, both on his back and on his front; then the appellant had dressed and he had done Shiatsu on the complainant. In evidence the appellant said that the only Shiatsu that had been performed was by the appellant on the complainant. 17. Thirdly, in interview, having been told that the complainant said that he was naked when Shiatsu was performed on him, the appellant replied that he could not remember if the complainant had kept his pants on or not, “but it was no big deal”. He aired: “It was what happened to dozens of other men” and that he couldn’t do Shiatsu through clothing. In evidence the appellant gave a different account. The complainant had kept his pants on whilst the appellant performed Shiatsu on him in his house. 18. Fourthly, the appellant told the police in interview that he had touched the complainant’s penis on the 27 November 1996, when he had moved it out of the way. He said: “Well, that’s what happened on this occasion. That’s what happened. That’s what I do with everybody”. A little later he said that sometimes you had to push the penis out of the way “because it was flopping forwards””. “This was done to make sure that you didn’t touch it”. He added that the groin “was an important part of the body for Shiatsu”. In evidence he denied touching the complainant’s penis. He also denied that the complainant had a “hard on” - “that’s not true”. He later said that he didn’t really think that the complainant had had an erection, but he didn’t look for these things. 19. The fact that in interview the appellant had said that he could not remember whether the appellant had kept his pants on and his admission that he had touched the complainant’s penis, coupled with the fact that in evidence he was denying the truth of these answers may well have been seen by the jury as tending to support the allegation made by the complainant. Unfortunately as we have said, we do not have a transcript of the evidence of the appellant. Such a transcript might have assisted us in evaluating his evidence and the answers he gave to what must have been difficult questions. 20. At the trial the appellant said he had known the complainant since he was approximately six or seven years old. On 27 November 1996 he had done Shiatsu massage on the complainant in the appellant’s house, but that was the only time that this had occurred there. He started doing Shiatsu massages with the complainant in the summer of 1996 in the male changing rooms. The complainant only ever undressed to his underpants and was never naked. On the night in question the appellant agreed to give the complainant a massage at his home because the club was cold and they could not get a lift if they stayed on there. He said that at his home the complainant undressed to his underwear. The ten o’clock news was on the television and he started to massage the complainant’s back and front. The complainant wore his pants throughout. He did not touch his penis either deliberately or accidentally and did not put his hand inside the complainant’s pants. He did not see any erection. After the massage the complainant stayed in the house. The appellant’s son Christopher was in the house and at some point looked downstairs to check the time and left about 10:30. He gave the complainant a watch and an egg drink. They talked. The complainant left the house in good spirits. 21. The appellant’s 18 year old son gave evidence that he could recall that night of the incident, as it was the only time he had seen the complainant at the house. He recalled that he looked down the stairs at 10:15 to check the time and saw the complainant having a massage with his pants on. When he left the house at 10:30 the Shiatsu was over and the complainant and his father were looking in a drawer. 22. There was much evidence given about what had happened after the evening of 27 November 1996. 23. The complainant said that he went home and as his grandfather was in bed he did not then tell him what had happened. The first person he told was a Mr John Lewis who he described as a friend. According to the complainant’s, evidence, he went round to the home of Mr Lewis and eventually got round to telling Mr Lewis in front of his wife that the appellant had played with his penis and he had “come”. Mr Horton points out in a note to the Court following disclosure of the social services files that the complainant is recorded as having said: “I thought that I said to Mr Lewis that ‘I came’” We do not share Mr Horton’s view that this is a significant matter. The complainant said that he asked John Lewis whether he should tell his grandfather and that the advice that he was given by Mr Lewis was that he should. He went home and told his grandfather. 24. After the complainant had been to the police on 27 January 1996, and having regard to what the complainant said about his conversation with John Lewis, a police officer went to the home of John Lewis and took a statement from him on 27 January. It appears that the statement made by John Lewis was included within the statements served as part of the prosecution’s case upon the appellant. We cannot however be sure of that because the CPS file no longer exists and when the CCRC started investigating the matter in 2002 a copy of the committal documents, if they existed, was not taken. Mr John Lewis was called as a defence witness at the trial. A look at the cross-examination by Mr Thomas, for the prosecution, of Mr Lewis does not reveal any cross-examination about a previous inconsistent statement made to the police officer who came to his house on 27 January. 25. On 26 June 1997 Mr Lewis made a further statement in the presence of DC Roper, the statement being taken down by an enquiry agent instructed by the solicitors for the appellant. We do not have that statement in its “ section 9 ” form but we do have what appears to be the content of the statement. On this appeal we have also heard the evidence of Mr Lewis himself. According to Mr Lewis the complainant spoke about getting a “hard-on” during Shiatsu. The complainant felt embarrassed about it and was reluctant to carry on with Shiatsu. Mr Lewis advised him to speak to the appellant and to his grandfather. It therefore appears that Mr Lewis has throughout given a consistent account of what the complainant said to him shortly after the alleged assault. 26. There was thus an important conflict of evidence between what the complainant was saying he had told Mr Lewis and what Mr Lewis was saying the complainant had told him. 27. Having spoken to Mr Lewis, the complainant, on his account, spoke to his grandfather, Mr Alan Hughes. When being examined in chief he was not asked what he had said to him. In cross-examination he said that he had told his grandfather what he had told Mr Lewis. 28. The grandfather gave evidence at the trial. He was not asked in chief about what his grandson had told him. In cross-examination he said that he first knew about what had happened when John Lewis phoned him to say that his grandson had something serious to tell him about the appellant, who had “wanked him off”. Mr Lewis denied that he had made such a call. There was no reference to such a call in the grandfather’s witness statement nor, as Mr Horton points out in his submissions about the disclosed social services files, in the account which he gave to social services. In cross-examination the grandfather told the jury that when his grandson had come in shortly after the phone call from Mr Lewis, he had told him that the appellant had both masturbated him and “wanked him off and he had come”. 29. At the trial there was much evidence from the complainant’s grandfather and from the appellant and Mr John Lewis about various conversations. There is no doubt that the complaint’s grandfather was extremely angry at what he believed had happened. According to the complainant’s grandfather some ten days after the incident he went to see the appellant at his house and put the allegation to the appellant in strong language. According to the grandfather the appellant denied it but when he went into more detail he said that “it was very naïve of me, I am sorry”. 30. When asked about this meeting during his interview the appellant said that was shocked by what he was told by Alan Hughes and didn’t know what to say. He said that the grandfather had not mentioned anything about masturbation. He said that “the incident was a small part of the conversation”. On three occasions he accepted that he had spoken about Shiatsu. He said that the grandfather, Mr Alan Hughes, Alan had not made the allegation of masturbation and ejaculation. In evidence, the appellant said that they had not spoken about Shiatsu. He said the whole conversation was quiet and low key and no allegations of a sexual nature were made. One feature of the meeting came out in cross-examination of Alan Hughes, although it had been mentioned by the appellant in interview. It was put to Alan Hughes (presumably on instructions) and accepted by him that he had accused the appellant “of having had a divorce because his wife had found him in a situation with another man”. That, the jury might have thought, suggested that the meeting was not low key. 31. There was a very clear conflict between the evidence of Alan Hughes and the appellant concerning this meeting. The jury may well have had difficulty in accepting the appellant’s account of the meeting as “low key” and his account that no sexual allegations were made. There was evidence to suggest that the grandfather was, for whatever reason, very angry at this time. On the other hand Alan Hughes gave evidence that he did not know exactly what the appellant had done until his grandson made the statement to the police which was some two months later at the end of January 1997. It was not until then that he knew that, according to his grandson, the appellant had put his finger on the complainant’s anus although he knew, so he said, about the masturbation and ejaculation. On this appeal, Mr Horton also points out that at first Alan Hughes did not believe his grandson- “I couldn’t believe John [Robotham] would do such a thing”. 32. So far as John Lewis is concerned Alan Hughes was alleging that when he had made his statement to the police officer, he had not told the true story of what the complainant had told him. 33. Following his conviction and sentence to three months imprisonment the appellant did not appeal. According to the note provided to the CCRC by Mr Christie, he saw the appellant in the cells after conviction and sentence and “he agreed with me that he had had a fair trial”. Mr Christie states that he did not thereafter receive a request to advise on the merits of an appeal (notwithstanding, we add, that the appellant had funded the case privately). Indeed the appellant was anxious that both Mr Christie and Miss Port represent his son at forthcoming criminal proceedings for witness intimidation, the witness being the complainant in this case. They did so and the son was acquitted. 34. The fact that the appellant did not appeal at the time of his conviction is some indication that, at the time, it was thought that there were no grounds to contest the fairness of the trial and the safety of the conviction. 35. According to a report prepared within the Office for the Supervision of Solicitors dated 24 November 2004, the appellant, having obtained fresh evidence from the NSPCC and other sources between October 1997 and April 1998, wrote seven letters to his solicitors requesting steps be taken to progress his appeal. According to the CCRC report: “In January 2005 a Law Society Adjudicator upheld a complaint made by Mr Robotham that his trial solicitors… failed to take his appeal forward.” For that and another reason the CCRC decided to refer the case directly to this court notwithstanding that there had been no appeal. 36. The appellant made his first application to the CCRC on 28 May 1998 and the CCRC began a review the case in January 2002. On 8 January 2003 the CCRC decided not to refer the case. The appellant then made a second application, which was received by the CCRCon 6 May 2003. Having considered further representations the CCRC took a final decision not to refer the case to this court on 11 January 2005. 37. There was then further correspondence and the appellant provided the CCRC with information about the outcome of his complaint to the Law Society about the conduct of his trial solicitor. The CCRC decided to stand by its decision not to refer. There followed a notification from the appellant that he intended to challenge the decision not to refer by way of judicial review. The CCRC agreed to consider the case for a third time. According to the Report: Mr Robotham’s case was re-opened and given a new reference number (00323/2005). It was allocated for a third review on 26 April 2005. After correspondence with Mr Robotham, it was agreed that the Commission would re-examine only the following issues in respect of his case: (i) Matters relating to the NSPCC including: The extent of the investigations made by the police and defence solicitors prior to trial with regard to the contact by Alan and Aaron Hughes with the NSPCC. What these investigations, if they were made, revealed or could have revealed. The extent to which the result of these investigations could have assisted Mr Robotham’s defence. (ii) Previous allegations of a sexual nature made by Aaron Hughes against others, including: What these allegations were. When they were made and to whom. When Mr Robotham’s solicitors became aware that previous allegations had been made and any action they took in respect of this issue. Whether or not there is any evidence to suggest that the previous allegations made by Aaron Hughes were false. Whether or not there was a legal basis for cross-examining Aaron Hughes with regard to these previous allegations at the trial and, if so, whether this would have significantly undermined his credibility. (iii) New evidence regarding a financial motive: Whether or not the fact that, by the time of the trial, Alan Hughes had already made an application to the Criminal Injuries Compensation Authority on Aaron Hughes’ behalf, might have been used in cross-examination to undermine the credibility of Aaron or Alan Hughes and lend weight to the defence case that the allegation had been financially motivated. (iv) The relationship between the person charged with preparing Mr Robotham’s defence, Ms Port, and the officer in the case, DC Neil Roper, including: Whether there is any evidence that this relationship gave rise to a conflict of interest that directly or indirectly undermines the safety of Mr Robotham’s conviction. (v) The cumulative effect of all the above factors in raising a real possibility that the Court of Appeal would consider Mr Robotham’s conviction to be unsafe. 38. Having conducted the review and considered further representations from Mr Robotham, the CCRC referred the conviction to this Court on the grounds that there is new evidence as regards the practice and procedures of the NSPCC and a previous allegation of sexual impropriety made by the complainant. That allegation related to an incident when the complainant was about 14 years old, the incident involving an 18 year old boy staying at the complainant’s home. The CCRC declined to refer on the other grounds. Leave to appeal on those other grounds, as well as on fresh grounds, is now sought. 39. The appellant has made complaints to the CPS, the PCA/IPCC, the Bar Council and the Law Society, to some of which we shall refer later. 40. We turn to ground one, which concerns the NSPCC. In his statement dated 27 January 1997 the complainant wrote: I have contacted the NSPCC with my granddad and this was in December. I have now contacted the police because it is upsetting my granddad.” 41. Nothing was said by the grandfather in his statement about contacting the NSPCC. The CCRC have examined the local authority social services files. We have now received the permission of the local authority to disclose the relevant parts to the parties. On 28 January 1997 Mr Alan Hughes was reported as saying: [He] was very angry about this [that is, what his son had told him]. He telephoned the NSPCC (unsure which branch as he had it out of Yellow Pages) who told him to put it down to experience. He told me that it was playing on his mind and Aaron would not return to the club as it had upset him. 42. In his October 2003 statement to the CCRC Alan Hughes describes obtaining the telephone number from a Linda Edwards, who, in a statement to the CCRC, says that she did not give the number. Mr Horton relies on this inconsistency as part of ground 1. We see no merit in this point. What matters is whether the call was made, not the source of the telephone number. 43. The Social Services notes for 29 January 1997 read: Mr Hughes’ discussion (Tony [Aaron] was present during the conversation). He spoke with both Aaron/Tony and Mr Hughes. In conclusion it was thought by the NSPCC worker that because it was one persons’ view against another and that Aaron had told the worker that he felt alright/OK about the assault – (He was asked – “is it bothering you” – Aaron said “no”). “Even though he wasn’t OK” said Mr Hughes. That it would be best not to continue, as the child may not be believed. 44. DC Roper wrote a letter dated 16 April 2002 to the CCRC in which he stated that on February 5 1997 he obtained, apparently from Alan Hughes, further details about the NSPCC phone call. In an interview with the CCRC on 20 May 2002 he said that he was 90% sure that he was told by Mr Hughes that the call was anonymous but he (Mr Roper) had hoped that there might be a log of anonymous calls. He wrote in his letter of April 16 2002 to the CCRC, Mr Roper said that he had contacted the NSPCC but was told that no details could be given without the consent of those who had made the call. DC Roper said on 20 May 2002 to Mr Goodwin of the CCRC that he wanted to obtain any details from the NSPCC because a phone call to them in December 1997 could provide evidence of a an “early complaint”. We add that it would also have been useful to rebut any suggestion (now made by Mr Horton) that the complainant and his grandfather decided to fabricate the complaint and decided at some time shortly before the trial to invent a call to the NSPCC to explain the delay between the incident in November 1996 and the report to the police in late January 1997. 45. Consent statements from the complainant and his grandfather were obtained on 7 February 1997 and later served on the defence. The statements gave consent to the police having access regarding any information or documents “held by your Agency”. The agency was not named. DC Roper on 20 May 2002 said that the only purpose of the statements was to obtain information from the NSPCC; social services had already told him that they would not disclose without a court order. That, in our view, rings true. The only agency which apparently could provide evidence of an early complaint was the NSPCC. 46. According to Mr Roper’s letter in May 2002 these consent statements were faxed to the NSPCC along with a covering report “with regards to the telephone call”. DC Roper said that he had not retained a copy of this report. According to DC Roper “Unfortunately no details were available as the call was anonymous”. This information was, according to DC Roper, forwarded to the CPS as a handwritten “Officer Report”. He also forwarded another handwritten report covering his enquiries with the social services department. They were handed over to the CPS lawyer on 24th June 1997. 47. Mr Horton challenges DC Roper’s account. He relies, in particular, on the fact that on August 27 2003 the CPS, in answer to a complaint from the appellant, wrote that they could find no such report on the file and that the lawyer in charge of the case rejected any suggestion that he had received a copy of the report at all or on 24 June 1997, the day on which DC Roper said he had handed over the report to the (unnamed) lawyer in the case. The writer of the letter rejected a comment made by DC Roper on 22 May 2002 that the CPS often had problems tracing papers. Mr Horton points out that although there is a reference in the officer’s notebook to obtaining the consent statements there is no reference to any contact with the NSPCC, or to the results of such a contact. There is however reference to contacting the CPS on three occasions including 24 June 1997, the entry for that day reading: “To CPS Merthyr Tydfil disclosure docs re J Robotham”. 48. In our view it is impossible now to resolve whether DC Roper reported to the CPS about what he had discovered. However, we find it unlikely that DC Roper would have omitted to make enquiries of the NSPCC having obtained the consent statements given what he saw, rightly, as the importance of finding evidence of “early complaint”. We return later to the fresh NSPCC evidence. 49. The CPS letter to the appellant also states that neither the case lawyer nor the “the very experienced barrister”, Mr Thomas, thought it necessary to institute further enquiries about the call. 50. On 6 June 1997, following the lengthy conference the day before, Miss Port, who was employed by the appellant’s solicitors and who had immediate supervision of the case, wrote to the CPS asking what agency “is being referred to” in the “consent” statements and to disclose any information obtained from the NSPCC. No reply to that letter has been traced- although a further request made in the letter was, so it appears, acted upon. Miss Port and the solicitor in charge of the case, Mr Keith Thomas (a friend at the time of the appellant) are described in glowing terms by Mr Christie in a letter dated 10 June 2002 which he wrote to the CCRC. 51. Miss Port had also written to the local authority asking if they could confirm that there was any report from the NSPCC on their files. According to Miss Port “Mr Christie only wants those files ... if there is any information on there from the NSPCC in relation to the original complaint that was made.” A witness summons was served on the local authority to produce their files, which were produced on 30th June 1997. 52. On 18 June 1997 Miss Port phoned Mr Christie about “the reply that we had from the Social Services Department in relation to the report from the NSPCC.” We do not know what Miss Port had been told by the Social Services and therefore do not know precisely what she told Mr Christie. Did Mr Christie then conclude that the complainant and his grandfather had contacted the NSPCC? 53. Given the absence of documentation, we do not know what happened at the Plea and Directions hearing which it appears had taken place a few days earlier. Was there any reference to the unanswered letter from Miss Port? Had the matter been resolved? 54. Just before the start of the trial there was a hearing in chambers with the judge (with both counsel present) about the social services file, over which the local authority was claiming PII. The judge was told that the defence wanted to know whether there was anything in the social services files which was inconsistent with the accounts given in the statements of the complainant and Mr Alan Hughes. The judge decided that there was not and that the file was entirely consistent with the fact that the complainant and his grandfather had spoken to the NSPCC. Having now seen the file, we can say that he was right to do so. 55. At no point during the trial was the fact that there had been contact with the NSPCC ever challenged by the defence. No question was asked of DC Roper about any enquiries that he may have made of the NSPCC. No reference to the unanswered letter from Miss Port was made. Mr Christie knew, as the judge told him, that the judge did not have the NSPCC file. However, Mr Christie may have thought (and this is speculation) that the NSPCC had forwarded a report of the contact with the complainant and his grandfather and that the report did not help the defence given that the judge’s statement that he had seen saw no inconsistencies in the social services file. 56. Mr Horton is critical of Mr Christie’s handling of this part of the case. He submits that the defence should have made enquiries to confirm that there had been contact with the NSPCC and to discover what had been said, if there was a record of it. Mr Christie states in his letter to the CCRC that he was unaware that DC Roper had made enquiries of the NSPCC as he claims to have done. 57. What seems clear to us is that the experienced prosecution and defence lawyers did not see fit to doubt that there had been some contact with the NSPCC. For some reason or another they did not ask for any details of such contact, even though the details might have helped the prosecution (recent complaint) or the defence (prior inconsistent statement). Putting aside the fresh evidence, what would have happened if the defence had followed up the matter, by, for example, another letter to the CPS or by direct contact with the NSPCC? If DC Roper is truthful and accurate then they would have been told that there was no record of any contact because the call was anonymous. Yet neither the CPS case lawyer nor Mr Christie recollects being given such information. One can only wonder whether in fact the information was given, but the fact that it was given had been forgotten by the time the CCRC were investigating the matter with the NSPCC. 58. In cross-examination at the trial, the complainant was asked why it had taken so long to complain to the police. The complainant said that his grandfather had phoned some help line not long after the incident. The man on the phone had said “Put it down to experience”; the complainant had replied “Okay” and his grandfather had said “All right, fair enough”. The complainant accepted the suggestion from Mr Christie that within a few days the complainant had rung some help line and “they weren’t very helpful”. When asked again why there had been the delay of two months before going to the police, the complainant said: Q. Well how did you come to go to the police nearly two months later then? A. Because my father was getting a bit worried, he was thinking of not so much myself now, and he was thinking of the kids he was teaching and he couldn’t sleep at night, he was getting a bit worried, so he- Q. Your father was? A. Yes. Q. Not you? A. I was worrying but I wanted to leave everything, I didn’t want to go through everything. Q. You were worried about what had happened to you? A. Yes. Q. And your grandfather was worried about other things? A. Well he was worried, obviously, about what happened to me, but it is just that he was also thinking of the other kids doing Aikido. Q. I see. Was he getting annoyed and het up, your father? A. He weren’t annoyed, he was calmer… he was… neither of us could sleep and we sat down and we discussed it and we said, okay, we’ll take it further and that is why he got in contact with the police. Q. On the 22 nd January? A. Yes. Q. Did you do that because your grandfather was pressurising you into doing it? A. No we sat down and we did discuss it and I thought then, after realising, that it was best, so we did. Q. I see. Some two months later? A. Two months later. 59. We now know that the social services files show that Alan Hughes said to them that the NSPCC had told them to put it down to experience. Mr Christie was not challenging that there had been such contact. To do so might have led, (so Mr Christie could well have thought) to the introduction of evidence to rebut recent fabrication. He was also not asking what the complainant had said to the NSPCC to evoke the response “put it down to experience”. To do so could have been very dangerous. 60. In his examination in chief Alan Hughes was asked what he did after his grandson had told him what the appellant had done. He replied that he had spoken to somebody at the NSPCC and also to the Samaritans, Child Line, the police and social services. (Later he gave a more detailed account of the chronology of his calls to Child Line and Social Services just before the police came to see them. We note that according to the account given by Alan Hughes to Social Services on 29 January 1997 it was the social services who actually called the police.) 61. We turn to the cross-examination of Alan Hughes. Q. Why did it take two months for you to go to the police…? A. Well first of all, just after the incident, I phoned the NSPCC. Q. How long after? A. It might have been the next day, you know, it was very soon after I phoned the NSPCC. Q. Why didn’t you go to the police? A. Well I was afraid, right, to be honest with you, now Mr Robotham is always mentioned PC Paul Cannon, Inspector Paul Cannon… Plus Mr Keith Phillips, who is a Magistrate…I was afraid if I went to the police….I thought I could lose my home, right, he could sue me, you know, for making allegations against him. ... Q. So are you suggesting that the reason you didn’t go to the police was that because you thought that compared with John Robotham – are you suggesting that the police wouldn’t do anything about it, or what, because they knew Mr Robotham, or you didn’t trust the police… A. I was afraid in the case they wouldn’t believe me, believe us, because of Mr Robotham’s standing in the locality. ... Q. …you contacted the NSPCC because you say you didn’t think the police would do much about it…? A. I wanted advice Sir; I didn’t know what to do. Q. You got through to them in a couple of days? A. Yes Yes Q. And then you contacted someone else? A. Aaron had gone down my daughters, he do baby sit. I phoned the NSPCC and explained the situation to the gentleman, right, and he wanted to speak to Aaron. I said, “Well Aaron will be home on Sunday evening” and he said, “Well phone me back”. We phoned him back, he spoke to Aaron, and the words he said to Aaron was “I suggest because of Mr. Robotham’s standing” as in, you know, he knows the police, he knows the Magistrates and everything, he said, “I suggest you put it down to experience and leave it there” Q. Who said that? A. I cannot remember his name Q. Someone on the phone? A. Yes from the NSPCC, Sir. Q. From the NSPCC? A. Yes Sir Q. Telling you to turn a blind eye to an allegation of a gross indecent act on your son and you accepted that advice? A. Yes Sir Q. So you were prepared to do that? A. Well the people, the NSPCC, and you know, I went for help, advice and that’s what the gentleman told the both of us. Q. I see, on the phone? A Yes Sir 62. Alan Hughes later said when asked again why it had taken two months before the complaint was made: Between what the NSPCC told me, I was going back and forth with John Lewis [who] was keeping on about “I’d leave it there if I was you because ... [the boys] would take the mickey out of him ... and I didn’t know what to do and I was mixed up.” 63. In his ground one of appeal Mr Horton writes “The key excuse provided by the complainant and his [grandfather] to explain the delay of two months ... was that the NSPCC had been contacted on two occasions and that organisation had dissuaded them from complaining to the police”. An examination of the passages in the transcript does not suggest that it was a “key” excuse. It was one of a number of explanations for the delay. 64. Mr Horton submitted that the complainant and his grandfather just before the trial put their heads together and decided to invent a call to the NSPCC to explain the delay. We have considerable difficulty with that submission. If they had put their heads together before going to the police, then one would have expected to find details of the NSPCC call in the complainant’s statement and a reference to the call and the details of the call in the grandfather’s statement. The fact that the social services were told about NSPCC calls in some detail at the time of the statements does not support an allegation of fabrication at any point after that. It also seems very unlikely that the complainant and his grandfather would have invented a call to the NSPCC and signed the consent statements in the knowledge that they had made no such call. 65. Mr Horton relies on the fact that the evidence on cross-examination of Alan Hughes, who appears to have been an excitable witness, suggests that he gave the appellant’s name to the NSPCC. Alan Hughes denies that he ever did in a subsequent statement to the CCRC and cannot explain why he mentioned the name. He described it as a “typing error”. Absent any clarifying questions at the time as to what Alan Hughes meant (if he used these words), we do not accept that this shows that the appellant’s name was disclosed to the NSPCC. Additionally the complainant in a statement to the CCRC denied that any identifying details of those involved were given. There is no indication in the social services file that the appellant was identified to the NSPCC in the social services file. 66. We turn now to the fresh evidence from the NSPCC. We start with paragraph 62 of the report by the CCRC: In a letter to the Commission (dated 1 st May 2002), Anne Stoker, the Service Manager of the NSPCC Child Protection Helpline, confirmed that a search of their computer database had found no record of any calls relating to an Aaron Hughes. However, she also stated that this did not mean that the calls had not been made. This was because records of anonymous calls (i.e. calls that did not reveal any identifying details) were only retained for one year. About 90% of the calls to the helpline were anonymous. In addition, it was not possible to trace the members of staff on duty at the time the telephone calls were allegedly made by Alan Hughes. This was because staff rotas were not retained for more than one year and there had also been a high turnover of staff since 1996. Ms Stoker further commented that, although it was hoped that helpline staff would never dismiss a caller’s concerns in the manner described by the Hughes family members, there had been occasions where the counselling and advice offered by helpline staff had “fallen below standard”. The NSPCC were therefore unable to confirm one way or the other whether the calls had been made. 67. This letter came into existence as part of the first of the reviews carried out by the CCRC. During the review the CPS files were examined and no trace of an Officer’s Report about the NSPCC was found. (We note, however, that other documents appear to have been missing from the CPS file, a file which has now been destroyed). At the conclusion of the review in January 2003 the CCRC declined to refer the conviction. 68. The CCRC wrote (see paragraph 74 of the report prepared in connection with the present appeal): There was evidence that confirmed DC Roper’s account of obtaining signed authorities from both Alan and Aaron Hughes authorising the release of third-party information. The Commission considered it unlikely that he would have obtained these authorities and then failed to make the enquiries. 69. We agree. 70. In the course of the second review the August 2003 CPS letter to the appellant was examined and a statement was taken from a Mr John Cameron. According to the report prepared in connection with the present appeal: 80. Mr John Cameron, head of the Helpline Service at the NSPCC, provided a witness statement to the Commission (received on 19 March 2004) outlining the recording procedures for telephone calls received by the helpline – at both that time and in late 1996 when the calls by Alan Hughes were allegedly made. The salient points of his statement were as follows: i. The helpline took between 250 and 500 calls per day. Staff levels were co-ordinated depending on demand but there were never fewer than two advisors on duty and at busy times there may be 10. There was also a duty manager there between 8am and 8pm. ii. At the time that Alan and Aaron Hughes state they talked to an adviser on the NSPCC helpline (November-December 1996), notes of all calls were made by members of helpline staff in rough notebooks that were retained for six months. However, the NSPCC dealt with anonymous and non-anonymous calls differently. iii. Calls that identified a child at risk or any other party were classified as “Form 18” reports. The details were taken down by hand by the helpline advisers and passed first to the duty manager for checking and then to an administration team to be entered onto a computerised database. Prior to 2002 these reports were retained for one year. The relevant authorities (police, social services) would also have been informed. iv. Anonymous calls or calls where it was not possible to identify a child at risk or other parties were classified as “Form 19” reports. Very brief details were handwritten on a paper running sheet and retained for six months before being destroyed. They were not entered onto the computerised database. v. After mid-1997, all calls were added to the computerised database. There was no record anywhere on the database that made any reference to Mr Robotham, Alan Hughes or Aaron Hughes. vi. The NSPCC “would never be influenced by the status of an alleged perpetrator”. It was “unlikely in the extreme” that, in 1996, a report identifying Mr Robotham would not have been recorded on the computerised database under the “Form 18” procedure. It was also “unlikely in the extreme” that advice would have been given by a member of the helpline staff to “put it down to experience”. Such behaviour would be regarded by the NSPCC as high level misconduct. Mr Cameron was unaware of there ever having been an allegation as serious as an adviser dismissing a caller’s report in such a way. vii. There was “no logical reason” why an adviser would ask a caller to call them back at a specified time or date. Although they might know when they were next on duty, there was no guarantee that they would be available to take the call. vii. Any police enquiry made with the NSPCC would normally be made in writing. The NSPCC had no record of any enquiry being made by DC Roper or any copies of statements from Alan and Aaron Hughes authorising disclosure or any record held by the NSPCC about them. It was usual practice for the NSPCC to provide a written response to any police enquiry. The absence of any record of an enquiry made by DC Roper in respect of Alan or Aaron Hughes, or Mr Robotham, suggested that it was “unlikely that such an enquiry was made”. viii. It was not possible to state in unequivocal terms that Alan Hughes did not make the calls he says he made to the NSPCC. “However it is highly unlikely that such a report would not have been documented…and referred to the appropriate agency for investigation.” 71. Mr Cameron said that if the complainant and his grandfather had not identified themselves or the appellant then the call would have been recorded on Form 19, a paper running sheet, showing time and length of call, the gender of the caller and the category of call. These records were kept to provide information about general call demand and, at the time, not added to any computer database. 72. It is of note that Mr Cameron understood that the claim which was reported to the NSPCC was an allegation of sexual abuse and his statement must be read accordingly. We do not know with any precision what details were given to the NSPCC (if the call was made). But it may well be that the complainant, who was aged 16 at the time (whether that was known to the NSPCC worker or not we do not know) was alleging no more than that he had been masturbated by another person whilst being consensually massaged. That would not have been an offence unless the complainant did not consent to the masturbation. 73. The CCRC concluded, amongst other things, that: 102. In the view of the Commission, it is likely that, had it been known at the time of the trial, the evidence now available from the NSPCC, while not determinative of the issue, could usefully have been relied on by the defence as providing strong support for the proposition that it was highly unlikely that the calls described by Alan and Aaron Hughes had actually been made. If the jury had been satisfied that that proposition was, or might be, correct, this could, in the Commission’s view, have had a significant impact not just on the jury’s assessment of the credibility of the explanation given by Aaron and Alan Hughes for their delay in reporting the alleged assault to the police, but also on their assessment of their credibility more generally. 74. Mr Horton relies on the evidence of Mr Cameron and on this conclusion. 75. On 26 March 2003 Mary Marsh of the NSPCC wrote to the appellant. She refers to a letter written by Mr Cameron in 1997. We do not believe that we have seen that letter and it is not referred to in the Annex C to the CCRC report. Mary Marsh searched the records and could find no reference to a call in relation to the appellant. Miss Marsh’s letter states that only very limited information would have been recorded in 1996 of calls in which no individuals were identified- which accounts for 90% of all calls. She wrote: “These forms of recording do not lead to retrospective identification of a specific call.” In other words, retrospective identification of a call is not possible. If a call identifies a child at risk and the individuals involved, then details would be recorded and a report sent to the police or social services within 24 hours. A high volume of calls are made. She cast doubt on some of the assertions made by Ms Stoker. 76. As part of ground 4 complaint is made that the alleged failure on the part of DC Roper to call the NSPCC having received the consent statements was linked to his relationship with Miss Port, a relationship to which we turn briefly below. We fail to see the relevance of the relationship to this alleged failure. 77. Against this background we now give our conclusions on ground 1. In our view the fresh evidence, particularly from Mr Cameron, does not afford any ground for allowing the appeal. If it had been suggested at trial that the complainant and his grandfather had lied about making the calls to the NSPCC in early December 1996 and if all the material evidence now before us (including material helpful to the respondent’s case) had been available to the jury, the jury would have rejected this allegation. The briefest mention of the NSPCC in the complainant’s statement and the absence of any mention in the grandfather’s statement points strongly if not overwhelmingly against a conclusion that the alleged decision to fabricate the calls in order to explain the delay had been made before going to the police. The suggestion that the decision to fabricate had occurred after going to the police but shortly before the trial (the suggestion made by Mr Horton to us) is quite inconsistent with the contents of the social service files. We have no doubt that the jury would have concluded that the calls were made. If DC Roper had been asked about the enquiries he made, then we think that it is very likely that the jury would have accepted his statement that he made the call and “Unfortunately no details were available as the call was anonymous”. It is the (fresh) evidence of the complainant that no details were given. The NSPCC evidence taken as a whole supports the contention that it would not have been possible to trace an anonymous call made in early December 1996 against the background of a huge volume of daily calls. The jury might have wondered whether, in the light of the evidence of Mr Cameron, an NSPCC worker would have said words to the effect “put it down to experience”. But that would depend on a closer analysis of what had been said to the worker. It would not in our view have undermined the credibility of the complainant to the extent that the jury would have disbelieved him, given, in particular, the appellant’s answers in interview which we have identified above. Whatever doubts the jury may have had about what precisely was said by the complainant to John Lewis, nonetheless something had apparently happened at the appellant’s house sufficient to make the complainant want to talk to John Lewis. On the appellant’s account in evidence nothing had happened which could have led to the complainant being embarrassed or concerned by what had happened. If nothing had happened and if the meeting with Alan Hughes was “low key” why was the appellant “shocked by what he was told” by Alan Hughes and “didn’t know what to say”. 78. The fresh evidence read as a whole does not, in our view, undermine the safety of the conviction on this ground. We dismiss ground 1 and refuse leave to appeal on that part of ground 4 which touches on ground 1. 79. We turn to the second ground, which is also a ground on which the CCRC referred the conviction. At the trial the complainant was not cross-examined about two earlier incidents which he had described to others, including the appellant, at the Aikido club. One incident concerned the son of one of Alan Hughes’ girlfriends and the other occurred in a toilet while the complainant was on holiday at a campsite in Porthcawl. At the time of the incidents, so the complainant told us, he was about 13-14 years old. 80. The appellant wrote a post conviction letter to his trial solicitors on 15 December 1997 headed “Additional Points To Those Already Made Concerning The Trial Of John Robotham” (underlining added) which included the following: He [the complainant] told me, and on a separate occasion Mr and Mrs John Lewis, that he had awoken one night to find the 18 year old son of Mr Hughes’ Snr’s girlfriend in Aberdare having anal sex with him. (He actually said “he had his cock up my arse”). He said he told his grandfather who said not to mention it in case it affected his relationship with the mother of the youth. On another occasion he told me, Mr and Mrs Lewis and others that while he was on holiday in Porthcawl he went into a toilet where a man was looking at him through a hole in the cubicle partition wall. He said he chased the man out of the toilet which was near the funfair and told the police. He said they checked buses to see if he could identify the man. 81. In a statement made to the Commission (dated 22nd May 2002), the appellant stated that he was “totally positive” that he had informed his solicitors prior to the trial, either orally or in writing, about other allegations made by Aaron Hughes. The first written record which the CCRC could find was the post conviction letter of December 15 1997. 82. In a letter to the Commission (dated 10 June 2002), defence counsel, Mr Christie, was adamant that he was not made aware of these previous allegations and that Mr Robotham himself did not mention them to him during any of the pre-trial conferences. 83. John Lewis told us that when his statement was taken on June 26 1997 by the enquiry agent in the presence of DC Roper, John Lewis said that the complainant had made other allegations. To which, according to John Lewis, the enquiry agent said words to the effect that that it would only complicate things. He therefore recorded no details, as we could see from the typed up notes in the CCRC file prepared for this reference. 84. The CCRC wrote at the conclusion of the first review: ... there was no real possibility that the Court of Appeal would conclude that Mr Robotham’s representatives had acted incompetently so as to render his conviction unsafe. 85. It is now submitted that the accounts of what John Lewis, David Lewis (a teacher at the complainant’s school, no relation) and the appellant say that the complainant had said about these two incidents is in conflict with the appellant’s account of the two incidents to the CCRC in November 2003. It is also submitted that that account differs, in some respects, from the account given by the appellant to us. It is said that in the accounts given to the appellant and others the complainant is exaggerating what on his account in November 2003 and to us, actually happened. 86. The CCRC concluded in its report referring the conviction to this court: 139. As at the date of the trial, the potential significance of the evidence about the ‘buggery’ incident which could have been given by Mr Robotham and/or Mr Lewis was, on the face of things, very limited indeed. On the information which was then available that evidence could, at most, have established that Aaron had given slightly different accounts of that incident to Messrs Robotham and Lewis in that: he had told Mr Lewis that he had been the victim of an attempted buggery and that, when he had reported the incident to his grandfather, the latter had thrown the woman and boy out of the house; whereas he had told Mr Robotham that he had actually been buggered and that, when he had reported the incident to his grandfather, the latter had told him not to mention it lest it affect the grandfather’s relationship with the woman. Even if those points had been established, it is, in the Commission’s view, unlikely that they would have been of any real benefit to the defence. 140. Since the date of the trial, however, matters have developed considerably in that: Aaron has provided the Commission with an account of that incident which is wholly inconsistent with either of the accounts which he had previously given; and there would in consequence appear to be sensible reasons to suspect that Aaron had by the date of the trial a history of exaggerating to a substantial degree the seriousness of sexual incidents in which he had been involved. In those circumstances (and whatever may be the position as regards the defence’s failure at trial to cross-examine Aaron about the ‘buggery’ incident or to obtain or call evidence about it from Mr Robotham and/or Mr Lewis), the Commission considers that there is now a real possibility that the Court of Appeal could be persuaded to receive new evidence as regards this incident, that new evidence being in the form of the post-trial statements which have in that connection been made to the Commission by Aaron and by Messrs Robotham and Lewis. 141. The Commission does not consider that a referral to the Court of Appeal would have been justified if this new evidence as regards the ‘buggery’ incident had stood alone. Rather, the Commission has decided to include this matter in its reasons for referring this conviction because it takes the view that there is a real possibility that the Court of Appeal will consider that, when seen together with the new evidence as regards the NSPCC issue, the cumulative effect is to give rise to a real doubt as to the credibility of the complainant in this case and the safety of Mr Robotham’s conviction. 87. In his statement to the Commission in November 2003 the complainant described the “buggery” incident in the following way: Another incident concerned a friendship my father formed with a woman called Averil who lived in Aberdare. Averil had a son called Stephen, who was aged about 18 years. I think Stephen had some form of learning difficulties. Stephen stayed overnight in my bedroom on one or possibly more occasions and I recall that he sent me a note of an improper nature. I told my father and Stephen’s mother of this incident. This occurred about 1994/95 and it is something I no doubt mentioned at the Aikido Club. 88. The complainant said in evidence to us that it occurred before the Porthcawl incident. He told us that Stephen had made advances to him, touching his leg. In cross-examination he said that Stephen touched his leg and that the note read “Can I suck your cock”, a note in similar words to that, so the complainant told us, used by the man in the Porthcawl lavatory. He denied that he told people in the club that Stephen had tried to commit an act of buggery and he denied saying that his grandfather had thrown Stephen and his mother out of the house. He denied saying that he had told people in the club that the man in the Porthcawl lavatory had grabbed his penis. 89. Mr Horton pointed out that the complainant had not given the contents of the note to the CCRC investigator - another example of exaggeration, so Mr Horton claimed. Mr Horton also relied on the fact that, to the investigator, the complainant had merely said that the man in the Porthcawl lavatory had made “an improper approach of a homosexual nature”, whereas in evidence before us he gave more detail about the contents of a note which he said that he had received. The fact that the complainant gave more detail to us is, in our view, of little or no relevance. Mr Horton invited us to conclude that the investigator would have asked for details of the “improper approach” and of the “note of an improper nature”. We do not agree. The statement is clearly written in the investigator’s words and not the complainant’s (as the complainant told us) and if the complainant had declined to give details that would, so it seems to us, have been recorded. 90. Do the inconsistencies between the evidence of John Lewis (and of others) of what he was told by the complainant and the complainants’ account of the incidents and of what he said to persons in the club make the conviction unsafe? If the appellant had told his counsel that the complainant had told him and others about the two earlier incidents, counsel, it is submitted, would/should have cross-examined him about the incidents. If counsel had done so and if the complainant had given the account which he gave to the CCRC some eight years after the incidents, then the appellant and others would have been called to say that the account which they received was different. The jury would then, so it is said, have been invited to conclude that the complainant had exaggerated what had happened with the appellant in the same way as, so it would be said, he had exaggerated the earlier incidents when describing them in the club. Given that the appellant did not tell his counsel about the earlier incidents and given that he is an intelligent and articulate man, we doubt whether there is a reasonable explanation for the failure to adduce the evidence from the complainant and others at the trial. It would be a most unfortunate development in our system of criminal justice if, not having adduced evidence at the trial about some comparatively peripheral matter, years later a convicted person could adduce evidence about that matter in an attempt to show that the conviction was unsafe. Assuming that there is a reasonable explanation and assuming that the evidence to contradict the complainant would have been admissible, there remains a fatal flaw in the appellant’s argument. It was the appellant’s case at trial (although not during his interview) that nothing had happened- the complainant remained dressed in his pants, his penis was not touched and it did not become erect. It was and is the appellant’s case that the complainant and his grandfather had invented the whole allegation, not that they had exaggerated an incident which had occurred. Even if the appellant’s counsel had adduced evidence from the complainant about the earlier incidents and even if he had been able to demonstrate that there were inconsistencies between the complainant’s account and the account given by the appellant and others, that in our view would not have resulted in a realistic possibility of a different verdict. 91. We reject ground 2. 92. We turn to grounds for which the appellant needs leave, starting with ground 3. It is submitted that fresh evidence shows that Alan Hughes was present at a time before the complaint was made to the police when a Desmond Hughes (Mr John Lewis’ father in law) completed an application for compensation to the CICA and Mr Alan Hughes’ “eyes lit up”. It is also submitted that an answer Mr Alan Hughes gave in cross-examination would have led the jury to believe that no application to the CICA had been made by the complainant, whereas one was in fact made shortly before the trial. It is submitted that this evidence “combined logically and relevantly” with the NSPCC evidence. It supports the case that the complainant and his grandfather had fabricated the complaint. 93. The CCRC wrote 142. The defence case at trial was that the allegation had been made against Mr Robotham almost immediately after the Hugheses had become aware that it was possible for victims of crime to claim financial compensation. This was an issue that Mr Robotham expanded upon in his first application to the Commission. In particular, Mr Robotham asserted that a new witness, Desmond Hughes (no relation to Alan and Aaron Hughes but the father-in-law of John Lewis), could provide new information regarding the Hugheses’ financial motive. In particular, Mr Robotham asserted that Desmond Hughes was able to state that he was present when Alan Hughes first became aware of the possibility of making an application to the Criminal Injuries Compensation Authority (CICA) and that this was a matter of a few days before the formal complaint was made against Mr Robotham. During the two previous reviews, the Commission undertook a number of investigations into this issue, including taking a statement from Desmond Hughes, examining the defence files, corresponding with Alan Hughes’ solicitor and making enquiries of the CICA. The outcome of the Commission’s enquires is summarised below. 143. Desmond Hughes had been identified by Mr Robotham, prior to the trial, as a potential witness. However, when he was approached by Mr Robotham’s solicitors, he declined to provide a statement and expressed a reluctance to become involved. In his statement to the Commission (dated 21 May 2002), Desmond Hughes stated that he was a friend of Alan Hughes between 1995 and 1997, but had since become a good friend of Mr Robotham. In 1995 he had been the victim of an assault and the police had made him aware of the availability of compensation. One Thursday in January 1997, Alan Hughes had accompanied him to the local police station to discuss making an application to the CICA. While at the police station an officer made a comment regarding the amount of money that was available in compensation. According to Desmond Hughes, Alan Hughes’ eyes “lit up” and he commented that he had not been aware that compensation was available to victims. According to his statement, Desmond Hughes next saw Alan Hughes on the following Sunday (26 th January 1997) when he told him that he had contacted a telephone helpline and had been advised to “take on John Robotham”. This was the first time that Desmond Hughes had been aware of any allegation made by Aaron Hughes against John Robotham. 144. Even though Desmond Hughes was not proofed by the defence, questions were put to Alan Hughes about his trip to the police station with Desmond Hughes and his apparent interest in compensation - the clear suggestion being that he had been motivated to make a complaint to the police against Mr Robotham as a result of what he had learned on that occasion about the availability of compensation. During cross-examination, Alan Hughes accepted that he had accompanied Desmond Hughes to the police station but denied that he had any interest in compensation. The relevant extract of the cross-examination is reproduced below: Mr Christie: Do you know a man called Des Hughes? Alan Hughes: Yes, I was friendly with him, very friendly, yes …. Mr Christie… At about this time, before.., the end of January, were you with Des Hughes when he filled in his claim for a Criminal Injury Compensation Board claim? Alan Hughes: Yes Sir…. Mr Christie: Did you help him fill in his form? Alan Hughes: No, nothing at all…. Mr Christie: I don't want you to go too far off the point if we can, but the point I am trying to make is this, that not long before you went to see the police, you became very interested when Des Hughes was making out a claim form for criminal injury compensation? Alan Hughes: No Sir I'm not interested at all, not at all. Mr Christie: Very interested. Alan Hughes: Not at all Sir, no. 145. During its first review of Mr Robotham’s case, the Commission conducted enquiries with the CICA and obtained a copy of an application made by Alan Hughes, on behalf of Aaron, on 20 th May 1997 – some four months after the official complaint had been made but two months before the start of Mr Robotham’s trial. 146. The Commission supplied defence counsel, Mr Christie, with a copy of the statement of Desmond Hughes and asked him if he had any comment to make in relation to this issue. In his letter (dated 10 June 2002) Mr Christie commented that he considered that the point relating to financial motivation was put very strongly during his cross-examination of Mr Hughes. He also noted that Desmond Hughes could not have been called as a witness at the time because, by his own account, he would have refused to attend. Outcome of the first review 147. In light of the fact that Alan Hughes had already made an application for compensation by the time of the trial, the Commission considered whether or not his answers in cross-examination (i.e. that he was not interested in compensation) could be interpreted as misleading. The Commission noted that Aaron Hughes, rather than Alan Hughes, would have been the beneficiary of any award and that he was fully entitled to make an application for compensation. The Commission also noted that there was nothing in the content of the application made to the CICA which could impact upon the safety of Mr Robotham’s conviction. Furthermore, Desmond Hughes had not given evidence at the trial because he had refused to become involved. Nevertheless, his account of the visit to the police station with Alan Hughes was put to Alan Hughes during cross-examination. The jury could therefore not have failed to appreciate the point that was being made with regard to financial motivation and were able to take this into account in coming to their verdict. The Commission was not persuaded that, in these circumstances, the account being given by Desmond Hughes would now be accepted by the Court of Appeal as fresh evidence capable of rendering Mr Robotham’s conviction unsafe. Second review 148. During the second review of Mr Robotham’s conviction, Alan Hughes contacted the Commission with regard to the suggestion that the complaint against Mr Robotham had only been made after he discovered that financial compensation was available. Alan Hughes told the Commission that he had only become aware of the possibility of compensation after Mr Robotham had been charged . He had been made aware of its availability by his solicitor, Mr Griffiths. 149. Mr Hughes gave his consent for the Commission to contact Mr Griffiths, who supported Mr Hughes’ account that it was he (Mr Griffiths) who had initiated the claim for compensation. Although no attendance note was available in relation to the meeting where the matter of compensation was discussed with Mr Hughes, the Commission were able to obtain a copy of a letter (dated 3 rd April 1997), sent by Mr Griffiths to Mr Hughes and copied to Social Services, in which Mr Griffiths informed them that he had advised Alan Hughes with regard to making a claim for compensation. Current Review 150. During the current review, the Commission has not sought to revisit the issue of when and how Alan Hughes became aware that compensation was available. The Commission considers that this issue was investigated as far as possible during the previous two reviews and that it is not possible to determine this with any certainty. Furthermore, the Commission remains of the view that the ‘new’ evidence of Desmond Hughes would not now be admitted by the Court of Appeal under section 23 of the Criminal Appeal Act 1968 (as amended). The Commission is therefore satisfied that there is no new evidence available, which would be accepted by the Court of Appeal, to support the contention that the complaint against Mr Robotham was made shortly after Alan Hughes’ became aware that financial compensation was available for victims of crime. 151. The Commission has, however, given further consideration to whether the fact that an application for compensation was made by the Hugheses prior to trial , is new evidence capable of raising a real possibility that the Court of Appeal would consider Mr Robotham’s conviction to be unsafe. 152. It is clear that the application form to the CICA, which gives the date of application as 20th May 1997, would be accepted by the Court of Appeal as capable of belief. The Commission also considers that evidence that an application for compensation had already been made would have been admissible and that that point could have been put to Alan Hughes and, indeed, Aaron Hughes, in cross-examination. 153 The Commission has made enquiries of defence counsel in this connection. In a letter to the Commission (dated 27 th March 2006), Mr Christie stated that he was not aware at any time during preparation for the trial (and had not been made aware since) that an application to the CICA had already been made by the Hugheses prior to the start of the trial. Mr Christie stated: “I asked him [Alan Hughes] about Des Hughes and he agreed he had witnessed him filling in a Criminal Injury Compensation Claim (in about January l997) and having Des Hughes talk of being assaulted. He denied this had "made him very interested in compensation" (P41) and was followed up, within a short time with his complaint to the police (27/1/97). Mr Hughes said he wasn't interested at all in Des Hughes' claim. So the inference was made for the jury to consider. I could really go no further. We had no evidence or instructions to push the matter further. I was not aware at the time of the trial that an application for C.I. Compensation had "already" been made…. My Solicitor was not aware either. Had I been aware of the fact that an application had already been made, and then of course this would have been put to Mr Hughes in cross-examination. Also, we (my Solicitor) would have obtained disclosure of the relevant document from the police. We had made a 3rd party application for disclosure from the Department of Social Services; we were aware that NSPCC had been mentioned. The senior resident Judge at the time, at a P.I. I. Hearing on 30.6.97 said there was nothing in the files to disclose. … if the fact that an application had been made was known at the trial, then would it have affected the outcome? Very difficult to say. It would depend on Alan Hughes answers to the questions. He when confronted with evidence may well have admitted to it. On the other hand depending on what evidence was available to establish the fact that a claim was made by him pre-trial and that Mr Alan Hughes had not been alerted to the Defence discovery, then he could have been trapped and his credibility questioned. But, as I've said many times, it's the victim's credibility, the 16 year old Aaron that was the issue in this case not his grandfather. So the question I have posed to myself is almost impossible to answer; there are too many hypothetical situations that could have arisen.” 154. It seems clear, therefore, that the fact that an application for compensation had already been made at the time of the trial would have been put to Alan Hughes in cross-examination had the defence known about it. However, the Commission concurs with the view of Mr Christie that it is impossible to assess what the likely effect that any such cross-examination would have been. Although the revelation that an application for compensation had already been made might have been seen as undermining Alan Hughes’ claim that he was “not interested at all, not at all”, much would have depended upon his other answers in this connection. The mere fact that an application for compensation had already been made by the time of the trial could have provided only limited support for the proposition that there was a financial motive behind the allegations against Mr Robotham if it could not also be shown that Alan Hughes was aware of the availability of compensation before the complaint to the police was made. 155. With regard to whether or not there is a reasonable explanation for this evidence not being adduced at the time of the trial, the Commission notes that Mr Robotham’s solicitors applied for third-party disclosure and that the Social Services files were perused by two judges who concluded that there was nothing in them that would assist the defence. The Commission observes that the letter from Mr Griffiths to Social Services which is referred to at paragraph 148 above (and which mentioned that he had discussed the possibility of claiming compensation with Alan Hughes) was among the Social Services papers at this time. Clearly, however, neither of the judges who read that file considered this to be of relevance to the defence case. 156. The Commission has considered whether the police or CPS were aware of the fact that an application for compensation had been made. Unfortunately, however, the relevant police and CPS files have now been destroyed. The Commission notes that, in line with the procedures of the CICA, a letter was sent to the South Wales Police in June 1997 (prior to the start of Mr Robotham’s trial) informing them that an application had been received by Aaron Hughes and asking them to confirm the details of the complaint as outlined on the application form. The CICA did not receive a response from South Wales Police until November 1997, and that response appears to have come from an administrative manager rather than from any of the officers directly involved in the investigation of the case. At this remove of time and given the destruction of the relevant files, the Commission has been unable to establish, with any degree of certainty, whether the application to the CICA was, before the trial, within the knowledge of the investigating police officers or the CPS. Conclusion 157. The Commission is not satisfied that there is a real possibility that the Court of Appeal could be persuaded to admit the ‘new’ evidence of Desmond Hughes and/or that that evidence undermines the safety of Mr Robotham’s conviction. The Commission acknowledges that, had the defence been aware that an application for compensation had already been made by the time of the trial, they might have been able to make some use of that point when cross-examining Alan Hughes. In all the circumstances, however, (and bearing in mind the absence of any new evidence which lends weight to the suggestion that the complaint to the police was prompted by the discovery that compensation was available) the Commission is likewise not satisfied that anything as regards the making or timing of that application raises a real possibility that the Court of Appeal would quash Mr Robotham’s conviction. 94. We agree with the CCRC’s admirable exposition and adopt it. We refuse leave to appeal on this ground. The jury had to decide whether they were sure that the complainant was telling the truth and whether they were sure that the appellant was lying when he gave evidence. The issue of compensation was, at the most, a very peripheral matter and even if the jury had known that a claim for compensation had been made, that would, in our view, have made no difference to the verdict. 95. We turn to ground 4. It is submitted that the appellant did not have a fair trial because of an intimate relationship between Miss Port and DC Roper and that justice was not manifestly seen to be done because of the relationship. The CCRC has this to say about this complaint: 158. The final issue that the Commission agreed to reconsider during this third review was the fact that the legal executive who had the day-to-day responsibility for the preparation of Mr Robotham’s defence case was, at that time, involved in a relationship with DC Roper – the police officer charged with investigating the offence and who apparently dealt with the disclosure of material. 159. Over the two previous reviews Mr Robotham has made extensive submissions with regard to this issue. He has also made additional points in relation to it during this third review. The central facts and the outcome of the various investigations carried out into this issue by the Commission and by other bodies (i.e. The Law Society and Bar Council) are summarised below. Previous Reviews 160. Mr Robotham’s initial submissions to the Commission on this issue stated that he became aware of the relationship between Ms Port and DC Roper during his trial. The judge was made aware of the situation and, following a hearing in chambers, he allowed the trial to proceed. 161. Enquiries made by the Commission established that the hearing in chambers was held on the morning of 15 th July 1997 (the trial had begun on 14 th July 1997). The Commission obtained a transcript of the hearing. The transcript revealed that the relationship had come to the attention of the CPS which had concerns about it and they had therefore instructed Crown counsel to bring it to the attention of the judge. During the hearing, Crown counsel informed the judge that Ms Port was currently living with DC Roper but that, as far as he [Crown counsel] was concerned, the relationship caused no difficulties in terms of the case. Defence counsel, Mr Christie, told the judge that he became aware of the relationship (and of the fact that Ms Port and DC Roper were living together) at some point after the committal proceedings and that Mr Robotham had been aware of the relationship before he [Mr Christie] had been instructed. DC Roper’s evidence was not contentious and Mr Christie stated that Mr Robotham had told him that it caused him no concern and Mr Christie himself was satisfied that it caused no problems for Mr Robotham and none for the defence. 162. Having seen the transcript, Mr Robotham submitted that the hearing in chambers had taken place before he had been made aware of the relationship. According to Mr Robotham he had not discussed the matter with his legal representatives until 17 th July 1997 and then only at his own instigation after he was told by a friend (Inspector Cannon) of the relationship on the evening of the 16 th July. When he had raised the matter with his counsel on 17 th July, Mr Christie had told him that the judge had been informed and Mr Robotham understood this to mean that the judge had been informed that morning. Mr Robotham contended that his counsel had seriously misled the judge during the hearing when he had said that he [Mr Robotham] was aware of the relationship and had no concerns about it. Mr Robotham told the Commission that, having discussed the matter with his defence team, he decided to carry on with the trial. However this was a decision that he regretted because he now believed that the relationship might have prejudiced his defence. 163. In response to enquiries from the Commission, Mr Christie maintained that the account he had given to the judge on 15 th July 1997 was accurate. Mr Robotham continued to insist that this was not the case. 164. At the conclusion of the first review, the Commission took the view that the issue of when and how Mr Robotham came to be aware of the relationship was clearly a matter of dispute between him and his representatives. However, it was largely a matter of professional ethics and there was no evidence to suggest that the relationship had impacted upon the safety of Mr Robotham’s conviction. The Bar Council 165. As a result of seeing the transcript of the in-chambers hearing, Mr Robotham made a complaint to the Bar Council in Spring 2002. Mr Robotham made the Commission aware of the involvement of the Bar Council during the course of the second review of his case. 166. On 15 th October 2003 the Bar Council decided that Mr Christie should face two charges of professional misconduct and passed the file to an investigations officer. The two charges were: Failing to inform Mr Robotham of the relationship between Ms Port and DC Roper. Misleading the judge as to Mr Robotham’s knowledge of the relationship. 167. The tribunal hearing took place on 8 th and 9 th of June 2004. Mr Robotham called several witnesses. Mr Christie and Ms Port also gave evidence. At the conclusion of the hearing, the charges against Mr Christie were dismissed. The reasons for this decision were published on 21 st September 2004. The Commission obtained a copy of the report, the main points of which were as follows: i. The tribunal was satisfied that the relationship between Ms Port and DC Roper was discussed at the first pre-trial conference held at Mr Christie’s chambers. ii. It was only briefly discussed because there was no challenge to it. It was not considered important. iii. The relationship was mentioned by prosecuting counsel to Mr Christie on the morning of Tuesday 15 th July. The Crown wanted to bring it to the attention of the judge. Mr Robotham was informed of that conversation and instructed that he had no objection to the judge being told. Counsel then went into chambers from within the court where Mr Robotham was sitting. iv. During the in-chambers meeting, Mr Christie accurately recounted Mr Robotham’s views. v. Mr Robotham was subsequently told of the judge’s view and raised no objection to the trial continuing. vi. Mr Robotham may well have received a call from Inspector Cannon the next night (Wednesday 16 th July). vii. From then to the end of the trial Mr Robotham did not mention the relationship again. 168. Having considered the report and the comments and criticisms made by Mr Robotham in respect of it, the Commission remained of the view that this issue did not raise a real possibility that the Court of Appeal would quash Mr Robotham’s conviction. Office for the Supervision of Solicitors/Law Society Adjudicator 169. The complaint made by Mr Robotham to the OSS in January 2004 (see paragraphs 83–84 above) included a complaint of Professional Misconduct in that there was a conflict of interest and the firm should not have taken instructions from him when Keith Thomas was aware of the relationship between Ms Port and DC Roper. 170. In his report (dated 26 th January 2005), the Law Society Adjudicator concluded the following: i. Mr Keith Thomas acted in breach of The Guide to the Professional Conduct of Solicitors by accepting and continuing to accept instructions or act for Mr Robotham when he was aware that there was an ongoing personal relationship between the arresting officer and Ms Port, to whom he had delegated day-to-day conduct of Mr Robotham’s case. ii. Mr Robotham was adamant that he was not aware of the relationship until 16th July 1997 – during his trial. The solicitors state, on the other hand, that they made him aware of it at a conference with counsel and that Mr Robotham indicated that he already knew of it and was happy to continue. iii. The adjudicator noted that there was a lot of conflicting evidence. However, he referred to the findings of the Bar Council that Mr Robotham had been told of the relationship at the first of two pre-trial conferences. The adjudicator thought it likely that this was the case. However, Mr Thomas had still made an error of judgment by allowing the case to continue in Ms Port’s hands. iv. The adjudicator noted that the Bar Council Tribunal found it highly significant that DC Roper’s evidence was not contentious and therefore found there to be no misconduct on the part of Mr Christie for allowing the trial to continue. However, the adjudicator noted that “As has transpired after the case, it is likely that, if there were some sort of re-trial DC Roper’s evidence would be highly contentious, as there is some doubt about the truth of his assertion that he either contacted the NSPCC or made a report of it to the CPS…” v. The adjudicator noted that even if Mr Robotham had been aware of the relationship he would have been guided by legal advice as to whether it was significant or not. According to the adjudicator there was always the possibility that DC Roper’s evidence would need to be challenged - this made Ms Port’s position “untenable”. 171. The Commission received the report of the Law Society Adjudicator from Mr Robotham on 17 th March 2005, which was after his second application to the Commission had been closed. Mr Robotham also informed the Commission at this stage that he had referred the decision of the Bar Council Tribunal to the Legal Services Ombudsman. The Commission considered the findings of the adjudicator but informed Mr Robotham on 1 st April 2005 that they did not alter the Commission’s decision not to refer his case to the Court of Appeal. Current Review 172. Since the Commission agreed to consider Mr Robotham’s case for a third time, he has raised further points in respect of the relationship between Ms Port and DC Roper. These are summarised below: i. In a letter (dated 10 th May 2005) Mr Robotham drew the Commission’s attention to the case of R v Morris (David George) [2005] EWCA Crim 1246 . This was a case where a murder conviction had been quashed by the Court of Appeal on the basis that the appellant’s solicitor had a conflict of interest that had adversely influenced the preparation and presentation of the case at trial. Mr Robotham asserted that this case was significant in the context of the conflict of interest in his own case. ii. In three letters (dated 24 th April 2006, 25 th April 2006 and 14 th June 2006) Mr Robotham provided a detailed analysis of the text of the transcript of the hearing in chambers and submitted that what this analysis revealed lent support to his contention that his counsel misled the judge deliberately during that hearing. 173. The Commission has re-considered all the previous submissions made by Mr Robotham in relation to this issue and has re-considered the findings of the Bar Council and the Law Society Adjudicator. The Commission has also considered the submissions made by Mr Robotham more recently and the case of Morris . 174. The Commission remains of the view that the fact of the relationship between Ms Port and DC Roper cannot, of itself, raise a real possibility that the Court of Appeal would quash Mr Robotham’s conviction. The Commission has seen nothing to suggest that the relationship between Ms Port and DC Roper influenced in any way the manner in which Mr Robotham’s case was prepared or presented In this regard, the circumstances which arose in Morris were in the Commission’s view wholly different from those in Mr Robotham’s case. 96. Mr Horton submitted that the evidence of Mr Christie before the tribunal did not “fit comfortably” with what he had said to the judge in chambers at the start of the trial. The matter has been fully ventilated before the tribunal, which had heard from the appellant, whose account of the events was not accepted. We see no reason for going behind the conclusion of the tribunal. 97. Mr Horton submits that justice was not seen to be done. We disagree. The appellant knew about the relationship from an early stage and had no objections to being represented by Miss Port. It was not until some time after his conviction that the appellant decided to ventilate this matter. If he had thought that he was not receiving a fair trial or, when he saw Mr Christie after the conviction, that he had not received a fair trial because of the relationship, we are satisfied that the appellant would have mentioned it. He did not. We are very grateful to the CCRC for the full analysis of this ground and we reject the application for leave to appeal. 98. Ground 5 consists of a complaint that David Lewis, Desmond Hughes and the wife of John Lewis should have been called as witnesses. David Lewis could have given character evidence, could have said that the appellant had not complained to him about the alleged indecent assault when they met on 17 December 1996 at a school pantomime. Mr Horton accepted that the weight and effect of this evidence is limited. David Lewis could also have given evidence that the complainant had made a comment about what we have called “the Porthcawl incident”. All that the complainant had said about the latter was that a man had approached him and made a sexual suggestion. That was consistent with, but less detailed than, the account given by the complainant to the CCRC. The fact that David Lewis was not called to give this evidence cannot possible result in the conviction being unsafe. 99. It is submitted that Desmond Hughes should have been summoned to give evidence, he having expressed a reluctance, so he told the CCRC, to become involved at the time of the trial. At that time Desmond Hughes was a friend of Alan Hughes and only later had become a good friend of Mr Robotham. Mr Horton submits that witnesses summoned to court “often prove rather more helpful than otherwise.” There is no suggestion that the appellant wanted him called and the suggestion that he should have been summoned comes, so it appears to us, very late in the day. We see no merit in this submission. 100. As far as Mrs John Lewis is concerned, whereas the complainant was saying that he told them both about what the appellant had done to him, John Lewis, on the other hand, said in evidence to us that his wife was not present when the complainant spoke about the incident - “she was in the kitchen”. She had told him later that she had not heard anything. In those circumstances there would have been no point in calling her. 101. We refuse the application for leave to appeal on this ground. 102. In grounds 6 and 7 it is alleged that counsel for the appellant should not have put to the complainant’s grandfather that when he came round to the house (on the grandfather’s account to complain about the appellant’s conduct) that he was saying that the appellant’s wife had divorced him because she had found him in bed with a man (a matter foreshadowed in the appellant’s interview). The question having been asked, Alan Hughes accepted that he had said it but it was “hearsay”. It is submitted that the judge should have warned the jury to ignore the question and answers. It seems clear to us that the question was put to Alan Hughes to show that he was acting irrationally and it is inconceivable that the jury would have attached to this any weight adverse to the appellant. Leave is also refused on these grounds. 103. For these reasons we dismiss the appeal and the application for leave to appeal.

2007_11_27-1294.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/2784/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/2784

93690da90e4dc954744388da6d6f857f9580e02ae12cccdfb0bfe6433b58e8cc

[2017] EWCA Crim 317

EWCA_Crim_317

2017-03-14

crown_court

Neutral Citation Number: [2017] EWCA Crim 317 Case No: 201603659 A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 14 March 2017 B e f o r e : LORD JUSTICE DAVIS MR JUSTICE FRASER RECORDER OF SHEFFIELD - HIS HONOUR JUDGE GOOSE QC (Sitting as a Judge of the CACD - - - - - - - - - - - - - - - - - - - - - R E G I N A v REECE MELVIN JONES - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave In

Neutral Citation Number: [2017] EWCA Crim 317 Case No: 201603659 A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 14 March 2017 B e f o r e : LORD JUSTICE DAVIS MR JUSTICE FRASER RECORDER OF SHEFFIELD - HIS HONOUR JUDGE GOOSE QC (Sitting as a Judge of the CACD - - - - - - - - - - - - - - - - - - - - - R E G I N A v REECE MELVIN JONES - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited Trading as DTI 8th Floor, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr B Close appeared on behalf of the Applicant The Crown did not attend and was unrepresented - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. MR JUSTICE FRASER : On 12 February 2016, in the Crown Court at Wolverhampton, the appellant pleaded guilty at a pleas and case management hearing (as such hearings were then called) before Mr Recorder Sweeting QC, to one count of robbery contrary to section 8(1) of the Theft Act 1968. On 8 July 2016, Her Honour Judge Kristina Montgomery QC sentenced him to 4 years 6 months' imprisonment. 2. He was born on 5 May 1995 and the offence was committed on 15 December 2015. Accordingly, although he was over 21 as at the date of his conviction and sentence, he was in fact only 20 at the time that he committed the offence. The correct custodial sentence was therefore one of a term of detention in a Young Offender Institution, and not one of imprisonment. In opening the facts, the Crown incorrectly told the sentencing judge that he was 24 years old, which explains the error in her terminology. This is a subject to which we will return after dealing with the substantive appeal. 3. The appellant brings his appeals against sentence with the permission of Foskett J. He was sentenced with two co-defendants, Paul Ferguson, who was 35 years old, who was sentenced to 4 years 8 months (or potentially 4 years 10 months) and Lee Anslow, who was 28 at the time of the offence and who was given the same sentence. The difference in how we have expressed those two sentences arises because the judge expressed the sentence both as 58 months but then also said that that was 4 years 8 months, when in fact it is 4 years 10 months. Regardless of which of those two figures appears on the court record, the difference between those two is not relevant for the purposes of this appeal. 4. The appellant was sentenced without the sentencing judge having the benefit of a pre-sentence report. We are of the view that one is not now necessary and so under section 156 of the Criminal Justice Act 2003 we continue to hear the appeal and give judgment on that, and deal with his sentence, without requiring such a report. 5. The facts of the offences committed by the appellant and his co-accused are as follows. On 15 December 2015, at about 4.45 am, a Ford Focus car arrived at a 24-hour Asda store in Darlastan. The appellant and his two co-accused were passengers and a fourth person was driving. The driver remained outside as they entered the store. They had their hoods up, and the other two co-accused were wearing gloves. The appellant had socks on his hands. One of the other two, Anslow, was carrying a large wrench. A security guard was threatened with the wrench and made to kneel down. The guard was dragged to the cigarette kiosk where the appellant was standing, and the appellant and one of the others began to empty the kiosk of cigarettes into a large builders' bag. They managed to fill the builders' bag with about £9,000 worth of cigarettes and then went to leave. However, the bag was so full and heavy they could not get it through the doors behind the kiosk and so they had to abandon it. 6. At this point the police arrived and the getaway car that was parked outside sped off, leaving the three defendants behind. It was not known then, and is not known now, who the driver of that car was. That was still not the end of the matter, as a chase ensued. After a scuffle with one of the other co-accused who was arrested, one police officer required hospital attention. The appellant tried to run away but was arrested after a much shorter struggle with a police officer, but CS gas had to be used upon him by the police in order to effect the arrest. The third individual was arrested without incident. 7. The appellant admitted going to the ASDA store to steal the cigarettes but said that he thought it was going to be a burglary. He had met the others, he said, unaware that the shop would be open and that the customers and staff would be there for the offence. However, given this was a 24-hour store, that explanation can be seen as somewhat self-serving. 8. The sentencing judge found that the robbery was a less sophisticated commercial robbery which fell into category 2B of the guidelines, a characterisation with which the parties agreed. She found the correct starting point for the robbery was at the very top of the range for that category. The category range for that offence is 3 to 6 years and she therefore took a starting point for the appellant at the top of that bracket of 6 years. Due to the very bad record of previous offending by both Ferguson and Anslow, the two co-defendants, both of whom had significant offences of robbery on their criminal records, which had previously attracted significant custodial sentences expressed as 4 years and 54 months respectively for each of them, she found the correct starting point for them was outside the range and chose six and a half years. 9. That differential could have been more marked and it may have been the case that other sentencing judges would have decided that the difference between the appellant, and his co-accused, should have been greater. But, in our judgment, the judge properly addressed her mind to the fact that the culpability of the co-defendants was far higher than that of the appellant due to their previous relevant convictions. They were all entitled to credit of 25 per cent for their pleas of guilty, and that reduction was applied to the 6-year starting point for the appellant resulting in a sentence in his case of four and a half years. He had only relatively minor previous convictions, although there were a number of them, and these were for road traffic and theft offences. This offence, therefore, marked a step change in the seriousness of his offending. Prior to this offence his longest sentence had been 12 weeks in a Young Offender Institute for receiving stolen goods and driving whilst disqualified. That related to an offence in June 2015. 10. It is not argued on his behalf that this should not have been treated as a category 2B offence or that the starting point chosen by the sentencing judge of 6 years was manifestly excessive. Mr Close, who has appeared for the appellant before us today and has made the appeal very attractively and well, in our judgment, also accepts that the credit applied of 25 per cent for the guilty plea cannot be challenged. 11. The sole ground of appeal is that there was insufficient differentiation between the sentence passed on the appellant and the sentences passed upon his co-accused. His record was less serious by some margin and he was also much younger than the others. It is argued on his behalf that the differences between the culpability of the offenders was not accurately reflected in the different sentences passed upon them which has resulted in a difference between those sentences of only a few months. 12. The sentences judge described all three of the participants as having played an equal part in the robbery. Although one of them had a weapon, the wrench, and shouted instructions and threats at the staff, all three of them were treated as though they had played an equal part and, in our judgment, that is clearly correct. There is no criticism of that approach from Mr Close on the appeal before us. 13. Although previous convictions for robbery are a statutory aggravating feature and the appellant did not have any, in our judgment this was reflected in the fact that the sentencing judge chose a lower starting point for his sentence prior to the application of the discount to which he was entitled for pleading guilty, and she also expressly increased the starting point for the co-defendants. She clearly therefore had this point in mind. 14. The sole question for this court upon appeal is whether the sentence that was passed upon this appellant was manifestly excessive. Given the circumstances of this offence, the use of threats, including a weapon, the treatment of the guard, the resisting of arrest and the use of CS gas upon the appellant by the police, we are of the view that it cannot be said that the choice of starting point of 6 years at the top of the relevant range for category 2B offences was wrong or even slightly excessive in his case. His particular sentence of four and a half years, therefore, after application of the discount was not manifestly excessive and his appeal is dismissed. 15. We affirm the custodial sentence upon the appellant in terms of its correct characterisation being one of detention in a Young Offender Institution due to his age at the date he committed the offence, and not as it was expressed upon the sentencing exercise, which was as of a sentence of imprisonment. When a defendant is below the age of 21 at the date the offence was committed this is important, as it makes a person a young offender. The Crown must ensure that this is drawn to the attention of the sentencing judge at the time. 16. The appeal is therefore dismissed.

2017_03_14-3945.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/317/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/317

1543e73fa90f17d5c3f1bdfb2d1f0d51512409f505117680eb4434efbd9a8623

[2003] EWCA Crim 3739

EWCA_Crim_3739

2003-11-27

crown_court

No: 03/372/B2 Neutral Citation Number: [2003] EWCA Crim 3739 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 27 November 2003 B E F O R E: LORD JUSTICE TUCKEY MR JUSTICE ELIAS MR JUSTICE COOKE - - - - - - - R E G I N A -v- WAYNE MICHAEL OXLEY - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the C

No: 03/372/B2 Neutral Citation Number: [2003] EWCA Crim 3739 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 27 November 2003 B E F O R E: LORD JUSTICE TUCKEY MR JUSTICE ELIAS MR JUSTICE COOKE - - - - - - - R E G I N A -v- WAYNE MICHAEL OXLEY - - - - - - - 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 RICHARD TAYLOR (a solicitor advocate) appeared on behalf of the APPELLANT - - - - - - - J U D G M E N T 1. MR JUSTICE COOKE: On 9th May 2003 the appellant pleaded guilty before the magistrates to two charges of burglary and was then committed to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 . He also pleaded guilty to one charge of theft and to failing to surrender to his bail, and was committed to the Crown Court for sentence under a different section, section 6 of the Powers of Criminal Courts (Sentencing) Act. He was sentenced in the Crown Court on 6th June in the following way: first, on the two charges of burglary, to 42 months' imprisonment concurrent on each count; then in relation to the theft, he received a sentence of three months' imprisonment consecutive to the burglary sentences; and on the charge of failing to surrender to custody at the appointed time, a further three months' imprisonment, which was consecutive also. The total sentence was thus one of four years. Eight further offences were taken into consideration, including four other burglaries of dwelling-houses. Three of the offences of burglary were committed whilst on bail for the theft and in breach of a conditional discharge order and while subject to two criminal rehabilitation orders. 2. The appellant appeals against the sentence on the Bail Act offence in particular, but also in respect of the totality of the four year sentence. The single judge considered that leave was not required for the appeal against the Bail Act offence by reason of section 13 of the Administration of Justice Act 1960 , which gives an appeal as of right for any sentence for contempt. He refused leave in respect of the sentences for the other offences. 3. For reasons which appear hereafter, it is more than doubtful whether this was a sentence in respect of contempt. In such circumstances leave would then have been required. We give leave, if it is necessary to do so, and deal with the substantive issues that have been raised. 4. The underlying facts can be recited shortly. On 15th March 2003 the appellant stole some books, worth £55 approximately, from a general store in Burnley. He was arrested the same day. He cooperated with the police and the books were recovered. He was then bailed to appear at the magistrates' court on 16th April, but failed to attend and a warrant was then issued. 5. The appellant had meanwhile committed two burglaries in the Burnley area whilst on bail on 3rd and 15th April. The details of those do not matter for present purposes. He was arrested on 30th April and pleaded guilty to the Bail Act offence and said that he had mixed the dates up. The court sought pre sentence reports and the case was adjourned until 28th May. On 1st May however he was arrested in respect of the two burglaries. 6. The appellant had a bad record of past convictions, including 21 prior burglaries or thefts from dwelling-houses or attempts thereat. During the very first of such burglaries a man had died, and the appellant had a manslaughter conviction also as a result. 7. As already mentioned, there is no appeal as such against the sentences for the burglaries or the theft, nor could there be in the light of the appellant's past record and the additional matters which fell to be taken into consideration. The sole ground of appeal is that the three month sentence for the Bail Act offence was manifestly excessive and the totality of four years was therefore also excessive. 8. Whilst it is conceded for the appellant that a consecutive sentence might be appropriate, it is contended that the maximum possible sentence here was three months and that, with a plea on the Bail Act offence, there should have been some discount. The effect, of course, of any reduction would be to bring the sentence below four years and thus render the appellant a short-term as opposed to a long-term prisoner. 9. The appellant was committed for sentence by the magistrates' court to the Crown Court for the Bail Act offence and the theft under section 6 of the Powers of Criminal Courts (Sentencing) Act 2000 in conjunction with the committal of the appellant to the Crown Court for sentencing on the more serious burglary offences under section 3 of that Act . The reason for the latter committal in respect of the burglary offences was because the magistrates considered their powers insufficient for an appropriate sentence. They did not, however, commit the appellant under that section in respect of the bail offence. Equally there was no committal under section 6(6) of the Bail Act on the grounds of inadequacy of the power of the magistrates' court to deal with the Bail Act offence. The effect of this is that, under section 7 of the Powers of Criminal Courts (Sentencing) Act, the Crown Court's powers of sentence were limited to those of the magistrates' court for the Bail Act offence, subject to the question of the construction of section 6(7) of the Bail Act, to which we will refer in a moment. 10. Section 6(5) of the Bail Act provides that an offence under subsection (1) or (2) is punishable either on summary conviction or as if it were a criminal contempt of court. Section 6(7) of the Bail Act provides that the maximum sentence for the section 1 Bail Act offence is three months on summary conviction or twelve months if treated as a contempt of court or if committed for sentencing to the Crown Court in the manner that the subsection envisages. The wording of the section is as follows: "A person who is convicted summarily of an offence under subsection (1) or (2) ... and is not committed to the Crown Court for sentence shall be liable to imprisonment for a term not exceeding 3 months or to a fine not exceeding level 5 on the standard scale or to both and a person who is so committed for sentence or is dealt with as for such a contempt shall be liable to imprisonment for a term not exceeding 12 months or to a fine or both." In the magistrates' court, which is an inferior court of record, the jurisdiction in dealing with contempt is limited to contempt in the face of the court, and, subject to the provisions of section 6(7) of the Bail Act however, the maximum sentence would be one month by virtue of section 14 of the Contempt of Court Act 1981 . Because there is express provision in section 6(7) of the Bail Act, the maximum sentence set out in that subsection is that to which we are to have regard. 11. The effect is that, subject to the meaning of "committed" in that subsection, the maximum sentence available here so far as the magistrates were concerned was a three month sentence when dealing with the offence as a Bail Act offence and not as contempt. 12. What happened here was that the appellant pleaded guilty to an offence under section 6(1) of the Bail Act. Committal for sentence followed later, with the committals for sentence on the burglary and theft, but, as we have mentioned, on the basis of section 6 of the Powers of Criminal Courts (Sentencing) Act, not section 3 . No question of dealing with this as a contempt arose. It was dealt with summarily as a Bail Act Offence in accordance with the practice set out in Schiavo v Anderton [1987] QB 20 , as conveniently set out in Archbold at paragraph 3-27. In consequence, leave to appeal against such sentence was needed and the maximum available sentence was three months, unless section 6(7) of the Bail Act increases that limit to twelve months. It seems to us, however, that the reference to "committed" and the increased level referred to in section 6(7) applies only to committals to the Crown Court where the magistrates' court considers its sentencing powers inadequate for the bail offence. It is therefore on the basis of a three month maximum sentence that the appellant contends that the sentence imposed was manifestly excessive in the light of the plea and the nature of the offence. 13. The explanation offered for the failure to surrender to bail was not wholly implausible and there was a theoretical possibility of a defence, we suppose, on the basis that there was some reasonable cause for the failure to attend. 14. We have been referred to decisions of this court in relation to the appropriate manner of sentencing for Bail Act offences, and in particular we have regard to the decision in R v White and McKinnon [2002] EWCA Crim 2952 . A consecutive sentence may be passed and it is a matter for the individual trial judge at the end of the day as to whether or not a significant sentence is to be imposed, even where a sentence on other offences is to be measured in terms of years. 15. There were here two prior Bail Act offences in the appellant's list of past convictions, for which he had received sentences respectively of seven days and four months' custody, concurrent in each case with the sentence for the substantive offence for which he was on bail. There is nonetheless force in the argument that the maximum available sentence of three months should not have been imposed in the present case. 16. However, looking at the totality of this appellant's offending behaviour and the different sentences imposed by the Recorder, it is plain that he took the view that the appellant should receive a sentence of four years and thus become a long-term prisoner. In that, having recited the appellant's past record as well as the offences in question, we consider that he was right and that a reduction in the sentence for the Bail Act offence should not bring him into the category of a short-term prisoner. 17. Under section 11(3) of the Criminal Appeal Act 1968 it would be open to this court, having considered the circumstances of the other offences and the principle of totality in relation to the overall criminality of the appellant's behaviour, to quash the three month sentence for the bail offence and replace it with a lesser sentence, but to increase the sentences on the other substantive matters in order to adjust the different sentences to arrive at a total of four years. We do not consider that to be necessary, having regard to the total criminality and the total sentence imposed. Therefore we do not make any alteration in the sentences. For those reasons, the sentence remains at four years in all, the Bail Act offence sentence remains as it is and this appeal is dismissed.

2003_11_27-145.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2003/3739/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2003/3739

5b1b05bf1c037dda03352f5cc8c589891a8adabaf020260bea45cc7fee956cec

[2024] EWCA Crim 104

EWCA_Crim_104

2024-01-18

crown_court

If this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or

If this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL (CRIMINAL DIVISION ) [2024] EWCA Crim 104 No. 202303819 A1 Royal Courts of Justice Strand London, WC2A 2LL Thursday, 18 January 2024 Before: LORD JUSTICE POPPLEWELL MR JUSTICE CHOUDHURY HER HONOUR JUDGE ANGELA RAFFERTY KC BETWEEN : REGINA - v - JAKE COOKE Respondent REPORTING RESTRICTIONS APPLY: SEXUAL OFFENCES (AMENDMENT) ACT 1992 APPLIES __________ MISS J WALKER appeared on behalf of the Solicitor General. MISS S REVEL appeared on behalf of the Respondent. ___________ JUDGMENT LORD JUSTICE POPPLEWELL: 1 The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences, which were committed against two thirteen-year-old girls, to whom we shall refer as “S” and “G”. No matter relating to either of them 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. This prohibition applies unless waived or lifted in accordance with s.3 of the Act . 2 On 30 August 2023, the offender, then aged seventeen, was convicted following trial in the Crown Court at Bradford, before Mr Recorder Hawks and a jury, on two counts of child abduction contrary to s.2(1) (a) of the Child Abduction Act 1984 (Counts 1 and 2 – one count for each victim), on two counts of rape of S (Counts 4 and 6) and on one count of rape of G (Count 5). His co-defendant, Anis Ali, was convicted of the two counts of child abduction and one count of sexual assault. 3 On 6 October 2023, the offender was sentenced by the Recorder to five years’ detention pursuant to s.250 of the Sentencing Act 2020 on each of the rape counts, to run concurrently with each other, with no separate penalty imposed on the abduction counts. His Majesty’s Solicitor General seeks leave to refer the sentence as unduly lenient. The facts of the offending 4 The offender initially had contact with the two thirteen-year-old girls, S and G, via social media. G told him she was aged thirteen when he asked her age. In February 2022, he met S in Leeds city centre. On 30 March 2022, the offender invited S to meet him and she agreed. He was at this time a little under sixteen and a half years old. He and Ali took a taxi from Keighley, where they lived, to Leeds, where the girls were living, a journey of some fifty minutes. In evidence, the girls agreed that they had got into the taxi willingly at first. This was at some stage in the early evening, after 7pm. The girls were driven around the immediate area. G said she wanted to talk to her friends. She saw this as her opportunity to get out. She was, however, persuaded to return to the taxi by S. When she got back in the mood changed. The offender told the taxi driver to lock the doors. The offender told the taxi driver to go to Bradford and Keighley. The girls said they did not want to be taken to these places and told the taxi driver so. However, the taxi driver felt that he could not stop and continued to drive them to Keighley. 5 At one stage police sirens were heard and the offender said, “Oh, shit, I’ve got … a shotgun on me, a gun and a machete”. He said to duck down as he had a shotgun on him. This was said by reference to evading the police rather than as an intended threat to use those weapons, but it caused the girls fear. S saw the outline of a machete in the offender’s tracksuit bottoms and in evidence Ali said he saw what he thought was the handle of a machete. Neither girl said they had seen a gun. The Recorder said, when sentencing, that the offender had boasted about having a gun and that he was acting aggressively and in a volatile manner when in the taxi. At one stage the offender threatened to smash up the taxi. 6 On the way, the offender, Ali and the two girls inhaled nitrous oxide from balloons. They arrived at a house in Keighley. A drug deal took place between the offender and the occupier. Within the house, Ali sexually assaulted G by putting his hand down her pants and over her bottom, notwithstanding her telling him that she did not want him to. That was the subject matter of Count 3. He stopped when she pulled away from him. 7 There was a reference in the evidence to the offender and Ali, and the girls, treating the house as a doss-house but a friend of the occupier arrived and persuaded the group to leave. The group went to a McDonalds and, after that, they went to a taxi office. At this point in the narrative, CCTV showed S wearing the offender’s coat and G wearing Ali’s coat. They got in a taxi, which was directed by the offender to drive to an isolated, boarded up and disused church. By now it was about 11.40pm. 8 At some stage, it seems probably in the taxi on the way there, S had received calls from her mother, who by now realised she was missing. The offender took hold of S’s phone and turned off the location services. 9 At the disused church, the group of four were in the area where the altar had previously been and in the nave. G heard the offender remind them that he had a knife, saying he would use it and was on house arrest with a tag. The offender took hold of S’s neck and kept gripping her. He and S went to a separate room. In that room he told S to get on her knees. He put his hand on the back of her head and orally raped her. That was the subject matter of Count 4. When that was over, she walked away. 10 The offender then took G down some steps. He told her to get on her knees. She refused and he pushed her to the floor. He grabbed her head and orally raped her. When he had stopped, she sat down on some steps and said she wanted to go back to S. He then told her to stay, grabbed her hair and orally raped her again. Those two rapes were the subject matter of Count 5. Tears were falling from her eyes. 11 S was crying and told Ali that she wanted to go home. However, the group stayed at the church for a few hours, before walking to the offender’s house a short distance away. Before going inside, they sat in an abandoned car. In the car S was scared to refuse the cannabis which was offered to her because she remembered that the offender had said that he had a knife and a gun. 12 At the offender’s house, the offender vaginally raped S in the living room. That was the subject matter of Count 6. At that time, his mother and stepfather were in their bedroom and G and Ali were in the offender’s bedroom. The offender turned up the television so S’s shouting could not be heard. S had not had sexual intercourse before. Her vagina was bleeding afterwards. No contraception was used. 13 The group fell asleep on the offender’s bed. They were awoken by his mother shouting at him. It seemed that the mother had heard about two missing girls and was asking the offender whether the missing girls were with him. The victims left the offender’s house and were quickly found by a passing police officer who was looking for them. The offender and Mr Ali were arrested at the house. In interview under caution, the offender denied the offences. Victim impact 14 Victim Personal Statements were made on 25 August 2023 while the trial was taking place. This was some seventeen months after the incident. S said that the incident had scarred her for life. The night of the offences was the scariest time in her life. Rather than going out with her friends and enjoying days out, she now stayed at home most days and struggled with environments with a large number of people. She worried about relationships she might have in the future. Her education, sleeping routine, eating habits, hobbies and mindset had all changed. She now only attended school three times a week and sat in a classroom with only a teacher for two hours a day due to her anxiety. She slept no more than four hours a night. She felt worthless. She had lost confidence and felt unhappy for a lot of the time. 15 In S’s mother’s statement, she described the impact of the offence on S and her family. S’s mother had taken three months’ leave from work due to lack of sleep and was herself suffering from anxiety. She had attended numerous meetings at S’s school to work out a plan whereby S could attend while feeling safe, which entailed one-to-one tuition. The time since the offences, she said, had been the worst in her life. 16 According to G’s Victim Personal Statement, she struggled with sleep. She relived events in night terrors which caused a huge amount of sadness and distress. She was anxious about leaving the house on her own and was still on edge that someone known to the offender could be out to harm her and her family. She felt depressed and that she was never going to be herself again. She did not want any physical contact with people, such as hugging. She could not concentrate at school, and missed a lot of school because she did not want the attention that she received there. She stopped socialising with her peers and became paranoid that people were talking about her, adding to her anxiety and causing constant mood swings. She felt she could not trust anyone. She did not know how to express her feelings and so most of the time it would come out as anger. This had caused her to self-harm herself, although the manner of that self-harm was not specified. 17 In G’s mother’s statement, she said she could not describe in words the utter terror on learning that G had been abducted. When G returned home, she did not want to talk about what had happened. G struggled with sleep and would often wake up having had a nightmare. Her schooling had suffered and she missed time from school. She was afraid to go out alone. She was afraid of her own shadow. G’s mother also felt depressed and anxious. Antecedents and reports 18 The offender had ten previous findings of guilt and four cautions. In April 2016, when aged ten, he was cautioned for possessing a knife in a public place and for two offences of assault occasioning actual bodily harm. His first findings of guilt were in September 2017, for possessing an imitation firearm with intent to cause fear of violence and attempted robbery, offences committed when he was aged eleven. On that occasion he was made subject to a referral order for twelve months. In October 2017, a month after the referral order, he committed an offence of battery, then aged twelve, for which he received a six month conditional discharge. In July 2018, he was sentenced to a youth rehabilitation order for affray and using threatening, abusive or insulting words or behaviour with intent to cause harassment, alarm or distress. Those offences had been committed when he was aged eleven. 19 Thereafter, in May 2020, when aged fourteen, he committed common assault and battery, for which he received a caution. In October 2020, the month before his fifteenth birthday, he committed an offence of using threatening, abusive or insulting words or behaviour with intent to cause fear or provocation of violence. In November 2020, now aged fifteen, he committed criminal damage and battery. In March 2021, he assaulted an emergency worker. For these offences he received youth rehabilitation orders with supervision requirements, the first starting in March 2021 and the last one being imposed on 17 January 2022. The instant offences, committed on 30 to 31 March 2022, occurred during the currency of the youth rehabilitation order imposed on 17 January of that year. 20 A pre-sentence report was prepared on 29 September 2023. The author had been responsible for supervising the offender from May 2020, around the time he committed the assault and battery aged fourteen, and from that time until his arrest for the instant matters. During that time he was willing to meet periodically for sessions but he typically presented as someone who romanticised the gangster culture. He began spending longer periods of time away from his parents and their supervision. 21 Severe domestic violence by his father towards his mother appears to have affected him as a young child. Due to his behaviour, he was placed in care for two short periods in September 2020 and March 2021. He had attended a school for children with socially, emotional and behaviour problems and demonstrated academic potential. But his work was negatively impacted by regular cannabis use, exacerbated by ADHD. 22 Whilst on remand at His Majesty’s Young Offenders Institution at Feltham, significant levels of aggression persisted by and towards him until the previous few months. He had only recently opened up about his childhood and the impact it had had upon him. 23 In relation to the instant offences, the offender was either unwilling or unable to take responsibility for his actions, asserting that sexual activity took place with only one of the girls and that it was consensual. The author’s assessment was that the offences clearly indicated a high risk of serious harm to others and a high risk of reoffending. 24 There were two reports from Dr Omar, a consultant clinical psychologist instructed by the defence. The first was in October 2022, prior to the trial. In that report he had concluded that the offender had symptoms of ADHD, which exhibited themselves in impulsiveness. Her view was that he would benefit from an intermediary at trial, which is what occurred. Dr Omar had not had sight of medical records for the purposes of making that assessment. 25 Dr Omar also saw the offender after conviction and prepared a further report, dated 30 September 2023. Again she had not had access to the medical records. In that report, she said that since the previous meeting he had attended education and had passed exams, having previously spent very little time in school. She observed marked improvements in the offender’s demeanour and levels of concentration compared to the first occasion. The offender told her that he was now taking his medication for ADHD on a regular basis, which he considered was helping him to feel calmer and more focused. There were still times when he felt angry but he felt he was able to control it better. He reported and was able to talk about the physical abuse by his father as a child, which had not occurred during the previous assessment. 26 Dr Omar concluded in the second report that the offender’s ADHD symptoms had improved and the medication had had a positive impact. Under a heading that referred to “Maturity levels”, Dr Omar commented that his behaviour had improved. He had referred to plans for his future and for completing his education, and he was engaging with a psychologist in custody. There were a few symptoms of borderline personality disorder which were the kind of symptoms which overlapped with those which are present for ADHD, but Dr Omar did not diagnose borderline personality disorder. She did not express a view as to whether the offender was mature or immature for his age. The sentencing hearing 27 A sentencing note was served by the Prosecution. It submitted that this was a case of planned abduction by both defendants, the purpose of which was to have sexual activity. In respect of Counts 4 and 5, the oral rapes, it was submitted that the combination of Category 2 features, being the abduction, a sustained incident, and particularly vulnerable victims, might elevate the case to Category 1. Culpability A factors of significant planning, the use of drugs to facilitate the offending and acting with another, were also relied upon. It was submitted that the offender’s antecedents aggravated the rape offences. In respect of Count 6, the vaginal rape of S, factors indicating Category 2 harm and culpability A were referred to and the aggravating features of previous convictions, the fact that the victim was a virgin and that no contraception had been used. 28 In a sentencing note served on behalf of the offender, it was submitted that the offences of rape fell within Category 2B. In particular, in respect of culpability, it was submitted that the cannabis and nitrous oxide were not used to facilitate the offence, that the co-defendant was not involved in the rape offences, and so they were not acting together, and that there was not a significant degree of planning. In addition, defence counsel referred to the Sentencing Council Guideline on sentencing children and young people, and submitted that the sentence should be reduced by one-half from the appropriate adult sentence. 29 During counsel’s submissions at the stage of mitigation, the Recorder said that he did not find that the use of drugs facilitated the offence or that the presence of Ali being “about in the area” made it offending in which he had taken part. Furthermore, he said that whilst there was a degree of planning, it could not properly be said to be significant planning. 30 In his sentencing remarks, the Recorder said he was satisfied that the purpose of the abduction, which was a planned abduction, was to have sex, or try to have sex, with the victims. The offender was in possession of a weapon, likely a machete, and boasted about having a gun, behaving in a volatile and aggressive manner. The girls were “plied with cannabis and nitrous oxide”, although the Recorder repeated that he did not find that the drugs were used to facilitate the rape offences. He referred to the offender’s evidence during trial as having taken place with an intermediary, and said that at the time of the offences he was abusing his medication, by which he is understood to have meant that he was simply not taking his medication at all. The Recorder went on to observe that since his remand in custody he was receiving and taking his medication on a regular basis and his condition had improved. 31 The Recorder said that he took the view that the offences of rape fell towards the top end of the range of Category B. The top end of that range is nine years. He said that individually they would attract sentences for an adult of eight years. He then increased that to an appropriate sentence for an adult of eleven years to reflect the multiple offending. He then took into account the offender’s age and personal circumstances, by reference to the matters referred to in the reports, including his mental health difficulties. Taking those matters into account, he reduced the sentence to one of five years’ detention. 32 In accordance with the guidance given in Robinson [2020] EWCA Crim 866 , he correctly imposed the sentence which was appropriate for all the offending, reflecting it in the sentences on the rape charges and imposing no separate penalty in relation to the abduction offences. Submissions 33 On behalf of the Solicitor General, Ms Walker submits that each single offence should have been placed in Category A because there was a significant degree of planning. Category 2A has a starting point of ten years and a range of nine to thirteen years for a single offence. She submitted that the multiple aggravating features of the multiple offending meant that a sentence for an adult of eleven years for all the offending was clearly well below that which was appropriate, whether or not the individual rapes started in Category 2A or 2B. Moreover, she submitted, a reduction of over 50 per cent to reflect the offender’s youth and ADHD was itself clearly an excessive reduction, resulting in a sentence which was not merely lenient but unduly so. 34 On behalf of the offender, Ms Revel, in attractively presented submissions, argued that the combination of Category 2 factors in this case was not sufficient to elevate the offences into Category 1. The Recorder was well placed to assess the gravity of the offending, having presided over the trial and heard the evidence, including the evidence given by the offender for almost two days. The Recorder had seen CCTV coverage of parts of the events. The abduction of the girls, in Counts 1 and 2, was put on the basis that they went willingly and that the unlawfulness arose from their being removed from the custody of the parents. The Recorder was entitled to reach the conclusion that the degree of planning did not properly attract the epithet “significant” and to place the offending within Category 2B of the Guidelines. 35 Ms Revel emphasised that the references to having a knife and a gun in the car, when the police sirens were going off, involved an element of bravado and was not a threat of violence made directly towards S or G. She also submitted that the Recorder was well placed to assess the immaturity of the offender and his personal circumstances, not only from the reports but from his evidence at trial, and that a reduction of over 50 per cent for his youth, immaturity and mental health difficulties was an offender-focused sentencing exercise, which is what is required by the Guideline. She recognised that an appropriate sentence for an adult of eleven years involved a sentence which could properly be called lenient but she submitted that the sentence overall was not unduly lenient. Conclusions 36 The Recorder was right to treat the abduction offences as aggravating the rapes and to pass a sentence on the rape counts reflecting the totality of the offending. We accept Ms Walker’s submission that the degree of planning was significant. We recognise, of course, that the Recorder had the benefit of presiding over the trial. However, it seems to us that it is an inevitable and inescapable conclusion from the Recorder’s findings that the degree of planning was significant. That follows from the original purpose of the planned abduction of the girls, being one to have sex or to try to have sex with them. The girls had said they did not want to go to Keighley and Bradford when they were in the taxi and the offender had asked for the doors to be locked. He had turned off the location services on S’s phone to isolate the girls. They had then been taken to the isolated and remote disused church. That shows a degree of planning which cannot be characterised as anything less than “significant”. 37 That would therefore mean that the rapes would individually start in Category A, which has a starting point of ten years and a range of nine to thirteen years for an adult. 38 We should make clear, however, that even if, as Ms Revel submitted, the rape offences individually would start in Category 2B, that would not make any difference to our ultimate conclusions. As has often been said, the Guidelines are guidelines, not tramlines, and in order to arrive at an appropriate sentence for an adult, and then to take account of the particular circumstances of this young offender, it is necessary to take into account all of the aggravating and mitigating features of all of the offending. That is not a mechanical exercise. 39 However, we think it would be helpful to start in Category 2A and to look at the features which put it in that category. There are a number of Category 2 factors, but in order to avoid double counting we find it convenient to start with severe psychological harm. Ms Revel submitted that the impact reflected in the Victim Impact Statements could be characterised as “serious” but not “severe” psychological harm. We disagree. It is clear that the psychological harm was, after seventeen months, severe and was likely to continue. 40 We then address the further aggravating features, some of which are Category 2 factors, others of which are not. In our view, the main aggravating features were as follows. (1) The Guideline is for a single rape against a single victim. The offender was being sentenced for four rapes against two victims. The rapes against S were separate in time, location and nature. This of itself required a very substantial uplift measured in years. (2) The girls were particularly vulnerable victims, aged thirteen. (3) The vaginal rape of S took her virginity and was without contraception; (4) The abduction of the girls was a serious aggravating factor. It was prolonged, for a period of about twelve hours or more, lasting late into the night and overnight. During it their parents became aware that they were missing and were understandably worried and set about getting the police to look for them. The abduction, therefore, caused distress to the families as well as the girls. The abduction was not confined to willing behaviour by the girls. They said in the taxi that they did not want to be taken to Keighley or Bradford. The doors were locked. The offender deliberately isolated the girls by preventing the use of S’s phone and taking them to a remote and unfamiliar location. The abduction offences alone would justify an increase measured in years rather than months, even after allowing for totality and without any double counting for the significant planning aspect which, in our view, puts the rapes individually in Category 2A. (5) There was the threat of violence. The Recorder said, when sentencing, that the offender boasted about having a gun and was acting aggressively and in a volatile manner when in the taxi. What happened when the sirens were going off may well have been, as Ms Revel said, bravado, but it nevertheless had the impact on the girls that they were in fear of violence. Moreover, at the church there was a specific threat of violence, with the offender reminding them that he had a knife and saying that he would use it immediately before gripping S and taking her to the location at which the oral rape of her took place. (6) There was giving the girls cannabis and nitrous oxide. Whilst this might not have been to facilitate the rape offences, it was clearly an aggravating feature. (7) There were the offender’s previous convictions and cautions; and (8) The offences were committed during the currency of an existing Youth Rehabilitation Order. 41 The only real mitigation, apart from the offender’s youth, was his ADHD. This had been identified by Dr Omar as leading to impulsive behaviour. However, there is no reason to treat that as having played a significant part in the offending in a way which reduces his culpability given the degree of planning. This was not essentially impulsive behaviour but abduction with a view to sexual activity which took place some hours later. Although the offender’s ADHD is something which might make his time in custody more onerous than for someone without that condition, it appears to be capable of being managed successfully by medication. It therefore affords only limited mitigation. 42 In our view, the appropriate sentence for an adult, after a trial, would have been one of at least fifteen years. The offender was aged a little under sixteen and a half at the time of the offences. Although youth is not automatically to be equated with maturity, there is nothing in his troubled background which suggests to us that he was either more or less mature than other children of his age generally. The Recorder referred to having seen the offender during the trial but did not suggest that that led him to conclude that he was immature for his age. The Recorder relied on the reports, and none of the reports suggest that he was immature for his age. Ms Revel fairly makes the point that Dr Omar’s second report, by which stage he was seventeen, shows a greater level of maturity but there is nothing in her first report which suggests a lack of maturity for a sixteen and a half year old. 43 Accordingly, a deduction of about 40 per cent for the offender’s age at the time of the offence would have been appropriate in application of the Guideline. That would result in a sentence of nine years’ custody. 44 It follows that, in our view, a sentence of five years was unduly lenient. Accordingly, we grant leave. We increase the period of custody on each of Counts 4, 5 and 6 to one of nine years’ detention to run concurrently with each other. The other elements of the sentence remain unaffected. ______________

2024_01_18-5999.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2024/104/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2024/104

5dca1b8e6e780a8c8c797dcb3729cea8479896daeaec620a2acba6e332eb8865

[2006] EWCA Crim 2692

EWCA_Crim_2692

2006-10-27

crown_court

Case No. 2006/05276/B5 Neutral Citation Number: [2006] EWCA Crim 2692 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Friday 27 October 2006 Before: THE PRESIDENT OF THE QUEEN'S BENCH DIVISION ( Sir Igor Judge ) MR JUSTICE PENRY-DAVEY and MR JUSTICE MACKAY - - - - - - - - - - - - - - - - - IN THE MATTER OF B - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 190 Fleet St

Case No. 2006/05276/B5 Neutral Citation Number: [2006] EWCA Crim 2692 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Friday 27 October 2006 Before: THE PRESIDENT OF THE QUEEN'S BENCH DIVISION ( Sir Igor Judge ) MR JUSTICE PENRY-DAVEY and MR JUSTICE MACKAY - - - - - - - - - - - - - - - - - IN THE MATTER OF B - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - MR A NICOL QC and MR A HUDSON appeared on behalf of BRITISH BROADCASTING CORPORATION, TIMES NEWSPAPERS and ASSOCIATED PRESS MR E LAWSON QC and MR J LAIDLAW appeared on behalf of THE CROWN PROSECUTION SERVICE MR P CARTER QC and MR P MYLVAGANAM appeared on behalf of THE DEFENDANT Z MR E REES QC appeared on behalf of THE DEFENDANT AJ and OR MR D FRIEDMAN appeared on behalf of THE DEFENDANTS NT, JF and QS - - - - - - - - - - - - - - - - - JUDGMENT THE PRESIDENT OF THE QUEEN'S BENCH DIVISION: 1. This is an appeal under section 159 of the Criminal Justice Act 1988 by the British Broadcasting Corporation, the Times newspaper and Associated Press against the order made by Butterfield J at the Central Criminal Court (sitting at Woolwich Crown Court) on 12 October 2006, and confirmed on 17 and 18 October. The judge ordered the postponement of reporting in the media of the sentencing hearing against Dhiran B until the conclusion of the trial of his co-defendants. 2. This is a very high-profile case. The application is argued before us by Mr Andrew Nicol QC. It is supported by Mr Edmund Lawson QC on behalf of the Crown. His position is that in the particular circumstances of this case there was no basis for concluding that there would be prejudice caused to the future trial by fair and accurate contemporaneous reporting of the sentencing hearing. 3. The appeal is opposed by the co-defendants, some of whom successfully applied to the judge to make the order now under appeal. We hope that we shall be forgiven at this time of the day if we do not set out all the detailed arguments which have been drawn to our attention. We studied the written submissions before we came into court and we have reflected on the oral submissions put before us this afternoon. 4. The appeal is brought against the decision of the trial judge, Butterfield J. He was very familiar with all the issues in the case. We have given close attention to his reasoning and the basis upon which he came to his conclusion. In the end, however, we are not being asked to interfere with the exercise of the judge's discretion. We are invited to the conclusion that, in the particular circumstances of what the judge recognised as a difficult case, his final conclusion was wrong. 5. Mr Nicol invited us to the observations in Ex parte The Telegraph Group plc and others [2001] 1 WLR 1983 , 1987, where Longmore LJ giving the judgment of the court said: "3. It is clear that the duty of the Court of Appeal when exercising this jurisdiction is not merely to review the decision of the trial judge who made the order under challenge, but rather to come to its own independent conclusions on the material placed before it ...." That is the test that we shall apply. In doing so we shall not, as was suggested, mechanistically curtail the trial judge's assessment of the possible risk to the integrity of the trial. 6. A further consideration at this stage is that we are not here addressing, nor was the judge, whether there was or had been any abuse of process arising from pre-trial publicity; nor whether the publicity before or during a trial may have produced a miscarriage of justice. In short, we are not looking backwards at facts which can be established, or prejudice which may have materialised, but at a predicted, potential or possible risk of unfairness if publicity of this sentencing hearing were not postponed. 7. We shall explain the facts very briefly. In August 2004 B and his co-defendants were arrested in Blackburn, Luton and London. The arrests and subsequent charging of the defendants was extensively reported on 17 and 18 August. The defendants appeared at Belmarsh Magistrates' Court on 18 August. Reports of that hearing were also published in the media. The defendants were remanded in custody. There was a hearing on 25 August by way of video link at the Central Criminal Court. Reports of that hearing were again published in different parts of the media. A preliminary hearing took place at the Central Criminal Court on 3 September 2006. As far as we can gather from the papers reports of that hearing were published less widely, but the British Broadcasting Corporation certainly reported them. Butterfield J was invited to act as the trial judge. He was responsible for case-managing the case to trial and is the trial judge. 8. The indictment contained 23 counts. It was severed for practical management reasons in July 2006. At that stage B was due to be tried first, with his co-defendants' trial to follow. Almost exactly three months after that order, on 12 October 2006 B pleaded guilty to count 1. The count alleged conspiracy to murder. The particulars of offence alleged that between 1 January 2000 and 4 August 2004 B and several identified co-defendants conspired together and with other unidentified persons to commit murder. It was emphasised in the course of his written basis of plea that, in pleading guilty as he did, B was making no admission that he had conspired with any of the other named defendants. The Crown made clear that it did not accept what was accurately (if inelegantly) described as the "non-admission". Nevertheless (lest there be any doubt about it), the Crown did not suggest that B's plea did anything to interfere with the presumption that the remaining co-defendants were innocent and would remain innocent until proved guilty. 9. The hearing on 12 October turned to the issue of publication and publicity: How much of the proceedings involving B either on that day, or at any later date, should be subject to reporting restrictions designed to protect the integrity of the trial of the co-defendants? The judge accepted a submission on B's behalf, supported by the Crown, that, B having pleaded guilty, he should be sentenced as soon as possible and that sentence should not be postponed until the conclusion of the trial of the co-defendants, which would undoubtedly have been the more normal practice. 10. That decision cannot be, and has not been, impugned. It is suggested that if it had not been made, the issue which arises now would not have arisen. That is the fact, but it does not advance the argument. Its impact is that the sentencing decision was fixed for 1 November and, although it may be postponed for a few days yet, it will take place in the immediate future. That process will involve three interlinked but distinct features. The Crown will open the case against B and set out the facts against him in the familiar way. Counsel for B will then present his submissions in mitigation. Having reflected on all the material, the judge will then pass sentence. He will explain the basis for his sentencing decision in reasoned observations, capable of being understood by B himself and the public at large. All this will now happen before the start of the trial of the co-defendants. 11. On 12 October it was thought that the trial would begin in January 2007. As it happens, Butterfield J was subsequently persuaded (for reasons unconnected with the issues now before us) that the trial should revert back to its original starting date, 17 April 2007. This was the context that it was submitted on behalf of the co-defendants that any reporting in the media of the sentencing hearing should be postponed until after the conclusion of their trial. Butterfield J concluded that there was no substantial risk of prejudice if the fact of and the basis of B's plea were reported following the end of the hearing on 12 October. Inevitably, and with every justification in the present circumstances, those facts and the proceedings themselves (save those with which we are now concerned, that is the order prohibiting publication in relation to the sentencing hearing) attracted a great deal of media interest. 12. On 17 October Butterfield J said that he had no concerns arising from the way in which the proceedings on 12 October had been reported. On the other hand, we bear in mind that those proceedings did not extend to a detailed opening of the case against B. 13. In a short, concise judgment on 12 October Butterfield J explained his concern about the risk of substantial prejudice to the trial of the remaining co-defendants if his sentencing remarks and the proceedings which culminated in his sentencing decision were to be reported. He explained that B would be the first Muslim to be sentenced in the United Kingdom for terrorist crime involving plans to commit mass murder of innocent civilians. As part of a very well understood obligation, now enshrined in statute, he would have to explain the reasons for his sentencing decision. As he correctly noted, none of those observations could provide evidence admissible against any co-defendant. He also recognised that both the sentence and his reasons for it, whatever they were and however expressed, would be likely to be productive of a huge amount of legitimate public discussion and debate -- a debate that might well continue for some time -- and, depending on future events, might revive from time to time. That consideration provided the critical factor in his decision. 14. As we have emphasised, the judge was plainly familiar with all the essential facts of the case. He recorded in his judgment that the activities of B were "central" to the subsequent trial. However (and this is not without significance to our decision), it was not in dispute that B's conviction will be admissible as evidence at the forthcoming trial in support of the Crown's case. It is also not in dispute that the evidence relied on by the Crown against B (although not any judicial comment by the sentencing judge on them) but including his perceived role and detailed evidence of his activities would also be admissible. 15. The judge examined a number of different possibilities, including whether it might be possible to allow the actual sentence to be reported, but without his sentencing remarks, or to allow the sentence and the Crown's opening of the facts to be reported without them. He concluded that that would be unrealistic. Accordingly, he made the order which is the subject of this appeal. 16. On 17 October the judge was invited to revisit the order. It was suggested that as the starting date for the trial had been postponed from January until April, the delay would work as the "fade factor". In fairness to the careful explanation given by the judge for maintaining his decision, we should recite it in full: ".... 4. I have no concern about any reporting of the prosecution case against B. .... It is not suggested on behalf of any defendant that any part of the evidence relied on against B is inadmissible in the case of the remaining defendants. The possibility that any potential juror, reading a report of the proceedings against B at a time when he would not have the least idea he was later to become a juror in the trial of the remaining defendants, would be significantly affected by what he had read five months earlier, as opposed to what he heard during the later trial, is to my mind fanciful. 5. My anxiety about the risk of prejudice centres on my sentencing remarks. .... I have a statutory duty to explain to the defendant my view of the gravity of his offending, the aggravating and mitigating features that I find to exist and the reasoning underpinning the sentence I eventually impose. Such observations as I shall make can form no part of any admissible evidence against the defendants. 6. Whatever sentence I impose, and the observations I make when imposing it, are likely to be the subject, quite legitimately, of public discussion and debate. It would be unreal to expect that debate to be over in a matter of days. It is likely to be prolonged. Because the case of B will, by virtue of its timing, be a bench mark for later cases it is unlikely that the sentence and the reasons for that sentence will simply fade from public consciousness with the passage of time. There may well be cases which fall to be sentenced immediately before or during the trial of the seven defendants. In such cases counsel or judge may wish to have regard to the sentence imposed on B. The media, if free to report B's sentence, could not be constrained from reporting any references to that sentence in those later proceedings. 7. B and his activities are central to the second trial. The jury will undoubtedly have to form a view about them on the evidence they hear. Judicial observations about those activities are irrelevant and inadmissible. .... I appreciate that such publication might be said not to be covered by section 4(1) of the Contempt of Court Act 1981 but the risk remains and the consequences to the trial might well be serious. I conclude that if reporting was not postponed there is a real and substantial risk that in the course of the second trial the jury trying those defendants will learn, or be reminded, one way or another, of the sentence imposed on B and the observations made when that sentence was imposed. That might well be prejudicial to the defendants whatever directions the jury received. 8. I have re-considered whether it would be possible to permit publication of the sentence imposed but prohibit publication of the reasons for that sentence. Recent ill-informed public debates about the adequacy of sentences even where the full reasons have been given persuade me that this would not be an appropriate course. ...." 17. The following day, because of some perceived uncertainty about the effect of his ruling, the judge provided an addendum to it. He said: ".... 2. I recognise that the reporting of the prosecution case against B would not, of itself, cause a substantial risk of prejudice. But if those proceedings were reported without any reporting of the sentence that in itself would, in my judgment, create a substantial risk of prejudice to the administration of justice. In reporting the prosecution opening and the mitigation the media would inevitably recount that B had been sentenced 'but we are not permitted by order of the court to disclose what that sentence is or the reasons for it'. Such a situation is highly undesirable, likely to lead to speculation and to fuel publicity and debate. ...." 18. The papers before us included references to a very large number of authorities, both within this jurisdiction and from the European Court of Human Rights. The authorities from both sides have taken full account of each defendant's Convention rights and the right to freedom of expression. But the reality is that we are here in familiar, if never easy, territory. Fundamental principles are engaged. First, in this country every defendant who appears before the court to stand his trial, whatever the charge, whoever he or she may be, is entitled to, and must receive, a fair trial. That was, in the memorable epithet of Lord Bingham of Cornhill, a "birthright". Although the epithet is relatively recent, the concept is of some antiquity. 19. An equally precious principle, hallowed by custom and the tradition of the common law, is the freedom of the media to act as the eyes and ears of the pubic at large and, among their other responsibilities, to observe and contemporaneously to report the criminal proceedings involving the same defendant whose birthright to a fair trial must be protected. The administration of criminal justice must be open and transparent. The freedom of the press to report the proceedings provides one of the essential safeguards against closed justice. 20. The question here is whether the operation of this principle creates a risk of substantial prejudice to the fairness of the trial of B's co-defendants if reporting this stage of the proceedings (that is the sentencing of B) is not prevented altogether, but postponed. That is the issue which we must address, acknowledging, as we do, that the "primacy" of the fair trial is the crucial feature. We take that word from the speech of Lord Hope of Craighead in Montgomery v Her Majesty's Advocate [2003] 1 AC 641. 21. The broad criticism of the judge's decision, developed by Mr Nicol, can be briefly summarised. The judge did not find that a proper report of the prosecution opening of the case would create any of the risks of prejudice with which this jurisdiction is concerned. The decision, and the essential basis for it, was that the case as a whole, including the level of sentence and the reasons for it, would inevitably generate huge, justifiable comment and possibly controversy. It was publicity of this kind which, according to the judge's conclusion, created the risk which justified the order which he made. Mr Nicol submits that that is not a sufficient basis for the order, which in any event was wrongly made on the facts as they are known. 22. Section 1 of the Contempt of Court Act 1981 provides: "In this Act the strict liability means the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice, in particular legal proceedings, regardless of intent to do so." Section 2, so far as relevant provides: "(1) The strict liability rule applies only in relation to publications .... addressed to the public at large or any section of the public. (2) The strict liability rule applies only to a publication which creates a substantial risk that the course of justice in the proceedings will be seriously impeded or prejudiced. ...." Section 4 deals specifically with contemporary reports of proceedings and the power of the court to order that reporting should be postponed. It provides: "(1) Subject to this section a person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith. (2) In any such proceedings the court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose." 23. Mr Nicol drew our attention to a passage in Ex parte The Telegraph Group , in which Longmore LJ brought together a number of threads to be derived from the authorities. He suggested that there were possible sources of confusion which could be avoided if applications to restrict media coverage of court proceedings were approached as follows: "22. .... (1) The first question is whether reporting would give rise to a 'not insubstantial' risk of prejudice to the administration of justice in the relevant proceedings. If not, that will be the end of the matter. (2) If such a risk is perceived to exist, then the second question arises: would a section 4(2) order eliminate it? If not, obviously there could be no necessity to impose such a ban. Again, that would be the end of the matter. On the other hand, even if the judge is satisfied that an order would achieve the objective, he or she would still have to consider whether the risk could satisfactorily be overcome by some less restrictive means. If so, it could not be said to be 'necessary' to take the more drastic approach: see Ex parte Central Television plc [1991] 1 WLR 4 , 8D-G per Lord Lane CJ. (3) Suppose that the judge concludes that there is indeed no other way of eliminating the perceived risk of prejudice; it still does not follow necessarily that an order has to be made. The judge may still have to ask whether the degree of risk contemplated should be regarded as tolerable in the sense of being 'the lesser of two evils'. It is at this stage that value judgments may have to be made a to the priority between 'competing public interests': see Ex parte The Telegraph plc [1993] 1 WLR 980 , 986B-C." There is no issue between the appellants and the co-defendants as to principles (1) and (2). There is an issue as to principle (3). The respondents contend that, in reality, the correct test is that, when the matter is properly examined, there remains a primacy in the fairness of the trial. This primacy means that the defendant is entitled to be tried without the risk of prejudice. It is unnecessary for us to resolve the issue in this hearing and we do not do so. We have already indicated that for present purposes we shall give primacy to the fairness of the trial. 24. However, Mr Friedman argued before us that section 4(2) of the Contempt of Court Act was not confined to prejudice arising from contemporaneous fair and accurate reporting of court proceedings. He suggested that section 4(2) went to protect against a risk of what was vividly described as "parasitic damage" arising from fair and accurate reporting. Our attention was drawn to Scarsbrook or Galbraith v Her Majesty's Advocate from the Appeal Court, High Court of Justiciary in Scotland (7.9.2000), in a judgment given by the Lord Justice General. After considering the statutory provisions, the Lord Justice General observed: "10. When we apply these provisions to the circumstances of this case, we see immediately that any publication which does not simply constitute a fair and accurate report of active court proceedings, such as the present appeal, does not fall within the scope of Section 4(1) . Hence, if that publication creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced, the publisher will be in contempt of court by reason of the strict liability rule. As we have explained, the main thrust of Miss Scott's main argument was that, unless a Section 4(2) order were made, the appeal proceedings in this case would prompt a barrage of articles containing comment, from Mr Galbraith's relatives and others, which would be hostile to the appellant and would poison the minds of any potential jurors in a retrial. It is plain, however, that comment of this kind would go beyond a simple report of the proceedings and so would not enjoy the benefit of the exception in Section 4(1) . Accordingly, if such comment did actually create a substantial risk that the course of justice would be seriously impeded or prejudiced, the strict liability rule would apply in terms of Section 2(2). In that event, the court would have power to deal with the mater in terms of section 2(2) and, in an appropriate case, to punish the publisher. That is the mechanism which Parliament has provided for protecting the course of justice from the effects of publications of that kind. The court's power in Section 4(2) is not intended to be used to deal with such publications but to deal, rather, with reports of its proceedings which are fair and accurate but should none the less be postponed. It would accordingly be an abuse of this particular power to pronounce an order, as Miss Scott urged, not for the purpose of warding off an anticipated consequence of the fair and accurate reporting of the appeal proceedings but for the purpose of warding off prejudicial comment which those proceedings might prompt. For these reasons we reject both aspects of Miss Scott's submission." 25. We should make plain that, quite apart from the effect of Scarsbrook , which we adopt, the responsibility for avoiding the publication of material which may prejudice the outcome of a trial rests fairly and squarely on those responsible for the publication. In our view, broadcasting authorities and newspaper editors should be trusted to fulfil their responsibilities accurately to inform the public of court proceedings, and to exercise sensible judgment about the publication of comment which may interfere with the administration of justice. They have access to the best legal advice; they have their own personal judgments to make. The risk of being in contempt of court for damaging the interests of justice is not one which any responsible editor would wish to take. In itself that is an important safeguard, and it should not be overlooked simply because there are occasions when there is widespread and ill-judged publicity in some parts of the media. 26. We shall examine whether a fair and accurate report would be prejudicial if published at this stage. We must do justice to the submissions made on behalf of all the respondents, but we will narrate the submissions made to us by Mr Rees QC, who called into mind the public interest and the prejudice identified by the judge. Mr Rees suggested that there would be a high level of extensive reporting, and eventually, extraneous comment on the case. He suggested (and this was the position of counsel for all the respondents) that there was genuine ground for fearing that the sort of widespread comment which had occurred in previous cases would be transposed to this one. He reminded us, too, of the publicity that was given when the defendants were arrested back in the summer of 2004. It was suggested that the public interest in this case would at this stage be satisfied by the judge's decision to allow the Crown's comments to him when the plea was tendered and the basis of plea put forward to be reported. They were fully reported. That was sufficient. 27. We were invited to consider the consequences, if the appeal was allowed, that the fairness of the trial could not be protected. The comment could cross the proper boundary; it could be disastrous to the fairness of the trial. Therefore, as the future is still unsure, it is much better to deal with the matter now by supporting the judge's order. Anything different would create a difficulty for an as yet unchosen jury, all of whom (it was suggested) were potential victims of the charge which the co-defendants faced, if the Crown's case was right, and the jury would have great difficulty putting out of their minds the material which would derive from the publicity. That is an important submission which we shall address in a moment in the context of the jury's performance of its own duties. In effect, therefore, although the trial judge would give directions to the jury, those directions would not address the risk of unfairness and alleviate the dangers that the trial would have been prejudiced beyond rescue. 28. As we have already said, the entitlement to a fair trial has primacy above all other considerations. Montgomery v Her Majesty's Advocate was a case in which the court looked backwards, rather than forwards, at a very high level of publicity. Lord Hope identified the common law test where pre-trial publicity is relied upon in support of a plea of oppression. It was whether the risk of prejudice was so grave that no direction by the trial judge, however careful, could reasonably be expected to remove it. He then addressed the jurisprudence at Strasbourg, reinforced by the jurisprudence in the Supreme Court at Canada, the High Court of Australia and the High Court in Ireland, and commented at page 673G: ".... the risk that widespread, prolonged and prejudicial publicity that occurred in this case will have a residual effect on the minds of at least some members of the jury cannot be regarded as negligible." However, he then went on: "The principal safeguards of the objective impartiality of the tribunal lie in the trial process itself and the conduct of the trial by the trial judge. On the one hand there is the discipline to which the jury will be subjected of listening to and thinking about the evidence. The actions of seeing and hearing the witnesses may be expected to have a far greater impact on their minds than such residual recollections as may exist about reports about the case in the media. This impact can be expected to be reinforced on the other hand by such warnings and directions as the trial judge may think it appropriate to give them as the trial proceeds, in particular when he delivers his charge before they retire to consider their verdict." 29. The submissions on behalf of the respondents are based on what we accept will be the generation of huge public interest in the case and in the reporting of Mr Lawson's opening of the Crown's case, the judge's sentencing remarks and the sentence itself. That will be of true and genuine public interest, not gawping regard of a prurient nature. 30. A week ago today, in a different constitution over which I presided, this court considered a point arising from pre-trial publicity. For reasons connected with that case we ordered that there should be no report of the judgment until the conclusion of the trial. However, what I said then is something with which my colleagues in this case also agree. As it has no bearing on the decision where the prohibition was imposed, we adopt what was said then as apposite to this case too. 31. There is a feature of our trial system which is sometimes overlooked or taken for granted. The collective experience of this constitution as well as the previous constitution of the court, both when we were in practice at the Bar and judicially, has demonstrated to us time and time again, that juries up and down the country have a passionate and profound belief in, and a commitment to, the right of a defendant to be given a fair trial. They know that it is integral to their responsibility. It is, when all is said and done, their birthright; it is shared by each one of them with the defendant. They guard it faithfully. The integrity of the jury is an essential feature of our trial process. Juries follow the directions which the judge will give them to focus exclusively on the evidence and to ignore anything they may have heard or read out of court. No doubt in this case Butterfield J will give appropriate directions, tailor-made to the individual facts in the light of any trial post the sentencing hearing, after hearing submissions from counsel for the defendants. We cannot too strongly emphasise that the jury will follow them, not only because they will loyally abide by the directions of law which they will be given by the judge, but also because the directions themselves will appeal directly to their own instinctive and fundamental belief in the need for the trial process to be fair. 32. In this case there are at least two safeguards against the risks to which our attention has been directed. There is the responsibility of the media to avoid inappropriate comment which may interfere with the due administration of justice in this case and there is the entire trial process, including the integrity of the jury itself. 33. In those circumstances and for those reasons this appeal will be allowed. MR NICOL: My Lord, I am very grateful. Will your Lordships then set side the order of Butterfield J? THE PRESIDENT OF THE QUEEN'S BENCH DIVISION: Yes. MR NICOL: My Lord, can I say on behalf of all present how grateful we are to your Lordships and the other members of the court staff for sitting so late on a Friday? THE PRESIDENT OF THE QUEEN'S BENCH DIVISION: Thank you, Mr Nicol. May I raise two sub-texts? First, any issues about address and so on, which have been raised by Mr O'Connor (and there may be other similar points which will no doubt be taken up in discussion with Mr Lawson rather than you), any problems about those should be dealt with by Butterfield J in due course. The second is directed more at Mr Laidlaw (but it may be at anybody else): Can there be a certain amount of commonsense restraint about comments by prosecutors following the sentencing hearing? MR LAIDLAW: Yes, my Lord. THE PRESIDENT OF THE QUEEN'S BENCH DIVISION: I was not referring to you or to Mr Lawson. MR LAIDLAW: I know that you were not. THE PRESIDENT OF THE QUEEN'S BENCH DIVISION: But we open our papers and we see that some spokesman for the prosecution had something to say. We wonder whether, certainly in this case at this stage, any comment would be appropriate. MR LAIDLAW: I will ensure that that matter is raised with the Director personally. THE PRESIDENT OF THE QUEEN'S BENCH DIVISION: Thank you very much. The other point is that it also applies to any solicitor or any spokesman on behalf of any of the defendants at trial. Very well, thank you all very much. ________________________________________________________

2006_10_27-952.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/2692/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/2692

db0203a056d866078248c5e07db8e4ba044c5eb6fa4cf4cd3ae13ce5ce8f8418

[2022] EWCA Crim 921

EWCA_Crim_921

2022-06-08

crown_court

WARNING: reporting restrictions apply to the contents transcribed in this document, as stated in para 2 of the judgment, because the case concerned a sexual offences and involved children. 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 restricti

WARNING: reporting restrictions apply to the contents transcribed in this document, as stated in para 2 of the judgment, because the case concerned a sexual offences and involved children. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO: 2022 01093 A1 NCN: [2022] EWCA Crim 921 Royal Courts of Justice Strand London WC2A 2LL Wednesday 8 June 2022 Before: THE VICE PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION) LORD JUSTICE HOLROYDE MR JUSTICE GRIFFITHS HIS HONOUR JUDGE DREW QC REFERENCE BY THE ATTORNEY-GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 REGINA v GAWAIN DAFYDD FALLOWS __________ 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 FIONA ROBERTSON appeared on behalf of the Solicitor-General MS PAGE NYAME appeared on behalf of the Offender _________ J U D G M E N T (Approved) THE VICE PRESIDENT: 1. On 16 March 2022, in the Crown Court at Portsmouth, Gawain Fallows ("the offender") was sentenced to a total of 2 years 6 months' imprisonment for a number of offences arising out of his sexual communications on social media with children and correspondents he thought were children. Her Majesty's Solicitor General believes that total sentence to be unduly lenient. Application is accordingly made pursuant to section 36 of the Criminal Justice Act 1988 for leave to refer the case to this court so that the sentencing may be reviewed. 2. The real children who were the victims of some of the offences are entitled to the life-long protection of the provisions of the Sexual Offences (Amendment) Act 1992 . Accordingly, during their respective lifetimes nothing may be included in any publication if it is likely to lead members of the public to identify any of them as a victim of these offences. 3. The offender was aged between 31 and 35 during the relevant 4-year period. We shall summarise his offending in chronological sequence. 4. Between January 2017 and May 2019 the offender made, and stored on two mobile phones, a significant number of indecent photos of children. Across the two phones a total of 20 category A photographs, 42 category B, and 266 category C were found. 5. Between November 2018 and May 2019 the offender communicated via WhatsApp with a girl then aged 14 or 15 ("C"). His correspondence with her covered 1,400 pages of messages stored on his phone, including many of a highly sexual nature. He asked C to send him photographs of herself, encouraging her to touch herself sexually. He called her the "love of his life" and discussed how they might meet and live together. He told her of various sexual activities he would like to engage in with her. C did in fact send him sexual images of herself: 1 of category A, 19 of category B, and 136 of category C. These included a video which C recorded in the shower in which she showed her breasts and vagina to the camera and masturbated. 6. It appears that C's family found out that she was communicating with a much older man, and brought it to an end, but did not report the matter to the police. The offender's reaction to the ending of his contact with C was to threaten to publish the indecent photographs of her which she had provided to him, saying, "You're just like every other basic slag. Watch, your pictures are going online and to your mother, nasty slag that you are". 7. These offences came to light later in 2019 when a former adult partner of the offender found some of the images on a phone which he had left at her home. She provided that phone to the police, who seized a second phone when they arrested the offender on 6 September 2019. When interviewed under caution the offender denied any wrongdoing, accusing his former partner of making false allegations against him and suggesting that his Facebook account had been hacked. He was released under investigation. 8. This offending between 2017 and 2019 became the subject of a committal for sentence from the Wigan Magistrates' Court ('S2022 0022') in relation to eight charges: six of making indecent photographs contrary to section 1 of the Protection of Children Act 1978 ; one of sexual communication with a child under 16, contrary to section 15 A of the Sexual Offences Act 2003 ; and one of causing or inciting sexual activity by a child under 16, contrary to section 10 of the 2003 Act . For reasons which remain obscure, there is confusion as to the numbering of these various charges in different documents. We shall therefore simply refer to the latter two charges as the ‘ section 15 A offence’ and the ‘ section 10 offence’. 9. Whilst under investigation for the Wigan offences, however, the offender went on to commit further sexual offences. Over a 7-week period in March and April 2021 he conducted a sexualised online correspondence with (as he thought) a 12-year-old girl called Kirsty. Kirsty was in fact an undercover police officer. The offender met her in an online chatroom and encouraged her to move to a different form of social media. He said he would pay for her to travel to London to meet him and would buy her things, including Disney underwear. He said he wanted her to be his girlfriend and said he wanted to make love to her. He suggested she tell her father she was with a friend when she was meeting him. He asked if she had a sister with whom they could engage in a threesome. When Kirsty said that her sister was too young the offender replied, "Not if she's your age or a year younger". He repeatedly asked her to send naked photographs of herself. When she said she would not do so until he sent her a photograph of himself, he said he would not send anything because he was not going to go to jail. He called her a "fake", claimed it was a "set-up" and no longer wanted to meet her. 10. The offender was arrested and interviewed on 29 April 2021. He denied sending any sexual messages to any child, referring to his own 13-year-old daughter and saying that the idea made him feel sick. He again suggested that his social media may have been hacked and that someone may have used his thumb to unlock his phone whilst he was sleeping. He was also questioned about his Wigan offences, which he again denied. 11. The exchange of messages with Kirsty resulted in an indictment before the Crown Court at Snaresbrook ('T2022 0019') which charged the offender with attempting to engage in sexual communication with a child contrary to section 1 of the Criminal Attempts Act 1981 and section 15 A of the 2003 Act . 12. Before he was charged with that offence, and undaunted by the fact that he was now under investigation for both the Snaresbrook and the Wigan matters, the offender committed yet further offences. Between August and December 2021 he used a Facebook profile under an alias to contact (as he thought) a 13-year-old girl, Minnie, and later her 11-year-old sister, Georgia. Neither girl in fact existed. They were decoys set up by a group referred to as paedophile hunters. The offender sent messages about Minnie losing her virginity to him and moving in with him. He incited Georgia to masturbate, telling her what she should do. On several occasions he arranged to meet both girls, asking them to travel to the area where he lived and to stay with him for a year. In relation to the proposed meetings he took a number of precautions to avoid detection, telling the sisters to bring only limited clothing, to buy their train tickets with cash rather than a card, to deactivate geolocation services on their phone and to meet him outside the train station because "the less CCTV the better". However, the offender always cancelled at the last minute the meetings which he arranged. 13. The offender was arrested on 9 December 2021. When interviewed the following day he said he had only ever sent non-sexual messages to Georgia and denied sending any messages to Minnie, claiming once again that his profile had been hacked. 14. In relation to these matters the offender was charged on indictment T2021 0223 in the Crown Court at Portsmouth with five offences of attempting to commit crimes contrary to three provisions of the Sexual Offences Act 2003 : count 1, attempting to cause a child aged 11 to engage in sexual activity contrary to section 10 ; counts 2 and 3, attempting to meet a child following grooming contrary to section 15 ; and counts 4 and 5, attempted sexual communication with a child contrary to section 15 A. 15. The offender indicated guilty pleas to all eight offences before the Wigan Magistrates’ Court and was committed for sentence. He indicated not guilty pleas to the various charges on the two indictments, but pleaded guilty at PTPH in relation to each indictment. 16. The offender had no previous convictions other than motoring matters long ago. 17. The judge had the assistance of a pre-sentence report, the author of which found that the offender had displayed little insight into his conduct and continued to deny any sexual attraction to children. The report indicated that the offender resisted attempts to hold him to account for his actions, tending to blame factors such as the PTSD and depression from which he had been diagnosed as suffering. 18. The judge was addressed about the relevant sentencing guidelines then in force. It should be noted that a guideline in relation to offences contrary to section 15 A of the 2003 Act will soon come into effect, but it did not and does not apply in this case. 19. In his brief sentencing remarks the judge made clear that he had the principle of totality well in mind. He rightly allowed one-third credit for the early admission of the Wigan offences and one-quarter in relation to the other offences. He said that he regarded the Snaresbrook and Portsmouth offences as aggravated by the fact that they were committed at a time when the offender was under investigation for the Wigan offences. • For the Wigan offences he imposed a total of 2 years' imprisonment, comprising 2 years for the section 15 A offence, 2 years concurrent for the section 10 offence (which he treated as the lead offence), and concurrent terms of 8 months, 4 months and 1 month for the indecent photographs offences. • For the Portsmouth offences he imposed prison sentences, concurrent with each other and with the sentences for the Wigan offences, of 2 years on count 1 and 1 year on each of the other counts. • For the Snaresbrook offence he imposed 6 months' imprisonment, consecutive to the other sentences. Thus the total sentence was, as we have said, 2 years and 6 months' imprisonment. A Sexual Harm Prevention Order was made for 10 years. 20. On behalf of the Solicitor General, Ms Robertson submits that the total sentence was unduly lenient, in particular because the judge took too low a starting point for the most serious of the Wigan offences, namely the section 10 offence, then wrongly made all but one of the sentences concurrent and failed adequately to reflect the aggravating factors. 21. She reminds us of the approach to sentencing which this court laid down in R v Reed & Others [2021] EWCA Crim 572 in relation to section 10 offences and other offences of causing, inciting or attempting child sexual offences where no real child exists - an approach consistent with that adopted by the court in the earlier decision of R v Privett & Others [2020] EWCA Crim 557 in relation to section 14 offences where no real child exists. 22. Ms Robertson also reminds us that there were of course real child victims of the Wigan offences and that those offences were committed over a period of more than 2 years, with the Portsmouth and Snaresbrook offences following nearly 2 years later and whilst the offender was under investigation. 23. Ms Robertson submits that the total sentence of 2 years 6 months was no longer than might have been considered appropriate for the section 10 offence alone, after giving appropriate credit for the guilty plea. The sentence for that lead offence, she submits, needed a significant uplift to reflect the other offending if the judge was to deal with them by concurrent sentences. 24. Ms Nyame, who represents the offender in this court as she did below, submits that neither the individual sentences nor the total sentence falls below the range which was properly open to the judge. She reminds us that the offender has never before lost his liberty and that he is serving his sentence in prison conditions which are particularly difficult at the present time. 25. As to the submission made on behalf of the Solicitor General that the judge when considering the Wigan offences should have made an initial move upwards from the guideline starting point to reflect the presence of a number of high culpability factors, Ms Nyame submits that any such increase is discretionary and that the judge should not be criticised for deciding against making such an increase in the present case. 26. She also mentions difficulties faced by the offender which provided personal mitigation on his behalf, in particular his caring responsibilities in relation to older relatives and the background of some mental illness, albeit that she does not suggest that that illness was linked to the commission of the offences. 27. We are grateful to both counsel for their helpfully succinct and well-focused submissions. 28. In our judgment, each of the individual offences was a serious example of its kind. Moreover, notwithstanding Ms Nyame's careful submissions on the offender's behalf, the personal mitigation available to him was, in our view, limited. He had had an unhappy adolescence in what appears to have been an unhappy family home, and the pre-sentence report suggested emotional immaturity. We accept that he was to be treated for sentencing purposes as having suffered for some years from depression and PTSD. But as against that, he had had a number of sexual relationships with women of his own age and is himself the father of a number of children, albeit that he seems to have played little, if any, part in their lives. His emotional and mental health problems could therefore only reduce his culpability to a very limited degree, if at all. The fact that he had no previous convictions has to be seen in the context of his committing these offences over a period of 4 years. Further, the relevant guidelines make clear that for offending of this kind previous good character should not normally be given any significant weight. 29. The judge was right to take the view that simple aggregation of the appropriate sentences for each offence viewed in isolation would result in far too long a total sentence. It was therefore necessary for him to have regard to totality, both within a group of offences and overall. That was by no means a straightforward task. However, as both counsel have realistically acknowledged in their submissions, the concern of this court is with the total sentence rather than its precise structure. 30. With all respect to the judge, the criticisms of his approach made on behalf of the Solicitor General are, in our view, well-founded. The judge failed properly to reflect the seriousness of the offending. In the light of the guidance given in R v Reed , he appears to have given too much weight to the fact that some of the offences related to intended victims who were not real children. 31. The categorisation of the offences covered by relevant guidelines was not in dispute in the court below. In relation to the Wigan offences against C (a real child) the section 10 offence fell into category 2A of the relevant guideline, with a starting point of 3 years' custody and a range from 2 to 6 years. Four separate culpability A factors were present, namely grooming; a significant disparity in age; the soliciting and retention of sexual images of the victim; and the use of threats including blackmail. That multiplicity of factors merited an upwards adjustment above the starting point before consideration of aggravating and mitigating features. The aggravating feature of that offence was that the offending continued over 6 months, with more than 4,000 messages exchanged. The section 15 A offence was within Category 1A, with a starting point of 18 months' custody and a range from 9 to 24 months. Again, it was aggravated by persistence. There was of course a significant degree of overlap between those two offences, and indeed an overlap with some of the indecent images offences, and care must be taken not to double count. The other indecent photograph offences, however, added significantly to the overall criminality in the Wigan group of offences. 32. In our view, and before consideration of overall totality, the sentence after trial for the offences against C could not properly have been less than 4 years' imprisonment, with a further 9 months for the indecent images offences. It follows that with credit of one-third for the guilty pleas the total could not be less than 3 years. 33. The Snaresbrook offence was committed whilst under investigation. It involved grooming, persistence, a significant disparity in age, and steps taken to avoid detection. There was no relevant guideline to assist the judge. The statutory maximum sentence was 2 years' imprisonment, and this was a bad example of its kind. The sentence had to be adjusted downwards to a limited extent to reflect the fact that there was no real child. On its own, it merited a sentence of at least 12 months after a trial, 9 months after giving credit of one-quarter for the guilty plea. In principle, and subject of course to considerations of totality, it merited a sentence consecutive to the total sentence for the Wigan offences. 34. As to the Portsmouth offences, the section 10 offence was category 2A, with a starting point of 3 years but with three culpability A factors present and a number of aggravating features. The offender was under investigation; he persisted in this offending over 4 months; he used a false persona and removed identifying photographs from his Facebook profile. The section 15 offence was category 2, with a starting point of 2 years and a range from 1 to 4 years' custody. Again, aggravating features were present; and there were two different victims, one believed by the offender to be only 11 years old. The section 15 A offences likewise related to two victims and had aggravating features. The sentences for the individual offences had to be adjusted downwards to reflect the facts that there were no real victims and the offender did not in fact attend any of the planned meetings. Even with that reduction, however, the total sentence for this group of offences could not, in our view, be less than 4 years after trial; 3 years with credit for the guilty pleas. Again in principle it was appropriate for the total sentence for these offences to be consecutive to the sentences for other offences. 35. It is then necessary to make a further downwards adjustment to reflect overall totality. In doing so we take into account the difficult circumstances in which the offender is serving his first custodial sentence and the other factors mentioned in his favour by Ms Nyame. Giving as much weight as we can to those factors, we are satisfied that the total sentence imposed below was much too low. Difficult though we recognise it will be for the offender, a substantially longer total sentence was and is unavoidably necessary. 36. We therefore grant leave to refer. We find that the total sentence imposed by the judge was unduly lenient. In our view the least total sentence appropriate in these circumstances was 5 years 6 months' imprisonment. We will reach that total in the following way. Wigan Committal S2022 0022 : we quash the sentences imposed below for the section 10 and section 15 A offences and substitute for them sentences of 3 years' imprisonment and 12 months' imprisonment respectively. The other sentences remain as before. All the sentences in this group are concurrent, making a total of 3 years. Snaresbrook Indictment 2022 0019 : we quash the sentence and substitute 9 months' imprisonment concurrent with the Wigan sentences. Portsmouth Indictment T2021 0223 : we quash the sentence imposed on count 1 and substitute for it 2 years 6 months' imprisonment. The other sentences in this group remain as before. They are concurrent with one another but consecutive to the sentence for the Wigan offences. 37. The effect of our decision, Mr Fallows, is that your total sentence is increased from 2 years 6 months' imprisonment to 5 years 6 months, of which you must serve up to half in custody before being released on licence for the remainder. The Sexual Harm Prevention Order will remain in force as before. The notification requirements will now apply indefinitely. The surcharge remains as before. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: Rcj@epiqglobal.co.uk

2022_06_08-5348.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/921/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/921

fb1536664a08d61d02a9c9bbed130ab64d5252e86de01ec12e894e14872bae3e

[2007] EWCA Crim 2923

EWCA_Crim_2923

2007-11-07

crown_court

Case No: 200704469/A5 Neutral Citation Number: [2007] EWCA Crim 2923 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 7th November 2007 B e f o r e : LADY JUSTICE HALLETT DBE MR JUSTICE KING HIS HONOUR JUDGE WARWICK MCKINNON (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v STEPHEN DONALD PHIPPS - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave Int

Case No: 200704469/A5 Neutral Citation Number: [2007] EWCA Crim 2923 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 7th November 2007 B e f o r e : LADY JUSTICE HALLETT DBE MR JUSTICE KING HIS HONOUR JUDGE WARWICK MCKINNON (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v STEPHEN DONALD PHIPPS - - - - - - - - - - - - - - - - - - - - - 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 E Blackman appeared on behalf of the Applicant Miss S Vallaile appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. HIS HONOUR JUDGE WARWICK MCKINNON: This appeal demonstrates yet again the complexity of some of the provisions of the Criminal Justice Act 2003 , and identifies another pitfall for judges and practitioners. 2. On 11th May 2007 in the Crown Court at Woolwich before Her Honour Judge Anwyl QC, the applicant pleaded guilty to one count of burglary with 14 offences of burglary taken into consideration. On 6th July 2007, before the same judge, he was sentenced to a suspended order of 12 months' imprisonment with a 2 year supervision requirement and a drug rehabilitation requirement. On 27th July 2007 the applicant admitted breaching the suspended sentence order, by leaving a residential rehabilitation unit without permission. He was resentenced by His Honour Judge Byers to three-and-a-half years' imprisonment, with a direction under section 240 of the Criminal Justice Act 2003 that 61 days spent on remand should count towards sentence. His application for leave to appeal against sentence has been referred to the Full Court by the Registrar. 3. The facts of the case are these. At about 12.10 pm on 17th April 2007 a Mrs Tuffin left her home in Erith in Kent. When she returned at 1.55 pm she found her rear kitchen door was open; her next door neighbour's ladder had been used to gain access through an open upstairs window and the kitchen door had been used as an exit. The house had been searched. Property taken included £260 cash, jewellery and a mobile telephone. The applicant's fingerprints were recovered from the inside upstairs window. 4. On 4th May 2007 the applicant surrendered to the police. When interviewed he admitted the offence. He fully co-operated with the police in admitting 14 further burglaries, those to be taken into consideration. In the majority of the cases the applicant took cash, jewellery and electrical goods, such as computers, televisions and cameras. In one case property valued at £8,000 was taken, which included photographs, wedding presents and two wedding rings. 5. The applicant was born on 13th April 1975. He has 31 previous convictions for 86 offences. They include 12 offences of burglary, of which 11 were of a dwelling and one of attempted burglary of a dwelling. At the time of sentence before Judge Anwyl he qualified for a minimum sentence of 3 years' imprisonment under section 111(2) of the Powers of Courts (Sentencing) Act 2000, that is, unless, and referring to subsection (2) itself: "the court is of the opinion that there are particular circumstances which— (a) relate to any of the offences or to the offender; and (b) would make it unjust to do so in all the circumstances." 6. Before the court was a pre-sentence report dated 13th June 2007 and a prison report dated 21st June 2007. There were in addition three references indicating motivation to change, including one from his partner who had just given birth. 7. In passing a suspended sentence the learned judge in her careful sentencing remarks, which it will be unnecessary to rehearse in any detail, was acutely aware of the provisions of section 111 but nevertheless found particular circumstances relating to the applicant, which in her judgment made it unjust to pass the minimum 3 year sentence. 8. This case is not before the Court to review still less to criticise the judge's approach or findings, which applied no doubt a good measure of compassion and mercy, and gave full effect to the defendant's early pleas of guilty, his having handed himself in to the police, his demonstration of remorse, his co-operation with the police and the clearing up 14 other burglaries which but for his confession would have remained unsolved, and the judge no doubt had the long-term protection of the public in mind. Account was taken of all the details in the reports and the fact that the appellant felt that he was at a turning point and had addressed his heroin addicition. He had begun detoxifying in prison working with the CARAT Team. His efforts and motivation had continued and he was drug free. He had re-established his relationship with the mother of his child which had broken down at the time of the offences. There were letters of encouragement and support from his partner and relatives, the pre-sentence report itself indicated that he had reached a turning point. The judge found that there were wholly exceptional circumstances for departing from what would otherwise be the expected course as we have indicated. 9. The appellant duly left custody to commence his suspended sentence order with its two requirements. He was not long at the residential drug rehabilitation centre before he left without permission. However, he continued to comply with the supervision part of the order. He was brought back before Woolwich Crown Court, this time before Judge Byers (Judge Anwyl in the interim having retired) and admitted a breach of the programme requirement. This Court sympathizes with the judge in the unenviable situation that confronted him. He viewed the appellant's breach so soon after the order had been imposed as "throwing away the opportunity that he had been given and that he now had to be punished." He felt that he had two options: firstly, to amend the sentence under the 28 day slip rule, or secondly, to revoke the suspended sentence order because it had been breached and to resentence. The learned judge chose the latter, given the restriction on the use of the slip rule, and sentenced the applicant to three-and-a-half years' imprisonment, as we have said. 10. The judge's approach could not be faulted, nor the justice of the case impugned, that is if he had power to proceed in that way given the almost immediate and flagrant nature of the breach of the programme requirement. 11. In his grounds of appeal Mr Blackman submits, firstly, in revoking the suspended sentence order and in resentencing the applicant the judge erred in law. Secondly, the judge's power at the highest was limited to imposing the 12 month sentence that has been suspended. Thirdly, it was wrong in principle to impose a sentence longer than that which the applicant had a legitimate expectation that he would receive in the event of a breach, and fourthly, to allow the judge to impose a sentence greater than originally suspended would render a suspended sentence meaningless. There is force in these submissions. 12. Schedule 12 paragraph 8 of the Criminal Justice Act 2003 , deals with the powers of the court where there has been a breach of a community requirement attached to a suspended sentence order. It reads thus: "This paragraph applies where— (a) it is proved to the satisfaction of a court before which an offender appears or is brought under paragraph 6 or 7 or by virtue of section 192(6) that he has failed without reasonable excuse to comply with any of the community requirements of the suspended sentence order, or. (b) an offender is convicted of an offence committed during the operational period of a suspended sentence (other than one which has already taken effect) and either— (i) he is so convicted by or before a court having power under paragraph 11 to deal with him in respect of the suspended sentence, or. (ii) he subsequently appears or is brought before such a court. (2) The court must consider his case and deal with him in one of the following ways— (a) the court may order that the suspended sentence is to take effect with its original term and custodial period unaltered. (b) the court may order that the sentence is to take effect with either or both of the following modifications— (i) the substitution for the original term of a lesser term complying with section 181(2), and. (ii) the substitution for the original custodial period of a lesser custodial period complying with section 181(5) and (6). (c) the court may amend the order by doing any one or more of the following— (i) imposing more onerous community requirements which the court could include if it were then making the order. (ii) subject to subsections (3) and (4) of section 189, extending the supervision period, or. (iii) subject to subsection (3) of that section, extending the operational period. (3) The court must make an order under sub-paragraph (2)(a) or (b) unless it is of the opinion that it would be unjust to do so in view of all the circumstances..." These provisions are to be compared with the powers of the court when dealing with a breach of a requirement of a community order in its own right, as opposed to one attached to a suspended sentence order. Here it is Schedule 8 of paragraph 10 of that Schedule which applies. It empowers the court to deal with the offender "in any way in which it could have been dealt with for the offence by the court which made the order as if the order had not been made." In short, revocation and re-sentence, which is what Judge Byers purported to do. 13. In the result the wholly deserved sentence passed by Judge Byers was not a lawful sentence and that is conceded by the Crown in this application. Accordingly the application for leave is granted and the appeal must be allowed. We quash the three-and-a-half year sentence, and we substitute 12 months' imprisonment, activating the suspended sentence, that being the maximum permissible and the term that had been suspended. 14. As far as the 61 days spent on remand up to when the suspended sentence was passed by Judge Anwyl, that must have been taken into account by her when passing the suspended sentence. It would be inappropriate for that to be taken into account a second time, particularly in view of the circumstances of the case, and accordingly no order is made under section 240 of the 2003 Act in respect of those days. 15. Finally, this. As we said earlier, this case is not before the Court to review or criticise the first judge's approach or findings. The lesson to be learned from all this is where a judge feels able to take a merciful course and not to impose an immediate and substantial custodial sentence, which but for exceptional circumstances would have been merited, if not mandatory, it is much better to pass a community order spelling out to the offender the consequences of a breach rather than a suspended sentence artificially low in its terms, limited as it has to be, to a maximum period of 12 months, so that if there is a breach, as has happened in this case, the Court's powers are not limited in the way that they were here.

2007_11_07-1264.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/2923/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/2923

0945f1e3b4798bcc31bd4569b307e7ed7794a24af283452eb2f1ba1a67827e0c

[2021] EWCA Crim 45

EWCA_Crim_45

2021-01-21

crown_court

Neutral Citation Number: [2021] EWCA Crim 45 Case No: 202001978 A4 and 202001916 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT SITTING AT THE CENTRAL CRIMINAL COURT THE HONOURABLE MR JUSTICE SWEENEY T20197445, T20187432 AND T20197048 Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/01/2021 Before: THE VICE-PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION) LORD JUSTICE FULFORD MR JUSTICE EDIS and MR JUSTICE FOXTON - - - - - - - - - - - - - - - - - - - - - Solic

Neutral Citation Number: [2021] EWCA Crim 45 Case No: 202001978 A4 and 202001916 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT SITTING AT THE CENTRAL CRIMINAL COURT THE HONOURABLE MR JUSTICE SWEENEY T20197445, T20187432 AND T20197048 Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/01/2021 Before: THE VICE-PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION) LORD JUSTICE FULFORD MR JUSTICE EDIS and MR JUSTICE FOXTON - - - - - - - - - - - - - - - - - - - - - Solicitor General’s References (R v Safiyyah Shaikh and R v Fatah Abdullah) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms Alison Morgan Q.C. and Jonathan Polnay instructed by the Attorney General’s Office for the Solicitor General Benjamin Newton appearing by representation order for Safiyya Shaikh Richard Thomas appearing by representation order for Fatah Abdullah Hearing date: 16 th December 2020 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Lord Justice Fulford V.P.: Introduction This is the judgment of the court to which all members contributed. 1. Her Majesty's Solicitor General seeks leave to refer the sentences of two unconnected terrorist offenders (Shaikh and Abdullah) to the Court of Appeal on the grounds that the life sentences imposed on them with minimum terms of 14 years (Shaikh) and 9 years (Abdullah) are unduly lenient. She submits that, in arriving at the minimum terms, Mr Justice Sweeney as sentencing judge misconstrued or misapplied section 82 A of the Powers of Criminal Courts (Sentencing) Act 2000 and sections 244(1) and 247A of the Criminal Justice Act 2003 . The Solicitor General submits that the Judge should have arrived at the minimum term taking into account the Terrorist Offenders (Restrictions of Early Release) Act 2020 (“ the 2020 Act ”), which increased the minimum period before offenders convicted of certain specified offences are eligible for release from a determinate sentence from one half to two thirds of the sentence. 2. For the reasons set out below, we have been unable to accept that submission, although we acknowledge that the statutory scheme for taking into account early release provisions when setting minimum terms gives rise to a number of anomalies. Shaikh The Background 3. On 21 February 2020, Safiyya Shaikh pleaded guilty to one count of preparation of a terrorist act, contrary to section 5(1) of the Terrorism Act 2006 (Count 1), and one count of dissemination of terrorist publications, contrary to section 2(1) of the Terrorism Act 2006 (Count 2). On 3 July 2020, she was sentenced to life imprisonment with a minimum term of 14 years’ imprisonment on Count 1, and to 8 years’ imprisonment in the form of a special sentence with 1 year on licence to run concurrent to the life sentence on Count 2. The Facts 4. By August 2018, Shaikh had become a leading operator of media channels and groups pledging support for acts of violence in support of Islamic State. She engaged with others, who she believed to be of a similar mindset, to instigate and plan a terrorist attack involving the use of improvised explosives on St Paul’s Cathedral and a nearby hotel. In furtherance of her attack plan, she visited the Cathedral to assess its security arrangements and the best place to detonate a bomb. She stated that her intention was to kill herself and as many other people as possible. She conducted a meeting with the wife of the person she believed would supply her with explosive devices. She was unaware that this person and his ‘wife’ were undercover role players. Her plan was to carry out the attack at Christmas 2019, but she then put this back to Easter 2020. By the time of her arrest she had provided approximate measurements of her size to the role players, on the assumption that they would be making improvised explosive devices for use in the attack. These activities formed the basis of Count 1. 5. At the same time as she was engaging in this attack planning, for a period of at least two months the Offender had been a leading operator/administrator of at least one media channel which disseminated extremist propaganda in support of Islamic State and instructional material encouraging others to carry out acts of terrorism. The extremist material included violent executions carried out by Islamic State and specific instructions on how and where to carry out terrorist attacks. The Offender personally created some of the imagery and video and also instructed others with necessary skills to create material, which she then circulated. She also circulated pro-terrorist documents created by others including Islamic State media. The channels were run with a high degree of secrecy and technical application. These activities formed the basis of Count 2. The Sentencing Hearings 6. The Sentencing Hearings took place on 22 and 26 June and 2 and 3 July 2020. At the first hearing, the Judge raised the potential impact of the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020 (“the 2020 Order”) which had increased the point at which offenders sentenced to determinate sentences of imprisonment of 7 years or more for certain classes of offence would become eligible for early release from one half to two thirds of the sentence. The Crown submitted that while it had previously been “the norm” to arrive at the minimum term for a discretionary life sentence by halving the notional determinate sentence, the 2020 Act and the 2020 Order had established “a new norm”, requiring the minimum term to be two thirds of the notional determinate sentence. 7. By the date of the final sentencing hearing, and in particular following further information which emerged from a telephone call the Offender made from custody on 26 June 2020, it was common ground between the prosecution and the defence that Count 1 fell within Category 2B of the Sentencing Council’s Definitive Guideline for Terrorist Offences (“the Guideline"). Category 2B offences have a starting point of life imprisonment with a minimum term of 15 years, and a sentencing range of life imprisonment with a minimum term of 10 to 20 years’ imprisonment. 8. On 3 July 2020 the Judge pronounced sentence. He took the starting point for a Category 2B offence of life with a minimum term of 15 years. B. He doubled the minimum term figure to arrive at an identified notional determinate figure of 30 years. He considered the aggravating features (overlapping with the impact of the Count 2 offending because he intended to impose concurrent sentences), and adjusted the notional determinate figure up to 42 years. He reduced this figure by one third for the offender’s guilty pleas down to 28 years. He then considered the dangerousness provisions, concluding that the offender was dangerous and that only a life sentence was appropriate. He then halved the notional determinate figure of 28 years to arrive at the minimum term of 14 years. 9. On 29 July and 3 August 2020, pursuant to section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 , the case was listed before the Judge under the slip rule. The Judge was invited by the Crown to consider whether it remained appropriate to halve the appropriate notional determinate sentence when identifying the correct minimum term to be imposed, in light of the effect of the 2020 Order and the 2020 Act , which for the offences to which they applied required the offender to serve two-thirds of any determinate sentence prior to being eligible for release (albeit under the 2020 Order only if the sentence of imprisonment was for 7 years or more). The Judge declined to alter the minimum term imposed on the Offender. He concluded that he was bound by the decisions of the Court of Appeal in R v Szczerba [2002] 2 Cr App R (S) 387 and R v Burinskas [2014] 2 Cr App R (S) 45 that, save in exceptional circumstances, the minimum term should be arrived at by dividing the notional determinate sentence in half, and that only direct legislation could alter that position. He also referred to his duty (unless contrary to the interests of justice) to follow the Guideline which is predicated in relation to life sentences on division by a half. The Judge concluded: “That is not to say, if I am wrong about the need for direct legislation, that there is no merit in the prosecution argument. Both that and the desirability of a new norm, or generally in respect of certain offences, as opposed to a mish-mash of contradictory decisions and the effect of the relevant guideline are all matter for the Court of Appeal to consider if there is a reference and if they think it appropriate to do so.” 10. The Solicitor General does not take issue with the Judge’s decision that the appropriate notional determinate sentence was 28 years. However, he submits that the Judge should have arrived at the minimum term by taking two thirds, rather than one half, of that figure. Abdullah The Background 11. On 20 March 2020, Abdullah pleaded guilty to counts of preparation for giving effect to an intention to assist others to commit terrorist act, contrary to section 5(1) (b) of the Terrorism Act 2006 (Count 1) and inciting terrorism overseas, contrary to section 59 of the Terrorism Act 2000 (Count 2). 12. On 26 June 2020 he was sentenced to life imprisonment with a minimum term of 9 years’ on each count, to run concurrently. The Facts 13. The Offender incited a terror cell, based in Germany, to commit terrorist atrocities that would have caused mass fatalities. His encouragement was not limited to words. He researched, obtained and tested explosives in order to teach the German cell to carry out the terrorist attacks to maximum effect. 14. The Offender was born in the Kurdish part of Iran. He came to the United Kingdom in 2005 and was granted asylum, in 2010. By the late Summer or early Autumn of 2018, he had become an Islamic extremist and supporter of Islamic State. He became connected with two cousins, Ahmed Hussein and Omar Babek, who had travelled from Iraq to Germany in 2015. The Offender sent Hussain and Babek various communications which contained a detailed discussion of preparations for carrying out a terrorist attack, including information as to the construction and detonation of an explosive device. The Offender also purchased items to assist him in giving instructions to Hussain and Babek about the construction of explosive devices. 15. On the 27 February 2020 Abdullah signed a Defence Case Statement in which he admitted an offence contrary to section 5(1) (b) of the Terrorism Act 2006 (Count 1 at that date being an offence contrary to section 5(1) (a)) and to Count 2, in its existing form. Those pleas were acceptable to the Crown. On 20 March 2020, Count 1 was amended and the Offender was arraigned and pleaded guilty to both counts. The Sentencing Hearings 16. The sentence hearing commenced on 26 June 2020. After hearing submissions, the Judge adjourned the hearing to 7 July 2020 to consider his sentence and so that further information and submissions could be provided by the prosecution and defence. 17. The prosecution submitted that the offending behaviour fell within Category B1 of the Guideline. An offence falling within Category B1 has a starting point (subject to any issue of dangerousness) of life imprisonment, with a minimum term of 25 years’ custody and a range of a life imprisonment with a minimum term of 20-30 years’ custody. The defence submitted the offence fell within Category C2, with a starting point of 15 years’ custody and a category range of 10 to 20 years’ custody. In submitting that a determinate sentence should be imposed the defence drew the judge’s attention to the 2020 Act , indicating that should a special sentence of imprisonment for an offender of special concern be imposed, the 2020 Act “will mean the defendant will have to serve two thirds of the custodial period before he is eligible to be referred to the Parole Board”. 18. The Judge held that the offence fell on the cusp of categories C2 and B2, and he adopted a starting point of 20 years’ imprisonment. After considering aggravating and mitigating factors, he held that the appropriate notional determinate sentence after trial was 22 years’ imprisonment. He reduced this by 4 years to reflect the Offender’s guilty pleas, arriving at a notional determinate sentence of 18 years’ imprisonment. The Judge concluded that the Offender was “dangerous” and that a life sentence was “self-evidently” required. He halved that notional determinate sentence to reach a minimum term of 9 years’ imprisonment. 19. On 9 July 2020 the prosecution invited the Judge to exercise his powers under the Powers of Criminal Courts (Sentencing) Act 2000 , section 155(1) to vary the sentence, arguing that as a result of the modification to the Criminal Justice Act 2003 made by the 2020 Order, it was now appropriate to impose a minimum term that was two-thirds of the notional determinate sentence. Submissions were made orally on 29 July 2020 and in writing on the following day, 30 July 2020. 20. The Judge handed down judgment on 3 August 2020. He held that only direct legislation could alter the percentage of the notional term after trial which should be used in calculating the minimum term, and that there had been no such legislation. On that basis, he concluded that it was not appropriate for him to increase the minimum terms imposed. Once again, the Solicitor General does not challenge the Judge’s conclusion that the appropriate notional determinate sentence was 18 years. He contends that the Judge should have set the minimum term at two thirds of that notional determinate sentence (12 years) rather than at half. The Legislative History 21. In order to address the Solicitor General’s arguments, it is necessary to set out the legislative history of section 82 A of the Powers of Criminal Courts (Sentencing) Act 2000 and the associated provisions of the Criminal Justice Act 2003 . The Original Provisions 22. Before section 82 A came into force on 30 November 2000, there was already a requirement to fix the minimum term for a life sentence on a basis which reflected the early release provisions applicable to determinate sentences. The appeal in R v Szczerba [2002] EWCA Crim 440 concerned a life sentence imposed before the coming into force of section 82 A, at a time when prisoners sentenced to determinate sentences of over 4 years were eligible for release on licence after serving half of their sentence, with the Secretary of State under a duty to release a prisoner on licence after two-thirds of a determinate sentence had been served. One of the grounds of appeal was that the sentencing judge had set the minimum term (6 years) at a level above half of the notional determinate sentence of 11 years. The Court of Appeal addressed this submission as follows: “[31] Finally, Mr Fitzgerald submits that there was no reason for the recorder to take, as the specified period to be served, a higher proportion of the determinate term than one half, which the recent authorities show should be the norm in the absence of exceptional circumstances (see Marklew and Lambert [1999] 1 Cr App R (S) 274 and McQuade [2002] 1 Cr App R (S) 128 (p.540). Indeed, Mr Fitzgerald goes further and submits that one-half of the notional determinate sentence should be the invariable rule. [32] In our judgment, as Marklew and Lambert makes plain, whether the specified period should be half or two-thirds of the determinate term, or somewhere between the two, is essentially a matter for the exercise of the sentencing judge's discretion. But that discretion must be exercised in accordance with principle. We accept that half should normally be taken. Some of the decisions in this Court, in which the Court has taken a higher proportion, are not, as it seems to us, obviously explicable, save on the basis that the relevant principles were not always argued or addressed. [33] There are, however, circumstances in which more than half may well be appropriate. Dr Thomas identified two examples. In Hayward [2000] 2 Cr App R(S) 418 a life sentence was imposed on a serving prisoner for an offence committed in prison. In such a case the term specified can appropriately be fixed to end at a date after that on which the defendant would have been eligible for release on licence from his original sentence. This may involve identifying a proportion of the notional determinate term up to two-thirds. Another example is where a life sentence is imposed on a defendant for an offence committed during licensed release from an earlier sentence, who is therefore susceptible to return to custody under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 . In such a case the specified period could properly be increased above one-half, to reflect the fact that a specified period cannot be ordered to run consecutively to any other sentence. … [35] But, as we have said, unless there are exceptional circumstances, half the notional determinate sentence should be taken (less, of course, time spent in custody) as the period specified to be served. If a judge specifies a higher proportion than one-half, he should always state his reasons for so doing.” 23. As originally enacted, section 82 A provided: “(1) This section applies if a court passes a sentence in circumstances where the sentence is not fixed by law. (2) The court shall… order that the provisions of section 28(5) to (8) of the Crime (Sentences) Act 1997 (referred to in this section as the “early release provisions”) shall apply to the offender as soon as he has served the part of his sentence which is specified in the order. (3) The part of his sentence shall be as such as the court considers appropriate taking into account— (a) the seriousness of the offence… (b) the effect that the following would have had if the court had sentenced the offender to a term of imprisonment— (i) section 240 ZA of the Criminal Justice Act 2003 (crediting periods of remain in custody) (ii) … (iii) any direction which the court would have given under section 24 ) of the Criminal Justice Act 2003 (crediting periods of remand on bail subject to certain types of condition). (c) the early release provisions as compared with section 33(2) and section 35(1) of the Criminal Justice Act 1991 ”. 24. Section 33(2) of the Criminal Justice Act 1991 imposed a duty on the Secretary of State to release short-term prisoners after they had served half of their sentence (such release to be on licence in the case of sentences in excess of one year) and long-term prisoners after serving two-thirds of their sentence. Section 35 of the 1991 Act provided that once a long-term prisoner had served half of his sentence, the Secretary of State might, on the recommendation of the Parole Board, release the prisoner on licence. The Criminal Justice Act 2003 25. On 18 December 2003, when the Criminal Justice Act 2003 came into force, section 82 A(3)(c) was amended to refer to “the early release provisions as compared with section 244(1) of the Criminal Justice Act 2003 ”. Section 244(1) provided: “As soon as a fixed-term prisoner, other than one to whom section 247 applies, has served the requisite custodial period, it is the duty of the Secretary of State to release him on licence under this section.” 26. The “requisite custodial period” was defined in section 244(3) . When brought into force on 31 December 2003, section 244(3) provided: “(3) In this section “the requisite custodial period” means— (a) in relation to a person serving a sentence of imprisonment for a term of twelve months or more or any determinate sentence of detention under section 91 of the Sentencing Act, one-half of his sentence, (b) in relation to a person serving a sentence of imprisonment for a term of less than twelve months (other than one to which an intermittent custody order relates), the custodial period within the meaning of section 181 , (c) in relation to a person serving a sentence of imprisonment to which an intermittent custody order relates, any part of the term which is not a licence period as defined by section 183(3) , and (d) in relation to a person serving two or more concurrent or consecutive sentences, the period determined under sections 263(2) and 264(2) .” Section 247 – which was excluded from the scope of section 244 – regulated the early release of prisoners serving extended sentences, and had its own definition of “requisite custodial period”. 27. The structure of section 244 was amended by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“ LASPO 2012 ”) which came into force on 3 December 2012: i) The words “for the purposes of this section” were inserted after the words “requisite custodial period” in section 244(1) . ii) The “requisite custodial period” which had originally featured in section 244(3) (b) (sentences of imprisonment of less than 12 months) was removed from that section and became sections 243A with its own definition of “requisite custodial period”, and section 244(1) was amended so that it would not apply to prisoners subject to section 243A (Schedule 14, para 6(2)(b) of LASPO 2012 ). iii) Section 244(1) was amended to exclude from its ambit prisoners subject to the new-style extended sentences introduced by section 246 A of the Criminal Justice Act 2003 ( Section 125 , LASPO 2012 ). iv) The “requisite custodial period” which had originally featured in section 244(3) (c) (prisoners subject to intermittent custody orders) was removed from that section (Schedule 10 para 21(3)(a)). 28. Section 244(1) was in this form when this Court heard the appeal in Burinskas , a decision which featured prominently in the argument before us. The Decision in Burinskas 29. In Attorney General’s Reference (No 27 of 2013) (R v Burinskas) [2004] EWCA Crim 354 , the Court heard a number of appeals concerned with extended and life sentences. In that latter context, the Court noted at [33] that the purpose of section 82 A was “to require the sentencing judge to identify the sentence that would have been appropriate had a life sentence not been justified and to reduce that notional sentence to take account of the fact that had a determinate sentence been passed the offender would have been entitled to early release”. 30. At [34], the Court stated that “when imposing a discretionary life sentence judges reduce the notional sentence by one half to reach the minimum term”, noting “that approach was endorsed in R v Szczerba ”, although there might be exceptional cases in which the reduction might be less than one half. At [35-37], the Court addressed an argument that setting the minimum term by reducing the notional determinate sentence by half might in some cases lead to a minimum term which was less than the “requisite custodial period” for prisoners serving non-life sentences for the same offence. Given the significance of this aspect of the Court’s decision for the present appeal, we have set out this passage of the judgment in full: “[35] A number of advocates drew to our attention what they described as an anomaly caused by the provisions for early release in respect of the new extended sentences. The effect is that a life prisoner may serve less time in prison than an offender serving the custodial term of an extended sentence even though the appropriate custodial term is the same. Offender A, subject to a life sentence, is given a minimum term of five years on the basis that but for the life sentence he would have been sentenced to a ten-year determinate sentence. He serves five years before being considered for parole. He may be released at that stage. Offender B is made the subject of an extended sentence. The appropriate custodial term is ten years. Offender B is not eligible for release until he has served two thirds of his sentence. Even if he is released at that point he will have spent longer in prison than the life prisoner who has been released at the first opportunity. Thus the first opportunity for release occurs sooner for the life prisoner than for the prisoner serving an extended sentence. [36] We understand the argument, but the position is more complex. A life prisoner is not entitled to release at the end of the minimum term. He must wait until the Parole Board consider that it is safe to release him. In some cases that date is years after the minimum term has expired. The prisoner serving an extended sentence is entitled to be released at the end of the custodial period without any further assessment of risk. Where the custodial term is less than ten years the entitlement arises at the two thirds point. [37] There is an argument that if the alternative to a life sentence is an extended sentence rather than a determinate sentence then it is the extended sentence, with its longer time to serve, that should form the basis of the calculation of the minimum term in a life sentence. That would reduce the notional determinate sentence by one third rather than one half and would lead to an increase in the minimum term to be served in life cases of one third. There are four difficulties with that approach: (i) an extended sentence is not necessarily an alternative to a life sentence under section 225; (ii) an extended sentence is not an alternative to a life sentence imposed under section 224A; (iii) the sentencing judge must compare the early release provisions at section 244(1) —which are concerned with determinate sentences; (iv) a measure which increases minimum terms in life sentences by one third is, in our judgment, a matter for Parliament.” The Court’s reference in the last sentence of [37] to increasing “minimum terms in life sentences by one third” was a reference to an increase from one half (three sixths) to two thirds (four sixths), a proportionate increase of one third. 31. There was a further attempt to argue that the minimum term in life sentences should be fixed by reference to the release provisions for extended sentences in Attorney General’s References No 688 of 2019 (McCann) and No 5 of 2020 (Sinaga) [2020] EWCA Crim 1676 . The Court addressed this submission at [52]: “Ms Whitehouse QC, following the Solicitor General in the cases of McCann and Sinaga, submits that we should take into account the current release provisions for extended sentences, where prisoners serve at least two thirds of the custodial term, rather than the release provisions for determinate sentences, where they usually serve half. However, for the reasons set out in Attorney General’s Reference (No 27 of 2013) (R v Burinskas) [2014] EWCA Crim 334 ; [2014] 2 Cr App R(S) 45 at [37], we do not accept the submission”. 32. We accept that the decisions in Burinskas and McCann were concerned with a comparison between extended sentences and the minimum terms in life sentences, and that aspects of the reasoning in Burinskas are specifically directed to the particular character of extended sentences. However, it is clear that the Court in Burinskas did not regard the specific reference in section 244(1) to section 247 (for the purpose of excluding prisoners subject to section 247 from the operation of section 244(1) ) as providing a sufficient basis for concluding that a court should take account of the “requisite custody period” under section 246 A in a case where the alternative to a life sentence was an extended sentence. The Court was also clear that any increase in the minimum term for life sentences required Parliamentary sanction. That reasoning was approved in McCann . 33. A further amendment to section 244 was made by Schedule 1(1) of the Criminal Justice and Courts Act 2015 . That Act introduced a new section 236 A into the Criminal Justice Act 2003 , creating a special custodial sentence for “certain offenders of particular concern”, and a separate regime for the release on licence of prisoners serving such sentences in section 244 A. Section 244(1) was amended to remove prisoners who were subject to section 244 A from its scope. The Recent Enactments 34. In 2020, there were two amendments affecting early release of prisoners which adopted different legislative techniques. 35. The first, chronologically, is the 2020 Act which came into force on 26 February 2020. Section 1 of the 2020 Act inserted a new section 247 A into the Criminal Justice Act 2003 . Section 247 A provides that the “requisite custodial period” before an Offender was eligible for release on licence for many terrorism offences for all types of sentences (including determinate terms of imprisonment, but excluding life imprisonment) would be two-thirds of the sentence imposed. The offences for which Shaikh and Abdullah were convicted are subject to the 2020 Act . 36. As well as introducing section 247 A into the Criminal Justice Act 2003 , the 2020 Act amended section 244(1) so that the Secretary of State’s duty under that section to release a prisoner on licence once the prisoner had completed “the requisite custodial period for the purposes of this section” did not apply to a prisoner subject to section 247 A (thereby adding section 247 A to the existing “carve-outs” from section 244(1) for sections 244 A, 246A and 247). 37. The second amendment was effected by a statutory instrument on 1 April 2020, and changed the provisions relating to the early release of prisoners serving sentences for certain violent and sexual offences. Paragraph 3 of the 2020 Order provides: “In section 244 of the 2003 Act (duty to release prisoners), the reference to one-half in subsection (3)(a) is to be read, in relation to a prisoner sentenced to a term of imprisonment of 7 years or more for a relevant violent or sexual offence, as a reference to two-thirds.” 38. In Khan v Secretary of State for Justice [2020] EWHC 2084 (Admin) at [31], the Divisional Court observed in an obiter passage that the effect of the 2020 Order was that, when setting the minimum term for a life sentence imposed for sexual and violent offences, the minimum term would reflect the two thirds minimum custody period. 39. The offences to which the 2020 Order applies are those “listed in Part 1 or 2 of Schedule 15 to the 2003 Act for which a sentence of life imprisonment may be imposed”. The offences for which Shaikh and Abdullah were convicted are listed in Part 3 of Schedule 15 and do not fall within the scope of the 2020 Order. The Guideline 40. Section 125(1) of the Coroners and Justice Act 2009 requires a court, in sentencing an offender, to follow any sentencing guidelines which are relevant to the offender’s case unless the court is satisfied that it would be contrary to the interests of justice to do so. 41. The Guideline applies to all offenders sentenced after 27 April 2018. For those offences for which the maximum sentence is life, the Guideline categories provide starting points and ranges for minimum terms, as well as starting points and ranges for determinant sentences. For Category 2B offences, the Guideline provides for life sentences, with a starting point minimum term of 15 years, and a range of minimum terms of 10 to 20 years. The starting points and ranges in the Guideline broadly reflect those established by the pre-Guideline decision in R v Kahar [2016] EWCA Crim 568 , and the minimum terms suggested in the Guideline are predicated on the division of the notional determinate term by half. If the submissions of the Solicitor General are right, then the Guideline would have to be applied on the basis that the minimum terms in it should be reassessed so that they reflect two thirds of the notional determinate sentence. Those submissions are based on the construction of legislation passed after the Guideline came into effect, and on binding decisions of this Court about the exercise of discretion in this area. We consider that the Guideline provides no assistance in dealing with the issues before us. However the sentences in the Guideline are calculated, the Court is obliged to apply legislation and to follow binding precedent in this area. The Sentencing Act 2020 42. With effect from 1 December 2020, section 82 A was repealed and its provisions re-enacted in identical terms as section 323 of the Sentencing Act 2020 . As we are concerned with a challenge to the sentences passed by the Judge, and because it assists when setting out the relevant legislative history, we have and will refer to the relevant provisions by reference to the legislation in force when the sentences were pronounced. The Solicitor General’s applications 43. In Attorney General’s Reference (No 60 of 2012) [2012] EWCA Crim 2746 , Hughes LJ stated at [19]: "The procedure for referring cases under section 36 of the Criminal Justice Act 1988 is designed to deal with cases where judges have fallen into gross error, where errors of principle have been made and unduly lenient sentences have been imposed as a result." 44. In this case, Ms Morgan QC and Mr Polnay for the Solicitor General submitted that the Judge had made an error of principle. The Solicitor General’s primary argument before us was that the amendments to the Criminal Justice Act 2003 effected by the 2020 Act – the introduction of section 247 A, and the removal of prisoners who are subject to section 247 A from the scope of section 244(1) – required the Judge, when setting the minimum term under section 82 A of the Powers of Criminal Courts (Sentencing) Act 2000 , to “take into account” the fact that the Offenders would not have been entitled to release until they had served two-thirds of the notional determinate sentence. 45. In the alternative, Ms Morgan Q.C. and Mr Polnay submitted that, following the coming into force of the 2020 Act , the Judge should have exercised his discretion under section 82 A by setting the minimum terms at two thirds of the notional determinate sentence. 46. These submissions were resisted by Mr Newton and Mr Thomas for the Offenders. They argue that the Judge was right to conclude that only direct legislation could alter the percentage of the notional term after trial which should be used in calculating the minimum term, and that the amendments made to the Criminal Justice Act 2003 by the 2020 Act did not satisfy that requirement. In relation to the Solicitor General’s alternative argument, they accept that the sentencing judge has a discretion in exceptional cases to depart from the “one half” norm in section 244(3) of the Criminal Justice Act 2003 when fixing the minimum term of a life sentence. However, they submitted that the Solicitor General’s argument would not involve a departure from the one half norm only in exceptional cases, but in every case in which the two thirds provision introduced by the 2020 Act applied. 47. Finally, Mr Thomas submitted that even if the Solicitor General was correct in either argument, such that the 2020 Act and/or the 2020 Order had established a “new norm” of two thirds of the notional determinate sentence, the Judge had exercised his discretion under section 82 A to fix the minimum term on the facts of Abdullah’s case on the basis of one half of the determinate sentence, and the exercise of that discretion could not be said to involve any error of principle or to have led to the imposition of a sentence which was unduly lenient. 48. We were very grateful to all counsel for the quality of their submissions, and for helping us navigate the complicated legislative history of this area of the law. We now consider the Solicitor General’s arguments in turn. Does section 82 A(3)(c) require the sentencing judge to take into account the early release provisions in section 247 A in fixing the minimum term? 49. This part of the Solicitor General’s argument involves reading the requirement in section 82 A(3)(c) to “take into account” the early release provisions as compared with section 244(1) of the Criminal Justice Act 2003 as extending not only to the early release provisions provided for in section 244(1) itself, but also those specifically exempted from section 244(1) . 50. However, we have concluded that the reference in section 82 A(3)(c) to “the early release provisions as compared with section 244(1) ” is naturally to be interpreted as a reference to release after “the requisite custodial period” referred to in section 244(1) , and defined in section 244(3) . That is the “requisite custodial period for the purposes of this section” , and the only “requisite custodial period” for which section 244(1) provides. In our view, it would be a bold reading of section 82 A(3)(c) to interpret it as extending it not simply to the early release provisions provided for in section 244(1) , but to other early release provisions appearing elsewhere merely because they have been expressly carved out from section 244(1) . 51. We are fortified in this conclusion by the decision in Burinskas , itself approved in McCann , that the express carve-out of section 247 from the operation of section 244(1) did not have the effect that, in those cases where the alternative to a life sentence was an extended sentence, the judge should take into account the early release provisions which would have applied to the extended sentence in fixing the minimum term. Further, as the Court noted in Burinskas , an increase in the minimum term for a life sentence from one half to two thirds is a matter for Parliament. We do not consider that the amendment of section 244(1) to add a further carve-out from the operation of that section for prisoners subject to section 247 A can be said to manifest Parliamentary sanction for such a significant alteration in the minimum term regime. 52. We acknowledge that this conclusion entails that the legislative structure of the 2020 Act (creating a new early release regime in section 247 A and then removing those subject to that regime from the operation of section 244(1) ) has a different effect so far as the setting of minimum terms is concerned to that adopted by the 2020 Order (which amended the definition of “relevant custodial period” in section 244(1) itself). However, different forms of statutory language do have different consequences. Ms Morgan QC for the Solicitor General realistically accepted that if the “carve out” of section 247 A from the section 244(1) regime had been effected by a provision within section 247 A itself, rather than by an amendment to the terms of section 244(1) , the Solicitor General’s primary argument would not have been open. 53. We also accept that our conclusion gives rise to the anomaly identified in Burinskas that the minimum term for a prisoner sentenced to a life sentence to which the 2020 Act applies may in some cases be lower than the requisite custodial period for a prisoner sentenced to a determinate sentence for the same offence, and that, for the same reason, there is an anomaly when comparing the minimum terms with the requisite custodial period for the determinate sentences in the Guideline. While those anomalies are in part answered by the differences between life sentences and other forms of sentence identified by the Court of Appeal in Burinskas at [36], they remain nonetheless. However, the avoidance of those anomalies does not, in our view, constitute a sufficient basis for adopting an interpretation of section 82 A which increases the minimum term for life sentences from one half to two thirds in the absence of direct legislation to that effect. Should the Judge have set a minimum term of two thirds of the notional determinate sentence in the exercise of his sentencing discretion? 54. It is well-established that, even though the minimum term of a life sentence is in the vast majority of cases established by taking half of the notional determinate sentence for the offence, it is open to the sentencing judge in the exercise of his or her sentencing discretion to adopt a higher proportion. The existence of that discretion has been confirmed in many authorities. It is also well-established that it is only in exceptional cases that the judge should depart from the relevant custodial period set out in section 244(3) . Thus the Court in Szczerba at [35] said that “unless there are exceptional circumstances, half the notional determinate sentence should be taken”. The Divisional Court in R (Khan) v Secretary of State for Justice summarised the correct approach at [31] as follows: “The application of s.82 A(3)(c) will ordinarily, but not always, result in a reduction of the notional determinate sentence by half, but there may be exceptional circumstances in which more than half may be appropriate: R v Szczerba [2002] EWCA Crim 440 ; [2002] 2 Cr App R (S) 86 , [33]; R v Jarvis [2006] EWCA Crim 1985 , [19]”. Finally, this Court in McCann at [54] noted that: “Although section 244 would appear to afford judges a wide margin of discretion, the jurisprudence indicates that the court should only depart from setting the custodial period as a half of the sentence in ‘exceptional circumstances’”. 55. Minimum terms calculated using a higher proportion of the determinate sentence than one half have generally been imposed to address a particular feature of the offender or his or her sentencing history. Sometimes it is appropriate to adopt a figure of more than half of the notional determinate sentence to ensure the life sentence takes effect appropriately in conjunction with an existing sentence. For example in R v Hayward [2000] 2 Cr App R (S) 418 , a life sentence was imposed on a serving prisoner for an offence committed in prison, and the Court held that the minimum term could be set on a basis which ensured it expired after the date on which the defendant would have been eligible for release on licence for his original sentence. The Court in Szczerba at [33] identified a life sentence imposed for an offence committed during the licensed release from an earlier sentence as another example (to reflect the fact that the minimum term could not be ordered to run consecutively to any other sentence). In other cases, it may (exceptionally) be appropriate to calculate the minimum term by taking more than half of the notional determinate sentence because of the offender’s particular history of offending: for example R v Rossi [2014] EWCA Crim 2081 in which the offender had already served two life sentences. This Court in McCann at [60] noted that “a defendant’s grave antecedents or the extent and seriousness of the offences for which he or she is to be sentenced may be relevant … to whether there are persuasive circumstances that justify a departure from the usual one-half approach”. 56. In this case, however, the Solicitor General does not contend that there is any particular feature of these offences or the sentencing history of these Offenders which justifies determining the minimum term by taking two thirds, rather than one half, of the notional determinate sentence. Rather it is contended that a sentencing judge is obliged to exercise the sentencing discretion on this basis in every case to which the 2020 Act applies. However, that approach would not constitute the exercise of a discretion to depart from the general rule in exceptional cases, but the adoption of a new rule. As the Court noted in Burinskas , a change of this kind to the calculation of the minimum term in life sentences is a matter for Parliament, not for the discretion of the sentencing judge. 57. Finally, if we had accepted the Solicitor General’s submission that the calculation of the minimum terms for life sentences imposed for terrorist offences should ordinarily reflect the requisite custodial period provided for by section 247 A, we would not have accepted Mr Thomas’ submission that the Judge had exercised his sentencing discretion under section 82 A to depart from that general position so far as Abdullah is concerned. It is clear from the Judge’s sentencing remarks that his sentence had not been arrived at on the basis that there were exceptional features of Abdullah’s case that justified setting the minimum term by reference to a lower proportion of the notional determinate sentence than would otherwise be appropriate. Rather the Judge determined that there was no reason to depart from the norm in fixing a minimum term under section 82 A, which the Judge held involved taking one half of the notional determinate sentence. For the reasons we have given in this judgment, we agree with him. Conclusion 58. For these reasons, we give the Solicitor General leave to challenge the sentences imposed by the Judge on Shaikh and Abdullah, but dismiss the applications.

2021_01_21-5071.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2021/45/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2021/45

b1df421693e4c2484b299bd77205495c3a584c50351a66f97d76b1d60c46a376

[2020] EWCA Crim 1202

EWCA_Crim_1202

2020-08-06

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 1202 CASE NO 201601642/C1 Royal Courts of Justice Strand London WC2A 2LL Thursday 6 August 2020 LORD JUSTICE HOLROYDE MRS JUSTICE ANDREWS DBE SIR RODERICK EVANS REGINA V “AM” Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) MR S NEALE appeared on behalf of the Appellant. MR N CLARKE appeared on behalf of the Crown. J U D G M E N T 1. LORD JUSTICE HOLROYDE: On 21 August 2015, in the Crown Court at Manchester Crown Square, this appellant was convicted of the rape of a woman (to whom we shall refer as "M"). He was subsequently sentenced to 7 years 6 months' imprisonment. 2. He now appeals against his conviction by leave of the Full Court granted on 6 March 2020. 3. M is entitled to the lifelong protection of the provisions of the Sexual Offences (Amendment) Act 1992. Accordingly, during her lifetime, no matter may be included in any publication if it is likely to lead members of the public to identify her as the victim of this offence. In view of her relationship with the appellant, it may be necessary, in order to avoid identifying her, for his name to be anonymised in any report of these proceedings. 4. The appellant is now aged 45. At the time of the trial he had no other criminal convictions. He is about 15 years older than M. She came to this country in April 2011 on a student visa which was due to expire at the end of July 2012. She was introduced to the appellant, and in 2012 they married in an Islamic ceremony. The appellant was already married to another woman and had a number of children with her. M said that she only found out about that after they had been together for some time, and her discovery of his existing marriage brought an end to their consensual sexual relationship. 5. The appellant said that he had told her about his wife and children before they married and that all sexual activity between them was consensual. 6. In July 2013, M was arrested as an overstayer. She was for a time held in immigration detention. Whilst there, she alleged that the appellant had raped her orally, anally and vaginally. 7. It was the appellant's case that her allegations were untrue and were made in order to assist her attempts to obtain leave to remain in this country. 8. The appellant was charged on an indictment containing three counts. The oral and anal rapes (counts 1 and 2) were alleged to have been committed between 1 November 2012 and 30 January 2013. The vaginal rape (count 3) was charged as having been committed between 1 January 2013 and 9 February 2013. Although date would not normally be a material averment in an allegation of rape, M's evidence was that the offence was committed on or about 1 February 2013. She had suffered a miscarriage which had been confirmed when she attended a hospital on 9 February 2013. That date could be established with precision and was common ground between prosecution and defence at trial. M's evidence was that the rape was committed 8 or 9 days before that hospital attendance. 9. In her ABE interview (which formed her evidence-in-chief) she said that the appellant had initially been angry when she told him she was pregnant. He had slapped her and said she must have an abortion. A few days later however he had apologised and asked her to have sex. She was reluctant because she was worried it might harm the baby but the appellant said he would be gentle. They had vaginal intercourse but the appellant was far from gentle and afterwards she was in pain and noticed some vaginal bleeding. She described how she had experienced further bleeding over the following days and had eventually gone to hospital on the advice of a woman she referred to as "Aunty". M's belief was that the forceful intercourse to which she had not consented had led to her miscarriage. 10. In cross-examination it was put to M that the appellant had been in Pakistan at the time when she alleged he had raped her in this way. She was shown stamps in his passport which recorded entry into Pakistan on 11 January 2013 and exit on 15 February 2013. For convenience we shall refer to these as "the relevant stamps". M responded to the effect that the relevant stamps could be bogus and the appellant could have had them fabricated. 11. The appellant gave evidence that he had had vaginal consensual intercourse with M on a number of occasions. He denied that he had ever engaged in either oral or anal intercourse with her. He said that he had made a number of trips to Pakistan and was in that country during the period covered by the relevant stamps. M had not told him of her pregnancy before he went. When he returned she contacted him and said she was in jail and needed help. In particular, asking him for £2,000 but she did not mention a miscarriage. 12. In cross-examination, it was put to the appellant that either his passport or the relevant stamps in it were inauthentic. In summing-up, the judge defined the issue for the jury on each of the three counts as being "whether it happened at all at the time she says it happened and in the way it happened". The jury returned verdicts of not guilty on counts 1 and 2 and guilty on count 3. 13. The Full Court when granting leave to appeal also granted the necessary extension of time and leave to adduce fresh evidence. The fresh evidence includes the following: expert evidence of David Browne, a very experienced document examiner, that the relevant stamps are genuine; evidence from Fiaz Niazi an attache at the Consultant General of Pakistan in Manchester, confirming that the appellant did enter and leave Pakistan on those dates and also listing a total of 24 occasions between July 2010 and September 2014, when the appellant entered or left Pakistan. 14. The respondent, by an email to the court on 21 May 2020, did not seek to challenge this evidence and did not require either of those witnesses to give oral evidence but did challenge further evidence on which the appellant sought to rely, namely that of Safia Begum Hussain who is said to be the person referred to by M as "Aunty". The court today heard her oral evidence. Mrs Hussain, now in her late 70s, initially met M in 2012 in connection with the renting of accommodation. She later met the appellant. She gave evidence that around February or March 2013, M contacted her. M said that she had been carrying heavy bags of shopping, that she felt unwell and was bleeding and that she had turned to Mrs Hussain because the appellant was out of the country. Mrs Hussain advised her to go to hospital which she did. 15. Mr Neale, appearing in this court for the appellant, submits that the conviction is unsafe because there is fresh evidence that the appellant's alibi, which he put forward at trial but which at that stage was not corroborated by official documentation, was accurate and truthful. The evidence covers the specific period which M, in a detailed account, put forward as being the period when she was raped. Mr Neale submits that the appellant did in fact have an alibi for the relevant period as can now be seen but at the time of the trial he was not able to point to the independent evidence which is now available to confirm that point. 16. The theory put forward by M in cross-examination and adopted by the prosecution that the relevant stamps may be bogus is now shown to be false. 17. The email sent by the respondent in May 2020, to which we have referred, acknowledged that the evidence of Mr Browne and Mr Niazi suggests that the appellant was out of the country on the date when the offence is said to have been committed. It is argued however that an issue remained as to whether the appellant returned from Pakistan some time before the rape and thereafter re-entered Pakistan either without his passport being stamped or using a different passport. 18. In his oral submissions today Mr Clarke, representing the respondent here as he did below, did not pursue that hypothesis of an undocumented journey to Pakistan. He argued instead, that it was common ground between M and the appellant that there had been consensual sexual intercourse up to the end of 2012. The dates charged in count 3 reflected the period during which the rape occurred, with 1 February merely being a possible date. Mr Clarke relied on the fact that M's ABE interview had taken place in September 2013 and submitted that in view of the major life events which had taken place in the preceding months, including her arrest as an overstayer and a period of detention, M could not be expected to be precise as to dates. Her evidence was based on her belief, albeit unsupported by medical evidence, that her miscarriage was caused by the rape. For that reason Mr Clarke submitted she may have mistakenly compressed the period of time between the rape and her attendance at hospital. 19. The admissibility of fresh evidence on an appeal against conviction is of course governed by the provisions of section 23 of the Criminal Appeal Act 1968 . Having regard to the factors which subsection (2) requires us to consider, we have no doubt that it is necessary in the interests of justice to receive the evidence of Messrs Browne and Niazi and we do so. The oral evidence of Mrs Hussain was not challenged and was, in our view, credible. It is capable of providing some additional support for the appellant's submissions. The explanation of why this evidence was not called at trial is not entirely satisfactory but we are persuaded that it is in the interests of justice that this court should receive her evidence and again we do so. 20. We have considered the passages in the summing-up which reminded the jury of the details of the account of the rape which M gave in her evidence. That detailed consideration in our view confirms what is apparent from the brief summary which we have given earlier in this judgment, namely that M was drawing a clear link between the rape, her immediate pain and bleeding, her further bleeding over the next few days and her subsequent attendance at hospital where the miscarriage was confirmed. Thus, the essence of her account, whilst not purporting to be precise to the day, was that the interval of time between the rape and the attendance at hospital was little more than a week, sufficiently close in time for her to believe that it was the rape which caused her to miscarry. We bear in mind that the summing-up also shows that M said in her ABE interview that she found out towards the end of 2012 that she was pregnant and immediately told the appellant, who visited her the following day, when he was angry and slapped her. She went on to say that he had returned in apologetic mood "a few days later", that he had then raped her and that he had thereafter gone to Pakistan returning "after approximately a month". 21. Looking at those details, it is possible to suggest, as Mr Clarke does suggest, that M's account was correct but that the rape was committed before the appellant entered Pakistan on 11 January 2013 and that she was in error in saying that it was 8 or 9 days before she went to hospital. That suggestion is however impossible to reconcile with the essential feature of her account to which we have just referred, namely the short period which elapsed between the rape and the attendance at hospital. If the rape occurred before 11 January, that short period has to be extended by about 3 weeks for which there is no explanation. Date is not usually a material averment in an indictment charging rape, in the sense that an error as to date will not usually give rise to any legal obstacle to a conviction of the offence. In this case date was not a material averment in that sense. The date of the alleged rape was however extremely important, on the issue of the credibility of each of the two witnesses who were the only persons who knew whether the allegation was true. It was important to the credibility of M because, as we have said, the essence of her evidence was that the rape occurred little more than a week before she went to hospital. It became important to the credibility of the appellant because if reliance on the relevant stamps in his passport became a basis of an attack upon his truthfulness, it was therefore necessary in the circumstances of this case for the jury to be able to be sure that M was raped as alleged on or about 1 February 2013. The importance of the evidence of Messrs Browne and Niazi is therefore obvious. On the face of it, it confirms the alibi which the appellant put forward at trial. It is apparent from the jury's verdict on count 3 that they rejected that alibi, which must mean that they felt sure that the relevant stamps were inauthentic, or at least, gave an incomplete or inaccurate picture of the appellant's travel during the relevant period. The fresh evidence is now accepted by the respondent as establishing authenticity. 22. We accept that it would have been possible for the appellant to go to Pakistan on 11 January, return some time before 1 February, commit the rape as alleged, and then go back to Pakistan before finally returning to this country on 15 February. That suggestion has however now been abandoned by the respondent as a basis for resisting this appeal. It was rightly abandoned because the respondent has no evidence to suggest that the appellant did in fact come back to this country between 11 January and 1 February, still less that he did so making use of a different passport or in some way which avoided any record of his entry or exit. Moreover the 24 occasions listed in the document produced by Mr Niazi appear, on the face of it, to reflect 12 visits to Pakistan during that period, each visited being of approximately 3 to 5 weeks' duration. It follows that in order to reconcile M's account of a rape on or about 1 February with the fresh evidence, it would have been necessary for the respondent to show that the appellant had made two return trips to Pakistan in quick succession each of uncharacteristically short duration. 23. We have concluded that the fresh evidence provides strong support for the appellant's defence of alibi and so casts doubt on the reliability of M's evidence of rape and that the conviction is, for that reason, unsafe. 24. The appellant has served the custodial part of his sentence. For that and other reasons Mr Clarke realistically did not seek a retrial. 25. This appeal is therefore allowed and the conviction is quashed. 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_08_06-4953.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2020/1202/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2020/1202

c8228bee7a43147c1c58fb83455e613eeebe80d5fb65d732b529fa3bde173c71

[2008] EWCA Crim 2505

EWCA_Crim_2505

2008-06-11

crown_court

Neutral Citation Number: [2008] EWCA Crim 2505 No: 200700504/1445/1403/B4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 11th June 2008 B e f o r e : LORD JUSTICE THOMAS MR JUSTICE FORBES MR JUSTICE RODERICK EVANS - - - - - - - - - - - - - - R E G I N A v DIAMOND BABAMUBONI JUDE ODIGIE ROBERTO MALASI - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company

Neutral Citation Number: [2008] EWCA Crim 2505 No: 200700504/1445/1403/B4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 11th June 2008 B e f o r e : LORD JUSTICE THOMAS MR JUSTICE FORBES MR JUSTICE RODERICK EVANS - - - - - - - - - - - - - - R E G I N A v DIAMOND BABAMUBONI JUDE ODIGIE ROBERTO MALASI - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - Miss E Hartnett appeared on behalf of the First Applicant Mr J Ryder QC appeared on behalf of the Second Applicant Mr J Benson QC appeared on behalf of the Third Applicant Mr J Rees appeared on behalf of the Crown - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE THOMAS: On Saturday 25th August 2005 there was a christening party for a six month old baby girl at a community hall in Peckham in south London. A large number of members of the Sierra Leone community in London were present. There were, as one would expect on such an occasion, many children present. There was singing and dancing. It was an occasion for celebration and of a deeply moving religious ceremony. 2. During that ceremony a gang of black males wearing hooded tops and balaclavas stormed into the hall. One or more shots were fired into the air by one of those who held a sawn-off shotgun. Another had a handgun and another a gun. The gang member holding one of the guns pointed it towards the crowd at head height. It hit Mrs Kalokoh, 33 a refugee from Sierra Leone and the mother of two children, who was cradling the baby about to be christened. She died in hospital a short while thereafter. After she had been hit, more shots were fired while Mrs Kalokoh lay on the floor dying. The gang told people to lie on the floor, though many had already dived there. They proceeded systemically to rob them, taking from their handbags and taking other possessions. They then fled. 3. On 21st December 2006, after a trial before Gross J and a jury at the Central Criminal Court, the applicant Malasi was convicted of the murder of Mrs Kalokoh, robbery and possession of a firearm. He had been 16 and a half years at the time of the offence, being born on 8th January 1989. Diamond Babamuboni was convicted of robbery, possession of a firearm and manslaughter. He had been born on 27th March 1989 and was also aged 16 and a half. He was also an applicant before the court but his renewed application has been abandoned. We need say little more. The third applicant, now the remaining second applicant, was Odigie. He was convicted of robbery, possession of a firearm, manslaughter and possession of ammunition. He was born on 18th March 1990 and was aged 15 and a half. It is important to note that he was therefore younger by a year or so than the others with whom the court was concerned. 4. 15 days after the murder of Mrs Kalokoh, Malasi murdered Ruth Okechukwu. On 10th September Malasi had an argument with her or one of her associates. On the following day he stabbed Ruth six times to the neck, to the torso and a fatal stab wound to the chest, which penetrated the aorta. The judge accepted that he went out with a knife, the killing was impulsive and there was a degree of non-technical provocation. He pleaded guilty to that murder after his conviction of the murder of Mrs Kalokoh. 5. On 14th February 2007 the applicants were sentenced by Gross J in what we can only describe as a very detailed, thorough and detailed way. We shall have occasion to refer to what he said in a little detail. Malasi was ordered to be detained at Her Majesty's Pleasure with a minimum term of 30 years being fixed for both murders, less time on remand. Concurrent sentences were passed for robbery and the possession of firearms. Odigie was given, together with Diamond Babamuboni and Timmy Babamuboni, detention for public protection with minimum terms of eight years for manslaughter and concurrent minimum terms for other offences, again less time on remand. 6. Both Babamubonis, Odigie and Malasi all sought leave to appeal against conviction and sentence. They were refused. Timmy Babamuboni did not renew his application, and, as we have already stated, Diamond has withdrawn his. Malasi has renewed his appeal against conviction and sentence and Odigie has renewed his appeal against sentence only. 7. We turn to deal with Malasi's appeal against conviction. It rests on one ground in relation to the judge's decision on how to deal with the circumstances arising from an apparent attempt to influence or intimidate a juror. The judge discharged one juror. It is now contended, but it is important to note it was never contended before the judge, that he should have discharged all of them. 8. The facts were simply these. We set them out because of what has happened and the course of conduct we shall invite others to follow. 9. On Tuesday 14th November 2006 a female juror was travelling home on the underground at the end of the court day when she encountered a youth who sat unnecessarily opposite her and stared at her. On the following day the juror noticed the same youth in the public gallery of the court. There appeared to be communication between this youth and another youth in his company and one or more of the defendants in the dock. The juror communicated her concerns to other members of the jury, and, at the end of the day's proceedings, to the court usher. The juror did not want to travel home alone. She was escorted part of the way home by other members of the jury and spent some time wandering around a different area of London before eventually returning home. 10. The juror's concerns were brought to the attention of the court on Thursday 16th November 2006. Statements were taken from the juror, the usher, and other members of the jury to establish the factual background. Submissions were invited from counsel. 11. It emerged that the juror had associated the youth and his associate with the defendants Diamond and Timmy Babamuboni. Diamond had recognised two of Timmy's associates in the public gallery on Wednesday and accepted that he might have made an innocent gesture towards them. For his part Timmy had also recognised two of his friends in the public gallery, but said that he had not communicated with them. After hearing submissions, Gross J reluctantly discharged the juror in question on the basis she was bound to remain frightened and unsettled for a while, regardless of the measures the judge had proposed to put in place to stop such a thing happening again. The judge was concerned that the juror would not be able to put the incident completely out of her mind. The judge then made appropriate arrangements for the security of the jury, but it is also important to note that then and there he directed the jury that they should put the matter out of their minds. They should not hold any events against any of the defendants and try the case on the evidence. He repeated those directions in his very careful summing-up. 12. We would point out that, as is apparent from what we have said about the course of the trial and the verdicts, that it is self-evident that the jury must have taken those matters into account, because they acquitted three of the defendants of murder in this case, two of those being those with whom the intimidation had been associated. 13. The renewed application is brought before this court on the basis that the extremely experienced leading counsel for the applicant had not followed the applicant's instructions, which had been to the effect that he was to argue that the entire jury be discharged. Those instructions were communicated to us today and counsel who has represented Malasi at the last moment has given us all the possible assistance we could have asked for. What we say, which follows, must not be taken as any criticism whatsoever of him. 14. We shall proceed to determine the case on the basis that those instructions were given and were not followed by his counsel. However, it is very important that we make the following observation because we wish it to be acted upon by those responsible for the proper conduct of the affairs of the Bar of England and Wales. 15. It is invariably the course that where criticism is made of counsel, particularly eminent and experienced leading counsel, and particularly criticism of the gravity made in this case, namely that counsel did not follow the instructions of someone on trial for murder, that before an appeal is brought on that basis, and certainly before it is renewed before this court, that some steps are taken to ascertain from counsel concerned what he has to say about that matter. The reasons are obvious. 16. Unfortunately, in this case, when new solicitors and counsel, whom we shall not name in public, were instructed, although they wrote numerous letters to this court complaining about the refusal of the registrar to grant more legal aid, it appears from what we have been told today, but we know not whether it is correct or not, no one took the elementary step of asking leading counsel what had happened. It is always difficult for this court when dealing with cases of this kind to trespass into areas of professional privilege, but it is normally the case that where criticism is made privilege is always waived and the most careful steps are taken. This is not a case where it is alleged that what was done by counsel was merely not in accordance with his proper standards, it is a case where it is alleged that he deliberately disobeyed the instructions of his client. That is a very grave allegation to make against such a distinguished counsel and on which to pursue an application for appeal. We do not think, for our part, that it is proper for such an application to be pursued or made without those elementary steps being taken. We did not want to delay the further conduct of this appeal, because, as we have said and as we shall further explain in a moment, we have proceeded on the basis that counsel deliberately disobeyed the instructions, but it is a matter of concern to us and the professional standing of those involved, not counsel here today, as to how this matter has come to this court in this way when such a grave allegation is made against a member of the Bar and no steps have been taken to see what he has to say about it. 17. We proceed, as we have said, to consider the matter on the basis that counsel deliberately disobeyed his client's instructions on a charge of murder on a matter so central to the trial of the case, namely whether the jury that was to try him should be discharged. 18. We will assume that that argument, therefore, should have been put to the judge and the judge would, therefore, have properly considered it. We have no doubt in our mind, first of all, that the judge would have rejected such an argument and, secondly, there can be no possible doubt that this conviction is an entirely safe one. We say that for two reasons. First of all, it is very much within the discretion of the trial judge as to the way in which he handles a difficult matter of this kind. It is all too easy these days for people to seek to intimidate an individual member of the jury. It must be for the judge to decide whether it is, in all the circumstances, right to continue with the trial in respect of all or part of the jury concerned, and, secondly, what warnings to give. In most cases it is the experience of each and every member of this court that when a jury is told that it must put a matter out its mind, it is true to its oath, as we would expect from an institution so central to the image and discharge of our system of justice. In this case it is clear that the judge felt that the jury could continue and that they would, in accordance with the directions he immediately gave, be true to their oaths. 19. Secondly, we are satisfied on the totality of the evidence before us that this was an entirely safe conviction and that the jury approached the matter in a careful way. That is underlined, as we have already pointed out, by the fact that the jury acquitted three of the defendants in the case and the other applicant before us today of the charge of murder. 20. Thus, on its assumption, which is one we have been compelled to make, that leading counsel at trial deliberately disobeyed his instructions, we, nonetheless, consider that this ground of appeal is unarguable and dismiss the renewed application. 21. We turn, therefore, to the issue of appeal against sentence. 22. The learned trial judge faced in the case of Malasi a very difficult sentencing exercise. He stood to be sentenced for two murders and he was under the age of 18. The position is governed by section 269 of the Criminal Justice Act and Schedule 21. Two approaches were urged on the judge. It was urged by the Crown that the judge should look at each of the murders, decide on the appropriate term, add them together and then look at totality to arrive at that what was a proper minimum overall term and pass that for both murders. It was urged for the defence that the judge should consider first the murder with the lower minimum term and then look at the one with the higher minimum term and increase that higher minimum term to reflect both. 23. It appears that it was a common approach that one minimum term, which was the same for both murders, ought to be fixed and there should be no consecutive minimum terms following the views of this court in relation to imprisonment for public protection in O'Brien [2006] EWCA Crim 1741 , and that the sentence should reflect the fact that there were in fact two murders. 24. The judge, against that background, set out his approach in a very clear way: "For my part, I propose to proceed as follows. (1) I take section 269(3) of the 2003 Act as my starting point. That subsection reads as follows: 'The part of his sentence is to be such as the court considers appropriate taking into account -- (a) the seriousness of the offence, or of the combination of the offence and any one or more offences associated with it, and (b) the effect of any direction which it would have given under section 240 (crediting periods of remand in custody) if it had sentenced him to a term of imprisonment.' (2) By way of section 305 of the 2003 Act the meaning of an 'associated offence' is to be found in section 161(1)(a) of the Powers of Criminal Courts (Sentencing) Act 2000 . That subsection reads as follows: '(1) for the purposes of this Act, an offence is associated with another if -- (a) the offender is convicted of it in the proceedings in which he is convicted of the other offence, or (although convicted of it in earlier proceedings) is sentenced for it at the same time as he is sentenced for that offence.' (3) It follows that the two murders here are associated offences. I am therefore both entitled and bound by section 269(3) of the Act to take the fact of there being two murders into account when fixing the minimum terms. (4) In accordance with section 269(5) of the Act, I must also have regard to the general principles set out in the schedule 21 to the Act. (5) In accordance with paragraph 7 of schedule 21, I shall take 12 years as the starting point when determining the minimum term. I shall say a little more presently as to the meaning of 'starting point'. Pausing there, for my part, I prefer, whether or not I am strictly bound to do so, to keep to the 12 year starting point but to take the fact of there being two murders into account as an aggravating factor when I come to fix the minimum term. That preference is reinforced by the decision of the Court of Appeal Criminal Division in R v H [2007] EWCA Crim 53 . (6) I shall then assess each of the murders individually, indicating the likely minimum term had each murder stood alone. This procedure has the benefit that, in the event of any appeal, the Court of Appeal is informed of the judge's provisional view in this regard. (7) Having formed a provisional view as to the minimum term in the case of each murder standing alone, I accept that it would be inappropriate to pass consecutive minimum sentences following R v O'Brien [2006] EWCA Crim 1741 , albeit that that authority was dealing with sentences of imprisonment for public protection rather than minimum terms for murder. (8) That said, by reducing the aggregate of the two minimum terms to make such allowance as is appropriate for totality, I can arrive at a single minimum term to be served concurrently in respect of both offences of murder. As it seems to me, it is preferrable to have a single minimum term rather than two different minimum terms, even if they are made concurrent. (9) The appropriate allowance for totality will of course depend on the facts of the given case. (10) Finally, I reflect the time on remand by way of a single deduction from the single minimum term reflecting the longer period on remand in case there is a difference between the time on remand for the two offences. (11) The advantages of the approach which I follow seemed to me to be these: the starting point remains at 12 years; the aggravation of there being associated offences is taken into account by approaching the two, considered separately, consecutively, but double counting for that aggravating factor is avoided; totality is taken into account; and a single minimum term is arrived at. (12) Insofar as this approach is closer to that commended by the Crown than that urged by Sir John Nutting for Malasi, I am fortified by the reflection that any difference in approach is likely to be more theoretical than practical. On Sir John's approach, while I would never aggregate the two individual terms considered in isolation, I would need to enhance but provide for an increase in the minimum term reflecting the murder carrying the higher individual minimum term. In carrying out that enhancing or aggravating exercise, I would necessarily take into account the same factors, namely the existence of an associated offence, the need to avoid double counting and the requirements of totality. The murder of Zainab Kalokoh: the first step as laid down by Parliament is to decide on a starting point. As already indicated, because you were less than 18 at the time of this murder, the only starting point as laid down by Parliament is one of 12 years' detention. A starting point again means what it says. It is where the sentencer starts; it does not in any way mean that is where the sentencer finishes. Where I finish depends on the sentence which is appropriate to do justice in the individual case, having regard to the seriousness of the offence and any associated offences and any other relevant considerations; see R v H ." 25. He fixed the minimum term for the first of the murders of Mrs Kalokoh at 24 years and the minimum term for Ruth in respect of her to 12 years. He then considered that the term reached by adding them together, which was 36 years, was too long and reduced the overall term to 30 years. 26. It seems to us that the Act was designed and drafted in such a way that one should arrive at one overall minimum term. It is clearly necessary for a judge to identify the factors in respect of each murder and it may be helpful, in either approach, to have the view of the judge as to what sentence might have passed if only one of the murders had been before him in respect of each murder. But what it is clear the Act requires is the fixing of a single overall term and as long as a judge takes into account all the factors in relation to each of the murders before him, what the court must do is to consider whether that overall term is the correct one. 27. The judge took as his starting point as required by statute, because of the age of the Malasi, the term of 12 years. He set out very clearly the aggravating factors. First, in the murder of Mrs Kalokoh that there was firearm used, that the gang went equipped, that the murder was committed in furtherance of a robbery, that it had been a well-planned and executed murder and robbery and that the way in which they had behaved during the murder had been appalling. We would add a further aggravating factor. We have already said that this was the invasion of an important religious ceremony, a christening, and that can only be considered a very serious and further aggravating factor. 28. The mitigation was, in respect of that and the other murder, his youth. He was 16 and a half. Secondly, he was of previous good character. Thirdly, it is clear that he had had a very sad and terrible upbringing, seeing awful crimes committed in Africa prior to his first coming to this country in 1995, and thereafter and shortly before the murder being found abandoned, sleeping rough and homeless. There was finally, as the judge pointed out, the important considerations to the potential for change. 29. As to the issue which is important in cases of this as to whether there was an intention to kill, the judge found that in firing in the way in which Malasi did it was all too likely that death would result. In the respect of the murder of Ruth, he found as aggravating circumstances that he gone equipped with a with a knife, but accepted, as we have already set out, the killing was impulsive and that there was an element of provocation. In respect of that he also gave significant credit, in addition to the youth, for the plea of guilty and the remorse. 30. In very cogent submissions put before us today on behalf of Malasi it has been said that the sentence of 30 years is too long. It insufficiently reflected his youth, it insufficiently reflected his ability to change and it was disproportionate to the sentences that had been passed in respect of those sentenced to imprisonment for public protection. It was also important in the case of looking at someone who was to change that we should take into account something that was not available to the learned trial judge, namely the report from the penal institution at which he is now serving his sentence, the improvement that has come upon him. 31. We have very carefully considered all of those submissions to consider whether we should grant leave to appeal in this case. However, we have come to the view that the murder of Mrs Kalokoh was a shocking crime and deserving of a sentence of a very significant length. The judge's approach to the sentence for these murders was careful. The way in which he approached the matter can only be deserving of the highest praise and commendation. It was a model of clarity as to what he said and the approach he took. There can be no criticism of the fact that he took into account all the relevant factors and it was clear that he had to pass a sentence that was of a very significant length despite the youth. We have been told on numerous occasions that we are dealing with a child. We were dealing with someone who was a year and a half younger than the age of 18, and in the judgment of this court, had he been 18, the sentence in a bracket of between 35 and 40 years may well have been appropriate. Such a view we put to counsel and it was not seriously disputed. 32. We think it is important that when dealing with a person of that age and looking at the relative difference in age between 16 and a half and 18 and looking at all the other features of this case, it could not possibly be argued that a term of 30 years was in any way wrong in principle or manifestly excessive. People must realise that anyone who goes out with a gun or a knife to rob, and kills in the process, can only expect a sentence of the utmost severity despite the fact that they are under the age of 18. We therefore refuse the renewed application. 33. As to the appeal against sentence in respect of Odigie, the remaining applicant, the learned judge in his sentencing remarks approached the case on the basis that they had been convicted of manslaughter on the grounds that the jury could not be sure that they realised that a firearm might be used to kill or cause really serious bodily harm, but did realise that firearms might be used to cause some injury. It was undoubtedly, for the reasons we have given, a most shocking case. This was a planned robbery, loaded firearm, were taken, and all the other aggravating features to which we have referred. The judge concluded that there was little remorse. That each of these persons was more concerned for their own safety than anything else, and that they had carried on robbing while someone lay dying, during a christening ceremony. There can be no doubt, and it has not been argued before us, that the judge was in any way wrong in passing a sentence of detention for public protection. This was plainly, if ever there was a case, a case for that. But what is said, and has been ably said, is that the term of the minimum term fixed at eight years was too long. It is said that insufficiently took account of his youth, his previous good character and the evidence before the court as to his participation. It was admitted he had a gun and had fired it, but he had not shown other violence to people and had behaved differently from the others. 34. As we have indicated, the notional determinate period that the judge would have passed was one of 16 years. He made it clear that, had these been adults, a term of 20 years or more would have been appropriate. We underline that we agree with that view. 35. We consider that a term of eight years might be considered by many as a merciful sentence. There can be no distinction at all between the defendants and this applicant. They were each involved in a carefully planned robbery, involving loaded firearms, invading a religious ceremony. Sentences of the utmost severity were called for and in our judgment no distinction should be drawn between any of them, dispute the youth of Odigie. We consider that there is no way that any possible argument could succeed that the term of eight years passed was in any way wrong in principle or was manifestly excessive. We therefore refuse the renewed application. 36. We will direct that the registrar sends a copy of this judgment to the Bar Council and the Bar Standards Board, whichever is the appropriate body, so that the way in which this appeal was brought -- and as we emphasised it is no criticism of anyone here present, and we wish to make that absolutely clear -- does not happen again.

2008_06_11-1539.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/2505/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/2505

4002c518baace0814a1e114e4c272b292ef75784fca6dfb6bf5351099d3d1a21

[2005] EWCA Crim 3606

EWCA_Crim_3606

2005-12-14

crown_court

No: 200501457/C2 Neutral Citation Number: [2005] EWCA Crim 3606 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 14th December 2005 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE CRANE MR JUSTICE OPENSHAW - - - - - - - R E G I N A -v- MOSHEN MOKHTAZARDEH GHAHI - - - - - - - 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 (O

No: 200501457/C2 Neutral Citation Number: [2005] EWCA Crim 3606 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 14th December 2005 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE CRANE MR JUSTICE OPENSHAW - - - - - - - R E G I N A -v- MOSHEN MOKHTAZARDEH GHAHI - - - - - - - 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 PRICE appeared on behalf of the APPLICANT MR B HOULDER appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. MR JUSTICE CRANE: On 18th February 2005 in the Crown Court at Kingston-upon-Thames, this applicant was convicted, by a majority, of rape and sentenced by the trial judge, His Honour Judge Southwell, to a sentence of 7 years' imprisonment. 2. The jury failed to agree on the second count on the indictment, rape on the same victim on the same occasion and that count was ordered to lie on the file. He renews his application for leave to appeal conviction after refusal by the Single Judge. 3. On 19th January 2004 the complainant went with a female friend to a club for gay men and women in Tottenham Court Road in London. They had been drinking. They continued drinking at the club and the complainant admitted becoming very drunk. 4. The prosecution case was that the complainant left the club in the early hours to get some air, as she felt unwell, and was approached by the applicant outside. She got into his car. She believed that it was a minicab but instead of driving her to her home, he drove to his flat in North London. She fell asleep during the journey. She awoke to find that they had arrived at an address and she walked with the applicant to his flat. Once inside she sat on a sofa in the living room. When the applicant kissed her she turned her head and said "no" but he then pulled her trousers down to her knees and raped her. Her account was that he also raped her some moments later while she was still on the sofa. She did not struggle, she said. She was too drunk to resist. She then asked if he would drive her back to the club. He was reluctant but did so. She could not remember anything about the return journey. 5. The complainant told the court that she had spoken to her friend on her mobile telephone on about four occasions, including a complaint that the applicant had had sex with her without her consent. Indeed, the friend gave evidence that she had received such calls. The following day the complainant went to a clinic for a Morning After contraceptive pill. In due course the staff referred the matter to the police. The applicant was identified because DNA material matching his was found when swabs were taken. 6. The defence case was that intercourse had taken place on one occasion and that it had been consensual. The applicant had said that he had met the complainant inside the club and they had danced and kissed and that by agreement the complainant had followed him out of the club and into his car and she was aware they were driving to his flat. He said that in fact after he had driven her back to the flat, they agreed to meet the next evening but she failed to turn up. He called character evidence from two female friends. 7. The original grounds settled by counsel were the subject of a refusal of leave by the learned Single Judge. 8. Mr Price, counsel who now appears for the applicant has accepted that the refusal of those grounds were inevitable but he has drafted perfected ground of appeal on which he relies. His perfected grounds are full and detailed and he has confirmed them in succinct submissions this morning. 9. He accepted that, although the CCTV tapes had been lost, and the judge was correct to refuse an application to stay the indictment for abuse of process on that basis, nevertheless the trial process should have been used to correct any prejudice and unfairness which that loss caused. He submits, first of all, that the evidence relating to how, where and when the defendant first met the complainant should have been excluded. In particular, the evidence about him being a minicab driver should have been excluded and he should not have been permitted to be questioned on that topic. In fact the evidence, as it came out, was that the complainant was not told by him, according to her, that he was a minicab driver; she simply assumed it. But in fact the state of the evidence was accurately summed up by the learned judge. The learned judge had not been asked to exclude the evidence. It was of relevance and we cannot see that it caused unfair prejudice to the applicant. 10. The mobile telephone records had not been obtained which might or might not have confirmed that the alleged calls to friend had taken place although they would not have of course revealed what was said in those calls. The learned judge was not asked to exclude the evidence of the friend or the evidence in relation to those messages. It is speculation to ask what the result of further inquiries about those calls would have been. The matter was fairly summed up to the jury. 11. The next ground relates to the conflict of evidence about whether the complainant collected her coat from the cloakroom, as the applicant alleged or whether she already had it with her. It is proposed it is said to make further enquiries at the club on that topic and an application might be made to introduce fresh evidence. That is speculative. It is the kind of matter that could and should have been explored at trial. 12. The cross-examination of the defendant, apart from the minicab issue, was also the subject of complaint in two respects. First of all, the applicant said, in his evidence in chief, that he was gay. It is accepted that in principle he could have been asked about that but counsel for the prosecution went on to question why this had not been stated in his defence statement. As a result of submissions in the absence of the jury, that was taken no further, but complaint is made that no explanation was given to the jury, which might have left a suspicion on their part that there was a recent invention by the applicant. In fact, there was no basis for saying that it was a recent invention. 13. The second aspect of the cross-examination was this. The prosecution cross-examined him on the basis that the applicant's evidence that the complainant had encouraged him to continue have intercourse without a condom was a recent invention. When the matter was dealt with in the absence of the jury, it was accepted that this was not recent invention and in fact the prosecution took the matter no further. Some explanation was given to the jury. The complaint is that it was much too brief. It is certainly arguable that the explanation in the second instance should have been fuller and in relation to the first incident should have been given to the jury. Nevertheless, those matters even combined with the other features that Mr Price puts before us do not lead us to the conclusion that this conviction is unsafe. 14. For those reasons we must refuse the renewed application for leave.

2005_12_14-662.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/3606/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/3606

e9730c3c772ec151da3e54eb8a2785c4a798e2167bebe04c0d607ec1305771b1

[2007] EWCA Crim 1530

EWCA_Crim_1530

2007-03-16

crown_court

No: 200701980/A1 Neutral Citation Number: [2007] EWCA Crim 1530 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 16th March 2007 B E F O R E: LORD JUSTICE SCOTT BAKER MR JUSTICE MITTING THE RECORDER OF SWANSEA (Sitting as a Judge of the CACD) - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 44 OF 2007 (JOHN CHRISTOPHER MCNEICE) - - - - - - - Computer Aided Transcript of the Stenograp

No: 200701980/A1 Neutral Citation Number: [2007] EWCA Crim 1530 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 16th March 2007 B E F O R E: LORD JUSTICE SCOTT BAKER MR JUSTICE MITTING THE RECORDER OF SWANSEA (Sitting as a Judge of the CACD) - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 44 OF 2007 (JOHN CHRISTOPHER MCNEICE) - - - - - - - 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 A DERBYSHIRE appeared on behalf of the ATTORNEY GENERAL MR S MILLS appeared on behalf of the OFFENDER - - - - - - - J U D G M E N T 1. LORD JUSTICE SCOTT BAKER: The Attorney-General seeks leave, under section 36 of the Criminal Justice Act 1988 , to refer the sentence in this case to this Court on the ground that it is unduly lenient. We grant that leave. 2. On 27th February 2006 the offender pleaded guilty, at the earliest opportunity, to wounding with intent contrary to section 18 of the Offences Against the Person Act 1861 . Following preparation of a pre-sentence report, he was sentenced by Mr Recorder Hussain QC, in the Crown Court at Liverpool, to 8 months' imprisonment, suspended for 18 months, with a suspension period of 18 months. The Attorney-General submits that this sentence does not reflect the gravity of the offence. 3. The facts of the case can be summarised as follows. At about 10.30 on 31st July 2006 the complainant, a Mr Chris Walls, and his partner, Louise Gallagher, entered the Royal Oak public house, Waterloo, Merseyside. The offender, whom they both knew, was already there. About 10 minutes after they arrived Louise Gallagher approached the offender and remonstrated with him about his failure to pay back some money that he had borrowed from them about 2 years before. It was agreed between them that the offender would repay the debt of £120 at £10 a week. Miss Gallagher noted that the offender seemed quite drunk and a bit nasty compared to his usual self. 4. Shortly after speaking to Miss Gallagher the offender spoke to Mr Walls. He accused Mr Walls of saying things about him. The offender was not happy and told Mr Walls to get outside. The two men moved to the foyer of the pub, where they had a scuffle, which one of the bar staff described as "more verbals with a bit of pushing and shoving". They were quickly separated by others in the pub. 5. Mr Walls felt wound up and decided to go home, leaving Miss Gallagher behind. When he got home, he left his front door unlocked so she would be able to get in on her return. He got home at about 11.45, watched television for about an hour and then went to bed. 6. Some time after 2.00 am Mr Walls was awoken by a number of blows to his head. He looked up to see the offender, whom he recognised, standing over his bed, holding an egg-shaped wheel brace in his right hand which he was using to strike Mr Walls to the head and face. He was saying to Mr Walls: "You didn't hurt me you fat cunt. You'll never hurt me you fat cunt. Just stay away from me." The offender then left the house. 7. Mr Walls could feel blood trickling from a wound on the back of his head. He reached for his mobile telephone and called an ambulance. By the time of the arrival of the police, at about 2.50 am, Mr Walls was described as "covered in blood from his head injury". Mr Walls was taken to hospital by ambulance, and subsequent forensic examination revealed blood splattering next to the bed. Mr Wall suffered a 3-centimetre laceration to the left side of the head behind the left ear, a black eye, and bruising and tenderness beneath the left eye. There was also an area of swelling and bruising, between 3 centimetres and 6 centimetres in length, to his left forearm, which appeared to be a defensive injury. The head wound was closed under local anaesthetic with six stitches. There was no further evidence available to the sentencing judge concerning the impact of the offence on the victim. 8. The offender was arrested on 24th August at Copy Lane police station in Liverpool and interviewed later that day. In interview he accepted that he had been involved in a scuffle with Mr Walls in the pub but denied the assault in the house, saying he had driven straight home from the pub. 9. The offender was 36 at the time of the offence. He has two convictions for dishonesty and as a youngster, he was fined for criminal damage. The judge, rightly in our view, treated him as effectively of previous good character for the purposes of sentence. 10. The court had a pre-sentence report in which the author said that the use of a weapon and the premeditation involved were both aggravating factors, as indeed they were. But he nevertheless identified the offender as having a low risk of reoffending and recommended a community order. He said: "...on entering the premises of the victim [the offender] maintains there was no clear plan in his mind. [The offender] relates how he hit the victim with a downward motion using the wheel brace to the head and that he was not 'in a rage' but had a degree of control over his behaviour, hence, he says, he was able to stop his actions before permanent harm was done, though how he was able to assess this in his inebriated state is unclear. The [offender] admitted his behaviour was 'disgusting', and for him, out of character, which, he says leaves him shocked as his potential to commit this kind of offence. He struggled to provide a motivation for his actions but says he wishes no ill harm to Mr Walls." The author of the report described the offender as living alone in a flat rented from the local authority, and said that he needed help with motivation to find employment. He has a daughter aged 13 from a previous relationship with whom he has no current contact and he has no current partner. He described his life style as appearing to revolve around the routine of getting his benefit, managing his budget and occasionally socialising in local pubs. The author went on: "Clearly [the offender's] risk of reoffending is linked in part to his alcohol use. Binge drinking on this occasion disinhibited his behaviour, and the altercation originated in a public house. In my opinion he needs to consider the link between his alcohol use, his life-style and the offence. [The offender's] actions in the commission of the current offence cannot be described as impulsive, a degree of thought appears to have gone into the behaviour... Under normal circumstance [the offender] is not a risk of harm to the public..." 11. We have a supplemental report which is positive to the offender, and which Mr Mills strongly relies upon, Mr Mills having appeared before us for the offender as he did in the court below. 12. The following aggravating features are identified with the commission of this offence. First, the offender deliberately armed himself with a weapon. Secondly, he entered the victim's house at night as a trespasser, and third, he assaulted him whilst he was asleep. On the other hand, there was substantial mitigation, strongly relied upon by Mr Mills. First, his early plea of guilty. Second, his real remorse. Third, that no permanent injury appears to have been occasioned to the victim. Fourth, that the offender is of effective previous good character. 13. The judge in his sentencing remarks does not appear to have appreciated that it is an element of an offence under section 18 of the Offences Against the Person Act 1861 that the perpetrator intends to cause the victim really serious injury. 14. Mr Derbyshire, who has appeared for the Attorney-General, submits that the sentencing remarks appear to indicate that the judge had the various relevant features of the offence in mind, but simply failed to take the right starting point, which was a substantial sentence for what, on any view, was a very serious offence. 15. The judge said that clearly the offence passed the custody threshold. He said: "On the one hand, you say you were drunk, on the other hand you say the delivery of the blow was controlled. It is difficult to imagine someone who is drunk being able to control but, be that as it may, the fact is that your previous background clearly shows that you need assistance from the Probation Service." 16. Unfortunately, the judge having decided to take what was on any view a totally exceptional course in this case was not referred to and did not invite counsel to refer him to any of the material authorities. We however have been referred to three authorities by Mr Derbyshire. Each of the three is an Attorney-General's Reference. The first is Attorney-General's Reference Nos 59 and 60 of 1998 (R v Goodwin & Ors) [1999] 2 Cr App R(S) 128. The Court was dealing in particular with young offenders in that case but it is observations with regard to section 18 offences of this kind that is of particular relevance. At page 130 Lord Bingham CJ said: "An offence against this section [referring to section 18 ] has always been regarded as of great seriousness, reflected in the maximum penalty of life imprisonment. The reason is obvious. Not only must there be proof of grievous or serious injury, but that injury must have been caused intentionally or deliberately. There is an obvious contrast with section 20 of the same Act. Under that section the same injury must be proved, but the commission of the offence does not depend on proof of intention to cause it. The difference lies in the criminality of the defendant's intention. That is a significant difference, reflected in the maximum penalty of five years' imprisonment on conviction under section 20. The seriousness with which section 18 offences are regarded is evident not only in the severity of the potential punishment but also in the fact that a section 18 conviction ranks as 'a serious offence' for the purposes of section 2 of the Crime (Sentences) Act 1997 . The consequence of that is that a second conviction of "a serious offence" obliges the court, in the absence of exceptional circumstances, to impose a sentence of life imprisonment. It is true to say that all offences against section 18 are serious because they involve the deliberate or intentional causing of serious injury. But as with any other crime, some instances are more serious than others: the use of a firearm, a razor, a knife, a broken bottle, a club, a baseball bat, or a pick helve, or something of that sort, has usually been held to aggravate the offence. The courts have also, however, been obliged to recognise that injuries of almost equal seriousness can be caused by kicking with a shod foot or biting. It is also of course possible to inflict serious injury with the bare fist, although this is usually regarded as less serious, partly because in that instance the offender may lack the premeditation usually shown by a defendant who has armed himself with a dangerous weapon. Perhaps the least inexcusable example of an offence against section 18 is where a defendant entitled to defend himself responds with unreasonable and excessive force directed against an aggressor. Even then a custodial sentence, probably of some length, will usually be appropriate. In any other case a custodial sentence will almost invariably follow. In sentencing young offenders the court will of course have regard to the welfare principle expressed in section 44 of the Children and Young Persons Act 1933 : the younger the offender the less the justification in any ordinary case for treating the offender exactly as if he or she were an adult." Then a little later: "Sentencers must, however, always bear in mind that the welfare of the young offender is never the only consideration to be taken into account. When an offender, however young, deliberately inflicts serious injury on another there is a legitimate public expectation that such offender will be severely punished to bring home to him the gravity of the offence and to warn others of the risk of behaving in the same way. If such punishment does not follow, public confidence in the administration of the criminal law is weakened and the temptation arises to give offenders extra judicially the punishment which the formal processes of law have not given. When we speak of the public we do not forget the victim, the party who has actually suffered the injury, and those close to him. If punishment of the offender does little to heal the victim's wounds, there can be little doubt that inadequate punishment adds insult to injury." The offender in this case is, of course, not a young offender, being 36 years of age. 17. The next case to which we were referred was Attorney-General's Reference No 1 of 1995 ( R v David James Henry ) [1996] 1 Cr App R(S) 11. In that case the Lord Chief Justice, Lord Taylor of the Gosforth said that, at page 13: "However, we wish to stress that anyone who breaks into to someone else's house in the middle of the night, with the intention of inflicting grievous bodily harm, particularly if he takes others with him and has weapons, can expect to receive a substantial sentence. An offence of that kind is outrageous." 18. That case is different from the present case because there were several defendants who entered the house. However, it is plain that the court concluded that the appropriate sentence there would have been six or seven years, with some credit for the plea of guilty. But the inference is that the starting point would have been in the region of 8 years' imprisonment. 19. The final authority is the Attorney-General's Reference Nos 43 & 44 of 2002 [2003] 1 Cr App R(S) 72. In that case, Kay LJ, giving the judgment of the Court, expressly followed the earlier decision in Henry as opposed to another authority which appeared to be in conflict with it, and 3 years' imprisonment for aggravated burglary and wounding with intent to cause grievous bodily harm imposed for attacking a man in his own home with an iron bar was increased to a sentence of 7 years. It is not very helpful to go into the particular circumstances of that or any other case; suffice it to say that fortunately in the present case the injuries were not of great gravity, and the offender was acting on his own. 20. In our view, it is difficult to envisage circumstances in which an offence under section 18 , involving as it does the specific intention to cause the victim really serious injury will not require an immediate prison sentence of significant length. More especially, when the attack occurs at night, in the victim's house, which the offender has entered as a trespasser. There was, as we have pointed out, considerable mitigation in this case, not least the offender's early plea of guilty. In our judgment, at the point of sentence, the circumstances of this case, taking into account the aggravating factors and the mitigating factors, warranted a sentence of 4 years' imprisonment. We have, of course, to take into account double jeopardy, which is of particular relevance in this case because the offender has served nearly 2 months of a suspended sentence and, importantly, is not already in custody. So it is not a case of just increasing an existing sentence of immediate custody. Taking those factors into account, we think that the sentence that ought now to be imposed is one of 3 years' imprisonment. We accordingly make that order. 21. LORD JUSTICE SCOTT BAKER: What is the position about surrender? 22. MR MILLS: His local police station is Copy Lane police station. 23. LORD JUSTICE SCOTT BAKER: When should he surrender by? 24. MR MILLS: Your Lordships normally allow 48 hours. 25. LORD JUSTICE SCOTT BAKER: I do not think we do necessarily. He is not in court at the moment, is he? 26. MR MILLS: He is not, my Lord, no. 27. LORD JUSTICE SCOTT BAKER: But he is aware of today's proceedings? 28. MR MILLS: He is obviously realistic as to what is likely to happen. 29. LORD JUSTICE SCOTT BAKER: Why should he not surrender by 7.00 pm this evening? 30. MR MILLS: I am sure he could, and what I know of this particular man, I am sure he would. If your Lordship would allow him 48 hours I ask for that on his behalf. 31. LORD JUSTICE SCOTT BAKER: Is there any particularly reason why you are asking for 48 hours? 32. MR MILLS: It simply may well been the time period that has been communicated to him because of the understanding I was under. But, as I say, obviously I have been misled. 33. LORD JUSTICE SCOTT BAKER: Mr Derbyshire, have you any observations? 34. MR DERBYSHIRE: My Lord, none. I can suggest a possible compromise, which is noon tomorrow, which would allow him some time to make preparation. 35. LORD JUSTICE SCOTT BAKER: We are going to say noon tomorrow. The sentence will begin to run from his surrender. We direct that he surrender to Copy Lane police station, which is -- I am told it should be Southport police station; that is a 24-hour police station. 36. MR MILLS: My Lord, I will convey that. 37. LORD JUSTICE SCOTT BAKER: Surrender to Southport police station, Albert Road in Southport. Copy Lane is not necessarily open all the time. He is to surrender by midday tomorrow.

2007_03_16-1050.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/1530/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/1530

6d98105dbaae887d4f39bf82b74c185ed8315a3118f3a7f483e28b40abd3aa2d

[2017] EWCA Crim 1062

EWCA_Crim_1062

2017-07-06

crown_court

Neutral Citation Number: [2017] EWCA Crim 1062 Case No: 2017/01427/C1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday 6 July 2017 B e f o r e : LADY JUSTICE RAFFERTY DBE MR JUSTICE WARBY SIR JOHN SAUNDERS - - - - - - - - - - - - - - - - R E G I N A JASON DAVEY - - - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph Notes of WordWave International Limited trading as DTI 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1

Neutral Citation Number: [2017] EWCA Crim 1062 Case No: 2017/01427/C1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday 6 July 2017 B e f o r e : LADY JUSTICE RAFFERTY DBE MR JUSTICE WARBY SIR JOHN SAUNDERS - - - - - - - - - - - - - - - - R E G I N A JASON DAVEY - - - - - - - - - - - - - - - - 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 C Morrish appeared on behalf of the Appellant Mr D Reid appeared on behalf of the Crown - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. SIR JOHN SAUNDERS: Can we start by expressing our gratitude to Miss Morrish for the way she has conducted this appeal. She has done so persuasively and has answered all the very many questions we have asked her during the hearing. 2. On 3rd March 2017 the appellant was convicted at Lewes Crown Court of an offence of assault by penetration which was count 1 on an indictment containing two counts. He was acquitted by the jury of count 2, which was an offence of sexual assault. The appellant was subsequently sentenced on 15th May on count 1 to two years' imprisonment which was suspended for two years. There was an unpaid work requirement of 180 hours and a rehabilitation requirement of 35 days. There were other ancillary orders as to notification made by the judge. 3. The appellant appeals pursuant to a certificate from the trial judge that the case is fit for appeal. In addition to the ground on which the judge certified, the appellant argues that the conviction should be quashed as the verdicts were inconsistent one with the other. 4. The complainant was 17 at the time of trial and an order was made under section 45 of the Youth Justice and Criminal Evidence Act 1999 that no matter should be published which might lead to her identification. A similar order was made in relation to one of the witnesses who was also under 18 at the time the case was sent for trial. Those orders remain extant and apply to this hearing. 5. We will deal first with the ground on which the judge certified the case as fit for appeal. It is in our judgment a discrete matter which does not require any recitation of the facts. It is also important that we decide that issue before we come to the second ground of inconsistent verdicts because it is accepted by Miss Morrish that she needs to rely on that in order to support her second ground of appeal. 6. The trial was a relatively short one. It started on Monday 27th February 2017. The judge gave the customary directions to the jury before the trial started, including a direction that the jury should report to him any problems or concerns that they had during the trial, as once the trial was over,he was powerless to do anything about it. No complaint is made that his direction was not entirely adequate and in accordance with established practice following the House of Lords decision in Mirza and others . 7. At an early stage in the trial the judge had discharged one of the jurors for reasons which are not relevant to this appeal except that the numbers of jurors was thereafter reduced to 11. 8. The summing-up commenced on Thursday 2nd March but had not been completed before the court adjourned overnight. It was appreciated on the Thursday night that the jury might not have reached verdicts by the end of the court day on Friday so the judge enquired whether any member of the jury would be in difficulty in returning on the following Monday, if that was necessary. One member of the jury indicated to the usher that he would be in difficulty but he had resolved that difficulty by the time he returned to court on the Friday morning. So, as far as the judge knew, none of the jury had any difficulty in returning the following Monday morning. The judge made it clear to the jury that they were not to feel under any pressure of time to reach their verdicts. 9. The jury retired to consider their verdict at 11.27 on the Friday morning. The jury asked one question during their retirement which related to the possible relevance, if any, of consent. By agreement they were directed that this was not a relevant issue on the facts of the case. Although briefly relied on by Miss Morrish in the course of her submissions, the asking of that question has nothing to do whatever with the decision to be made by us in this case. 10. The jury returned their verdicts at 4.17 in the afternoon. The verdicts were unanimous and could not be otherwise as no majority direction had by that time been given. The jury had been deliberating for over four hours making allowance for the time taken to get to their room and for some breaks. 11. On the following Monday morning a phone call was received at the court from one of the jurors who complained that she had felt bullied into agreeing to the verdicts as other members of the jury did not want to return to court the following Monday. She also indicated that two other jurors felt the same way. One of those two telephoned the court later in the week and made a similar complaint. Neither of them or anyone else had made any complaint prior to the delivery of the verdicts. 12. On receipt of the message on the Monday from the first juror, the judge emailed both counsel to impart the effect of the message. The judge told counsel in the email, correctly, that there was nothing that he could do about the verdicts but said that he intended to "sign a certificate pursuant to section 1(2)(b) of the Criminal Appeals Act 1968 that the case is fit for appeal." Defence counsel responded by email inviting the judge to sign the certificate. We are not aware of any response from prosecuting counsel. The judge did sign the certificate without any discussion with counsel as to whether he was adopting the correct procedure. 13. In our judgment the procedure adopted by the judge was not correct. He should not have informed counsel of the communication from the juror, nor should he have certified that the case was fit for appeal. The correct procedure is set out in the Criminal Practice Directions 26M. 26M.46 reads as follows: "If a jury irregularity comes to the attention of a judge or court after the jury has been discharged, and regardless of the result of the trial, the judge or a member of the court staff should contact the Registrar setting out the position neutrally. Any communication from a former juror should be forwarded to the Registrar." It is then, in accordance with the Practice Direction, for the Registrar to decide how to proceed, if necessary in consultation with the Vice President of the Court of Appeal Criminal Division or another member of the Court of Appeal. 14. The Practice Direction is based on the guideline decision of this court in the case of R v Thompson and others [2010] EWCA Crim. 1623 in which the court presided over by Lord Judge considered a number of appeals and gave guidance as to how courts should deal with jury irregularities. 15. The court said, in accordance with the decision of the House of Lords in R v Mirza and another decision of the House of Lords, that there could be no investigation into jury deliberations except by the authority of the Court of Appeal which would only be permitted in a very limited number of situations. The exceptions are limited to cases where the jury have not deliberated at all, but have decided the case by other means such as tossing a coin, and cases where the jury are alleged to have been affected by extraneous influences. That means evidence other than evidence given within the court. As Lord Judge explained: "... the rule against any investigation or inquiry into jury deliberations is a rule of admissibility; evidence about the deliberations of the jury is therefore inadmissible." 16. The facts of this case are similar to those in the case of Thompson itself where jurors complained about being put under pressure to agree verdicts as other members of the jury did not wish to return to continue their deliberations the following Monday. There were additional matters raised by the jurors in that case, but the Court of Appeal ruled that evidence of the juror's complaint was inadmissible and could not be relied on to support an appeal. 17. We have no doubt that the Registrar, had the matter been left to him to deal with as it should have been, would have decided either on his own or in consultation with a member of the Court of Appeal, that the matters complained of by the jurors in this case could not found a ground of appeal and would not have disclosed the contents of the communications to the parties. There are no grounds for referring the matter to any other agency to investigate. 18. Accordingly, in our judgment, this case is clearly not one which is fit for appeal as certified by the trial judge and is simply unarguable. 19. That decision is important to the outcome of this appeal because Miss Morrish has said to us that unless she can rely on the jurors’ complaint, she cannot succeed on the other part of her appeal. 20. We turn now to consider the second ground of appeal, which is the submission that the verdicts are inconsistent. In order to consider this ground of appeal it is necessary to set out a brief summary of the facts. 21. Both offences were said to have been committed at about the same time on 24th July 2015. The appellant, who is now 48, had gone with his wife and two children and another family to Spa in Belgium to watch a motor racing event. BH, who was then 15, went with the other family, as she was the girlfriend of one of that family's children. On the Saturday night, 24th July, the younger members of the party attended a live music event. The grown ups (as we refer to them to distinguish them from the younger members of the group) including the appellant, had attended the music event for a short time but then went to a restaurant close by. BH, while attending the music event, was drinking alcohol and became very drunk. As the amount of drink she consumed affected her behaviour, she was taken by her boyfriend to join the grown ups in the restaurant. There she continued to behave in a drunken fashion. At some stage BH said she needed to urinate and the appellant agreed to take her to the toilet as she clearly required assistance. 22. According to BH's evidence the appellant followed her into a cubicle. After she had urinated he touched her vagina, inserting two fingers and then, she alleged, touched her vagina with his tongue. The insertion of two fingers was count 1 on the indictment of which the jury convicted. The touching of her vagina with his tongue was count 2 on which the verdict was one of not guilty. 23. The appellant's case was that while he did help the complainant to the toilet because she needed assistance, he did not enter the cubicle at any stage when she was in a state of undress and he did not touch her sexually with his fingers or with his tongue. 24. There is and can be no complaint about the summing-up. The directions of law were provided to the jury in writing having been discussed with counsel. They were comprehensive and they were correct. Included in them was a direction to give separate consideration to each of the counts. The summary of the facts was fair, balanced and accurate. 25. In R v Fanning [2016] EWCA Crim. 550 a specially constituted Court of Appeal set out the test to be applied by the Court of Appeal when a ground of appeal of inconsistent verdicts is raised. The decision in Fanning is comprehensive and it seems to us it is unnecessary and probably undesirable to refer to any other decisions when considering the test for inconsistent verdicts other than that. The headnote reads as follows: "In cases in which an appeal was brought on the ground of inconsistent verdicts there was a clear test in that the defendant had to satisfy the court that the two verdicts could not stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts of the case could have arrived at the conclusion being considered. The defendant had to satisfy the court that the verdicts were not merely inconsistent but were so inconsistent as to demand interference by an appropriate court. The test accorded with, and did not usurp, the constitutional position of the jury." Having considered with care the argument put forward by both the appellant and the respondent in this appeal, we are satisfied that the appellant has not succeeded in satisfying that the verdicts are inconsistent within the test set out in Fanning . As is pointed out by the respondent, the complainant in her reporting of the incident did not consistently and in the same terms include the allegation the subject of count 2. This is less true of count 1 where she was in general terms more consistent. Further, bearing in mind her intoxicated state, the jury would have been entitled to consider that she might have been mistaken about the part of the assault reflected in count 2. It is for juries and not for us to make decisions on the facts of the case and on the basis of those decisions of fact to reach a verdict of guilty or not guilty. The Court of Appeal is rightly reluctant to interfere with decisions on facts made by juries who have heard the evidence and made up their own minds. We did not hear the evidence. This is not a case where we feel it would be right or necessary to interfere with the decision of the jury. 26. As I have indicated, the appellant seeks to pray in aid of his argument that the verdicts are inconsistent, the communications from the two jurors. As we have already ruled, those communications are inadmissible in evidence and he is not entitled to rely on them. In any event, we do not consider that they are relevant to the issue of inconsistent verdicts and accordingly the appeal has to be dismissed.

2017_07_06-4018.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/1062/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/1062

0309cf9ad1fac0764d7bb666c3317c7ba0a79cf32b332381e1516dfaac56285d

[2020] EWCA Crim 1247

EWCA_Crim_1247

2020-10-01

crown_court

Neutral Citation Number: [2020] EWCA Crim 1247 Case No: 201902351 B2 IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT AT KING’S LYNN. His Honour Judge Shaw T20187162 Royal Courts of Justice Strand, London, WC2A 2LL Date: 01/10/2020 Before : LORD JUSTICE DAVIS MR JUSTICE SPENCER and HIS HONOUR JUDGE POTTER (sitting as a Judge of the Court of Appeal (Criminal Division)) - - - - - - - - - - - - - - - - - - - - - Between : The Queen Respondent - and - Douglas Joseph Hewitt App

Neutral Citation Number: [2020] EWCA Crim 1247 Case No: 201902351 B2 IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT AT KING’S LYNN. His Honour Judge Shaw T20187162 Royal Courts of Justice Strand, London, WC2A 2LL Date: 01/10/2020 Before : LORD JUSTICE DAVIS MR JUSTICE SPENCER and HIS HONOUR JUDGE POTTER (sitting as a Judge of the Court of Appeal (Criminal Division)) - - - - - - - - - - - - - - - - - - - - - Between : The Queen Respondent - and - Douglas Joseph Hewitt Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Tania Griffiths QC (instructed by the Registrar) for the Appellant Edward Renvoize (instructed by Crown Prosecution Service) for the Crown Hearing date: 5 August 2020 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Covid-19 protocol: This judgment will be handed down by the Court remotely, by circulation to the parties’ representatives by email and, if appropriate, by publishing on www.judiciary.uk and/or release to Bailii. The date and time for hand down will be deemed to be 1 October 2020 at 10.30 am. The Court Order will be provided to Norwich Crown Court for entry onto the record. Mr Justice Spencer : Introduction and overview 1. Joseph Douglas Hewitt appeals, by leave of the single judge, against his conviction for an offence of rape committed 37 years ago against a girl who was in his care when he was in charge of a children’s home in Norfolk (count 5). He was convicted of the offence on 30 th May 2019 after a trial in the Crown Court at King’s Lynn. He was acquitted of a multiple incident count of rape against the same girl, alleging at least four further rapes (count 6). He was also acquitted of a single count of rape of another girl at the children’s home (count 4). The jury were unable to agree on verdicts in respect of other counts on the indictment alleging sexual assaults at the children’s home against three boys. There is to be a retrial on those counts. The appellant has not been sentenced, pending the outcome of the retrial. 2. Although all the complainants are now mature adults in their fifties this is a case to which the anonymity provisions of the Sexual Offences (Amendment) Act 1992 apply. There must be no reporting of the case which is likely to identify the complainants. We shall refer to them by initials only. 3. The appellant is now 80 years of age. As is often the case with historic allegations of sexual abuse in residential establishments, one of the difficulties faced by the appellant and those representing him was the lack of contemporaneous documentation which might shed light on relevant issues. This appeal is principally concerned with the adequacy of the process of disclosure of unused material and the impact of that on the fairness of the trial and the safety of the conviction. It is part of the background to the case, as the jury heard in evidence, that the appellant had previously been convicted in 1995 of sexual offences against five other girls at the same children’s home in the period 1977 to 1981, in respect of which he still protests his innocence. The appellant had served a sentence of 14 years’ imprisonment for those offences. 4. Ms Tania Griffiths QC has represented the appellant throughout. She submitted to the trial judge, His Honour Judge Shaw, that a fair trial was not possible and would amount to an abuse of process. She applied for a stay of the indictment. Mr Edward Renvoize, who has appeared throughout for the Crown, opposed that application. The judge deferred his ruling until the close of the prosecution case. Following full legal argument he refused the stay and the trial proceeded. He was satisfied that any prejudice arising from the delay and from the consequent absence of potentially relevant documentation could be cured by the trial process, including his directions to the jury in the summing up. 5. The principal ground of appeal is that the judge was wrong not to stay the indictment for abuse of process; it is said that the appellant could not have a fair trial in view of the fundamentally flawed disclosure process and the nature and extent of the missing documentation caused by the long delay. A further new ground of appeal was argued, by leave and without objection from the Crown: that the judge’s directions to the jury in the summing up in relation to delay and missing documentation were inadequate, rendering the conviction unsafe. 6. We heard the appeal on 5 th August 2020 and reserved judgment. There was a great deal of material to be considered. Ms Griffiths’ written submissions alone ran to 160 pages. We are grateful to both counsel for their very full and helpful submissions, written and oral. JE’s allegations 7. JE was born on 17 th March 1967. She had a very troubled childhood. She was taken into care and adopted as a baby. She ran away from her adoptive home in London, as a teenager, took an overdose and was made a ward of court. She was placed at Woodlands Children’s Home in Norwich, where the appellant was the officer in charge. Her recollection was that she went to Woodlands at the age of 14, but documentation which came to light during the trial established that in fact she went there in September 1982, when she was 15½ years old. The extent to which her stay at Woodlands overlapped with the appellant’s time there was an important issue for the jury in evaluating her allegations of rape, and this became the principal focus of the appeal. It was an agreed fact by the end of the trial that the appellant had started a new job elsewhere no later than 1 st May 1983. It was also an agreed fact, based on documentation which came to light during the trial, that JE had left Woodlands by 1 st August 1983. On the face of it, therefore, they overlapped at Woodlands for a maximum of some 7 months, from September 1982 to April 1983. 8. The appellant contacted the police on 19 th September 2014 alleging she had been raped by the appellant during her time at Woodlands. This was soon after she had coincidentally met another former resident of Woodlands at the time, Matthew Steele, who had come to clean her carpets. He told her about the investigation into the appellant’s sexual abuse of children at Woodlands. Matthew Steele was not himself a complainant. 9. JE was formally interviewed by the police on 1 st October 2014. Her achieving best evidence (ABE) interview lasted an hour. She was by then 47 years old. She had trained as a nurse and had worked as a nurse for a while. She had brought up two sons and was a grandmother. She had suffered from serious mental health problems throughout her adult life and had received extensive treatment of various kinds. The detail of her evidence in the ABE interview is important, and in particular what she said about dates and the timing of the incidents of sexual abuse she described. 10. In the ABE interview she told the police that she went into Woodlands when she was 14 and came out at 16, when she went to a half-way house. She said that when she first met the appellant he made her “feel uncomfortable straightaway, he was quite letchy and not very nice”. Everything was fine for a while, for a couple of months, “… I can’t be dead on this time, you know”. She remembered the first time really clearly, “… because everyone had gone home. I think it was an Easter weekend and nearly everyone had gone home for the holiday… there was only three of us left in the home.” She said she thought the first incident was on Easter Sunday. The appellant only seemed to be on overnight duty on Saturdays and Sundays and was always on duty with a man called Jim, whose surname she could not recall, who was “really old school… quite old as well.” 11. JE said that on this first occasion she had come out of the bathroom wrapped only in a towel and was making her way back to her room when the appellant came upstairs and pulled the towel off her, leaving her naked. She picked up the towel and went into her room. He came into her room and started rubbing himself. He shut the door. She was scared. Nothing else happened but he came back about an hour later and told her there was no point in saying anything: “You’re a glue sniffer. You’re all glue sniffers so no-one’s going to believe you.” She said she “would’ve been definitely 14” when this happened. She said this was Easter and she had gone into Woodlands either just before Christmas or just before her birthday (17 th March). She enlarged on the detail of this first incident. When he followed her into her room he was “letching round my neck and then … he’s started rubbing his thing… and then he sort of went and touched my face… as if to get me to look into his eyes… and then he just got up and went.” She said there was no lock on her door. There was never a female member of staff on duty at weekends; the appellant would be on overnight weekend duty every two or three weeks. 12. JE said that after this first occasion there were other incidents “quite regularly” when most children had gone home for the weekend, and there would only be three or four children in residence. She said that the appellant started coming into her room every three or four weeks when she was in bed. He would take his penis out and put his hand under the bed clothes, fondling her. He would put his face close to her, trying to kiss her. She would pretend to be asleep. He would say “I know you’re not asleep”. She described the first time he raped her. She was lying in bed facing the wall pretending to be asleep. He turned her over. He entered her with his penis and ejaculated. She was a virgin. She remembered that he was wearing “cords” (corduroy trousers), she always remembered cords. He kept his trousers on and just pulled them down. JE said that the first couple of times he raped her in this way, the next morning (which would be Monday, and a school day) she would make an excuse to stay in bed, pretending to be ill. She was bleeding. She didn’t really have any good friends at the time. Later in the ABE interview when asked about his ejaculating on the first occasion she was raped, she said when she went to the toilet it “all come out” and although she wasn’t on a period “I was spotting as well.” She said the appellant was “quite heavy” and “got…quite…frantic as he was ejaculating.” 13. She said that this first rape happened about three or four weeks after the initial incident when he pulled her towel off; it was the next time he was on night duty. After that it happened more times – “not even monthly…it certainly got to a point where… I just used to detach myself really…”. She was asked by the interviewing officer how many times she thought the appellant had raped her in this way, vaginally: “Are we talking double figures?” JE replied: “I’d say about 10, 12 times ...over the two years” she was at Woodlands. 14. We pause to explain that the first incident of rape she described was charged in count 5, which was expressed to be a “specific incident reflecting the first time the defendant raped JE”. This was the count on which the appellant was convicted by the jury. Count 6 (as originally pleaded) alleged rapes on “not less than 9 occasions other than in count 5”, and was expressed to be a “multiple incident count to reflect the number of times JE states she was raped by the defendant”. At the close of the prosecution case, count 6 was amended (without objection) to allege “not less than 4 other occasions” (rather than 9) in view of the evidence JE had given at trial. It was on Count 6 that the appellant was acquitted by the jury. We also observe that the bracket of dates in count 5 and count 6 was amended at the close of the prosecution case (without objection). As originally charged, the bracket was 1 st January 1981 to 17 th March 1983, the former being the year in which JE reached her 14 th birthday, the latter being the date of her 16 th birthday. The amended counts alleged the bracket 1 st January 1982 to 31 st December 1983, the former being the year in which JE arrived at Woodlands, the latter being the end of the year in which both she and the appellant left Woodlands. 15. In the ABE interview JE also described other sexual behaviour by the appellant. He would get her to rub the outside of his trousers when she was alone with him. When he sat on her bed and took out his penis he would rub it and “kind of admire it… like he was..., I don’t know, proud…”. He didn’t get her to do anything else to his penis. She was asked if the appellant did anything else to her. Other than raping her, she said he did not touch her anywhere else on her body, but he used to “force my legs open and… used to ejaculate over me as well sometimes”. He never entered her in any other part of her body, but sometimes he didn’t penetrate her properly and she didn’t know whether his penis had slipped but it “really hurt”. She didn’t even know about anal sex at the time. As for contraception, she said that when she went to Woodlands, like the other girls there she was put on the pill automatically at the age of 15. 16. She said that the very first person she ever told about this sexual abuse by the appellant was the father of her youngest child, her ex-partner, JC. She estimated that this would have been about 12 years earlier. Asked whether she had told anyone at Woodlands at the time it was happening, she said that when she moved to College Road (the half-way house) she had told a girl called Lea (she thought her name was Lea Duval) who was older than her, who said she had gone through the same thing and been physically abused and raped by the appellant. JE said there had been one occasion when another member of staff, called Mike, had caught the appellant coming out of her bedroom, doing his belt up. There had been some sort of conversation between the two men. She thought Mike had asked the appellant whether she was all right, and the appellant had replied she was fine. At the end of the ABE interview JE said she felt bad “…because I kind of just… grew accustomed to it, that’s completely the wrong way, I just, I kind of just cut it off, like,… and I got chucked out of school and it all spiralled.” She said the appellant was “so big and overbearing… when you’re in that situation and you’re in care… the things he used to say that he could do, what he would do… I used to get written up for things that I didn’t do.” 17. There was some support for JE’s account from her former partner, JC, who gave evidence at the trial. He confirmed that he had met JE more than 20 years earlier. JE told him she had been in care. She said she was raped by a man who ran the care home, while her head was being held underneath a pillow. That was the only detail she gave him. He understood her to mean that it had happened only on one occasion. We observe that this may provide part of the explanation for the acquittal on count 6, if the jury could not be sure it happened more than once. 18. The police traced Lea Duval. She made a witness statement in 2016. She gave evidence at the trial. She confirmed that she had been at Woodlands for a few months when she was 13 and again when she was 16. She did recall a friend whose first name was an abbreviation of the “J” of “JE”, but she could not say for sure whether it was this JE. She wasn’t aware of anyone else at Woodlands called Lea. She had no recollection of being with JE at College Road, the half-way house. Lea Duval said she had never been raped by the appellant and had never told anyone she had been raped by him. 19. The “Mike” referred to by JE in her ABE interview was never reliably identified. There was a staff member called Mike Bridgeman, who had died in 2018. There was another staff member called Mike Shearing who was apparently not traced. 20. The jury heard evidence from Helen Hall, who had worked at Woodlands for about 18 months leaving in July 1980 (well before JE’s arrival). She had made a witness statement in 1993 and (we infer) gave evidence at the previous trial in 1995. She recalled that one night, when she was sleeping over at Woodlands, she was woken by the sound of the fire door opening which led into the girls’ living area. She got dressed quickly, went to investigate and found the appellant in the girls’ living area. He said he had heard a noise. She found that explanation for his presence there strange and concerning. He was wearing a black tracksuit with a white stripe down the leg, and but for the white stripe she might not have seen him. She agreed in cross- examination that checking noises was part of the appellant’s job. The other complainants in the trial 21. In order to understand the issues in the appeal it is necessary to refer briefly to the allegations by the other complainants in the trial. There were four other complainants: three males and one female. 22. WM, a boy born in April 1968, went to Woodlands in 1981, aged 13, following the commission of criminal offences. He alleged that the appellant had raped him anally on a number of occasions. The offence would then have been classed as buggery. The abuse ended in 1983 when WM tried to stab the appellant with a pair of scissors. WM has subsequently spent several periods in custody over many years. In 2011 he responded to an advertisement he saw in a prison newspaper suggesting that compensation might be available for people subjected to abuse. WM was seen by the police in April 2013. Count 7 charged the appellant with the first incident of buggery. Count 8 was a multiple incident count alleging at least 6 other offences of buggery. 23. DL, a boy born in February 1969, was at Woodlands between 1979 and 1983. He alleged that he had been forced by the appellant to give him oral sex. He also alleged that he and other boys at the home had been subjected to sexual abuse by a number of individuals in a motorcycle club, although this formed no part of the indictment and was background only. DL was seen by the police in May 2013. Count 1 charged the appellant with a single offence of indecent assault on DL by forced oral sex. 24. SB, a girl born in September 1968, went to Woodlands in 1979, aged 11. She stayed there for two years. She had first complained to the police and made a witness statement as long ago as October 1995, at the time of the appellant’s previous trial. She alleged that after a review meeting at Woodlands when she was aged 11, the appellant called her into his office, invited her to sit on his knee and touched her vagina. She stayed out of his way after that, making sure she was never alone with him. She made a further witness statement to the police in March 2016. Count 4 charged the appellant with a single offence of indecent assault on a girl under 13, by touching her vagina. The jury acquitted on count 4. 25. JM, a boy born in May 1967, spent a few months at Woodlands during 1978 and again in 1979 for a longer period. He alleged that when he was 12 or 13 the appellant started touching him in a way which progressed to mutual masturbation. It would end with the appellant ejaculating. JM did not even view this as sexual abuse at the time. Many years later JM met WM in prison and they talked about their experience of the appellant at Woodlands. JM was seen by the police in April 2017. Count 2 charged the appellant with the first incident of gross indecency with a child, by mutual masturbation. Count 3 was a multiple incident count alleging at least five other such incidents of gross indecency with a child. 26. We observe that although there was undoubtedly evidence of contact between the three male complainants discussing their respective allegations, there was no suggestion of any such contact between JE and any of the other four complainants in the trial. The disclosure history and the course of the trial 27. The appeal centres on the adequacy and fairness of the disclosure process and its impact on the fairness of the trial. It is therefore necessary to consider the disclosure history and the course of the trial in some detail. Ms Griffiths submits that the whole disclosure process was fundamentally flawed, not least because the disclosure officer did not understand and/or neglected her duties, and the civilian disclosure officer who was later recruited to assist her was untrained and incompetent. Mr Renvoize, for the Crown, accepts there were serious shortcomings in the disclosure process but submits that the errors had been identified and remedied by the conclusion of the evidence, and consequently there was in the end no unfairness and there is no reason to doubt the safety of the conviction. Initial disclosure is made 28. The initial schedule of unused material (MG6C) was served on 12 th August 2018. It was prepared by the disclosure officer, Detective Sergeant Alex Logue. It listed only 30 items, only seven of which related to the complaint by JE. The defence statement is served 29. The appellant’s solicitors served a very detailed defence statement, dated 3 rd October 2018. It complained about the paucity of the disclosure to date and identified, in respect of each complainant, further material which ought to be disclosed. Specifically in relation to JE, it called for disclosure of all her medical and social services records including medical and psychological assessments, staff rotas at Woodlands, and all records of any prior allegations by JE of physical or sexual abuse, made either to the police or to medical/welfare authorities. In relation to the issue of possible motive to make false allegations, the defence statement requested disclosure of any criminal injuries compensation claims by the complainants and any evidence of debts. 30. The defence statement included the question: “What items are recorded on the sensitive schedule? Do these include social care files and medical notes (noted as ‘hefty’ in the case of [JE]). The defence require disclosure of all relevant items on the sensitive schedule.” An expanded schedule MG6C is served 31. On 18 th October 2018 an expanded version of the same schedule of unused material was served, now listing 51 items in total. Most of the additions consisted of PNC records of the previous convictions of witnesses. The schedule did not address the disclosure requests made in the defence statement. The prosecution serve the Disclosure Management Document 32. Those requests were, however, addressed in the prosecution’s Disclosure Management Document (“DMD”) and lengthy accompanying letter dated 4 th December 2018. By now a deputy disclosure officer, Susan Vinson, had been appointed to assist DS Logue. The DMD explained that the local authority responsible for Woodlands had been unable to locate any further documentation, which was assumed to have been destroyed, apparently even before the previous investigation in the 1990s which had resulted in the appellant’s earlier trial and conviction. Nor had it been possible to locate the paper file comprising JE’s children’s services records. It was said that there were no other recorded sexual allegations by JE. The DMD contained a mental health summary for JE, limited to only three entries. It disclosed that JE had received rape counselling in the past. 33. It seems that there was an abortive mention hearing on 7 th December 2018 to raise the issue of disclosure, but the hearing was ineffective because Ms Griffiths’ video link from Liverpool failed. The defence serve the Disclosure Request Schedule 34. In response to the DMD, the appellant’s solicitors served a very lengthy Disclosure Request Schedule on 7 th January 2019, drafted by Ms Griffiths. It ran to 60 pages. It set out the gaps in disclosure and the documentation still required (78 areas in total) with a final column for the prosecution to complete. By way of example, the schedule requested disclosure of the complete social care files of the complainants, details of their debts, details of any prior allegations of physical or sexual abuse, JE’s mental health records and her therapy/counselling records. 35. Of particular relevance, the material which had already been disclosed referred to an allegation by JE of sexual assault, noted by a psychiatrist (Dr Schneider) on 23 rd December 2010, that she had been raped at the age of 15. The disclosure request schedule (items 64 and 67) asked for further details of this allegation. The prosecution’s reply was to the effect that this must be a reference to the allegation of rape by the appellant in 1982, when she would have been 15 and that she had not made any other complaint of rape to the police. This turned out to be an inaccurate assertion, because it later emerged that there had been another incident of sexual assault, other than at Woodlands, the circumstances of which JE described in her evidence at trial. The abuse of process application is lodged 36. In view of the alleged prejudice and unfairness arising from the long delay since these alleged offences, and the lack of disclosure, Ms Griffiths drafted an abuse of process application dated 15 th January 2019 uploaded to DCS on 4 th February 2019. The prosecution response was served on 18 th March 2019. On 5 th March 2019 the prosecution had served their responses to the disclosure request schedule. The abuse of process application is part heard 37. The trial was due to start on 24 th April 2019. On 21 st March 2019 the abuse of process application was listed before the trial judge, Judge Shaw. There was insufficient time for the application to be fully argued that day. It was agreed that Ms Griffiths would provide any further submissions in writing, which she did on 3 rd April 2019. The nub of the complaint, so far as JE’s allegations were concerned, was that there had been no disclosure of documentation relating to her time in care and no records such as staff rotas for Woodlands. It was impossible to say with confidence precisely when she had been at Woodlands. There had been inadequate disclosure in relation to her mental health issues, only partially remedied by the further disclosure in response to the Disclosure Request Schedule. There had been no disclosure of counselling records. More generally, all records relating to Woodlands had apparently been destroyed. The absence of such material was all the more prejudicial as the jury would hear about the appellant’s previous trial and conviction for similar offences and that would be the prism through which the jury would view the present case. 38. The prosecution’s written response to the abuse application, dated 19 th March 2019, asserted that the defence did not suggest there was any key material either missing or destroyed which would advance their case. The delay in reporting the abuse could be explored fully with each complainant and went to their credibility and reliability. The appellant undoubtedly had significant opportunity to commit the abuse alleged. The issue was whether he did so. There were no missing pieces of evidence which were capable of bearing upon the central issues in the case. The trial commences 39. That was how matters stood when the trial commenced on 24 th April 2019. The judge indicated that he had considered the oral and written submissions, and that if pressed to rule in advance of any evidence being called his ruling would be that Ms Griffiths had not established that this was one of those rare and exceptional cases where a stay was justified. However, as the appellant’s main complaint was the prejudice caused by the loss or non-disclosure of potentially relevant material, the judge expressed the view that he could not properly assess the impact of the absence of that material until the close of the prosecution case. He would therefore revisit the matter at that stage and consider any further submissions. Ms Griffiths agreed that this was the appropriate course. 40. The trial proceeded. After the prosecution opened the case, Ms Griffiths was permitted to address the jury in opening as well. We have the draft of what she proposed to say. We have no doubt that she made her points clearly and forcefully, alerting the jury very properly to the danger of jumping to the conclusion that because the appellant had been convicted of similar offences previously, he must be guilty of these offences too. Specifically in relation to JE, Ms Griffiths alluded to the absence of documentation to test her evidence and alluded to her serious mental health issues. She alerted the jury more generally to the issues relating to disclosure and the absence of relevant documentation. 41. Despite the deficiencies in disclosure, Ms Griffiths had a substantial quantity of material with which to cross-examine the complainants. Ms Griffiths has helpfully provided us with a bundle of the relevant documentation in relation to JE disclosed before trial (Bundle A) which runs to 53 pages. In respect of each complainant the defence had prepared a bundle of documents for the witness to refer to when crossexamined. The jury did not have these bundles but later, as part of the defence case, the jury were supplied with a defence jury bundle containing relevant key documents. JE is called to give evidence 42. JE was the second complainant to give evidence. She was called on Monday 29 th April. We have a full transcript of her evidence, which was completed that day. Her ABE interview was played to the jury. She was skilfully cross-examined by Ms Griffiths, who was able to contradict parts of her evidence from the disclosed material. For example, although JE suggested that it was the police who had first contacted her, the record showed that it was JE who had phoned the police on 19 th September 2014. Importantly, Ms Griffiths was able to establish that, contrary to JE’s account in her ABE interview, she was not 14 when she went to Woodlands, but 15½, arriving there on 22 nd September 1982. Ms Griffiths was able to demonstrate that JE had a history of stealing and telling lies before she went to Woodlands, that she had long-standing mental health problems, and had abused drugs and alcohol. She elicited that JE had been in many therapy groups and had undergone counselling. She had recently had five courses of electric shock therapy (ECT). She had undergone hypnotherapy, cognitive behavioural therapy (CBT), and psychotherapy. Ms Griffiths probed the reliability of JE’s memory by reference to the medical records which spoke of her periods of forgetfulness. Ms Griffiths probed JE’s account of being put on the pill by reference to a medical record dated 27 th July 1982, before she went to Woodlands. JE insisted that this was not because she was already sexually active but because of menstrual problems. 43. In relation to JE’s account of weekends at Woodlands, when the sexual abuse was alleged to have occurred, Ms Griffiths suggested there were never as few as only three or four children left in residence. JE disagreed. We observe that the jury were eventually provided with information in the agreed facts about the number of children present at weekends which contradicted JE’s evidence, albeit based on records subsequently discovered by the local authority (supplied on 30 th April 2019) which were only for 1980 and 1981, long before JE’s period at Woodlands. Ms Griffiths established that JE was alleging that when the appellant abused her, the other member of staff on duty with him was “Jim”, and that there were no female members of staff on duty at weekends. We observe that there were no records available to confirm or contradict this evidence of JE. 44. Turning to JE’s account of the first incident when the appellant removed her towel, and the important issue of the timing of that incident, Ms Griffiths reminded JE that she had said she thought it was the Easter weekend, and in fact Easter Sunday. JE replied: “I can’t say exactly the date, but yes.” Pressed on this, and the fact that by Easter 1983 JE would not have been 14 but would already have had her 16 th birthday, JE replied: “I said I think it was Easter.” Ms Griffiths suggested that the appellant had started his new job elsewhere on 1st May 1983, and would have had holidays to take before he started, “… so April 1983 is actually the time Mr Hewitt left?” JE replied: “I disagree with that completely”. Ms Griffiths challenged JE’s account altogether, suggesting the rapes had never happened. JE was adamant they had. 45. Later in her cross-examination, Ms Griffiths queried why JE had not mentioned at the outset of the ABE interview that the appellant had gone on to rape her multiple times. Ms Griffiths suggested that JE had said this only in response to prompting by the interviewing officer. JE replied that it came out of the blue when the police came to see her; telling things in great detail to a police officer was difficult; even though she had not forgotten, there were going to be mistakes and she might have said things that weren’t right. She was reminded that she had said in the ABE interview that there were about 10 to 12 rapes in total. JE replied: “I didn’t say they were rapes every time.” The judge intervened to press JE for an answer to Ms Griffiths as to why she had not said at the outset of the ABE interview that the appellant had raped her all these times. She replied that the policeman had just turned up; she was unsure about the situation; it was difficult talking to a male police officer when she had “sort of put it away for so long, I’d never really told anyone.” Ms Griffiths pressed JE on the detail of the rapes. JE said she had never reported the bleeding to anybody, even though the other staff were nice and some were women, and she had her own key worker. JE said that the figure of 10 to 12 times “might be slightly over”. On reflection she thought the minimum was probably about 7 or 8 times adding, “you should just get the file when he was working, and then you’d know”. 46. Significantly, Ms Griffiths asked JE about her description of the clothes the appellant would wear on these occasions. JE said she remembered very clearly that he was wearing cords, so much so that “…I haven’t been able to go anywhere near cord since. I remember the smell, I remember the colours… mustard and, like forest green, and grey.” Ms Griffiths immediately challenged JE about this, suggesting that the appellant never wore cords. A few minutes later, however, after a break in which she presumably took further instructions, Ms Griffiths corrected her earlier suggestion and now accepted that the appellant did have some cords in similar colours to those JE had described, but he did not wear them ordinarily to work. JE agreed that he did not wear them during the week, only at weekends. 47. In relation to the possibility of anal penetration, JE explained that she thought “he probably slipped” on one occasion. She didn’t know anything about anal sex at the time and couldn’t say whether he was trying to penetrate her anus deliberately. 48. In relation to the complaint she had made to her former partner, JC, and the circumstances in which he came to speak to the police, JE agreed that she had spoken to him before the police contacted him. She said she had spoken to his parents and had given them her phone number and asked them to get him to call her, which he did. She had asked him whether it would be all right for the police to talk to him. She had said to him that he was the first person she had told, and that was “a couple of years before the whole Jimmy Savile situation”, wanting to make the point that she had not jumped on any bandwagon. 49. In relation to Lea Duval, JE insisted that she had made a complaint to her when there were at the half-way house together, College Road, and Lee Duvall had told her that she had also been raped by the appellant. 50. In relation to Matthew Steele, JE said she had called him because she needed a carpet cleaner. She didn’t realise it was Matthew Steele from Woodlands. She hadn’t seen him for 35 or 40 years. He had asked whether anyone had been in touch with her about an investigation into the appellant, because someone had been in touch with him. It came completely out of the blue. She had not told Matthew Steele in any detail that she’d been abused by the appellant, but it was after this conversation that she had contacted the police. 51. Significantly, JE was asked whether she was going to make a compensation claim. She replied: “I didn’t, but the police put one through.” The police had done the paperwork for it on a laptop when she was sitting with them. This was on 8 th January 2019. At that stage Ms Griffiths was aware that a criminal injuries compensation claim form had been completed but she had not seen the document. 52. JE had to be recalled later in the trial, when further unused material had been disclosed. One of Ms Griffiths’ complaints is that this subsequent late disclosure prevented her from cross-examining JE to full effect in a single session and thereby put the defence at a distinct disadvantage. We shall return to this submission. First, however, it is necessary to explain how that further disclosure came about in order to assess its impact on the fairness of the trial. Late disclosure during the trial 53. In understanding the chronology of the trial we have been assisted by reference to the court log on the digital case system (DCS). We note that during the course of JE’s evidence on the afternoon of 29 th April the jury sent a note with the following question: “What date did Mr Hewitt’s employment end on at Woodlands, when did he leave his employment?” The log indicates that the note was read into the record and that the judge answered the jury’s question next day. We have no transcript of what the judge said (he would doubtless have discussed the matter with counsel first) but the jury’s question indicates that the issue of dates was very much in the jury’s mind from this early stage. The position was eventually clarified, to an extent at least, in the agreed facts. It was agreed that the appellant took up his new post in Gloucestershire on 1 st May 1983. The issue which was never resolved on the evidence, because of an absence of documentation, was whether he continued to work at Woodlands in April (i.e. after Easter) in the weeks leading up to starting his new job, there being a possibility that he may have had accrued holiday entitlement which enabled him to finish work at Woodlands sooner. 54. The relevance of this timing is that JE had given evidence that she thought the initial incident (with the towel) took place over Easter weekend (Easter Sunday was 3 rd April 1983), and that the first rape, charged in count 5, would have been 3 or 4 weeks after that. Ms Griffiths submits that on these timings the appellant may have had a complete alibi in that he may no longer even have been working at Woodlands when JE says he first raped her. She also submits that in view of the acquittal on count 6, the jury must have been satisfied that the later series of rapes she alleged cannot have taken place as she described, over a subsequent period of weeks or months, because the appellant had by then left Woodlands. 55. The prosecution case continued for the rest of the week and was nearing its conclusion the following Tuesday, 7 th May 2019, when the officer in the case (and disclosure officer) DS Alex Logue was called to give evidence. After evidence in chief, her cross-examination was postponed to the following day. It then emerged that there was a further and fuller version of the unused schedule (MG6C), undated and unsigned, which had never been reviewed by the CPS lawyer. The explanation provided by the Crown, in response to a wasted costs application, was that this schedule had been sent by the police to the CPS on 17 th April, but it had not been appreciated that it contained new material and expanded entries. Worse was to come. It was then discovered that a new schedule of sensitive unused material (MG6D), also sent to the CPS on 17 th April, had never been reviewed by the CPS lawyer at all. This schedule listed far more extensive medical records for the complainants, including JE. The two-day adjournment for prosecuting counsel to review disclosure 56. These developments were reported to the judge next morning, Thursday, 9th May. The defence team plainly needed time to consider the new material and the implications of its late disclosure. The jury were initially sent away until the afternoon, and then for the rest of the day. Prosecuting counsel, Mr Renvoize and his junior, Ms Ascherson, took control of the disclosure exercise and undertook to review all the material themselves. This necessitated a further adjournment. Next morning, Friday 10 th May, the jury were sent away until Monday 13 th May. 57. Following prosecuting counsel’s review of the unused material, a further expanded version of the unused material schedule (MG6C) was served, dated 12 th May. Among the documents reviewed by counsel was JE’s application for criminal injuries compensation, dated 8 th January 2019. The existence of this document, and a very brief summary of its content, had been included in the MG6C schedule forwarded by the police on 17 th April 2019: see item 64. The summary stated that in the application JE “… describes the sexual abuse suffered whilst at Woodlands between 1981 and 1983…”. What the summary failed to mention was that in the application JE described not only vaginal rape but also anal and oral rape. The final revised MG6C schedule included this detail, and prosecuting counsel ensured that Ms Griffiths had a full copy of the application. 58. In the final revised MG6C schedule the additions made by prosecuting counsel were highlighted, and the schedule now ran to 44 pages rather than 39 pages. In relation to JE, the other expansions in the final revised schedule related to her medical records from various sources: see items 74 to 78. Among the information now disclosed in those medical records was a reference in March 2014 to debts JE owed, including bills for previous respite care. This was potentially relevant to the issue of possible financial motive for making false allegations. 59. Ms Griffiths has helpfully provided us with a bundle containing the material relating specifically to JE which was disclosed to the defence during the course of the trial as a result of the further disclosure exercise (Bundle B) running to 88 pages. 60. The schedule, even in its final revised form after review by counsel, failed in its narrative to disclose one important documentary entry in a social work assessment dated 17 th April 2014 (item78) which was picked up only by Ms Griffiths herself when she was supplied with the actual document. The schedule stated, after a brief description, that the record in question contained “further details of being in care and systematically sexually abused”. This did not reveal that in fact the relevant entry recorded: “There is a report on file indicating that [JE] was raped at the age of 15. [JE] herself told us that her abuser had put £10 in her pocket and she had been blamed for this by her parents.” 61. Although not directly relevant to JE’s allegations, Ms Griffiths also emphasises that the two-day review of disclosure revealed that there had been glaring omissions in disclosure relating to the three male complainants as well. In relation to WM, it emerged that in order to advance his civil claim for damages against the local authority his solicitors had written to him (in letters that had not been disclosed) advising that he needed the support of other former residents. The involvement of the other two male complainants post-dated this advice, strengthening the inference of collusion. In relation to DL, it emerged that, contrary to his account that the appellant had broken his nose in the course of a violent sexual assault when he was aged 13, there was a medical record (not previously disclosed) of DL reporting a history of having first broken his nose aged 17. In relation to JM, it emerged that, contrary to his insistence in cross-examination that his complaint was not motivated by money, he had told others (recorded in documents not previously disclosed) that he was waiting for a “pay out” and was looking to purchase a plot of land with his anticipated award of compensation. The trial resumes 62. When the trial resumed on Monday 13 th May, prosecuting counsel gave an assurance that there had now been full disclosure. Ms Griffiths indicated that there would be a wasted costs application against the Crown as a result of the loss of two days’ court time, the appellant being a privately paying client. She also indicated that it would be necessary to recall four of the complainants in order to cross-examine them further in the light of the new disclosure. 63. DS Alex Logue was cross-examined closely about the disclosure failures. She agreed that the reference to vaginal, anal and oral rape in the criminal injuries application form should have been flagged up for the defence in the original schedule. The deputy disclosure officer, Susan Vinson had failed to do so. DS Logue denied the suggestion by Ms Griffiths that her approach to disclosure had been very casual. The deputy disclosure officer, Susan Vinson, was also called and crossexamined, as was the original supervising officer, Detective Sergeant Alison McCulloch. 64. A witness from Norfolk County Council, Philip Watson, Deputy Director of Children’s Services, gave evidence about the loss of records from Woodlands. He had not made a witness statement, but under threat of a witness summons for third party disclosure he had set out the position in writing. In short, his evidence was that he had been assured by his staff that every effort had been made to find the files requested. There had been extensive searches on two occasions of 16 separate premises across the county. Some items had recently been found in unmarked cardboard boxes in the basement of County Hall. It was a real challenge to monitor and track old files. He knew there had been fires and floods at premises belonging to the County Council. He could not say what if anything had been lost from the records, or when. JE is recalled 65. JE was the last of the complainants to be recalled. She gave evidence again on Thursday 16 th May, as the last witness before the close of the prosecution case. Ms Griffiths explained to us the forensic challenge she faced in cross-examining JE for a second time, and in particular the risk of losing the jury’s sympathy by extended cross-examination on the newly disclosed documents. When JE appeared in the witness box one or both of her arms were bandaged, which Ms Griffiths suggests may have led the jury to think she had been self-harming again and added to counsel’s problems in cross-examining her robustly. 66. We have a full transcript of JE’s further evidence. Ms Griffiths first asked her about the reference in a social work assessment to her being raped at the age of 15 when her abuser put £10 in her pocket, for which she had been blamed by her parents. This was one of the records in the new disclosure. JE agreed that this was a reference to sexual abuse by someone else, not the appellant. It was not the incident she had mentioned to JC. She denied that it was possible she was confusing this incident with what she said the appellant had done to her. She said that this incident was not in fact a full rape, but an indecent assault. One Christmas she and a school friend had gone to clean a man’s flat. He had indecently assaulted her (a vibrator was involved) and put £10 in her pocket for the cleaning. When her foster mother found the £10 in her pocket she got into trouble because it was thought she had stolen the money. JE went on to give more detail of the incident. 67. Ms Griffiths asked JE about an entry in her medical records (17 th March 2014) to the effect that JE found the festive period and Easter very difficult as she recalled abuse from her adoptive parents at those times of year. This was based on the previously undisclosed material. JE agreed that she hated bank holidays and Christmas: “… they’re family days and it just takes me back… that was why…”. She said she had never been subjected to any kind of sexual abuse by her adoptive parents and had no idea where that came from. Ms Griffiths put it directly to JE that the reason she was saying that Easter 1983 was the time the appellant had abused her was because Easter was very difficult for her recalling abuse from her adoptive parents at that time. JE again denied that her adoptive parents had ever abused her sexually. 68. Ms Griffiths asked JE about the criminal injuries application form. It was pointed out that on the bottom of the form she had signed a declaration that she had read and agreed with its contents. She denied that she had actually signed the form; it was still on her phone. She agreed that the form said that the abuse was between 1 st January 1981 and 17 th March 1983 (the bracket of dates in counts 5 and 6, before amendment). It was pointed out that she had said in the form: “…he would vaginally, anally and orally rape me. It was weekends and bank holidays…” She agreed that she had told the police this when the form was being completed. The judge intervened specifically to clarify that point. Ms Griffiths asked why she had said in the form that she had been orally raped, something she had not mentioned to the jury. JE replied: “You didn’t ask me”. Ms Griffiths pointed out that she hadn’t mentioned oral rape in her ABE interview either. JE replied: “Yes, I did.” 69. Ms Griffiths asked JE about a note of her call to the police on 19 th September 2014 in which he had suggested that the appellant had raped her on average once a week for two years. Ms Griffiths suggested JE was aware that the more abuse she alleged the more money she would receive. JE insisted that money was totally irrelevant. Ms Griffiths put to her the reference in the newly disclosed material that on 17 th March 2014 she was having problems with debt. JE agreed that she had incurred charges for two periods of respite accommodation totalling £8,000 which she was still paying off at £20 a week. She thought she still owed £7,000. She denied the suggestion that she had been “pretty desperate for money” in early 2014. 70. Ms Griffiths asked JE about an entry in her medical records from February 2011 which said her memory was not good and she could not remember whether previous ECT (electro-convulsive therapy) impaired her memory. JE replied: “Well that’s quite standard, isn’t it, really?” She denied that she had a drink problem or drug problem although she had used drugs in the past. 71. In re-examination JE said that she wanted to make the point to the jury, to be fair, that she was the head of her little family: “I’ve done it myself, they’re brilliant kids. I’ve got brilliant, gorgeous grandchildren.” The judge rules on the abuse of process application 72. As agreed at the start of the trial, the judge heard further submissions on the abuse of process application at the end of the prosecution case. In fact, by agreement and presumably for reasons of convenience and witness availability, the judge heard those submissions on Wednesday 15 th May, the day before JE was recalled. We note from the court log that Ms Griffiths indicated her agreement to the abuse of process application being dealt with then, but she emphasised that it remained a live issue throughout the trial and there might be further evidence later which added to the argument. Ms Griffiths’ oral submissions lasted 40 minutes. The prosecution’s reply lasted 18 minutes. We do not have transcripts of the oral submissions, but we are not disadvantaged in view of the thoroughness of the written and oral arguments we have in the appeal. Submissions concluded shortly before the luncheon adjournment. The judge gave his ruling later that afternoon. Helpfully, the judge set out his ruling in writing, in a document running to 16 pages. It is convenient to summarise the ruling at this stage, although we shall return to it again later. 73. In his ruling the judge first set out the general background of the case and the history of the proceedings. He summarised the relevant law and the test to be applied in deciding whether to grant a stay of proceedings. No issue is taken with that analysis. He referred to the relevant authorities, to which we shall return. 74. The judge recorded that in her oral submissions Ms Griffiths relied not only on prejudice arising from delay and from lost and/or non-disclosed evidence which made a fair trial impossible, but also invited the judge to stay the proceedings to protect the integrity of the criminal justice system. The judge identified the broad categories or topics of information and evidence said to be lost or undisclosed in relation to the complainants as a whole. We need enumerate only those relating specifically to JE: (i) contemporaneous information from her social services records (ii) information concerning any counselling or therapeutic treatment she might have had (iii) information from other third parties, including medical records. 75. The judge set out the disclosure history in detail and identified the material which had eventually been made available and deployed. He described the “root and branch” attack Ms Griffiths had made on the integrity of the disclosure process, and her questioning of the competence and good faith of DS Alex Logue. He acknowledged that DS Logue’s conduct of the investigation of the disclosure process had not by any means been perfect, but he rejected the proposition that she had acted in bad faith or had demonstrated a lack of integrity. 76. The judge emphasised that he had observed how each of the five complainants and other prosecution witnesses had been cross-examined by Ms Griffiths “with measured and focused reference” to the unused material in each of the individual bundles prepared for their cross-examination. The challenges to their evidence had been “both robust and thorough”. Ms Griffiths had “left no stone unturned”. The judge noted that until Tuesday 14 th May he had not been asked to rule on any defence application pursuant to s.8 of the Criminal Procedure and Investigations Act 1996, nor had there been any request for the issue of a witness summons against any third-party requiring the production of records in their possession. Ultimately, however, Mr Watson from Norfolk County Council had given evidence. Prosecuting counsel had undertaken a thorough review of disclosure. It would be open to Ms Griffiths to make “appropriate and measured submissions” to the jury concerning the failure by the police to obtain the more recent medical records sooner. The judge said that he was satisfied so as to be sure that the Crown had now disclosed to the defence everything in their possession that met the test for disclosure. 77. The judge said that although Ms Griffiths had articulated, in terms of categories, the sort of material she might have wished to be disclosed, in his judgment she had failed to do more than speculate about what that material might have shown. For example, there was no evidential foundation to enable him to conclude that any complainant had ever engaged in any meaningful counselling or therapy, let alone to conclude that there might somewhere be disclosable records that had not been found. The judge said that Ms Griffiths had been unable “to identify a single document that has actually been lost, a single missing witness who could have given material evidence, or a single document in the possession of the Crown that should been disclosed to her that has not been.” She had identified much that she might have liked to see, but those submissions were akin to “keys to the warehouse” submissions. The judge said that although the proposed agreed facts were still to be finalised, he was confident from what counsel had told him that the Crown would make appropriate admissions. 78. The judge concluded that the defence had failed to satisfy him on the balance of probabilities that this was one of those rare and exceptional cases where the proceeding should be stayed because no fair trial was possible or to protect the integrity of the criminal justice system. The judge said that, on the contrary, in his judgment he had been presiding over a trial that had been scrupulously fair to both sides. Ms Griffiths had been afforded considerable leeway in her cross-examination of the witnesses, and in other respects. No restrictions had been placed on her crossexamination when perhaps they might have been. The judge elaborated on these observations with examples. He recorded that Ms Griffiths had submitted to him that she had made the tactical decision not to cross-examine complainants about material that she would have asked about had it been available to her from the outset, for fear of incurring tacit rebuke from the jury. (We observe that, despite this indication, Ms Griffiths did in fact cross-examine JE the following day on the newly disclosed material, as already outlined). The judge said that he agreed with the Crown’s submission that the new material which had been disclosed could fairly be described as “more of the same”, and nothing that was disclosed late gave rise to any new cross-examination of any real substance. Again, we observe that the judge was giving this ruling before JE had been recalled, and in the expectation that she would not be recalled. The judge said that the matters he described were “…all examples of how our criminal trial process has yet again demonstrated itself capable of coping with non-recent allegations and adapting to ensure fairness to both sides, and I am satisfied so that I am sure that this trial has been fair to both sides.” 79. The judge said that the allegations in the present case were typical of cases of this kind, where the alleged abuse was not witnessed by any third party. The judge said there was now ample evidence at least that the defendant had the opportunity to commit the offences: “…in truth, records from Woodlands are very unlikely to have assisted at all.” The judge described the “quest for forensic perfection” as admirable, but one rarely achieved. He was sure that a fair trial was possible and was well underway. It would be for the jury in due course to decide whether the prosecution had proved its case or not. In reaching those conclusions the jury would be able to take account of Ms Griffiths’ extensive cross-examination of the complainants and other witnesses, any defence evidence she called, and any submissions she made in her closing speech. It would be for the jury to assess what they made of her several complaints about the police investigation and the disclosure process and how, if at all, those complaints influenced their deliberations and conclusions about the case. We shall return to Ms Griffiths’ criticisms of the judge’s ruling. 80. We need summarise the remaining chronology of the trial only very briefly, before turning to the final chapter of the disclosure history, which post-dated the trial. Counts 5 and 6 are amended 81. Counts 5 and 6 of the indictment were amended, without objection, to take account of the evidence of JE’s age when she arrived at Woodlands, as already explained. The Crown closed their case on Thursday 16 th May after JE had been recalled and after the amendments to the indictment had been explained to the jury. There was no half-time submission in relation to any of the counts on the indictment that there was no case to answer, even count 6 (the multiple incident count of rapes of JE). The appellant gives evidence 82. The appellant was then called to give evidence. The jury were supplied with a defence bundle of documents. The appellant’s evidence-in-chief occupied the rest of the day and went into the following morning, Friday 17 th May. He denied all the allegations. He gave a detailed account of his background and work history. He explained that in 1983 his father-in-law became ill and he and his wife decided they should try to move closer to her parents in Somerset. He applied for a job in Gloucestershire. He produced for the jury a letter dated 23 rd March 1983 appointing him to the new role, to commence on 1 st May 1983. He said he would have been expected to give one month’s notice to Norfolk County Council but he did not recall if he worked out his notice as he could not remember whether he might have had holiday entitlement. It was quite likely he had some days left to take and he would have used up any holiday allowance he had left. He therefore did not know the date of his last working day at Woodlands, but that information would have been available in the records held at the time. 83. He described the documentation which would have existed at Woodlands in respect of each child. In relation to JE, the appellant said that he did not generally work on Saturday nights but mostly because there weren’t as many children. Surviving registers from 1980 and 1981 showed that on one Saturday in September 1980 there were 6 out of 15 children present at Woodlands; on a Saturday in October 1980, 8 out of 19 children were present. The appellant confirmed that the children who were able to go home to their parents at weekends did so. All this information was subsequently provided to the jury in the agreed facts. It came from the records discovered by the local authority during the trial. 84. The appellant was cross-examined for almost a full day. The allegations of each of the complainants were explored. In relation to JE, one of the matters put to the appellant was the similarity between JE’s evidence of threats he made to silence her and the evidence of one of the girls he had been convicted of sexually abusing in the previous trial, to the effect that the appellant had threatened to send each girl somewhere and there was no point in complaining to anyone. The appellant agreed they must either have told the same lie or made the same mistake. He suggested that JE may have read in a newspaper what the other girl had said in the trial 20 years earlier. 85. The appellant was asked about the evidence of Helen Hall, who had come across him one night in the girls’ living area, which had struck her as strange. The appellant said he was probably checking a noise he had heard when he was on night duty. It would have been his responsibility to double-check that everyone was where they were supposed to be. A number of defence witnesses were called, including the appellant’s wife and former members of staff. The defence case closed on the afternoon of Monday 20 th May. The judge gives the directions of law 86. Over the weekend the judge had provided counsel with a draft of his directions of law, in advance of the first part of his split summing up. Ms Griffiths had suggested some amendments, to which we shall return. The judge gave the jury his directions of law both orally and in writing that afternoon. 87. Next day, Tuesday 21 st May, time was taken in producing the final version of the agreed facts for the jury. As we have already explained, the document included the fact that the appellant took up his new post in Gloucestershire on 1st May 1983 and left Woodlands in April 1983. It was an agreed fact that Easter Sunday in 1983 fell on 3 rd April. It was an agreed fact that JE had left Woodlands by 1 st August 1983. The agreed facts were read into the record and the document was provided to the jury. The closing speeches 88. On the afternoon Mr Renvoize made his closing speech for the prosecution, lasting 1 hour 19 minutes. In the course of his speech he made it clear to the jury that they were not tied to the Easter weekend as the timeframe for the start of the sexual abuse. After a break, Ms Griffiths embarked on her closing speech for the defence. She spoke for 38 minutes that afternoon, and completed her speech next morning, Wednesday 22 nd May, speaking for a further 1 hour 39 minutes. The judge sums up the facts and the jury deliberates 89. The judge began the second part of his summing up that afternoon and completed his summing up next day, Thursday 23 rd May. When the jury retired to consider their verdicts, Ms Griffiths raised the question of wasted costs. In the end that application was postponed to the conclusion of the trial and ultimately to the conclusion of the retrial. The jury deliberated for the rest of that day and the whole of Friday 24 th May. They sent a number of notes during the course of their retirement which the judge dealt with. Monday 27 th May was a bank holiday. The jury resumed their deliberations on Tuesday 28 th May. The judge gave the majority direction that afternoon. The following day, Wednesday 29 th May, it was discovered that the jury foreman had been taken ill at home with a suspected heart attack and he had to be discharged. 90. On the afternoon of Wednesday 29 th May the jury returned a verdict of not guilty on count 4, which was the single allegation of indecent assault on the girl SB. No other verdicts were returned that day. Next day, Thursday 30 th May, the jury returned a verdict of guilty on count 5, the first allegation of rape of JE, by a majority of 10 to 1. By then they had been deliberating for 22 hours and 35 minutes. Later that afternoon they returned a verdict of not guilty on count 6, the multiple incident counts of rape of JE. They returned no other verdicts that afternoon. 91. The court could not sit next day, Friday 31 st May, but the jury resumed their deliberations on Monday 3 rd June. That afternoon it became apparent that the jury would not be able to reach any further verdicts. A note from the jury read: “I believe that a sexual assault can occur between a heterosexual male and a child of either sex as a way of putting them in their place or degrading them, and not as a purely sexual motive. Are you able to clarify this, as several jurors seem stuck on that… i.e. if you did it to girls, he couldn’t switch to boys.” The judge answered the note appropriately, urging the jury to focus on the routes to verdict. However, after further retirement it became clear that there was no prospect of further verdicts and, having now deliberated for over 27 hours, the jury were discharged. Further late disclosure is made before the retrial 92. The appellant’s retrial in relation to the three remaining complainants (all male) was listed to commence on 18 th November 2019 at Norwich Crown Court, again before Judge Shaw. On 7 th November 2019 Ms Griffiths served a further written application to stay the proceedings as an abuse of process, relying partly on the previous grounds and partly on the Crown’s continuing shortcomings in relation to disclosure. On 15 th November, the last working day before the retrial, the CPS wrote to the appellant’s solicitors and Ms Griffiths enclosing an addendum disclosure schedule (MG6C), items 125 to 145. They also enclosed a report from DS Alex Logue relating to new material recently found by Norfolk County Council. This material had been located by Norfolk Children’s Services and delivered to DS Logue on 13 th November. None of that material related specifically to JE (who was, of course, not a complainant in the pending retrial) but Ms Griffiths submits that this further late disclosure vindicates the appellant’s concerns all along about the fairness of the trial and the disclosure officers’ continuing basic lack of understanding of the disclosure process. 93. The judge heard this fresh application to stay the indictment for abuse of process and gave a further comprehensive written ruling dated 18 th November 2019. He rejected the application in robust terms. As that ruling does not form part of the trial which resulted in the appellant’s conviction, we do not propose to rehearse the ruling, save insofar as it relates to newly disclosed material which may potentially have a bearing on the issues in the original trial, the subject of this appeal. 94. The judge rejected Ms Griffiths’ submission that the prosecution had always fundamentally misunderstood their disclosure obligations. In relation to the material recently found by Norfolk County Council, the judge said he doubted very much that it met the statutory test for disclosure. It neither undermined the prosecution’s case nor was it reasonably capable of assisting the defence case. We observe that the judge was speaking here only in relation to the allegations by the complainants in the retrial. The judge also referred to further material obtained by the prosecution since the original trial at King’s Lynn. The judge said he had read the material itself in its entirety, and there was nothing that undermined the prosecution’s case. Again, this was in the context of the retrial. 95. Ms Griffiths has again helpfully provided us with a bundle containing the material disclosed after the conclusion of the original trial (Bundle C), which runs to 160 pages. We have examined the material carefully. It appears that the only documents which could conceivably have assisted the appellant at the original trial in meeting JE’s allegations are records relating to his employment with Norfolk County Council from its inception in 1973, and his application for the post he took up with Gloucestershire County Council from 1 st May 1983.These records apparently came from his personnel file. They include a letter from the appellant to Norfolk Social Services dated 5 th March 1983 tendering his resignation from his post at Woodlands with effect from 30 th April 1983. There is an internal social services document setting out the appellant’s salary increases year by year, which records “voluntary resignation 30/4/83”, and a somewhat cryptic manuscript note which appears to read “Term from 17/03/83”. Ms Griffiths submits that this may be an indication that the appellant actually ceased working at Woodlands on that date, i.e. some two weeks before Easter 1983 which was the key date referred to by JE. There is another social services staff record which indicates that the appellant’s annual leave entitlement on appointment in March 1974 was 25 days. 96. Ms Griffiths points out one of the documents newly disclosed was a disclosure schedule from the appellant’s original trial in 1995 (URN 36 NC 2913 93) listing the appellant’s “personnel file whilst employed with Norfolk County Council” as being located “on file”, and submitted to the CPS on 19 th August 1984. Ms Griffiths also points out that prior to the trial the prosecution had disclosed documentation relating to the original investigation in the 1990s which included a photocopy of the spine of a lever arch file labelled “working copy”, bearing the same URN reference, the inference being that the newly disclosed personnel file may well have been in the possession of the police all along. There was a memorandum from Norfolk’s Director of Legal Services to Norfolk’s Director of Social Services, dated 13 th September 1995, enclosing a copy of the appellant’s “personal (sic) file as received from the Crown Prosecution Service”. 97. For completeness, we should explain that although the retrial proceeded, the jury were discharged after the first witness had given evidence. Judge Shaw subsequently recused himself. The retrial is scheduled to commence again in January 2021. The legal framework 98. The principles governing an application for a stay of proceedings for abuse of process arising from delay are well established and uncontroversial. They were set out by this court by Lord Lane CJ in Attorney-General’s Reference (No. 1 of 1990) (1992) 95 Cr. App. R. 296. No stay should be imposed unless the defendant showed, on the balance of probabilities, that due to the delay he would suffer serious prejudice to the extent that no fair trial could be held. The principles were confirmed in R v S (SP) [2006] EWCA Crim 756 ; [2006] 2 Cr. App. R. 23 , where it was said by Rose LJ (Vice President), giving the judgment of the court, at [21]: “In the light of the authorities, the correct approach for a judge to whom an application for a stay for abuse of process on the ground of delay is made, is to bear in mind the following principles: (i) Even where delay is unjustifiable, a permanent stay should be the exception rather than the rule; (ii) where there is no fault on the part of the complainant or the prosecution, it will be very rare for a stay to be granted; (iii) no stay should be granted in the absence of serious prejudice to the defence so that no fair trial can be held; (iv) when assessing possible serious prejudice, the judge should bear in mind his or her power to regulate the admissibility of evidence and the trial process itself should ensure that all relevant factual issues arising from delay will be placed before the jury for their consideration in accordance with appropriate direction from the judge; (v) if, having considered all these factors, a judge’s assessment is that a fair trial will be possible, a stay should not be granted.” 99. These principles were reinforced in R v F(S) [2011] EWCA Crim 1844 ; [2011] 2 Cr. App. R. 28, where it was also said that an application to stay for abuse of process should ordinarily be heard and determined at the outset of the case, and before the evidence is heard, unless there is a specific reason to defer it because the question of prejudice and fair trial can better be determined at a later stage. There is no dispute that the present case undoubtedly fell within that exception. Giving the judgment of the court, Lord Judge CJ said, at [45]: “… most important of all, as all the authorities underline, it is only in the exceptional cases where a fair trial is not possible that these applications are justified on the grounds of delay, even when the pre-condition to a successful application, serious prejudice, may have occurred. The best safeguard against unfairness to either side in such cases is the trial process itself, and an evaluation by the jury of the evidence.” 100. The issue of missing documents frequently arises in applications for a stay on the grounds of delay in cases of historic sexual allegations. Helpful guidance was given by this court in R v RD [2013] EWCA Crim 1592 , where there were allegations by four complainants of sexual abuse between 39 and 63 years earlier. The court emphasised that the length of the period of itself proves nothing beyond that historical fact. What is of crucial importance is the effect of such delay on the fairness of the trial and the safety of any resultant convictions. Giving the judgment of the court, Treacy LJ said, at [15]: “In considering the question of prejudice to the defence, it seems to us that it is necessary to distinguish between mere speculation about what missing documents or witnesses might show, and missing evidence which represents a significant and demonstrable chance of amounting to decisive or strongly supportive evidence emerging on a specific issue in the case. The court will need to consider what evidence directly relevant to the appellant’s case has been lost by reason of the passage of time. The court will then need to go on to consider the importance of the missing evidence in the context of the case as a whole and the issues before the jury. Having considered those matters, the court will have to identify what prejudice, if any, has been caused to the appellant by the delay and whether judicial directions would be sufficient to compensate for such prejudice as may have been caused or whether in truth a fair trial could not properly be afforded to a defendant.” (emphasis supplied) 101. In explaining why the trial judge had been correct to refuse a stay, Treacy LJ said at [20]: “… This case, although unusual in relation to the length of time which has elapsed, presents difficulties of a sort which frequently occur in cases involving lesser delay. There also underlay the submissions made on behalf of the appellant the assumption that the missing evidence would necessarily have supported the appellant’s case, which we are unable to accept. Moreover, the complaints of J, G and S were not date specific but were couched in general terms of sexual abuse occurring on very many occasions during visits during school holidays within wide periods identified in the indictment. Accordingly, an alibi in its true sense was not the issue before the jury. The issue was in reality whether or not the jury could be sure that the abuse had taken place…”. 102 Similar issues were considered again more recently by this court in R v PR [2019] EWCA Crim 1225 ; [2019] 4 W.L.R. 98 , where the trial judge’s refusal to stay the proceedings was upheld. Evidence gathered by the police in 2002, relevant to the appellant’s defence, was destroyed by water damage and was unavailable for the trial in 2018. Giving the judgment of the court, Fulford LJ said, at [65]-[66]: “65. It is important to have in mind the wide variations in the evidence relied on in support of prosecutions: no two trials are the same, and the type, quantity and quality of the evidence differs greatly between cases… Some cases involve consideration of a vast amount of documentation or expert/forensic evidence whilst in others the jury is essentially asked to decide between oral testimony of two or more witnesses, often simply the complainant and the accused. Furthermore, there is no rule that if material has become unavailable, that of itself means the trial is unfair because, for instance, a relevant avenue of enquiry can no longer be explored with the benefit of the missing documents or records. It follows that there is no presumption that extraneous material must be available to enable the defendant to test the reliability of the oral testimony of one or more of the prosecution’s witnesses. In some instances, this opportunity exists; in others it does not. It is to be regretted if relevant records become unavailable, but when this happens the effect may be to put the defendant closer to the position of many accused whose trial turns on a decision by the jury as to whether they are sure of the oral evidence of the prosecution witness or witnesses, absent other substantive information by which their testimony can be tested. 66. In a case such as the present, the question of whether the defendant can receive a fair trial when relevant material has been accidentally destroyed will depend on the particular circumstances of the case, the focus being on the nature and extent of the prejudice to the defendant. A careful judicial direction, in many instances, will operate to ensure the integrity of the proceedings. This general statement is not meant to preclude the possibility that a fair trial may sometimes be unachievable when relevant material cannot be deployed…But we stress that the strength and the utility of the judge’s direction is that it focuses the jury’s attention on the critical issues that they need to have in mind.” 103. We shall return later to the adequacy of the judge’s directions in the present case, but we observe that in R v PR , Fulford LJ went on to say, at [73]: “ The judge’s directions to the jury should include the need for them to be aware that the lost material, as identified, may have put the defendant at a serious disadvantage, in that documents and other materials he would have wished to deploy had been destroyed. Critically, the jury should be directed to take this prejudice to the defendant into account when considering whether the prosecution had been able to prove, so that they are sure, that he or she is guilty. The judge gave an impeccable direction to this effect, of which there is no criticism by [counsel for the appellant].” 104. Ms Griffiths drew our attention to a case which, she submitted, bore similarities to the present case, where this court held that the trial judge had been wrong to refuse a stay: R v Burke [2005] EWCA Crim 29 . There the defendant was charged with historic sexual offences against several boys in a children’s home where he had worked, 30 years earlier. The trial judge’s refusal to stay the proceedings was upheld in relation to all but one of the complainants, KS. His allegation differed from those of the other complainants in that it related to one single occasion when, on night duty, the defendant was said to have assaulted KS sexually after he was returned to the home by the police at about midnight following an absconding. Available records confirmed that KS had absconded on more than one occasion during the relevant period. If the defendant was on night duty when KS was returned by the police on the occasion in question that would be powerful evidence in support of KS’s allegation. If, on the other hand, the defendant was not on duty that night, then sensibly no jury could properly convict. Absent contemporaneous records from the home or elsewhere, it was not possible to tie down the exact date of the absconding and return. The crucial documents which would have existed and would have shown whether the defendant was on duty (i.e. the duty rota and/or form which would have been signed by whoever was on duty to acknowledge receipt of the boy) were missing. It was partly for this reason that this court concluded that the defendant had been prevented from having a fair trial, but there was another unconnected reason as well, arising from some fresh evidence which had come to light. Accordingly, the authority is of limited assistance and, in any event, is merely an example of a case which turned on its own facts. 105 We have also been referred to authorities in relation to the crucial importance of proper disclosure in cases of this kind, and generally. For example, in R v S(D) and S(T) [2015] EWCA Crim 662 ; [2015] 2 Cr.App.R.27 , Lord Thomas CJ, giving the judgment of the court, made trenchant observations on the serious shortcomings in disclosure in a case of multiple rapes by two defendants. The trial judge had eventually stayed the proceedings as an abuse of process. This court reversed that decision on the facts, but emphasised, at [50]: “It has always been apparent in cases of historic sexual abuse that disclosure will be important and proper steps [should] be taken to ensure that it is dealt with in an orderly manner.” At [53], Lord Thomas highlighted: “…the importance of proper procedures being put in place for an intelligent approach to disclosure and the necessity for disclosure officers to receive proper training…” referring to similar observations he had made in R v Malook (Practice Note) [2011] EWCA Crim 254 ; [2012] 1 WLR 633 , albeit in the context of disclosure in a drugs conspiracy case where the disclosure issue went (unusually) to sentence following a Newton hearing rather than to conviction. 106 In Malook , Thomas LJ (as he then was) identified, at [35], a number of serious failings in the disclosure process in that case, observing that: “….Proper record keeping in an investigation is essential to the integrity of an investigation, to public confidence in police investigations and the proper administration of justice…In this case, as we have observed, the position was that the records were deficient and the disclosure officer plainly had no proper understanding of the obligations of disclosure. He did not have the training and competence to exercise the necessary judgement required of a disclosure officer. This was the fault of those much more senior to him who were responsible for the system…” 107 More generally, Ms Griffiths has referred us to the very comprehensive analysis of principles and good practice in relation to disclosure in the judgment of this court in R v R (Practice Note) [2015] EWCA Crim 1941 ; [2016] 1 Cr. App. R. 20 . The guidance was concerned particularly with cases where the unused material comprises vast quantities of electronic files, but it also identified principles of general application. Giving the judgment of the court, Sir Brian Leveson P emphasised the importance of the prosecution “taking a grip” on the case and its disclosure requirements from the outset. The court also emphasised the importance of the judicial task of active and robust case management if required. The court referred in detail to the relevant statutory provisions in the Criminal Procedure and Investigations Act 1986, the Code of Practice made under s.23(1) of that Act, the Attorney-General’s Guidelines on the Disclosure of Unused Material in Criminal Proceedings, and the relevant provisions of the Criminal Procedure Rules. 108 The requirements of the Code of Practice (CP) and Attorney-General’s Guidelines (AG) which are particularly relevant to Ms Griffiths’ submissions include the following: (i) Material which may be relevant to an investigation, which has been retained in accordance with the Code, and which the disclosure officer believes will not form part of the prosecution case, must be listed on a schedule: CP, para.6.2. (ii) The disclosure officer should ensure that each item of material is listed separately on the schedule and is numbered consecutively. The description of each item should make clear the nature of the item and should contain sufficient detail to enable the prosecutor to decide whether he needs to inspect the material before deciding whether or not it should be disclosed: CP, para.6.11. (iii) Disclosure officers, or their deputies, must inspect, view or listen to all relevant material that has been retained by the investigator, and the disclosure officer must provide a personal declaration to the effect that this task has been undertaken. Generally this will mean that such material must be examined in detail by the disclosure officer or the deputy: AG, paras. 26 and 27. 109 Finally, Ms Griffiths submitted to the judge that a stay should be granted not only because a fair trial was not possible, but also on the ground that a stay was necessary in the light of the prosecution’s disclosure failures in order to protect the integrity of the criminal justice system. The principles governing this ground for a stay were considered by this court in R v S(D) and S(T) (supra), where the failure was in disclosure, in the light of the court’s earlier decision in R v Boardman [2015] EWCA Crim 175 ; [2015] 1 Cr. App. R. 33 , where the failure was gross disregard of the Criminal Procedure Rules and the directions of the court. Lord Thomas CJ said, at [42]-[43]: “ 42…Nor is it right to make a distinction in principle between a failure by the prosecution to serve evidence on time and the failure to make proper disclosure. Both have the potential to affect the fairness and orderly conduct of a trial and to undermine public confidence in the integrity of the criminal justice system. As we shall explain, one of the critical factors is the effect of the prosecution failure on the ability of the judge to hold a trial that is fair to the prosecution, to the complainant (or victim) and to the defendant. 43. Thus, although the way in which the judge proceeded in Boardman was by refusing to admit the evidence under s.78 of the 1984 Act, and the present case involved a stay for abuse of process, the court should approach both types of application on the same basis, namely by balancing the material considerations and determining whether it was in the interests of justice, including the interest in the integrity of the criminal justice system, that the proceedings should be allowed to continue. It is where continuation would offend the court’s sense of justice and propriety or would undermine public confidence in the criminal justice system and bring it into disrepute that a court should make an order which would have that effect.” Counsel’s submissions at the appeal: abuse of process and disclosure 110 We shall deal first with the parties’ submissions in relation to the principal grounds of appeal, abuse of process and disclosure, and give our decision on those grounds. We shall then address separately the additional ground of appeal relating to the adequacy of the judge’s directions in the summing up. The appellant’s submissions 111 We shall not attempt to summarise the full detail of Ms Griffiths’ written and oral submissions. The grounds of appeal ran to 27 pages and her skeleton argument 104 pages, with a further 69 pages of appendices. We have already highlighted some of Ms Griffiths’ submissions on particular issues in the course of our narrative of the disclosure history and the trial. 112 In short, Ms Griffiths submits overall that the indictment should have been stayed as an abuse of process because the disclosure process was fundamentally flawed, and because the appellant could not have a fair trial in view of the nature and extent of the missing documentation, the delay of 36 years, and the biased nature of the police investigation. 113 As to disclosure, Ms Griffiths submits that the conduct of the investigation must be viewed against the backdrop of the previous investigation and trial in the 1990s resulting in the appellant’s conviction and 14 year sentence for similar offences against 5 girls at Woodlands, offences which he continues strenuously to deny. That investigation was flawed in resulting from an inappropriate “trawl” for complaints of abuse, of a kind criticised subsequently by the Home Affairs Select Committee of the House of Commons. The present investigation was similarly tainted. 114 Ms Griffiths submits, in effect, that the issue of disclosure was dealt with in a haphazard and casual way. The disclosure officer, DS Logue, failed properly to schedule the unused material which was gathered, and the police failed to obtain a great deal of other potentially relevant material. Ms Griffiths submits that, at its most charitable, DS Logue failed to appreciate the relevance of significant material, resulting in very late disclosure during the trial itself, after the complainants had given evidence, which necessitated their being recalled, to the prejudice of the appellant’s case forensically. The civilian deputy disclosure officer, Susan Vinson, who was appointed in November 2018 to assist DS Logue, was inadequately trained; it was admitted in the Crown’s response to the wasted costs application that “limited police resources [caused] the need to use civilian staff not fully trained in RASSO [rape and serious sexual offences] cases and what needs to be looked for.” Ms Vinson had failed to appreciate the significance of crucial parts of the content of various records and other documents; her approach to the test for disclosure was more expansive than that of DS Logue, and possibly inappropriately so, but Ms Vinson did not know how to assess and deal with the material properly. 115 Ms Griffiths points out that the defence went to great lengths to alert the prosecution to the areas of outstanding disclosure, both in the defence statement and in the Disclosure Request Schedule. Despite this, the disclosure was woefully inadequate. Particularly serious examples included: (i) non-disclosure of the other allegation of rape (the £10 episode) which was never referred to on the unused schedule, even after review, and was only picked up by Ms Griffiths herself when the relevant record was eventually disclosed on 9 th May (see [60] above). (ii) non-disclosure of the crucial content of the criminal injuries application form, referring to oral and anal rape, as well as vaginal rape, which provided pwerful cross-examination material on credibility but could only be deployed when JE was recalled; this vital information was only spotted and disclosed when prosecuting counsel conducted the wholesale review of unused material during the two-day adjournment on 8th May (see [57] above). (iii) non-disclosure of JE’s extensive debts, recorded in a NHS risk assessment review only six months before her complaint to the police, which afforded a potential motive for making a false allegation; this was disclosed only following the review by prosecuting counsel during the two-day adjournment (see [58] above). (iv) non-disclosure of JE’s reference to abuse by her adoptive parents at Easter and Christmas, disclosed only following prosecuting counsel’s review during the two-day adjournment; this was potentially an explanation for JE’s identification of Easter as the time of the alleged abuse by the appellant (see [67] above). (v) non-disclosure of the full extent of JE’s mental health issues and memory problems, and the treatments and therapies she had undergone including “rape counselling”, during which she may well have given other accounts of the alleged abuse by the appellant, or sexual abuse by others which she was confusing with it; this was the disclosure eventually made during the twoday adjournment, when it was realised that relevant material on the sensitive unused schedule (MG6D) had never been reviewed by the CPS lawyer (see [55] and [70] above). 116. In her oral submissions, Ms Griffiths explained that although there had been some pre-trial disclosure of JE’s mental health problems, the defence had been deprived of the full range of relevant material from which to select the best examples for cross examination. As with the other material disclosed late (referred to above), this put Ms Griffiths in the invidious position of having to cross-examine JE for a second time, providing the witness with a further opportunity to impress the jury and elicit their sympathy (not least by her reappearance in the witness box with one or both arms bandaged). 117. Ms Griffiths highlighted the examples of equally serious non-disclosure of crucial material potentially undermining the allegations by the three male complainants (see [61] above). Although this had no direct bearing on JE’s allegations, it was a further demonstration of the total failure of the disclosure officers to understand what was relevant and disclosable. Ms Griffiths asks, rhetorically, what other similar oversights there may have been which still remain uncovered. 118. As to missing documentation, Ms Griffiths points to the complete absence of any contemporaneous documentation from Woodlands. Such material undoubtedly existed and would have shed light on the all-important timing of the appellant’s actual departure from Woodlands in March or April 1983 before he took up his new post in Gloucestershire on 1 st May 1983. It was only by good fortune that the appellant had himself retained and was able to produce a document confirming the date of his change of employment. Had he not been able to do so, there would have been nothing to contradict JE’s evidence that the rapes continued for a period of many months after the initial incident at Easter 1983. Immediately prior to the retrial in November 2019 the appellant’s personnel file had belatedly come to light in circumstances never satisfactorily explained. The reference in one of the documents to “Term from 17/03/83” raised the possibility that the appellant had left Woodlands even before Easter 1983. 119. Equally serious was the absence of any social services file for JE herself, documentation which effectively contained her life story as an adopted child brought up in care, and which, at least under current requirements, has to be retained for 100 years. These records would undoubtedly have contained information as to the date of JE’s residence at Woodlands, and her move on to her next placement. Such records may even have revealed that JE had left Woodlands soon after her 16 th birthday in March 1983 because the only surviving record referred to her moving to further accommodation “at the age of 16”, and there was another record indicating that by 1 st August 1983 she was living elsewhere (as set out in the agreed facts). Ms Griffiths questioned whether, even now, there had been sufficient enquiry to locate such records. She acknowledged that the police had pressed the local authority several times for full disclosure, but that should have been done much earlier and more regularly; it was well known that the police have to press local authorities repeatedly to obtain such information. Ms Griffiths submits that there was a “significant and demonstrable chance” that the missing evidence could have amounted to “decisive or strongly supportive” evidence on the issue of alibi or opportunity, and the judge failed to appreciate or acknowledge this fact. 120. Turning to the judge’s ruling, Ms Griffiths submits that the judge was wrong to characterise the material disclosed during the trial as “more of the same”. There was new material which opened up important lines of cross-examination. She submits the judge was wrong to say that she had “failed to identify a single document that has actually been lost”. For example, records from Woodlands such as staff rotas must have existed and would have shown when the appellant was on weekend duty, and whether (as JE alleged) the appellant was on duty with “Jim” and never with any female member of staff. Ms Griffiths submits that it was wrong and unfair for the judge implicitly to criticise the defence for not making any application for further disclosure under s.8 of the1986 Act, or not applying for the issue of a third party witness summons to produce documents, when in reality the defence had been assiduously pursuing focused disclosure for many months in what was, effectively, one long section 8 application. The judge was wrong to equate the approach of the defence to a request for the “keys to the warehouse”. 121. Ms Griffiths submits that the judge was wrong to say that there was no evidential foundation to conclude that any complainant “ever engaged in meaningful counselling or therapy”, when the material disclosed late showed that JE had undergone extensive counselling and therapy over the years. She submits that the police failed to make any enquiry as to the availability of JE’s counselling records. Ms Griffiths referred us to the guidance issued jointly by the Home Office, the Department of Health and the Solicitor-General (in 2001 or thereabouts) on the Provision of Therapy for Vulnerable or Intimidated Adult Witnesses, and the risk that particular kinds of therapy (including hypnotherapy and psychotherapy) may affect and undermine the reliability of a complainant’s evidence. Ms Griffiths acknowledged that the guidance was directed principally at therapy undergone by witness when a trial is already imminent, but she points out that here there was a delay of nearly 5 years between JE’s ABE interview and the trial, during which time she may well have undergone relevant therapy to which the guideline applied. Ms Griffiths also submitted, rather more faintly, that if there had been proper disclosure of JE’s extensive mental health issues and therapy well before the trial, the defence would have had to consider whether to instruct an appropriate expert (presumably a psychologist) to review the impact of all this. Finally on this topic, Ms Griffiths submitted in her skeleton argument that, had the defence been aware before trial of the full extent of these issues, consideration might have been given to an application to exclude JE’s evidence altogether under s.78 of the Police and Criminal Evidence Act 1984, particularly as there had been a breach by the police of the relevant codes of practice in failing to make a proper record of the initial conversation between the officer who first saw JE (DC Peter Sayer) several weeks before her ABE interview. The Crown’s submissions 122. On behalf of the Crown, Mr Renvoize accepted in oral argument that the disclosure exercise in this case had been “thoroughly imperfect”. He submits, however, that the situation was redeemed during the course of the trial, and that in the event Ms Griffiths had all the material she needed in order to cross-examine JE forcefully and effectively, exposing weaknesses and inconsistencies. It was then solely a matter for the jury to assess her credibility and the reliability of her account. The jury were made fully aware of the shortcomings in disclosure. The disclosure officer, DS Logue, her predecessor, DS Sayer, and the deputy, Ms Vinson, were all robustly cross-examined. This was a demonstration that the trial process was capable of remedying any prejudice caused by the delay. 123. Mr Renvoize submits that as soon as it was discovered that the sensitive unused schedule had not been reviewed by the CPS lawyer, an extremely thorough review of the unused material was undertaken by prosecuting counsel themselves over a period of 2½ days, which resulted in the disclosure of additional material deployed in further cross-examination. The prosecution offered to deal with the additional points by making appropriate formal admissions and did so as requested, but Ms Griffiths chose to have the complainants recalled. Had there been any real prejudice arising from this, such as to endanger the fairness of the trial, it was open to Ms Griffiths to apply to discharge the jury, but she made no such application. 124. As for missing documentation, it was almost inevitable that local authority documentation would be unavailable after such a long delay. The police had repeatedly requested such material from Norfolk County Council. What remained of the registers, for 1980 and 1981, was disclosed as soon as the local authority found it on 30 th April 2019. The jury heard from a witness from Norfolk County Council about the loss or destruction of records. 125. Mr Renvoize explained in his oral submissions that although the prosecution had opened the case to the jury on the basis that the initial incident with JE had taken place at Easter, it was made clear in the prosecution’s closing speech that the jury were not tied to that timeframe; Ms Griffiths had not taken issue with this stance. Mr Renvoize submits that on the evidence the jury heard, there was ample opportunity for the appellant to have committed the offences. The agreed facts made it clear that the appellant had left Woodlands sometime in April 1983. But it was clear that the appellant and JE had both been at Woodlands at the same time over the previous six months or so. The appellant had been able to produce a letter confirming the start date of his new employment on 1 st May 1983. Mr Renvoize submits that the absence of other contemporaneous documentation did not impact on the fairness of the trial. The issue was not the precise date on which the alleged rapes had taken place, but whether the jury accepted JE’s evidence that she had been raped at all. 126. Mr Renvoize submits that although the defence did not have, at the outset of the trial, full details of JE’s therapy and counselling, Ms Griffiths had the relevant material by the time JE was recalled. He submits that the joint CPS and Department of Health Guidance on therapy for witnesses did not apply. Ms Griffiths had been able to explore the witness in cross-examination the issues of her mental health, her therapy, and possible memory loss. 127. As to the judge’s ruling, Mr Renvoize submits that in substance the material disclosed during the trial after the two-day adjournment was, in reality, “more of the same”. He submits that the judge was best placed to assess whether a fair trial was possible, having heard the complainants cross-examined. He submits that the judge’s ruling was reasoned and cogent. It cannot be said that the judge’s decision to refuse a stay was unreasonable or plainly wrong, which is the threshold the appellant would have to demonstrate. Discussion and conclusion: abuse of process and disclosure 128. We have given all counsel’s submissions, written and oral, the most careful consideration. There were undoubtedly regrettable errors and shortcomings in the process of disclosure. This compounded the inevitable difficulties faced by the appellant and his legal team in challenging the evidence of the complainants and presenting his defence 36 years or more after the alleged offences. In order to justify the grant of a stay it was for the appellant to show on the balance of probabilities that, by reason of the prosecution’s disclosure failings, the absence of documentation and all the other circumstances resulting from the delay, he would suffer serious prejudice to the extent that a fair trial could not be held. The question for us is whether the judge’s conclusion that the appellant had failed to discharge this burden of proof was unreasonable and/or plainly wrong. 129. For the reasons which follow, we are satisfied that the judge was fully entitled to reach the conclusion he did. We are satisfied that there was no serious prejudice such as to make a fair trial impossible. 130. The judge wisely deferred ruling upon the abuse of process application for a stay until the conclusion of the prosecution case. He did so with the agreement of both counsel. This meant that the judge had the advantage of seeing, in practice rather than in theory, the extent to which the defence were hampered in making an effective challenge to the evidence of the respective complainants. It is plain from the transcript of JE’s evidence, and from the judge’s very full summary of the evidence of JE and the other four complainants in the summing-up, that Ms Griffiths was able to cross-examine each of the complainants, and JE in particular, robustly and to powerful effect. 131. By agreement the judge heard and ruled upon the application for a stay before JE was recalled. In her further cross-examination of JE next day, Ms Griffiths had the opportunity to deploy the additional material which had been disclosed so late in the case. She did so to good effect. She cross-examined JE about (i) the other rape allegation involving the £10; (ii) the abuse she had suffered at the hands of her adoptive parents at the festive periods of Christmas and Easter; (iii) the assertion in her personal injuries compensation claim form that the appellant had raped her orally and anally, as well as vaginally; (iv) her serious problems with debt at the time she made her complaint to the police in 2014; (v) mental health issues and the therapy she had undergone which may have impaired her memory. 132. We do not overlook the forensic disadvantage Ms Griffiths suffered in not being able to put all these matters to JE when she gave evidence initially. Nor do we overlook the inhibition Ms Griffiths felt in cross-examining JE again at length for fear of antagonising the jury, not least when JE had returned to the witness box with one or both arms bandaged. Nevertheless, Ms Griffiths was able to drive home the points raised in the new material, and there was potentially a positive advantage to the defence in highlighting these points clearly and distinctly at the very end of the prosecution case. Had Ms Griffiths considered that the recalling of JE was irremediably unfair, she would no doubt have considered applying to discharge the jury, although again we accept that this would have been a big step to take, particularly as the appellant was a privately paying defendant. 133. We also take into account the disadvantage Ms Griffiths faced, forensically, in having a limited quantity of material from which to choose in cross-examining JE about her mental health difficulties, treatment and therapies. That said, Ms Griffiths did not highlight or draw to our attention any particular document which the late disclosure had deprived her of using in her initial cross-examination. Had there been any such key document we have no doubt that Ms Griffiths would have deployed it to powerful effect in cross-examining JE when she was recalled. 134. We have considered with particular care the suggestion that there was missing contemporaneous documentation from Woodlands which might fairly fall within the category identified by Treacy LJ in R v RD (see [100] above) namely: “…missing evidence which represents a significant and demonstrable chance of amounting to decisive or strongly supportive evidence emerging on a specific issue in the case…”. The possible timing and timeframe for the rapes JE alleged was certainly an issue in the case, but the timeframe was established by the undoubted fact that the appellant must have left Woodlands no later than 30 th April 1983, and this was part of the agreed facts and supported by the letter the appellant himself produced in evidence, a copy of which was provided for the jury. 135. We accept that rotas or other contemporaneous documentation might have narrowed down the window of opportunity still further in relation to JE’s belief that the rapes began three or four weeks after Easter. But JE made it clear in her ABE interview and in cross-examination that although she thought the initial incident (with the towel) happened over the Easter weekend, she was not tying herself to that as a date. Mr Renvoize made this same point clear to the jury in his closing speech, apparently without objection from Ms Griffiths. We also accept that rotas or other contemporaneous documentation might have proved or disproved that the appellant was on overnight duty at weekends with “Jim”, and never with any female member of staff, or shown whether as few as three children were ever in residence over any given weekend. But these were not, in our judgment, central issues in the context of JE’s allegations as a whole. There was no suggestion, for example, that “Jim” or anyone else, staff member or child, would have been aware of the abuse taking place in the privacy of JE’s single room. 136. Unlike the factual situation in R v Burke (see [104] above), which was held on appeal to justify a stay, this was not an allegation of a single occasion of sexual abuse which occurred on a specific occasion capable of being identified by date if contemporaneous documentation had survived (in Burke , the rota and the document signed when the boy was returned by the police). The situation in the present case is far more akin to that described by Treacy LJ in R v RD itself (see [101] above), where the complaints: “…were not date specific but were couched in general terms of sexual abuse occurring on very many occasions during visits during school holidays within wide periods identified in the indictment. Accordingly, an alibi in its true sense was not the issue before the jury. The issue was in reality whether or not the jury could be sure that the abuse had taken place…”. 137. In his ruling the judge correctly identified and applied the relevant legal principles. Because we do not have a transcript of Ms Griffiths’ oral submissions, it is unclear whether she specifically identified as crucial missing documents the staff rotas or other documentation of the kind to which we have referred. We note that in her written “abuse of process application – addendum following disclosure”, dated 3 rd April 2019, such documents are not identified although others are. If Ms Griffiths did specifically identify such documents in her oral submissions, we find it strange that the judge should have made the observation in his ruling that Ms Griffiths “has not been able to identify a single document that has actually been lost…” that would have been material, adopting the prosecution’s submission. We appreciate that in her oral submissions Ms Griffiths would have been addressing the issue of serious prejudice in relation to all five complainants and not merely JE, but we remain puzzled that the judge should have made this observation if Ms Griffiths had put this point at the forefront of her submissions, as she does now. Indeed, the judge made the same observation in the summing up, without Ms Griffiths correcting him. 138. In characterising the further disclosure during the trial as “more of the same”, with nothing that “gave rise to any new cross-examination of any real substance”, the judge was speaking before JE was recalled, and in the light of Ms Griffiths’ oral submission to him that: “…she made the tactical decision not to cross-examine complainants about material that she would have asked them about had it been available to her from the outset for fear of incurring tacit rebuke from the jury.” It is likely that he had in mind, in particular, the additional medical records for the complainants which had been overlooked on the sensitive unused schedule. 139. Similarly, in saying that there was no evidential foundation to enable him to conclude that any complainant in the case: “… ever engaged in any meaningful counselling or therapy, let alone that there might somewhere be disclosable records that have not been found”, we think the judge was speaking in general terms, the emphasis being on “meaningful”. The jury had heard DS Logue cross-examined on the topic; she had said there was no evidence of any witness having had therapy of the kind mentioned in the joint CPS and Department of Health Guidance on the provision of therapy for vulnerable witnesses. It is plain that the guidance is really concerned with therapy in the lead up to the trial once the complaint has been made, and the responsibilities of the police and CPS in relation to the complainant as a witness in such circumstances. That was not the situation here. It is true that the guidance identifies psychotherapy, for example, as something which might have a material impact on the evidence of a witness (see para. 4.2 of the guidance), and hypnotherapy (see para.10.3), but the jury were aware from JE’s own evidence that she had undergone such therapy, and Ms Griffiths was able to deal with that point in cross-examination of JE and of the police witnesses, and in her closing speech. 140. In likening Ms Griffiths’ approach to a “keys to the warehouse” submission, the judge was focusing, quite correctly, on the need for a proportionate approach to disclosure, tailored to the issues in the case applying the statutory test for disclosure, rather than a general request for anything that might conceivably have a bearing on the case. That said, we accept that Ms Griffiths and her solicitors had commendably gone to great lengths, in the spirit of co-operation required by the overriding objective in the Criminal Procedure Rules, to identify for the prosecution the material that should be obtained and disclosed. 141. The judge was ideally placed to assess whether the trial had been and could continue to be fair. He expressly found that there had been no bad faith on the part of DS Logue, or the police generally. The judge was entitled and correct to conclude that the trial process itself was capable of compensating for any prejudice arising from the delay and ensuring that the trial was fair. 142. The judge was also entitled and correct to reject the second limb of Ms Griffiths’ abuse application, that a stay was necessary to protect the integrity of the criminal justice system having regard to the failings in disclosure. Those failings were fully explored in evidence, and in counsel’s written and oral submissions to the judge. Importantly again, the judge was satisfied that there had been no bad faith on the part of the police or the prosecution. This was not a case, in our judgment, where the continuation of the proceedings would offend the court’s sense of justice and propriety or would undermine public confidence in the criminal justice system and bring it into disrepute (see R v S(D) and S(T), at [109] above). 143. For all these reasons we reject the first two grounds of appeal, in relation to abuse of process and disclosure. We turn to the new ground argued by Ms Griffiths, that the judge’s directions to the jury in the summing up in relation to delay and consequent prejudice to the appellant were inadequate. The adequacy of the judge’s directions in the summing up 144. The judge’s directions of law were given before counsel’s closing speeches. The judge circulated a draft. Ms Griffiths suggested various amendments, some of which the judge incorporated in substance if not in the precise terms she suggested. The directions of law were provided to the jury in writing as well as given orally. The judge touched on prejudice arising from delay in a set-piece direction, but also in his initial direction on the approach the jury should take to their deliberations, inferences, and speculation. 145. That initial direction included the following passage: “…You are entitled to draw inferences, which means come to common sense conclusions based on the evidence that you have heard, but you are not allowed to speculate or guess about evidence you don’t have. In this case an example of something about which you should not speculate is this: complaint has been made by the defence about material that they submit is absent, for example complainants’ medical records, records for any counselling they may have had in the past, records from social media accounts and/or other digital sources. You should, of course, give to Miss Griffiths’ submissions concerning that absent material the weight that you think they merit, but what you must not do is speculate about what any such records might have shown had they featured in this trial. I shall say more about this during my legal direction on delay.” 146. Pausing there, Ms Griffiths submits that it was wrong to characterise her submission merely as a “complaint”, when the absence of the documentation in question was a fact. She submits that the direction gave the jury no assistance as to how they should approach the question of missing records, if they were forbidden to speculate about their possible content. She says she suggested no amendments to this draft direction because she was expecting the judge to develop the point in the second part of the summing up when he dealt with the facts. The routes to verdict 147. It is important to record the way in which the judge directed the jury on the ingredients of the offence on each count, and the route to verdict on each count. In relation to counts 5 and 6, after explaining the ingredients of the offence of rape, the judge said: “ In this case, in reality, the only issue for you to decide is whether the prosecution has made you sure that Mr Hewitt penetrated [JE’s] vagina with his penis or not, however, you must also be sure that she did not consent to that penetration and that Mr Hewitt knew that she did not consent or was reckless as to whether she consented, in relation to 5, that this happened on a first occasion and in relation to count 6, that it happened on not less than 4 occasions other than that in count 5.” 148. In the routes to verdict, incorporated in the written directions, the judge identified the first issue for the jury to decide in count 5 was: “Has the prosecution made you sure of an initial occasion when Mr Hewitt penetrated [JE’s] vagina with his penis? If the answer is ‘yes’, go to question 6; if the answer is ‘no’, your verdict must be NOT GUILTY to both counts 5 and 6.” We observe that the judge, by his directions, made it clear to the jury that they were not required to be sure that the “initial occasion” was on a date within any particular period, such as between Easter and the end of April 1983. In the route to verdict for count 6 the judge identified the first issue for the jury to decide: “Has the prosecution made you sure of at least 4 more subsequent occasions, all distinct from that in count 5, when Mr Hewitt penetrated [JE’s] vagina with his penis? If the answer is ‘yes’, go to question 9. If the answer is ‘no’, your verdict must be NOT GUILTY…” Again, we observe that the judge, by this direction, made it clear to the jury that they were not required to be sure that these 4 subsequent occasions were within any particular period of time. 149. The judge had directed the jury a little earlier as to the difference between “specific” and “multiple” counts: “Where, as here, the prosecution are not able to say exactly when or how often offences were committed they may bring a charge which covers more than one incident. Counts 3, 6 and 8 allege that Mr Hewitt sexually abused the 3 complainants named in those counts on at least 5, 4 and 6 occasions respectively. If you are sure that Mr Hewitt did those things, your verdict (on the count you’re considering) will be GUILTY. If you are not sure that Mr Hewitt did those things on at least the number of occasions specified in the count you’re considering, your verdict on that count must be NOT GUILTY, even if you are sure that Mr Hewitt did those things, but on fewer than the number of occasions specified in those counts…” We observe that, applying that direction, if the jury concluded that the appellant had raped JE on subsequent occasions but were not sure it was on as many as 4 more occasions, they would have been obliged to acquit altogether on count 6. The direction on delay 150. In his direction on delay, the judge said this: “When you come to consider why these allegations were not made any earlier, you must avoid making an assumption that because they were delayed they must be untrue. Mr Hewitt’s case is that all these allegations are untrue. Owing to the 1995 convictions (which I remind you he disputes) he regards himself as a ‘soft target’ for new complainants cynically to ‘jump on the bandwagon’ in order to seek damages from Norfolk County Council or compensation from the Criminal Injuries Compensation Authority to which they are not entitled. As part of your evaluation of each complainant’s evidence you should consider whether any complainant has a motive to make up a false allegation, remembering it is not for the defence to prove that such a motive exists, but rather for the prosecution to prove that each complaint is true. Ms Griffiths reminds you that the incidents complained of happened a long time ago and Mr Hewitt’s memory, as indeed the memory of all witnesses, is likely to have faded. The passage of time also means that the opportunity for witnesses to be certain about, for example, dates has been lost and the opportunity to collect other evidence that may have assisted Mr Hewitt in the presentation of his case has been lost. Your task is to decide whether memories that witnesses claim to have are reliable or not and whether you are sure that the prosecution has proved its case or not. Complaint is made that Mike Bridgeman has died; Jim Tuddenham and Phyllis Hill (the bursar) are believed to have died; and the doctor who regularly visited Woodlands, Dr Knight, and [DL’s] social worker, Liz Miles, cannot be traced. Further complaint is made that records that might have been of assistance to Mr Hewitt in the preparation and conduct of his defence may have been lost or destroyed. The prosecution contend that all available material that should have been disclosed has been disclosed. [We note in passing that this last sentence is as recorded in the written directions, apparently read out by the judge verbatim; there appears to be an error in the transcript, at page 11A, which reads ‘The prosecution contend that in fact more available material that should have been disclosed has been disclosed (sic).”] They say that no one can ever know with any certainty what has been lost and they say that the defence has failed with any certainty to identify a single document or record that has in fact been lost. You should consider how, if at all, the passage of time has impacted on Mr Hewitt’s ability to respond to [this case]. His first knowledge of any complaint in this case was not until 2013 and he did not know the final shape of the case he had to meet until 2018. Had these allegations be made at the time when the complainants say they occurred, Mr Hewitt may have been able to give a detailed response to them, but this has now been lost to him; for example, perhaps, an alibi, but I remind you that you must not speculate about any evidence that you do not have. Please also bear in mind that Mr Hewitt is now 79, and the longer ago an incident is said to have occurred, the harder it may be for him to respond to it. A lengthy delay between the time when an incident is said to have occurred and the time when the complaint is made and the matter comes to trial, is something that you should bear in mind when considering whether the Crown has proved its case or not. Necessarily, the longer the delay the harder it may be for someone to defend themselves because, as I have already said, memories will have faded and material that might have been of assistance may have been lost or destroyed. If you find that the delay in the case [has placed] Mr Hewitt at a material disadvantage in meeting the case against him, that is something that you should bear in mind in his favour.” 151. Ms Griffiths’ principal criticism is that the judge failed to identify for the jury the particular aspects of prejudice in relation to JE’s allegations arising from missing documentation. She expected the judge to deal with this in the second part of the summing up in his review and summary of the evidence. Part Two of the summing up 152. The structure of the second part of the summing up is important. The judge first summarised the appellant’s background and career, and the history of his employment at Woodlands. This included reference to his appointment to the new post in Gloucestershire as from 1 st May 1983: “…He told you he would have been expected to give one month’s notice to Norfolk County Council but he doesn’t [recall] if he worked his notice. Asked if he might have had any holidays… he said he can’t remember. It’s quite likely that he had some days left to take and he would have used up any holiday allowance left… So he said he does not actually know the date of his last working day at Woodlands but that would have been available in records held at the time…” The judge reminded the jury of the appellant’s evidence, in cross-examination: “Sadly there are no records to prove definitively when anyone was there.” 153. The judge reminded the jury in detail of the evidence given by former members of staff and the appellant himself in relation to the routine at Woodlands, and what information was missing. For example, a former member of staff, Nicholas Loone, said a lot of records were kept at Woodlands: “Social services records were important [for] the children to look at when they were adults. To lose those records… would be quite a serious matter. The records were relied on and accurate and everything that was important in a child’s life went on those records.” 154. The judge next reminded the jury, very briefly, of the complaints made by each of the five girls which had resulted in the appellant’s conviction at the previous trial in 1995. The judge had already given the jury a direction of law about the potential relevance of this evidence, as to which Ms Griffiths makes no criticism. The judge also reminded the jury of the appellant’s evidence in relation to those allegations and the fact that he maintained his innocence in respect of those matters although he accepted that in law he was guilty of the offences. 155. The judge then summarised, in turn, the evidence in relation to the allegations of each of the five complainants in the present trial. The summaries rehearsed the evidence in considerable detail. Helpfully the judge set out the appellant’s evidence and his case in respect of each set of allegations alongside the evidence of the complainant and other relevant evidence. The jury therefore had the factual issues presented for them very clearly. 156. The judge’s summary of the evidence in relation to JE’s allegations, counts 5 and 6, ran to some 16 pages of transcript. It included a detailed reminder of the crossexamination of DC Sayer, who had conducted the ABE interview, and the criticisms properly made by Ms Griffiths of aspects of his interview technique. It included a thorough summary of JE’s cross-examination and the points Ms Griffiths had made in relation to JE’s general credibility as well as the detail of her account. 157. In dealing with the timing of the initial towel incident the judge reminded the jury that the appellant had said in evidence that child numbers never went down as low as three (as JE had suggested) although on Christmas day they might have gone down to just a handful of children, and JE was right that children were allowed home during holidays and at weekends where possible, adding: “It may be important to note as a matter for you that JE is describing an Easter bank holiday weekend rather than just any old weekend. And in that context, you will have to decide to what extent the limited registers you have actually assist.” 158. The judge reminded the jury of the further cross-examination when JE was recalled, including the criminal injuries claim and the suggestion in the application form that she had been raped orally, which she had failed to mention in her evidence. The judge reminded the jury of her improbable explanation for this: “I wasn’t asked”, and of her assertion in evidence that she had mentioned it in her ABE interview, commenting: “I’m pretty sure she didn’t”. The judge reminded the jury of this point again, at the end of his review of the evidence on counts 5 and 6, pointing out that previously JE: “…did not mention her mouth at all”. In the course of his directions of law on previous complaint to her ex-partner, the judge had reminded the jury earlier that: “… the detail recalled by JC that the man who raped JE held her head underneath a pillow is not the same as JE’s account to the police or to you”. 159. During the course of the summing up an issue arose in relation to count 4, the allegation of indecent assault on the other female resident, and whether it was necessary for the prosecution to prove, as averred in the particulars of offence, that she was under 13 at the time. The directions of law and route to verdict required the jury to be sure of this and it was a live issue on the facts. The judge acceded to Ms Griffiths’ submission that, although as a matter of law proof of age under 13 was not required for a conviction (as opposed to affecting the maximum penalty on sentence), it was too late to change the directions he had already given. It is clear from the transcript (page 76 F) that Ms Griffiths had focused on this point in her closing speech. In the event the jury acquitted on count 4. Whether this was because they were unsure of her age at the time of the offence, or because they were not sure the offence had been committed at all, we shall never know. 160. After reviewing the evidence in relation to each complainant, the judge dealt with the police evidence and the shortcomings in disclosure as a separate topic. He reviewed the evidence, and Ms Griffith’s cross-examination, at length. However, Ms Griffiths submits that the judge played down the significance of missing documentation, and in certain respects misstated the position. For example, he reminded the jury of DS Logue’s evidence that social services records for each child were provided to the CPS in their entirety and disclosed to the defence; that was plainly not in fact the position in relation to JE, yet the judge failed to correct the error. 161. Ms Griffiths submits, in particular, that the following passage in the summary of DS Logue’s evidence (at page 89H-90A) gave an incorrect impression: “She said no direct counselling records have been disclosed. She said no direct counselling had been organised for any witness through the CPS for any complainant or for any witness. She said although there are guidelines concerned with witnesses receiving pre-trial therapy, in this case there’s no evidence of any witness having had any therapy of the kind mentioned in those guidelines…” 162. Finally, the judge reminded the jury of the rival submissions in relation to the relevance of the previous convictions in 1995. The defence invited the jury to step back and say that their only relevance was to give a platform from which further false allegations were now being made. There had almost certainly been collusion between these complainants; these were false complaints financially driven, to obtain compensation or damages. The prosecution’s case, in answer to this, was that the jury should keep their feet on the ground. What were the chances of 10 unrelated people making similar false accusations against the appellant? Counsel’s submissions: adequacy of the summing up 163. We shall consider the adequacy of the summing up, and the impact of any deficiency on the fairness of the trial and the safety of the conviction. The appellant’s submissions 164. Ms Griffiths acknowledges that the grounds of appeal did not make any complaint about the adequacy of the summing up in relation to prejudice arising from delay and missing documents. She explained in her oral submissions that only when she reflected later on the case as a whole did it strike her that the summing up was deficient. 165. She submits that the legal directions were not sufficient to compensate for the prejudice of missing documents. The case needed a particularly powerful direction on delay and prejudice bearing in mind the disclosure failings and bearing in mind the inevitable prejudice from the 1995 convictions. She submits that the judge failed in his directions of law to identify the relevant lost material. He wrongly referred to documents which “may have been lost”, whereas records from Woodlands such as staff rotas had undoubtedly been lost, as had JE’s social services records. The judge wrongly appeared to endorse, and certainly did not correct, the prosecution’s erroneous suggestion (at page 11B) that “the defence has failed with any certainty to identify a single document or record that has in fact been lost.” On the contrary, it was plain that relevant records from Woodlands had been lost. 166. Ms Griffiths relies on the guidance in the judgment of this court given by Fulford LJ in R v PR (see [102] –[103] above): “The judge’s directions to the jury should include the need for them to be aware that the lost material, as identified, may have put the defendant at a serious disadvantage, in that documents he would have wished to deploy had been destroyed. Critically, the jury should be directed to take this prejudice to the defendant into account when considering whether the prosecution had been able to prove, so that they are sure, that he or she is guilty.” Ms Griffiths submits that the judge failed to say this in his directions, or at least to bring the point home to the jury in sufficiently strong and clear terms. He gave the jury no real assistance as to how they should take into account such prejudice, and diluted the force of the general direction on delay by warning them not to speculate about the content of missing documentation, if it had existed at all. 167. Specifically, Ms Griffiths submits that the judge should have directed the jury that the absence of records from Woodlands meant that the jury could not be sure the appellant was even still working at Woodlands at Easter 1983 and for the remainder of April 1983, which was when JE said the first incident of rape (count 5) took place. 168. Ms Griffiths submits that, even if the directions of law in part 1 of the summing up were adequate in general terms, the judge failed in summing up the facts, in part 2, to focus the jury’s attention on the specific prejudice resulting from the delay and consequent loss of relevant documentation. We have already drawn attention to some of her other criticisms of part 2 in setting out the relevant structure of the summing up (see [151] to [162] above). In relation to the absence of counselling records, Ms Griffiths points out that JE had undoubtedly undergone hypnotherapy and psychotherapy, which are specifically identified in the joint CPS and Department of Health guideline as potentially affecting the reliability of a complainant’s evidence (see para.10.3). 169. Overall Ms Griffiths submits that in relation to missing documents and failings in disclosure the jury were left with the impression, from the summing up, that the defence were complaining about nothing. Although she had necessarily addressed these matters fully in her closing speech, what was needed in the summing up on these issues, in order to ensure fairness, was the imprimatur of the judge. 170. Ms Griffiths therefore submits that the trial process, and what should have been the important safeguard of the judge’s directions on delay and prejudice, failed to ensure a fair trial and the conviction cannot be regarded as safe. The Crown’s submissions 171. Mr Renvoize acknowledged in his oral submissions that the question was whether the summing up was sufficient to remove the prejudice arising from delay and missing documentation. He submits that the jury had the issue of such prejudice well in mind. Most of the defence closing speech was given over to the theme of missing and lost documents, delay and prejudice. The judge’s directions of law were accurate and sufficient. Mr Renvoize acknowledged that those directions were couched in general terms and the judge could have chosen to illustrate the general by giving examples of the particular in part 2 of the summing up; but there would then have been a danger of his expressing a view of the facts or inviting speculation. Mr Renvoize submits that that the directions of law, and the summing up as whole, were not rendered defective by the omission to give such examples. He submits that the importance or otherwise of the missing documents was ultimately a matter for the jury, and the judge made this abundantly clear. 172. Mr Renvoize submits that the jury’s attention was clearly focused on the timings around Easter 1983, but he had made it clear in his closing speech, without criticism or objection, that the jury were not tied to this timescale. 173. Mr Renvoize therefore submits that, despite the failings in disclosure, all relevant material was eventually provided; the jury were properly directed on the impact of delay and missing documentation; the trial process compensated for any residual prejudice; the trial was fair and the conviction is safe. Discussion and conclusion: adequacy of the summing up 174. We have given all these submissions the most careful consideration. We are not persuaded that the judge’s directions of law on delay, given orally and in writing, were inadequate in general terms. We bear in mind that the judge was at that stage addressing historic allegations by five separate complainants, each raising different issues arising from delay. We are satisfied that the judge conveyed sufficiently clearly to the jury the general prejudice which the appellant was likely to have suffered from the delay and any missing documentation. The judge told the jury that as a result of the delay in the complaints the opportunity to give a detailed response to the allegations “has now been lost to him; for example, perhaps an alibi…”. The judge told the jury that: “…Necessarily the longer the delay the harder it may be for someone to defend themselves because… memories will have faded and material that might have been of assistance may have been lost or destroyed.” The judge directed the jury that the lengthy delay was: “… something that you should bear in mind when considering whether the Crown has proved its case or not”, and that: “… If you find that the delay in the case [has placed] Mr Hewitt at a material disadvantage in meeting the case against him that is something that you should bear in mind in his favour.” 175. The question which has given us more real concern is whether the judge should have tailored that general direction to the specific prejudice arising in relation to JE’s complaints of rape, counts 5 and 6, so as to bring it home sufficiently to the jury that they should bear in mind that prejudice in deciding whether the Crown had discharged the burden and standard of proof. 176. We think the judge could usefully have identified the timing of the alleged rapes in counts 5 and 6 as an example of potential prejudice arising from the delay and consequent missing documentation. However, in the end, for the reasons which follow, we are not persuaded that this omission or any other alleged inadequacy renders the summing up defective, or resulted in an unfair trial rendering the conviction on 5 unsafe. 177. It is particularly important to focus on the real issue for the jury on count 5. The issue was whether the jury could be sure that the appellant had raped JE at all , not whether he had raped her on a particular date or between particular dates. JE’s own timing of the first alleged rape as taking place 3 to 4 weeks after the initial towel incident over the Easter weekend (Easter Sunday being 3 rd April 1983) was in no way conclusive. The accuracy of JE’s timing of the alleged incidents was simply one feature, albeit potentially an important feature, of her general credibility and the truthfulness and accuracy of this allegation. JE made it clear that although she thought this was the correct timing, she was not certain of it. In reminding the jury of her evidence in this regard, the judge nevertheless told the jury (at page 70F) that “it may be important to note that JE is describing an Easter bank holiday weekend rather than just any old weekend…”. That comment favoured the defence rather than the prosecution. 178. As we have already observed, the route to verdict for count 5 required the jury only to decide whether the prosecution had made them “sure of an initial occasion” of rape; there was no precision of date required. The date of the offence was not a material averment. By the time the judge summed up the facts in part 2, the jury had heard the prosecution’s closing speech in which Mr Renvoize had made it clear that the jury were not tied to the Easter timeframe. Ms Griffiths had taken no issue with this change of stance, nor had she raised any objection to the amendment of the bracket of dates in the indictment for counts 5 and 6, to reflect the evidence as it had emerged in relation to JE’s age of 15½ on admission to Woodlands in September 1982, and the appellant’s departure from Woodlands by 1 st May 1983 at the latest. 179. Nor, we note, had Ms Griffiths made a submission of no case to answer even in relation to count 6, although the subsequent rapes (on at least four other occasions) could not conceivably have taken place by 1 st May 1983 if they began only after Easter. This, we think, may well have been a realistic recognition on the part of the defence that the jury were not in any sense tied to the Easter timeframe as JE thought it to be. 180. In this regard, we also note that in relation to the allegation of indecent assault against the other female complainant (count 4) , as to which there was legal argument during the summing up (see [159] above), Ms Griffiths told the judge that “there wasn’t much evidence given about dates, presumably because there were very few records and it was very difficult to ascertain the dates.” She explained to the judge that she had not made a submission of no case to answer on count 4: “…because the dates were entirely unclear. The dates only crystallised after the formal admissions were before the jury.” Thus Ms Griffiths must clearly have been alive to the contrary position in relation to counts 5 and 6, and the parameters of timing based on JE’s evidence compared with the available records incorporated into the agreed facts. 181. We have considered the significance of the acquittal on count 6 (the multiple incident count). Although Ms Griffiths suggests that the acquittal demonstrates that jury must have rejected JE’s evidence on the timing of these subsequent alleged rapes, we think there may well be other explanations. For example, as we have already observed, the route to verdict and the directions of law required the jury to acquit on count 6 even if they were sure there were some further rapes, unless they were sure there were at least four more. Furthermore, JE had been inconsistent in her evidence as to the number of further rapes: 10 to 12 according to her ABE interview; a minimum of 7 or 8 in her oral evidence. Perhaps most telling of all, in her first account to her former partner of rape at Woodlands by the appellant, she had said (or given him the impression) that she had been raped only on one single occasion. That may well be a complete explanation for the acquittal. But in the end all the acquittal demonstrates is that the jury were not sure that the appellant had raped JE on at least four more occasions. 182. Having identified the key issue for the jury on count 5, the question for us is whether the judge failed to alert the jury sufficiently to the prejudice flowing from any missing documentation, and specifically (i) the absence of records to prove whether (and if so when) the appellant had actually ceased work at Woodlands in advance of starting his new job in Gloucestershire on 1 st May 1983, and (ii) the absence of records to prove whether (and if so when) JE had left Woodlands before Easter 1983, there being evidence that she had moved on to other accommodation “at the age of 16”, which could have been any time after her 16 th birthday on 17 th March 1983. 183. In the context of the case as a whole, we do not think that the judge was required to give any further tailored direction on this issue. The jury were made fully aware of the records that were missing. We have already quoted (at [152] above) the passage from the summing up in which the jury were reminded of the appellant’s own evidence that he might well have taken outstanding accrued holiday leave and therefore did not know the date of his last working day at Woodlands which “would have been available in records held at the time”. The judge also reminded the jury of his evidence that: “Sadly there are no records to prove definitively when anyone was there.” Similarly, the jury were well aware of the absence of JE’s social services records; that was the purpose of the questions to Nicholas Loone, establishing that to lose such records was a serious matter, as they contained: “… everything that was important in a child’s life”. 184. However, the jury had all available relevant dates in the agreed facts. They were well aware of the significance of the dates. Their question early on in the case during JE’s cross-examination (see [53] above), asking for the date the appellant’s employment ended and when he actually left Woodlands, showed that they were very much alive to the issue. The appellant and JE were, on any view, both at Woodlands together for a period of at least 6 months, from 22 nd September 1982 (when she arrived) to 17 th March 1983 (her 16 th birthday). It was for the jury to decide whether the appellant raped JE at any time during that period (count 5) and, if so, whether they could be sure that he raped her at least 4 more times (count 6). It was not an alibi case. 185. Rotas and other records might have revealed how often the appellant had been on duty with “Jim”, whether female staff were on duty with the appellant at weekends, and how few children were ever in residence on any weekend during that 6 month period. But there was no suggestion that “Jim”, or any other member of staff or child, had witnessed any inappropriate behaviour by the appellant. These were matters which went to JE’s accuracy and credibility, but no such records (if they had been available) could have proved definitively that JE was not raped by the appellant. The impact of the general prejudice caused by the absence of this material was sufficiently covered by the judge’s directions of law. 186. Finally, we think it significant that Ms Griffiths did not, at the time, consider that the judge’s summing up was so inadequate or defective as to justify such criticism in her grounds of appeal. We accept that mature reflection and analysis may sometimes lead to the discovery of error. But often a reliable indication of the adequacy of a summing up is the overall impression it made on counsel at the time, particularly counsel as careful and experienced as Ms Griffiths. Safety 187. In the light of all these conclusions we are satisfied that the appellant’s trial was fair, and that the sole conviction, on count 5, is safe. 188. The reality is that the defence had an unusual wealth of material on which to crossexamine JE robustly and effectively. We are quite sure that Ms Griffiths did so. The issue for the jury on count 5 was clear and stark. Were they sure JE was telling the truth in saying the appellant had raped her? The inconsistencies in her evidence were fully explored. The jury nevertheless believed her and disbelieved the appellant. We suspect that her vivid and accurate description of the cord trousers the appellant wore, down to the detail of colours, will have weighed with the jury. It would be an unusual thing for her to remember unless it carried an unforgettable sinister association. The evidence of the complaint to her ex-partner many years ago negated recent fabrication. The incident recalled by Helen Hall supported the general evidence of opportunity, albeit prior to JE’s time at Woodlands. The previous similar offences of which the appellant had been convicted in 1995 provided evidence of propensity. 189. The judge summarised the evidence fully and fairly. He identified the issues very clearly. We are quite sure that the jury had all Ms Griffiths’ points well in mind. They were plainly a discerning and diligent jury. The judge observed that the jury had sent no fewer than 32 notes during the course of the trial. The mixed verdicts the jury returned in relation to JE and the other female complainant, and their inability to reach verdicts on the counts relating to the male complainants, all demonstrate the care with which they examined and analysed the evidence. As Lord Judge CJ said in R v FS (quoted at [99] above): “…The best safeguard against unfairness to either side in such cases is the trial process itself, and an evaluation by the jury of the evidence.” We are quite satisfied that the jury faithfully discharged that duty of evaluating the evidence, and that this conviction of rape is safe. 190. For all these reasons, despite Ms Griffiths’ powerful and tenacious submissions, the appeal is dismissed.

2020_10_01-4979.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2020/1247/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2020/1247

e8e1a5ec223d1d6c0f1d9575141fc1842291a34938bc95945c1681161c59702f

[2014] EWCA Crim 1228

EWCA_Crim_1228

2014-06-04

crown_court

Neutral Citation Number: [2014] EWCA Crim 1228 Case No: 2014000945/A7 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 4th June 2014 B e f o r e : LORD JUSTICE McCOMBE MR JUSTICE NICOL RECORDER OF LIVERPOOL (HIS HONOUR JUDGE GOLDSTONE QC) (Sitting as a Judge of CACD) ---------------------- R E G I N A v PETER BERGIN ---------------------- Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communic

Neutral Citation Number: [2014] EWCA Crim 1228 Case No: 2014000945/A7 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 4th June 2014 B e f o r e : LORD JUSTICE McCOMBE MR JUSTICE NICOL RECORDER OF LIVERPOOL (HIS HONOUR JUDGE GOLDSTONE QC) (Sitting as a Judge of CACD) ---------------------- R E G I N A v PETER BERGIN ---------------------- 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 K Green appeared on behalf of the Appellant ---------------------- J U D G M E N T 1. RECORDER OF LIVERPOOL: The appellant, who is aged 55 years, appeals by leave of the single judge against sentences totalling 3 years' imprisonment, imposed in the Crown Court at Bradford by the Honorary Recorder on 27th January 2014, following his earlier pleas of guilty at the plea and case management hearing to two related offences, one of producing a controlled drug of Class B, that is cannabis, and the other of possession of cannabis with intent to supply. 2. The facts of the offences can be stated shortly. On 22nd June 2013 the appellant's neighbours, one of whom was pregnant, reported a strong smell of cannabis from the appellant's home to the police. The neighbours had previously complained directly to the appellant. That complaint had fallen on deaf ears. When the police attended they found in a bedroom a total of 90 cannabis plants whose potential yield when harvested was 3.78 kilograms, with a street value of in excess of £30,000. This was high quality skunk cannabis. 3. The appellant had installed a thermal tent and lighting to aid his production but there was no proper extraction or ventilation facility. That is the background to count 1. In addition in the kitchen the police found five bags, each containing 1 ounce of cannabis and also scales and two mobile telephones from one of which were retrieved eight messages in relation to the appellant's dealing, hence count 2. When the appellant was interviewed by the police, he said that this was his first growth and it was all for personal use. The incriminating texts related, he said, to the sale of sweets not drugs. In due course the appellant pleaded guilty at the plea and case management hearing not, it should be emphasised, at the preliminary hearing. The written basis of his plea was wholly unrealistic. Although it was initially accepted by the prosecution, the Honorary Recorder quite rightly, in our view, was critical of the stance taken by the Crown Prosecution Service and required an opening to justify that stance. Wiser heads prevailed. Further evidence was obtained by way of photographs and clarification and a Newton hearing would have taken place had not the appellant sensibly abandoned his original basis in advance of the date fixed for sentence. Thus the court was able to proceed to sentence on the basis that the appellant was producing cannabis for largely, though not exclusively, commercial purposes and was willing and able to deal at both street level and, as one of the texts made clear, in quantities of up to 4 ounces at a time. The significance of count 2, in relation to the appellant's overall criminality was that it, together with six stalks which had already been harvested, gave the lie to the appellant's original assertion that count 1 represented his first crop. 4. It was accepted before the Honorary Recorder and before us that the learned Recorder was entitled to treat the appellant as playing a significant role and that the quantities concerned meant that count 1 fell within level 2 and count 2 fell within level 3. For our part we do not think there was a useful purpose to be served by categorising count 2 in this way, having regard to the appellant's overall criminality and the importance of passing a sentence to reflect that. Likewise, the fact that there may have been a proportion of the cannabis cultivated for the appellant's personal use in no way, in our judgment, having regard to the overall size of the anticipated crop, would have warranted the treatment of the appellant in any different a category either as to role or as to level. Thus it was that the range within the Sentencing Guidelines on count 1 was two-and-a-half to 5 years, with a starting point of 4 years and on count 2 the range was 26 weeks to 3 years with a starting point of 12 months. 5. By way of personal mitigation reliance was placed by Mr Green, as he has done before us today, on the following matters. First, the absence of any significant criminal record. Such convictions as the appellant has are from very long ago and in no way aggravate his current plight. Consequently this will be his first sentence of imprisonment. Secondly, the appellant was suffering from ischaemic heart disease and chronic obstruction pulmonary disease. Thirdly, he had difficulty in coming to terms with the death of his parents who had died 3 and 6 years ago. He was, by the time of the hearing, determined to address his addiction to cannabis which had been exacerbated by the depression which he had felt following the death of his parents. 6. As far as the offences were concerned, it was submitted that this was not a wholly commercial enterprise nor was it sophisticated. We have already noted and accept the absence of any proper or effective ventilation system. We accept, as we are sure the sentencing judge did, that some at least of the cannabis was for his own use. But one has to be realistic, when one is looking at an overall crop of the size which was the potential harvest in this case; the likelihood of anything more than a modest quantity of the cannabis being for his own personal use is something which must have been borne in mind by the sentencing judge and is certainly the basis upon which this court has proceeded because cannabis has a life and one cannot, however bad or debilitating one's habit may be, pretend to use anything other than a very modest proportion of a crop of the size with which this case was concerned. 7. Against that background, the timing of the appellant's plea and the initial basis of that plea the Honorary Recorder imposed a total sentence of 3 years' imprisonment, in fact the sentences were 3 years and 1 year imprisonment to run concurrently. 8. Mr Green has advanced before us a number of grounds in relation to the starting point and the failure of the judge to reflect, in fixing it, the mitigation identified above. It was submitted in his grounds that the credit to which the appellant was entitled for his plea was wrongly adjusted because the initial basis of plea which was rejected by the prosecution and ultimately abandoned by the appellant was so fatuous. Before us, it has been accepted by Mr Green that the Honorary Recorder had discretion to treat the basis of plea in the way in which he did but it is a point which nevertheless merits some consideration. 9. Unfortunately, we are not assisted, in the judge's approach to sentencing, as to the starting point which he took or the percentage by which the sentence was reduced to reflect the appellant's guilty plea. So we are left in the slightly unsatisfactory, regrettably not uncommon, position of having to second guess the judge's thought process. We think that in this case, having regard to the guidelines and the appellant's overall criminality, yet balancing the personal mitigation available to the appellant, a starting point of 4 years following conviction would have been appropriate and was in the judge's mind. By what extent did the judge reduce or might the judge have reduced sentence to reflect the appellant's guilty plea, its timing and its circumstances? 10. We observe this was not a plea entered at the earliest opportunity and is one to which no more than 25% would be appropriate. We pause to observe that a discount of 25% from a starting point of 4 years produces a sentence of 3 years. As our task is to interfere with a sentence only if it is manifestly excessive or wrong in principle, that simple arithmetical exercise might be thought sufficient to dispose of this appeal. In deference to Mr Green's submissions, we have considered his argument to the effect that the appellant did not receive due credit. He relied in his skeleton argument on the case of R v Gunning [2013] EWCA Crim 179 , in which the appellant had availed himself of the Early Guilty Plea Scheme in force at the Merthyr Crown Court; he offered to plead guilty on a basis which was rejected but which had been abandoned by the time of his first appearance, whereupon he pleaded guilty and was sentenced on the same day. As Holroyde J pointed in the course of his judgment, the appellant in that case had done all that was required of him under the provisions of the Early Guilty Plea Scheme in operation at that court. The case fell within the principles laid down by the Vice-President in R v Caley & Ors [2012] EWCA Crim 821 and there was no justification for reducing credit below the level of a third. 11. In this case the situation was different but sadly one which is all too prevalent in the Crown Court . The appellant pleaded guilty at the plea and case management hearing on a basis which the prosecution were prepared to accept but which the judge regarded as wholly unrealistic. When the prosecution got its act together and realised the error of its ways and served further evidence the appellant abandoned his previously untruthful, untenable and unrealistic approach and was duly sentenced on a full facts basis. 12. Whilst every case turns on its facts, we think that the appellant was entitled to the credit which a guilty plea at the plea and case management hearing would normally have attracted. It was the prosecution's approach to the plea which was to blame for the situation which had arisen. If, when the judge had complained about the basis of plea, the prosecution had then conceded the point and acknowledged that it was unrealistic, the appellant's plea on that basis, even though it was ultimately abandoned, may well have justified a further modest diminution in the credit to which he was entitled, to reflect the wasted time and costs in obtaining and serving further evidence. But here, as in Gunning , there was little more that the appellant could be expected to do other than to plead guilty on the basis which the Crown Prosecution Service, albeit wrongly, regarded as acceptable. 13. We cannot overemphasise how important it is for the Crown Prosecution Service or other prosecuting authority to consider with care and in accordance with its public duty proposed bases of plea in all cases, whether or not they are realistic and whether or not they can properly form a basis for sentence. It is the experience of this court that this problem arises particularly and most frequently in cannabis production cases where the "personal use" basis often ignores the reality of the situation. Once it is rejected, the basis of plea is frequently abandoned and, if not, a Newton hearing, which will frequently involve evidence only from the producer to give his explanation can and should take place there and then without the need for an adjournment. 14. Returning to the facts of this case, it may be that the learned Recorder gave less than the 25% credit to which the appellant was entitled. If he did, he took a starting point correspondingly lower than the 4 years from which we believe that he should have started. 15. Either way, a total sentence of 3 years' imprisonment for this appellant's level of criminality, even taking into account his personal mitigation, cannot in our judgment be regarded as manifestly excessive or wrong in principle. With respect and deference to the submissions of Mr Green, this appeal is dismissed.

2014_06_04-3426.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2014/1228/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2014/1228

d31b4f46b53e50512c596ae71f4afd01773877cd47ee0e846ea333ab94e44bde

[2011] EWCA Crim 2753

EWCA_Crim_2753

2011-11-24

crown_court

Neutral Citation Number: [2011] EWCA Crim 2753 Case No: 2011/03264/A1 (1) 2011/03850/A2 (2) 2011/02215/A4 (3) 2011/02489/A3 (4) 2011/02221/A6 (5) 2011/02311/A4 (6) 2011/02204/A2 (7) 2011/04172/A5 (8) IN THE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 24/11/2011 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE ROYCE and MRS JUSTICE MACUR DBE - - - - - - - - - - - - - - - - - - - - - Between : R Appellant - v - H (1) R -v- Ferris (2) R

Neutral Citation Number: [2011] EWCA Crim 2753 Case No: 2011/03264/A1 (1) 2011/03850/A2 (2) 2011/02215/A4 (3) 2011/02489/A3 (4) 2011/02221/A6 (5) 2011/02311/A4 (6) 2011/02204/A2 (7) 2011/04172/A5 (8) IN THE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 24/11/2011 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE ROYCE and MRS JUSTICE MACUR DBE - - - - - - - - - - - - - - - - - - - - - Between : R Appellant - v - H (1) R -v- Ferris (2) R –v- W (3) R -v- P Walker (4) R -v- Dan (5) R -v- S (6) R -v- Robertson (7) R -v- P (8) Respondents - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - A Howarth for H (1) D Callan for Ferris (2) J Vakil for W (3) P Mason for P Walker (4) A Rafati for Dan (5) A Metzer for S (6) G Cooke for Robertson (7) J Warrington for Preston aka Khannon) (8) J Price QC for the Crown Hearing dates: (1-6) 11 th October 2011 (7 and 8) 13 th October 2011 - - - - - - - - - - - - - - - - - - - - - Judgment The Lord Chief Justice of England and Wales: 1. The court is once again revisiting issues which arise in the context of crimes brought to justice many years after they were committed, sometimes described as “historic” or “cold” cases. 2. In R v F [2011] EWCA Crim 1844 guidance relating to abuse of process applications arising from delayed prosecutions was promulgated. The present cases all arise in the context of historic sexual crime, that is, sexual offences committed many years ago but only recently brought to conviction. What this means in reality is that justice has eventually caught up with the criminal, sometimes years and sometimes indeed decades after the crime was committed. 3. The issue is the correct approach to the sentencing decision. Although a number of different questions arise, stripped to essentials specific guidance is required about the extent, if any, to which the court passing sentence should reflect the levels of sentence which would have been likely to have been imposed if the defendant had been convicted at a trial shortly after the offences were committed and, by contrast, the extent to which events during the long period between the commission of the crime and the sentencing decision may be relevant. We have examined numerous sentencing decisions in this court. Conflicting approaches to these questions are discernable. Accordingly leave was given in each case either by the single judge or this court for these interesting questions to be examined and decided. 4. The first six cases, H, Ferris, W, P Walker, Dan and S were heard together on 11 th October. Robertson and P were heard together on 13 th October. In Robertson the appeal was dismissed at the end of the hearing. This judgment deals with the remaining seven appeals, and provides the reasons for our decision in Robertson. 5. The descriptions, “historic” or “cold” cases, are not confined to sexual crime. Advances in science, for example, with DNA techniques, have led to successful prosecutions in many so called “cold” cases of homicide and other serious offences. In such cases ignoring any express statutory provisions, such as those to be found in schedules 21 and 22 of the Criminal Justice Act 2003 (the 2003 Act), the broad sentencing principles should coincide. 6. In cases of sexual crime, in particular sexual crime involving children or boys and girls who have recently reached puberty, it is a common feature and where it appears, effectively integral to the impact on the victim of the crime that he or she is ashamed shy, hesitant, fearful or terrified, or as a result of a combination of all these considerations, reluctant or unable to make a complaint at or close to the time of the offence. 7. On occasions those who do complain within the family or school environment are ignored and rejected, and thereafter feel powerless to help themselves. Thus it is that the crimes do not come to the attention of investigating authorities until years later, when with maturity, sometimes as a result of parenthood itself, but in reality for a variety of different reasons, the truth of what happened in childhood emerges. Such cases do not involve a delayed investigation. Until the report is made to the police there is nothing to be investigated. 8. On other occasions complaints brought to the attention of investigating authorities, whether proximate to the event or not, were not prosecuted. It was frequently thought that a conviction was unlikely, a view reinforced by the technical requirements of corroboration, in particular in relation to the evidence of children, which did not disappear until the coming into force of the Criminal Justice Act 1991. These earlier complaints may be resurrected by subsequent allegations. 9. We do not overlook a small number of exceptional cases (none of which are included in this group), where the perpetrator of the crime, haunted by a sense of guilt of what he did many years earlier, reports himself to the police, and triggers off the investigation. That raises specific sentencing problems. For the moment, however, it is sufficient to observe that this course is always open to every offender, but the majority live what often appear to be ordinary lives hoping, and indeed in many cases expecting, that their criminal activities will never come to light. Legislation 10. Self-evidently, the sentencing decision cannot be made until the defendant has been convicted. By definition, in historic cases, that will be years after the crime was committed. The criminal conduct will sometimes span different legislative provisions governing the substantive law of sexual crime, and variations in the maximum penalties. Sometimes, and this is the general trend when variations are introduced by statute, and perhaps well exemplified by reference to cases of causing death by dangerous driving, the maximum sentence is increased. There are however occasions when, as in the case of sentencing for theft, the maximum sentence is reduced. The legislation applicable to the present cases includes the Attempted Rape Act 1948, the Sexual Offences Act 1956, the Sexual Offences Act 1967, the Sexual Offences Act 1985, the Sexual Offences (Amendment) Act 1976, the Sexual Offences (Amendment) Act 1992 and the Sexual Offences Act 2003. 11. Over the same period, while the substantive law and sentencing provisions have been changing a variety of different sentencing regimes have been in force. The Powers of Criminal Court (Sentencing) Act 2000 was but one vast piece of legislation in the deluge of legislative provisions which have come, and gone, over the years. In the meantime provisions relating to the release of prisoners subjected to custodial penalties have also been changed. These include the Prison Act 1952, the Criminal Justice Act 1991, and the Criminal Justice Act 2003 which came into force in April 2005. These legislative provisions are not compartmentalised. For example, section 86 of the Powers of Criminal Courts (Sentencing) Act 2000 contains provisions relating to the release of those convicted of sexual offences committed before September 1998. We shall not anxiously parade an inclusive list of all the relevant statutory provisions. It would be unbearably long. We simply remind, with now customary trepidation, ourselves that yet further proposed legislation relating to sentencing regimes and prisoner release is currently in contemplation. 12. What is the judge to do? We must return to first principles. In relation to each of these appeals, the matters to be taken into account are explained in Chapter 1 of Part 12 of the 2003 Act. This contains general provisions about sentencing. They are well known. Sentencing judges cannot ignore statutory provisions which are currently in force. They apply to each and every sentencing decision, whenever the crime in question was committed, at the date of sentence. No specific provision is made for historic or cold cases. The judge is required to deal with the offender having regard to the express purposes of sentencing. These are defined in section 142 as: “…(a) the punishment of the 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.” 13. In considering the seriousness of any offence the court is directed by section 143 to: “…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.” The harm caused may of course be very long-standing harm, and in historic cases the evidence may show that the impact of the crime years after it was committed is still disturbing and painful to the individual who is now an adult. 14. As is well known, the 2003 Act created the Sentencing Guidelines Council. By section 172 it was the duty of the sentencing court to “have regard” to any guidelines issued by the Sentencing Guidelines Council. In accordance with its responsibilities, in 2007 the Sentencing Guidelines Council issued a definitive guideline relating to the Sexual Offences Act. Then, from April 2010, the Coroners and Justices Act 2009 (the 2009 Act) in effect abolished the Sentencing Guidelines Council and created a new body with additional responsibilities as the Sentencing Council for England and Wales. The overall effect of this legislation was that the definitive guidelines issued by the Sentencing Guidelines Council in relation to sexual cases continue in operation, at any rate until reconsidered by the Sentencing Council. By section 125 of the 2009 Act every court, when sentencing an offender, is required to follow any relevant guideline including the sexual offences definitive guideline, unless satisfied that to do so would be contrary to the interests of justice. In short, consistently with the statutory provisions, the starting point for the sentencing decision should normally be assessed by reference to the guidance in force on the sentencing date. 15. It is clear, however, that the definitive guideline relating to the Sexual Offences Act 2003 followed some very broad changes in the statutory identification of different forms of sexual crime. Thus there are examples of sexual activity which constituted crimes before the Sexual Offences Act 2003 came into force which are described as different crimes, and the penalties increased. So, for example, non-consensual oral penetration was formerly indecent assault, whereas now it constitutes rape. 16. In principle, the defendant must be sentenced in accordance with the sentencing regime applicable at the date of sentence. Nevertheless as the offence he committed years earlier contravened the criminal law in force at the date when it was committed, he is liable to be convicted of that offence and no other, therefore the sentence is limited to the maximum sentence then available for the offence of which he has been convicted. Changes in the law which create new offences, or increase the maximum penalties for existing offences do not apply retrospectively to crimes committed before the change in the law. In short, the offence of which the defendant is convicted and the sentencing parameters (in particular, the maximum available sentence) applicable to that offence are governed not by the law at the date of sentence, but by the law in force at the time when the criminal conduct occurred. The appeal of Khannan aka Preston vividly illustrates this principle. In such circumstances what we describe as retrospectivity would be unlawful. 17. The extent of the ban on retrospectivity needs to be clearly understood. In R (Uttley) v Secretary of State for the Home Department [2005] … the House of Lords considered the problem of retrospectivity in the context of prisoner release. Prior to 1983 Uttley committed a number of sexual offences, including three rapes. At that time the maximum sentence for rape was life imprisonment. He was not prosecuted until 1995. He was then sentenced to 12 years imprisonment. Under the statutory provision then governing release he was released after serving two thirds of the sentence, but remained on licence until he had completed three quarters of the sentence. The licence provisions imposed restrictions on his freedom, and he was liable to recall to serve the balance of his sentence if he failed to comply with the conditions. By contrast, if he had been sentenced to 12 years imprisonment under the release regime applicable in 1983, subject to good behaviour, he would have been released at the same point of the sentence, but unconditionally and the sentence would have expired on his release. Consistent with long established common law principles, Article 7(1) of the European Convention of Human Rights prohibits the imposition of a heavier penalty than one “applicable” at the time when the offence was committed. 18. In the Court of Appeal Uttley was granted a declaration of incompatibility on the basis that the release provisions under the new regime (that is after 1992) were harsher than the penalty which would have been imposed under the regime which applied in 1983. In the House of Lords it was held that an infringement of Article 7 would only arise “if a sentence imposed on a defendant which constitutes a heavier penalty than that which could have been imposed … under the law in force at the time that his offence was committed” (per Lord Phillips at paragraph 21). The applicable maximum sentence for rape was life imprisonment. A sentence of 12 years was a lesser penalty. The view of Lord Rodger and Lord Carswell can be summarised in a brief sentence taken from the decision of the Judicial Committee of the Privy Council in Flynn v HM Advocate [2004] UKPC 1 that “the object of the provision (that is Article 7) appears to have been to prevent a sentence being imposed which could not have been imposed at the time of the offence, because the maximum was then lower”. In the result therefore in historic cases, provided sentences fall within or do not exceed the maximum sentence which could lawfully have been imposed at the date when the offence was committed, neither the retrospectivity principle nor Article 7 of the European Convention are contravened. 19. The same broad approach can be discerned in R v Round and Others [2009] EWCA Crim. 2667 . The issue was the eligibility or otherwise of the appellants for release under home detention curfew and the variation consequent on the way in which the sentence was structured. Hughes LJ identified the “general principle that early release, licence and their various ramifications should be left out of account upon sentencing “is a matter of principle of some importance”. Addressing the argument that the judge should consider early release possibilities when calculating his sentence or framing his order, he continued, “We are quite satisfied that it is neither necessary, nor right, nor indeed practicable, for a sentencing court to undertake such examinations. Ordinarily, indeed, it will be wrong to do so”. This analysis was consistent with and followed earlier decisions in this court in R v Bright [2008] EWCA Crim. 462 and R v Giga [2008] EWCA Crim. 703 . Judicial decisions 20. We have considered a large body of earlier judicial decisions, many more than we have felt it necessary to refer to in this judgment. 21. Perhaps we should begin by seeking to identify the sentencing guidance on sexual offences which would have been available at different dates during the last forty or so years. There were, in fact, very few sentencing decisions relating to historic sexual crime, not least because, as we have already explained, if complaints were made long after the event, the reality was that they were not prosecuted. 22. For most of the period during which the offences with which these appeals are concerned there was no broad guidance on sentencing in sexual offences, and in any event, nothing like the carefully structured definitive guidelines with which we have now become familiar. 23. We note that in Willis [1974] 60 Cr App R 146 guidance was issued for the sentencing in buggery cases. For offences lacking both aggravating and mitigating factors the level would normally be from three to five years. The court then identified some of the aggravating and mitigating factors. Neither list was all embracing. Lawton LJ went on to suggest that many of these features would be relevant in cases of indecent assault on boys, adding that it was not “the label of indecent assault which was important but the nature of the act”. Some cases were not serious, but in others “the assault may take the form of a revolting act of fellatio, which is as bad as buggery, maybe more so. Sentences should reflect the seriousness of the act constituting the indecent assault”. 24. In R v Roberts and Roberts [1982] 4 Cr App R (S) 8 the court identified a number of features which underlined the seriousness of rape. The length of the sentence would depend on all the circumstances. A number of aggravating features of the crime were identified. Both appeals against sentence were dismissed. The court returned to the issue in Billam [1986] 8 Cr App R (S) 48 and on this occasion, giving judgment in ten different cases of rape which were listed together, Lord Lane CJ offered further observations on the length of sentences appropriate in cases of rape. He identified cases where the starting point should be 5 years’ imprisonment, and then others where it would be 8 years, and yet further circumstances in which a 15 year sentence or indeed a life sentence would be appropriate. Having done so, he then identified a number of matters which would aggravate the crime, and therefore lead to a sentence “substantially higher than the figure suggested as the starting point”. He then turned to consider the starting point for attempted rape, normally less than for the completed offence, especially if desisted at a comparatively early stage, but also acknowledged, as one of the cases then before the court illustrated, that some aggravating features of the offence might make an offence of attempted rape even more serious than some examples of the full offence. 25. In Attorney-General’s Reference (No1 of 1989) 11 Cr. App. R (S) 409 a sentence for incest was increased from three years to six years. Guidance was offered to sentencing courts just because it was “very difficult to reconcile the various sentences for the crime of incest which had been imposed or approved by different decisions of this court”. 26. As far as we are aware no other guidance was offered in cases involving sexual offences before the well known guideline case of R v Millberry and Others [2003] 1 WLR 546 , to which we shall come in due course. 27. These guideline cases provide a very narrow and unsatisfactory basis for making any realistic assessment of the likely level of sentence if a historic sexual crime had come to light at or shortly after the time when it was committed. The Criminal Appeal Reports (Sentencing) series of law reports was not published until 1979. The first volume, in contrast with today, was a very modest tome. The first edition of Dr David Thomas’s monumental work, Current Sentencing Practice, was not published until 1987. In reality there was no overall guidance to the correct approach to sexual crime, and in particular to the approach to be adopted in historic cases. 28. We can now come to sentencing decisions since the early 1990’s. We do not propose to identify all the many cases where this court has or may have been concerned with sentencing in historic sexual abuse crimes. The body we have assembled in this judgment is quite sufficient to highlight the various trends. It is a truism, and has long been a truism, that when passing sentence, the court should reflect on all the facts, including events since the offence was committed, with, according to Bird [1987] Cr App Re (S) 77, account to be taken of the defendant’s subsequent positive good character. In Tiso [1990-91] 12 Cr App R (S) 122 the court was clear that allowance should be made for a defendant who changed from a criminal life-style to a law abiding way of life, acknowledging the positive emergence of favourable features, the mere fact of delay, particularly in cases of sexual abuse should be approached with caution as a feature of mitigation. In such cases there were many reasons, including the consequences of the offences themselves, and developing understanding of the consequent problems which contributed to potential delay. 29. In Cuddington [1995] 16 Cr App R (S) 246 a two judge constitution of the court considered the case of an appellant who was 22 years old when sentenced, but 15 or 16 when he babysat for and indecently assaulted two nieces when they were aged between 8 and 12 years. The children complained to their mother. Child Protection and Social Services became involved. The appellant denied the allegations, and the issues were not then pursued. It was in those circumstances that the court observed: “The most telling point…seems to be…that had the matters been discovered and timeously dealt with, the appellant would have been entitled to be treated as a juvenile and detained for no more than 12 months. Whilst that is not in itself definitive of any sentence which should later be imposed upon him, it is a powerful factor to be taken into account.” In context, this observation was unsurprising. There was good evidence against the appellant some years before he was eventually prosecuted. In any event he was very young at the time when the offences were committed. The appropriate sentence was 12 months’ imprisonment. Accordingly his appeal against sentence was allowed. 30. The decision in Cuddington was drawn to the attention of the court in R v Dashwood [1995] 16 Cr App R (S) 733 and was considered in the judgment of Lord Taylor CJ. Addressing it he observed: “We take the view that there is no axiomatic approach to a problem of this kind which would entitle the court to say that the right sentencing approach is to look at the matter as at a particular date. We consider that the matter has to be looked at in the round. The fact that the series of offences was committed when the offender was 14-15 is, as was said in Cuddington , a powerful factor in affecting the appropriate sentence to pass as at today. On the other hand it is not the sole and determinative factor. We also have to look at how a 14-15 year old might be dealt with today and we have to look at all the circumstances of the case.” He repeated that all matters had to be looked at in the round. 31. Given the importance subsequently attached to Cuddington, there are two features of these decisions to be borne in mind. First, in Cuddington itself the court was not purporting to lay down any sentencing principle. Two judge constitutions of this court do not normally do so. It was case specific that “the most telling point” was the likely outcome if the case had been pursued at the time when it could have been pursued, and in any event that consideration was not “definitive”, but a “powerful factor”. Dashwood emphasised that there was “no axiomatic approach”, that the sentence had to be looked at in the light of all the facts including the youth of the offender when he committed the offences. The Court of Appeal itself, assessing the sentence, expressly considered the way in which such a young offender would be dealt with at the date when the appeal was heard. In other words, current sentencing policy at the date of sentence was relevant and should not be ignored. This was an early articulation of the approach subsequently adopted in the guideline case of Millberry . 32. In R v Bowers [1999] 2 Cr App R (S) 97 the court treated the observations of Lord Taylor CJ in Dashwood as approving rather than expressing reservations about the ambit of what the court had said in C uddington . In view of our earlier observations we would have been much more hesitant than the court in Bowers about the extent of the approval given in Dashwood to Cuddington . In particular, no reference was made to Lord Taylor’s direction that the court would also have in mind current sentencing policy was a relevant consideration. In R v Fowler [2002] 2 Cr App R (S) 99 the court decided that it was bound by Bowers to follow Cuddington , again without reference to Dashwood . 33. These issues were examined in the well known guideline case of R v Millberry and others in a constitution presided by Lord Woolf CJ, with Rose LJ, the Vice President of the Court of Appeal Criminal Division and Hett J (as she then was) forming the constitution. The entire question of sentencing in rape cases was examined. As to historic cases “the same starting points” used for contemporary sentencing policy applied. The fact that the offences were stale could be taken into account “but only to a limited extent”, just because it was always open to an offender to admit the offences. The absence of any earlier reporting was often explained by the relationship between the offender and the victim, which in such cases was frequently an aggravating feature of the offence. The court might take a more lenient view than it would otherwise because of the age of the offender (including) “…a reduced risk of re-offending. In addition, the court is always entitled to show a limited degree of mercy to an offender who is of advanced years…”. As it seems to us, this unequivocal decision diluted any surviving principle to be derived from Cuddington and the decisions which purported to follow it. 34. This approach was followed shortly afterwards in Attorney-General’s Reference ( Nos 37, 38, 44, 54,51, 53, 35, 40, 43,45, 41and 42 of 2003 ) [2003] 1 Cr App R (S) 84 . The court dealt with 12 unrelated cases involving sexual crime. Some involved historic sexual abuse. These were said to present a particularly difficult sentencing task when sentencers were confronted by a man of mature years frequently accompanied “by his distraught family”. Nevertheless there was a need for consistency of approach to sentencing in these cases, and the specific guidance given in Millberry to the correct approach to “historic” cases was emphasised. 35. In McKendrick [2005] 2 Cr App R (S) 68 the court accepted that the age of the defendant at the time when the offences were committed might be a relevant feature bearing on his culpability. Nevertheless it expressly rejected the suggestion that the sentence was too high, observing “there can be little doubt that if the trial had taken place in 1982 the sentence would have been less because in general the sentences for rape were at a lower level than they are now. But the judge was plainly right to sentence in accordance with the current sentencing principles, and there is no complaint about that”. 36. In Patterson [2006] EWCA Crim. 148 an offence committed in 1988 was brought to justice in August 2005. The appellant apologised for his actions shortly after the offence was committed, but did so which in terms suggested that it was less serious than was in fact the case. However by 1999 he informed the rector of the parish that he had anally raped the victim, and he wrote to the victim’s foster mother explaining that the offence was more serious than had first been thought. A few years later the former rector realised that the matter had not been resolved so he contacted the police. The victim was traced but could recall little of the incident. The appellant surrendered to bail, and after declining to comment in the first interview, in the second admitted the full offence. It was argued that Willis provided the appropriate guidance, and that it had indeed been followed for many years. (See Aldon and Wright [2001] 2 Cr. App. (S) (401)). The sentencing judge followed the guidance provided in Millberry . He did so, first, because the court had specifically adverted to male rape and held that the same guidelines should apply as in cases of female rape, second, because buggery without consent is male rape in fact if not in name, and third because the offence of buggery with a boy under 12 carried the same maximum sentence of life imprisonment under the legislation in force at the time when the offence was committed as it did under the Sexual Offences Act 2003. The judge was also “guided” by the observations in Millberry about sentencing in historic cases which made it clear that “the same guidelines apply in those cases, subject to adjustments to reflect the circumstances of the case, one of which may be the lapse of time”. On the appeal against sentence the court concluded that the sentencing judge was right to apply the guidance provided in Millberry rather than Willis , and to allow the appellant credit for his good character and good behaviour since the date of the offence. 37. In Attorney-General’s Reference ( No 39 of 2006 ) [2007] 1 Cr App R (S) 34 in a “historic” case, the judge imposed a suspended sentence taking account, among other features, of the time which had passed since the offences were committed as part of the conclusion that there were sufficient exceptional circumstances to enable him to suspend the sentence. Ordering an increased immediate custodial sentence, the court rejected the conclusion that the circumstances were exceptional. 38. In R v B [2009] EWCA Crim 1062 , the appellant, a happily married man, revealed to his wife that when he was 15 he had had a sexual relationship with his much younger step-sister and that when her mother and his father discovered what had been happening he was thrown out of the house. In her evidence the victim made clear that she had been entirely willing to participate, although, because of her age, her consent could not be treated as “real” consent. After this relationship came to an end the appellant himself had had a blameless life. He had married and helped bring up his young children. The sentence was reduced, the court applied what was described as the “principle” enunciated in Cuddington , referring at the same time to Dashwood, (but only in the limited way identified in Bowers and Fowler. ) No reference was made to Millberry and the subsequent cases. We regard this as a fact specific decision which needed no reinforcement by reference to Cuddington . 39. In Mansfield [2009] EWCA Crim 2158 , another “historic” case, the court rejected the criticism that the judge had been wrong to attach weight to current sentencing guidelines, that is the definitive guideline issued in 2007 by the Sentencing Guidelines Council. Although they were not available at the time when the offences were committed, “they are important in that they reflect the seriousness of all sexual offences,…sentencing now passed for offences of historic sexual abuse must reflect modern attitudes to such offending”. This observation is clearly derived from the passages in Millberry dealing with historic sex cases. The judgment continued, “the judge’s sentencing for historic offences of rape and other offences of non-consensual penetration should continue to follow the guidance given by this court in R v Millberry… ”. 40. In R v SM, RM [2010] EWCA Crim 1801 , the sexual offences committed by RM had been committed some 36-40 years earlier when he was between 14 and 17 years of age. There had already been a police inquiry, but this had not been taken further forward because of the forgiving attitude of the complainant. The judgment continued that the judge “was obliged to apply the principles which emerged from the decisions in Cuddington, Dashwood and Fowler . From them two principles were identified. “First, it is appropriate for a court in a case of this nature to consider what sentence the appellant was likely to have received had the offences been discovered at the time and dealt with timeously. Secondly, the court is entitled to have regard to the sentence that might have resulted had a defendant at the age of the appellant when committed the offence has come before the court today to be sentenced for such offences.” These are “powerful factors”, not determinative, and the judgment underlined that the matter was to be “looked at in the round”, with particular reference to the reasons for the delay, and whether the defendants were responsible for it. This was a bold attempt to reconcile Cuddington and Dashwood as properly understood. 41. In Attorney-General’s Reference ( No 78 of 2010 ) [2011] EWCA Crim 1131 , another “historic” case, this court reflected on the observations in Mansfield in the context of R v Bao [2007] EWCA Crim 2781 . It concluded that the Sentencing Guidelines Council’s definitive guideline could not offer applicable guidance to an offence which, at the time it was committed, was different in character and carried a much lower maximum penalty than the equivalent conduct now to be found in the Sexual Offences Act 2003. That was an appropriate approach on the facts. Virtually simultaneously a different constitution of the court was applying a different principle to the use of the definitive guidelines. 42. In Attorney-General’s Reference ( No 7 of 2011 ) [2011] EWCA Crim 1269 the court considered Mansfield and suggested that courts were bound to acknowledge the more up to date and realistic approach to sentences of serious sexual crime involving children. Moses LJ observed that: “ the modern approach to the gravity of the offences is appropriate provided that account is taken of the charge by reducing the sentences to reflect the lower maximum relevant at the time they were committed. Thus, courts are bound to look at the Definitive Guideline identifying that guideline, not by the name of the offence which has now changed but, …by reference to the facts disclosed in the case.” 43. In R v Hartley [2011] EWCA Crim 1299 , a “historic” case, the court presided over by Hughes LJ, the Vice President of the Court of Appeal Criminal Division, was required to approach “the question of sentence afresh”. Hughes LJ said: “These were offences under the Sexual Offences Act 1956 before the change to maximum sentences made, now some years ago, by the Sexual Offences Act 2003. The guidelines issued by the Sentencing Guidelines Council relate to the 2003 Act. They do not accordingly apply directly, although they are perhaps relevant as of some assistance to the general relative level of sentences as between different forms of offending.” 44. In R v S [2011] EWCA Crim 1479 the court allowed for a reduction in sentence on the basis that the offences committed by the appellant took place before the new early release provisions introduced by the Criminal Justice Act 2003 were in force. As far as we can discern the attention of the court was not drawn to Round and similar cases. The correct principle was identified in R v Round and Others [2009] EWCA Crim. 2667 . 45. In R v Moon [2011] 1 Cr App R (S) 34 a two judge constitution of the court considered a “historic” case of sexual crime. The judge approached his sentencing decision by considering current legislation. The court concluded that he was wrong to approach the sentencing decision by considering “what the sentence would be today”. One reason was that the offence to which the defendant pleaded guilty (unlawful sexual intercourse) was a different offence to the offence from “rape of a child under 13” which would apply now. The court went on “the correct approach is to look at the sentencing guidelines at the time when the offence was committed and prior to the introduction of the new Act”. That, in effect, is a return to Cuddington , albeit for different reasons, not least the difficulties of the changes in the law. No reference appears to have been made to the guideline decision in Millberry or the subsequent cases which followed it, or the definitive guideline relating to sexual offences, and indeed no specific reference was made to Cuddington or Dashwood . It is correct that unlawful sexual intercourse was not the same offence as the current offence of rape of a child under 13. But the culpability of the defendant in doing what he did was not changed by the way in which the offence was described. Subject to proper attention given to the maximum sentence for unlawful sexual intercourse at the time when the offence was committed, the approach of the trial judge was not open to criticism, at any rate to the extent that he had regards to levels of sentence current at the date of sentence for the defendant’s activity. This decision is inconsistent with Mansfield . 46. We can now summarise the principles to be derived from statute, the authorities which purport to provide guidance, and fact specific decisions In the search for principle it is impossible to reconcile them all. We suggest that with the exception of Millberry and Others , and the definitive sentencing guideline (used in the measured way we shall suggest) that the following considerations should be treated as guidance. We further suggest that reference to earlier decisions is unlikely to be helpful, and, again dealing with it generally, to be discouraged. Subsequent decisions of this court which do not expressly state that they are intended to amend or amplify this guidance should also be treated as fact specific decisions, and therefore unlikely to be of assistance to court. 47. (a) Sentence will be imposed at the date of the sentencing hearing, on the basis of the legislative provisions then current, and by measured reference to any definitive sentencing guidelines relevant to the situation revealed by the established facts. (b) Although sentence must be limited to the maximum sentence at the date when the offence was committed, it is wholly unrealistic to attempt an assessment of sentence by seeking to identify in 2011 what the sentence for the individual offence was likely to have been if the offence had come to light at or shortly after the date when it was committed. Similarly, if maximum sentences have been reduced, as in some instances, for example theft, they have, the more severe attitude to the offence in earlier years, even if it could be established, should not apply. (c) As always, the particular circumstances in which the offence was committed and its seriousness must be the main focus. Due allowance for the passage of time may be appropriate. The date may have a considerable bearing on the offender’s culpability. If, for example, the offender was very young and immature at the time when the case was committed, that remains a continuing feature of the sentencing decision. Similarly if the allegations had come to light many years earlier, and when confronted with them, the defendant had admitted them, but for whatever reason, the complaint had not been drawn to the attention of, or investigated by, the police, or had been investigated and not then pursued to trial, these too would be relevant features. (d) In some cases it may be safe to assume that the fact that, notwithstanding the passage of years, the victim has chosen spontaneously to report what happened to him or her in his or her childhood or younger years would be an indication of continuing inner turmoil. However the circumstances in which the facts come to light varies, and careful judgment of the harm done to the victim is always a critical feature of the sentencing decision. Simultaneously, equal care needs to be taken to assess the true extent of the defendant’s criminality by reference to what he actually did and the circumstances in which he did it. (e) The passing of the years may demonstrate aggravating features if, for example, the defendant has continued to commit sexual crime or he represents a continuing risk to the public. On the other hand, mitigation may be found in an unblemished life over the years since the offences were committed, particularly if accompanied by evidence of positive good character. (g) Early admissions and a guilty plea are of particular importance in historic cases. Just because they relate to facts which are long passed, the defendant will inevitably be tempted to lie his way out of the allegations. It is greatly to his credit if he makes early admissions. Even more powerful mitigation is available to the offender who out of a sense of guilt and remorse reports himself to the authorities. Considerations like these provide the victim with vindication, often a feature of great importance to them. The Individual Cases 48. The facts briefly summarised. R v H 49. H was born in 1954. In about 1966/7 when his youngest sister PW was aged 11 and he 12, he followed her to the outside lavatory on the family farm and indecently assaulted her by inserting his fingers into her vagina. This occurred on about three or four occasions. Another sister was SM, who was seven years younger than the applicant. In 1970/2 when she was aged between 9 and 10 and he between 16 and 17 yours old, a similar indecent assault occurred when they were in the barn at the farm. This was a single incident. In 1976/9 the appellant then aged 22/23 exposed his penis to another sister, some 16 years or so younger than he was, aged 6/8 years, and when she refused to stroke it, took her hand and forced her to do so. This occurred on a number of occasions over a number of months. The fifth complainant was the appellant’s niece, who went with the applicant to a show. He was then 32 years old, and she was 8 years old. When they were alone he touched and stroked her left nipple with his finger under her t-shirt. 50. The first complaint was reported to the police in 2010. The other complainants then came forward. In interview the appellant denied all the allegations. Nevertheless on 19 April 2011 in the Crown Court at Hull before His Honour Judge Baker QC and a jury he was convicted of the counts involving these girls. Shortly afterwards he was sentenced to a total of 42 months’ imprisonment. He was sentenced to 6 months’ imprisonment concurrent on the counts relating to PW, 18 months’ imprisonment concurrent on the count relating to SM, 21 months’ imprisonment consecutive for the count relating to JH, with a further 3 months’ imprisonment consecutive for the assault on his niece. The appropriate ancillary orders were made. 51. When passing sentence the judge observed that sentencing in cases of this kind was difficult, and that the Court of Appeal had provided guidance to the effect that unless the offender was very elderly the age of the offences required the sentencing court to impose what would otherwise be the appropriate sentence. He was plainly referring to Millberry . However the current sentencing guidelines did not apply to these offences. For example the maximum sentence for some of the counts, which would nowadays be prosecuted as assault by penetration, is life imprisonment, whereas the maximum sentence for indecent assault under section 14 of the Sexual Offences Act 1956 was 5 years if the count asserted that the child was under the age of 13, and 2 years if it did not. From September 1985 the maximum sentence available for the indecent assault involving the appellant’s niece was 10 years’ imprisonment. 52. The judge took into account not merely that the offences were of some age, but that the first offences were committed when the appellant was very young indeed. There were no relevant previous convictions. He reminded himself of the totality principle. 53. The grounds and submissions on appeal argue, in essence, that the total sentence was manifestly excessive. Given the age of the appellant when the first offences were committed, a custodial sentence was unnecessary. The sentence for the last offence should have been ordered to be served concurrently. 54. The difficulty facing this appellant is that there were no less than five victims of sexual abuse, and although some had started when he himself was very young, he continued his sexual crimes when he grew up, and the gap in age between him and his victims became steadily wider. Similarly, in terms of breach of trust, that would be a feature without any real significance when his offending started, but by the time he was in his mid to late teens, he was undoubtedly in a position of trust with the young female relatives. 55. Without the benefit of a guilty plea, the sentence in total was not excessive. R v Ferris 56. These offences occurred in the early 1980s. JM and KM were brother and sister. Their parents separated when JM was about 4 years and KM about 8 years old. JM moved in to live with his father, his father’s new partner and her son, A, himself aged about 6 years. KM lived with her mother, but visited her father at weekends and in the school holidays. 57. At the time the appellant was aged 18 or 19 years. He was a lodger at the father’s home and would babysit and look after the children when the father and his new partner went out in the evening. 58. On one occasion in 1983 or 1984 when he was looking after JM and A, the appellant told the two boys to go to bed. JM played up, but eventually went to bed with A. The appellant got into bed between the two boys. He took JM’s hand and made him masturbate him for a short while. 59. At much the same sort time when KM was about 9 years old, she was staying with her father. She was lying on the sofa with the appellant. He pulled her on top of him and ground his groin into her while holding her in a bear hug. They were both fully clothed. However she was aware that he had an erection. This happened on more than on occasion. On another occasion she had gone to bed to avoid her father who was drunk. The appellant came in to comfort her. He put his hand on her thigh and his hand up her nightdress and touched her vagina over her underwear. 60. No complaints were made at the time. Then, in August 2008, JM told his mother about what had happened, and she approached KM, who revealed what had happened to her. 61. The appellant who was then living abroad was eventually arrested and interviewed. He accepted that he may have had fun fights with the boys, but denied any indecent touching. He maintained his denials at trial, but on 12 April 2011 at the Crown Court at Durham before His Honour Judge Bowers and a jury he was convicted of two counts of indecency with a child and one count of indecent assault. The available maximum sentences for the offences of indecency with a child were 2 years’ imprisonment, and for the indecent assault, where the indictment specified, as it did, that the child was under 13 years at the time, 5 years’ imprisonment. 62. In June 2011 the appellant was sentenced to 12 months’ imprisonment on each count, with the sentence on count 2 to run consecutively. The total sentence was 2 years’ imprisonment. The appropriate ancillary orders were made. 63. Passing sentence the judge recognised that at the time of the offences the appellant was still a teenager who had been put in a position of responsibility towards the children. He also noted that these were not the most serious of sexual assaults but the complainants were young at the time and the abuse had had a profound long lasting effect upon them. The judge reflected not only on the time that had passed, but the fact that the appellant had no significant convictions during the previous 25 years. 64. The grounds of appeal, and the submission, is that the offending was at the lower end of the scale, and the touching momentary. They occurred when the appellant was aged just 18 or 19 years. There were no relevant previous convictions, and the applicant was now married with children of his own, and had led a decent hard-working life since the offences were committed. 65. Balancing the aggravating and mitigating features of these offences was, and remains extremely difficult. In essence although the sexual assaults were not of the most serious kind, they had a significant impact on the victims while the appellant himself had put his relatively youthful sexual offending long behind him. The sentence was at the severe end of the appropriate sentencing bracket, but the case proceeded as a trial, and it would not be appropriate for us to interfere with the sentence imposed by a very experienced judge. R v Arthur Walker 66. Between 1976 and 1980 the appellant’s daughter SHM was sexually abused when she was aged between 10 and 13 years. She confronted him. She eventually complained to the police and following a trial in January 2005 the appellant was convicted of eight counts of indecent assault and four counts of indecency with a child. He was sentenced to 5 years’ imprisonment for the offences. 67. At the time when she complained to the police SHM had contacted SM to ask if any of her children had been abused by the appellant. SM did not want to be involved at that stage and said that they had not. SM had begun a relationship with the appellant in 1984. She had three children, including the complainant, SAM who was born in 1976. In 1985 the appellant was a regular visitor to their home, and when SAM was aged 9 years or so, he began to abuse her. There was a careful grooming process, and gradually the appellant touched her breasts, and then in subsequent years digitally penetrated her vagina. This conduct continued while the child was aged between 9 and 12 years. She then told her own father what had happened. It appears that others were aware of the allegations. The abuse then came to an end, and there was a period when there were no further incidents until an occasion in about 1991 when the complainant was aged 15 years she was a virgin. The appellant caught her smoking a stolen cigarette out of her bedroom window. He told her that she was in trouble. He pushed her on to the bed and raped her. Ejaculating on to her leg. SAM finally reported the events to the police in July 2009. 68. The appellant denied any improper behaviour towards her. However on a re-trial, in February 2011 in the Crown Court at St Albans before His Honour Judge Plumstead the appellant was convicted of seven counts of indecent assault and one count of rape. The maximum sentence available for count one was 5 years’ imprisonment, for the remaining counts of indecent assault it was 10 years’ imprisonment, and for rape a sentence of life imprisonment was available. 69. In March 2011 he was sentenced to 15 years’ imprisonment for rape with no separate penalty ordered on the remaining counts. The appropriate ancillary orders were also made. 70. In his sentencing remarks the judge noted the age of the complainant when the abuse started. He noted that the offending had ceased, that the girl was raped when the appellant took the opportunity available to revenge himself for the fact that she had disclosed his earlier sexual abuse. The rape was very unpleasant and brutal. He had taken her virginity in circumstances where he intended further humiliation and to subjugate her. 71. The judge also noticed that this was the second occasion when he came to be sentenced for sexual abuse of a female child. He noted that SHM had given evidence at the present trial. As to SAM he had played the role of an affectionate father figure and having gained her trust began to abuse her. This was a bad case of rape of an under-aged girl following a bad case of repeated abuse by someone in a position of trust of a vulnerable child. 72. The judge acknowledged the appellant’s age, and that the danger he presented to the public was reducing as he became older. He considered the imposition of a life sentence, but decided that this was not required. The sentence would be structured so that no separate penalty would be passed on the counts of indecent assault, but that was not to be taken as an indication that they were not to be regarded as serious. 73. The grounds of appeal and the submissions developed at the hearing can be briefly summarised. The sentence for rape was, it is said, outside the range of the sentencing guidelines, and in any event the sentence had been imposed on a basis that was not supported by the evidence, producing a total sentence that was too high in view of the appellant’s age, the time that had elapsed since the offences were committed, and the fact that he had served a 5 year prison term in the meantime. 74. We disagree. There was a prolonged period of grooming involving sexual abuse and digital penetration of a child. When she complained it was brought to an end, and then, given the opportunity to take revenge on her, the girl, a virgin, was forcibly raped. The question for us is whether, following a trial, the total sentence was excessive. Given the overall criminality, in our judgment it was not. The judge could readily have imposed a series of concurrent sentences to reflect all the counts of indecent assault, with a separate consecutive sentence for the rape. Indeed given the seriousness of the offences of indecent assault, it would have been preferable if separate sentences had indeed been imposed on each count. On the whole an order for no separate penalty should be reserved for cases where the criminality is minimal. Be all that as it may, this was an appropriate sentence. R v Philip Walker 75. P Walker was a respected schoolmaster, teaching English physical education and drama at schools in the West Country. He retired in 2008. In 2010 allegations surfaced of a broadly similar nature which involved the commission of relatively low level indecent assaults against pupils at two schools. 76. When he was approached by the police he initially denied any wrongdoing or inappropriate behaviour. However at trial in February 2011in the Crown Court at Taunton before His Honour Judge Ticehurst he pleaded guilty to 10 counts of indecent assault involving 6 girls and 2 counts involving one boy. He was sentenced to 9 months’ imprisonment on each count with a sentence on one count to run concurrently, and the remainder consecutively, producing a total sentence of 54 months’ imprisonment. Appropriate ancillary orders were made. The essential facts of most of these assaults can be seen in the complaint made by PM. She arrived at school and was befriended by the appellant. He made clear that she was one of his favourites and gave her jobs to do. That was a form of grooming, because the tasks meant that she came into contact with him. He took advantage of the opportunities to stroke her legs, touch her bottom and her breasts. He habitually touched her bottom under her skirt or pinged her bra strap. 77. Another girl, who was a pupil a few years later, was keen to obtain her entertainers badge with the Girl Guides. The appellant helped her during lunch breaks in the drama studio. He would ask her to simulate actions such as putting on jeans, or lying on the floor in such a way that her underwear was exposed. When jumping from the trampoline at school, girls were told to jump into the appellant’s arms and he would take the opportunity to hug them and feel their bottoms. KB tried to avoid this by jumping off the other side of the trampoline. On occasions the appellant would come behind her in the classroom on the pretext of checking her work and put his hand down her back and feel her bra strap and ping it. 78. TM was taught physical education by the appellant. She reported that the appellant had felt her bottom and put his hand down her back and pinged her bra strap. He tried to undo the clasp of her bra. She developed strategies to avoid him. 79. DH experienced indecent assaults of a similar nature, and so did RW and CD. No further description is needed. 80. The appellant moved schools. He befriended a boy JH, who was a pupil between 1993 and 1996. In his second year, the appellant started to touch him, by rubbing his genitals with the back of his hand whenever an opportunity occurred. When the complainant was using the computer, the appellant would sit beside him, rub his let against the complainant and put his hand on the top of the complainant’s leg. On another occasion he drew the complainant to him in a hug and spread his hands over JH’s bottom, touching and holding his genitals. 81. During the police investigations into these offences it emerged that a number of pupils at both schools had reported the habit of the appellant to engage in inappropriate behaviour. No action was taken by either school. Some of the complainants were told they were being silly and should not repeat what they had said. If something had been done at an earlier stage there would have been fewer victims of this appellant. We draw attention to the failures of the schools to take these complaints seriously, because they form part of the factual narrative, but there is no evidence to suggest that the appellant himself was involved in the negative response of the relevant authorities, and accordingly, this feature of the case does not aggravate his culpability. 82. The judge accepted that the appellant had committed what in context was intermittent low level offending. However this was not an isolated incident or an aberration, but deliberate offending which continued for many years. The appellant was in a position of trust and he deliberately targeted the complainants, befriending them, then grooming and then abusing them. He examined some victim impact statements, as we have, which show that the abuse had had a lasting effect on the victims. 83. There were very powerful references supporting the appellant. The judge took them into account and gave him credit for the guilty pleas. He noted evidence about the appellant’s medical condition. His concern was the cumulative effect of the offences which taken together became more serious. The judge took account of the sentencing guidelines, and indicated that the sentence reflected the overall seriousness of the offending. 84. The grounds of appeal, and the submissions on the appellant’s behalf was that the sentences both individually and cumulatively were manifestly excessive. The individual terms of imprisonment were too high taking account of current guidelines and past cases, and in any event failed to pay proper heed to the principle of totality and the mitigation. The particular features were the relatively low level of criminality involved in the individual offence, the fact that the appellant pleaded guilty, and that, born in 1950, he had no previous convictions or cautions. It was further suggested that account should have been taken of the relevant release provisions, and indeed the definitive guideline issued in 2007, from which is was suggested that the sentences, again, were excessive, the judge taking too high a starting point. 85. Taken together, there seems to us to be some force in these submissions. We do not under-estimate the seriousness of the offending, but as the judge accepted, in context this was intermittent low level offending. For example, the appellant was not convicted of any offence which involved digital penetration of the female victims. Moreover this case proceeded as a guilty plea. Given the way in which their early complaints had been disregarded or disbelieved, that would have provided considerable vindication for the victims helping to right the great wrong that had been done by those to whom their complaints were reported and who responded by doing nothing to help them. No doubt, the way in which they were treated at their schools when they reported what had happened would have contributed to the lasting consequences to the victims. Having regard to all these considerations, we have come to the conclusion that on the appellant’s guilty plea, and given his health (he suffers from cancer which is not asymptomatic), a sentence of 3 years imprisonment would have been appropriate. To that extent the appeal will be allowed. We shall achieve this sentence by reducing each of the sentences of 9 months imprisonment to 6 months imprisonment. The orders relating to concurrent and consecutive sentences will be unchanged. R v Colin Dan 86. During 1984 and 1985, when the appellant lived as part of a very close knit community, he babysat for one of his neighbours, CR. She had a son and two daughters. In 1984 her daughter S was aged 8/9 years and her daughter P was aged 6/7 years. 87. P recalled several incidents of abuse. She recalled an occasion when the appellant took her and her siblings upstairs to tell them a secret. She went into a bedroom where the appellant laid on top of her and rubbed her and penetrated her. She believed that he had penetrated her with his penis, which would have been rape. There was, however, some doubt whether the penetration had been penile or digital. The appellant was therefore convicted of indecent assault. A further similar incident occurred when the appellant was in her bed and her penetrated vagina. 88. She said that the appellant stayed in her bed overnight and was seen there by her mother in the morning when she brought him a cup of tea. When her mother left the room, she was abused again. 89. S viewed the appellant as her boyfriend. He was about 18 years old. She recalled an incident where she was lying on a sofa naked from the waist down and the appellant pulled down his trousers and lay on top of her rubbing his penis up and down and ejaculating. On another occasion she said that she and P were standing on their mother’s bed playing a game with the appellant. The game involved him rubbing his finger up their thighs and skirts to see who would be able to laugh last. 90. During 1984 the appellant babysat for the daughters of another neighbour. One of them, ES, was about 5 years old when the appellant woke her and took her from her bed into the front room. He persuaded her to suck his penis telling her that it would taste like lemonade. She believed from what had happened that he must have ejaculated in her mouth. 91. The offences against P and S were reported to the police in 2009, and after publicity, the offence against ES was reported in 2010. The appellant accepted that he had babysat for P and S and denied that he had ever babysat for ES. He denied that he had ever acted inappropriately towards any of them. He was convicted at Plymouth Crown Court before Mr Recorder Clee QC and a jury of five counts of indecent assault. Although it is clear that the children in question were aged under 13 years at the time when the offences were committed against them, the indictment asserted that the relevant victim’s age was under 13 years in three counts, in which case the maximum sentence was 5 years’ imprisonment, but two of the counts did not, in which case the maximum sentence was 2 years’ imprisonment. In any event three of the counts spanned the increase in the maximum sentence to 10 years’ imprisonment, which came into effect of 16 th September 1985, but there was no clear evidence that the offending occurred after that date. 92. The judge acknowledged that the offences were committed when the appellant was a young man, who had led a blameless life since. He took note of the positive character references. However the offences represented a gross breach of trust. He had been babysitting for very young girls. The total sentence was 5 years’ imprisonment, made up of concurrent and consecutive sentences. 93. The grounds of appeal and argument in support, urged that the appellant should have been sentenced as a 15-17 year old, which would have been his age in the mid-eighties, and the actual sentence made no allowance for age at the time of the offences. Insufficient regard was had to the appellant’s personal mitigation and the highly impressive character evidence put before the judge. If consecutive sentences had to be passed they should have been shorter, and the total sentence was excessive. In any event a maximum sentence ordered to run consecutively in the case involving ES was excessive. 94. We have examined these submissions with care. The offences were committed when the appellant was relatively young, but there was a significant age difference between him and his victims, and the sexual activity was far from unsophisticated. The offences involved digital penetration and in the case of the young child who was the victim of the last offence what would now be identified as oral rape. In other words, these were serious sexual offences. Among others on whom they had an impact was their mother, who was betrayed by him. The appellant has now led a decent life, and we have borne that in mind. If he had admitted these offences and pleaded guilty, no doubt the sentence would have been lower. We do not think it appropriate to interfere. R v Christopher S 95. The appellant was born in 1950. The offences go back not far short of 40 years. The first complainant was DB. Her mother was married to the appellant. They lived together with him as his family. When she was very young, small enough to be bathed in the kitchen sink by the defendant, he digitally penetrated her vagina. She shouted in pain, but he covered her mouth and told her to shut up. There was another similar incident a year or so later. He said that this showed her how much he cared for her. This penetration continued throughout her childhood, but with diminishing frequency when other forms of sexual abuse increased. When she about 5 or 6 years old she was made to perform oral sex on him. He shouted at her to go upstairs into the bedroom he shared with her mother. He was naked on the bed. He gave her a book which showed her a woman performing oral sex on a man. He asked her to do that “for daddy”. She went upstairs because if she did not do what she was told she was slapped. This incident involved the child taking his penis in her mouth and sucking it, and he also made her masturbate him, putting his hands around hers and rubbing her hand up and down his penis. When she stopped oral sex, he slapped her across the face, telling her she could not stop until it was finished, and he eventually ejaculated while she was masturbating him. Incidents like these continued on a weekly basis. As she became older DB started to refuse to behave as he required. He threatened that if she told anyone about what was happening it would get worse. She had been subjected to violence in the past, and she was in fear of him. She married in March 1988 and left the family home. She became involved with the police inquiry when the husband of her sister, TB, wrote a letter to the police reporting the defendant’s sexual abuse. 96. TB was 2 years younger than her older sister. The appellant was her natural father. The abuse on her began when she was 8 or 9 years old. There were incidents of sexual assault, involving touching her breast and vagina, to begin with over her clothing, and then inside her clothing. The sexual abuse then proceeded to oral sex which he forced her to perform on him. On two or three occasions he ejaculated into her mouth. The abuse continued from the age of about 8 or 9 years until she was 12 or 13 years. 97. A medical report revealed that the appellant had taken an overdose of 21 Anadin tablets in June 2010, but this had caused no long term damage. He was suffering from a degree of ischaemic heart disease. His General Practitioner could not say whether his heart condition will affect his life expectations. 98. The defendant was arrested in September 2009. He denied the allegations. However on 15 March 2011, when the case was listed for trial before his Honour Judge Lawler QC at Sheffield Crown Court he pleaded guilty to 19 counts of a 22 count indictment. 99. The judge was fully aware of the seriousness of these offences and the impact they had had on both women, who had suffered great distress. He had considered the statements made by each woman, and we have reflected on them, and the long term damage they had suffered. 100. This was a breach of trust of the grossest kind. The childhood of the children was destroyed, and their lives were blighted. The conduct was persistent and prolonged, and the appellant employed a position of power and authority to cajole and coerce and on occasions to use force to achieve sexual gratification with them. 101. The judge gave some credit for the guilty plea, although it was made at the latest possible moment. He said that credit would be given which would be somewhere in the region of 15%. 102. The judge considered the guidelines, but reminded himself that these offences occurred many years before the 2003 Sexual Offences Act had attached different labels to the offences and had rightly treated them as far more serious than before, by increasing the relevant penalties. He was acutely aware of the increases, and carefully reminded himself of the maximum sentences which were available to him. 103. His concern was the total sentence, which he fixed at 12 years’ imprisonment. 104. The argument on appeal is that the total sentence was excessive and failed sufficiently to take account of the guilty pleas, the antiquity of the offences, the appellant’s age and state of health at the time when they were committed, and the delay which followed his arrest. Reference is also made to matters of personal mitigation available to the applicant and who suffered from a degree of unstable angina. These were gross breaches of trust, with two victims, and serious coercive sexual abuse which went on for many years. Even making an allowance for the late guilty plea, the total sentence was not excessive. R v Robertson 105. This offence occurred in 1987. In the early hours of 5 th June a 17 year old girl was walking home through Slough towards Maidenhead. She had missed her last train. The appellant pulled up alongside her apparently to ask for directions. He offered her a lift, and propositioned her for sex. She told him to “fuck off” and tried to hide in a garden. However he pursued her and forced him into her car. He drove to an industrial estate. He performed oral sex on her, then raped her vaginally, ejaculating over her stomach. She reported the attacks, but for years the appellant was not caught. She feared for some time that she may have contracted a sexually transmitted disease, and of course, she knew that her attacker had remained at large. She was emotionally scarred by the experience, and her career and her life were both profoundly affected. 106. In 2002, as a result of an improvement in DNA techniques, a “cold case review” led to the appellant being traced. After a trial in December 2010 at Reading Crown Court before His Honour Judge John and a jury, he was convicted of kidnapping and rape. In March 2011 he was sentenced to life imprisonment on both counts. The minimum specified period was 8 years. Appropriate ancillary orders were made. 107. The appellant’s criminal record demonstrates that he is a sexual predator who is prepared to use violence against his victims. He was born in November 1955. By the time he was 20 he had twice been sentenced to Borstal Training. He committed two robberies late at night. In the first he head butted his victim and in the second he attacked a girl from behind, putting a knife to her throat, and dragging her into a telephone box. Further offences of violence resulting in prison sentences followed. In 1977 he forced his way into a house occupied, on her own at the time, by a 15 year old girl. He demanded money. He threatened her, stripped her and attempted to rape her. He forced her to masturbate him and then take his penis in her mouth. In 1978 he was sentenced to 5 years imprisonment. 108. Four months after his release he carried out another serious sexual crime. He hid in the hedgerow, armed with a broken bottle, and attacked a 14 year old girl who was on a bicycle. He tied her up with her shoe laces, forced her to strip, and then raped her orally and virginally. In 1981 he was sentenced to 8 years imprisonment for these offences. He was released in October 1986. And a few months later, in June 1987, the present offences of kidnap and rape were committed. He remained at large. His criminal activity was undiminished. 109. On Christmas Day 1987 at 4a.m. he grabbed a 25 year old woman around the neck, and put a knife to her throat. Fortunately for her he was disturbed and ran away. He was sentenced to 3 years imprisonment. Following his release in 1990, in the course of a burglary he knocked a 79 year old woman to the floor. A few days later he gained entry into a hostel on a pretext, where he assaulted a resident and demanded sex. For these offences he received a total sentence of 10 years imprisonment. 110. In 1997 he received a 5 year sentence of imprisonment after he enticed a 14 year old girl into a wood and indecently assaulted her. A 6 year sentence for attempted robbery followed in 2001. In February 2008, following conviction for robbery, he was imprisoned for public protection, and a minimum term of 2 years imprisonment was specified. 111. The psychiatric report before the court in March this year did not disclose any mental disorder. The judge concluded that the criteria for a sentence of life imprisonment were more than met. We entirely agree, and wisely there is no appeal against that conclusion. 112. The criticism directed at the sentence is concerned with the level of the appropriate determinate term. In reaching his conclusion the judge started by considering the guideline in Millberry , where rape is accompanied by abduction. He identified the forced oral sex and the extensive list of previous convictions as aggravating features. He concluded that “the very grave record for more serious sexual offending, including convictions before you committed these offences for both attempted rape and rape, raises the starting point further … ”. The starting point was fixed at 16 years, from which it followed that the minimum term would be 8 years. 113. The grounds and submissions on appeal argue that the starting point of 16 years was too high. The judge had expressly taken into account the convictions which post dated the offences for which the appellant was to be sentenced. Reference was made to section 143(2) of the 2003 Act: “In considering the seriousness of an offence (“the current offence”) committed by an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating feature if (in the case of that conviction) the court considers that it can reasonably be so treated having regard, in particular, to (a) the nature of the offence to which the conviction relates and it’s relevance to the current offence and (b) the time which has elapsed since the conviction”. 114. Mr Cook on the appellant’s behalf suggested that “previous convictions” must mean convictions for offences committed prior to the instant offences. Mr John Price QC for the Crown contended that “previous convictions” must mean any convictions committed before sentence. Otherwise the section would have specifically referred to convictions for any offence committed prior to the instant offence. Furthermore, he pointed out that the safeguard against any unfairness or injustice is that these convictions can only be regarded as an aggravating factor if the court “considers that it can reasonably be so treated”. 115. We agree with Mr Price. This provision enables justice to be done in the individual case. In our judgment the court assessing the seriousness of any offence must reflect on the individual criminal who falls to be sentenced. As we have already indicated, a defendant who has lived an impeccable life for several years, filled with positive good work, is entitled to invite the judge to take those features into his life into account when he comes to be sentenced for a historic sexual offence. By similar reasoning, if he has committed one or more sexual offences in the meantime those, too, form part of the sentencing decision. The position can be tested in this way: if none of the appellant’s crimes after 1987 had been linked to him, not at the time when they were committed, but as a result of “cold case investigations”, he would have been before the court at Reading to be sentenced for all the offences, rather than the 1987 offences on their own. Whatever additional sentence would have been appropriate for the individual crimes committed after these 1987 offences, a minimum term of 8 years imprisonment for these two offences would have been entirely appropriate. In any event, irrespective of the post 1987 offences, this offence in 1987, committed by a man who had already been sentenced to substantial terms of imprisonment for attempted rape, and then rape, and who committed these offences within a very short time of his release can have no complaint. The sentence was appropriate. R v P 116. In January 1978, an 18 year old married woman left work in a local public house at the end of the evening. She was on her way home, waiting for a bus. This appellant who is now 59 or 60 years old, but who was then 26 years old, walked up behind her and put his hand over her mouth. He put something into her back saying he had a knife and would kill her. He forcibly walked her to the rear of a local college. There he told her to close her eyes. He pulled off her clothing, and attempted to push his erect penis between her legs. He ejaculated over her inner thighs and clothing. He then ordered her to kneel down with her eyes shut, and forced her to perform oral sex on him. She believed that she was going to be killed. She was terrified. The Crown’s case was that he ejaculated again. He told the victim that she could go. She immediately reported the attack, which she believed had lasted over 20 minutes. 117. The effect on this victim was particularly traumatic. Shortly after the attack she discovered that she was pregnant. She was terrified that her pregnancy could have resulted from the appellant ejaculating over her inner thighs. Instead of any sense of joy at her impending motherhood, she was throughout the pregnancy in a state of mental turmoil. In fact, her husband was the father of her child. 118. No arrest was made until a “cold case review”. This led to the appellant’s arrest in 2009. His DNA profile matched a sample of semen recovered from the victim’s clothes. He was arrested and interviewed. He denied the offence. He contested his guilt at trial. He was convicted in January 2010 of attempted rape (Count 1) and indecent assault (Count 2) which reflected the only way in which in 1978 it was possible to indict for oral rape. 119. The appellant was convicted in 1973 for rape, indecent assault and common assault committed in 1973, in similar circumstances to the present offences. He was sentenced to 6 years imprisonment. He was released some 15 months before he attacked the present victim. 120. After the present offence was committed, in 2000 he was convicted of offences of gross indecency and indecent assault on a girl under 14 years of age. He was sentenced to an extended sentence of 6 years, and 3 years were stipulated as its custodial element. He was recalled to prison in 2003 following an allegation of indecent assault by a 16 year old which was not proceeded with, but which revealed that the appellant had breached the conditions of his licence by giving music lessons to minors. In 2007 he was convicted of harassment, effectively blackmailing an 18 year old woman to disclose covert filming of their sexual activity. 121. On 26 th February 2010 he was sentenced to life imprisonment for attempted rape and 2 years imprisonment concurrent for indecent assault. The minimum specified terms was 7 years 6 months which would have taken effect by the operation of section 67 of the Criminal Justice Act 1967 allowing for 176 days spent on remand. 122. If the court had the necessary jurisdiction, this sentence was entirely appropriate. However, at the time when the offence was committed, as a matter of statute, the maximum sentence available for attempted rape was 7 years imprisonment. This jurisdictional feature was overlooked both in the Crown Court, and in the Court of Appeal Criminal Division, where the only issues raised for consideration were the merits, or otherwise, of the sentence rather than the jurisdiction to impose it. It appears that after the appeal against sentence had been dismissed on the merits (a view with which, as we have indicated, we entirely agree) one of the counsel present in court expressed his concern about the jurisdiction issue to counsel then appearing. The only route to quashing this unlawful sentence was for the matter to be reported to the Criminal Cases Review Commission, which, with its customary efficiently, quickly referred it to this court. 123. In 1978 the maximum sentence for an offence of attempted rape was, by operation of the attempted Rape Act 1948, section 37 of the Sexual Offences Act 1956 and Schedule II(1)(b), 7 years imprisonment. The maximum sentence for attempted rape was increased to life imprisonment for offences committed after 16 th September 1985 as a result of sections 3 and 5(5) of the Sexual Offences Act 1985. 124. This is a most unfortunate case. The sentence imposed, although fully justified, was unlawful. It must be quashed. The reasonable understanding of the victim of the crime, that the life sentence was fully justified, has been dashed. That should not have happened. Without any consideration beyond the aggravating and mitigating features of the individual offence or offences, the sentencing decision in cases like these is never straight forward. It is made more complicated because of the variations in the maximum sentences lawfully available in historic cases varies. Particular care is therefore needed to ensure that before the sentencing hearing begins, the parameters of sentence in force at the time when the offence was committed are identified. 125. Justice will not appear to the victim to have been done, and for what it is worth, we do not think that the sentence which we must now impose appropriately represents this appellant’s criminality. Nevertheless the decision is unavoidable. It is a consequence of the legislation in force at the time, which we are bound to apply. Fortunately that has now been changed, and for such a crime committed today, the sentence imposed on this appellant would have been upheld. 126. In his submissions counsel did not contend that the particular offences did not merit the maximum sentence. No complaint is made about the concurrent sentence for indecent assault (which then represented the maximum sentence). These concessions are entirely realistic. Once the unlawful sentence for attempted rape is set aside, and the 7 year maximum sentence substituted for it, the only question which remains is whether the sentences on the two counts on the indictment should run concurrently or consecutively. 127. Mr Price QC reminded us of the principles which normally govern the imposition of consecutive terms of imprisonment, conveniently summarised in R v Ralphs [2009] EWCA Crim. 2555 . He invited us to consider whether it is proper and appropriate to impose consecutive terms where this represents the only possible means to achieve the objective of public protection. We are unpersuaded that it is appropriate for consecutive terms of imprisonment to be imposed as a way of compensating for what the court believes to be an inadequacy in its sentencing powers. The principles are long established and well recognised. Consecutive sentences should not normally be imposed when the individual counts arise from what in reality is the same incident. Nevertheless, the fact that offences may be committed within a short, even a very short span of time of each other is not necessarily conclusive. A close examination of the facts may reveal that distinct offences occurred, each independent of the other, and each calling for distinct punishment to reflect the offender’s criminality where, in a case like this, each of the two offences represented the most serious harm and high culpability. 128. We have reconsidered the events of 17 January 1978. We are driven to the conclusion that the correct approach to these events is that the appellant and his victim were involved in two distinct and separate incidents, albeit consecutive, and the one following immediately after the other. In short, this young woman was the victim of two distinct sexual violations. In these specific circumstances we do not accept the submission that the imposition of consecutive penalties would be inappropriate. In reaching that conclusion we do not, of course, intend to question the normal practice by which the court imposing a sentence following conviction on a number of counts will normally impose a sentence on the major count of the indictment to reflect the overall criminality of the offender, with concurrent terms for the remaining counts. 129. In any event, for the reasons we have given, this appeal must be allowed. The sentence on count 1 must be quashed. We shall substitute a determinate term of imprisonment of 7 years. The sentence of 2 years imprisonment for indecent assault will run consecutively.

2011_11_24-2875.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/2753/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/2753

2026a05ec2f49f79997639bb78eb83d77158a1004f48849db9041b60fb129274

[2010] EWCA Crim 2850

EWCA_Crim_2850

2010-11-19

crown_court

Neutral Citation Number: [2010] EWCA Crim 2850 Case No. 2010/00300/C2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Friday 19 November 2010 B e f o r e: LORD JUSTICE JACKSON MR JUSTICE RAMSEY and HIS HONOUR JUDGE JOHN MILFORD QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) __________________ R E G I N A - v - CARL JAMES LARKIN __________________ Computer Aided Transcription by Wordwave International Ltd (a Merr

Neutral Citation Number: [2010] EWCA Crim 2850 Case No. 2010/00300/C2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Friday 19 November 2010 B e f o r e: LORD JUSTICE JACKSON MR JUSTICE RAMSEY and HIS HONOUR JUDGE JOHN MILFORD QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) __________________ R E G I N A - v - CARL JAMES LARKIN __________________ 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 P Roche appeared on behalf of the Applicant Mr P Davies appeared on behalf of the Crown ____________________ J U D G M E N T LORD JUSTICE JACKSON: 1. This judgement is in seven parts, namely: Part 1. Introduction, Part 2. The Facts, Part 3. The Criminal Proceedings, Part 4. The Appeal to the Court of Appeal, Part 5. The Appeal in Respect of the Pupil Log, Part 6. The Two Applications for Leave to Appeal, Part 7. Conclusion. Part 1. Introduction 2. This is an appeal against conviction in respect of two offences of sexual activity with a child. The complainant is a teenage girl to whom we shall refer as "K". The appellant is a man in his forties. We shall refer to the complainant's mother as "Mrs B", and to her stepfather as "Mr B". After these brief introductory remarks, we must now turn to the facts. Part 2. The Facts 3. The complainant, K, was born on 7 April 1994. She was aged 14 at the time of the events which are the subject of this appeal. K lived with her mother, stepfather, brother and two sisters in a house in Merseyside. K's aunt lived with or near the family. The appellant was a trusted friend of the family. 4. On Saturday 12 April 2008, K's mother married Mr B. Mr and Mrs B went off for a two week honeymoon on Monday 14 April. The appellant attended the wedding. He stayed at Mr and Mrs B's house during at least part of the next fortnight in order to help look after the children. 5. K alleges, and the appellant denies, that the appellant had sexual intercourse with her on two occasions during that fortnight. The first occasion was on the morning of Monday 21 April, before K went to school. The second occasion was on the morning of Wednesday 23 April, before K went to school. 6. K first reported these matters to someone in authority on 22 May 2008. On this date K told a teacher who was her head of year at school about the incidents. On 27 May K was interviewed by a police officer at Wirral Family Crime investigation Unit. 7. The account which K gave in interview was as follows. On the evening of the wedding the appellant first made sexual approaches to her. He kissed her that evening and on a number of occasions over the next week. The following weekend K went on a Duke of Edinburgh course. She took the opportunity to have sexual intercourse with another young man on the course who was aged 17. The appellant gave K a lift home in his car on the Sunday evening. During the journey she told the appellant about her encounter over that weekend. The appellant made suggestive remarks to K about what was inside a man's jeans. 8. On the Monday morning K came downstairs early. The appellant proposed sexual intercourse. K agreed. They lay on the floor. The appellant penetrated her vagina with his penis but did not ejaculate. Subsequently, the appellant was cold and distant towards her. He indicated that he loved K's aunt, not K. This put K in a bad mood. 9. On the Wednesday morning K again came downstairs early. She agreed to and did have sexual intercourse with the appellant on the floor. On this occasion, unlike the previous one, the appellant ejaculated. 10. That was the account which K gave in interview on 27 May. On the following day police officers arrested the appellant and interviewed him about K's allegations. The appellant denied all those allegations and asserted that he had never made any improper sexual approaches to K. 11. The prosecuting authorities did not accept the appellant's assertion in interview. Accordingly they commenced the present criminal proceedings. Part 3. The Criminal Proceedings 12. The appellant was charged with two counts of sexual activity with a child contrary to section 9(1) of the Sexual Offences Act 2003 . Count 1 related to the incident on Monday 21 April. Count 2 related to the incident on Wednesday 23 April. The charge was framed as sexual activity with a child, rather than rape, so that the prosecution did not need to prove all of the elements of rape. From time to time the complainant's allegations are referred to as sexual intercourse, because the complainant's case is that there was penetration. 13. The appellant stood trial before Judge Lyon and a jury at the Liverpool Crown Court in June and July 2009. The jury was unable to reach agreement and a retrial was ordered. 14. The retrial took place before Judge Lyon and a jury at the Liverpool Crown Court in November and December 2009. At both the trial and the retrial the DVD of K's interview was played to the jury. This constituted most but not all of K's evidence in chief. The case which defence counsel put in cross-examination was that none of the alleged sexual misconduct had occurred. In relation to the evening of Sunday 20 April, it was accepted at the first trial that the appellant had given K a lift home in his car. It was denied, however, that the appellant had made any improper sexual comments during the journey. In relation to the mornings of 21 and 22 April, it was accepted at both trials that the appellant was living at K's home on those dates, looking after the children. Indeed, it was accepted that the appellant was the only adult living in the house on those dates, because K's aunt was on a short trip to Ireland and K's parents were away on honeymoon. However, it was denied that the appellant had any sexual contact with K on either of those mornings. 15. During the first trial defence counsel put a Pupil Log to K in cross-examination. This Pupil Log recorded K's conduct at school on the morning of Monday 21 April. On that date a teacher made the following entry in the log: "Arrived already 'mouthing off'. Criticised me in front of the group. Continued to 'witter' on -- not drawing breath -- and stopped me from beginning lesson. Her manner towards me is rude, disrespectful and defiant." The purpose of this cross-examination was to rebut K's evidence at the first trial that she was quiet at school on 21 April because of her sexual encounter earlier that morning. K's response in cross-examination was that this log recorded her behaviour towards teachers, not towards her friends and other pupils. K also made the point that she was usually lively and bubbly rather than "mouthing off" at teachers, so her behaviour was different that day. 16. At the retrial defence counsel once more sought to put the Pupil Log to K in cross-examination. However, prosecution counsel objected saying that this piece of evidence was intended to undermine K's credit as a witness. The judge concluded that the Pupil Log was not relevant to the issues in the case. He did not allow the log to be put in cross-examination. However, the judge ruled that counsel could put in cross-examination that K had acted in the same way on 21 April as on other occasions. 17. At both the trial and the retrial, the appellant gave evidence. He denied any improper sexual contact with K. His evidence was entirely consistent with what he had said to the police when he was interviewed on 28 May 2008. 18. On 3 December 2009, at the end of the retrial, the judge summed up the case. On 4 December 2009, the jury returned verdicts of guilty on both counts by a majority of 10:2. On 15 January 2010, the judge sentenced the appellant to five years imprisonment on each count concurrent and disqualified him from working with children. 19. The appellant was aggrieved by the judge's ruling in relation to the Pupil Log and maintained that his conviction was unsafe. Accordingly, he appealed to the Court of Appeal. Part 4. The Appeal to the Court of Appeal 20. The appellant applied to the Court of Appeal for leave to appeal on two grounds. The first ground was that the judge erred in ruling that K could not be cross-examined on the Pupil Log. The second ground was that fresh evidence was now available which undermined K's assertion that the appellant had given her a lift home on Sunday 20 April. 21. The single judge, who considered this case on the papers, granted leave to appeal on the first ground, although he expressed strong reservations about the prospects of success. He refused leave on the second ground. 22. At the hearing of the appeal today the appellant renews his application for leave to appeal on ground 2. He also seeks to add a third ground, namely, that the judge failed properly to put the defence case in his summing-up. 23. Before dealing with those two applications, we must first deal with the appeal relating to the Pupil Log. Part 5. The Appeal in Respect of the Pupil Log 24. Mr Roche began by drawing attention to K's evidence that the appellant said he was thinking of the aunt when having sexual intercourse with K, and this put K in a bad mood. In relation to this issue it is necessary to examine K's evidence. It can be seen from the transcript of her interview that K's evidence about being in a bad mood relates to the Tuesday. Therefore this does not bear on the relevance or admissibility of the Pupil Log for Monday 21 April. Indeed, Mr Roche very fairly conceded this point when we went through the transcript during argument. 25. Mr Roche then took us to the transcript of K's cross-examination during the first trial, where the Pupil Log was put in evidence. It can be seen from that transcript that K made two points in cross-examination about the Pupil Log. First, she maintained that her behaviour at school was different that day from normal. Instead of being jolly and bubbly as usual, she was "mouthing off" to the teachers. Secondly, she made the point that the Pupil Log only related to her conduct towards teachers. She maintained that to other pupils and friends she was quiet that day. Mr Roche submitted that the appellant's case was prejudiced during the retrial because the Pupil Log was not before the jury. In argument Ramsey J pointed out that the judge's ruling permitted defence counsel to cross-examine K about her behaviour on 21 April. Prosecution counsel confirmed that Mr Ackerley (who was then defence counsel) had indeed done so. 26. Mr Roche accepted, as the argument proceeded, that he could not pursue this ground of appeal on the material currently before the court. He therefore applied for an adjournment in order to obtain a transcript of K's evidence given during the retrial. Mr Roche submitted that such a transcript may reveal that K gave evidence inconsistent with the Pupil Log. 27. Prosecution counsel, Mr Davies, who appears in this court and appeared in the court below at the trial and retrial, opposed the application for an adjournment. He pointed out that there was no renewed application at the retrial to put the Pupil Log in evidence. If K had given evidence at the retrial inconsistent with the Pupil Log, the prosecution could not have resisted a renewed application to put the Pupil Log in evidence. Mr Davies also submitted that the contents of the Pupil Log were peripheral to the real issue in the trial. The real issue was whether or not the appellant had sexual intercourse with K on the mornings of 21 and 23 April. 28. We came to the conclusion that both of Mr Davies' arguments were well-founded. We noted that no attempt had been made hitherto to obtain a transcript of K's evidence at the retrial in support of the first ground of appeal, even though leave was granted in relation to that ground. We saw no sensible basis for concluding that adjourning in order to obtain a transcript would enable the appellant to succeed on ground 1. We also took the view that even if K's evidence was inconsistent with the Pupil Log for 21 April 2008, this would not shed light on the question of whether the appellant had had sexual intercourse with K on 21 April. In those circumstances we refused the application for an adjournment. 29. Following that decision in relation to adjournment, Mr Roche conceded that he could not succeed on ground 1 on the material which is currently before this court. Accordingly, the appellant abandoned the appeal on ground 1. We therefore dismiss that ground of appeal. Part 6. The Two Applications for Leave to Appeal 30. The first application for leave to appeal relates to the second ground set out in the Notice of Appeal. The appellant seeks leave to adduce fresh evidence that he did not attend a training course at Nesscliff on the weekend of 18 to 20 April 2008. Mr Roche submits that this evidence is important because K asserted that the appellant gave her a lift when he was returning from a cadet camp and she was returning from her Duke of Edinburgh weekend course. 31. Mr Roche draws our attention to K's evidence on the seventh page of the DVD interview transcript. At the bottom of that page K said that she was away on a Duke of Edinburgh course and that the appellant was on a cadet course that weekend. She says that the appellant gave her a lift home. K explained later in that interview that she went on another Duke of Edinburgh weekend course on the weekend of 25 to 27 April. Mr Roche submits that the appellant must have given K a lift home on 27 April. Therefore the appellant cannot have had any sexual conversation with K in the car before the two alleged incidents. 32. There are many difficulties with this line of argument. First, it can be seen from the transcript of the first trial that it was the appellant's case that he gave K a lift home on the evenings of both Sunday 20 April and Sunday 27 April. In relation to the first weekend, the cross-examination of K includes the following passage: "Q. When you came back from that Duke of Edinburgh weekend you were collected by Carl Larkin, weren't you? A. Yeah." In relation to the following weekend the cross-examination reads as follows: "Q. But the weekend just before your mum and dad came back, I think you went away for another camp, didn't you? A. Yeah, I think it was my second qualifying Duke of Edinburgh. Q. And you waited to get a lift home from Carl Larkin that weekend as well, didn't you, because I think you had been on a different course as well that weekend from him? A. Yeah." It would have been perfectly possible for the appellant and his representatives to obtain evidence about when the appellant went to cadet camps at Nesscliff at both the first trial and the second trial if such evidence was thought to be helpful. In the course of the appellant's oral evidence he expressed some confusion about the dates of his cadet camps. However, he did not give evidence that K returned home on Sunday 20 April by some other means. Sunday 20 April was a date when the appellant was the sole adult living at K's home since K's aunt and her parents were away. The appellant was the only person responsible for the care of the appellant, her brother and her sisters on that day. 33. Section 23 of the Criminal Appeal Act 1968 provides that the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice, receive any evidence which was not adduced in the hearing below. Subsection (2) provides: "The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to -- (a)whether the evidence appears to the Court to be capable of belief; (b)whether it appears to the Court that the evidence may afford any ground for allowing the appeal; (c)whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (d)whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings." 34. In our view there is no reasonable explanation for the failure to adduce evidence about the dates when the appellant attended cadet camps at Nesscliff either at the trial or the retrial, if such evidence was thought relevant. Furthermore, we do not think that such evidence would afford any ground for allowing the appeal. Even if the appellant was not at a training camp at Nesscliff on the earlier weekend, it by no means follows that he did not give K a lift home. Furthermore, there is a separate point of some importance. The conversation between the appellant and K on the evening of 20 April is of only limited relevance to the issues in the case. Those issues are whether or not the appellant and K had sexual intercourse on the mornings of 21 and 23 April. We therefore refuse the application to adduce fresh evidence and we dismiss the application for leave to appeal on the second ground in the Notice of Appeal. We are in agreement with the single judge on that issue. 35. We turn to the second application for leave to appeal. It relates to a new ground which does not feature in the Notice of Appeal. It is a ground which the appellant seeks to introduce today by way of amendment to his Notice of Appeal. This ground is that the judge failed properly to summarise the appellant's evidence in the summing-up. We accept that the summing-up is short in relation to the facts. We also accept that in the summing-up more time was devoted to K's evidence than to that of the appellant. However, there are references to what the appellant says about matters in the judge's summing up of K's evidence. The judge's summary of the appellant's evidence is concise but it covers the main points. Importantly, in the course of that section of the summing-up the judge said: "The defendant was interviewed and you have the detailed interview before you. You can read the interview when you retire to consider your verdict. As Mr Ackerley has said to you, it is clear that what is said in that interview is basically what the defendant has said to you from the witness box ...." 36. In his submissions Mr Roche accepted that the jury had a transcript of the appellant's interview. He submitted that two aspects of the appellant's evidence were not mentioned in the interview. The first aspect was the close relationship which the appellant had with K's aunt. The second aspect was the fact that the appellant was in a sexual relationship with Donna Pearson. We accept that these two matters, which no doubt featured in the appellant's evidence, were not dealt with in the appellant's interview. On the other hand, both of these matters are dealt with by the judge in his summing-up. At page 4 of the summing-up the judge draws attention to the fact that Donna Pearson was in a sexual relationship with the appellant which started at around the time of the two alleged offences. On the following page of his summing-up the judge expressly refers to the fact that the appellant had a crush on K's aunt. That is consistent with the oral evidence which the appellant had given. 37. The jury therefore had before them a record of interview, which set out the appellant's account of events and which was consistent with the evidence that the appellant gave in the witness box. The judge directed the jury's attention to that written interview record, which the jury would have had with them in their retiring room. The judge also expressly referred in his summing-up to the two matters which Mr Roche draws to our attention, which featured in the appellant's evidence but did not feature in the record of interview. In the circumstances we do not think that this proposed new ground of appeal based upon inadequacies of the summing-up has any prospect of success. Part 7. Conclusion 38. Let us now draw the threads together. For the reasons set out in Part 5 above, this appeal is dismissed. For the reasons set out in Part 6 above, both of the appellant's applications for leave to appeal, and in one instance for leave to adduce fresh evidence, are refused. ________________________________

2010_11_19-2553.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/2850/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/2850

bcad69cb03e811b68e3d4af675d7fa3e7bf4aae0a9c8be454a9eaa6cc8489943

[2018] EWCA Crim 2503

EWCA_Crim_2503

2018-10-26

crown_court

Case No: 2018/00596/B2 Neutral Citation Number: [2018] EWCA Crim 2503 IN THE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 26/10/2018 Before: LORD JUSTICE HICKINBOTTOM MR JUSTICE JEREMY BAKER and THE RECORDER OF WESTMINSTER HER HONOUR JUDGE DEBORAH TAYLOR - - - - - - - - - - - - - - - - - - - - - Between : REGINA - and - CHARLES ARHTUR HOWESON - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Daniel Janner QC on be

Case No: 2018/00596/B2 Neutral Citation Number: [2018] EWCA Crim 2503 IN THE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 26/10/2018 Before: LORD JUSTICE HICKINBOTTOM MR JUSTICE JEREMY BAKER and THE RECORDER OF WESTMINSTER HER HONOUR JUDGE DEBORAH TAYLOR - - - - - - - - - - - - - - - - - - - - - Between : REGINA - and - CHARLES ARHTUR HOWESON - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Daniel Janner QC on behalf of the Applicant Mr Paul Dunkels QC on behalf of the Crown Hearing dates : 26 October 2018 - - - - - - - - - - - - - - - - - - - - - Judgment LORD JUSTICE HICKINBOTTOM : 1. This appeal concerns offences to which the provisions of the Sexual Offences (Amendment) Act 1992 apply. Consequently, no matter relating to the complainants (to whom we shall refer by the initials "A" to "J") shall be included in any publication if it is likely to lead members of the public to identify them or any of them as the victims of any of those offence. This prohibition shall last during their respective lifetimes, unless it is waived or lifted in accordance with section 3 of that Act. 2. On 22 December 2017, in the Crown Court at Bristol (His Honour Judge Horton and a jury), the Appellant Charles Howeson was convicted, on a variety of unanimous and majority verdicts, of ten counts of indecent assault contrary to section 15(1) of the Sexual Offences Act 1956. The jury could not reach a verdict on a further charge of attempted buggery or, in the alternative, indecent assault. In June 2018, he was re tried on those counts and acquitted. On 22 June 2018, he was sentenced by Judge Horton to an aggregate sentence of seven and a half years' imprisonment for the matters for which he was convicted. 3. The Appellant now appeals against conviction, leave having been granted by Sir Alistair MacDuff sitting as a judge of this court. The Appellant also applies for leave to appeal against sentence, that matter having been referred to the full court by the Registrar. 4. The Appellant was born on 27 November 1949. He has a wife and three children, and he was previously of good character. He served in the Royal Navy for over 24 years until 1990, reaching the rank of Commander. Subsequently, in the early 1990s, he was the Executive Director of the Groundwork Trust, a charity. He was later Chairman of First Great Western and Southwest Regional Health Authority, and a Director of Coutts Bank. He held a number of public posts including President of the Plymouth Area Business Council, Chief Executive Officer of the Britannia Association (an association of alumni of Britannia Royal Naval College, Dartmouth), and a founder of the charity the Plymouth Drake Foundation. He was appointed an Honorary Commodore of the Royal Naval Reserve. 5. The charges arose out of complaints about his conduct during his time in the Navy and whilst working at Groundwork. The complaints were all made over twenty years after the alleged incidents occurred. The prosecution case in relation to the charges was briefly as follows. COUNT 1: The first charge arose out of his conduct towards A, a Junior Rating on HMS Cleopatra, whilst the Appellant was First Lieutenant (i.e. second in command of the ship). As part of his duties, A had to go to the Appellant's cabin each day with draft orders for the Appellant to approve. The Appellant would initiate physical contact by touching A's hand or resting his hand on A's shoulder. This touching made A feel uncomfortable and he took to waiting outside the cabin to await the orders. 6. On 9 December 1985, A was summoned to the Appellant's cabin at night. The Appellant told him that they were going to have a man overboard drill. They both went to the boat deck to fetch a life sized drill dummy. A led the way with the Appellant behind him. As they climbed a set of ladder stairs, A felt the Appellant touch the back of his legs and his lower back. When they reached the boat deck, the Appellant put one arm round A's shoulders and, with the other hand, grabbed at A's genitals over his clothing. A protested, and they left the boat deck. The indecent attack was sustained, lasting twenty minutes or more. A immediately complained to his Petty Officer, and was taken to the Master at Arms who was responsible for discipline on the ship. He made a statement setting out his complaint, and the allegations were investigated by the Royal Navy Special Investigations Branch; but no further action was taken as a result of the investigation. 7. The Appellant was found guilty of COUNT 1 and sentenced to 24 months' imprisonment on this count. 8. COUNTS 2 and 3: B was a young man under 21 years of age. In 1987, the Appellant bought Smallack House near Plymouth. Counts 2 and 3 involved an allegation that, late that year or in 1988, whilst teaching B how to shoot an air rifle in a field alongside Smallack House, the Appellant pulled down B's trousers, indecently assaulted him and attempted to insert his penis into B's anus. B said that this took place during a range of dates before the Appellant had bought the house. 9. It was these two charges upon which the first jury were unable to agree a verdict, and the second jury acquitted. We will come on to deal with grounds of appeal shortly; but, in short, Mr Daniel Janner QC for the Appellant submits that the summing up in that second trial, by the same judge, was very different. It was shorter and fairer. The Appellant was acquitted. Mr Janner submits that, had the summing up in the first trial been fair, he would have been acquitted of all of the charges. 10. The Appellant left the Royal Navy in 1990 and became a successful businessman and community leader. 11. COUNTS 4, 5 and 6: These counts related to another young man, C. In 1994, C worked for a car valeting company which cleaned the Appellant's car. C had previously been in trouble with the police, and his erstwhile employer gave evidence at trial that C was a Walter Mitty character and was not trustworthy. The company was struggling, and C was laid off. The Appellant said that he would pay him to continue to clean his car and do odd jobs. To enable C to get to his house to work, the Appellant paid £400 for the repair of his car when it broke down. 12. In the summer of 1994, on three occasions, the Appellant asked C to inspect some damp on the roof of the pump house. On each occasion, C climbed a step ladder with the Appellant behind him and the Appellant brushed his arm. As C reached upwards, the Appellant rubbed his hand or arm over C's penis over his clothing. On the third occasion, he also pressed his erect penis into C's buttocks. After that incident, C left the property and did not return. 13. The Appellant was found guilty on each count by a 10:2 majority, and was sentenced to 18 months on each count concurrent with each other but consecutive to the other sentences. 14. The rest of the charges concern the period in the early 1990s when the Appellant was Executive Director of Groundwork, a charity based in the Old Naval Dockyard at Plymouth which undertook restoration and thus provided work opportunities for those having difficulties in finding a job. Part of the restoration work was on Drake's Island, a neglected island with a series of underground tunnels which was formally part of the Plymouth Old Port defence arrangements. The complainants were all young men working at the trust. 15. COUNT 7: D had mental health issues as a result of a head injury sustained as a child. In 1992, the Appellant asked D to accompany him to Drake's Island in order to find a switch in the tunnels there. They went to the island by boat, and the Appellant let D steer. Whilst he was doing so, the Appellant stood behind him with one hand on his shoulder and the other rubbing the inside of his thigh. D moved that hand away. Once inside the tunnels on the island, the Appellant told D that they needed to find some cables and D was to get onto the Appellant's shoulders to do so. D did as he was told, and put one leg over the Appellant's shoulder. The Appellant again rubbed the inside of his thigh. Then, as D reached up to the cables, the Appellant rubbed his genitals over his clothing. The Appellant repeated this when he lifted D in another part of the tunnel. 16. The Appellant was found guilty of this count by an 11:1 majority, and a consecutive sentence of 18 months was imposed. 17. COUNT 8: E was a volunteer with an organisation that worked in partnership with Groundwork. The Appellant took him too to the tunnels on Drake's Island. In the tunnels, the lights went out and the Appellant told E that he would lift him up so that E could get the lights working again. The Appellant put his arms round E's middle and lifted him up. He then put his hand inside E's pants and touched his penis and testicles. He pulled the hand away, but the Appellant put it back down the pants again and took hold of E's genitals. E could feel the Appellant's erect penis behind him. E struggled free and ran from the tunnel. 18. The Appellant was found guilty by an 11:1 majority of this COUNT, and was sentenced to 15 months' imprisonment consecutive to the other sentences imposed. 19. COUNT 9: This involved a similar alleged incident. F was taken by the Appellant to Drake's Island ostensibly to check cabling. Inside the tunnels, the Appellant stood behind F and lifted him up several times to check that the cables were fastened to the ceiling. In doing so, he touched F's buttocks several times; and in the last lift put his hand into F's trouser pocket and cupped his testicles. 20. The Appellant was found guilty by 11:1 majority, and a sentence of 3 months consecutive was imposed. 21. COUNT 10: G had learning difficulties. He too was employed by Groundwork. The Appellant asked him to accompany him to a shed in order to check the top of a wall, and the Appellant lifted him up from behind placing his hands on G's hips. The Appellant then pulled G towards him, and G felt the Appellant's erect penis against his buttocks. The Appellant attempted to touch G's penis, but G pulled away. 22. The Appellant was found guilty by a 10: 2 majority, and was sentenced to 8 months concurrent with the other sentences. 23. COUNT 11: H worked in Groundwork's media team. The Appellant asked H to accompany him to a warehouse to see how the space there could be used more efficiently. Once there, the Appellant asked him to look at something above head height and lifted him up at the knees, several times, to do so. On one occasion, he squeezed G's genitals through his clothing. 24. The Appellant was found guilty by a 10: 2 majority and a sentence of 12 months was imposed consecutive to the other sentences. 25. COUNT 12: J was also employed at Groundwork. The Appellant took him to the tunnels on Drake's Island as he said he wished to discuss a work opportunity with him in private. The lights went out whilst they were in the tunnels, and the Appellant told J that he would have to lift him up so that he, J, could switch the lights back on. As he lifted him up, the Appellant touched J in the groin area and squeezed his genitals. 26. The Appellant was found guilty by an 11:1 majority, and a sentence of 3 months' imprisonment concurrent was imposed. 27. Matters came to light when B contacted the police. The Appellant's arrest was widely reported in the press, and that led to other complainants coming forward, firstly C. Investigations then suggested that other complaints had previously been made. Those investigations showed that a contemporaneous internal investigation by the Royal Navy had taken place, and it appeared to have resulted in the Appellant leaving HMS Cleopatra; and a similar investigation at Groundwork appeared to result in the Appellant resigning at the request of the Board. 28. The Appellant denied all of the allegations. Indeed, he denied the circumstances in which it was said these offences occurred. For example, he denied that he had ever lifted up any of the complainants as they had suggested. He firmly denied any sexual touching of any of them. His case was therefore that nothing which the complainants had described had ever happened. It was his case that A was motivated by a dislike of the Appellant following the Appellant's clamp down on a drugs problem on the ship. Although, in his own evidence, the Appellant denied those circumstances, there was evidence from his wife that she had been told something of that description. The complaint against the Appellant was internally investigated, and it had been dismissed. After that, the Appellant was positively vetted, and remained in the Royal Navy for a further 5 years being promoted to Commander. He said that allegations about his conduct did not feature as a reason for his leaving the Navy. 29. However, HMS Cleopatra was a Plymouth ship, and the Appellant continued to live and work in Plymouth. It was his case that there was an acute risk of cross contamination in such a close knit community. It was said that there was evidence of a conspiracy against the Appellant, based on resentment and rumour; and evidence that at least some of the complainants had had an opportunity to collude. 30. Nevertheless, the jury found the Appellant guilty of the ten counts, as we have described. 31. The Appellant, through Mr Janner QC, now appeals against conviction on a single but multiple stranded ground, namely that the judge's summing up was unfair because it was long (four days) and muddled, so that there was at least a real risk that the jury lost concentration. They switched off and/or were confused with regard to their task. Furthermore, in summing up the evidence as he did, setting out the evidence at great length and almost verbatim and ending with the evidence in cross examination – and sometimes with a comment of his own which, it is said, appeared to bolster the prosecution case – the judge undermined the Appellant's evidence and thus his case. That was an aspect of the summing up to which Sir Alistair MacDuff referred when granting leave to appeal. 32. Mr Janner relies upon what he describes as "severe criticism" of a summing up in similar form by the same judge by this court in R v Neill [2013] EWCA Crim 2617 , another case involving charges of sexual assault, although by a man on a single complainant, the teenage daughter of a neighbour. In Neill , Moses LJ giving the judgment of the court, said: "1. Criminal trials held to determine the guilt or innocence of defendants depend upon two essential features: firstly, on the skill of the independent advocates arguing them, on the one side, and, on the other, and secondly, on the judge fairly and clearly leaving to the jury the issues which they are called upon to determine. 2. This case amply demonstrates the skill, on the one hand, of Mr Tully for the defence and, on the other hand, Mr Taylor for the prosecution, in properly arguing, the acutely difficult issues which had to be determined in resolving the question whether a young man of 38, with no previous convictions, had indecently sexually assaulted the daughter of his good friend and neighbour in Bristol. 3. What this case unfortunately also demonstrates is how close this judge, His Honour Judge Horton, in his failure properly to direct and sum up the case to the jury came in upsetting the due process of the determination of the guilt or innocence of the defendant (now the Appellant). 4. This appeal has turned upon the recitation by the judge of far too much evidence running the danger of deflecting the jury from proper consideration of the clear issues that it had to resolve. Due to the skill of counsel on both sides, this case, which involved a number of witnesses concerning allegations made by a young 13 year old, lasted only some two and a half days. 5. Quite unnecessarily, and we would add wrongly, the judge then recited large portions of the evidence over a period which occupied two days. In length it was some four and a half hours but it went on from one day to the other. He would have been far better occupying his time leaving the court and preparing a proper summary of the evidence, summarising the evidence and identifying the issues which had to be resolved. His failure to do so has come close to requiring this trial to be held again. We have had to very carefully consider whether the serious inadequacies in the summing up required us to say that the verdicts were unsafe. We hope therefore that this judge will be prepared to accept our comments and not, in future treat a jury to a lengthy and unedited recital of the evidence." 33. In that case, despite the shortcomings of the summing up, the court considered that the verdicts were safe. However, Mr Janner submits that the summing up here had similar defects but, in the circumstances of this case, the verdict cannot be regarded as safe. This case is distinguishable from Neill , he submits, because the facts were far more complex and demanded a careful and fair summing up. Notably: i) there were several complainants here, not just one; ii) there were six weeks of evidence, not two and a half days; iii) the events here were historic going back to 30 years rather than being recent. 34. Mr Janner submitted in particular that: i) the summing up was long and muddled, with directions and long verbatim recitations of evidence interleaved and interspersed with comment; ii) some of the judge's comments were unfairly prejudicial to the Appellant; iii) and the judge "watered down" the force of the Appellant's evidence and case by concluding each part of the evidence with evidence of prosecution witnesses given on re-examination. 35. Those submissions were forcefully made. We have read the full transcript of the four days of summing up. As in Neill , we consider that the summing up in this case fell short of the optimal. However, having considered the matter with particular care, we have concluded that nevertheless the verdicts are not unsafe. 36. A summing up should identify the issues that the jury are required to resolve, and then set out both the relevant legal directions and an appropriate summary of the evidence that goes to those issues. By summing up as he did, including lengthy recitation of evidence over a period of four days, in our view, the judge made the jury's task more difficult than it should have been. But the issues in the trial were relatively simple and clear. Although the indecent assaults alleged were not of the most serious kind, by the manner that they were put forward there was very little, if any, room for mistake. Indeed, it was not the Appellant's case, or certainly not his primary case, that there had been a mistake but rather that the case against him in respect of each count had been made up. The prosecution case was that the assaults – although with one exception outside the clothing and, again with one exception, restricted to a single incident for each complainant – could not sensibly have been an accident. It is a case based on quite deliberate "groping", a term used in the trial. There was a stark conflict in the evidence of the Crown and the Appellant, and their respective cases. 37. Mr Janner frankly accepts that the judge set out appropriate directions for the jury, and he set out the relevant evidence. But it is his submission that the judge erred in the way in which he did so. The length of the review of the evidence, the juxtaposition of directions, evidence and comment and the judge's own comments would or might, he submits, have led to confusion within the jury as to their task and thus a real risk that their verdicts are unsafe. 38. However, looking at the summing up as a whole, despite its defects, it adequately directed the jurors to their task and the form of the summing up of the evidence, unhelpful as it was, was not such as to deflect the jury from a fair consideration of the issues between the Crown and the Appellant. 39. Mr Janner focused on a number of particular parts of the summing up, as follows. 40. Although the judge dealt with the direction concerning assumptions and stereotypes in standard form, Mr Janner submitted that he then unhelpfully set out on pages 9-16 of the transcript the evidence that went to that particular issue, although repeating that evidence in due course when he came to his full review of the evidence. 41. However, there is nothing inherently wrong, when giving directions, in a judge referring to particular evidence upon which the direction touches. Indeed, in some cases that may be helpful, or even imperative. In this case, we accept that his recitation of his evidence in the part of the transcript to which we were referred, as elsewhere, may have been too long; but we do not consider that it would have deflected the jury from the fair consideration of any of the issues. 42. Mr Janner referred to the cross examination of C at page 154B-E of the transcript where, after dealing with that evidence, the judge reverted to a general point concerning all of the complainants. 43. However, again, although we do not consider that that order of dealing with things would have been particularly helpful to the jury, when seen in the context of the summing up as a whole, we do not see that that gets anywhere near a fatal or even material defect in terms of safety of the verdict. 44. Mr Janner submitted that the way in which the judge dealt with the respective characters of B (who had a criminal record) on the one hand, and the Appellant (who was of previous good character) on the other, was unfair. In respect of the Appellant, he gave a good character reference in conventional form (at paragraph 25 of the transcript), followed by a summary of the substantial evidence commending the Appellant (at pages 26 to 32). Mr Janner does not criticise that viewed discretely. However, a bad character direction in respect of B immediately followed, in which the judge said (at page 35D-E): "The fact that he has always admitted responsibility for his actions however you may think, however serious, they have been may be an important factor in deciding whether he is someone who tells truth when it matters". Mr Janner submitted this comment (which, he submitted, was analogous to the comment in R v Green [2017] EWCA Crim 1774 ) was inappropriate and unfair to the Appellant because it watered down his otherwise adequate good character direction. 45. However , Green was very different on its facts to this case; and in any event we do not consider that any deficiency in the bad character direction concerning B in any way substantially undermined the good character direction in respect of the Appellant. It is to be noted that the jury did not find the Appellant guilty of any offence against B. The judge properly and adequately made clear that the Appellant's good character should be taken into account in his favour, and how that should be done. 46. Mr Janner submitted that the force of the Appellant's evidence and the case was undermined by the judge spending longer on the Crown's evidence than that of the Appellant; and also spending longer on the cross examination of the Appellant than on his evidence in chief notably in relation to COUNT 12 in respect of which he estimates the judge spent about three times longer reminding the jury of the cross examination of the Appellant than his evidence in chief. Also, he criticises the setting out of evidence in reply at the end of the section for each of the Crown's witness: for example, the judge set out the Appellant's evidence in relation to COUNT 1 at pages 101E-108 of the transcript, and the Crown's re-examination at pages 109-115. 47. However, whilst the recitation in order of evidence in chief, in cross examination and in reply is often an unhelpful way of reminding the jury of the relevant evidence – and we do not consider it was the optimal way of dealing with the evidence in this case – the judge set out the Appellant's evidence in relation to each count fully, and we do not consider that the way he dealt with the evidence as a whole would have diverted the jury from considering all of the evidence fairly as there were expressly directed to do (see, for example, the direction at page 3D-E). 48. In relation to the submission that some of the judge's observations were inappropriate and unfair, we accept that the comment of the judge that it was the Appellant's case that all of the complainants were lying and had invented their stories at page 154A-D might have been better phrased. But that was essentially the Appellant's case. The judge was required to remind the jury of it. Similarly, we do not consider that the directions of the judge, with regard to the Crown's case as to why the complainants did not complain or report the assaults upon them earlier (at pages 6B-E and 8F-G), which Mr Janner again picks out for particular criticism, were as balanced as they might and should have been. However, we consider that, when the summing up is looked at as a whole, the Appellant's case was fully set out and not undermined by any of the judge's comments to any significant degree. 49. As Moses LJ's observed in Neill at [17], the court does not sit to mark summing’s up according to their virtues or otherwise. We have to direct ourselves as to whether the effect of this summing up was to render the verdicts unsafe. Having considered the summing up, in the light of all the submissions made by Mr Janner, we are left in no real doubt that the verdicts are safe. 50. Mr Janner submitted that the case against the Appellant was weak; but we disagree. The case against him was that he used his position over young men sexually to assault eight of them in three different contexts: i) in 1985, as a serving officer in the Royal Navy, ii) in 1992 and 1993, whilst Executive Director of Groundwork, where he abused seven young men; iii) and in 1994, in respect of a young man whom he befriended and employed in his home. In each case, the Appellant was in a position of some authority – a dominant position – over each victim. The method employed to touch them sexually was similar. He would employ a ruse to isolate the complainant in a secluded location where, under the pretext of doing some legitimate work (e.g. looking at cabling high up), he would manhandle them and sexually assault them. Mr Janner relied upon the possibility of contamination between the complainants; but there was no evidence of cross contamination between the groups of complainants, e.g. between A and the Groundwork complainants. 51. For the reasons we have given, we consider that the directions from the judge were adequate for the jury's purpose. The verdicts were, of course, a matter for the jury as properly directed. However, on the evidence, we consider the verdicts were unsurprising. 52. Turning to sentence, the maximum sentence for an offence under section 15(1) of the 1956 Act is ten years. In respect of the ten indecent assaults on the eight male victims, each aged between 20 and 33, as we have described, the Appellant was sentenced to a total of seven and a half years. 53. In sentencing him, the judge acknowledged the positive good character of the Appellant who had given years of service to the Royal Navy and to various charities and public works, and he had worked at the highest level in public bodies authorities and business. The references provided to the court were powerful. 54. However, the judge said the Appellant had masked uncontrolled and predatory sexual behaviour towards young and vulnerable men under his control. The use of such a position is, under the relevant sentencing guidelines, one reason why mitigation might be reduced or eliminated. When the Appellant was a high ranking naval officer, he had abused an Able Seaman of the lowest rank. A was worried that a refusal to obey the Appellant's orders or any act of violence towards the Appellant to protect himself might end his naval career. When the Appellant was working at Groundwork, he abused young men who had sought some form of employment refuge with that charity. He had, at least some extent, groomed some of these young men. He had taken them to places that were isolated and dark. He had used his advantages and power to abuse them with the result that their lives were severely scarred. The victim impact statements showed that these men had been substantially affected by the indecent assaults upon them by the Appellant. 55. Adopting the approach to the sentencing of historical sex offences set out in the Sentencing Guideline Annex B, the judge considered what would be the appropriate sentence now for the Appellant's behaviour. Each episode would be a sexual assault. The Appellant's culpability was clearly high. The judge placed the following counts in category 2 for harm: COUNT 1 because of its sustained nature, COUNT 8 because of the touching of the bare genitals, and COUNTS 7 and 10 because of the vulnerability of the victims. In the case of C (COUNTS 4 to 6), each individually category 3, the judge placed those in aggregate in category 2A and made the sentences for each concurrent as between themselves. The rest of the offences he placed in category 3A. The guideline starting point for category 2A is 2 years' custody with the range of 1 to 4 years. The starting point for that category is 26 weeks' custody with a range from community order to 1 year. 56. The judge considered that there were a number of additional aggravating factors, for example, the isolated location chosen for the offence and the fact that the Appellant had failed to heed the warnings or change his behaviour after the incident in the Royal Navy with A. 57. In mitigation, the judge took into account the good character to which we have already referred and the fact that the Appellant was suffering from prostate cancer, although the judge took the view on the evidence that the Appellant's medical conditions could be managed in prison. 58. The judge imposed the sentences we have already set out, with an aggregate sentence of seven and a half years. The sentence on COUNT 11, looked at individually was, Mr Janner submits, grossly excessive at 12 months when the similar category 3A offences in COUNTS 9 and 12 only attracted a sentence of 3 months each and, he submits, the sentences on the category 3A offences, including those in COUNTS 4, 5 and 6 – relatively minor assaults he submits – should in the circumstances have been made concurrent. However, his primary submission is that the overall sentence is manifestly excessive. He submits that a sentence of seven and a half years does not reflect the seriousness and circumstances of the offending which (save for one assault which involved the brief groping under clothes), comprised relatively brief groping over the clothes. Furthermore, he submits that that aggregate sentence does not properly reflect the Appellant's substantial mitigation: his age and positive good character including his service in the Royal Navy and with charities and his serious medical condition. That failure properly to reflect that mitigation was at the core of his oral submissions this morning. 59. We accept, as Judge Horton accepted, that the Appellant was able to call on substantial personal mitigation on its face. He has spent much of his life in public service, in the Royal Navy and then with charities and in public works. However, as the sentencing guidelines emphasise and as the judge indicated, that has to be balanced against the fact that he used his position in authority in the Navy and then Groundworks to commit these offences. That misuse of his position undermines the mitigation of his positively good character. Further, the judge took into account the fact that the Appellant has prostate cancer and a number of other medical conditions which would make his life in prison somewhat harder than for a fully fit younger man; but also that all these conditions, including his cancer, could and would be appropriately managed in prison. On the recent medical evidence, that appears to be the case. 60. In relation to the offending itself, of course, these were not the most serious sexual assaults. Bar one, they were all groping outside clothing; bar one, they were not sustained; bar one victim, they were single incidents. However, the Appellant engaged in a course of conduct over more than ten years involving eight victims in three different contexts, but over all of whom he had a significant position of authority by virtue of his rank as Commander in the Royal Navy or as a Senior Executive at Groundwork. His victims were far lower down the order. All the victims were, to that extent, vulnerable. A was an Able Seamen, the other victims were his employees and some of the Groundwork victims had additional vulnerabilities. 61. Of course, other judges may have structured the sentences differently; but we have to consider whether the aggregate sentence of seven and a half years was manifestly excessive for the aggregate offending. It was a stiff sentence; but we have concluded that in all of the circumstances it was not manifestly excessive. For all the criticism of the judge's summing up, he dealt with the sentencing exercise with patent care; and, effectively for the reasons he gave, we consider that the aggregate sentence he imposed was warranted. 62. Therefore, although we formally grant permission to appeal against sentence, as well as conviction, we dismiss the appeal on all grounds. 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_10_26-4428.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/2503/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/2503

7e60263bc98641458e783cd1e3f6449e60e18d89c2ae86edb7b6907c69090562

[2008] EWCA Crim 1323

EWCA_Crim_1323

2008-06-20

supreme_court

Neutral Citation Number: [2008] EWCA Crim 1323 Case No: 200705013 B1 200704858 B1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CHELMSFORD CROWN COURT HIS HONOUR JUDGE MITCHELL ON APPEAL FROM BOURNEMOUTH CROWN COURT HIS HONOUR JUDGE JARVIS T20050045. S20060143. Royal Courts of Justice Strand, London, WC2A 2LL Date: 20/06/2008 Before : LORD JUSTICE HUGHES MR JUSTICE ANDREW SMITH and HIS HONOUR JUDGE LORAINE- SMITH (SITTING AS A JUDGE OF THECOURT OF APPEA

Neutral Citation Number: [2008] EWCA Crim 1323 Case No: 200705013 B1 200704858 B1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CHELMSFORD CROWN COURT HIS HONOUR JUDGE MITCHELL ON APPEAL FROM BOURNEMOUTH CROWN COURT HIS HONOUR JUDGE JARVIS T20050045. S20060143. Royal Courts of Justice Strand, London, WC2A 2LL Date: 20/06/2008 Before : LORD JUSTICE HUGHES MR JUSTICE ANDREW SMITH and HIS HONOUR JUDGE LORAINE- SMITH (SITTING AS A JUDGE OF THECOURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between : John Morgan Appellant - and - The Queen Respondent and between Rosemary Bygrave Appellant - and - The Queen Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 190 Fleet Street, London EC4A 2AG Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr C Coltart (instructed by Russell Jones and Walker ) for the Appellant John Morgan Mr D Walbank (instructed by Crown Prosecution Service ) for the Crown Mr I Wheaton (instructed by Andrews McQueen ) for the Appellant Rosemary Bygrave Mr S Ellacott (instructed by Crown Prosecution Service ) for the Crown Hearing dates : 5 TH AND 6 TH June 2008 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Hughes : 1. We have heard together two applications for leave to appeal against confiscation orders because they raise similar questions about a limited class of cases, namely those where demonstrably (i) the defendant’s crimes are limited to offences causing loss to one or more identifiable loser(s), (ii) his benefit is limited to those crimes, (iii) the loser has neither brought nor intends to bring any civil proceedings to recover the loss but (iv) the defendant either has repaid the loser, or stands ready willing and able immediately to repay him, the full amount of the loss. 2. The first case, Morgan, falls to be decided under the Criminal Justice Act 1988 (‘CJA 1988’), as amended by the Proceeds of Crime Act 1995 (‘the 1995 Act’). The critical provisions are section 71 (1C) and 72(7). The second case, Bygrave, falls to be decided under the Proceeds of Crime Act 2002 (‘ POCA 2002’). The critical provisions are section 6(6), 13(5) & 13(6). 3. We draw attention to the fact that although the two critical sets of provisions here in question are in broadly similar terms, confiscation legislation has passed through a number of changes since it first appeared in the Drug Trafficking Offences Act 1986 . Moreover, until 24 March 2003 when POCA 2002 came into force, there were parallel regimes, similar but different, for drugs cases on the one hand and non-drug offences on the other. It is essential that in any application for a confiscation order close attention is paid to the type and date of the offence(s) and to which of different statutory rules applies to the case. 4. That said, these two cases do have two important questions in common. After the amendments made by the 1995 Act , the making of a confiscation order under CJA 1988 became mandatory, rather than discretionary as it previously had been. But an exception was made where the victim of the offending had made, or intended to make, a civil claim to recover his or her loss. In that event, the confiscation order is discretionary. That position has been retained in POCA 2002. In the present two cases, the defendant either had repaid, or asserted that s/he stood prepared to repay, what had been stolen from the victim. That meant that there was no occasion for the victim to make a civil claim. In neither case is there any suggestion that the defendant has committed any crime other than those involved in the present convictions. Nor is there in either case any suggestion that the benefit of the defendant extends beyond the sum stolen from the identifiable victim, either because the defendant used the money in the meantime or for any other reason. The effect of the confiscation orders made is likely to be, in both these cases, that the defendant pays a great deal more than he would have been ordered to pay if he had left the victim to make a civil claim. Accordingly, the questions are: i) in such a case is the making of a confiscation order mandatory if the Crown asks for it, even though it would have been discretionary if the defendant had chosen not to repay or to offer to repay, and the victim had made a civil claim ? and if so, ii) what if any are the limits upon the Crown’s power to decide to seek a confiscation order ? The Criminal Justice Act 1988 . 5. For Morgan the relevant statute was the Criminal Justice Act 1988. Section 71 sets out the process for making a confiscation order. So far as material, it provides as follows: “ 71 (1) Where an offender is convicted, in any proceedings before the Crown Court or a magistrates' court, of an offence of a relevant description, it shall be the duty of the court— (a) if the prosecutor has given written notice to the court that he considers that it would be appropriate for the court to proceed under this section, or (b) if the court considers, even though it has not been given such notice, that it would be appropriate for it so to proceed, to act as follows before sentencing or otherwise dealing with the offender in respect of that offence or any other relevant criminal conduct. (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. (1C) 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. ……. (6) Subject to subsection (1C) above the sum which an order made by a court under this section requires an offender to pay shall be equal to— (a) the benefit in respect of which it is made; or (b) the amount appearing to the court to be the amount that might be realised at the time the order is made, whichever is the less . ” 6. Then, in section 72 , the Act provides for the inter-relation of confiscation and compensation orders. First, by s 72(5)(b) it stipulates that the confiscation order shall be left out of consideration in deciding whether or not to make a compensation order, though it must, by section 72(5)(a) , be taken into account before imposing a fine. Then, by section 72(7) , it provides as follows: “(7) Where— (a) a court makes both a confiscation order and an order for the payment of compensation under section 130 of the Powers of Criminal Courts (Sentencing) Act 2000 against the same person in the same proceedings; and (b) it appears to the court that he will not have sufficient means to satisfy both the orders in full, it shall direct that so much of the compensation as will not in its opinion be recoverable because of the insufficiency of his means shall be paid out of any sums recovered under the confiscation order.” Proceeds of Crime Act 2002 . 7. Although POCA 2002 alters the law of confiscation in a number of important areas, its provisions relevant to the present cases are very similar to those of the CJA 1988. Sections 6 and 7 set out the process for making a confiscation order. So far as material, they provide as follows: “ 6 Making of order (1) The Crown Court must proceed under this section if the following two conditions are satisfied. (2) The first condition is that a defendant falls within any of the following paragraphs— (a) he is convicted of an offence or offences in proceedings before the Crown Court; (b) he is committed to the Crown Court for sentence in respect of an offence or offences under section 3, 4 or 6 of the Sentencing Act; (c) he is committed to the Crown Court in respect of an offence or offences under section 70 below (committal with a view to a confiscation order being considered). (3) The second condition is that— (a) the prosecutor…. asks the court to proceed under this section, or (b) the court believes it is appropriate for it to do so. (4) The court must proceed as follows— (a) it must decide whether the defendant has a criminal lifestyle; (b) if it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct; (c) if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct. (5) If the court decides under subsection (4)(b) or (c) that the defendant has benefited from the conduct referred to it must— (a) decide the recoverable amount, and (b) make an order (a confiscation order) requiring him to pay that amount. (6) But the court must treat the duty in subsection (5) as a power if it believes that any victim of the conduct has at any time started or intends to start proceedings against the defendant in respect of loss, injury or damage sustained in connection with the conduct. ……… 7 Recoverable amount (1) The recoverable amount for the purposes of section 6 is an amount equal to the defendant's benefit from the conduct concerned. (2) But if the defendant shows that the available amount is less than that benefit the recoverable amount is— (a) the available amount, or (b) a nominal amount, if the available amount is nil. (3) But if section 6(6) applies the recoverable amount is such amount as— (a) the court believes is just, but (b) does not exceed the amount found under subsection (1) or (2) (as the case may be).” 8. The inter-relation of confiscation and compensation orders is covered by section 13 in terms very similar to those of section 72 CJA 1988. First, by s 13(3)(a) the Act stipulates that the confiscation order shall be left out of consideration in deciding whether or not to make a compensation order, though it must, by section 13(2)(a) , be taken into account before imposing a fine. Then, sections 13(5) and (6) provide as follows: “(5) Subsection (6) applies if— (a) the Crown Court makes both a confiscation order and an order for the payment of compensation under section 130 of the Sentencing Act against the same person in the same proceedings, and (b) the court believes he will not have sufficient means to satisfy both the orders in full. (6) In such a case the court must direct that so much of the compensation as it specifies is to be paid out of any sums recovered under the confiscation order; and the amount it specifies must be the amount it believes will not be recoverable because of the insufficiency of the person’s means.” Morgan: the facts 9. Morgan was a serving police officer of previous good character. He befriended but also cheated an elderly lady. Between July 2001 and his arrest in March 2004 he obtained from her a total of £279,872.02. Adjusted for RPI inflation (see s 74(5)(a) and R v Barwick [2001] 1 Cr App R (S) 129 at 445), his benefit from the offences was £306,913.93. Between his arrest and the confiscation hearing, he repaid the loser about five-sixths of these defalcations. Very early on, at the conclusion of his police interviews he relinquished to her the sum of about £170,000 which remained in one or more joint bank accounts in his name and hers, which he controlled, and later he transferred to her the flat in which she lived, which had been bought in his name. That left £51,967.83 outstanding, which he said that he stood ready to repay. He was convicted by the jury after denying dishonesty and sentenced to four years imprisonment. Morgan: the judge’s order 10. At the confiscation hearing, the Judge duly determined the defendant’s benefit at £306,913.93. He found the defendant’s realisable assets to be £106,259.46. He was asked by the defendant to construe s 71(1C) CJA 1988 in such a way as to make a confiscation order discretionary, rather than mandatory, where repayment had been made, or was about to be made, without the necessity for civil action, but he felt unable to do so. He determined that a confiscation order was mandatory once the Crown had given notice invoking the confiscation procedure, and had to be made either for the full amount of benefit, or, as here, for the lesser sum of the defendant’s realisable assets. Accordingly he made a confiscation order in the sum of £106,259.46, with a term of three years additional imprisonment in default of payment. He directed, pursuant to section 72(7) CJA 1988 , that the outstanding loss suffered by the victim (£51,967.83) should be paid out of the sum confiscated. He expressed considerable sympathy for the defence submissions (a) that the effect of the order was to add to the defendant’s punishment an additional financial penalty of about £55,000 beyond repayment of the loss, and (b) that that might mean that the defendant would have been better off if he had refused to repay, and waited to be sued. However, he concluded that the removal of his discretion by the statutory amendment made by the 1995 Act had these inevitable results once the Crown required the court to follow the confiscation route. Bygrave: the facts 11. Miss Bygrave was employed as an accounts clerk. She was in her mid forties and of previous good character. Between January 2004 and October 2005 she stole a total of £12,768.17 from her employers by falsifying expenses and/or salary claims for herself. When interviewed she initially denied what she had done, but at the end of lengthy interviews admitted it. She pleaded guilty at the first opportunity. The money had been spent, whether upon her family as she asserted or otherwise does not matter for present purposes. She appeared at the Crown Court in July 2006 offering to repay. She had, it would appear, borrowed upon her home to enable her to do so. The judge passed a suspended sentence of imprisonment, coupled with an order for unpaid community work. Bygrave: the Judge’s order 12. There was no separate confiscation hearing. There was no occasion for it, since all the figures were agreed. It was highly desirable for the matter to be dealt with all at once and as soon as possible. But the transcript makes it clear that one consequence of that was that the issue of confiscation/compensation was dealt with in the course of a very busy list and we cannot avoid saying without the Judge being given the assistance which he was entitled to expect. 13. The Crown told the Judge that it applied for both a confiscation order and a compensation order in favour of the losing employers. As to confiscation, the Crown put the benefit, clearly correctly, at £12,768.17, the sum stolen. There was no dispute that the defendant had assets equal to that sum; she had come to court ready and willing to repay exactly that amount to the losers. Accordingly, the statutory calculation of confiscation led to an order in that sum. As to compensation, the Crown contended that the amount of the order should be an identical sum of £12,768.17, since that was the loss sustained by the employers. We regard it as plain from the transcript that the Judge was troubled by the prospect of making cumulative orders for 2 x £12700 viz a little over £25,000, when the only sum the defendant had ever stolen was half that. The Crown’s advocate told the Judge no more than that there was authority for making both confiscation and compensation orders. She did, though not immediately, identify the authority she had in mind as R v Roy Williams [2001] 1 Cr App R (S) 140 at 500. She had not got the case for the Judge, nor was she able to tell him anything about what it said. It is not directly analogous because the counts there were sample counts, so that the defendant’s benefit was not confined to the sums charged and repaid. The Crown Prosecution Advocate did make reference to section 13(5) POCA 2002 as justifying the making of both orders. What she did not at any stage do was to say clearly that the Judge had power to make an order under s 13(6) for compensation to be paid out of the confiscated monies. It may well be that that was what was anticipated by whoever had drafted the prosecution financial statement, and if anyone had taken the Judge to its concluding part that might have become apparent. Unfortunately, this did not happen even though the Judge made it clear that he was troubled by the prospect of double payment, and this, if it had been appreciated, was the simple answer to his anxiety. Nor was such an order suggested on behalf of the defendant; the Judge was simply told that she was ready to repay the £12,700 odd, but could not pay double. The Judge declined to make both orders. He probably regarded himself as obliged to make a confiscation order, but in any event he did make such in the sum of the benefit, viz £12,768.17. He declined to make a compensation order. In passing sentence and making the confiscation order, he said: “In this case I believe that justice will be served by my making a confiscation order only.” 14. There had until then been no occasion for the employers to make any civil claim because the defendant had said all along that she would repay them the whole of the loss. However, when such money as she had went to satisfy the confiscation order, and thus disappeared into the coffers of the State, they eventually wrote, through their solicitors, to the defendant to indicate that a claim would be made. That was in the Summer of 2007, about a year after sentence had been passed. In consequence the defendant then sought to appeal the confiscation order and asks us for the necessary extension of time of about 13 months. The “statutory anomaly” complained of 15. Mr Coltart complains that the statutes create an anomaly. If the defendant waits to be sued by the victim and the victim sues or indicates an intention to do so, section 71 (1C) CJA 1988, or section 6(6) POCA 2002 as the case may be, creates a discretion in the court whether to make a confiscation order or not. It does not follow that the court will not make a confiscation order. At least if there appear to be benefits obtained from criminal conduct which go beyond the loss caused to the suing loser, it ought ordinarily to make an order. There may be other reasons why an order should be made in a particular case. But it would not necessarily be improper, if there were no benefit to the offender beyond the loss which will be recovered by civil action, for the judge to decline to make a confiscation order. And if an order is made in such a case, the Judge is not bound to make it for the full amount of benefit obtained, up to the defendant’s realisable assets, but instead can make it for such sum as he thinks fit or just: see section 71 (1C)(c) CJA 1988 or section 7(3) POCA 2002, as the case may be. Thus the order can be made for the amount of any excess benefit obtained by the defendant beyond that which is being removed by the loser’s civil action, or by a compensation order made to relieve the loser from having to go through with that civil action. In that way the defendant can be made to disgorge all criminal benefit obtained, up to the amount of his assets, but need not be required to pay more than he has obtained. 16. If, however, instead of waiting to be sued, the defendant repays the loser before he comes to court, or indicates that he stands ready to repay immediately, there will probably be no actual or intended civil action by the loser. In that event, section 71 (1C) CJA 1988, or section 6(6) POCA 2002, will not apply. That will mean two things. First, the making of a confiscation order is mandatory once the Crown asks for it. Second, the order which must be made can only be for the full sum of benefit obtained, up to the amount of the defendant’s realisable/available assets. If the only benefit the defendant has obtained is the amount which he has repaid to the loser, this has the inevitable consequence that there must be a confiscation order s for the same sum again, so long as the defendant has assets to meet it. That means he pays up to double the benefit he has obtained from crime. And if there is excess benefit obtained beyond the sum due to the identified loser, there is no power in the court to tailor the confiscation order to that excess; rather the order must be for the whole benefit obtained. 17. We accept that this is the position. It is, however, important that the extent of the suggested anomaly should not be overstated. 18. The confiscatory jurisdiction has consistently been interpreted as deliberately draconian. It is not restitutionary. One consequence of that is that it will not infrequently happen that a defendant is obliged by a confiscation order to pay more than the profit he has made from his crime. The books are littered with examples, and we are grateful to Mr Walbank, for the Crown in Morgan , for taking us carefully through them. We mention only some. They include the case of two or more defendants who obtained and shared the benefit of crime; each has obtained the full value of the benefit and each is liable to confiscation orders up to that full value: see the very recent decision of the House of Lords in R v May [2008] UKHL 28 . Similarly liable to confiscation order in the full value of the property obtained are the defendant who has made no profit because the criminal property has been recovered from him by the investigators ( R v David Smith [2001] UKHL 68 ; [2002] 1 WLR 54 ), and the defendant whose profit from his crime is, because of expense incurred, far less than his gross receipts ( R v Banks [1997] 2 Cr App R (S) 110). There are many other examples. 19. The difference in the present limited type of case is said to be the high public interest in encouraging the voluntary repayment to victims by criminals. This court has identified this clear public interest in two recent cases: i) In R v Mahmood & Shahin [2005] EWCA Crim 2168 ; [2006] Cr App R (S) 96 at 570, Thomas LJ said at paragraph 31: “We consider it important in the overall interest of justice that those engaged in criminal enterprise should make as quickly as possible full restitution, including any benefits derived from their criminal activities such as the profitable results or fruits of any investments made. Restitution is often made without a formal agreement. It is in the general interests of justice to encourage the making of full restitution of the benefits without the need for confiscation proceedings and therefore to protect the person making full restitution if ever the Crown were unjustly or without proper cause to seek to go behind an agreement reached with full and proper disclosure or an understanding reached or representation made in similar circumstances.” ii) In R v Farquhar [2008] EWCA Crim 806 this court said this at paragraph 13: “We add this: we say nothing to discourage early and voluntary payments to make full restitution in such cases. On the contrary we echo the observations of the court in Mahmood and Shahin in encouraging them. In this area there is scope for good sense on the part of all parties, including the prosecution and, in the give and take of compromise there will be ample benefits in the shape of early payment… ” 20. We accept that there is an important public interest in encouraging voluntary repayment to victims by criminals, and that this distinguishes from the other cases the position of the defendant who makes voluntary repayment, or is ready immediately to do so, rather than waits to be sued. The construction of section 71 (1C) CJA 1988 and s 6(6) POCA 2002 21. Mr Coltart renewed before us the argument which he presented to the Judge in Morgan’s case. He asks us to say that the ‘anomaly’ which he identifies should mean that section 71 (1C) should be construed as if it read as follows: “If, in a case falling within subsection (1B) above, the court is satisfied either that the offender has repaid the victim or 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— …….” If that were to be done, then the making of a confiscation order would become discretionary rather than mandatory in a case of repayment of the victim. In fact, in Morgan there had not been full repayment. The implied words would have to be yet further expanded to cover the case. 22. We have been shown the report of a Home Office working party which considered the unamended CJA 1988 in November 1992 and recommended, inter alia, that the making of a confiscation order should become mandatory rather than discretionary, subject to exception where necessary to take account of the interests of victims. We do not doubt that this was part of the background work which led to the amendments made by the 1995 Act . It is to be noted that that report referred to the danger of double recovery and adopted a proposal, which emanated from the Crown Prosecution Service, that in assessing an offender’s benefit the court should be required to deduct the amount of any compensation order made. 23. Whilst this report is of some limited significance in identifying the desirability of avoiding double recovery in a case where the victim is repaid, it is of no assistance in construing section 71 (1C) CJA 1988, and Mr Coltart wisely did not submit otherwise. The solution proposed by the Working Party was not the one adopted by the statute. For the same reason it can be of no assistance in construing section 6(6) POCA 2002. 24. Whilst we accept the existence of the difference in statutory treatment which Mr Coltart identifies, there is simply no canon of statutory construction which empowers any court to write into a statute words which are not there, on the grounds that Parliament ought to have enacted a provision which it has not. It may be that if Parliament had had the case of the voluntary repayer brought to mind, it would have made different provision. We do not know. But Parliament has not done so. Moreover, the same statutory solution which it did enact has been repeated in the subsequent Proceeds of Crime Act 2002 . 25. We are quite satisfied that it is impossible to construe section 71 (1C) CJA 1988 in the manner suggested. Although, as will appear, it is not necessary for the purposes of Bygrave to decide the construction of section 6(6) POCA 2002, we are equally sure that the same applies to that section. The Crown’s decision; abuse of process 26. Once the Crown decides to invoke the confiscation process, the making of an order is mandatory, and its amount is arithmetically determined but cannot be moderated by judicial decision – see paragraph 16 above. It has been accepted before us by the Crown that that makes the decision to invoke the confiscation process a critical one. It is plain, and is also accepted, that it is not appropriate to seek confiscation in every single case where some benefit has been obtained by crime. Neither s 71 CJA 1988 nor s 6 POCA make confiscation proceedings automatic in every case where some benefit has been obtained from criminal conduct. Accordingly there is an individual decision to be made by the Crown in each case whether to ask the court to apply the confiscation process. Similarly, it is open to the Crown to discontinue the confiscation proceedings at any stage. Thus, it is accepted by the Crown, there is an individual exercise of judgment involved in each case. 27. The court retains the jurisdiction to stay an application for confiscation, as any other criminal process, where it amounts to an abuse of the court’s process. In the present context, that power exists where it would be oppressive to seek confiscation. That has been recognised in several cases and has been accepted before us. In Mahmood and Shahin (supra) Thomas LJ said this at paragraph 26: “It was accepted on behalf of the Crown that a judge had in principle a discretion to stay proceedings if what the Crown was proceeding to do amounted to an abuse of process. We consider that that concession was rightly made by the Crown.” The same was accepted in R v Hockey [2007] EWCA Crim 1577 ; [2008] 1 Cr App R (S) 50 at 279, paragraph 18, R v Nield [2007] EWCA Crim 993 , and R v Farquhar (supra) at paragraph 12. 28. In none of those cases was abuse of process in fact established. The particular form of abuse considered in those cases was an application for confiscation where the Crown had given some form of undertaking or agreement not to seek it if repayment were made. We agree that abuse may arise in that way, but in the particular limited class of cases which we are here considering, abuse is not limited to agreement reneged upon. 29. It needs to be said immediately that it is not sufficient to establish oppression (and thus abuse of process) that the effect of a confiscation order will be to extract from a defendant a sum greater than his profit from his crime(s). That follows from the line of authorities discussed at paragraph 18 above, which clearly show that this may often be the effect of a confiscation order. This court said as much explicitly in Mahmood and Shahin at paragraph 21, and we respectfully agree. We here confine ourselves to the limited case described in paragraph 1 above, namely where demonstrably (i) the defendant’s crimes are limited to offences causing loss to one or more identifiable loser(s), (ii) his benefit is limited to those crimes, (iii) the loser has neither brought nor intends any civil proceedings to recover the loss, but (iv) the defendant either has repaid the loser, or stands ready willing and able immediately to repay him, the full amount of the loss. 30. In those cases, the Crown accepts, and we hold, that it may amount to an abuse of process for the Crown to seek a confiscation order which would result in an oppressive order to pay up to double the full restitution which the defendant has made or is willing immediately to make, and which would thus deter him from making it. In particular, although the confiscation jurisdiction is rightly described as draconian and often as penal in nature, we do not accept the contention that it is a sufficient justification for seeking a confiscation order in the limited class of cases which we are here dealing with that the Crown wishes to inflict an additional financial penalty upon the defendant. Whilst confiscation may well be draconian or penal in effect, it does not, as the House of Lords observed in R v May (supra), at paragraph 48(1), operate as a fine. Whether an application for confiscation is or is not oppressive in the limited class of cases we are considering will fall to be considered by the trial judge individually on the facts of each case. The jurisdiction to stay may be exercised either in advance of the confiscation hearing or during it if it becomes clear that the making of an order would be oppressive for the reasons here discussed. 31. We make no attempt to foresee all possible circumstances which may bear on the question whether a particular application is, or is not, oppressive. We draw attention, however, to three possible situations which are likely to recur which would, as it seems to us, be likely to demonstrate that it is not oppressive to seek a confiscation order: a) where the defendant, even if he has repaid the victim or is ready to do so, has significantly profited through use of the stolen money whilst it was in his hands and thus has obtained a benefit beyond the loss inflicted on the victim; examples include the defendant who invests the money profitably, or gambles with it successfully, or who buys or obtains property which is let out; b) ex hypothesi , where the Crown alleges that the statutory assumptions ought to be applied to demonstrate that the defendant has obtained a benefit beyond the loss inflicted upon the particular victim of the presently charged offences; if subsequently it turns out that the assumptions are not justified, and there is no benefit beyond the repayment made or immediately offered, it may at that stage become oppressive to continue; c) where although repayment in full is offered, it is uncertain that it will be accomplished; in such a case there can be significant advantages for the victim in a confiscation order being made coupled with a direction under section 72(7) CJA 1988 or section 13(6) POCA 2002 for payment to him; that is because a confiscation order carries more effective enforcement than a compensation order, and prosecutors might properly be cautious about accepting promises to pay in the future from defendants whose dishonesty forms the basis of their crimes; indeed we anticipate that it may be difficult to establish abuse in the kind of case we are here discussing unless the defendant has either already made restitution in full or is in a position to tender it immediately in a guaranteed form, such as a banker’s draft or funds in a solicitor’s hands. 32. Mr Coltart drew our attention to the fact that under the Criminal Justice System Business Plan, specific targets are set for the number and amounts of confiscation orders which ought to be obtained in the geographical area of each Local Criminal Justice Board. Those Boards will contain representatives of the Crown Prosecution Service, who will thus be well aware of the targets. The targets are no doubt designed to encourage the greater use of the confiscation jurisdiction, which history shows has tended to be underused at least until recently. It is also apparent that at a national level the various prosecuting agencies now receive a substantial part of the money which is paid under confiscation orders; the exact nature of the link between their budgets and the product of such orders is not in evidence, but some link there clearly is in the sense that the proceeds of confiscation are, to some extent, directed to funding the state’s prosecuting authorities. We do not accept Mr Coltart’s submission that the existence of such targets, and of such funding link as there is, necessarily mean that any decision to invoke the confiscation procedure will involve taking into account an illegitimate consideration, still less that the result will be oppressive. We think that it would be desirable for those who contemplate framing targets to consider their value and suitability, and the risk of misunderstanding of their object and application. But they do not carry the automatic implication that the jurisdiction will be abused by prosecutors, any more than they lead to the conclusion that judges, who may attend Criminal Justice Boards, will abuse the jurisdiction. What is clear is that both the targets and the funding link underline the critical importance of prosecutors exercising independent judgment on the facts of each case, which necessity should be very plainly in the mind of everyone considering such a decision. We are quite confident that if, in the restricted class of cases which we are here considering, an oppressive use of the confiscation jurisdiction is genuinely established, judges have ample powers to prevent it by way of stay. 33. We draw attention to the reference in Farquhar (supra at paragraph 19(ii)) to the desirability of sensible give and take in anticipation of confiscation proceedings. It is perfectly proper for a defendant to ask directly whether if he repays a particular specified sum by a specified time the Crown will continue to seek confiscation. If such question is asked, the Crown ought ordinarily to be in a position to respond. It might well be otherwise if the defendant sought to cast upon the Crown the onus of saying what would be acceptable. 34. We make it clear that if, in the particular class of case we are here considering, an oppressive decision to seek confiscation is alleged, the proper route of challenge is by way of application to the trial judge for a stay on grounds of abuse. There ought to be no occasion for applications for judicial review of the decision to seek confiscation. Quite apart from question of indirect evasion of section 29(3) Supreme Court Act 1981, such an application would be likely to be met by refusal on the grounds that the Crown Court process contains adequate remedy if oppression be established. 35. Nor do we wish to give any encouragement to routine applications for stays on grounds of abuse in confiscation cases. Our decision is limited to the particular category of cases which we have set out in paragraph 1. If a Judge is confronted with what appears to be a hopeless application for a stay in these or other cases he has ample power to require initially that the application be made in writing, and/or to abstain from directing any response from the Crown unless and until he is satisfied that there is an arguable case, and/or to refuse the application without an oral hearing and/or to make appropriate orders for costs if justified. Further, there should be full compliance with that part of the Lord Chief Justice’s Practice Direction relating to abuse applications; see [2002] 1 WLR 2870 ; Archbold 2008 , paragraph 4.50a. Of course, it follows from what we have said, that if there is indeed an arguable case of abuse, the challenge should be made before the Crown Court where it can be investigated; a challenge on this basis not made below will seldom be capable of founding grounds of appeal. Morgan: decision 36. No application was made to the Judge to stay the confiscation application as an abuse of process. That means that there has been no consideration of whether or not the application was oppressive in the particular circumstances. That being so, we could only quash the order made if satisfied that even without investigation of the arguments on that topic, and of any relevant evidence, it is quite clear that it was oppressive. We have seen a long transcript of the argument before the Judge. Much of it is concerned with the submission made to him, as also to us, that section 71 (1C) CJA 1988 should be construed in the manner for which Mr Coltart has contended. Some of it encompassed generalised complaints by Mr Coltart that confiscation was unfair, and requests by him that the Crown justify its claim that both compensation and confiscation orders were appropriate. It is plain that Counsel for the Crown took his stance, in the absence of any application to stay, on the simple proposition that there was no bar to both compensation and confiscation orders co-existing. So far as it goes, that was plainly correct, as section 72(7) CJA 1988, inter alia, plainly demonstrates. 37. In this court we have called for, and seen, notes by Email sent by Mr Coltart to the Crown, making similar requests why compensation alone would not suffice. It is clear that they were not then answered, perhaps because the same stance which we have mentioned was being taken. We have also called for, and received, from Mr Walbank for the Crown, the reasons why he contends that there was no oppression in the making of a confiscation order. They are twofold: i) because the defendant was not making any immediate offer to repay the outstanding balance, but only contending that a compensation order should be made rather than a confiscation order; there was plain evidence that he was in financial difficulty, likely to be compounded by pending divorce and ancillary relief proceedings; and ii) because the nature of his offending had been to exploit a position of trust against a vulnerable victim and to obtain from her large sums which represented the bulk of her assets. 38. As we have held in paragraph 30 above, we do not accept that the second reason can, without more, prevent the application for confiscation from being oppressive if the case falls into the limited category which we are here considering. If it did, that would mean that it is proper to seek to use the confiscation process solely as a means of inflicting additional punishment upon the defendant because his offence was an unpleasant one. That the effect of properly obtained confiscation orders may well be in many cases to inflict additional punishment does not mean that such an order can be sought for that sole reason, if otherwise it would be oppressive for the reasons here discussed. The public interest in encouraging voluntary repayment exists in cases of offending which might be described as unpleasant, just as in those of less serious crime; indeed in this case prompt voluntary repayment was particularly desirable, given that the complainant was over 90 years old. 39. We agree with Mr Coltart that it is regrettable that the first reason did not surface at the Crown Court. However, it is plain that it has substance. It is quite clear that the defendant was at no stage saying that he was ready, willing and able to make immediate repayment of the outstanding £52,000, or indeed of any sum. On the contrary, he was through counsel asking for a compensation order alone to be made, as well as setting out contentions now accepted to be doomed to failure that the benefit calculation ought to be reduced by repayments already made. It appears that the source of any further repayment would probably be the sale of the matrimonial home. With a divorce pending, together with inevitable financial claims between the spouses, there was every reason to fear that the defendant would not be in any position to make immediate repayment. It appears that the Crown feared routine requests in every confiscation case that they justify their application, and perhaps an attempt to set up a consequent reasons challenge, if not in this case then in others. For the reasons which we have given above (paragraphs 33-35), we do not think that such fears ought to be the consequence of our decision. It follows that with hindsight it would have been better if the Crown had responded that it was for the defendant to show that he was in a position to make immediate payment and of what sum. If, however, it had done so, it is far from clear that the defendant could have been in a position to pay immediately, and significantly more probable that he would not. There is a real difference in the efficacy of enforcement of confiscation orders, as compared with compensation orders. Moreover, the potential oppression which we have considered in this case exists where the prospect of a confiscation order being made would deter a defendant from making voluntary repayment in advance of, or at least at the outset of, confiscation proceedings. We are not satisfied that it is clear that this defendant was in that position; indeed it seems he was probably not. 40. In those circumstances, the issue not having been debated below, it is impossible for us to say that in this case the application for confiscation was oppressive. We give leave to Morgan to appeal, but his appeal must in consequence be dismissed. 41. We are invited by Morgan to enlarge the time for compliance with the confiscation order to enable his matrimonial home to be sold. There is no objection by the Crown. We extend time by three months to 1 December 2008. Bygrave: decision 42. Mr Wheaton sought to advance arguments which mirror those made in the case of Morgan. His written grounds traverse the construction of section 6(6) POCA 2002, the compatibility of the order made with the ECHR and the First Protocol, Article 1, and abuse of process. It seems to us, with great respect to those arguments, that it is unnecessary to consider them in Miss Bygrave’s case. 43. What the Judge wanted to do, we are satisfied, was to achieve a result in which the defendant was not required to pay more than the sum she had stolen. That was the correct approach because there was here, unlike many other cases, no hint of a suggestion that the defendant’s benefit, for the purposes of POCA 2002, exceeded what she had stolen from her employers. In particular, although this was, by statute, a criminal lifestyle case, because the defendant had been convicted of three or more offences from which she had benefited (section 75(2)(b) & 75(3)), there was no suggestion that any of the statutory assumptions available under section 10 ought to be applied in her case to show a benefit greater than the total of the thefts to which she pleaded guilty. Given that, we consider that if the judge had been afforded the opportunity to think about it, he would have regarded this as a clear case in which the interests of the losing employers should prevail over those of the taxpayer generally, so that , if legally possible, the defendant’s ill-gotten gains should be disgorged in the direction of the losers rather than into the public purse. This was entirely possible legally. The route is signposted by subsections 13(5) and (6). What justice required in this case was an order under section 13(6) for the losers to be paid their compensation out of the confiscation order. That was open to the Judge, since on the evidence, Miss Bygrave did not have the means to pay both confiscation and compensation. In this court, Mr Wheaton has asked us to do no more than to add to the confiscation order a direction to this effect. For the Crown, Mr Ellacott does not disagree. Accordingly, we extend time, give leave to appeal and allow the appeal to the extent that we vary the confiscation order to attach to it a direction pursuant to section 13(6) that the whole sum of £12,786.17 be paid out of it to Messrs Haines Watts Business Recovery & Insolvency.

2008_06_20-1554.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/1323/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/1323

e4d9811dc5c6bf02cf5759806dc470cad29138a8c9b705e55087b3dcba2658a4

[2017] EWCA Crim 185

EWCA_Crim_185

2017-02-02

crown_court

Neutral Citation Number: [2017] EWCA Crim 185 Case No: 201600002 C1; 201700523 C1; 201600945 C1; 201600228 C1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 2nd February 2017 B e f o r e : LADY JUSTICE MACUR DBE MR JUSTICE HADDON-CAVE THE RECORDER OF YORK - HIS HONOUR JUDGE BATTY QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - R E G I N A v PAYAM ABDUL KARIM MUFTY HAMZA MALIK - -

Neutral Citation Number: [2017] EWCA Crim 185 Case No: 201600002 C1; 201700523 C1; 201600945 C1; 201600228 C1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 2nd February 2017 B e f o r e : LADY JUSTICE MACUR DBE MR JUSTICE HADDON-CAVE THE RECORDER OF YORK - HIS HONOUR JUDGE BATTY QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - R E G I N A v PAYAM ABDUL KARIM MUFTY HAMZA MALIK - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited Trading as DTI 8th Floor, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Ms S Nabijou appeared on behalf of the Appellant Mufty Mr E McKiernan appeared on behalf of the Appellant Malik Mr W McGivern appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. LADY JUSTICE MACUR : On 11 February 2015 police officers, acting on intelligence received, searched a block of flats called Gaydon House in London and noticed a raised ceiling tile on the first floor. A search of the cavity behind the tile revealed a blue holdall bag containing a sawn-off shotgun, two handguns and a blue plastic bag containing ammunition. They also found another plastic carrier bag from ‘Costcutter’, which contained approximately £20,000-worth of Class A drugs. 2. The scene and the items recovered from the scene were forensically examined. The appellant, Malik's fingerprints were found on the outside of the ceiling tile and on the Costcutter plastic bag containing the drugs, and the appellant, Mufty's fingerprints were found on the blue plastic bag containing the ammunition. Mufty lived in Gaydon House but on the 14th floor and Malik lived in an adjacent block of flats called Dartington House. 3. Malik was arrested on 4 June 2015. In interview, he declined to answer any questions. 4. Mufty was arrested and interviewed 14 days later. He denied that he had touched any items in the plastic bag which showed his fingerprints upon it, or knowing Malik well, said that he had no reason to enter the first floor of Gaydon House and that he only had one mobile telephone and SIM card. He was confronted with the fact that there had been other mobile telephones at his house and that Malik's bank card was in his kitchen cupboard underneath an article of crockery. 5. The appellants were charged in an indictment which contained counts of possessing a firearm with intent to endanger life (alternatively possessing a prohibited firearm) in relation to each of the firearms contained within the plastic bags; possessing ammunition without a firearm certificate, one count of which was dismissed by direction of the judge; and possessing controlled drugs of Class A with intent, namely AMT and cocaine. 6. Both appellants gave evidence at trial. 7. Malik was convicted of three counts of possessing a firearm with intent to endanger life, possessing ammunition without a firearm certificate, and possessing controlled drugs of Class A with intent. 8. Mufty was convicted of possessing a prohibited firearm, possession of ammunition without a firearm certificate and the two counts of possessing controlled drugs of Class A with intent. 9. Malik was sentenced to 16 years' imprisonment in respect to that indictment and another. Mufty was sentenced to a total of 10 years' imprisonment. Ancillary orders were made. 10. Both now appeal with limited leave of the single judge, who has directed that certain grounds of appeal applying to each respectively, are arguable before this court. They can be summarised as follows. 11. In relation to Malik: the inadequacy of a direction regarding DNA evidence; an erroneous judicial approach in relation to a shooting incident which occurred in November 2014; inadequacy of directions in relation to separate consideration of defendants and counts on the indictment; inadequacy of the direction regarding joint possession; and the absence of any direction regarding speculation. 12. So far as Mufty is concerned: inadequacy of directions concerning separate consideration, joint possession and speculation. 13. Ms Nabijou, on behalf of the appellant Malik, submits that the DNA evidence was wrongly admitted; alternatively, that the directions given were inadequate and, in fact, confusing. She relies on the authority of R v Dlugosz [2013] 1 Cr App R 32 , at paragraph 24: “24 Nonetheless, it does seem to us that provided it is made clear to the jury the very limited basis upon which an evaluation can be made without a statistical database, a jury can be assisted in its consideration of the evidence by an expression of an evaluative opinion by the experts. We consider that on the materials with which we have been provided, there may be a sufficiently reliable scientific basis on which an evaluative opinion can be expressed in cases, provided the expert has sufficient experience (which must be set out in full detail in the report) and the profile has sufficient features for such an opinion to be given. If the admissibility is challenged, the judge must, in the present state of this science, scrutinise the experience of the expert and the features of the profile so as to be satisfied as to the reliability of the basis on which the evaluative opinion is being given. If the judge is satisfied and the evidence is admissible, it must then be made very clear to the jury that the evaluation has no statistical basis. It must be emphasised that the opinion expressed is quite different to the usual DNA evidence based on statistical match probability. It must be spelt out that the evaluative opinion is no more than an opinion based upon [the expert's] experience which should then be explained. It must be stressed that, in contrast to the usual type of DNA evidence, it is only of more limited assistance. 14. The DNA evidence which was obtained from the outside handle of the holdall and from one of the guns was insufficient for expert analysis in terms of statistical evaluation, but clearly and in accordance with the authority which she cites, was not thereby rendered inadmissible. We do not consider that the judge erred in his discretion in admitting the DNA evidence. We dismiss this aspect of the appeal. 15. Experts called by prosecution and defence agreed that statistical evaluation was not possible. The disagreement between the experts related to the weight to be attached to a non-statistical evaluation of the likelihood of the DNA emanating from the respective appellant Malik and therefore the degree of support, if any, that could be provided to the prosecution case. 16. We have read the respective reports prepared and filed in the case for the purpose of judge and counsel, and have seen the ‘agreed facts’ prepared for the jury concerning this aspect of the evidence. We are in no doubt that the areas of expert disagreement were investigated during the course of cross-examination and demonstrated that the continuing difference of opinion would need to be analysed for the jury to enable them to make a determination on the same, if possible. 17. We have read the summing up which deals with this evidence on several occasions. The judge’s summing up dealt with the evidence of DNA in very scant detail. We agree with Ms Nabijou, that it was entirely unsatisfactory for the judge to direct the jury "fairly brutally" that the experts had said "I have been doing this work for ages, I do an awful lot of it, my opinion is that you can regard this evidence as ...", and then to invite the jury to decide whether or not they accepted the opinion of the prosecution expert, who said that it was strong evidence, or the defence expert that there was very limited support for the prosecution case. 18. Quite clearly, once this evidence had been admitted, the judge was under an obligation to give directions as to the experience of the relevant experts, the nature of the evidence they had given and the disagreements between them in order that an evaluation and an assessment could be made by the jury as to whether or not the support that was garnered by the prosecution from this evidence was or was not merited. (See above - Dlugosz ). We find unequivocally that the judge failed to do so. The issue of admissibility of evidence relating to the fact of the 2014 shooting episode in which the appellant Malik had been injured, was determined when Malik was giving evidence with the agreement of all trial counsel. 19. Ms Nabijou argued then and now that it was inadmissible evidence; either because the judge should have regarded the incident as evidence of bad character and required the prosecution to establish the gateway by which such evidence became admissible – which they could not; or otherwise, failed to consider the probative value of the evidence as compared to the prejudice to the appellant in admitting the evidence pursuant to section 78 of PACE 1984. 20. We are satisfied that the evidence of the shooting, which had taken place but two months before the discovery of the contraband within the roof void of Gaydon House, was sufficiently proximate to render it a background event and potentially relevant to the circumstances of this case. We do not accept Ms Nabijou’s description of this evidence as necessarily being bad character evidence; the fact that it may well indicate gang affiliation in other circumstances is not the only relevance to be attributed to it. In this case, the prosecution relied upon a previous event to predispose Malik to have access to a firearm for future protection. We do not consider that he acted outside the reasonable bands of his discretion in determining the admissibility of the admitted episode in evidence. For the reasons we have given, namely proximity in time, we are satisfied that it could be properly admitted into the evidence. We dismiss this aspect of the appeal. 21. The judge deals with evidence of the 2014 shooting in two parts of the summing-up. First, as preamble, indicating that the actual event had occurred, and indicating to the jury the manner in which the prosecution sought to make use of it: that is, by pointing out a prospective motive for Malik in wanting to arm himself and an association with the contraband found within the roof void when seen in context with the other evidence against him. Secondly, later in the summing up, to remind the jury that it was necessary to step back from the fact that Malik was a victim of the shooting, and should not necessarily assume that this would result in a motive for having firearms and ammunition, whether per se or with the intent of endangering life. In this respect the judge said: " it is unfortunately the case that one or more of you may well have been on the wrong end of a burglary, but that means you are connected with a crime, but only as a victim, it does not say anything if you have the misfortune to be accused of a crime". 22. We regard the direction to be sufficient on this point and must be seen in the context of the evidence against this appellant as a whole and is in no way the sole or central plank in the prosecution case. 23. Finally, we come to the adequacy of the summing-up, particularly as regards the directions in relation to separate treatment of defendants and charges, joint possession, speculation and generally what Ms Nabijou refers to as a lack of balance, the emphasising the prosecution case without due reference to the defence case on various issues. 24. We identify in the summing-up a direct instruction to the jury that they are to consider each defendant separately. We also consider that there is sufficient implicit direction given in the description of the elements of the alternative offences in relation to the firearms to indicate that the jury must regard the evidence against each defendant and in relation to each count separately, and are satisfied that, taken together, the jury may be assumed to have borne in mind that instruction, as is demonstrated by the differential verdicts returned in relation to the appellants. We dismiss this aspect of the appeal. 25. We consider that the direction regarding joint possession, although not the standard direction, was sufficient to indicate the differences in the elements of the alternative offences and the necessity to be satisfied that the two defendants were working together to find the appellants guilty of joint possession. That is the judge made clear that it was: "... a matter for you whether possession is proved as against either of the defendants, but you can see it is open to you to say, 'Well, we think that one defendant did know where these items were, did have control of them - in other words, could get at them - but we are not sure about the other one.' You might take a view, on all the evidence in the case, that the two defendants were involved together, and then you can say they are both in possession." We regard that direction to be satisfactory and sufficient for the purposes and in the circumstances of this case. We dismiss this aspect of the appeal. 26. Ms Nabijou and Mr McKiernan, on behalf of Mufty, argue that the necessity for a direction not speculate, which is given now routinely in the majority of cases, is thrown into stark relief, when as in this case the judge was discursive, rambling and potentially confusing matters of evidence and speculative possibilities by way of the examples that he gave at frequent intervals throughout the summing-up. 27. Mr McGivern on behalf of the prosecution, accepts that there is no direction to the jury to avoid speculation. However, this, he argues, is ameliorated by the reference at the outset and at the close of summing-up to the fact that the jury must have regard to the evidence, and that there would be nothing further. 28. Mr McKiernan adopts the arguments of Ms Nabijou in relation to the summing up. Further, he argues that the Costcutter plastic bag is a movable item, and in the nature of things, something which required little more to be said than the fact that Mufty’s fingerprint upon the bag did not necessarily mean that it became deposited there during the course of criminal activity. He particularly raises as a real issue in the case the fact that speculation was in fact invited by the judge in considering the manner in which fingerprints were or were not deposited upon various items. 29. We bear in mind that the summing up was not a model of its kind in the circumstances of this case and put into the balance the absence of any direction as to speculation when considering, as we must do, the safety of these convictions. 30. We have regard to the total evidence in the case and come to agree with the prosecution description of this case as strong in circumstantial evidence, and which thereby affords protection against all but the most unbalanced and inadequate of summings-up. In that respect, the evidence upon which the prosecution relied and continue to rely is the forensic evidence of fingerprints and DNA evidence in relation to Malik, the motivation which may be inferred from Malik's involvement in a shooting incident but two months before, and also the failure of Malik to respond in interview; and, in the case of Mufty, the lies told as to his association with Malik and the efforts that appeared to have been made to alert Malik to the imminent arrest, since Mufty's, brother had been previously and wrongly arrested and interviewed on suspicion of the offences ultimately charged. 31. We have little hesitation in reaching the conclusion that, even in the absence of DNA evidence, and discerning no useful purpose of reminding the jury of each and every point taken on behalf of the appellants which were inherently improbable and unrealistic as to the manner in which a fingerprint came to be deposited on the outer tile of a ceiling 7 foot 2 inches above the ground, or the necessary contextual element of fingerprints on bags within the void matching one found on an outer ceiling tile, the association between the two appellants amply demonstrated by the telephone traffic, the implausible explanation for which was obviously rejected by the jury. 32. In these circumstances, we do not consider the inadequacies correctly identified in the summing-up undermine the strength of the evidence or the safety of the convictions as recorded against the individual appellants. 33. Consequently, the appeals against conviction will be dismissed. (Submissions were heard in respect of sentencing) 34. LADY JUSTICE MACUR: We are asked to consider the renewed application of Malik in relation to sentence. We have done so with the assistance of Ms Nabijou. 35. This applicant was sentenced to a total of 16 years, made up of 10 years' imprisonment concurrent on each count of possessing a firearm with intent to endanger life, 10 years concurrent for possessing ammunition without a firearm certificate, 6 years' imprisonment concurrent on each count of possessing a controlled drug of Class A with intent. He was also sentenced in respect of two other offences on a separate indictment to which he had pleaded guilty. For possession of a controlled drug of Class B and for possessing criminal property he received a 2-year sentence of imprisonment on each to run concurrently with each other and with the sentence for the offences on the trial indictment. 36. The sentence imposed in relation to possession of ammunition is unlawful. The maximum term of imprisonment is one of 5 years' imprisonment. Unfortunately, it was not identified as such at the time of sentence. That sentence will be reduced in order to comply with the statutory maximum. It will be one of 4 years' imprisonment to be served concurrent with the other sentences. 37. Other than that, we find no merit in the application. The offences of possession of drugs of Class A is undoubtedly and significantly aggravated by possession of firearms with intent to endanger life. So far as the personal circumstances of the appellant/applicant are concerned, they are unremarkable. Despite a lack of relevant previous convictions, his convictions in relation to drugs offences on the second indictment, mean that he cannot be regarded as a man either of good character or one who was acting out of character. 38. The serious nature of the offences individually and cumulatively and come to the conclusion that the total sentence of 16 years' imprisonment cannot be said to be manifestly excessive. The renewed application for permission to appeal against sentence is dismissed. 39. The same correction for the same reasons will be made in relation to the sentence of imprisonment of 6 years imposed in relation to the appellant Mufty. A sentence of 4 years concurrent will be imposed, meaning that there is no difference to the sentence to be served in total.

2017_02_02-3910.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/185/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/185

393b23f2141b6b9efdd51348dfdf15e625d0b6e4ec84571e67a64fd40c9d7f99

[2015] EWCA Crim 257

EWCA_Crim_257

2015-02-06

martial_court

Neutral Citation Number: [2015] EWCA Crim 257 Case No: 201405120/C1 IN THE COURTS MARTIAL APPEAL COURT CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 6th February 2015 B e f o r e : PRESIDENT OF THE QUEEN'S BENCH DIVISION (SIR BRIAN LEVESON) MR JUSTICE ANDREW SMITH MR JUSTICE PHILLIPS REFERENCE BY THE ATTORNEY GENERAL UNDER S.273 OF THE ARMED FORCES ACT 2003 - - - - - - - - - - - - - - - - - - - - - ATTORNEY-GENERAL'S REFERENCE NO 367 OF 2014 - - - - - - - - -

Neutral Citation Number: [2015] EWCA Crim 257 Case No: 201405120/C1 IN THE COURTS MARTIAL APPEAL COURT CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 6th February 2015 B e f o r e : PRESIDENT OF THE QUEEN'S BENCH DIVISION (SIR BRIAN LEVESON) MR JUSTICE ANDREW SMITH MR JUSTICE PHILLIPS REFERENCE BY THE ATTORNEY GENERAL UNDER S.273 OF THE ARMED FORCES ACT 2003 - - - - - - - - - - - - - - - - - - - - - ATTORNEY-GENERAL'S REFERENCE NO 367 OF 2014 - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr O Glasgow appeared on behalf of the Attorney General Mr C Hewertson appeared on behalf of the Offender - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. PRESIDENT OF THE QUEEN'S BENCH DIVISION: On 4th September 2014 in the Military Court Centre at Portsmouth, before the Assistant Judge Advocate General, Judge Hill, this offender, who is 28 years of age, was convicted of two charges of assault by penetration. On 9th October she was sentenced to terms of 1 month and 8 months' detention in the military detention centre, those sentences to be served consecutively, making 9 months in all. In addition, she was required to comply with the provisions of Part 2 of the Sexual Offences Act 2003 in relation to notification for some 10 years and included in the relevant list by the Independent Safe Guarding Authority pursuant to the Safeguarding Vulnerable Groups Act 2006 . Her Majesty's Solicitor-General now refers the sentence imposed upon the offender to this court, pursuant to provisions of section 273 of the Armed Forces Act 2003 on the grounds that he contends that it is unduly lenient. We grant leave. 2. The facts can be summarised in this way. The offender and the victim, M, were both in the Royal Navy. The offender was an Acting Leading Hand the victim an Able Rating. Although the offender was in fact senior in rank to the victim, both participated in the Leading Rates Leadership Course, and all participants were treated as being on equal footing irrespective of rank. 3. They met for the first time on the course and, whilst both openly gay, neither had expressed any romantic or sexual interest in the other. The offender was in a long-term relationship. The victim was married although in the process of divorcing her partner and was, in consequence, vulnerable. 4. The three week course concluded on 13th March 2014 and passing out parade was due to take place on the following day. The participants on the course went on shore leave that evening to celebrate. The offender and the victim consumed alcohol and both were intoxicated. The group they were with returned to the accommodation block in HMS Collingwood at about 2.00 am. The offender asked the victim if she was "coming for a cuddle" but the victim declined, saying: "No, I'm going to bed. Goodnight." 5. A few minutes later, without permission, the offender entered the victim's room. The door was then shut but not locked because she wished to be awoken for the purpose of attending the passing out parade. As the door was opened the victim awoke and asked what the offender was doing and was told by her, she had "come for that cuddle". The victim said: "I don't think that's a good idea". But she accepted in her evidence that she acquiesced to her being there and may have lifted the duvet cover to provide space for her to get into bed with her. The victim did not think it was normal but did not feel threatened because the offender was drunk and they were friends. She did not believe that there was any sexual intent. The victim fell asleep but was awoken when the offender tried to touch her breasts. The victim clasped her arms to her sides in order to prevent this whereupon the offender put her hand inside the victim's underwear and touched her vagina. Again on this occasion, the victim tensed her legs to prevent any further assault but the offender persisted and penetrated her vagina. The victim immediately grabbed the offender's forearm and pushed the offender's hand away and said: "I think you should stop", and "You need to stop. No". As soon as this happened the offender stopped. 6. The victim then told her: "It's not going to happen. You should go." She said to the offender: "You should go back to your own room" but the offender did not leave. Rather than have an argument the victim moved away from the offender and went back to sleep, believing the offender was suitably chastised and would do nothing more. 7. Soon after, however, there was a more serious assault. The victim woke to find the offender had locked her leg around one of the victim's legs and was penetrating her vagina. This was causing her pain. The victim stated that she was "really scared" and shocked. The offender's fingers were moving in and out. The victim said: "You've got a girlfriend" to try to shock the offender into stopping. When the offender carried on the victim said: "I think you should stop. Just stop". She managed to free her leg and the offender stopped the assault and apologised. The offender remained in the victim's bed until the two of them awoke at 6.00 am. 8. Prior to the passing out parade, the offender repeatedly apologised for what she had done and sent a text message in the following terms: "I'm honest, so sorry ... I'm not drinking any more. I can't understand how I got like that. You must proper hate me." The victim made an immediate complaint. 9. The offender was interviewed by service police, when she said that the sexual activity between her and the victim had been consensual. She denied that the victim ever asked to stop or to leave the room. Furthermore she said there had been but one incident of penetration not two. She maintained that account and was convicted after a full trial. 10. The offender had one previous irrelevant conviction for driving with excess alcohol and before the sentencing Tribunal, a pre-sentence report was available. To the writer of the report, the offender refused to accept the gravity of what she had done and described the assaults as a drunken fumble. 11. She did however express regret. The author concluded that the offender presented a low risk of re-offending generally and provided a number alternative disposals and considered the question of the offender's dismissal from the Navy. 12. The Court Martial had before it a statement from the victim which described the impact of the offences upon her. She explained that when she subsequently returned to her ship she found it difficult to sleep on board as her cabin door has to be left unlocked, because she shares it with five other women. Furthermore, at weekends when she was on duty as a First Aider, her cabin also had to remain unlocked in case she needed to attend an incident. She found attending the Court Martial very difficult and had since been diagnosed with an adjustment disorder. She has struggled to form and maintain new relationships and has found it hard to trust people intimately. She is worried about the chance of having to meet the offender. 13. When passing sentence the Assistant Judge Advocate General observed that had not both the offender and the victim been in drink neither of them would have been in this situation and none of this would have happened. He went on to observe that the offender knew and knew well that by doing what she was doing she was in the territory of what was firmly forbidden. He said that her behaviour had gone "way beyond the nature of trying it on". 14. He took account of her age, her lack of previous convictions and her extremely good service record. He observed that the offender's demeanour throughout the trial and in particular from the point when the verdict was delivered was such that genuine remorse was in evidence even though she had not pleaded guilty. He said: "It is not a case for instance you are in any sense a cold blooded sexual predator who has been prowling corridors or dormitories looking for sleeping victims. It simply is not that sort of case. We think therefore that the difficult issue we have to resolve is whether we leave you in a position to continue with a service career after you have served a sentence of custody. We think that we can do justice in the case by preserving your position in the Navy. The sentence of the Court will be one of nine months' detention in total." 15. The explanation for this last remark is that the presumption is that in cases of detention in excess of 12 months, the offender will be discharged, whereas there is no such presumption in cases of under 12 months' detention. In addition, the Court-Martial had clearly considered dismissal as an option. 16. These remarks were the subject of some further elaboration in a letter written by the Assistant Judge Advocate General to this court following the Reference. The letter says this: "In a military case Dismissal is of course punishment. Where Dismissal is not awarded as a punishment, (as in this case), a defendant may still be administratively discharged from the Service, (for employment related reasons). Where a defendant is sentenced to Detention for twelve months or more but not Dismissed the defendant's Commanding Officer must consider whether to discharge the defendant administratively on completion of his sentence, the presumption for discharge unless there are clear Service reasons for retention. In determining sentence in this case the Court Martial had this information in mind." 17. It may be that the Court Martial approached this case on the basis that the first question to decide was whether it was appropriate to permit the offender to be in a position to retain her service within The Navy or perhaps, to put the matter more appropriately, to be in a better position to argue that her services should be retained. If that was the approach of the Court Martial, we take the view that it was wrong. The first question which the Court Martial should address is the appropriate sentence for the offending with which it has to deal. The employment consequences follow (and may be of greater significance in certain cases which are inimal to military discipline); those consequences, however, should not drive the determination of sentence. 18. In this court Mr Glasgow, on behalf of the Solicitor-General, argues that the case fell within category 3B of the guideline issued by the Sentencing Council in relation to sexual offences. There is no issue as to that categorisation which is the lowest in the range of this serious offence. The starting point, therefore, was 2 years custody, with a category range from a high level community order to 4 years in custody. 19. Mr Glasgow submits that the following aggravating features were present. First, the offender entered the victim's room uninvited and, on the basis that she did so intending to indulge in sexual activity notwithstanding the absence of any relationship and indeed the refusal initially to admit the victim, she behaved in a premeditated and predatory fashion. A further aggravating feature was said to be the fact the offender targeted a vulnerable victim who was intoxicated and asleep in her room at night whilst she herself was intoxicated. There were repeated assaults and the victim had been deeply affected. Mr Glasgow recognised that the offender had no relevant previous convictions with an exemplary service record and had expressed remorse. 20. Mr Hewertson, for the offender, challenged each of these aggravating features save in relation to drink. He referred to the very short time that had elapsed between the offender entering the room and being allowed into the victim's bed and spoke of the repeated assaults as a continuum of one offending. He emphasised the mitigating features to which we have referred. 21. This was the state of the case when it came before court, differently constituted, on 11th December 2014. On that occasion Mr Glasgow informed the court that a decision had been taken that the offender's service with The Navy should be terminated but that this decision had not been communicated with the offender with the result that Mr Hewertson had had no opportunity to take instructions or to review the position in the light of that information. 22. In addition, the court had before it medical evidence from a community nurse, which spoke of a deterioration in the offender's psychiatrist condition, to such extent that she was currently at high risk of suicidal ideation. In the light of those facts the hearing was adjourned not merely so that instructions could be taken in relation to discharge but also so that a psychiatric report could be put before the court. Needless to say, evidence which is adverse to the offender would not be considered if not before the Court Martial. Where however it provides more information which may assist the offender in the exercise of its discretion, the court can properly admit it. We do admit this further evidence and the further exchange of correspondence that has dealt with the offender's employment position. 23. Before dealing with these additional features in the case, it is right that we say something about the facts and circumstances. In our judgment, this was a serious incident. Putting the aggravating features into the facts, M declined what was described as a "cuddle" which in any event would not have involved sexual activity and said emphatically that she was going to bed. Notwithstanding the offender entered the victim's room while she was asleep and as she awoke told she her she had come for "that cuddle" whereupon she was again rejected in terms it was not a good idea. It is clear the offender persisted and that M, affected by drink, believing her to be a friend and not feeling threatened allowed her into bed. To assert as the Assistant Judge Advocate General did, that neither would have been in that situation if they had not both in drink is to ascribe responsibility to M where she had none at all. She had not invited the offender into her room, she had twice rejected her advances but had relented as a consequence of persistence. She was then assaulted not once but twice. These were not mere fumbles but deliberate assaults. After the first occasion the victim told her to stop and to go back to her room. The offender remained and persisted and then committed a further assault. 24. In our judgment, whether Mr Glasgow, on behalf of the Solicitor-General, is correct to describe her behaviour as verging on the predatory albeit arising out of drink, it is undeniable that it was not merely "on the spur of the moment" and nothing akin to "fumbling". It took the form of escalating incidents. 25. As to the mitigation, we accept her prior good character and her exemplary service record although, as the sentencing guideline makes clear, these features do not carry great weight by way of reduction of sentence. As for her remorse, it must be underlined that she pleaded not guilty, asserting a positive case that there was but one incident which was consensual. It is clear from the correspondence that we have seen that she continues to maintain this. She did however express concern about the impact on M immediately following the incident but she had both caused it to her and further contributed to it by her determination to contest the prosecution (as, of course, she was entitled to do). 26. We now turn to the information that has come to the court since the court-martial. The first is that a decision has been taken to the effect that the offender's retention would be detrimental to the service. The Commodore responsible for the decision making has written: "a. The RN has a duty to provide a safe environment to all its personnel, which would be compromised by retention of an individual who has committed such serious offences against another Service person in Service accommodation. Any risk of repeat, however low, is unacceptable. She could not be required to share accommodation with others, which would preclude sea-service and accommodation in shore establishment. b. Her career management restrictions mean she is limited in her employability, furthermore she cannot be allowed to undertake supervisory roles or positions of trust, particularly for impressionable youngsters, many of whom serve in the RN. The staff effort that would be required to manage her and the resulting burden on the Commanding Officer, Careers Managers and others to monitor restrictions is unacceptable." 27. Speaking for ourselves, we entirely understand those sentiments and although what is effectively an appeal against the decision has been lodged by the offender, Mr Hewertson has frankly recognised that it is more in hope than in realistic expectation that such an appeal would succeed. We for our part consider the reasoning of the Commodore to be entirely clear and effectively unanswerable, such that we considered whether we should order dismissal as a penalty of the court. 28. In that regard, we note that the Guidance on Sentencing in the Court Martial (Version 4) speaks of dismissal for serious sexual offences being ‘almost inevitable apart from in the most exceptional cases’ and underlines that ‘minor sexual assaults are more serious in a Service context than in civilian life because they can cause resentment and undermine unit cohesion’. We entirely endorse these conclusions and see no reason why they do not apply to this case. In the event, however, recognising that there are different consequences to dismissal by order and administrative discharge and having regard to the deference to which the military Court Martial is entitled from this court, we have declined to order dismissal but leave the matter to the Navy. 29. That leaves the medical position. The psychiatric evidence now before the court makes it clear that the offender has a long history of anxiety symptoms dating back to childhood, partially due to a very disturbed and abusive upbringing. The psychiatrist however concluded that she was constitutionally prone to anxiety and had received psychiatric care previously although this had ceased since she had become an adult. She dealt with her remaining symptoms self medicating with alcohol. 30. The psychiatric, Dr Craig Anderson, concludes: "I would currently diagnose her with mixed anxiety and depression as defined in ICD-10 as F41.2. There is a significant risk of suicide and this is reflected in her current treatment plan. [The offender] is not currently fit for work nor active service. If her custodial sentence is extended her mental health is likely to deteriorate further. If she transferred to a civilian prison I would recommend she that she is placed in the hospital wing and remains under psychiatric supervision. She should continue with antidepressant medication for the foreseeable feature." 31. That view entirely endorses the evidence that was available to the court on the last occasion, not merely from the community mental health specialist but also from a councillor who embarked on therapy with the offender in relation to her alcohol misuse and the impact of damaging childhood experiences. 32. In those circumstances, given the link identified by a psychiatrist between the offender's offending and her mental condition, the additional mitigating factor of a mental disorder, particularly where linked to the commission of the offence is available. In those circumstances, this court, as the Court Martial, must be entitled to take into account that condition by way of mitigation or (in the case of a Reference by the Solicitor-General as a potentially powerful and relevant circumstance) to put into balance when considering the exercise of discretion: see in relation to the responsibilities of the court in that regard R v Hall [2013] 2 Cr App R(S) 68, at para 14. 33. Furthermore, it is beyond argument that in relation to short sentences, or sentences where a non-custodial sentence may be replaced by a custodial sentence, the principal of double jeopardy remains available to the offender. This sets out the court's recognition of the offender's anxiety and trauma at being re-sentenced particularly where the end of the sentence is within the immediate future. We are told that this offender would be due for release in about 4 weeks if this court does not exercise its discretion to increase it. 34. We have no doubt that the sentence imposed by the Court Martial was indeed unduly lenient. In the normal course, we would not have hesitated to increase it. However, the circumstances of the offender's continued mental ill-health and the requirement to pay regard to double jeopardy principles, have allowed us exceptionally to conclude that it is unnecessary to exercise our discretion in favour of the Solicitor-General's submissions. 35. In those circumstances, although leave is granted as we have said, this Reference fails.

2015_02_06-3543.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2015/257/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2015/257

a363047ee3e7cf84983ad083f296dffba25e0101eed4b5808302deb3b3b6c519

[2014] EWCA Crim 598

EWCA_Crim_598

2014-02-04

crown_court

Neutral Citation Number: [2014] EWCA Crim 598 Case No. 2013/00165/C2 & 2013/00171/C2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Tuesday 4 February 2014 B e f o r e: LORD JUSTICE AIKENS MR JUSTICE WYN WILLIAMS and THE RECORDER OF LONDON ( His Honour Judge Barker QC ) ( Sitting as a Judge of the Court of Appeal Criminal Division ) - - - - - - - - - - - - - - - - - - - - - B E T W E E N R E G I N A - v - ANGELA PENNOCK RICHARD JOH

Neutral Citation Number: [2014] EWCA Crim 598 Case No. 2013/00165/C2 & 2013/00171/C2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Tuesday 4 February 2014 B e f o r e: LORD JUSTICE AIKENS MR JUSTICE WYN WILLIAMS and THE RECORDER OF LONDON ( His Honour Judge Barker QC ) ( Sitting as a Judge of the Court of Appeal Criminal Division ) - - - - - - - - - - - - - - - - - - - - - B E T W E E N R E G I N A - v - ANGELA PENNOCK RICHARD JOHN PENNOCK - - - - - - - - - - - - - - - - - - - - - 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 James Kemp appeared on behalf of the Appellant Angela Pennock Mr K Rainey appeared on behalf of the Appellant Richard Pennock Mr I Mullarkey appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T Tuesday 4 February 2014 LORD JUSTICE AIKENS: 1. This is an appeal against conviction by Richard and Angela Pennock. We will refer to them as the first and second appellant respectively. The single judge granted leave to appeal in respect of four out of six proposed grounds. The first appellant had intended to make renewed applications in respect of two further grounds, but we have not dealt with those applications in circumstances which we shall set out. There is also before the court a renewed application for an extension of time and for leave to appeal against sentence by the two appellants. Again, we have not needed to deal with those and we shall explain why shortly. 2. The appeals arise out of the conviction (by a majority of 10:2) on 11 December 2012 of both appellants of two offences under the Fraud Act 2006 following a trial before His Honour Judge Moorhouse and a jury in the Crown Court at Teesside. On 11 January 2013 Judge Moorhouse sentenced Angela Pennock (who is now aged 46) to 18 months' imprisonment concurrent in respect of each offence, and he sentenced Richard Pennock (who is now aged 66) to three years' imprisonment in respect of each offence, to run concurrently. The Fraud act 2003 3. The charges were made under section 4 of the Fraud Act 2006, which provides: " Fraud by abuse of position (1) A person is in breach of this section if he - (a) occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person, (b) dishonestly abuses that position, and (c) intends, by means of the abuse of that position - (i) to make a gain for himself or another, or (ii) to cause loss to another or to expose another to a risk of loss. (2) A person may be regarded as having abused his position even though his conduct consisted of an omission rather than an act." 4. There is no statutory explanation of what constitutes the circumstances set out in section 4(1)(a), so it must depend upon the facts of each case. Neither is the word "abuses" in section 4(1)(b) defined in the statute. A good working meaning might be: "uses incorrectly" or "puts to improper use" the position held in a manner that is contrary to the expectation that arises because of that position. That appears to be the proposition which is accepted in the current edition of Archbold at 21-386. 5. Section 5 of the Fraud Act is also relevant. It provides: " 'Gain' and 'loss' (1) The references to gain and loss in sections 2 to 4 are to be read in accordance with this section. (2) 'Gain' and 'loss' - (a) extend only to gain or loss in money or other property; (b) include any such gain or loss whether temporary or permanent; and 'property' means any property whether real or personal (including things in action and other intangible property). (3) 'Gain' includes a gain by keeping what one has, as well as a gain by getting what one does not have. (4) 'Loss' includes a loss by not getting what one might get, as well as a loss by parting with what one has." 6. Thus, in general terms, in respect of an offence charged under section 4 of the Fraud Act 2006, the prosecution has to prove four matters: (1) That the defendant at the relevant time occupied a position in which he is expected to safeguard or, at least, not act against the financial interests of another. The current edition of Archbold, at 21-385, suggests that the "expectation" in section 4(1)(a) is that of the reasonable member of the public as personified by the jury. For present purposes we would accept that definition. (2) That the defendant "abuses" that position, ie. he uses that position incorrectly or he puts it to improper use contrary to the expectation resulting from the position held. (3) That the defendant's abuse of that position is dishonest. (4) That the defendant intends, by means of his dishonest abuse of that position either to make a gain for himself or another person; or that he intends to cause loss to another or to expose another person to a risk of loss. As is clear from section 5 of the Act, the gain or loss must relate to money or any other property, but it can be a temporary gain or loss or a permanent one. But there does not have to be an actual gain or an actual loss. The Facts 7. Against that background we can now briefly describe the facts which gave rise to the charges. The first appellant, Richard Pennock, is a successful and wealthy businessman who lives in the North East of England. At no time did he have any financial difficulties and could, on the evidence, raise up to £1 million quickly and easily. The second appellant is his wife. The complainant, Mr George Spann, is now an elderly gentleman of over 90 years of age. He is the great uncle by marriage of the second appellant. Her grandfather, Alec Bayliss, was married to the complainant's sister, but she had died before the relevant events took place in 2009. At that time the complainant was aged about 86. His wife had also died. At the trial there was conflicting evidence about the state of Mr Spann's memory in 2009. However, it was accepted that by the time of the trial his memory had deteriorated significantly and that he was by then suffering from the early stages of Alzheimer's disease. 8. The complainant had lived for many years in New Zealand. he had met the Pennocks on a visit to the United Kingdom in the early 2000s when his sister was ill. In fact, she died at the time of that visit. In 2009 he decided to sell his house in New Zealand and move to the United Kingdom. The second appellant went out to New Zealand to help him do so. The house in New Zealand was successfully sold for something just over the New Zealand equivalent of £105,000. The complainant had some other money and he also had a pension. 9. When he came to the United Kingdom, Mr Spann first of all lived with the two appellants in their house in Newcastle. The bank manager of the Pennocks, Mr Gilsennen of Barclays Bank, had a meeting with the complainant and Mr Pennock, as a result of which four joint bank accounts with Barclays were set up. These were an income account, a spending account (on which there was a spending limit of £500), a savings account and a household bills account. At the trial Mr Gilsennen gave evidence for the prosecution. He said that Mr Pennock had said that he would control the accounts of Mr Spann (the complainant) and that Mr Spann agreed with this at that meeting. Mr Gilsennen said in evidence that he had said at the meeting that the only way that Mr Pennock could have control over the accounts was if the accounts were in joint names. In cross-examination he said that he was satisfied that Mr Spann gave his consent to the accounts being opened and that mandates were sent to Mr Spann when "the accounts were transferred". Unfortunately, the relevant bank records were apparently not made available at the trial so that none of this could be verified on the documents. 10. The complainant gave his evidence in chief by way of a recorded video interview. He was cross-examined via a video-link. His evidence was that he had not realised that he had opened joint accounts with the Pennocks and he denied knowing that he had signed anything to set up the joint accounts. 11. After the complainant had lived with the Pennocks for some time, the idea was mooted of him moving to a bungalow which he would share with Mr Bayliss, who was approximately the same age as Mr Spann. There were disputes in the evidence about how this came about. But there is, apparently, no dispute that the sum of £100,000 of the complainant's funds was removed from one of the joint accounts by Mr Pennock (that is, one of the joint account holders and signatories), and that this money was used as part of the purchase price of £265,000 for a bungalow at No 3 Bute Close ("the property"). There was also no dispute that Mr Pennock had provided the remainder of the purchase price and had also paid the Stamp Duty and the conveyancing fees. The bungalow was conveyed into the joint names of Mr and Mrs Pennock as holders of the legal title. 12. There was no direct evidence from any prosecution witness of the precise details of how the purchase came about. However, Ms Jeanette Bowes, who was employed by the Citizens Advice Bureau, gave hearsay evidence that Mr Spann had told her that he did not know that he had paid £100,000 towards the purchase of the property. She said that he also told her that he had not given permission for the purchase of the house using his £100,000. 13. The solicitor who carried out the conveyancing for the purchase of the property, Ms Caroline Rathmell, gave evidence for the defence. She said that she was instructed by the Pennocks only and not by them and Mr Spann jointly. The contract for the purchase of the property was signed on 13 November 2009 and the conveyance was completed three days later. The total purchase price was transferred from one account, which was one of Mr Pennock's sole accounts, to the solicitor's client account. We were informed by Mr Mullarkey, who appeared for the prosecution at the trial and who appears for the Crown on the appeal that (although this does not appear from the summing-up), the £100,000 had been taken from one of the joint accounts of Mr Spann and Mr Pennock, transferred into Mr Pennock's sole account, and then transferred to the solicitors' client account. Ms Rathmell's evidence was that, at the time of the transaction, Mr Pennock had told her that Mr Spann had provided £100,000 towards the purchase price of the property and that the purchase was so that Mr Spann and Mr Bayliss could live in that property. Ms Rathmell was questioned in cross-examination by Mr Mullarkey about her statement that Mr Pennock had told her at the time of the transaction that Mr Spann had provided £100,000 towards the purchase price. It was suggested to her that Mr Pennock had only told her at a later time. Ms Rathmell was firm that Mr Pennock had told her at the time of the transaction about the provision of the £100,000 towards the purchase price by Mr Spann. 14. It was common ground at the trial that there was no document setting out an express declaration of trust in respect of Mr Spann's interest in the property. Nor was his financial contribution registered in any way on the title to the property, or otherwise formally recognised. Ms Rathmell's evidence was that Mr Spann should have taken his own, independent advice. It would appear that that she did not tell her own clients at the time that this is what could or should have been done. 15. After Mr Spann and Mr Bayliss moved into the property all was well for a short while. Then problems started. Ultimately, in April 2010 there was an argument between Mrs Pennock and Mr Spann. She alleged that on one occasion he had approached her in a menacing fashion with raised fists. This led, shortly afterwards, to Mr Pennock giving Mr Spann a written "notice" to leave the property and to pay what were said to be arrears of "rent". An employee of Stockton Borough Council, Ms Jennifer Wardle, who gave evidence for the prosecution, said that she advised Mr Spann to pay the so-called rent. In the second half of April Mr Pennock gave Ms Rathmell instructions to transfer the legal title in the property from Mr and Mrs Pennock's names to that of their adult daughter Amanda. That was done on 21 April 2010. The Pennocks' evidence was that this was done for "tax-planning purposes". The summing-up does not suggest that any nominal transfer price was paid upon the transfer of the property to Amanda Pennock. Ms Rathmell's evidence was that once all the parties had fallen out, she had advised the Pennocks to repay the £100,000 to Mr Spann. But by this time Mr Pennock was on bail. It appears that at some point the sum was deposited in a client account at the solicitors' firm, but it was thereafter taken out of the solicitors' account because the solicitors did not like to have such large sums sitting for any long period in their client account. 16. During the time that Mr Spann lived in the property there was some form of tenancy agreement between Mr Spann as "tenant" and the Pennocks as "landlords". Under this agreement Mr Spann was to pay a "rent" of £450 per month. There was a dispute at the trial as to whether he had signed such an agreement or whether he had paid one or more such sums by way of "rent". At the same time, arrangements had been made, with Mrs Pennock's assistance, for Mr Spann to claim Housing Benefit and council tax relief. He was probably not entitled to such benefits. It appears from the summing-up that the evidence was that these sums were used to pay his household expenses. The Indictment and the parties’ cases at trial. 17. The two counts on the indictment are in the following terms. Count 1 charges fraud, contrary to section 1 of the Fraud Act 2006. The particular of offence state: "RICHARD JOHN PENNOCK and ANGELA PENNOCK on or around the 30th day of October 2009 committed fraud in that, dishonestly and intending thereby to make a gain for themselves or another, or to cause loss to another or to expose another to risk of loss, they abused their position in which they were expected to safeguard or not act against the financial interests of another, namely Mr George Spann by transferring £100,000 from his bank account without his permission, in breach of section 4 of the Fraud Act 2006." It will be noted that there is a reference to "his" bank account and "his" permission in those particulars of offence. 18. The statement of offence in count 2 charges fraud, contrary to section 1 of the Fraud Act 2006. The particulars of offence state: "RICHARD JOHN PENNOCK and ANGELA PENNOCK on or around the 21st day of April 2010 committed fraud in that, dishonestly and intending thereby to make a gain for themselves or another, or to cause loss to another or to expose another to risk of loss, they abused their position in which they were expected to safeguard or not act against the financial interests of another, namely Mr George Spann, by transferring ownership of 3 Bute Close, Thornaby, to Amanda Pennock without recognising or protecting his interest." 19. The fact that the particulars of offence in count 1 refer to "his bank account" and "his permission" does not recognise that the relevant accounts that were set up were all joint accounts to which the first appellant was one of the joint account holders and signatories together with the complainant. There is no reference in count 1 to the use of the £100,000 deposited by Mr Spann in one of the joint accounts for the purchase of the property. 20. The particulars of offence of count 2, on the other hand, focus on the transfer of "ownership" of the property to Amanda Pennock "without recognising or protecting" the interest of Mr Spann. It is that transfer (which must mean the transfer of the legal estate) which is said to be the abuse of the position of trust and was dishonest because it did not recognise or protect the interest of Mr Spann. 21. The prosecution case in relation to count 1 was that both appellants had been dishonest when, without Mr Spann's consent, they took £100,000 from one of the joint accounts of Mr Spann and Mr Pennock. This is reflected in the judge's summing-up at page 4, lines 12-13, where he speaks of the prosecution alleging that the appellants abused their position by "transferring £100,000 from his [sic] bank account without his [sic] permission". 22. The defence case was that Mr and Mrs Pennock had never acted dishonestly in respect of the use of Mr Spann's £100,000 as part of the purchase price of the property. Their case was that Mr Spann had consented to using this sum towards the purchase price of the property. 23. The prosecution case in respect of count 2 was that both Mr and Mrs Pennock had acted dishonestly in transferring the legal title of the property to their daughter without recognising or protecting the equitable interest of Mr Spann in the property, thereby abusing their position in which they were expected to safeguard or not act against Mr Spann's financial interests. It was the prosecution case that this was done intending that the defendants would thereby make a gain for themselves or for their daughter, presumably on the assumption that the property would be free of any interest of Mr Spann. 24. The defence case in relation to count 2 was that the Pennocks had never acted dishonestly in relation to the transfer of the legal title in the property to their daughter; that they had done so as a tax-planning activity; and that they had fully intended to reimburse the £100,000 to Mr Spann. The Trial 25. At the end of the prosecution case, Mr Kemp, who acted at the trial on behalf of both Mr and Mrs Pennock, submitted that there was no case to answer on count 1. His argument was that the prosecution evidence in relation to Mr Spann's permission to use £100,000 of his money towards the purchase price of the property was so inherently weak and inconsistent that it would be unsafe to leave count 1 to the jury. The judge rejected that submission. The judge "conceded" that some of the evidence was far from strong, "but there is no documentation supporting the use of Mr Spann's money" because there was a complete lack of a written record. The judge accepted that there were inconsistencies in the prosecution evidence but said that, as Mr Spann was now 89 and suffering from early Alzheimer's disease, some of the evidence was bound to be inconsistent. 26. Both the appellants gave evidence at the trial. In cross-examination Mr Pennock agreed that at the time that legal title in the property was transferred from him and his wife to their daughter, he had not told the solicitor carrying out the conveyancing, Ms Rathmell, about the £100,000 of Mr Spann's money that had been part of the purchase price. However, as already noted, Ms Rathmell's evidence was that she had been told by Mr Pennock, at the time of the purchase of the property, that Mr Spann was contributing £100,000 towards the purchase. 27. The appellants called other witnesses in support of their case. The judge gave directions to the jury on 10 December 2012 and the jury returned their verdicts the following day. The Appeals 28. The first ground of appeal for which the appellants have leave is that the judge erred in failing to accept the submission of no case to answer in respect of count 1. It is clear from the transcript of Mr Kemp's argument that he focused his submissions on the weak and inconsistent evidence concerning the issue of whether there had been consent from Mr Spann to the joint accounts and the use of £100,000 of his funds, which was obviously from one of the joint accounts in Barclays, for use as part of the purchase price of the property. 29. In respect of count 1 there seems to us to have been a failure carefully to analyse the legal position. First, it is necessary to focus on the bank accounts. The fact is that joint accounts were opened at Barclays. Unless Mr Gilsennen acted entirely improperly, those accounts could only have been opened at the bank with the express consent of both Mr Spann and Mr Pennock. A joint account is one that gives both account holders the authority to withdraw money from that account. So far as the bank is concerned, unless there has been some express limitation on the authority of one of the joint account holders with respect to withdrawals (eg only up to a certain sum, so sums above that need authorisation from both account holders), no further "permission" from one account holder to the other is needed. The bank does not act in breach of its mandate (unless there has been some specific restriction, eg on the amount that may be withdrawn) if one of the joint holders of the account withdraws money from that account but the other does not agree to that being done. 30. This is more than borne out by the prosecution evidence that was before the judge and the jury. Thus, Mr Gilsennen, the Barclays' bank manager, gave clear evidence that Mr Spann had agreed to the joint accounts and that he (Mr Gilsennen) had a duty not to act against the interests of either party and had to be sure that both parties knew exactly what they were doing and were happy with it before he could have opened those accounts in joint names. Next, there was an internal bank e-mail from Mr Gilsennen dated 6 October 2011 (some two years after the relevant events) that stated that Mr Spann wanted Mr Pennock as a joint account holder so that monies could be moved around on Mr Spann's account, and there was an e-mail from Mr Gilsennen to Mr Pennock stating that Mr Spann had agreed to and wanted Mr Pennock to act as a joint account holder. There was the evidence of Ms Bowes that "it was believed" that Mr Spann consented to the opening of the joint bank accounts and that he remembered signing the documents. Lastly, there was apparently a statement of Mr Spann, dated 25 August 2011 (which became part of the depositions), in which he said that he had remembered the accounts were to be joint as he trusted Mr Pennock, although under cross-examination Mr Spann denied signing anything. Any contrary evidence of Mr Spann at the trial, when he was suffering from memory loss and the early stage of Alzheimer's disease must, by its very nature be described as weak and entirely inconsistent with the unimpeachable evidence of Mr Gilsennen. 31. Given that the £100,000 must have been removed from a joint account of which Mr Pennock was a joint account holder, and given that there was no evidence that there was any restriction on his authority to act as a joint account holder, at all times Mr Pennock must have had authority to do that as a joint account holder. There was simply no case to answer given the way that the particulars of count 1 were framed. In his ruling on "no case to answer" the judge did not seem to have been alive to the fact that count 1 did not make any allegation as to the use of the money once it had been withdrawn from the joint account. Insofar as he referred to that matter, he was, with respect, not focusing on the issue given the way count 1 had been framed. 32. We therefore are driven to the conclusion, albeit reluctantly, that we must allow the appeal in relation to count 1 on this first ground of appeal. If the particulars of offence had been more carefully drafted and had concentrated on the use of the money to purchase the property, things may have been otherwise. But it did not. 33. Ground 2 relates to the summing-up. It is suggested that the judge made insufficient reference to the defence witnesses. We need only consider it in relation to count 2. Here Mr and Mrs Pennock were the legal title-holders to the property and so, as the holders of the legal title to the property, they were entitled to transfer that legal title to a third party. There can, however, be no doubt that Mr Spann had an equitable interest in the property to the extent that money which originated from him had contributed to the purchase price, in the absence of any suggestion that he had intended to make a gift of the £100,000 to the appellants: see, for example, Westdeutche Landesbank Girozentrale v Islington LBC [1996] AC 669 at 708-9 per Lord Browne-Wilkinson. There would be either a "resulting trust" or perhaps, as Mr Kempt suggested in argument, a "constructive trust" in Mr Spann's favour to the extent of that contribution. However, if Mr and Mrs Pennock made the transfer in a manner in which Mr Spann's equitable interest in it was not protected, then there would in our view be no doubt that they would be in breach of their fiduciary duty towards him. If they did that dishonestly and with an intent to make a gain for themselves or their daughter, that would amount to an offence under section 4 of the Fraud Act 2006. 34. Mr Spann's equitable interest in the property would, in law, however, have been protected, so long as the transfer of the legal title was not to a bona fide purchaser of the legal estate for value who did not have notice of Mr Spann's interest. So far as we understand it, Ms Amanda Pennock did not give any value for the transfer of the legal title in the property to her. Therefore, as a matter of law, Mr Spann's equitable interest in the property remained intact upon that transfer, despite the fact that it was not formally recognised or protected by a declaration of trust or other notification on the registered titled. 35. The evidence of prosecution witnesses and most of the defence witnesses, other than Mr and Ms Pennock and Ms Rathmell who carried out the conveyancing of the transfer to Amanda Pennock, were not significant in relation to count 2. The key issues were: (1) whether Mr and Mrs Pennock were in a fiduciary position towards Mr Spann, which they plainly were; (2) whether they abused that position, which depended upon the jury's view of why Mr and Mrs Pennock made the transfer and whether they intended to deprive Mr Spann of his equitable interest in the property; (3) whether they acted dishonestly; and (4) whether they intended to make a gain for themselves or their daughter, although it would not matter if no gain had in fact been made. 36. On those issues in relation to count 2 the evidence of Mr Spann himself, Ms Bowes, Ms Wardle, Mr Gilsennen and the other defence witnesses were of little significance. So, even if the summary in the summing-up of the cross-examination of those prosecution witnesses and the evidence in chief of other defence witnesses was not as comprehensive as it should have been, that does not, in our view, affect the safety of the conviction on count 2. 37. Ground 3 is that the judge failed to give a proper direction on the effect of delay on the defence's ability to deal with the allegations. The judge did not give any direction on delay. That ground does not have much, if any, force in relation to count 2, however, because that count does not depend on issues such as consent or permission and people's recollection of such matters. The facts largely speak for themselves. The jury's decision depended upon their interpretation of facts that were not really in dispute. The transfer to Amanda Pennock was made. Mr Spann was not told of it. His equitable interest was not noted on the transfer of the legal title. Therefore the failure of the judge not to give any direction in respect of delay cannot, in our judgment, affect the conviction on count 2. 38. Ground 4 is that the judge wrongly and prejudicially questioned two defence witnesses, Ms Rathmell (the solicitor who did the conveyancing) and Mr Parker (her partner in the firm of solicitors). We see no force whatsoever in this ground. The judge was entitled to ask those questions so that the position on a very technical area of conveyancing would be clearer both for him and the jury. 39. Despite these conclusions on those grounds of appeal for which leave has been granted, we remain very concerned that the case in relation to count 2 was not properly presented to the jury by the judge in his summing-up. Although Ms Rathmell had made some statements about the legal position of Mr Spann's interest in the property, ie that he had an equitable interest in it to the extent of his contribution, the consequences of that fact were never properly explained to the jury in the summing-up. The question that they should have been invited to focus upon was whether the defendants, being in a fiduciary position towards Mr spann, were attempting dishonestly to deprive him of his equitable interest in the property by making the transfer of the legal title to their daughter and without there being any notification, by a declaration of trust or otherwise, of his equitable interest, so that they thereby were not properly recognising or protecting it. The jury, in our view, should have been directed on the law to the effect that, even once the transfer of the legal title to Amanda Pennock had taken place, Mr Spann's equitable interest in the property remained intact, because Amanda Pennock was not a bona fide purchaser of the legal estate for value without notice of his interest, as she had not given any value for the transfer. Therefore, the jury should have been told, as a matter of law, even assuming, contrary to their case, that the Pennocks were attempting to deprive him of his interest in the property, they had failed to do so. Whether a statement of the law to that effect would have made any difference to the jury's conclusion that Mr and Mrs Pennock were acting dishonestly and in abuse of their position is impossible to say. But the fact is that the technical legal position was not explained to the jury. It is our view that on the summing-up as given, the jury might have assumed, wrongly, that upon the transfer of the legal title to Amanda Pennock, Mr Spann lost all his equitable interest in the property. That was not the case. 40. In these most unusual circumstances, we have, again with considerable reluctance, been driven to the conclusion that the convictions on count 2 are not safe and must be quashed. 41. In the light of these conclusions we do not need to go on to consider the application for leave to appeal against sentence. Retrial 42. Mr Mullarkey has made an application that there be retrials of both the appellants. We do not accept that proposition. First, there could not be a retrial in respect of count 1, given our views on the inadequacies of the way that that count has been framed. In respect of count 2, the position is that both the appellants have served a considerable portion of their sentence. Mrs Pennock has served the entirety of her custodial term. Mr Pennock is about two-thirds of the way through his custodial term. Furthermore, there would, in our view, be considerable difficulties if it were contemplated that Mr Spann were himself to give evidence in a trial which might take place later in 2014, in circumstances when in 2012 he already had considerable difficulties with memory and was in the early stages of Alzheimer's disease. In these circumstances we have come to the conclusion that it is not in the public interest that there be any retrials. 43. We note, although it has nothing particularly to do with this court, that Mr Kemp informed the court that arrangements have been made for £100,000, and if necessary further sums, to be held in respect of Mr Spann's interest in the property, and that in due course matters will be dealt with in respect of that interest in the property. ( Mr Kemp applied for a defendant's cost order ) LORD JUSTICE AIKENS: Mr Kemp, we think the best way to proceed is this. We would like you to set out in a short written submission to the court what you say is its jurisdictional position by virtue of the relevant statutory and rules' provisions, which must be those that were in force before 1 October 2012. Although you have not addressed us on this, we think the best way to do it is in writing, saying why, assuming that this court has jurisdiction to grant any order in respect of a defendant's costs, either here or below, in the circumstances we should do so, if that is your submission, bearing in mind the way that the appeal has taken place and indeed the way the trial proceeded. But that is a submission you would have to make and it is a submission we would have to accept before we would, even assuming we had jurisdiction, be prepared to grant any costs. The third point you will have to deal with - and I do not think you have dealt with; I have not seen anything in writing - is how much costs you are after. MR KEMP: I have asked those who instruct me, but they have not been forthcoming. There was a change of solicitors after trial. LORD JUSTICE AIKENS: We cannot make any order until we have seen what it is you are asking for. We have to be satisfied that that is something that we think is appropriate. MR KEMP: My Lord, yes. LORD JUSTICE AIKENS: How long before you can get those submissions to us, bearing in mind we think it should be dealt with as speedily as possible? MR KEMP: Can I ask for seven days? LORD JUSTICE AIKENS: We will give you seven days. MR KEMP: I am grateful. LORD JUSTICE AIKENS: Mr Mullarkey, we think it only right that you should have an opportunity to make any submissions in response, if you want to. Mr Kemp, these will be on behalf of both the appellants, will they? MR KEMP: Certainly, my Lord. LORD JUSTICE AIKENS: I think they should be. I do not see why there can be a conflict of interest in respect of the two. MR KEMP: Yes. I do not think my learned friend will be able to add anything. LORD JUSTICE AIKENS: No, quite. How long would you like to respond? MR MULLARKEY: Perhaps three days, my Lord. LORD JUSTICE AIKENS: Three days? MR MULLARKEY: Yes. LORD JUSTICE AIKENS: All right. Seven days from now is Tuesday 11th. So shall we say by noon on Tuesday 11th, and then by noon on the 14th, which is the Friday, I think. Then we will give a decision on those paper submissions. As I emphasise again, Mr Kemp, even if we have jurisdiction, and even if we were to think that the sums were reasonable, there is no guarantee that we would regard it as proper in the circumstances of this case that we should grant a defendant's costs order. That is something that we will have to consider. MR KEMP: I am grateful, my Lord. LORD JUSTICE AIKENS: Thank you. Thank you all very much indeed. ____________________________

2014_02_04-3344.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2014/598/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2014/598